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Defendant's Attorney: Kyle B. Russell

Description:

Liberty, Missouri - Personal Injury lawyer represented appellant with appealing from asserted claims for negligence and negligent infliction of emotional distress.

On December 25, 2017, Loomis spent 30 minutes to an hour inside of the Ameristar
Casino ("Ameristar") in Kansas City, Missouri. Loomis was approached by Defendants,
two on-duty security guards employed by Ameristar. Defendants accused Loomis of being
intoxicated and told him to leave Ameristar. Loomis explained that he had not been
drinking, but that he suffered a brain injury which partially impaired the use of one side of
his body. Despite Loomis's explanation, Defendants forced him to leave Ameristar. As a
result of this interaction, Loomis experiences anxiety and panic attacks when he attempts
to visit public places, for fear that his physical impairment will be mistaken for
intoxication.
On May 15, 2018, Loomis filed a Charge of Discrimination with the Missouri
Commission on Human Rights ("MCHR") alleging that Ameristar discriminated against
him in public accommodation because of his disability. On March 1, 2019, the MCHR
issued Loomis a "right to sue" letter, and on May 28, 2019, Loomis filed a petition in the
Circuit Court of Clay County, Missouri, alleging one count of "Disability discrimination

2RSMo section 213.010 et. seq. Unless otherwise noted, all statutory references to the MHRA are to RSMo
Supp. 2017, the version of the MHRA in effect when Loomis's claims arose.
3When reviewing whether dismissal of Loomis's claims was appropriate, we assume that all assertions
contained in his petition are true. Hartman v. Logan, 602 S.W.3d 827, 836 (Mo. App. W.D. 2020) (citation omitted).
3
and/or Harassment in Public Accommodations" against Ameristar in violation of the
MHRA ("MHRA Petition"). On August 22, 2019, Loomis amended his MHRA Petition
to include Defendants (whose identities were then unknown to Loomis) as John Doe 1 and
John Doe 2.
On November 18, 2019, Loomis served Ameristar with a copy of a summons and
his MHRA Petition. On December 16, 2019, Ameristar removed Loomis's case to the
United States District Court for the Western District of Missouri ("Federal Court").
Ameristar then filed a motion to dismiss Loomis's MHRA Petition. The Federal Court
granted Ameristar's motion to dismiss Loomis's MHRA Petition for insufficient service of
process. The case was dismissed without prejudice. Loomis appealed, and then voluntarily
dismissed his appeal.
On July 23, 2020, Loomis initiated a second lawsuit in the Circuit Court of Clay
County asserting common law claims of negligence and of negligent infliction of emotional
distress (collectively "common law claims") against Defendants. The common law claims
were based upon the same incident raised in the dismissed MHRA Petition. Loomis
contends that amendments to the MHRA in 2017 eliminated individual liability for
discrimination in public accommodation, permitting him to assert the common law claims.
Defendants filed a motion to dismiss Loomis's petition. Defendants alleged that
Loomis's common law claims are preempted by the MHRA, barred by the doctrine of res
judicata, and untimely under the MHRA. In supplemental pleadings in support of the
motion to dismiss, Defendants also allege that Loomis's petition fails to state a claim on
which relief can be granted because the common law claims are not cognizable.
4
On February 22, 2021, the trial court issued a judgment granting Defendants' motion
to dismiss Loomis's common law claims ("Judgment"). The Judgment expressly relied on
State ex rel. Church & Dwight Co. v. Collins, 543 S.W.3d 22 (Mo. banc 2018). In Church,
a plaintiff brought claims for sex discrimination and retaliation against her former
employer under the MHRA, and the defendant moved to dismiss the claims because they
were barred by the MHRA's statute of limitations. Id. at 24-25. The Missouri Supreme
Court concluded that the trial court erred when it permitted plaintiff to amend her petition
to include common law claims of negligence and wrongful discharge "[b]ecause the
MHRA fully provides for all remedies available at common law" and because her
"common law claims of negligence and wrongful discharge [were] fully encompassed and
comprehended by the MHRA." Id. at 28. The Supreme Court held, "The MHRA, therefore,
supersedes and displaces [the plaintiff's] common law claims, and the circuit court abused
its discretion by allowing [the plaintiff] to amend her petition against Church to include
common law claims preempted by the MHRA." Id. In its Judgment, the trial court
concluded:
The same is true here. [Loomis] initially brought his claims as MHRA claims
for disability discrimination. However, those claims were dismissed without
prejudice on procedural grounds, and the statute of limitations has expired.
[Loomis] now seeks to bring his claims as common law negligence claims.
However, the MHRA expressly prohibits disability discrimination in public
accommodations. It provides a fully comprehensive remedial scheme for
any violations . . . . As noted by the Supreme Court of Missouri in Church,
[Loomis's] common law negligence claims "are fully encompassed and
comprehended by the MHRA." Plaintiff is thus "not entitled to any other
remedies for common law claims of negligence."
(Citations omitted).
5
Loomis appeals.
Standard of Review
We review the trial court's grant of a motion to dismiss de novo. Hartman v. Logan,
602 S.W.3d 827, 835 (Mo. App. W.D. 2020) (citation omitted). We are to affirm the trial
court's dismissal on any meritorious ground stated in the motion to dismiss, "even if that
ground was not relied upon by the trial court in dismissing the claim." Copeland v. City of
Union, 534 S.W.3d 298, 301 (Mo. App. E.D. 2017) (citation omitted). "A motion to
dismiss for failure to state a claim on which relief can be granted is solely a test of the
adequacy of the petition." Hartman, 602 S.W.3d at 835 (quoting Tuttle v. Dobbs Tire &
Auto Ctrs., Inc., 590 S.W.3d 307, 310 (Mo. banc 2019)). "The Court does not weigh the
factual allegations to determine whether they are credible or persuasive." Hill v. Freedman,
608 S.W.3d 650, 654 (Mo. App. W.D. 2020) (quoting R.M.A. by Appleberry v. Blue
Springs R-IV Sch. Dist., 568 S.W.3d 420, 424 (Mo. banc 2019)). "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.'" Hartman, 602 S.W.3d at 835-
36 (quoting McDonald v. Chamber of Commerce of Independence, 581 S.W.3d 110, 114
(Mo. App. W.D. 2019)).
Analysis
Loomis raises six points on appeal, each addressing a basis for dismissal of his
common law claims that was raised by Defendants' motion to dismiss. In his first point on
appeal, Loomis argues that the trial court erred in dismissing his petition because the
amended version of the MHRA does not preempt his common law claims. In his second,
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third, and fourth points on appeal, Loomis argues that the trial court erred in dismissing his
petition because the MHRA statute of limitations does not apply to his common law claims,
and the claims are not barred by the doctrines of res judicata or judicial estoppel,
respectively, arising out of dismissal of the MHRA Petition. In Loomis's fifth and sixth
points on appeal, he argues that the trial court erred in dismissing his petition because he
sufficiently pled a duty owed for the common law claims of negligence and negligent
infliction of emotional distress, such that his claims are cognizable.
4

Each of Loomis's points on appeal is premised on the central contention that 2017
amendments to the MHRA eliminated individual liability for discrimination in public
accommodation, permitting common law claims to be pursued against individuals for
conduct that would have been subject to the MHRA (and to the Supreme Court's holding
in Church) prior to 2017. Loomis's premise is flawed. Loomis incorrectly presumes
(without analysis or citation to authority) that 2017 amendments to the MHRA eliminated
individual liability for discrimination in public accommodation.
Individual liability for discrimination in public accommodation following 2017
amendments to the MHRA
Section 213.065 prohibits discrimination in places of public accommodation, and
describes unlawful discriminatory practices as follows:
1. All persons within the jurisdiction of the state of Missouri are free and
equal and shall be entitled to the full and equal use and enjoyment within this
state of any place of public accommodation, as hereinafter defined, without
discrimination or segregation because of race, color, religion, national origin,
sex, ancestry, or disability.

4Point Five challenges the dismissal of Loomis's negligence claim while Point Six challenges the dismissal
of his claim for negligent infliction of emotional distress.
7
2. It is an unlawful discriminatory practice for any person, directly or
indirectly, to refuse, withhold from or deny any other person, or to attempt
to refuse, withhold from or deny any other person, any of the
accommodations, advantages, facilities, services, or privileges made
available in any place of public accommodation, as defined in section
213.010 and this section, or to segregate or discriminate against any such
person in the use thereof because of race, color, religion, national origin, sex,
ancestry, or disability.
(Emphasis added.)
Section 213.010(16) defines "places of public accommodation" as "all places or
businesses offering or holding out to the general public, goods, services, privileges,
facilities, advantages or accommodations for the peace, comfort, health, welfare and safety
of the general public or such public places providing food, shelter, recreation and
amusement[.]" Section 213.010(15) defines a "person" as "one or more individuals,
corporations, partnerships, associations, organizations, labor organizations, legal
representatives, mutual companies, joint stock companies, trusts, trustees, trustees in
bankruptcy, receivers, fiduciaries, or other organized groups of persons." These provisions
of the MHRA were not amended in 2017 in any manner relevant to this case.
5

It is uncontested that Ameristar is a "place of public accommodation" as defined in
section 213.010(16), and that Defendants are each a "person" as defined in section
213.010(15). According to the plain language of section 213.065.2, Defendants were thus
prohibited from engaging in conduct in connection with their work at Ameristar that would
qualify as discrimination in public accommodation. The conduct Defendants are accused

5The only change in section 213.065.1 and .2 as a result of 2017 amendments to the MHRA was
substitution of the phrase "because of" for "on the grounds of." The only change in section 213.010(15) and (16) as
a result of 2017 amendments to the MHRA was the renumbering from 213.010(14) and 213.010(15), respectively.
8
of in Loomis's common law claims is conduct that, accepted as true for purposes of this
discussion, would qualify as discrimination in public accommodation.
Loomis observes, however, that section 213.075.1 was amended in 2017. Section
213.075 addresses complaints filed with the MCHR. The pre-2017 version of section
213.075.1 provided that:
Any person claiming to be aggrieved by an unlawful discriminatory practice
may make, sign and file with the commission a verified complaint in writing,
within one hundred eighty days of the alleged act of discrimination, which
shall state the name and address of the person alleged to have committed the
unlawful discriminatory practice . . . .
(Emphasis added.) As amended in 2017, section 213.075.1 now provides:
As a jurisdictional condition precedent to filing a civil action under this
chapter, any person claiming to be aggrieved by an unlawful discriminatory
practice shall make, sign and file with the commission a verified complaint
in writing, within one hundred eighty days of the alleged act of
discrimination, which shall state the name and address of the employer,
employment agency, labor organization, or place of public accommodation
alleged to have committed the unlawful discriminatory practice and which
shall set forth the particulars thereof and such other information as may be
required by the commission.
(Emphasis added.) The 2017 amendment to section 213.075.1 thus replaced the word
"person," (broadly defined by section 213.010(15) to include, but not be limited to,
individuals), with a categorical list of those who must be named in an administrative
complaint. The first three categories (employer, employment agency, and labor
organization), are expressly prohibited by section 213.055 from engaging in unlawful
employment practices (see sections 213.055.1(1), (2) and (3)). The fourth category (place
of public accommodation) is expressly addressed by section 213.065's prohibition against
discrimination in public accommodations.
9
Loomis presumes without analysis or citation to authority that when the General
Assembly replaced the word "person" in section 213.075.1 with the phrase "employer,
employment agency, labor organization, or place of public accommodation," it intended to
relieve "persons," (a term that includes individuals within its scope), of liability for
discrimination in public accommodation. Loomis thus contends that section 213.075.1
"does not allow an aggrieved person to file an administrative complaint with the MCHR
against another 'person.'" He extrapolates from this conclusion that he should now be
permitted to sue "persons," (including individuals) at common law for discrimination in
public accommodation. We disagree.
First, Loomis's contention ignores that section 213.065.2 expressly declares it to be
an unlawful discriminatory practice for any "person" to discriminate in public
accommodation. It would be absurd to conclude that the General Assembly's amendment
of section 213.075.1 in 2017 was intended to eliminate liability for "persons" for
discrimination in public accommodation, simply because "person" is no longer expressly
identified as the alleged offender required to be named when an MCHR complaint is first
filed. "[I]t would be illogical for the legislature to, on the one hand, ban discrimination in
public accommodations and, on the other hand, exempt the owner of the public
accommodation from liability for that discrimination." R.M.A., 568 S.W.3d at 429 n.11.
Loomis's construction of section 213.075.1 would mean that no one is liable under the
MHRA for discrimination in public accommodation, as a "place of public accommodation"
is not within the definition of "person" (those prohibited from discrimination in public
accommodation by section 213.065.2), and because a "place" is not a person, and cannot
10
be sued. See, e.g., City of Harrisonville v. McCall Serv. Stations, 495 S.W.3d 738, 751-52
(Mo. banc 2016) (holding that Petroleum Storage Tank Fund is a statutorily created
account, and not a legal entity that can be sued). "Courts . . . should not construe a statute
to render any provision meaningless." Am. Civil Liberties Union of Mo. v. Ashcroft, 577
S.W.3d 881, 892 (Mo. App. W.D. 2019) (quoting Caplinger v. Rahman, 529 S.W.3d 326,
332 (Mo. App. S.D. 2017) (en banc)). Rather, it must be the case that the owner of, operator
of, or those working at, a "place of public accommodation" are susceptible to suit for
discriminatory conduct at or within the public accommodation. R.M.A., 568 S.W.3d at 429
n.11 (noting that owner and operator of a public accommodation logically must be subject
to suit for "discriminatory conduct within that public accommodation").
Second, when the General Assembly intends to eliminate individual liability for an
unlawful discriminatory practice, it does so plainly, not cryptically. For example,
following the 2017 amendments to the MHRA, individuals can no longer be sued for
unlawful employment practices pursuant to section 213.055. Wiedner v. Ferrellgas, Inc.,
607 S.W.3d 231, 237 (Mo. App. W.D. 2020). However, that is not because section
213.075.1 was amended to replace the word "person" with "employer, employment agency,
labor organization, or place of public accommodation." Instead, it is because section
213.055 makes it an unlawful employment practice for an "employer" to engage in
specified conduct, and the definition of "employer" was amended in 2017 to delete "any
person directly acting in the interest of an employer" from the definition, and to expressly
exclude "an individual employed by an employer" from the definition. Section 213.010(8);
Wiedner, 607 S.W.3d at 237. "[I]f the legislature intended to exclude [persons, including
11
individuals] from liability [for discrimination in public accommodation] under the MHRA,
it is unlikely it would have hidden its intent to do so in [an amendment describing who
must be identified when an MCHR complaint is first filed]." R.M.A., 568 S.W.3d at 430
n.12 (citing Whitman v. Am. Trucking Ass'ns., 531 U.S. 457, 468 (2001) ("The legislature
'does not, one might say, hide elephants in mouseholes.'")).
Third, Loomis's contention ignores other provisions in Chapter 213. For example,
section 213.075.1 requires the "employer, employment agency, labor organization, or place
of public accommodation" to be identified when an MCHR complaint is first filed, but also
requires the complaint "to set forth the particulars thereof and such other information as
may be required by the commission." Section 213.075.4 provides that "[a] person who is
not named as a respondent in a complaint [filed with the MCHR], but who is identified as
a respondent in the course of investigation, may be joined as an additional or substitute
respondent . . . ." "Respondent" is defined by section 213.010(18) as "a person who is
alleged to have engaged in a prohibited discriminatory practice in a complaint filed with
the commission." In addition, section 213.111.1 provides that a right to sue letter issued
by the MCHR must indicate that the person claiming to be aggrieved has a "right to bring
a civil action within ninety days of such notice against the respondent named in the
complaint." (Emphasis added.)
All of these provisions are to be construed together and harmonized if reasonably
possible. R.M.A., 568 S.W.3d at 429. Harmonizing all of these provisions can only be
accomplished if the 2017 amendment to the MHRA which replaced "person" in section
213.075.1 with "employer, employment agency, labor organization, or place of public
12
accommodation" is construed to identify those who must be identified in a complaint filed
with the MCHR, subject to a complaining person's right to name any other "respondents"
statutorily subject to liability for complained of unlawful discriminatory practices, mindful
that only those named as "respondents" can be named in a right to sue letter, or a later filed
civil action. See, e.g., R.M.A., 568 S.W.3d at 429 (holding that MHRA's definition of the
word "person," which states that it "includes" the individuals and entities listed therein, is
not limited to that list, and also includes others required by necessary implication).
Finally, taken to its logical extension, Loomis's contention would require the
conclusion that no one can be sued for discrimination in housing pursuant to section
213.040; for discrimination in commercial real estate loans pursuant to section 213.045;
for discrimination in selling or renting by real estate agencies pursuant to section 213.050;
or for additional discriminatory practices pursuant to section 213.070.1(3); because these
statutes do not refer to an "employer, employment agency, labor organization, or place of
public accommodation" as potential offending parties. It would be absurd to conclude that
the General Assembly intended its amendment of section 213.075.1 to effectively eliminate
the prohibition against unlawful discriminatory practices identified by these sections. See
R.M.A., 568 S.W.3d at 429 n.11; section 213.101.1 (requiring the provisions of Chapter
213 to be construed as "to accomplish the purposes thereof").
We therefore reject the premise essential to each of Loomis's points on appeal.
Because 2017 amendments to the MHRA did not eliminate individual liability for
discrimination in public accommodation, the trial court's reliance on Church to conclude
13
that the MHRA preempted Loomis's common law claims6
against the Defendants was
legally correct.
The Judgment is affirmed. Loomis's Points One through Six on appeal are denied.

Outcome: The trial court's Judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: