             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 THE BI-STATE DEVELOPMENT                          )
 AGENCY OF THE MISSOURI-                           )
 ILLINOIS METROPOLITAN                             )
 DISTRICT,                                         )
                                                   )
                                    Appellant,     )
                                                       WD81922
                                                   )
 v.                                                )
                                                       OPINION FILED:
                                                   )
                                                       May 21, 2019
                                                   )
 ALISA WARREN, THE MISSOURI                        )
 COMMISSION ON HUMAN RIGHTS,                       )
 and SCOTT GUSTAFSON,                              )
                                                   )
                                 Respondents.      )


                   Appeal from the Circuit Court of Cole County, Missouri
                            The Honorable Jon E. Beetem, Judge

                 Before Division Four: Karen King Mitchell, Chief Judge, and
                          Victor C. Howard and Alok Ahuja, Judges

       The Bi-State Development Agency of the Missouri-Illinois Metropolitan District, doing

business as Metro, Metro Transit, and MetroLink, (Bi-State) appeals from a judgment dismissing

its petition for writs of mandamus and prohibition and de novo judicial review of a right-to-sue

letter issued to Scott Gustafson by the Missouri Commission on Human Rights (MCHR). Bi-State

argues that the circuit court erred in dismissing its petition because: (1) the MCHR failed to abide
by a settlement agreement involving the same allegations of discrimination (Point I); (2) the

MCHR lacked jurisdiction over Bi-State due to its interstate compact status (Point II); (3) the court

was required to conduct an evidentiary hearing (Point III); (4) the MCHR was equitably estopped

from challenging Bi-State’s right to seek judicial review because the right-to-sue letter stated that

any party aggrieved by issuance of the letter had a right to seek such review (Point IV); and (5)

the court improperly relied on facts not alleged in Bi-State’s petition (Point V). Finding that

dismissal was appropriate under State ex rel. Tivol Plaza, Inc. v. Mo. Commission on Human

Rights, 527 S.W.3d 837 (Mo. banc 2017), we affirm.

                                                   Background1

         Gustafson is blind and uses a guide dog to navigate. Gustafson lives in the City of St. Louis

and relies on public transportation when he travels; he is a regular customer of Bi-State.2

         In 2006, Gustafson filed both an initial and an amended Complaint of Discrimination with

the MCHR (the 2006 complaint), alleging that Bi-State had violated the Missouri Human Rights

Act (MHRA) by denying him access to its public transit services based on his disability. Gustafson

alleged that, on or about October 10, 2006, Bi-State had discriminated against him by requiring

him to seek out a ticket agent to purchase tickets. Gustafson also alleged that, on October 10,

2006, “prior and continuing,” Bi-State had discriminated against him on the basis of his disability

by passing by him at bus stops, not calling out stops, and not locating ticket and validation

machines in the same location within each station.




         1
            We accept as true all well-pleaded facts in the petition and give them “their broadest intendment.” Bray v.
Mo. Dep’t of Corr., 498 S.W.3d 514, 517 (Mo. App. W.D. 2016). However, “[c]onclusory allegations of fact and
legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted.”
Id. at 518 (quoting Hope Acad. Corp. v. Mo. State Bd. of Educ., 462 S.W.3d 870, 874 (Mo. App. W.D. 2015)).
          2
            Bi-State was created in 1949 by an interstate compact under Missouri and Illinois law and was approved by
the U.S. Congress pursuant to the Compact Clause of the U.S. Constitution. Bi-State’s purpose is to provide a unified
mass transportation system for the bi-state region.


                                                           2
        In June 2008, the MCHR found probable cause to credit Gustafson’s allegations that he

was denied service due to his disability and that he was not allowed equal services due to his

disability.3 Following an administrative proceeding initiated by the MCHR, Bi-State and the

MCHR executed a settlement agreement in September 2011 resolving those allegations.

Paragraph 11 of the settlement agreement stated, in pertinent part, that the “MCHR will not

proceed with any administrative or legal action on behalf of [Gustafson] with respect to any matter

raised or which could have been raised by [him] prior to the date of this Agreement.” In

Paragraph 13 of the agreement, the MCHR, on its behalf and on behalf of Gustafson, released

Bi-State

            from any and all charges, claims, suits, demands, debts, liens, liabilities, costs,
            expenses, actions, and causes of action, of every kind and nature, whether
            known or unknown, suspected or unsuspected, that [Gustafson] had, now has,
            or which he may have against [Bi-State] arising out of, related to or based upon
            any facts or events which occurred on or prior to the date of this Agreement,
            including but not limited to, any charge, claim, suit or action arising under or
            relating to the full and equal use and enjoyment of public places of
            accommodation, including, without limitation, the MHRA, § 213.065, et seq.

Although Gustafson participated in the settlement discussions, he did not personally intervene in

the administrative action or sign the settlement agreement, nor did he challenge it.

        In April 2014, Gustafson filed another Complaint of Discrimination, which he amended in

November of that year (the 2014 complaint). He alleged multiple violations of the MHRA by

Bi-State, including buses failing to pick him up at designated stops on the following dates:

December 26, 2013; June 13, 2014; and August 5, 2014. He also alleged that Bi-State failed to

provide assistive technology on its website or at ticket and transfer machines, adequate markers at

bus stops, and audible announcements about routes, transfer points, and stops.



        3
             The MCHR found no probable cause to credit Gustafson’s allegations that he was not able to purchase
tickets at ticket machines due to his disability and that Bi-State failed to accommodate his disability.


                                                       3
         On November 30, 2015, the MCHR issued a right-to-sue letter to Gustafson. The letter

stated, “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 [2014] complaint. Please note that

administrative processing of this complaint, including determination of jurisdiction, has not been

completed.” The letter advised Gustafson that the MCHR was administratively closing the case

and terminating all MCHR proceedings regarding his 2014 complaint. The letter also stated, “if

any party is aggrieved by this action of the MCHR, that party may appeal the decision by filing a

petition under § 536.150 of the Revised Statutes of Missouri in the . . . circuit court of Cole

County.”

         On December 23, 2015, Gustafson filed a lawsuit in St. Louis County, alleging Bi-State

violated the MHRA.4 Seven days later, Bi-State filed the present lawsuit in the Circuit Court of

Cole County, seeking preliminary and permanent writs of mandamus and prohibition against the

MCHR and its Executive Director Alisa Warren and de novo judicial review. The MCHR, Warren,

and Gustafson moved to dismiss Bi-State’s petition for failure to state a claim upon which relief

can be granted under Rule 55.27(a)(6).5 While the motions to dismiss were pending, Bi-State

moved for leave to file an amended petition. The court granted Bi-State leave to amend and issued

preliminary writs of mandamus/prohibition to the MCHR and Warren, requesting they file a

pleading to the amended petition and serve the pleading on Bi-State.6




         4
           At oral argument, we were informed that Gustafson’s suit was removed to the United States District Court
for the Eastern District of Missouri and that the federal court dismissed Gustafson’s MHRA claims against Bi-State
on the basis that, as an entity created by interstate compact, Bi-State is not subject to the MHRA. Gustafson reportedly
continues to litigate various federal claims. Although Gustafson suggested that the issues presented here may now be
moot, he also acknowledged that the dismissal of the MHRA claim might be raised on appeal.
         5
           All rule references are to the Missouri Supreme Court Rules (2016).
         6
           The motions to dismiss were directed to Bi-State’s original petition. After the motion court granted Bi-State
leave to amend its petition, the court deemed the motions directed at the original petition to be responses to the
amended petition.


                                                           4
        Bi-State’s amended petition requested a writ of mandamus requiring the MCHR and

Warren to withdraw Gustafson’s right-to-sue letter, a writ of prohibition to prevent the MCHR

and Warren from issuing another right-to-sue letter against Bi-State on Gustafson’s behalf, and

de novo judicial review of the MCHR’s decision to issue a right-to-sue letter based on the 2014

complaint. Bi-State offered three reasons the writs of mandamus and prohibition should issue:

(1) as the creation of an interstate compact, Bi-State is not subject to the MHRA; (2) the MCHR

had an obligation to determine its authority and jurisdiction before issuing the right-to-sue letter;

and (3) the allegations in the 2014 complaint mirror those in the 2006 complaint, and those

allegations were resolved by the 2011 settlement agreement.7

        Thereafter, the circuit court indicated its intention to rule on the motions to dismiss and

asked the parties to submit proposed judgments. Bi-State objected, claiming that it had the right

to offer evidence, including documents showing that the MCHR had found no probable cause to

support some of the allegations in the 2006 complaint and an internal email indicating that MCHR

personnel tasked with investigating the 2014 complaint were aware of the 2011 settlement

agreement. Bi-State argued that this evidence was sufficient to raise the question of whether the

MCHR’s decision to issue the right-to-sue letter was unlawful, unreasonable, arbitrary,

capricious, or involved an abuse of discretion. Also in support, Bi-State cited a recent decision

by the Eastern District of this court holding that the MHRA did not apply to Bi-State because it

is an interstate compact entity.

        The circuit court rejected Bi-State’s arguments and entered judgment on February 9, 2018,

granting the MCHR’s motion to dismiss Bi-State’s amended petition. The court concluded that


        7
          While the 2006 and 2014 complaints may contain overlapping allegations—an issue we need not decide—
the 2014 complaint, which was attached to Bi-State’s amended petition, clearly contains allegations of discrimination
occurring well after the date of the settlement agreement, and “[a]n exhibit to a pleading is a part thereof for all
purposes.” § 509.130, RSMo (2018).


                                                         5
the MCHR had properly issued the right-to-sue letter and closed its administrative proceeding.

Bi-State filed a motion for new trial or motion to reconsider, again arguing that it had the right to

present evidence. On June 6, 2018, the circuit court entered an amended judgment dismissing

Bi-State’s amended petition with prejudice. The circuit court based its decision on three facts,

which the court found to be undisputed: (1) Gustafson filed a complaint with the MCHR; (2) the

MCHR did not render a decision on Gustafson’s complaint within 180 days of its filing; and (3)

Gustafson requested a right-to-sue letter. On those facts, the circuit court concluded that

mandamus would not lie. Bi-State appeals.

                                       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.” Tivol Plaza, 527 S.W.3d at

841 (quoting U.S. Dep’t of Veterans Affairs v. Boresi, 396 S.W.3d 356, 358 (Mo. banc 2013)).

“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.” Id. (quoting Boresi, 396 S.W.3d at 359). But we review questions of law

de novo. Laut v. City of Arnold, 491 S.W.3d 191, 196 (Mo. banc 2016). Thus, we review de novo

the legal question of whether the court may direct the MCHR 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. See Tivol

Plaza, 527 S.W.3d at 841 (Court reviewed de novo legal question of whether statute permitted the

circuit court to direct the MCHR to continue to process a complaint once the MCHR has issued a

right-to-sue letter after 180 days had passed).




                                                  6
       Likewise, “[w]e review the dismissal for failure to state a claim upon which relief can be

granted de novo.” Jordan v. Bi-State Dev. Agency, 561 S.W.3d 57, 59 (Mo. App. E.D. 2018). 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.” Id. (quoting State ex rel. Henley v. Bickel, 285

S.W.3d 327, 329 (Mo. banc 2009)). “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.” Id. (quoting Otte v. Edwards,

370 S.W.3d 898, 900 (Mo. App. E.D. 2012)) (internal quotations omitted).

                                                      Analysis

       Before analyzing Bi-State’s points on appeal, we first consider the MCHR’s authority to

issue right-to-sue letters under the MHRA.

       I.         MHRA Right-to-Sue Letters

       The MHRA authorizes the MCHR “[t]o receive, investigate, initiate, and pass upon

complaints alleging discrimination.” § 213.030.1(7).8 “[A]ny 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 . . . .”

§ 213.075.1. After receiving the complaint, the agency 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 . . . .” Id. If, however, the MCHR does not complete the



       8
           All statutory references are to the Revised Statutes of Missouri (2015).


                                                           7
administrative processing of the complaint within 180 days from the date it was filed, the MHRA

allows the complainant to request a right-to-sue letter and then file suit in court:

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

§ 213.111.1 (emphasis added).9 Where a right-to-sue letter is issued after the 180-day period, the

MCHR loses authority to further process the complaint. § 213.111.1 (“Upon issuance of this

notice, the commission shall terminate all proceedings relating to the complaint.”) As the Court

stated in Tivol Plaza,

           If 180 days have passed since the complaint was filed without the MCHR
           completing its administrative processing, and the [complainant] 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: “Upon issuance of this
           notice, the commission shall terminate all proceedings relating to the
           complaint.”

Tivol Plaza, 527 S.W.3d at 844. With § 213.111.1 and Tivol Plaza in mind, we now turn to

Bi-State’s claims of error on appeal.

         II.      Bi-State’s Points on Appeal

         Bi-State raises five points on appeal: (1) the MCHR failed to abide by an earlier settlement

agreement involving the same allegations of discrimination, which deprives the MCHR of

authority over Gustafson’s 2014 complaint (Point I); (2) the MCHR lacked jurisdiction over

Bi-State due to its interstate compact status (Point II); (3) the circuit court was required to conduct




          9
            The only other provision in Missouri law that addresses right-to-sue letters under the MHRA is 8 C.S.R.
§ 60-2.025(7)(B)(6) which provides that when the MCHR “has not completed its administrative processing within one
hundred and eighty (180) days from the filing of the complaint and the person aggrieved requests in writing a notice
of the right to bring a civil action in state court, the executive director . . . will administratively close the complaint
and issue the notice.”


                                                            8
an evidentiary hearing (Point III); (4) the MCHR was equitably estopped from denying that

Bi-State has a right to seek judicial review of the MCHR’s decision to issue the right-to-sue letter

(Point IV); and (5) the circuit court improperly relied on facts not alleged in Bi-State’s amended

petition (Point V).

       A. The MCHR did not exceed its authority in issuing the right-to-sue letter to
          Gustafson.

       In its first and second points on appeal, Bi-State claims that the circuit court erred in

granting the MCHR’s motion to dismiss because Bi-State stated a claim upon which relief could

be granted in that its amended petition alleged that the MCHR acted arbitrarily and capriciously

and abused its discretion by (1) refusing to abide by the 2011 settlement agreement (Point I) and

(2) failing to conclude it lacked jurisdiction over Bi-State due to its interstate compact status

(Point II). Bi-State petitioned for permanent writs of mandamus and prohibition to require the

MCHR and Warren to withdraw the right-to-sue letter and to prevent them from issuing another

right-to-sue letter based on the same allegations of discrimination. Bi-State also requested de novo

judicial review of the MCHR’s refusal to determine whether it had authority or jurisdiction to

consider the 2014 complaint. Because both Point I and Point II challenge the circuit court’s

judgment on the basis that the MCHR lacked authority to issue the right-to-sue letter, we consider

these points together.

       Only two provisions in Missouri law address right-to-sue letters under the MHRA:

§ 213.111.1 and 8 C.S.R. § 60-2.025(7)(B)(6). Both provisions mandate that the MCHR provide

a right-to-sue letter when (1) a complaint has been filed with the MCHR; (2) 180 days have passed

since the filing of the complaint without the MCHR having completed its review; (3) and the

complainant submits a written request for a right-to-sue letter.          § 213.111.1; 8 C.S.R.

§ 60-2.025(7)(B)(6). Upon issuance of the right-to-sue letter, both provisions also require the



                                                 9
MCHR to terminate all proceedings relating to the complaint.                            § 213.111.1; 8 C.S.R.

§ 60-2.025(7)(B)(6). Nothing in the MHRA or its implementing regulations requires the MCHR

to make any determination as to its authority or jurisdiction to issue a right-to-sue letter once the

preconditions for issuance of such a letter under § 213.111.1 and 8 C.S.R. § 60-2.025(7)(B)(6)

have occurred. Likewise, nothing in the statute or regulations allows the MCHR to withdraw a

right-to-sue letter or to continue with administrative proceedings related to the complaint if more

than 180 days have passed since the filing of the complaint, the complaint is still pending, and a

right-to-sue letter has been requested.

         For these reasons, in Tivol Plaza, the Court affirmed two circuit court judgments denying

requests for permanent writs of mandamus relating to right-to-sue letters issued by the MCHR

under § 213.111.1. The writs would have required the MCHR to withdraw the right-to-sue letters

and determine whether the discrimination complaints were timely filed with the MCHR. Tivol

Plaza, 527 S.W.3d at 845-46. In both underlying cases, the 180-day period had elapsed, and the

Court concluded that the MCHR was required to issue the right-to-sue letters and terminate all

administrative proceedings related to their complaints, even though the MCHR had not yet

determined its jurisdiction. Id. at 845. “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.” Id. And because “[t]he circuit court had no authority to direct the MCHR

to perform an act the MHRA prohibits, . . . [the court] properly refused to issue writs directing the

MCHR to do so.” Id. at 839.10




          10
             Following the Court’s decision in Tivol Plaza, the General Assembly amended § 213.075.1 in 2017 to state
that the timely filing of an administrative complaint with the MCHR is “a jurisdictional condition precedent to filing
a civil action under this chapter,” and to expressly permit an employer to raise the defense of an untimely filed
administrative complaint at any time, including in a civil action, “regardless of whether the employer asserted the
defense before the commission.”


                                                         10
          Tivol Plaza dictates the same result here with respect to Bi-State’s amended petition for

 permanent writs of mandamus and prohibition, and neither the 2011 settlement agreement nor

 Bi-State’s status as an interstate compact entity changes that result. 11 More than 180 days had

 passed since Gustafson filed the 2014 complaint with no resolution from the MCHR, and

 Gustafson requested a right-to-sue letter. As mandated by § 213.111.1, the MCHR stopped

 processing the complaint and issued a right-to-sue letter indicating that it had not yet determined

 whether it had jurisdiction over the complaint. Under these circumstances, Bi-State is not entitled

 to permanent writs of mandamus and prohibition.12

          In the alternative, Bi-State claims that the motion court erred in dismissing its amended

 petition based on the reasoning of Tivol Plaza because Bi-State’s petition included a claim for

 de novo judicial review, and Tivol Plaza did not involve such a claim. The essence of Bi-State’s

 argument is that the MCHR is required to determine its authority and jurisdiction before issuing a

 right-to-sue letter and, if it fails to do so, the circuit court is obligated to determine whether the

 MCHR had jurisdiction and authority. Bi-State further argues that, if the circuit court finds that



          11
               Bi-State is not seeking a decision from this court as to whether Bi-State is subject to the MHRA based on
its status as an interstate compact entity.
            12
               In support of its argument that it is entitled to a permanent writ, Bi-State cites Farrow v. Saint Francis
  Medical Center, 407 S.W.3d 579 (Mo. banc 2013). There, the Court held that a writ of mandamus filed in circuit
  court pursuant to § 536.150 was the proper avenue to challenge the MCHR’s jurisdiction to issue a right-to-sue letter.
  Id. at 589. As the Court in Tivol Plaza noted, however, Farrow is distinguishable because, there, the 180-day period
  had not yet passed when the MCHR issued the right-to-sue letter. State ex rel. Tivol Plaza, Inc. v. Mo. Comm’n on
  Human Rights, 527 S.W.3d 837, 839 (Mo. banc 2017). In Tivol Plaza and the instant case, unlike in Farrow, 180
  days had elapsed, and 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.” Id. at 845. According to the Court in Tivol
  Plaza,

               To the extent dicta in Farrow has been interpreted to permit the employer to raise this issue by
               filing a petition for writ of mandamus in the circuit court after the MCHR has issued a
               right-to-sue letter following the 180-day period, it has been misinterpreted. These cases are
               governed by the provisions of section 213.111.1, which required the MCHR to cease all action
               on employees’ complaints and issue a right-to-sue letter once that letter was requested more
               than 180 days after employees filed their complaints.

 Id.


                                                             11
the MCHR did not have jurisdiction and authority, the court is to reverse the grant of the

right-to-sue letter. We find this argument unavailing.

        Bi-State bases its claim for de novo judicial review on § 536.150.1, which states, in

pertinent part,

          When any administrative officer or body existing under the constitution or by
          statute . . . shall have rendered a decision which is not subject to administrative
          review, determining the legal rights, duties or privileges of any person, . . . and
          there is no other provision for judicial inquiry into or review of such decision,
          such decision may be reviewed by suit for injunction, certiorari, mandamus,
          prohibition or other appropriate action, and in any such review proceeding the
          court may determine the facts relevant to the question whether such person at
          the time of such decision was subject to such legal duty, or had such right, or
          was entitled to such privilege, and may hear such evidence on such question as
          may be properly adduced, and the court may determine whether such decision,
          in view of the facts as they appear to the court, is unconstitutional, unlawful,
          unreasonable, arbitrary, or capricious or involves an abuse of discretion; and
          the court shall render judgment accordingly, and may order the administrative
          officer or body to take such further action as it may be proper to require.

“To adequately plead a claim for judicial review under Section 536.150, ‘an individual must plead

facts that, if true, would show that he has been denied some legal right or entitlement to a privilege

by an agency decision that was unconstitutional, unlawful, unreasonable, arbitrary, or capricious

or involve[d] an abuse of discretion.’” Spurgeon v. Mo. Consol. Health Care Plan, 481 S.W.3d

604, 606 (Mo. App. W.D. 2016) (quoting McIntosh v. LaBundy, 161 S.W.3d 413, 416 (Mo. App.

W.D. 2005) (internal quotations omitted)). For the reasons articulated supra, Bi-State did not

plead facts that, if true, would show that it had been denied some legal right or privilege by an

unlawful agency 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




                                                  12
MHRA and its implementing regulations. Thus, the facts alleged in the amended petition do not

establish a cognizable claim for judicial review under § 536.150.13

          Points I and II are denied.

          B. Bi-State was not entitled to an evidentiary hearing.

          For its third point, Bi-State asserts that the motion court erred in granting the MCHR’s

motion to dismiss because the court was required to conduct an evidentiary hearing under

§ 536.150. But where, as here, a party fails to adequately plead a claim under § 536.150, the right

to an evidentiary hearing afforded by that statute is not available to the party. See State ex rel.

Petti v. Goodwin-Raftery, 190 S.W.3d 501, 506 (Mo. App. E.D. 2006) (affirming dismissal despite

appellants’ claim that the motion court should have first conducted an evidentiary hearing, where

the information in the petition was adequate to determine that appellants’ claims lacked legal

merit).

          As we discussed supra, Bi-State did not plead facts that, if true, would show denial of a

legal right or privilege by an unlawful agency decision because the MHRA required the MCHR to

take the only administrative action at issue here—the issuance of a right-to-sue letter because more

than 180 days had passed since the complaint was filed and Gustafson made a written request for

a right-to-sue letter. Thus, Bi-State was not entitled to an evidentiary hearing on its claims.

          Point III is denied.




         13
            Judicial review under § 536.150 may be available where the party seeking relief alleges that the MCHR
violated its authorizing statutes or regulations. See State ex rel. Martin-Erb v. Mo. Comm’n on Human Rights, 77
S.W.3d 600, 607-08 (Mo. banc 2002) (action for mandamus under § 536.150 was appropriate where employee made
specific allegations regarding the MCHR’s failure to comply with its regulations in determining whether there was
probable cause to believe that race discrimination had occurred). Bi-State makes no similar argument in this case.


                                                       13
         C. The MCHR was not estopped from denying Bi-State’s right to judicial review.

         In its fourth point, Bi-State claims that the circuit court erred in granting the MCHR’s

motion to dismiss because the MCHR is estopped from arguing that judicial review of its decision

to issue the right-to-sue letter was unavailable to Bi-State where the letter stated that such review

was available to any party aggrieved by the MCHR’s decision.

         The elements of estoppel are “(1) an admission, statement, or act inconsistent with the

claim afterwards asserted and sued upon; (2) action by the other party on the faith of the admission,

statement, or act; and (3) injury to such other party, resulting from allowing the first party to

contradict or repudiate the admission, statement, or act.” Ryan v. Ford, 16 S.W.3d 644, 651 (Mo.

App. W.D. 2000) (quoting Farmland Indus., Inc. v. Bittner, 920 S.W.2d 581, 583 (Mo. App. W.D.

1996)). “Equitable estoppel may run against the state, but only where there are exceptional

circumstances and a manifest injustice will result.” Gosal v City of Sedalia, 291 S.W.3d 822, 828

(Mo. App. W.D. 2009) (quoting Mo. Gas Energy v. Pub. Serv. Comm’n, 978 S.W.2d 434, 439

(Mo. App. W.D. 1998)). “Equitable estoppel is not applicable if it will interfere with the proper

discharge of governmental duties, curtail the exercise of the state’s police powers, or thwart public

policy . . . .” Id. at 828-29 (quoting Mo. Gas Energy, 978 S.W.2d at 439). The issuance of a

right-to-sue letter when the conditions of § 213.111.1 have been met is a duty of state government.

Tivol Plaza, 527 S.W.3d at 839. Thus, equitable estoppel is not applicable here.14

         Point IV is denied.




         14
            Moreover, inclusion of boilerplate language about judicial review under § 536.150 in Gustafson’s
right-to-sue letter does not create a right under that section where none otherwise exists. As discussed supra, Bi-State
did not adequately allege a cause of action for judicial review under § 536.150.


                                                          14
         D. The circuit court did not rely on facts not alleged in Bi-State’s Petition.

         For its fifth point, Bi-State alleges that the circuit court erred in granting the MCHR’s

motion to dismiss because the court improperly relied on facts not alleged in Bi-State’s amended

petition. Specifically, Bi-State faults the circuit court for relying on what the court described as

the “undisputed facts” that: (1) the MCHR had not completed its investigation within 180 days of

filing, and (2) Gustafson requested a right-to-sue letter from the MCHR. Bi-State claims that it

did not allege either of these facts in its amended petition but merely recited them from the

right-to-sue letter.

         In reviewing a dismissal for failure to state a claim, we review the petition “in an almost

academic manner, to determine if the facts alleged meet the elements of a recognized cause of

action.” Jordan, 561 S.W.3d at 59 (quoting Henley, 285 S.W.3d at 329). And, in doing so, we

review the entire petition, including all exhibits because “[a]n exhibit to a pleading is a part thereof

for all purposes.” § 509.130. The MCHR’s right-to-sue letter to Gustafson was Exhibit C to

Bi-State’s amended petition. The letter stated, “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 [2014] complaint. Please note that administrative processing of this complaint,

including determination of jurisdiction, has not been completed.”15

         In reviewing the grant of a motion to dismiss for failure to state a claim, we must look at

the petition to determine the allegations upon which the petitioner sought relief. Here, Bi-State

claimed only that the MCHR acted in excess of its authority or jurisdiction in issuing the

right-to-sue letter because: (1) the 2011 Agreement between Bi-State and the MCHR resolved


         15
           The language in right-to-sue letters about the MCHR having not completed its administrative review was
not required by statute. See Tivol Plaza, 527 S.W.3d at 844 n.4 (“While not required by statute, we note in both cases
the MCHR provided further information to the parties, stating in the right-to-sue letters, the ‘administrative processing
of this complaint, including determinations of jurisdiction, ha[d] not been completed.’”).


                                                          15
Gustafson’s 2014 complaint and the MCHR was obligated to follow its own agreement; and (2)

Bi-State, an entity created by interstate compact, was not subject to the MHRA. Nowhere in its

amended petition did Bi-State claim that the MCHR exceeded its authority in issuing the

right-to-sue letter because Gustafson had not requested the letter or that the 180 days had not

passed.16 The trial court did not err in relying on the fact that Gustafson requested a right-to-sue

letter where Bi-State failed to allege that no right-to-sue letter was requested and exhibits attached

to the amended petition indicated Gustafson did request such a letter 180 days after filing the 2014

complaint.

       Similarly, nowhere in its amended petition does Bi-State claim that the MCHR had

completed its administrative processing of Gustafson’s complaint before the right-to-sue letter was

issued, and, as noted supra, the exhibits attached to the petition indicated that the administrative

process was ongoing. The only fair reading of the amended petition is that Bi-State claimed, as a

matter of law, that the MCHR lacked jurisdiction or authority over Gustafson’s complaint against

Bi-State and thus the MCHR should have rejected Gustafson’s complaint before issuing a

right-to-sue letter. But in Tivol Plaza, our Supreme Court expressly rejected the argument that the

MCHR is required to determine threshold issues such as jurisdiction before issuing a right-to-sue

letter. 527 S.W.3d at 844.

       On appeal, Bi-State slightly recasts this argument, suggesting that the MCHR and Warren

were aware of both a prior no-probable-cause finding as to some of the allegations in Gustafson’s

2014 complaint and the effect of the 2011 settlement agreement on the 2014 complaint; thus, they

“had at least completed their administrative processing of the Charges enough to know that

issuance of a Notice of Right to Sue . . . was improper.” In other words, Bi-State seeks to redefine



       16
            Nor does Bi-State make either argument on appeal.


                                                       16
what is meant by completion of the administrative process to mean that the process is complete

when the MCHR has sufficient information to complete the process. This is just another attempt,

in contravention of the holding in Tivol Plaza, to impose on the MCHR the duty to resolve

threshold issues such as jurisdiction and authority before issuing a right-to-sue letter. In Tivol

Plaza, in determining whether the MCHR had completed its administrative processing, the court

relied on whether “the employees’ complaints were still pending.” Bi-State does not allege that

Gustafson’s 2014 complaint was not pending when the right-to-sue letter was issued, and the facts

set out in the amended petition and attached exhibits suggest otherwise.

       Consistent with Tivol Plaza, the circuit court relied on only the facts that (1) Gustafson

filed a complaint with the MCHR; (2) Gustafson’s complaint was still pending 180 days later; and

(3) Gustafson requested a right-to-sue letter. Bi-State’s amended petition admits the first two facts

and does not dispute the third. See Bray v. Mo. Dep’t of Corr., 498 S.W.3d 514, 518 (Mo. App.

W.D. 2016) (finding no indication that the motion court made findings of fact contrary to the

factual allegations in the petition). And Bi-State’s belief as to whether the MCHR had completed

its administrative review is not relevant.

       The MCHR is required “to issue a right-to-sue letter and terminate all proceedings related

to a complaint if 180 days have elapsed and the [complainant] has made a written request for a

right-to-sue letter.” Tivol Plaza, 527 S.W.3d at 839. Thus, the trigger for issuance of a right-to-sue

letter is that the complaint is still pending 180 days after it was filed and the complainant requests

such a letter. At that point, the “MCHR [loses] authority to continue processing the charges and

[i]s required to issue the right-to-sue letter[],” regardless of whether the MCHR has completed its

review. Id. at 844. In Tivol Plaza, the Court stated,

         180 days had elapsed, and, as discussed above, the MCHR was required to issue
         the right-to-sue letters to the employees and terminate all proceedings related



                                                 17
         to their complaints pursuant to section 213.111.1. The MCHR was required to
         do so regardless of where it was in its administrative processing—here the
         records show, based on language the MCHR chose to include in its letters, it
         had not yet determined its jurisdiction in either case.

Id. at 845. Here, it is clear from Bi-State’s amended petition that the 2014 complaint was filed

more than 180 days before the right-to-sue letter was issued in November 2015, and that the

complaint was still pending when the letter was issued. Thus, it is clear from the amended petition

itself that Bi-State failed to state a claim upon which relief can be granted.

       Point V is denied.

                                            Conclusion

       Finding that dismissal of all counts of Bi-State’s amended petition was appropriate, we

affirm the motion court’s ruling.




                                               Karen King Mitchell, Chief Judge

Victor C. Howard and Alok Ahuja, Judges, concur.




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