Southwestern Bell Telephone Co. v. Missouri Com'n on Human Rights

• Court: Missouri Court of Appeals
• Writing for the Court: REINHARD; CRANDALL, P.J., and CRIST
• Citation: Southwestern Bell Telephone Co. v. Missouri Com'n on Human Rights, 863 S.W.2d 682 (Mo. App. 1993)
• Decision Date: 26 October 1993
• Docket Number: No. 64113,64113
• Parties: 2 A.D. Cases 1453, 4 NDLR P 289 SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff/Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Defendant/Respondent.

Page 682

863 S.W.2d 682

2 A.D. Cases 1453, 4 NDLR P 289

SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff/Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Defendant/Respondent.

No. 64113.

Missouri Court of Appeals,

Eastern District,

Division One.

Oct. 26, 1993.

Paul E. Dorin, St. Louis, for plaintiff/appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Thomas P. Polacek, Asst. Atty. Gen., Jefferson City, for defendant/respondent.

REINHARD, Judge.

Southwestern Bell Telephone Company (Employer) appeals a final order of the Circuit Court of the City of St. Louis quashing a preliminary order in prohibition and dismissing employer's petition for writ of prohibition. We reverse and remand.

On August 20, 1988, Edward Green (Employee) filed a complaint of discrimination with the Missouri Commission on Human Rights (Commission) pursuant to the Missouri Human Rights Act (MHRA), Chapter 213, RSMo 1986. The complaint alleged that employer had discriminated against employee on the basis of his hearing impairment.

On February 5, 1988, employee worked as a Customer Service Technician (CST) for employer. This job entailed working from aerial ladders, lifts, and poles. Employer removed employee from his position as a CST because his medical condition caused him to experience dizziness and vertigo. On February 5, 1988, employee was told to remain in the office for the remainder of the day and then not return to work until he was instructed to do so. Employee was maintained on employer's payroll until March 24, 1988, when he was finally removed. ¹

On August 20, 1988, employee filed a complaint alleging discrimination with the Commission. The sole instance of discrimination alleged in the complaint was his removal as a CST on February 5, 1988. ² This filing occurred one hundred ninety-seven (197) days after the date of alleged discrimination.

On November 2, 1992, employee's attorneys amended his complaint. This first amended complaint also alleged the same single date of discrimination as employee's initial complaint. On November 25, 1992, employer served the Commission with a copy of its petition for writ of prohibition. This petition noted that employee's complaint was not filed within one hundred eighty (180) days of the date of the alleged discrimination and this untimely filing deprived the Commission of jurisdiction.

On December 2, 1992, the Commission, on behalf of employee, sought leave to further amend his complaint. The proposed second amended complaint would allege that employee had been discriminated against on March 24, 1988--the date of his removal from employer's payroll. This second, later date of alleged discrimination was within one hundred eighty (180) days of the filing of the initial complaint.

On December 8, 1992, the trial court issued a preliminary order in prohibition against the Commission barring any further action in the employee's case. Consequently, the court did not rule on the Commission's proposed second amended complaint.

On April 8, 1993, the trial court entered an order quashing the preliminary order in prohibition and dismissing employer's petition for writ of prohibition. The trial court found the Commission had already determined that employee's proposed second amended complaint was appropriate and that the Commission had jurisdiction to permit the second amendment. Employer appeals from that order.

An appeal to this court is proper procedure to obtain review when the lower court has preliminarily granted prohibition but has refused to make the order permanent. State ex rel. St. Louis County v. Missouri Commission on Human Rights, 693 S.W.2d 173, 174 (Mo.App.1985). In St. Louis County, as in the instant case, the circuit court granted a preliminary writ in prohibition barring the Commission from proceeding to hear a complaint of employment discrimination because the complaint was untimely filed. St. Louis County, 693 S.W.2d at 174. The circuit court subsequently quashed the preliminary writ, and St. Louis County appealed. Upon finding the Commission lacked jurisdiction to hear the complaint (by virtue of its untimely filing), we reversed and remanded with direction that the writ of prohibition be made permanent. Id. at 175.

On appeal, employer contends that the Commission lacked jurisdiction to consider employee's complaint because it was filed more than one hundred eighty (180) days after the alleged discrimination. A complaint of discrimination must be filed with the Commission "within one hundred eighty (180) days of the alleged act of discrimination." § 213.075.1, RSMo Supp.1992. The Commission has no jurisdiction to conduct any proceeding on a complaint not filed within this period. St. Louis County, 693 S.W.2d at 174; St. Louis-San Francisco Ry. Co. v. Mayor's Commission on Human Rights and Community Relations of City of Springfield, 572 S.W.2d 492, 493 (Mo.App.1978). Thus, employee's original complaint, filed August 20, 1988, and alleging discrimination occurring on February 5, 1988, was untimely on its face and the Commission was without jurisdiction.

The Commission's response relies on § 213.075.8, RSMo.Supp.1992, which provides (in part):

The commission or complainant intervenor shall have the power to reasonably and fairly amend any complaint, and the respondent shall have like power to amend any answer.

It argues that the regulations promulgated by the Commission which govern amendments and complaints, read in conjunction with the above statute, permit the amendment of untimely filed complaints. The particular regulation relied upon, 8 CSR 60-2.065(1), provides (in part):

... After a contested case has been set for public hearing, the complaint may be amended by the commission or the complainant-intervenor within time limits set by the presiding officer, to cure technical defects or omissions, including to clarify and amplify allegations made in the complaint.

Thus, the Commission contends that the proposed second amended complaint of December 2, 1992, alleging that the employee had been discriminated against on March 24, 1988, the date of his removal from employer's payroll, was sufficient to bring the original complaint within the one hundred eighty (180) day rule. The Commission cites no Missouri authority to support its contention that the Commission can obtain jurisdiction over an untimely filed complaint by virtue of an amended complaint filed four years later. ³ It relies entirely upon federal cases to support its position, principally Ostapowicz v. Johnson Bronze Co., 541 F.2d 394 (3rd Cir.1976). There, the Third Circuit interpreted EEOC regulations as permitting amendment of a complaint of discrimination, after the expiration of the period for filing an initial complaint, when the additional allegations contained in the amended complaint are within the scope of the EEOC investigation of the discrimination alleged in the initial complaint. The Commission here claims employee's termination was within the scope of the Commission's investigation of the initial complaint of employee's removal from his position as a CST.

As stated by the Commission, if there is no Missouri law we may apply relevant federal law. K.C. v. Missouri Commission on Human Rights, 632 S.W.2d 488, 490 (Mo. banc 1982). However, we are not required to do so, and find it unnecessary to do so in the instant case.

The Missouri Supreme Court has established a strong policy position on the issue of employing amended pleadings to attempt revival of time-barred claims in civil cases. Rule 55.33 permits the relation back of amendments to pleadings. The rule is to be liberally applied. Downey v. Mitchell, 835 S.W.2d 554, 556 (Mo.App.E.D.1992). Our supreme court, however, has stated in Laux v. Motor Carrier Council of St. Louis, Inc., 499 S.W.2d 805, 807 (Mo.1973):

Leave to amend a petition contemplates an amendment which will cure the defects of the petition without changing the essential basis of the cause of action originally attempted to be plead. Alleging a new cause of action which is subject to the bar of the statute of limitations cannot be considered a mere amendment and is not authorized. An amended pleading relates back to the time of the filing of the original pleading for the claim stated in the amended pleading is the same as that stated in the original one. (Citation omitted). An amendment will not relate back to the filing of the original petition and save a cause of action from a bar of the statute of limitations "if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment." Citing Miller v. Werner, 431 S.W.2d 116, 118 (Mo.1968); McDaniel v. Lovelace, 439 S.W.2d 906, 909 (Mo.1969).

Here, proof of discharge, as required to support the allegations contained in the second amended pleading, differs from the proof required to support the removal complained of in the...