Missouri Supreme Court Creates Procedural Hurdles for Employers Seeking to Defend Untimely Claims
The Missouri Supreme Court has repeatedly interpreted the Missouri Human Rights Act in a manner that makes it easier for plaintiffs to pursue claims, and harder for employers to defend them, than under similar federal anti-discrimination statutes. (See our March 20, 2013 report titled Burden of Proof in Retaliation Cases.) Here, once again, the Missouri Supreme Court diverges both from federal precedent and prior Missouri precedent, making it more difficult for employers to dismiss untimely discrimination complaints that are filed under the MHRA.
In Farrow v. St. Francis Medical Center, - S.W.3d – (no. SC92793, Mo. banc Aug. 27, 2013), the plaintiff, a hospital nurse, had filed a discrimination complaint with the Missouri Human Rights Commission on July 27, 2009, challenging her termination by the hospital 230 days earlier, on December 19, 2009. The Missouri Human Rights Act, Section 213.075, requires that anyone aggrieved by an unlawful discriminatory practice must “. . . file with the Commission a verified complaint in writing, within one hundred eighty days of the alleged act of discrimination. . .” (In contrast, federal law allows the filing of a charge of discrimination within 300 days of the discriminatory conduct.)
Farrow sued in state court, in an eight-count petition, the first four counts of which alleged MHRA violations for sexual harassment and retaliation. Defendants moved to dismiss the MHRA counts as untimely, under Section 213.075. The Circuit Court dismissed the MHRA counts; the Supreme Court reversed.
Plaintiff had argued that the Commission’s issuance of a right-to-sue letter meant it implicitly found it had jurisdiction over her claims, because MHRA regulations require the Commission to dismiss or close a complaint at any stage, if the Commission lacks jurisdiction. Remarkably – because it is hard to envision under what circumstances Plaintiff’s late-filed claim could have been found timely – the Supreme Court agreed with Plaintiff. The Supreme Court took defendant to task for failing to challenge the timeliness of the complaint at the MHRC, and ruled that if they intended to contest the timeliness of the complaint, Defendant’s options were to (1) persuade the MCHR to dismiss the complaint as untimely, or (2) if the Commission failed to dismiss the complaint and issued a right to sue letter, Defendant could proceed to court within 30 days thereafter, challenging the Commission’s action.
Practical implications: In Missouri, all discrimination charges are dual-filed with the MHRA and the EEOC. Some are processed by the EEOC; others by the MHRA. If an employer believes that an MHRA discrimination complaint has been untimely filed, and the case has been assigned to the MCHR, it is essential that the employer take a very pro-active approach with the agency, and insist that they rule upon the question of timeliness. If the MCHR fails to dismiss the case and issues a right to sue letter, the employer should be fully prepared to immediately run to state court and seek review of the agency’s action, under RSMo 213.075. (If an employer dawdles, and plaintiff “beats” defendant to the courthouse and files an MHRA lawsuit, it is unclear whether a court could act on the employer’s later-filed action.)
If a dual-filed charge has not been filed within 180 days of the adverse employment action, and is assigned to the EEOC for investigation, an employer should nevertheless address the untimeliness issue with the MCHR, and formally demand that it dismiss the complaint for lack of jurisdiction. If the MCHR fails to dismiss the charge as untimely, and issues a right to sue letter, the employer should immediately proceed to court under Section 213.075, no matter what the EEOC does with the charge.
Another possible approach that has been suggested is that an employer, upon receipt of an untimely charge under the Missouri 180-day time limit, file a writ of prohibition in the state circuit court in which the employee worked, requesting an order prohibiting the MCHR from issuing a right-to-sue letter. It remains to be seen, however, whether a court would be loath to grant such a writ, without permitting the MCHR an opportunity to first consider the timeliness issue.