                   IN THE MISSOURI COURT OF APPEALS
                           WESTERN DISTRICT
STATE OF MISSOURI, ex rel.         )
CAESARS ENTERTAINMENT              )
OPERATING CO., INC., et al.,       )
                         Appellants,
                                   )
                                   )
v.                                 )              WD78693
                                   )
MISSOURI COMMISSION ON             )              FILED: April 19, 2016
HUMAN RIGHTS, et al.,              )
                      Respondents. )

                        Appeal from the Circuit Court of Cole County
                          The Honorable Patricia S. Joyce, Judge

             Before Division Four: Alok Ahuja, C.J., and Thomas H. Newton
                              and James Edward Welsh, JJ.

PER CURIAM:

       Caesars Entertainment Operating Company appeals the circuit court’s dismissal of its

petition for a writ of mandamus. In its petition, Caesars challenged the Missouri Commission on

Human Rights’ issuance of a right to sue letter to one of Caesars’ former employees, on the basis

that the former employee’s administrative complaint of discrimination was untimely in

substantial part. Based on the holding in State ex rel. Tivol Plaza, Inc. v. Missouri Commission

on Human Rights, No. WD78477 (Mo. App. W.D. April 12, 2016) (en banc), we dismiss

Caesars’ appeal.
                                      Factual Background

       Rebecca Gleason was employed by Caesars at a casino in North Kansas City. On

November 1, 2012, Caesars terminated Gleason’s employment. Over a year later, on November

27, 2013, Gleason filed a charge of discrimination with the Commission. In her administrative

complaint, Gleason alleged that Caesars subjected her to gender-based harassment during her

employment, and terminated her employment on the basis of gender, in violation of the Missouri

Human Rights Act (“MHRA”), §§ 213.010-213.137, RSMo. Gleason’s administrative charge

alleged that Caesars engaged in further unlawful gender discrimination when it opposed her

claim for unemployment benefits in June 2013.

       Caesars challenged the timeliness of Gleason’s administrative charge before the

Commission. Caesars asked the Commission to find that Gleason’s complaint was untimely to

the extent that it challenged any actions which occurred more than 180 days before the complaint

was filed. See § 213.075.1, RSMo.

       On June 19, 2014, more than 180 days after the filing of Gleason’s administrative

complaint, the Commission issued Gleason a right to sue notice in response to her request. See

§ 213.111.1, RSMo. The Commission’s letter stated that it had not completed its administrative

processing of the complaint; in particular, the letter stated that the Commission had made no

determination as to its own jurisdiction.

       On July 17, 2014, Caesars filed a petition for writ of mandamus in the circuit court. The

petition named as respondents the Commission and its Executive Director in her official

capacity. The petition requested that the circuit court order the Commission “to withdraw and

vacate the [June] 19, 2014 Right to Sue Notice . . . with respect to any claims based upon alleged

MHRA violations occurring prior to May 31, 2013, and for such other relief as the Court deems

proper.” Although the petition acknowledged that Gleason’s claims relating to Caesars’


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opposition to her claim for unemployment benefits were timely, the petition alleged that the

Commission was required to find that Gleason’s other claims were untimely.

       The circuit court issued summonses on July 30, 2014, directing the respondents to answer

the petition. The court did not issue preliminary orders in mandamus as required by Supreme

Court Rule 94.

       The Commission filed a motion to dismiss Caesars’ mandamus petition on October 3,

2014. The motion argued that Caesars had failed to state a claim because it “cannot establish

either that the Commission was required to determine its jurisdiction over specific claims prior to

issuing the right to sue letter or that [Caesars] was prejudiced by the issuance of the letter.”

       On April 27, 2015, the circuit court issued a seven-page judgment granting the

Commission’s motion to dismiss. In its judgment, the court concluded that the Commission was

required by § 213.111.1, RSMo to issue Gleason a right to sue letter without separately

determining the timeliness of Gleason’s administrative complaint, because 180 days had elapsed

since the filing of the administrative complaint, and Gleason had requested that a right to sue

letter be issued. The judgment also concluded that Farrow v. St. Francis Medical Center, 407

S.W.3d 579 (Mo. banc 2013), on which Caesars relied, was distinguishable, because in this case

Caesars raised the timeliness issue before the Commission, and therefore “ha[s] properly

preserved in any subsequent litigation between Gleason and [Caesars] [its] defense that some (or

all) of Gleason’s claims are untimely.”

       Caesars appeals.

                                             Discussion

       In State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights, No.

WD78477 (Mo. App. W.D. April 12, 2016) (en banc), this Court addressed a case which was in

all material respects identical to this one. In Tivol, as here, an employer sought to challenge the


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Commission’s issuance of a right to sue letter by arguing that a former employee’s

administrative complaint of discrimination was untimely. In Tivol, as here, the employer

asserted its timeliness challenge by filing a petition for a writ of mandamus in the circuit court.

Finally, in Tivol, as here, the circuit court issued a summons to the Commission, requiring it to

answer the employer’s mandamus petition, rather than a preliminary order in mandamus as

required by Supreme Court Rule 94.

       In Tivol, a majority of the Court held that, because the circuit court had issued a summons

rather than a preliminary order in mandamus at the outset of the case, the Court lacked authority

to consider the employer’s appeal; instead, the employer’s remedy following the circuit court’s

denial of relief was to file an original writ petition in a higher court. The majority in Tivol stated

that, “while we have the discretion to hear appeals on the merits in cases in which the circuit

court issues a summons rather than a preliminary order, as an intermediate appellate court

charged with the duty to enforce the Supreme Court Rules, we do not believe it is our place to

continually excuse compliance with the procedural rules written by the Missouri Supreme

Court.” Slip op. at 7. Tivol also held that a petition for writ of mandamus was not the

appropriate vehicle to seek review of the timeliness of an employee’s administrative complaint,

because mandamus was available only to enforce “ministerial duties” where the relator “has a

clear, unequivocal, specific right to a thing claimed,” while “[t]imeliness is an issue that can

require extensive investigation” of complex factual circumstances. Id. at 8. Based on these

conclusions, Tivol dismissed the employer’s appeal.

       As indicated above, this case is materially indistinguishable from Tivol, and our

disposition of this appeal is controlled by the result reached by the full Court in that case.

                                            Conclusion

       The appeal is dismissed.


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