United States Court of Appeals
For the Eighth Circuit
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No. 20-1966
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Randy R. Henson
lllllllllllllllllllllPlaintiff - Appellant
v.
Union Pacific Railroad Company; Foster B. McDaniel
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 18, 2021
Filed: July 8, 2021
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Before SMITH, Chief Judge, WOLLMAN and STRAS, Circuit Judges.
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WOLLMAN, Circuit Judge.
Randy Henson began working for the predecessor of Union Pacific Railroad
Company (Union Pacific) in 1979. Following more than thirty years with the
railroad, Henson filed a charge with the Missouri Commission on Human Rights (the
Commission) and the Equal Employment Opportunity Commission (EEOC) in
October 2017, alleging a hostile work environment and ongoing age discrimination
and retaliation. Henson asserted that he had been subjected to position changes and
harassing comments. Henson retired effective August 1, 2018, at the age of sixty-
three. Soon thereafter, Henson received a requested right-to-sue letter from the
Commission.
As relevant to this appeal, Henson filed suit against Union Pacific in Missouri
state court, alleging age discrimination, constructive discharge, and hostile work
environment1 claims under the Missouri Human Rights Act (MHRA). Henson also
sued Missouri resident Foster B. McDaniel, claiming that McDaniel aided and abetted
Union Pacific in its discriminatory acts. Union Pacific removed the case to federal
district court2 on the basis of diversity, claiming that McDaniel had been fraudulently
joined. McDaniel moved to dismiss the claims against him, claiming that Henson’s
complaint failed to state a claim. Henson moved to remand the case to state court.
Determining that McDaniel had been fraudulently joined to destroy diversity
jurisdiction, the district court granted McDaniel’s motion to dismiss and denied
Henson’s motion to remand. After answering the complaint, Union Pacific moved
for judgment on the pleadings, which was granted on Henson’s constructive discharge
claim and corresponding age discrimination and retaliation claims. The district court
later granted Union Pacific’s motion for summary judgment on Henson’s hostile work
environment claim. We affirm.
I. Motion to Dismiss
Henson argues that the district court erred in denying his motion to remand and
in dismissing his aiding-and-abetting claims against McDaniel. We review de novo
1
Henson’s hostile work environment claim was added via amended complaint
filed in federal court. The amended complaint set forth no new facts.
2
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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a fraudulent joinder challenge, Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
2007), “resolv[ing] all facts and ambiguities in the current controlling substantive law
in the plaintiff’s favor,” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th Cir.
2003). “[I]t is well established that if it is clear under governing state law that the
complaint does not state a cause of action against the nondiverse defendant, the
joinder is fraudulent and federal jurisdiction of the case should be retained.” Iowa
Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 406 n.6 (8th Cir. 1977).
“However, if there is a ‘colorable’ cause of action—that is, if the state law might
impose liability on the resident defendant under the facts alleged—then there is no
fraudulent joinder.” Filla, 336 F.3d at 810 (footnote omitted).
The MHRA prohibits both discrimination in employment on the basis of age,
Mo. Rev. Stat. § 213.055(1)(a), and retaliation for opposing unlawful discrimination,
id. § 213.070.1(2). It provides in relevant part that “[i]t shall be an unlawful
discriminatory practice for an employer . . . [t]o aid[ or] abet . . . the commission of
acts prohibited under this chapter.” Id. § 213.070.1(1). Missouri law defines “aiding
and abetting” as “affirmatively act[ing] to aid the primary tortfeasor” by giving
“substantial assistance or encouragement” to him. Bradley v. Ray, 904 S.W.2d 302,
315 (Mo. Ct. App. 1995); see also Markham v. Wertin, 861 F.3d 748, 755 (8th Cir.
2017). To the extent that the MHRA provided for individual liability prior to August
2017,3 “Missouri cases have only allowed for [such liability] when the individuals
directly oversaw or were actively involved in the discriminatory conduct.” Reed v.
McDonald’s Corp., 363 S.W.3d 134, 139 (Mo. Ct. App. 2012).
3
The MHRA was amended effective August 2017. Bram v. AT&T Mobility
Servs., LLC, 564 S.W.3d 787, 794 (Mo. Ct. App. 2018). The district court applied
the current version, but Henson argues that the pre-August 2017 version should
apply. We conclude that dismissal was proper under either standard, and thus we will
assume without deciding that the pre-2017 version applies here. See R.M.A. ex rel.
Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 425 n.3 (Mo. 2019) (en
banc).
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Henson’s complaint fails to make a colorable claim that McDaniel directly
oversaw or was actively involved in discrimination. The complaint and
administrative charge allege only two McDaniel-related specific facts: (1) McDaniel
is a Missouri resident who supervises at least six employees, and (2) “On or abut [sic]
June 21, 2017, Plaintiff confronted manager Foster B. McDaniel, as to what would
happen to him. Mr. McDaniel replied, ‘don’t worry, this job will be yours as long as
you want it. After you retire the job will be eliminated.’” Although Henson asserts
that McDaniel’s statement was false, this allegation fails to show that McDaniel aided
and abetted by providing “substantial assistance or encouragement” to Union Pacific
in its allegedly discriminatory actions. See Stoker v. Lafarge N. Am., Inc., No.
4:12-cv-0504-DGK, 2013 WL 434049, at *3 (W.D. Mo. Feb. 5, 2013) (complaint
failed to state a claim of aiding and abetting discrimination when it alleged only that
the defendant had made statements indicating that he “was out to get” the plaintiff
and had a close relationship with the discriminating party). The complaint likewise
fails to allege any McDaniel-specific facts related to Henson’s protected
activity—filing his administrative charge—and thereby does not make a colorable
claim that McDaniel retaliated or aided and abetted retaliation against Henson. Cf.
Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 625 (Mo. 1995) (en banc)
(“Section 213.070 prohibits retaliation ‘in any manner.’ To retaliate is to ‘inflict in
return.’” (citation omitted)). The complaint’s remaining references to McDaniel are
broad, conclusory allegations, which are insufficient to state a claim against him. See
Block v. Toyota Motor Corp., 665 F.3d 944, 950 (8th Cir. 2011) (“The conclusory
allegations in the complaint . . . are insufficient . . . .”). Dismissal on the basis of
fraudulent joinder was therefore proper.
II. Motion for Judgment on the Pleadings
Henson argues that the district court erred in granting Union Pacific’s motion
for judgment on the pleadings on Henson’s constructive discharge claim. The district
court determined that Henson had failed to administratively exhaust the claim because
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he resigned from Union Pacific after filing his charge and never filed an amendment
expressly alleging constructive discharge. The district court further determined that
such a discrete claim could not be “reasonably related” to the charged claims.
We review de novo a grant of “judgment on the pleadings, viewing all facts
pleaded by the nonmoving party as true and granting all reasonable inferences in
favor of that party.” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009)
(cleaned up). Judgment on the pleadings is proper when “no material issue of fact
remains to be resolved and the movant is entitled to judgment as a matter of law.” Id.
(citation omitted).
Missouri law requires plaintiffs to exhaust their administrative remedies prior
to bringing MHRA claims. Mo. Rev. Stat. § 213.075.1. “[E]xhaustion requires a
claimant to give notice of all claims of discrimination in the administrative complaint,
but administrative complaints are interpreted liberally in an effort to further the
remedial purposes of legislation that prohibits unlawful employment practices.”
Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 525 (Mo. Ct. App. 2009).
Because “administrative remedies are deemed exhausted as to all incidents of
discrimination that are like or reasonably related to the allegations of the
administrative charge[,] . . . the scope of the civil suit may be as broad as the scope
of the administrative investigation which could reasonably be expected to grow out
of the charge of discrimination.” Id. However, “it is not reasonable to expect the
[investigating agency] to look for and investigate [discrete] adverse employment
actions if they are nowhere mentioned in the administrative charge.” Parisi v. Boeing
Co., 400 F.3d 583, 586 (8th Cir. 2005); see also Lin v. Ellis, 594 S.W.3d 238, 242
(Mo. 2020) (en banc) (“In deciding a case under the MHRA, [state] appellate courts
are guided by both Missouri law and federal employment discrimination caselaw that
is consistent with Missouri law.” (citation omitted)).
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“Constructive discharge occurs when an employer deliberately renders an
employee’s working conditions so intolerable that the employee is forced to quit his
or her job.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686 (Mo. 2009)
(en banc). A constructive discharge is a discrete act of discrimination or retaliation
that stands separate and distinct from the continuing violation of a hostile work
environment. See generally Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) (“[In the
claim-accrual context], a claim that an employer constructively discharged an
employee is no different from a claim that an employer actually discharged an
employee.”); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112–13 (2002);
see also Wallingsford, 287 S.W.3d at 686 (“Claims of constructive discharge often
include evidence of subtle discrimination in the form of social coercion, demotions
or changes in job responsibilities. As a result, constructive discharge is a
fact-intensive inquiry.”).
Henson argues that his charge administratively exhausted his constructive
discharge claim because the claim is “reasonably related” to his charge allegations.
As potentially relevant to his constructive discharge claim, Henson’s charge alleged:
I felt I was being set up to fail so that when I did the company could
terminate me. Furthermore, the company was conveniently assigning
older employees to jobs that were physically demanding, all in their [sic]
plan to set us up to fail and terminate us.
***
We were not included nor [sic] considered as part of the team. Again,
the company was pushing older employees out.
***
The continuing pattern of the above events are [sic] wholly directed as
a means into a forced retirement and a termination of a loyal 38 years of
distinguish [sic] service. There is no foreseeable trend that indicates that
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the Union Pacific Railroad values my extensive knowledge and
experience in favor of eliminating my position. The current
climate/environment of the company is hostile towards workers like me,
older, and it is in favor of the younger generation workers. We, the
older employees, are constantly being set up for failure and in [sic]
working environment that offers no means of success, except to accept
the conditions of career surrender, which I am not yet willing to do.
We conclude that Henson’s constructive discharge claim is not reasonably
related to his charge allegations. Henson did not assert in his charge that he had been
or was about to be constructively discharged. Cf. Reed, 363 S.W.3d at 144
(constructive discharge claim not reasonably related to discrimination claims when
plaintiff’s charges “did not even state that [she] no longer worked for [the defendant]
nor any facts relating to intolerable working conditions”). But see Wedow v. City of
Kan. City, 442 F.3d 661, 674–75 (8th Cir. 2006) (post-charge-filing retaliation claims
reasonably related when charge stated that acts of retaliation were “ongoing and
continuing” and when subsequent retaliatory acts were “of identical character” to
charged acts); Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 852 n.1 (8th Cir.
2012) (per curiam) (distinguishing Wedow and characterizing the court in Wedow as
“[thinking] it was unnecessary for the complainants to file a new administrative
charge with respect to each continuing incident of retaliation” that had already been
alleged). Indeed, Henson’s assertion that he was “not yet willing to” “accept the
conditions of career surrender” despite feeling like “[w]e, the older employees, are
constantly being set up for failure” is evidence to the contrary. Cf. Green, 136 S. Ct.
at 1778 (“An employee who suffered discrimination severe enough that a reasonable
person in his shoes would resign might nevertheless force himself to tolerate that
discrimination for a period of time.”). Henson’s alleged constructive discharge did
not occur until approximately nine months after his charge had been filed. And
Henson’s allegation that “[t]he continuing pattern of [alleged discrimination is]
wholly directed as a means into a forced retirement and a termination” is more akin
to merely checking a form’s “continuing violation” box than to making the
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substantive allegations necessary to administratively exhaust a constructive discharge
claim. Cf. Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002) (concluding
that merely checking the “sex discrimination” box on the charge form and making a
conclusory allegation—in contrast to “a long, particularized account”—was
insufficient to establish a reasonable relationship between the facts alleged in the
charge and a sex discrimination claim), overruled in part on other grounds by Jones
v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).
Putting aside the district court’s conclusion that, as a matter of Missouri law,
the reasonable relation theory cannot apply to post-charge discrete discriminatory
acts,4 we cannot conclude that based on Henson’s charge as submitted the
administrative investigation would have reasonably included his alleged constructive
discharge claim. The claim was therefore not reasonably related to the charge
allegations, and judgment on the pleadings was proper.
4
The Tenth Circuit interprets Morgan as wholly overruling the reasonable
relation theory as it relates to subsequent discrete acts. See, e.g., Chapman v.
Carmike Cinemas, 307 F. App’x 164, 174 (10th Cir. 2009) (concluding that “[t]he
‘reasonable relation’ theory is no longer good law in cases involving discrete, easily
identifiable incidents” such as constructive discharge). The district court relied on
this Tenth Circuit precedent to conclude that “the ‘reasonable relation’ theory does
not apply to [subsequent] ‘discrete acts’” such as Henson’s constructive discharge
claim. D. Ct. Order of July 15, 2019, at 7 (citing id.). We do not agree that the
Missouri Supreme Court would necessarily adopt the Tenth Circuit’s restrictive
interpretation of the reasonable relation theory. See Wedow, 442 F.3d at 673
(declining to adopt the Tenth Circuit’s view of Morgan and concluding that “[w]hile
our court has narrowed its view of what subsequent acts are sufficiently related to be
within the scope of the properly filed administrative charges, we have not wholly
abandoned the theory that reasonably related subsequent acts may be considered
exhausted”).
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III. Motion for Summary Judgment
Henson also argues that the district court erred in granting summary judgment
in favor of Union Pacific on his hostile work environment claim.
We review de novo a district court’s grant of summary judgment. LeGrand v.
Area Res. for Cmty. & Hum. Servs., 394 F.3d 1098, 1101 (8th Cir. 2005). To prevail
on an age-based hostile work environment claim under the MHRA, a plaintiff must
show, in relevant part, that he was harassed, that his age was either a motivating or
contributing factor in the harassment,5 and that “a term, condition, or privilege of [his]
employment was affected by the harassment.” McGaughy v. Laclede Gas Co., 604
S.W.3d 730, 748 (Mo. Ct. App. 2020). A plaintiff’s term, condition, or privilege of
employment is affected by harassment only “if [the harassment] is sufficiently severe
or pervasive . . . to alter the conditions of a plaintiffs [sic] employment and create an
abusive working environment.” Alhalabi, 300 S.W.3d at 527. Accordingly, even
“some conduct well beyond the bounds of respectful and appropriate behavior is
nonetheless insufficient” to be severe and pervasive. Paskert v. Kemna-ASA Auto
Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020).
Henson contends that the record contains sufficient evidence of age-based
harassment.6 Many of the incidents, however, are either unrelated to his age or do not
5
We agree with the district court that the parties’ dispute over whether this case
is governed by the “motivating” or “contributing” standard is immaterial.
6
Henson points to evidence of the following: a manager asserted that Henson
had too much vacation time; unknown employees twice posted overtime- or
intelligence-related jokes about Henson; Union Pacific temporarily transferred
Henson—without changing his title, pay, or benefits—to a different position at which
he worked longer hours; and a manager commented, “Man. They sure like f---ing
you. If I had your time in, I wouldn’t put up with it. I’d pull the pin and get out of
here.”
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rise to the level of harassment. See Moses v. Dassault Falcon Jet-Wilmington Corp.,
894 F.3d 911, 922 (8th Cir. 2018) (concluding that the plaintiff “has not linked any
of these allegedly harassing actions to his age . . . . [and therefore] has failed to show
that the harassment resulted from his membership in a protected class”). Two
incidents involving Union Pacific Manager Patrick Foley could be construed as age-
related harassment. Henson alleges that Foley made comments about Henson no
longer working for Union Pacific and on one occasion asked Henson if he had
considered retirement. When Henson responded that he did not intend to retire, Foley
remarked, “Well, if it makes any difference in your retirement plans, your job’s going
to be gone by Halloween.” Foley’s questions appear to be a legitimate retirement
inquiry—given Foley’s managerial planning interests, Henson’s understanding that
“your job” meant his current position—not necessarily his employment with Union
Pacific—and the likelihood that Henson’s role would soon change. See Cox v.
Dubuque Bank & Tr. Co., 163 F.3d 492, 497 (8th Cir. 1998) (collecting cases and
concluding that “neither state nor federal law prohibits an employer from making
retirement inquiries reasonable under the circumstances” (internal quotation marks
omitted)). On another occasion, Henson asked Foley for a locomotive-lifting device,
to which Foley responded by handing Henson a printed photo of an electric motorized
chair that contained an image of Henson’s face pasted onto the chair seat. Foley
allegedly stated, “Old bastards like you need a lifting device. Here’s your electric
chair.” Assuming that this incident constituted age-related harassment, it alone did
not rise to the level of harassment “so intimidating, offensive, or hostile that it
poisoned the work environment.” Watson v. Heartland Health Labs., Inc., 790 F.3d
856, 861 (8th Cir. 2015) (citation omitted).
We therefore conclude that summary judgment was properly granted in light
of the lack of evidence constituting age-based harassment sufficiently severe or
pervasive to establish the existence of a hostile work environment.
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Conclusion
The judgment is affirmed.
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