McDonald v. Chamber of Commerce of Independence

• Decision Date: 21 May 2019
• Docket Number: WD 81938
• Citation: 581 S.W.3d 110
• Parties: Lois MCDONALD, Appellant, v. CHAMBER OF COMMERCE OF INDEPENDENCE, Missouri, Respondent.
• Court: Missouri Court of Appeals

581 S.W.3d 110

Lois MCDONALD, Appellant,
v.
CHAMBER OF COMMERCE OF INDEPENDENCE, Missouri, Respondent.

WD 81938

Missouri Court of Appeals, Western District.

OPINION FILED: May 21, 2019

Lynne J. Bratcher, Marie L. Gockel, and Antonette DuPree, Independence, MO, Attorneys for Appellant.

Sean M. Sturdivan and Nickolas C. Templin, Overland Park, KS, Attorneys for Respondent.

Before Division Two: Thomas N. Chapman, Presiding Judge, and Mark D. Pfeiffer and Cynthia L. Martin, Judges

Mark D. Pfeiffer, Judge

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Ms. Lois McDonald ("McDonald") appeals from the judgment entered by the Circuit Court of Jackson County, Missouri ("circuit court"), granting the Chamber of Commerce of Independence, Missouri’s ("Chamber") motion to dismiss McDonald’s petition for damages under the Missouri Human Rights Act ("MHRA").¹ Because the circuit court has conflated statutory prerequisites to filing suit with subject matter jurisdiction, the circuit court’s ruling is erroneous. We reverse and remand.

Factual and Procedural History²

McDonald, born August 7, 1952, was hired by the Chamber in 2011 as Vice-President of Community Development at a salary of $ 80,000 per year. With the exception of the Chamber’s president, McDonald was the oldest employee at the Chamber. On November 28, 2016, the Chamber’s president informed McDonald that her salary was being reduced to $ 50,000 per year. No other employees, all of whom were younger than McDonald, had their salaries reduced. McDonald also had not been offered the same opportunities for career development as those offered to younger employees. On March 2, 2017, McDonald filed a Charge of Discrimination against the Chamber with the Missouri Commission on Human Rights ("Commission") and thereafter requested a notice of her right to sue and was notified by the Commission that a response to such request would be forthcoming on or before August 15, 2017. However, the Commission did not issue a right-to-sue letter to McDonald until September 28, 2017.

On August 25, 2017, McDonald filed a petition for damages against Chamber, alleging age discrimination.³ Thereafter, and four days after the Commission had issued its right-to-sue letter (which shows that Chamber was copied), Chamber filed a motion to dismiss McDonald’s petition for lack of subject matter jurisdiction arguing that, without an allegation included in the petition that McDonald had received her right-to-sue letter from the Commission

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(even though Chamber had actual knowledge that such right-to-sue letter had, by then, been issued ), McDonald had failed to plead that she had exhausted her administrative remedies under the MHRA. Consequently, Chamber argued that the circuit court did not have subject matter jurisdiction over McDonald’s claims and should dismiss the petition.⁴

McDonald responded by arguing that the right-to-sue letter had been issued and, hence, all statutory prerequisites had been met authorizing the MHRA claim to proceed.⁵

The circuit court granted Chamber’s motion to dismiss, expressly concluding that it lacked subject matter jurisdiction, and thereafter, the circuit court denied McDonald’s Rule 67.06 motion to amend her petition to add an allegation that, in fact, the right-to-sue letter had been issued by the Commission.⁶

This appeal follows.

Standard of Review

We review the granting of a motion to dismiss de novo.

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Avery Contracting, LLC v. Niehaus , 492 S.W.3d 159, 161-62 (Mo. banc 2016). We assume all facts alleged in the petition are true and liberally construe all inferences from those facts in favor of the plaintiff. Id. at 162. We review the petition "to determine if the plaintiff has alleged facts that meet the elements of a recognized cause of action or of a cause that might be adopted in that case." Id. "In determining the appropriateness of the trial court’s dismissal of a petition, an appellate court reviews the grounds raised in the defendant’s motion to dismiss." Goldsby v. Lombardi , 559 S.W.3d 878, 881 (Mo. banc 2018). "If the motion to dismiss cannot be sustained on any ground alleged in the motion, the trial court’s ruling will be reversed." Id. (internal quotation marks omitted).

Analysis

Elements of McDonald’s MHRA Lawsuit

"The MHRA protects persons aged 40 to 70 from age discrimination." Kerr v. Curators of the Univ. of Mo. , 512 S.W.3d 798, 806 (Mo. App. W.D. 2016) (internal quotation marks omitted). Section 213.055.1(1)(a), as it relates to McDonald’s petition alleging age discrimination, provides, in part:

1. It shall be an unlawful employment practice:

(1) For an employer, because of the ... age ... of any individual:

(a) To ... discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s ... age....

The MHRA defines discrimination, in part, as "any unfair treatment based on ... age as it relates to employment[.]" § 213.010(5). "Therefore, in enacting the MHRA, the legislature sought to prohibit any consideration of [age] no matter how slight in employment decisions." Kerr , 512 S.W.3d at 806.

On May 21, 2018, the Missouri Supreme Court issued its New and Revised MAI-Civil Instructions, Notes on Use, Comments and Historical Notes. The Historical Note clarified that existing MHRA instructions 38.01(A) and (B) and 38.02 apply to cases accruing prior to August 28, 2017. Under the MHRA verdict directing instruction for employment discrimination actions accruing before August 28, 2017, as here, MAI 38.01(A) [2018 Revision] provides:

Your verdict must be for plaintiff if you believe:

First, defendant (here insert the alleged discriminatory act, such as "failed to hire," "discharged" or other act within the scope of § 213.055, RSMo ) plaintiff, and

Second, (here insert one or more of the protected classifications supported by the evidence such as race, color, religion,

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national origin, sex, ancestry, age or disability ) was a contributing factor in such (here, repeat alleged discriminatory act, such as "failure to hire," "discharge," etc. ), and

Third, as a direct result of such conduct, plaintiff sustained damage.

* [unless you believe plaintiff is not entitled to recover by reason of Instruction Number ____ (here insert number of affirmative defense instruction ) ]

(Footnotes omitted.)

McDonald alleged in her petition that: she was born August 7, 1952; with the exception of the Chamber president, she was the oldest worker at the Chamber; when she was hired, her salary was $ 80,000; on November 28, 2016, the Chamber reduced her salary from $ 80,000 per year to $ 50,000 per year; none of the other employees, all of whom were younger than McDonald, had their salaries reduced; and she had not been offered opportunities for career development similar to those offered to younger employees. McDonald further alleged that because of the Chamber’s conduct, she suffered damages, including the loss of past and future wages and benefits.

Assuming all the facts alleged in McDonald’s petition are true and liberally construing all inferences from those facts in favor of McDonald, as we are required to do, McDonald has alleged facts that meet the elements of an age discrimination claim pursuant to the MHRA.

Subject Matter Jurisdiction vs. Affirmative Defense

The Chamber alleged in its motion to dismiss that because McDonald filed her petition for damages before receiving a right-to-sue letter from the Commission, she failed to exhaust her administrative remedies under the MHRA, and consequently, the circuit court lacked subject matter jurisdiction over McDonald’s claims and should dismiss the petition. The circuit court entered its judgment granting the Chamber’s motion to dismiss, concluding that the face of McDonald’s petition had not invoked the jurisdiction of the court due to her failure to fully exhaust administrative remedies available to her at the time of filing.

The Chamber’s subject matter jurisdiction argument, accepted by the circuit court and upon which the circuit court’s judgment was based, was essentially a "jurisdictional competence" argument that our Missouri Supreme Court has long ago rejected. See J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 254 (Mo. banc 2009). Though section 213.111⁷ itemizes statutory prerequisites to filing suit upon an MHRA claim, such statutory prerequisites do not

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have any impact upon a circuit court’s subject matter jurisdiction.

In Webb , our Supreme Court clarified that there are only two kinds of jurisdiction: subject matter jurisdiction and personal jurisdiction. Id. at 252. The Court explained:

In evaluating the jurisdiction of circuit courts, there are cases that, in dicta , purport to recognize a third concept, "jurisdictional

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