Banks v. Kan. City Area Transp. Auth.

• Decision Date: 26 October 2021
• Docket Number: WD 84186
• Parties: Edgar Alfonzo BANKS, Appellant, v. KANSAS CITY AREA TRANSPORTATION AUTHORITY, Respondent.
• Court: Missouri Court of Appeals

637 S.W.3d 431

Edgar Alfonzo BANKS, Appellant,

v.KANSAS CITY AREA TRANSPORTATION AUTHORITY, Respondent.

WD 84186

Missouri Court of Appeals, Western District.

Opinion filed: October 26, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied November 23, 2021

Application for Transfer Denied February 8, 2022

Kirk D. Holman, Kansas City, for Appellant.

Kathleen E. Mannion, Kansas City, Co-counsel for Appellant.

Aiman A. Dvorak, Co-counsel for Appellant.

William J. Hatley, for Respondent.

Stephanie Lovett-Bowman, Kansas City, Co-counsel for Respondent.

Division One: W. Douglas Thomson, Presiding Judge, Alok Ahuja, Judge and Karen King Mitchell, Judge

W. DOUGLAS THOMSON, JUDGE

Edgar A. Banks ("Banks") appeals the judgment of the Jackson County Circuit Court dismissing his claims under the Missouri Human Rights Act (the "MHRA") for failure to state a claim upon which relief can be granted. Banks asserted claims of sex discrimination and retaliation against the Kansas City Area Transportation Authority's (the "KCATA"). The KCATA moved to dismiss the action for failing to state a claim upon which relief can be granted, which the trial court granted. On appeal, Banks claims the trial court erred in granting the KCATA's motion to dismiss for failure to state a claim upon which relief may be granted because: (1) the interstate compact (the "Compact") that created the KCATA does not include issues of employment discrimination in its subject matter and, therefore, does not preclude the application of the MHRA to the KCATA; (2) the "concurred in" clause of the Compact does not preclude the application of the MHRA to the KCATA in that the MHRA is "complementary or parallel" to the Kansas Act Against Discrimination (the "KAAD") and does not impose an impermissible unilateral burden on the KCATA; (3) the dismissal of Banks’ claims based on an unpleaded affirmative defense was improper; (4) the KCATA should be judicially estopped from denying that it is subject to the MHRA; and (5) the KCATA should be equitably estopped from denying that it is subject to the MHRA. We affirm.

Factual and Procedural History

Banks, an African-American male, was employed as a bus driver for the KCATA from November 2015 until March 2016. The KCATA is a bi-state agency created in 1965 pursuant to the Compact, an interstate compact between the state of Missouri and Kansas. On February 27, 2017, Banks filed a petition ("Petition") against the KCATA alleging that while he was an employee of the KCATA, he was subjected to sex discrimination and retaliation in violation of the MHRA. Banks alleged that during his classroom training, his cell phone inadvertently recorded the training instructors making offensive discriminatory remarks about Banks. Banks reported the conduct and claimed he was treated less favorably than his classmates due to his reporting.

After Banks completed his classroom training, he began driving a bus for the KCATA. While Banks was a bus operator, he was involved in two separate incidents. In the first incident, the bus that Banks was operating hit a curb. In the second incident, the bus he was operating was struck by another vehicle. Banks alleged he received a write-up for each of these incidents and was subsequently terminated from employment for these two infractions. Banks alleged he knew of a female employee who also had two infractions but her employment was not terminated. Banks alleged he was treated less favorably than female employees and retaliated against for reporting and opposing discrimination. Banks sought compensatory and punitive damages.

The KCATA removed the case to federal court. However, the cause was remanded back to the circuit court upon the federal court's grant of Banks’ motion to remand. Thereafter, the KCATA filed a motion to dismiss Banks’ Petition with prejudice for failure to state a claim upon which relief can be granted. In its accompanying suggestions in support of its motion, the KCATA argued that the KCATA is not subject to the MHRA because the KCATA was created by the Compact, which was approved by an act of Congress. The KCATA claimed that because Kansas had not expressly agreed that the burdens of the MHRA may be imposed on the KCATA, the MHRA cannot be applied to the KCATA. The KCATA also asserted that the Petition does not allege facts showing the state of Kansas had expressly concurred in having the MHRA applied to the KCATA.

While the motion to dismiss was pending, our Eastern District handed down decisions in Jordan v. Bi-State Development Agency , 561 S.W.3d 57 (Mo. App. E.D. 2018) and Emsweller v. Bi-State Development Agency of Missouri-Illinois Metro. Dist. , 591 S.W.3d 495 (Mo. App. E.D. 2019). After additional briefing and oral argument by the parties, the trial court entered its judgment ("Judgment") granting the KCATA's motion to dismiss finding Banks’ Petition failed to state a claim upon which relief may be granted.

In the Judgment, the trial court found "[u]nder Missouri law, one party to an interstate compact is prohibited from enacting legislation that would impose unilateral burdens upon the compact, absent the concurrence of the other parties to the compact," citing KMOV TV, Inc. v. Bi-State Development Agency of Missouri-Illinois Metro. Dist. , 625 F.Supp.2d 808, 812 (E.D. Mo. 2008). The trial court found the Petition failed to allege facts establishing the state of Kansas, a party to the Compact, concurred in having the MHRA apply to the KCATA. The trial court also found the KCATA is not subject to suit under the MHRA as it imposes an impermissible unilateral burden on KCATA, citing Jordan , 561 S.W.3d at 61-62 and Emsweller , 591 S.W.3d at 500.

Banks appeals.

Standard of Review

"A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiff's petition." Wyman v. Mo. Dept. of Mental Health , 376 S.W.3d 16, 18 (Mo. App. W.D. 2012). We review the trial court's dismissal for failure to state a claim upon which relief can be granted de novo. Id. "A court reviews the petition in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Id. " ‘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.’ " Jordan , 561 S.W.3d at 59 (citation omitted).

Analysis

Banks raises five points on appeal. Banks claims the trial court erred in granting the KCATA's motion to dismiss for failure to state a claim upon which relief may be granted because the Compact does not preclude the application of the MHRA to the KCATA; it was improperly based on an unpleaded affirmative defense; and the KCATA should be judicially and equitably estopped from denying that it is subject to the MHRA.

We begin our analysis with Point II as it addresses the central issue of this appeal and the application of the recent opinions of our Eastern District in Jordan and Emsweller , wherein the same issue was decided rendering those cases authoritative precedent.¹

Point II

In Point II, Banks argues that the trial court erred in granting KCATA's motion to dismiss for failure to state claims of discrimination and retaliation under the MHRA because the court misinterpreted the "concurred in" clause of the KCATA Compact in that the MHRA is complementary or parallel to KAAD and does not impose an impermissible unilateral burden on KCATA, and, therefore, the "concurred in" clause does not preclude application of the MHRA to KCATA. We disagree.

Kansas and Missouri entered the Compact that created the bi-state agency, the KCATA.

Section 238.010 RSMo (1965) and section K.S.A. 12-2524 (1982). The KCATA was created for operation of a public transit system in the states of Kansas and Missouri. Kansas City Area Transp. Authority v. Ashley , 478 S.W.2d 323, 324 (Mo. 1972). In section 238.010, art. 3, section 11, the KCATA Compact provides that the KCATA shall have the power: "To perform all other necessary and incidental functions; and to exercise such additional powers as shall be conferred on it by the Legislature of either State concurred in by the Legislature of the other and by Act of Congress." (Emphasis added).

The Compact Clause ("the Clause") of the U.S. Constitution permits states to enter into interstate compacts pursuant to congressional approval. U.S. Const. art. I, § 10, cl. 3. Interstate compacts "represent a political compromise between states, not a commercial transaction." KMOV TV, Inc. v. Bi-State Dev. Agency of the Missouri-Illinois Metro. Dist. , 625 F.Supp.2d 808, 810 (E.D. Mo. 2008). Bi-state entities created pursuant to the Clause are unique because three separate sovereigns are involved—the federal government and two states. Hess v. Port Authority of Trans-Hudson Corp. , 513 U.S. 30, 41, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). It is the nature of interstate compacts they "shift[ ] a part of a state's authority to another state or states, or to the agency the several states jointly create to run the compact." KMOV , 625 F.Supp.2d at 810. In a bi-state compact, one state may not enact legislation that unilaterally imposes burdens upon the compact "absent the concurrence of the other signatories." Bi-State Dev. Agency of the Missouri-Illinois Metro. District v. Dir. of Revenue , 781 S.W.2d 80, 82 (Mo. banc 1989). There is no consensus amongst courts over the meaning of "concurrence." The majority view is the "application of states' laws to the compact [is proper only] if the states' legislation contains an express statement that they intend to amend the compact." KMOV , 625 F.Supp.2d at 812 ; see also Malverty v. Waterfront Comm'n of New York Harbor , 71 N.Y.2d 977, 529 N.Y.S.2d 67, 524 N.E.2d 421 422 (1988) (holding only legislation with the express legislative approval of the other state may affect the compact).

Jordan...