# In the Missouri Court of Appeals **Eastern District**

DIVISION ONE
TWESTLY EMSWELLER , ) No. ED 107651 ) Appellant, ) ) Appeal from the Circuit Court
vs. ) of the City of St. Louis ) 1622

- CC09956

- 01 BI

- STATE DEVELOPMENT AGENCY ) OF MISSOURI

- ILLINOIS ) Honorable Michael F. Stelzer METROPOLITAN DISTRICT, ) ) Respondent. ) Filed: October 22, 2019
OPINION Twestly E msweller (“Plaintiff ”) appea ls the trial court’s grant of j udgment o n the

p leadin gs in favor of Bi

- State Development Agency of Missouri

- Illinois Metropolitan District (“Defendant”) on Plaintiff ’s petition seeking damages against Defendant under the Missouri Human Rights Act ( “ MHRA ” )

. 1 We affirm.

1 A ll statutory references to the MHRA, w hich is found in chapter 213 , are to RSMo

. 2000, which was the version of the statutes in effect at the time Plaintiff filed his complaint of discrimination with the Missouri Commission on Human Rights and his petition in the circuit court. The statute s were subsequently amended ( effective August 28 , 2017 ) , but these amendments do not apply in this case.2 I. BACKGROUND
A. The Relevant A llegations in Plaintiff’s Petition Because this appeal in volves a grant of a motion for judgment on the p leadings, it is important to initially set out the relevant allegations of Plaintiff’s petition. These allegations are
as follows. 2
Plaintiff worked for Defendant from approximately 2002 through 2015 as a service manager in Defendant’s Call

- A

- Ride Division for residents of the St. Louis a rea . Defendant initiated a practice prior to Plaintiff’s termination where Medicaid riders were refused transport

s ervice to certain locations, while non

- Medicaid ride rs were not

. Plaintiff believed the practice was discriminatory of African

- American riders and expressly voiced his con cerns to superiors

. Shortly after , Plaintiff was terminated on March 19, 2015, fo r an alleged troubled behavioral
pattern

. B. Procedural Posture After Plaintiff was terminated, he filed a complaint of discrimination with the Missouri Commission on Human Rights (“MCHR”) on S eptember 4, 2015, related to his termination

. 273 days later , o n June 3, 2016, the MCHR issue d a right

- to

- sue letter to Plaintiff

. Then , Plaintiff filed a petition against Defendant in the Circuit Court of th e City of St. Louis alleging his
termination violated the MHRA

. Thereafter, Defendant filed a motion to di smiss Plaintiff’s action on the grounds Defendant is an interstate compact which would not subject it to the MHRA (“the interstate compact defense”) . The circuit court denied Defendant’s moti on to dismiss on April 11, 2017

. Then, Defendant filed its answ er, again asserting the interstate compact defense

.

2 Defen dant admits, for purposes of its motion for judgment on the pleadings, the truth of Plaintiff’s wel l

- pleaded facts. See City of Dardenne Prairie v. Adams Concrete and Masonry, LLC , 529 S.W.3d 12, 17 (Mo. App. E.D. 2017 ).3 Subsequently, o n August 21 , 2018, this Court issued its decision in Jordan v. Bi

- State Development Agency , 561 S.W.3d 57 (Mo. App. E.D. 2018). There, our Court f ound “the increase in potential employer liability that accompanied the different burdens of proof under the
MHRA and the [Illinois Human Rights Act] imposed an impermissible unilateral bu rden on [the
defendant Bi

- State Development Agency of Missouri

- Illinois Metropolitan District] .” Id

. at 58,
62. Our Court further held that the defendant Bi

- State Development Agency of Missouri

- Illinois Metropolitan District was not subject to suit under the MHRA as the statutes existed prior to the 2017 amendments, because Defendant is an interstate compact a nd had an impermissible burden
under the MHRA. Id

. at 58, 59 n.1, 62, 62 n.2 ; see also footnote 1 of this opinion.
After Jordan , Defendant filed a motion for judgment on the p leadings in this case , again asserting the interstate compact defense . The c ircuit court granted Defendant’s motion. Plaintiff then filed this appeal.
II. DISCUSSION Plaintiff raises one point on appeal, asserting the trial court erred in granting Defendant’s motion for judgment on the pleadings. For the reasons discussed below , we disagree.
A. Standard of Review “Judgment on the pleadings addresses a question of law, which we review de novo. For the purpose of the motion, the moving party admits the truth of well

- pleaded facts in the opposing party’s pleadings.” City of Dardenn e Prai rie v. Adams Concrete and Mason ry, LLC , 529 S.W.3d 12, 17 (Mo. App. E.D. 2017) (internal citation omitted) . The party seeking judgment on the pleadings is similar to that of a movant seeking a motion to dismiss: “assuming the facts pleaded by the o pposite party to be true, these facts nevertheless are insufficient to
warrant relief as a matter of law.” Id . This Court affirms a judgment on the pleadings “only4 where under the conceded facts, a judgment different from the pronounced could not be rend ered notwithstanding any evidence which might be produced.” Id . (quotations omitted).
B. Whether the Trial Court Erred in Granting Defendant’s Motion for Judgment on the Pleadings In this case, Plaintiff argues the trial court erred in granting Defendant ’s motion for judgment on the pleadings because Defendant waived its interstate compact defense by failing to
raise it in a writ of mandamus

. For the reasons discussed below, we disagree.
1. General Law
Plaintiff alleges violation of the MHRA

. See sect ion s 213.065.2 ; 213.070( 2 )

. Under these provisions, it is unlawful to segregate or discriminate against people on the grounds of race, color, religion, national origin, sex, ancestry, or disability. See section 21 3.065.2. It is also illegal to retaliate or discriminate against a person because they opposed the prohibited
discrimination. See section 213.070(2). The filing of a complaint under the MHRA is governed by s ection 213.075. Farrow v.
Saint Francis Medical Center , 407 S.W.3d 579 , 588 (Mo. banc 2013)

. 3 Section 213.075.1 states in relevant part : Any person claiming to be aggrieved by an unlawful discriminatory practice may make, sign and file with the commission a verified complaint in writing, within one hundred eighty days of the alleged act of discrimination, which shall state the name and address of the person alleged to have committed the unlawful discriminatory practice and which shall set forth the particulars thereof and such other information as may be required by the commission.
To f ile a claim under the MHRA : (1) the plaintiff must file a complaint with the M CHR prior to filing a state court action, (2) a right to sue letter must be issued by the MCHR , and (3)
the plaintiff’s state court action must be brought within ninety days of the right to sue letter but no later than two years after the events occurred or its reason abl e discovery by the alleged

3 Farrow has been superseded by statute on grounds not relevant to this opinion. See Jones v. City of Kansas City , 569 S.W.3d 42, 51

- 52, 52 n.8 (Mo. App. W.D. 2019).5 injured party

. Farrow , 407 S.W.3d at 591. Furthermore, a writ of mandamus can be utilized
with the circuit court under section 536.15 0 .1 RSMo 2000 4 when challenging the M CHR ’ s authority for not following proper procedures or timeliness issues

. Farrow , 407 S.W.3d at 5 89

- 90; see State ex rel. Martine

- Erb v. Missouri Com’n on Human Rights , 77 S.W.3d 600, 608 (Mo. banc 2002); see also Publ ic School Retir ement System of School Dist. of Ka nsas City v. Missouri
Com’n O n Human Rights , 188 S.W.3d 35, 41 (Mo. App. W.D. 2006); section 213.085.2 ; but see
State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights , 527 S.W.3d 837, 844

- 45 (Mo. banc 2017) (holding a writ of mandamus is not appro priate to assert timeliness where
the MCHR has is sued a right to sue letter more than 180 days after the plaintiff’ s complaint was
filed with the MCHR ).
2. Analysis of Plaintiff’s Argument on Appeal In this case, P laintiff argues Defendant was required to file a writ of mandamus to

preserve its interstate compact defense , relying primarily on the Missouri Supreme Court ’s
decision in Farrow

. 5 However, as explained below, Farrow ’s holding does not a pply to the
circumstances of this case.

4 All statutory references to section 536.150 .1 are to RSMo 2000, whi ch is th e most current version of the statute. Section 536.150 .1 provides in relevant part: “When any administrative officer or body existing under th e constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a licens e, and there is no other provision for judicial inquiry into or review of such decision, such decision may be reviewed by [ inter alia ] . . . mandamus . . ..” 5 Plaintiff also attempts to rely on se ction 213.085 .2, which provides “ Any person who is aggrie ved by a final decision, finding, rule or order of the [C]ommission may obtain judicial review by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of the [C]ommission's fina l decision.” (emphasis added)

. Based on the plain and ordinary meaning of the term “may” found in the preceding statute , Plaintiff’s argument that Defendant was required to file a writ of mandamus to assert its interstate compact defense , has no merit. S ee S.J.V. by Blank v. Voshage , 860 S.W.2 d 802, 804 (Mo. App. E.D. 1993) ( “ The word ‘may’, when considered in its plain and ordinary meaning, does not mandate the action which follows it. Rather, it implies alternate possibilities and that the conferee of t he power. . . has discretion in the exercise of the power.” ) (quotations omitted).6 I n Farrow , the Supreme Court held that a writ of mandamus is required to be filed in order to preserve a claim when two circumstances are present : ( 1) a party is challenging
timeliness , and ( 2) a right to sue lette r has been issued before 180 days had passed since the plaintiff’ s complaint was filed with the MCHR

. Farrow , 407 S.W.3d at 588

- 90 ; see State ex rel.
Tivol Plaza , 527 S.W.3d at 844

- 45 (expressly limiting Farrow to narrow circumstances when right to sue le tters were issued by the MCHR before the 180 days and timeli ness was being challenged ). N either of the se two circumstances are presented here. First, Defendant was not challenging timeliness ; instead, Defendant challenged whether it was subjected to the MHRA by raising the interst ate compact defense

. In addition , the right to sue letter in this case was issued 273 days after Plaintiff’s complaint was filed with the MCHR

– not before 180 days like in
Farrow

. The Commission loses all authority after the 1 80 days expire s a nd a right to sue letter is requested

. S ee section 213.111.1; Tivol , 527 S.W.3d at 844

- 45 ( “ the MCHR ha [ s ] no statutory authority to make any findings of fact related to the complaints, implicitly or otherwise

. . . ” when 180 days expires with the MCHR and a right to sue letter is request ed )

. Because neither of the two circumstances of Farrow are present in this case, Farrow ’s holding does not apply here, and Defendant was not required to file a writ of mandamus to assert
the interstate compact defense. See Tivol , 527 S.W.3d at 844

- 45; Farrow , 407 S.W.3d at 588

- 90;

see also Jordan , 561 S.W.3d at 58

- 62 (affirming the trial court’s judgment granting the
defendant Bi

- State Development Agency of Missouri

- Illinois Metropolitan District’s moti on to dismiss for failure to state a claim based on the interstate compact defense even though apparently no writ of mandamus had been previously filed). 6 Furthermore, because Defendant is not subject to suit under the MHRA as the statutes existed prior t o the 2017 amendments, the

6 Although Jordan did not address the issue of preserving the interstate compact defense and made no related findings as to whether a writ of mandamus was required, 561 S.W.3d at 58

- 62, we still find it to be instructive authority in this case.7 trial court did not err in granting Defendant’s motion for judgment on the pleadings based on the interstate compact defense

. See Jordan , 561 S.W.3d at 58, 59 n.1, 62 , 62 n.2 ; see also City of
Dardenne Prai rie , 529 S.W.3d at 17

. Point denied.
III. CONCLUSION Based on the foregoing , the trial court’s judgment granting Defendant’s motion for judgment on the pleadings is affirmed.

RO B ERT M. C L A Y T O N I I I , Presiding J ud g e Robert G. Dowd, Jr., J., and Roy L. Richter, J., co ncur.