United States District Court, W.D. Missouri, Western Division
Fernando J. Gaitan, Jr. United States District Judge
before the Court is Defendants' Motion to Dismiss (Doc.
No. 2), arguing that plaintiff's claim was filed too
late. When plaintiff failed to respond to the motion to
dismiss, the Court ordered plaintiff to show cause in writing
on or before February 27, 2017, why this case should not be
dismissed for the reasons stated in defendant's motion.
Plaintiff filed his response to the show cause order on
February 21, 2017, and subsequently defendant filed reply
suggestions on March 14, 2017.
argues that plaintiff's petition was filed untimely under
the Missouri Human Rights Act. Plaintiff's right to sue
letter under the Missouri Human Rights Act is dated July 8,
2016. See Doc. No. 1-2, p. 4. Plaintiff's
petition, filed in the Circuit Court of Jackson County,
Missouri, was filed on October 7, 2016. R.S.Mo. §
213.111.1 requires that plaintiff file his petition within 90
days of the issuance of the Right to Sue Notice. Here, as in
Hammond v. Municipal Correction Institute, the
plaintiff filed his petition 91 days after the Notice was
issued. See 117 S.W.3d 130 (Mo. App., W.D. 2003). In
Hammond, the Missouri Court of Appeals found that
the plaintiff's claims were filed untimely, as plaintiff
Hammond was warned that he must bring his civil action within
90 days of the notice, yet failed to do so. Id. at
139. Thus, on the same facts as are present in this matter,
the Missouri Court of Appeals found that plaintiff Hammond
had failed to state a claim upon which relief can be granted.
Id. at 135-36.
response, pro se plaintiff Gaus argues that he received his
90-day right to sue from both the Missouri Commission on
Human Rights (MCHR) as well as the EEOC on July 12, 2016.
Plaintiff argues he was confused about which letter to
include when he filed his petition at the Jackson County
Courthouse, so only included the one from the MCHR. Plaintiff
argues that, although the letter from the EEOC was signed and
dated June 21, 2016 (with an indication it was mailed on June
21, 2016), he did not receive that letter until July
12, 2016. Plaintiff notes that the EEOC letter indicates he
has 90 days to sue upon receipt of the letter, and that by
filing his petition on October 7, 2016, he would have fallen
within the 90-day period for filing an EEOC action.
reply, defendant notes that plaintiff's petition (Doc.
No. 1-2, pp. 2-3) makes no mention of a federal claim (other
than one possibly based on the “disability act of 1973,
” which to the extent plaintiff meant to refer to the
Rehabilitation Act of 1973, does not apply to plaintiff as he
is not a federal employee). Nor does plaintiff's petition
attach a copy of the Right to Sue letter from the EEOC. As
the only claim mentioned in the petition is one under the
MHRA, and that claim was filed untimely, defendant argues
that the motion to dismiss must be granted.
Court agrees with defendant that, to the extent plaintiff is
pleading claims under the MHRA, the motion to dismiss (Doc.
No. 2) must be GRANTED. However, the Court believes that
plaintiff may be able to allege sufficient facts related to
the original complaint that could state a claim for relief
under federal law for race and disability discrimination.
See Bradley v. Commerce Bank, N.A., No.
09-1084-CV-W-FJG, 2010 WL 1994707 at *6 (W.D. Mo. May 14,
2010) (allowing relation back to encompass in-artfully pled
Title VII claims even though MHRA claims were untimely and
dismissed) (citing Baker v. John Morrell & Co.,
266 F.Supp.2d 909, 929 n.3 (N.D. Iowa 2003)). Therefore,
plaintiff is directed to file a motion for leave to file an
amended complaint on or before MAY 25, 2017, attempting to
state a claim for relief under federal discrimination law.
The motion for leave to file an amended complaint must
contain (1) a copy of the proposed amended complaint; (2)
plaintiff's charge of discrimination submitted to the
EEOC; and (3) plaintiff's right to sue letter. Plaintiff
is cautioned that if he fails to file a motion for leave to
amend his complaint on or before May 25, 2017, this matter
may be dismissed without further notice.
FURTHER ORDERED that the Clerk of the Court send a copy of
this order by regular and certified mail to plaintiff at the
following address: Clayton Gaus, 311A SE Melody Lane,
Lee's Summit, MO 64063.
 The Court notes that, under the
applicable case law, it is presumed that notice is received
three days after notice is mailed. Rich v. Bob Downes
Chrysler Plymouth, Inc.,831 F.Supp. 733, 735 (E.D. Mo.
1993) (citing Ballwin Cty. Welcome Ctr. v. Brown,
466 U.S. 147, 148 n.1 (1984)). Given that the letter from the
EEOC states that it was mailed on June 21, 2016, the Court
has questions as to whether plaintiff first ...