           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
STATE OF MISSOURI, ex rel.,    )
D&D DISTRIBUTORS, LLC, d/b/a   )
GREY EAGLE DISTRIBUTORS        )
and NEIL KOMADOSKI,            )
                  Appellants,  )
                               )
v.                             )           WD82003
                               )
MISSOURI COMMISSION ON         )           FILED: July 23, 2019
HUMAN RIGHTS, ALISA            )
WARREN, PH.D., IN HER          )
OFFICIAL CAPACITY AS           )
EXECUTIVE DIRECTOR OF THE )
MISSOURI COMMISSION ON         )
HUMAN RIGHTS, and JERRY        )
HOLLOWAY,                      )
                  Respondents. )
                Appeal from the Circuit Court of Cole County
                   The Honorable Jon E. Beetem, Judge
              Before Division One: Cynthia L. Martin, P.J., and
                   Victor C. Howard and Alok Ahuja, JJ.
      Jerry Holloway filed a charge of discrimination with the Missouri Human

Rights Commission against his former employer D&D Distributors, LLP (doing

business as Grey Eagle Distributors), and against D&D’s Chief Operating Officer

Neil Komadoski (collectively, “Employer”). Holloway’s administrative complaint

alleged that Employer had engaged in acts of age- and race-based employment

discrimination in violation of the Missouri Human Rights Act, ch. 213, RSMo (the
“MHRA”). The Commission issued Holloway a right-to-sue letter. In response,
Employer filed a petition in the Circuit Court of Cole County, alleging that the

Commission had no authority to issue Holloway a right-to-sue letter because it

lacked jurisdiction over his discrimination claims. The circuit court dismissed

Employer’s petition with prejudice.

      Employer appeals. It argues that, under amendments to the MHRA which

became effective in August 2017, the Commission was required to determine its

jurisdiction over Holloway’s discrimination claims before issuing him a right-to-sue

letter. Employer also argues that the Commission lacked jurisdiction over

Holloway’s claims because he filed those claims too late, and because some of his

claims were preempted by federal labor laws. We conclude that the 2017 MHRA

amendments do not apply here, because the Commission issued Holloway a right-to-

sue letter, and terminated its administrative proceeding, before the 2017

amendments became effective. Under the law in effect prior to the 2017

amendments, as interpreted in State ex rel. Tivol Plaza, Inc. v. Missouri

Commission on Human Rights, 527 S.W.3d 837 (Mo. 2017), the Commission was

required to issue Holloway a right-to-sue letter whether it had made a jurisdictional

determination or not, once Holloway requested a letter more than 180 days after the

filing of his administrative complaint. Because the Commission acted lawfully in
issuing the right-to-sue letter, we affirm the circuit court’s dismissal of Employer’s

petition.

                                Factual Background
      Holloway started working for Employer in July 1982 as a truck driver. While

working as a truck driver, Holloway was a member of a collective bargaining unit

represented by the International Brotherhood of Teamsters. In September 2007,

Holloway was promoted to a position in the marketing department. While working

in the marketing department, Holloway was not a member of the union.




                                           2
      In August 2015, Holloway was informed that his marketing position was

being eliminated. Employer told Holloway that he could apply for another job

within the company. Holloway applied for other jobs with Employer; he also

requested that he be permitted to exercise his union seniority rights and return to

his previous position as a truck driver. Holloway was advised that no other

position with the Employer was available. Employer also informed him that he had

forfeited his seniority rights under the collective bargaining agreement when he

resigned as a truck driver to take a position outside the bargaining unit. Because

Holloway was not selected for another position with Employer, and was not

permitted to return to his previous job, his employment terminated in August 2015.

      On February 12, 2016, Holloway filed a charge of discrimination against

Employer with the Missouri Human Rights Commission. In his charge, Holloway

claimed that his race and age were contributing factors in Employer’s refusal to

allow him to return to his previous job as a truck driver, and in Employer’s decision

to terminate his employment.

      Employer submitted a response to Holloway’s charge. Among other things,

Employer alleged that Holloway’s claims of discrimination relating to the

termination of his employment were time-barred, because Holloway was informed
that his employment would be terminated on August 6, 2015, but did not file his

administrative charge until 190 days later. Employer also argued that Holloway’s

claim of discrimination relating to its refusal to permit him to return to a job as a

truck driver was preempted by federal labor law, because that claim would require

the Commission to interpret the terms of Employer’s collective bargaining

agreement with the Teamsters union. Because of these purported “jurisdictional

deficiencies,” Employer alleged that the Commission was barred from issuing

Holloway a right-to-sue letter.




                                           3
      In March 2017 – more than a year after the filing of his administrative

complaint – Holloway requested that the Commission issue him a right-to-sue

letter. The Commission acceded to Holloway’s request and issued him a right-to-

sue letter on March 29, 2017. The letter stated in part:

             The Missouri Commission on Human Rights (MCHR) is
      terminating its proceedings and issuing this notice of your right to sue
      under the Missouri Human Rights Act because you have requested a
      notice of your right to sue.
             This letter indicates your right to bring a civil action within 90
      days of this notice against the respondent(s) named in the complaint.
      . . . Upon issuance of this notice, the MCHR is terminating all
      proceedings relating to the complaint. . . .
            . . . This notice of right to sue is being issued as required by
      Section 213.111.1, RSMo, because it has been requested in writing 180
      days after filing of the complaint. . . . Please note that
      administrative processing of this complaint, including
      determinations of jurisdiction, has not been completed.
      On April 28, 2017, Employer filed a petition for writ of mandamus, judicial

review, and declaratory judgment in the Circuit Court of Cole County, naming the

Commission, its Executive Director in her official capacity, and Holloway as

respondents. Employer argued that the Commission and Director had erred in

issuing Holloway a right-to-sue letter because the Commission lacked jurisdiction
over Holloway’s claims because the claims were untimely, and were preempted by

federal law. The circuit court issued a preliminary order in mandamus requiring

the respondents to answer Employer’s petition. After briefing and oral argument,

the circuit court issued its judgment quashing the preliminary writ and dismissing

the petition with prejudice. The court concluded that, because the Commission did

not render a decision within 180 days of the filing of Holloway’s administrative

complaint, and because he had requested a right-to-sue letter, the Commission was

required by statute to issue the letter.
      Employer appeals.



                                           4
      While this proceeding was pending in the Circuit Court of Cole County,

Holloway filed a race and age discrimination lawsuit against Employer in the

Circuit Court of St. Louis County on June 26, 2017. Holloway v. D&D Distrib.,

L.L.L.P. et al., No. 17SL-CC02285. That action remains pending. In its First

Amended Answer to Holloway’s petition in the discrimination case, Employer

alleged as affirmative defenses that the Commission lacked jurisdiction to issue

Holloway a right-to-sue letter because his administrative complaint was untimely,

and that any claim concerning his request to return to a truck driver position was

preempted by federal labor laws. These are precisely the same jurisdictional

arguments which Employer seeks to raise in this proceeding.

                               Standard of Review
             “An appeal will lie from the denial of a writ petition when a
      lower court has issued a preliminary order in mandamus but then
      denies a permanent writ.” “An appellate court reviews the denial of a
      petition for a writ of mandamus for an abuse of discretion. An abuse of
      discretion in denying a writ occurs when the circuit court misapplies
      the applicable statutes.” But we review questions of law de novo.
      Thus, we review de novo the legal question of whether the court may
      direct the [Commission] to determine its authority or jurisdiction to
      process a complaint before issuing a right-to-sue letter when the 180-
      day window following the complaint has passed and the complainant
      requests a right-to-sue letter.
             Likewise, “[w]e review the dismissal for failure to state a claim
      upon which relief can be granted de novo.” In doing so, we review the
      petition “in an almost academic manner, to determine if the facts
      alleged meet the elements of a recognized cause of action.” “In order to
      avoid dismissal, the petition must invoke substantive principles of law
      entitling plaintiff to relief and . . . ultimate facts informing the
      defendant of that which plaintiff will attempt to establish at trial.”
Bi-State Dev. Agency of Mo.-Ill. Metro. Dist. v. Warren, No. WD81922, 2019 WL

2178590, at *3–4 (Mo. App. W.D. May 21, 2019) (citations omitted).




                                         5
                                        Discussion
       Employer raises two Points on appeal, both of which argue that the circuit

court erred in dismissing its petition because Employer stated claims for

mandamus, judicial review, and a declaratory judgment. We address Employer’s

two Points together.

       The MHRA authorizes the Commission “[t]o receive, investigate, initiate, and

pass upon complaints alleging discrimination in employment.” § 213.030.1(7).1 The

Act authorizes “[a]ny person claiming to be aggrieved by an unlawful discriminatory

practice” to “make, sign and file with the commission a verified complaint in

writing, within one hundred eighty days of the alleged act of discrimination.”

§ 213.075.1. The statute provides that, after receiving the complaint, the

Commission shall “promptly investigate the complaint” to determine whether

“probable cause exists for crediting the allegations of the complaint.” § 213.075.3.

“[I]f the director determines after the investigation that probable cause exists for

crediting the allegations of the complaint, the executive director shall immediately

endeavor to eliminate the unlawful discriminatory practice complained of by

conference, conciliation and persuasion . . . .” Id.

       The MHRA permits a complaining party to terminate an administrative

proceeding if the Commission fails to complete its processing of a discrimination

charge in a timely fashion; in that event, the complainant may then file a civil

action concerning the discriminatory practice. Section 213.111.1 provides in

relevant part:

              If, after one hundred eighty days from the filing of a complaint
       alleging an unlawful discriminatory practice [in employment] . . ., the
       commission has not completed its administrative processing and the


       1      Unless otherwise indicated, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, as updated through the 2018 Cumulative Supplement. With
the exception of § 213.075.1, none of the statutory language quoted in this opinion was
altered by the 2017 amendments to the MHRA.


                                              6
      person aggrieved so requests in writing, the commission shall issue to
      the person claiming to be aggrieved a letter indicating his or her right
      to bring a civil action within ninety days of such notice against the
      respondent named in the complaint. . . . Upon issuance of this notice,
      the commission shall terminate all proceedings relating to the
      complaint. . . . Any action brought in court under this section shall be
      filed within ninety days from the date of the commission's notification
      letter to the individual but no later than two years after the alleged
      cause occurred or its reasonable discovery by the alleged injured party.
      In State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights,

527 S.W.3d 837 (Mo. 2017), the Missouri Supreme Court addressed – and rejected –

arguments identical to those made by Employer in this case. In Tivol, two

individuals filed administrative complaints with the Commission, alleging unlawful

discrimination in employment. Like here: the Commission did not conclude its

investigations within 180 days; the employees requested right-to-sue letters; and

the Commission issued those letters, noting that it had not made any jurisdictional

determinations. Like Employer here, in Tivol the complainants’ employers filed

suit to challenge the Commission’s issuance of the right-to-sue letters. Like

Employer, the employers in Tivol argued that the Commission lacked jurisdiction to

issue the right-to-sue letters because the employees’ charges of discrimination were

untimely.

      The Missouri Supreme Court held in Tivol that the Commission had acted
properly under the express and unambiguous language of § 213.111.1. The Court

reasoned that, once 180 days had passed after the filing of an administrative

complaint, and the complaining party requested a right-to-sue letter, the

Commission was required to cease its administrative processing, and issue the

right-to-sue letter – whether or not the Commission had yet made a jurisdictional

determination.

            If 180 days have passed since the complaint was filed without
      the MCHR completing its administrative processing, and the employee
      requests a right-to-sue letter, section 213.111.1 expressly requires the
      MCHR to issue the letter. At that point, section 213.111.1 is explicit:


                                          7
      “Upon issuance of this notice, the commission shall terminate all
      proceedings relating to the complaint.”
             That is what happened here. In both cases, more than 180 days
      after they were filed, the employees’ complaints were still pending and
      each requested a right-to-sue letter. In compliance with section
      213.111.1, the MCHR immediately stopped processing the complaints
      and issued right-to-sue letters although it had not yet determined
      whether it had jurisdiction over some or all of the claims. The statute
      is explicit that the MCHR had no authority to process these employees’
      complaints further. § 213.111.1.
             ....
             . . . [Because] 180 days had elapsed, . . . the MCHR was required
      to issue the right-to-sue letters to the employees and terminate all
      proceedings related to their complaints pursuant to section 213.111.1
      even though it had not yet determined its jurisdiction. At that point,
      the MCHR had no statutory authority to make any findings of fact
      related to the complaints, implicitly or otherwise, including whether
      they had been timely filed.
527 S.W.3d at 844, 845 (footnote omitted).

      Tivol forecloses Employer’s claims: under Tivol, the Commission was not

required to determine its own jurisdiction before issuing the right-to-sue letter

Holloway requested, and lacked the authority to make such a determination once

180 days had passed and a request was made. As we explained in a more recent

decision:

      Tivol Plaza makes clear that the MCHR has no obligation to make a
      determination regarding its jurisdiction or authority before issuing a
      right-to-sue letter, and if it has not made a determination before 180
      days have passed and a right-to-sue letter is requested, the MCHR’s
      decision to issue the right-to-sue letter is not only lawful but also
      mandated by the MHRA and its implementing regulations.
Bi-State Dev. Agency, 2019 WL 2178590, at *7.

      To avoid this result, Employer relies on language which was added to

§ 213.075.1 in amendments which became effective on August 28, 2017. See S.B. 43,

99th Gen. Assembly, 1st Sess. (2017). The language added to § 213.075.1 specifies
that the timely filing of an administrative charge of discrimination is “a



                                          8
jurisdictional condition precedent to filing a civil action under this chapter.” The

newly added text continues:

       The failure to timely file a complaint with the commission shall
       deprive the commission of jurisdiction to investigate the complaint.
       The commission shall make a determination as to its
       jurisdiction with respect to all complaints. Notwithstanding any
       other provision of this chapter to the contrary, if a complaint is not
       filed with the commission within one hundred eighty days of the
       alleged act of discrimination, the commission shall lack
       jurisdiction to take any action on such a complaint other than
       to dismiss the complaint for lack of jurisdiction. The failure to
       timely file a complaint with the commission may be raised as a
       complete defense by a respondent or defendant at any time, either
       during the administrative proceedings before the commission, or in
       subsequent litigation, regardless of whether the commission has issued
       the person claiming to be aggrieved a letter indicating his or her right
       to bring a civil action and regardless of whether the employer asserted
       the defense before the commission.
§ 213.075.1 (emphasis added).

       The amendments to § 213.075.1 on which Employer relies did not become

effective until August 28, 2017. All of the relevant events in this case occurred

before the new version of § 213.075.1 took effect. Thus, before August 28, 2017:

Holloway’s employment with Employer was terminated; Holloway filed his

administrative charge of discrimination with the Commission; more than 180 days

expired without the Commission making a jurisdictional determination or

concluding its processing of Holloway’s complaint; Holloway requested a right-to-

sue letter; the Commission issued Holloway a right-to-sue letter; Holloway filed his

discrimination lawsuit in the Circuit Court of St. Louis County; and Employer filed

its action in the Circuit Court of Cole County, challenging the issuance of the right-

to-sue letter.

       The amended version of § 213.075.1 does not apply to the Commission’s

issuance of a right-to-sue letter to Holloway.




                                           9
              Amendments to statutes are presumed to operate prospectively,
       but there are two exceptions: (1) if the legislature clearly expresses an
       intent that the amendment be given retroactive application, either in
       the express language of the act or by necessary implication; or (2) the
       statute is merely procedural or remedial, rather than substantive.
Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d 787, 795 (Mo. App. W.D. 2018)

(citation omitted).2 Employer does not argue that the legislature expressed an

intent that the amendment to § 213.075.1 be given retroactive application. Instead,

it argues that the amendment was a procedural or remedial change, which should

be applied to this pending proceeding.3 The Commission disputes that

characterization; it relies on decisions addressing the retroactivity of other 2017

amendments to the MHRA to contend that the amendments to § 213.075.1 are

substantive, and can only apply prospectively.4

       Employer would not prevail even if the 2017 amendments to § 213.075.1 were

labeled “procedural,” because it seeks to invalidate a right-to-sue letter which had

been issued, and the result of an administrative proceeding which had concluded,

before the statutory amendments ever became effective. Even if a new statute is

properly characterized as “procedural” or “remedial,” it will not be applied to


       2       Even if the legislature has clearly expressed its intent that a new statute
apply retroactively, application of the statute must nevertheless also comply with the
prohibition of laws “retrospective in [their] operation” found in Article I, § 13 of the
Missouri Constitution. Mo. Real Est. Comm’n v. Rayford, 307 S.W.3d 686, 697–99 (Mo.
App. W.D. 2010).
       3      The Missouri Supreme Court has explained that:
       [p]rocedural law prescribes a method of enforcing rights or obtaining redress
       for their invasion; substantive law creates, defines and regulates rights. The
       distinction is that substantive law relates to the rights and duties giving rise
       to the cause of action, while procedural law is the machinery used for
       carrying on the suit.
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 769 (Mo. 2007) (citations and
internal quotation marks omitted).
       4      See Bram, 564 S.W.3d at 794–96 (holding that the 2017 modification of the
causation standard required to establish a discrimination claim was a substantive change
which applied prospectively only); Gilberg v. Associated Wholesale Grocers, Inc., No. 6:15-
CV-03365, 2018 WL 3614982, at *8–9 (W.D. Mo. July 27, 2018) (same).


                                              10
invalidate actions which have previously been taken in a proceeding. Thus, in State

ex rel. Atmos Energy Corp. v. Public Service Commission, 103 S.W.3d 753 (Mo.

2003), the Missouri Supreme Court held that a new statute which changed the

procedures for notices of proposed rulemaking by administrative agencies would not

be applied in a case seeking judicial review of a final rule, where the agency’s notice

of proposed rulemaking had been issued before the new statute became effective.

The Court explained:

             Because section 536.016 applies solely to an agency's proposal of
      rules, and because the PSC proposed the rules prior to the statute's
      effective date, the statute is relevant only if it has retrospective
      application. We hold that it does not. As far back as 1909 this Court
      held that, “If, before final decision, a new law as to procedure is
      enacted and goes into effect, it must from that time govern and
      regulate the proceedings. But the steps already taken, the status of
      the case . . . and all things done under the late law will stand unless an
      intention to the contrary is plainly manifested[.]” Clark v. Kansas
      City, St. L. & C.R. Co., 219 Mo. 524, 118 S.W. 40, 43 (1909). An intent
      to apply section 536.016 retrospectively cannot be gleaned from the
      statute.
103 S.W.3d at 762 (other citations omitted).

      Similarly, in Pierce v. State Department of Social Services, 969 S.W.2d 814

(Mo. App. W.D. 1998), this Court refused to apply a new procedural statute which

gave a circuit court discretion to reduce the Department of Social Services’ recovery
on a Medicaid lien in a personal-injury action, because the circuit court had entered

final judgment before the new statute became effective. In an opinion by Judge

Breckenridge, the Court explained:

             Generally, procedural or remedial statutes are “applicable to all
      pending cases – that is, those cases not yet reduced to a final,
      unappealable judgment.” Procedural or remedial amendments do not
      apply, however, to any part of a proceeding completed prior to the
      effective date of the amendment. State v. Thomaston, 726 S.W.2d 448,
      462 (Mo.App.1987). “[T]he steps already taken, the status of the case
      as to the court in which it was commenced, the pleadings put in, and
      all things done under the late law will stand unless an intention to the
      contrary is plainly manifested; and pending cases are only affected by


                                          11
      general words as to future proceedings from the point reached when
      the new law intervened.” Clark v. Kansas City, St. L. & C.R. Co., 219
      Mo. 524, 118 S.W. 40, 43 (1909).
             The amendment to § 208.215 became effective on August 28,
      1996, after judgment had been entered and the Estate filed its notice of
      appeal. Although the case was pending when the statute became
      effective, application of § 208.215.9 would require this court to remand
      the case for a redetermination of issues already resolved by the trial
      court, and thus would invalidate what has already been done.
      Therefore, even though § 208.215.9 is remedial, it cannot be applied in
      this cause.
969 S.W.2d at 823 (other citations and footnote omitted).

      At the time the Commission issued Holloway his right-to-sue letter, the

amended version of § 213.075.1 was not yet in effect. Under the statute in effect at

the time, as interpreted in Tivol, the Commission was required to terminate its

processing of Holloway’s claim, and issue him a right-to-sue letter, as soon as he

requested a letter more than 180 days after filing his administrative charge.

Indeed, under the law in effect in March 2017 when the right-to-sue letter was

issued, it would have been error for the Commission to make a jurisdictional

determination on Holloway’s claim, in response to his request for a right-to-sue

letter. As in Pierce, applying the new version of § 213.075.1 in this case “would

require this court to remand the case for a redetermination of issues already
resolved . . ., and thus would invalidate what has already been done.” 969 S.W.2d

at 823. We will not apply the new version of § 213.075.1 to a right-to-sue letter

which had already issued, and a Commission administrative proceeding which had

already concluded, before the amended statute took effect.

      Employer argues that it is not seeking to apply the new version of § 213.075.1

to action of the Commission which took place before the new statute became

effective; instead, Employer maintains that it is seeking to apply the new statute in

the proceeding in the circuit court, which was active and pending at the time the
statutory amendment took effect. We are unpersuaded. Whether pleaded as a


                                         12
claim for a writ of mandamus, for judicial review, or for declaratory relief, all of

Employer’s claims plainly seek review of the action of the Missouri Human Rights

Commission in issuing Holloway a right-to-sue letter. Thus, Employer’s petition

alleged that, because “[i]ssuance by MCHR of a notice of right to sue under these

circumstances was improper and unlawful,” “[a]ccordingly, [Employer] [filed its

petition in order to] appeal the administrative decision reflected in” the right-to-sue

letter. Employer prayed that the circuit court issue a writ of mandamus to require

the Commission “to withdraw and vacate their Right-to-Sue Letter,” reverse the

Commission’s issuance of the right-to-sue letter, and/or declare the letter “to be null,

void and of no effect, unlawful, invalid and unconstitutional.” Plainly, Employer

asked the circuit court “to examine and correct the agency decision, but not to form

a plenary judgment as by a court of general and original jurisdiction.” Deffenbaugh

Indus., Inc. v. Potts, 802 S.W.2d 520, 523 (Mo. App. W.D. 1990) (citations omitted).5

       The fact that Employer seeks to apply the new version of § 213.075.1 to the

action of the Commission is also inherent in the nature of the new statute itself.

The new language added to § 213.075.1 imposes a new obligation on the

Commission (to make a jurisdictional determination with respect to every charge of

discrimination filed with it), and imposes a new prohibition on the Commission
(denying it the authority to take any action on a complaint over which it lacks

       5      This principle is inherent in the concept of “judicial review”:
       In Black's Law Dictionary, Fourth Edition, the word ‘review’ is defined: ‘To
       reexamine judicially. A reconsideration; second review or examination;
       revision; consideration for purposes of correction. Used especially of the
       examination of a cause by an appellate court.’ And in Webster's Third New
       International Dictionary, the word ‘review’ is defined as, ‘to re-examine
       judicially.’ The phrase, ‘judicial review,’ as used in the sections under
       consideration, is obviously intended to have a meaning similar to the word
       ‘appeal,’ and in Black's, supra, it is said that ‘an ‘appeal’ is a step in a judicial
       proceeding, and in legal contemplation there can be no appeal where there
       has been no decision by a judicial tribunal.’
State ex rel. State Bd. of Registration for Healing Arts v. Elliott, 387 S.W.2d 489, 492 (Mo.
1965).


                                                13
jurisdiction, other than to dismiss the complaint). The new statutory language is

not directed to the circuit court, but to the Commission. And, as we have explained

above, all relevant action of the Commission occurred before the new statutory

language was even operative. While Employer’s review proceeding may have been

pending in the circuit court at the time the new statute became effective, the fact

remains that the relevant proceeding – the one before the Commission – had

concluded months earlier.

                                      Conclusion
       We affirm the judgment of the circuit court, which quashed the preliminary

writ of mandamus and dismissed Employer’s petition seeking review of the

Commission’s issuance of Holloway’s right-to-sue letter.6




                                          _____________________________
                                          Alok Ahuja, Judge
All concur.




        6      Employer argues that, if this Court concludes that the current action was
properly dismissed, we should nevertheless declare that Employer may raise its
jurisdictional arguments as a defense in the discrimination lawsuit pending in the Circuit
Court of St. Louis County. We decline to issue what would amount to an advisory opinion,
directed at collateral proceedings pending in another court.


                                            14
