              In the Missouri Court of Appeals
                      Eastern District
                                              DIVISION ONE

TWESTLY EMSWELLER,                                       )       No. ED107651
                                                         )
        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 Emsweller (“Plaintiff”) appeals the trial court’s grant of judgment on the

pleadings 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
  All statutory references to the MHRA, which 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 statutes were subsequently amended (effective August 28,
2017), but these amendments do not apply in this case.
                                           I.       BACKGROUND

A.       The Relevant Allegations in Plaintiff’s Petition

         Because this appeal involves a grant of a motion for judgment on the pleadings, 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 area. Defendant

initiated a practice prior to Plaintiff’s termination where Medicaid riders were refused transport

service to certain locations, while non-Medicaid riders were not. Plaintiff believed the practice

was discriminatory of African-American riders and expressly voiced his concerns to superiors.

Shortly after, Plaintiff was terminated on March 19, 2015, for 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 September 4, 2015, related to his termination. 273

days later, on June 3, 2016, the MCHR issued a right-to-sue letter to Plaintiff. Then, Plaintiff

filed a petition against Defendant in the Circuit Court of the City of St. Louis alleging his

termination violated the MHRA.

         Thereafter, Defendant filed a motion to dismiss 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 motion to dismiss on April 11, 2017.

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


2
  Defendant admits, for purposes of its motion for judgment on the pleadings, the truth of Plaintiff’s well-pleaded
facts. See City of Dardenne Prairie v. Adams Concrete and Masonry, LLC, 529 S.W.3d 12, 17 (Mo. App. E.D.
2017).
                                                          2
        Subsequently, on 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 found “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 burden 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 and 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 pleadings in this case, again

asserting the interstate compact defense. The circuit 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 Dardenne Prairie v. Adams Concrete and Masonry, 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 opposite 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 “only



                                                  3
where under the conceded facts, a judgment different from the pronounced could not be rendered

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 sections 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 213.065.2. 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 section 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 file a claim under the MHRA: (1) the plaintiff must file a complaint with the MCHR

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 reasonable 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).
                                                        4
injured party. Farrow, 407 S.W.3d at 591. Furthermore, a writ of mandamus can be utilized

with the circuit court under section 536.150.1 RSMo 2000 4 when challenging the MCHR’s

authority for not following proper procedures or timeliness issues. Farrow, 407 S.W.3d at 589-

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 Public School Retirement System of School Dist. of Kansas City v. Missouri

Com’n On 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 appropriate to assert timeliness where

the MCHR has issued 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, Plaintiff 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 apply to the

circumstances of this case.


4
  All statutory references to section 536.150.1 are to RSMo 2000, which is the most current version of the statute.
Section 536.150.1 provides in relevant part:
           “When any administrative officer or body existing under the 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 license, 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 section 213.085.2, which provides “Any person who is aggrieved 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 final 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. See S.J.V. by Blank v. Voshage, 860 S.W.2d 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 the power. . . has discretion in the
exercise of the power.”) (quotations omitted).




                                                          5
         In 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 letter 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 letters were issued by the MCHR before the 180 days and timeliness was being

challenged). Neither of these two circumstances are presented here. First, Defendant was not

challenging timeliness; instead, Defendant challenged whether it was subjected to the MHRA by

raising the interstate 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 180 days expires and a right to sue letter is

requested. See 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 requested).

         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 motion 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 to 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.
                                                          6
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 Prairie, 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.




                                              ROBERT M. CLAYTON III, Presiding Judge

Robert G. Dowd, Jr., J., and
Roy L. Richter, J., concur.




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