# Edwards v. PAR Electrical Contractors, Inc.

> District Court, W.D. Missouri · July 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10241176

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** July 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10241176

## How later opinions describe it (automated extraction)

- finding that union could be liable for hostile work environment, in part, because “the harassment was directly connected to a union-sponsored activity—the strike”
- recognizing that administrative exhaustion is required before filing a Title VII or MHRA claim
- noting that an individual “in his capacity as a union official” purchased and distributed “No Rat” stickers

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

ERIC EDWARDS, )
)
Plaintiff, )
)
v. ) No. 19-00126-CV-W-BP
)
PAR ELECTRICAL CONTRACTORS, INC., )
and INTERNATIONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, LOCAL NO. 53, )
)
Defendants. )

ORDER AND OPINION GRANTING DEFENDANT LOCAL 53’S MOTION TO
DISMISS

Plaintiff Eric Edwards (“Edwards”) filed this suit for race discrimination, retaliation, and
hostile work environment against his former employer, PAR Electrical Contractors, Inc. (“PAR”)
and his labor organization, International Brotherhood of Electrical Workers, Local No. 53 (“Local
53”). Now pending is Local 53’s Motion to Dismiss (Doc. 11), which argues that Edwards failed
to allege facts sufficient to state any cause of action against Local 53. As explained below, the
motion is GRANTED.
I. BACKGROUND
The First Amended Complaint (“Amended Complaint”) alleges the following facts, all of
which are construed in the light most favorable to Edwards and deemed as true for purposes of this
Order.1 PAR is headquartered in Kansas City and is a nationwide electrical contractor that
specializes in outside electrical work. (Doc. 8, ¶¶ 12, 14.) PAR handles all aspects of constructing
and maintaining power lines in and around the Kansas City metropolitan area. (Id., ¶ 13.)

1 All page numbers cited herein are those generated by the Court’s CM/ECF system.
Local 53 is a labor organization that serves approximately 2,500 outside construction line
workers in the Kansas City metropolitan area. (Id., ¶ 15.) In the Kansas City area, all PAR
construction line workers are also members of Local 53. (Id., ¶ 16.) Additionally, Local 53’s
executive board is comprised of PAR employees and managers. (Id., ¶ 17.)
During the relevant time period, Edwards, who is African-American, was a member and

apprentice of Local 53. (Id., ¶ 18.) In or around October 2016, Edwards became employed by
PAR. (Id.) Edwards’s primary job duties included repairing and maintaining underground and
above-ground power lines belonging to Kansas City Power & Light. (Id., ¶ 19.)
In approximately August 2017, Edwards was preparing for his shift and overheard the
phone of Richard Summers ring through his truck speakers. (Id., ¶ 20.) Summers is a PAR
supervisor and member of Local 53. (Id., ¶¶ 20-21.) Summers answered the phone and the caller
screamed through the speakers “What’s up Nigger? What cha doing?” (Id., ¶ 20.) Summers then
looked at Edwards and laughed. (Id., ¶ 21.)
Also in August 2017, a large team of electricians including Edwards travelled to Dallas,

Texas, in response to hurricane Harvey. (Id., ¶ 22.) When they arrived in Dallas, a group of
electricians, including Edwards, huddled around the caravan and began drinking beer. (Id., ¶ 23.)
Edwards immediately became the center of attention when his co-workers, supervisors, and
managers made jokes and comments about his race and color of his skin. (Id., ¶ 24.)
Approximately four days into the hurricane Harvey job, Kevin Boogar told Edwards during
lunch that “the mosquitos love that dark skin, that shit tastes like chocolate I bet.” (Id., ¶ 28.)
Boogar is a member of Local 53. (Id., ¶ 38.) Edwards’s manager/superintendent at PAR, Eric
Younghans, was sitting next to Boogar but did not take any action and did not appear to be bothered
by the derogatory comment. (Id., ¶ 29.) Younghans also sits on Local 53’s executive board. (Id.)
Edwards reported race-related issues to a different PAR manager, Jason Stephens. (Id., ¶
30.) After making the report, Edwards was ostracized by the other electricians. (Id., ¶ 31.)
Edwards requested a crew change, but did not receive a change until after he had endured another
three weeks of Summers repeatedly using the n-word. (Id., ¶ 32.) Edwards was finally transferred
to Florida to work in the aftermath of hurricane Irma. (Id.)

Although Edwards was assigned to a different crew, Summers was still responsible for
evaluating his work performance during the response to hurricanes Harvey and Irma. (Id., ¶ 33.)
Summers gave Edwards an “Unsatisfactory” review for August and September 2017. (Id., ¶ 34.)
This was the first time Edwards had received a negative review. (Id.) In addition to the negative
review, Edwards continued to hear other electricians use the n-word and other racial remarks. (Id.,
¶¶ 35-38.)
In or around March 2018, Robert Frazee terminated Edwards’s employment at PAR. (Id.,
¶ 39.)2 Frazee also sits on Local 53’s executive board. (Id.) After his termination from PAR,
Edwards alleges that he “has continued to experience discrimination by Local 53 executive officers

and members as well as at other places of employment consisting of Local 53 members.” (Id., ¶
44.) The Amended Complaint does not provide any further information about this alleged post-
employment discrimination. Edwards also summarily alleges that Local 53 refused to refer him
for employment opportunities at Magun Boring and Black and McDonald “because of his race and
his opposition to racial discrimination.” (Id., ¶ 43.)3

2 The Amended Complaint does not specify Frazee’s position at PAR. Edwards’s suggestions in opposition state that
Frazee is a General Foreman. (Doc. 22, pp. 2, 6.)

3 The Amended Complaint alleges that at an unspecified job, an unidentified Local 53 member gave Edwards a safety
signal to reverse a truck when in fact traffic was not clear. (Doc. 8, ¶ 40.) A collision nearly occurred as unidentified
members of Local 53 watched and laughed at Edwards. (Id., ¶ 41.) In addition to not providing names, location, or
any other information about this incident, the Amended Complaint does not allege it was based on race or any other
unlawful reason.
On January 11, 2019, Edwards filed this lawsuit against PAR and Local 53. The Amended
Complaint asserts the following causes of action against both Defendants: (1) race discrimination
in violation of the Missouri Human Rights Act (“MHRA”), Title VII, and 42 U.S.C. § 1981
(Counts I, IV, VII); (2) retaliation in violation of the MHRA, Title VII, and § 1981 (Counts II, V,
and VIII); and (3) hostile work environment in violation of the MHRA, Title VII, and § 1981

(Counts III, VI, and IX). PAR filed an Answer, and Local 53 filed the pending motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Local 53 primarily argues that any discrimination
occurred at PAR, and that the Amended Complaint does not adequately allege that Local 53, as an
organization, engaged in actionable conduct. Edwards contends that each claim is adequately
stated against Local 53. The parties’ arguments are addressed below.
II. DISCUSSION
When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
Court “must accept as true all of the complaint’s factual allegations and view them in the light
most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir.

2008). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court explained that:
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully. Where
a complaint pleads facts that are merely consistent with a defendant’s liability, it
stops short of the line between possibility and plausibility of entitlement to relief.

Id. at 678 (quotations and citations omitted). In addition, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id.
A. Counts I, IV, and VII—Race Discrimination
Counts I, IV, and VII assert race discrimination claims against Local 53 under Title VII, §
1981, and the MHRA. Title VII applies to labor organizations, and makes it unlawful:

(1) to exclude or to expel from its membership, or otherwise to
discriminate against, any individual because of his race . . .;

(2) to . . . refuse to refer for employment any individual, in any way
which would deprive or tend to deprive any individual of
employment opportunities, or would limit such employment
opportunities or otherwise adversely affect his status as an employee
or as an applicant for employment, because of such individual’s race
. . . ; or

(3) to cause or attempt to cause an employer to discriminate against
an individual in violation of this section.

42 U.S.C. § 2000e-2(c)(1)-(3).
The elements of a discrimination claim under Title VII, § 1981,4 and the MHRA are similar.
Id.; Saulsberry v. St. Mary’s Univ. of Minn., 318 F.3d 862, 866 (8th Cir. 2003); Mo. Rev. Stat. §
213.055.1.(2). Absent direct evidence of discrimination, a plaintiff generally bears an initial prima
facie burden of “showing that []he (1) is a member of a protected class, (2) was qualified, (3)
suffered an adverse employment action, and (4) can provide facts that give rise to an inference of
unlawful discrimination on the basis of a protected class status.” Blackwell v. Alliant Techsystems,
Inc., 822 F.3d 431, 435 (8th Cir. 2016) (quotations and ellipsis omitted);5 see also Stone v. McGraw

4 In relevant part, § 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same
right . . . to make and enforce contracts . . . as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). A § 1981 plaintiff
must therefore also identify an “impaired contractual relationship.” Gregory v. Dillard’s Inc., 565 F.3d 464, 468 (8th
Cir. en banc 2009). Edwards has alleged a contractual relationship with Local 53 (Doc. 8, ¶ 90), and Local 53 does
not move to dismiss on this basis.

5 Neither party argues that Edwards pled direct evidence of discrimination or that the outcome of the pending motion
depends on the distinction between direct or circumstantial evidence.
Hill Fin., Inc., 856 F.3d 1168, 1173 n.4 (8th Cir. 2017) (“Because Stone relies on circumstantial
evidence of discrimination, the district court correctly assessed his 42 U.S.C. § 1981 claim under
the same standard as his Title VII claim[.]”); Bram v. AT&T Mobility Servs., LLC, 564 S.W.3d
787, 796 (Mo. Ct. App. 2018).
Construed in a light most favorable to Edwards, the Amended Complaint contains four

possible discrimination theories against Local 53. As explained below, none of these theories
adequately state a claim against Local 53.
1. “Failure to Refer” Employment Opportunities and Post-PAR Discrimination

In his suggestions in opposition, Edwards primarily argues that Local 53 discriminated
against him by “failing to refer” him employment opportunities. (Doc. 22, p. 1-5.) The Amended
Complaint alleges that: (1) Edwards is African-American, (2) he was “available for employment
opportunities with Magun Boring and Black and McDonald,” and (3) Local 53 “failed to refer”
him these employment opportunities “because of his race and his opposition to racial
discrimination.” (Doc. 8, ¶¶ 42-43.) Edwards also summarily alleges that after his termination
from PAR, he “has continued to experience discrimination by Local 53 executive officers and
members as well as at other places of employment consisting of Local 53 members.” (Id., ¶ 44.)
These conclusory allegations, found in paragraphs 42-44 of the Amended Complaint, do
not state a discrimination claim against Local 53. First, Edwards’s conclusory “failure to refer”
allegation is not accompanied by facts that would “nudge his claims of invidious discrimination
across the line from conceivable to plausible.” Iqbal, 556 U.S. at 680 (cleaned up). The Amended
Complaint does not, for example, identify the individual(s) at Local 53 with authority to refer,
allege facts that plausibly show those individual(s) did not refer Edwards for a discriminatory (as
opposed to nondiscriminatory) reason, or allege facts that show Edwards was qualified for and
otherwise entitled to the positions. Id.; see also Evans v. Blanton Constr. Co., 2018 WL 3375092,
at * 6 (E.D. Mo. July 11, 2018) (finding that the plaintiff “failed to state a claim because he has
failed to allege any specific facts about the Union or its agents that would plausibly suggest that
their alleged failure to place him in jobs, or their other actions, were caused by his membership in
a protected class or by his having participated in any protected activity”).6

Second, the allegation that Edwards “has continued to experience discrimination by Local
53 executive officers and members as well as at other places of employment consisting of Local
53 members” also lacks “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Iqbal, 556 U.S. at 678. The Amended Complaint does not provide any facts
in support, including the individuals involved, the nature of the discriminatory acts, or where the
discrimination took place. Additionally, as explained throughout, the Amended Complaint does
not adequately allege that Local 53—as an organization—engaged in any discriminatory conduct.
2. Failure to Remedy Racial Discrimination at PAR
The second theory is that Local 53 knew of, but failed, to remedy the racial discrimination

Edwards was subjected to during his employment at PAR. (Doc. 8, ¶¶ 46-48.) This theory is
foreclosed by Thorn v. Amalgamated Transit Union, 305 F.3d 826 (8th Cir. 2002). In Thorn, the
plaintiff was employed by Metro Transit as a bus driver and was also a member of a union. Id. at
829. The plaintiff complained to a union steward of ongoing and unwelcome sexual advances by
her co-workers, who were also members of the union. Id. The plaintiff ultimately filed a Title VII
claim against the union for sexual harassment. She alleged that “despite knowledge of the sexual
harassment of the Plaintiff by union members, the Union[] failed to take timely and appropriate

6 In addition, Edwards’s surreply brief acknowledges that “he has not fully exhausted the allegations of Local 53
failing to refer him for employment opportunities.” (Doc. 27, p. 1.) Consequently, any “failure to refer” claim under
Title VII or the MHRA is also dismissed for failure to exhaust. Stuart v. General Motors Corp., 217 F.3d 621, 630
(8th Cir. 2000) (recognizing that administrative exhaustion is required before filing a Title VII or MHRA claim).
remedial action.” Id. at 833 (cleaned up). The district court dismissed this claim, and the Eighth
Circuit affirmed. Id. at 832-33.
Thorn explained that although the union was “prohibited from causing or assisting
unlawful discrimination by Thorn’s employer, nowhere in either statute do we find language
imposing upon unions an affirmative duty to investigate and take steps to remedy employer

discrimination.” Id. at 832.7 The court further explained that “imposing such a duty would place
unions in an untenable position whenever one member accused another member of causing the
employer to discriminate.” Id. at 833. The plaintiff thus could not state a claim based on “alleged
non-actionable passive acquiescence” by the union. Id.
Here, Edwards has failed to adequately allege that Local 53 itself (as opposed to individual
members) even had knowledge of racial discrimination at PAR. Even if Local 53 did have
knowledge, it had no obligation to “investigate and take steps to remedy employer discrimination.”
Thorn, 305 F.3d at 832. At most, Edwards has alleged “passive acquiescence” by Local 53 instead
of the requisite “active participation.” Id. at 832-33; EEOC v. Pipefitters Ass’n Local Union 597,

334 F.3d 656, 659 (7th Cir. 2003) (“Since the employer is both fully liable for failing to take
effective measures against coworker harassment and far better positioned to apply such measures,
what is to be gained, except litigation clutter, by imposing the same liability on the union?”).
3. All PAR Employees are Also Members of Local 53
The third theory is that Local 53 is liable for the discrimination Edwards endured during
his employment at PAR because all PAR employees are also Local 53 members and/or sit on Local
53’s executive board. (Doc. 8, ¶¶ 16-17, 21, 29-30, 39; Doc. 22, pp. 5-7.) This theory is rejected
under Eliserio v. United Steelworkers of Am. Local 310, 398 F.3d 1071 (8th Cir. 2005). In Eliserio,

7 The statutes at issue were Title VII and the Minnesota Human Rights Act. Id. at 832.
the plaintiff saw racially-harassing graffiti at his employer’s worksite. Id. at 1075. The plaintiff
brought a hostile-work environment claim against the union and argued “the graffiti was almost
certainly created by union members because approximately 11,950 of 12,000 employees at the Des
Moines plant are union members, some of whom held a grudge against” him. Id. at 1077.
Applying Thorn, Eliserio recognized that a union could be liable under Title VII if it “itself

instigated or actively supported the discriminatory acts.” Id. (quoting Thorn, 305 F.3d at 832-33)
(emphasis in original). As a result, Eliserio held the union was not liable simply because some of
its members created the graffiti. Id. Instead, the plaintiff was required—but failed—to show that
the union “as an organization, instigated or actively supported the racially harassing graffiti.” Id.
(citations and quotations omitted) (emphasis supplied);8 see also Webb v. International
Brotherhood of Electrical Workers, 2005 WL 2373869, at * 6 (E.D. Pa. Sept. 23, 2005) (“[W]hile
Webb has alleged that members of Local 654 engaged in the allegedly discriminatory acts while
working for his employers, he has not shown the existence of facts demonstrating that Local 654
itself instigated or actively supported the discriminatory acts.”) (emphasis in original).

Similarly, a fair reading of the Amended Complaint shows that any discrimination occurred
by PAR employees while working for PAR. Even assuming this discrimination occurred, Edwards
does not have a cause of action against Local 53. Eliserio, 398 F.3d at 1077. Edwards was
required, but failed, to plead that Local 53, “as an organization, instigated or actively supported”
the discrimination at PAR. Id. (emphasis supplied). Simply because some of the PAR employees
were also members of Local 53 does not, by itself, state a claim against Local 53. Id.; Jacobs v.

8 Eliserio did find the union could be liable for a hostile work environment based on “no rat” stickers that were
purchased after the plaintiff had complained of racial discrimination. Eliserio, 398 F.3d at 1077-78. This was because
a union official (in his capacity as such) caused the union to purchase and distribute the stickers. Id. at 1075, 1077-
78. In contrast, the Amended Complaint does not allege that a union member or executive board member—acting in
their capacity as such—discriminated against Edwards.
United Steelworkers of Am., 51 Fed. App’x 184, 185 (8th Cir. 2002) (“Jacobs raises many concerns
about his employer’s actions, but we cannot say Jacobs suffered discrimination or retaliation at the
hands of the [union].”). Edwards fails, for example, to allege that a Local 53 member or executive
board member discriminated against him in their capacity as a union official. Compare Eliserio,
398 F.3d at 1077 (noting that an individual “in his capacity as a union official” purchased and

distributed “No Rat” stickers).9
4. Employer/Joint Employer Theory
The final theory is that Local 53 is an employer and/or a joint employer with PAR. (Doc.
8, ¶¶ 5, 45, 51-52.) Edwards summarily alleges that Local 53 “is an employer.” (Id., ¶ 5.)
However, the Amended Complaint does not contain facts that plausibly support this assertion,
including that Local 53 had the power to hire or fire him, or had power over any of the terms of
his employment. Iqbal, 556 U.S. at 678. The joint employer theory is also not well-pled. To
determine whether entities are joint employers, courts generally consider four factors: “(1)
interrelation of operations, (2) common management, (3) centralized control of labor relations[,]

and (4) common ownership or financial control.” Ma. v. Missouri State Univ., 2014 WL
11512555, at * 4 (W.D. Mo. Sept. 3, 2014) (quoting Baker v. Stuart Broad. Co., 560 F.2d 389,
392 (8th Cir. 1977)).
Edwards focuses on the fact that PAR and Local 53 have common management and
members, (Doc. 22, p. 5-6), but that is only one consideration and not enough to state a claim

9 Edwards alleges that Frazee, a PAR employee and Local 53 executive member, fired him from PAR. (Doc. 8, ¶ 39.)
He does not allege that Frazee knew of or otherwise engaged in discriminatory acts. Edwards also alleges that
Younghans, a PAR employee and Local 53 executive member, “appeared unbothered by the race-related comments”
made to Edwards during their employment at PAR. (Id., ¶¶ 29-30.) Based on these allegations, Edwards argues that
these two executive board members “have apparent and actual authority to bind” Local 53. (Doc. 22, p. 6.) But as
discussed throughout, these allegations show that Frazee and Younghans were acting in their capacity as PAR
employees. The Amended Complaint does not allege that either individual was acting in their capacity as an executive
member of Local 53, or that Local 53 would be bound by those acts.
against Local 53. See Eliserio, 398 F.3d at 1077; Thorn, 305 F.3d at 832-33. The other factors
weigh against a joint employer theory. Other than common membership/management, Edwards
does not allege that Local 53 and PAR had interrelated operations, such as interrelated payroll and
insurance, that they shared office space or equipment, or had a common function or purpose. Ma,
2014 WL 11512555, at * 4. Edwards does not allege any facts showing centralized “control of

labor relations, such as policies, schedules, and salaries as well as hiring and firing decisions.” Id.
at * 5. Edwards also does not allege that the two entities have common ownership or financial
control.
For these reasons, Edwards has not plausibly stated a discrimination claim against Local
53 under Title VII, § 1981, or the MHRA.
B. Counts II, V, and VIII—Retaliation
Counts II, V, and VIII assert retaliation claims against Local 53 under Title VII, § 1981,
and the MHRA. Under Title VII, a labor organization cannot “discriminate against any member
thereof . . . because he has opposed any practice made an unlawful employment practice by this

subchapter, or because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To
prevail on a retaliation claim under Title VII and § 1981, a plaintiff must adequately show that
“(1) []he engaged in protected activity; (2) []he suffered a materially adverse employment action;
and (3) the materially adverse action was causally connected to [plaintiff’s] protected activity.”
Wright v. St. Vincent Health Sys., 730 F.3d 732, 737 (8th Cir. 2013). A retaliation claim under the
MHRA contains similar elements. Mo. Rev. Stat. § 213.070.1(2); Mignone v. Mo. Dep’t of Corr.,
546 S.W.3d 23, 37 (Mo. Ct. App. 2018).
The retaliation claims fail for the same reasons as the discrimination claims. Edwards
alleges that Local 53 retaliated by “failing to refer” him employment opportunities, but those
allegations are conclusory and not adequately pled. Iqbal, 556 U.S. at 680.10 Specifically,
Edwards does not identify the individual(s) with authority to refer, does not allege he was qualified
and otherwise entitled to the referral, and does not plausibly show that the “failure to refer” was

connected to a protected activity (as opposed to a nondiscriminatory reason). The other retaliatory
conduct that Edwards relies upon, including his negative evaluation at PAR and termination from
PAR, relate to his PAR employment and not to Local 53.
Consequently, Edwards has failed to plausibly state a retaliation claim against Local 53
under Title VII, § 1981, or the MHRA.
C. Counts III, VI, and IX—Hostile Work Environment
Counts III, VI, and IX assert hostile work environment claims under Title VII, § 1981, and
the MHRA. “Title VII and § 1981 claims alleging a hostile work environment are analyzed under
an identical standard.” Eliserio, 398 F.3d at 1076. To establish such a claim under Title VII or §

1981, a plaintiff must show that: “(1) he or she is a member of a protected group; (2) he or she is
subjected to unwelcome race-based harassment; (3) the harassment was because of membership
in the protected group; and (4) the harassment affected a term, condition, or privilege of his or her
employment.” Stone, 856 F.3d at 1175 (quotations omitted); Ellis v. Houston, 742 F.3d 307, 319
(8th Cir. 2014). A plaintiff “must show both that the offending conduct created an objectively
hostile work environment and that he subjectively perceived the work environment to be hostile.”

10 Edwards’s charge of discrimination checked the “retaliation” box but it does not contain any reference to a “failure
to refer.” (Doc. 23-1, p. 1.) As a result, any retaliation claim under Title VII and the MHRA based on the “failure to
refer” is also dismissed for failure to exhaust.
Eliserio, 398 F.3d at 1076. A hostile work environment claim under the MHRA contains similar
elements. Bram, 564 S.W.3d at 797-98.
As discussed above, Edwards has failed to adequately allege that Local 53 subjected him
to race-based harassment. In addition, Edwards does not allege any conduct by Local 53 that
affected the terms, conditions, or privileges of his membership in the union. For example, he does

not allege that Local 53 refused to file a grievance on his behalf, and the “failure to refer”
allegations are inadequately pled and not exhausted. A hostile work environment may have existed
at PAR, but Edwards has not adequately stated that Local 53 instigated or actively supported it.
Thorn, 305 F.3d at 832-33; compare Dowd v. United Steelworkers of Am., Local No. 286, 253 F.3d
1093, 1103 (8th Cir. 2001) (finding that union could be liable for hostile work environment, in
part, because “the harassment was directly connected to a union-sponsored activity—the strike”).
Edwards also summarily alleges that “Local 53 is liable for the hostile work environment
created by its members because executive officers either ratified or approved the conduct or gave
the discriminatory behavior a ‘rubber stamp’ under the cat paw’s theory.” (Doc. 8, ¶ 52.) This

cursory allegation does not state a claim. First, it fails to specify whether the executive officers
involved were Frazee, Younghans, or someone else, that those unspecified executive officers were
acting in their capacity as such, or “the conduct” they allegedly had authority to ratify or approve.
Second, “[i]n a cat’s paw case, an employer may be vicariously liable for an adverse
employment action if one of its agents—other than the ultimate decision maker—is motivated by
discriminatory animus and intentionally and proximately causes the action.” Bennett v. Riceland
Foods, Inc., 721 F.3d 546, 551 (8th Cir. 2013). “This theory requires that there be a person
possessing both (1) the necessary animus and (2) influence, leverage or control over the
decisionmaker, such that it could be said the decisionmaker was acting at the person’s bidding.”
Edwards v. Lynch, 111 F. Supp. 3d 989, 1003 (W.D. Mo. 2015). As stated, the Amended
Complaint fails to specify the Local 53 individual(s) involved or the conduct that would support
this theory. Moreover, to the extent Edwards relies on a hostile work environment at PAR11 (or at
any other employer), he has not adequately alleged that anyone at Local 53 had sufficient
influence, leverage, or control over that employer. Id.

Consequently, Edwards has failed to plausibly state a hostile work environment claim
against Local 53 under Title VII, § 1981, or the MHRA.
III. CONCLUSION
To be clear, this Order does not suggest that Edwards failed to adequately allege that he
encountered discrimination, retaliation, and/or a hostile work environment at PAR. He has,
however, failed to adequately allege that Local 53 engaged in such conduct. Therefore, and for
the reasons stated herein, Local 53’s Motion to Dismiss (Doc. 11) is GRANTED.
IT IS SO ORDERED.

/s/ Beth Phillips

BETH PHILLIPS, CHIEF JUDGE
DATE: July 1, 2019 UNITED STATES DISTRICT COURT

11 Although not specified in the Amended Complaint, Edwards’s suggestions in opposition argues that Local 53 is
liable for the discrimination of Summers and Boogar under the cat’s paw theory and/or that Local 31 approved and
ratified their conduct. (Doc. 22, p. 7.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10241176. Public record. Not legal advice.