Henson v. Union Pacific Railroad Company

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

R. HENSON, )

)

Plaintiff, )

)

vs. ) Case No. 19-00082-CV-W-GAF

)

UNION PACIFIC RAILROAD )

COMPANY and FOSTER B. )

MCDANIEL, )

)

Defendants. )

ORDER

Now before the Court is Defendant Union Pacific Railroad Company’s (“UP” or

“Defendant”) Motion for Judgment on the Pleadings. (Doc. # 27). Plaintiff R. Henson (“Plaintiff”)

opposes. (Doc. # 32). Also pending is Plaintiff’s Motion for Leave to File Amended Complaint.

(Doc. # 31). Defendant opposes. (Doc. # 34). For the following reasons, Defendant’s Motion for

Judgment on the Pleadings is GRANTED and Plaintiff’s Motion for Leave to File Amended

Complaint is GRANTED.

DISCUSSION

I. BACKGROUND

On December 18, 2018, Plaintiff filed his Petition in the Circuit Court of Jackson County,

Missouri, alleging Defendants had discriminated against him because of his age and retaliated

against him in violation of the Missouri Human Rights Act, Mo. Rev. Stat. § 213 et. seq.

(“MHRA”). (Doc. # 1-1, pp. 4-24 (“Petition”)). Plaintiff alleges that UP had constructively

terminated him and that Foster B. McDaniel, a manager at UP, had aided and abetted in UP’s

scheme to “get rid of him.” (Id. at ¶¶ 30, 34).

Plaintiff alleges a series of comments and events establish that UP was discriminating

against him on the basis of age and that after he filed his Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”) and the Missouri Commission on Human Rights

(“MCHR”), the harassment increased. (Id. at ¶¶ 12-62). Specifically, Plaintiff alleges he was

demoted on April 1, 2016, to the “Truck Desk” position from Supervisor Foreman General I,

following a comment by a younger manager about Plaintiff’s vacation time. (Id. at ¶¶ 12-18).

According to Plaintiff, UP planned to eliminate the Truck Desk position during a restructuring of

the company and moved him to that position to terminate him. (Id. at ¶¶ 21-22). Plaintiff further

alleges his working conditions worsened by having to work longer shifts and UP assigning him

and other older employees to more physically demanding jobs. (Id. at ¶¶ 25, 27).

Plaintiff alleges he repeatedly asked what UP’s plan was for him, but never received an

answer. (Id. at ¶ 28). Plaintiff states that, on or about June 21, 2017, he confronted McDaniel

regarding Plaintiff’s future with the company. (Id. at ¶ 29). McDaniel responded, “don’t worry,

this job will be yours as long as you want it. After you retire the job will be eliminated.” (Id.).

McDaniel was a manager, although it is not clear from the allegations if he was Plaintiff’s manager.

(Id.). Based on this sole comment, Plaintiff alleges McDaniel aided and abetted UP in its scheme

to “get rid of” Plaintiff. (Id. at ¶ 30).

Plaintiff alleges that, following McDaniel’s comment, company officers, including the

managing director, made comments indicating Plaintiff would be terminated or should retire. (Id.

at ¶¶ 31, 33, 44, 55). Plaintiff further alleges that UP made policy and workplace decisions

designed to negatively impact his work. (Id. at ¶¶ 35-38, 45-47, 50-51). Plaintiff was not given

the opportunity to fill a vacancy in a job position that he had previously held, and that position was

given to a younger, less experienced employee. (Id. at ¶¶ 49-51). UP eliminated the Truck Desk

position as of October 15, 2017. (Id. at ¶ 56). Plaintiff was on vacation and was not told where to

report until October 20, 2017. (Id. at ¶¶ 57-58). Plaintiff had been promoted back to his former

position as Supervisor Foreman General I, albeit to a less desirable shift. (Id. at ¶¶ 58-61). It was

not the shift Plaintiff had requested. (Id. at ¶ 62).

On October 25, 2017, Plaintiff filed his Charge of Discrimination. (Id. at ¶ 69). Plaintiff

alleges his working conditions worsened following the filing of his Charge. (Id. at ¶ 70). Plaintiff

recounts two specific incidents of alleged discrimination and/or retaliation. First, the managing

director jokingly stated during a meeting that it might be his last day and added, “[Plaintiff], I need

you to come in on your day off so [Plaintiff’s former boss] can fire you too.” (Id. at ¶ 73). Second,

Plaintiff claims that someone placed a cartoon with a character named Randy on a bulletin board

a few days before his last day. (Id. at ¶ 78). Plaintiff alleges consequently he was forced to resign

and retire on August 1, 2018. (Id. at ¶ 77). Plaintiff does not allege that he amended his Charge

or filed an additional Charge following his termination. (See generally id.).

Plaintiff filed his Motion for Leave to File Amended Complaint on June 7, 2019. (Doc. #

31). The proposed amended complaint does not alter or amend any of the factual pleadings but

does add a count for hostile work environment against Defendant. (See Doc. # 31-1).

II. LEGAL STANDARD

A. Rule 15(a)(2) Leave to Amend Pleading Standard

Under Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave [to

amend] when justice so requires.” Leave to amend should be freely granted unless “there exists

undue delay, bad faith, repeated failure to cure deficiencies by amendments previously allowed,

undue prejudice to the non-moving party, or futility of the amendment.” Popalii v. Corr. Med.

Servs., 512 F.3d 488, 497 (8th Cir. 2008). An amendment is futile if the proposed amended

pleading “could not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of

Civil Procedure.” Zutz v. Nelson, 601 F.3d 842, 850 (8th Cir. 2010).

B. Rule 12(c) Judgment on the Pleadings Standard

After the pleadings have closed, any party may move to have the Court enter judgment on

the pleadings. Fed. R. Civ. P. 12(c). “A motion for judgment on the pleadings should be granted

when, accepting all facts pled by the nonmoving party as true and drawing all reasonable inferences

from the facts in favor of the nonmoving party, the movant has clearly established that no material

issue of fact remains and that the movant is entitled to judgment as a matter of law.” Schnuck

Mkts., Inc. v. First Data Merch. Servs. Corp., 852 F.3d 732, 737 (8th Cir. 2017). Generally, a

Rule 12(c) motion for judgment on the pleadings is reviewed under the same standard as a Rule

12(b)(6) motion to dismiss. Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233 n.3 (8th Cir. 2010).

C. Rule 12(b)(6) Standard

When considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court

treats all well-pleaded facts as true and grants the non-moving party all reasonable inferences from

the facts. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). However, courts are

“not bound to accept as true a legal conclusion couched as a factual allegation” and such “labels

and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)) (internal quotation marks omitted). A Rule 12(b)(6) motion should be granted only if

the non-moving party fails to plead facts sufficient to state a claim “that is plausible on its face”

and would entitle the party to the relief requested. Twombly, 550 U.S. at 570.

III. ANALYSIS

A. Motion for Leave to File an Amended Complaint

Plaintiff seeks leave to amend his complaint to “clarify” it by adding a claim for hostile

work environment. (Doc. # 31, ¶ 4). Plaintiff does not otherwise propose any material changes to

the factual allegations. (Compare Petition with Doc. # 31-1). The Court agrees with Plaintiff that

such an amendment would not prejudice Defendant but does not agree with Defendant that such

an amendment is futile.

To prove a hostile work environment claim under the MHRA, Plaintiff must establish that:

(1) he is a member of a protected group; (2) he was subjected to unwelcome harassment; (3) the

protected characteristic was a contributing or motivating factor in the harassment; and (4) a term,

condition, or privilege of his employment was affected by the harassment. Hill v. Ford Motor Co.,

277 S.W.3d 659, 666 (Mo. 2009) (en banc). “Discriminatory harassment affects a term, condition,

or privilege of employment if it is sufficiently severe or pervasive enough to alter the conditions

of a plaintiff’s employment and create an abusive working environment.” Alhalabi v. Mo. Dep’t

of Nat. Res., 300 S.W.3d 518, 527 (Mo. Ct. App. 2009). “The conduct must be sufficient to create

a hostile work environment, both as it was subjectively viewed by the plaintiff and as it would be

objectively viewed by a reasonable person.” Id.

Accepting Plaintiff’s factual allegations as true, Plaintiff has stated a hostile work

environment claim that is plausible on its face. Plaintiff has pled that comments based on

retirement, an age-dependent factor, were made by managers. See Ferguson v. Curators of Lincoln

Univ., 498 S.W.3d 481, 492 (Mo. Ct. App. 2016) (“Though mere inquiries into the retirement plans

of an employee who is of retirement age do not rise to the level of age discrimination, when (1)

the decision to terminate an employee is based upon an age-dependent factor (such as retirement

eligibility), (2) the employer offers implausible alternate explanations for the termination, and (3)

there is evidence that someone with the ability to influence the decision acted based on age-based

stereotypes, there is sufficient evidence from which a jury can infer that age was a contributing

factor to the termination decision.”) (internal quotation omitted). Plaintiff further pleads that

younger workers were given opportunities that he was not. Although Plaintiff’s purported

demotion to “Truck Desk” is not actionable because it occurred outside the statutory time limit,

“‘prior acts may be used as background evidence in support of a timely claim.’” McKinney v. City

of Kansas City, --S.W.3d--, 2019 WL 1028080, at *3 (Mo. Ct. App. Mar. 5, 2019) (quoting Tisch

v. DST Sys., Inc., 368 S.W.3d 245, 254 (Mo. Ct. App. 2012)). These allegations state a plausible

claim for relief.1 Accordingly, Plaintiff’s Motion for Leave to File an Amended Complaint will

be granted.

B. Motion for Judgment on the Pleadings

Plaintiff concedes he did not exhaust his constructive discharge claim in the traditional

sense by filing a charge or amending his charge following the end of his employment. (Doc. # 32,

pp. 6-8). Rather, Plaintiff argues equitable principles excuse his failure to file. (Id.). However,

these equitable principles do not excuse the failure to exhaust discrete employment actions such

as discharge.

“The MHRA requires that all administrative remedies be exhausted before petitioning the

courts for relief.” Reed v. McDonald’s Corp., 363 S.W.3d 134, 143 (Mo. Ct. App. 2012). “In

order to exhaust all administrative remedies, the claimant must give notice of all claims in the

administrative complaint.” Id. However, “administrative complaints are interpreted liberally in

an effort to further the remedial purposes of legislation that prohibits unlawful employment

practices.” Alhalabi, 300 S.W.3d at 524 (citing Hill, 277 S.W.3d at 670). “Accordingly,

1 Plaintiff has not set forth sufficient facts to establish a plausible hostile work environment claim

against McDaniel. Plaintiff has alleged that McDaniel made one comment: that Plaintiff would

have a job until he retired. One comment, particularly one as benign as this, cannot prove hostile

working conditions. See Wright v. Over-The-Road & City Transfer Drivers, Helpers, Dockmen &

Warehousemen, 945 S.W.2d 481, 509 (Mo. Ct. App. 1997) (“More than a few incidents are

required.”).

administrative remedies will be exhausted as to all incidents that are like or reasonably related to

the allegations contained in the charges filed with the MCHR.” Reed, 363 S.W.3d at 143.

“Further, 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.” Alhalabi, 300

S.W.3d at 525.

That being said, the “reasonable relation” theory does not apply to “discrete acts.” See

Chapman v. Carmike Cinemas, 307 F. App’x 164, 174 (10th Cir. 2009). “Discrete acts,” such as

“termination, failure to promote, denial of transfer, or refusal to hire,” constitutes a separate

actionable unlawful employment practice that starts a new clock for filing charges. Tisch, 368

S.W.3d at 253-54 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14 (2002)).

The United States Supreme Court has held that “a claim that an employer constructively

discharged an employee is no different from a claim that an employer actually discharged an

employee” when computing a limitations period. Green v. Brennan, -- U.S. --, 136 S. Ct. 1769,

1777 (2016). Thus, a constructive discharge claim is also a discrete act and the reasonable relation

theory does not apply to it. Instead, “each discrete incident of [discriminatory or retaliatory]

treatment constitutes its own unlawful employment practice for which administrative remedies

must be exhausted.” Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 851 (8th Cir. 2012)

(quotation omitted). This is equally applicable to discrete acts occurring prior to and after the

filing of a charge. Id. at 852-53.

Plaintiff filed only one charge of discrimination with the MCHR on October 25, 2017, over

nine months before his separation on August 1, 2018. He never filed a charge or amended charge

after (or over) his separation, making it legally impossible for Plaintiff to have exhausted

administrative remedies in connection with a constructive discharge. See, e.g., Thomas v. Sw. Bell

Tel. Co., No. 4:14-CV-01993 ERW, 2016 WL 2622394, at *3 (E.D. Mo. May 9, 2016); Busse v.

Daiichi Sankyo, Inc., No. 4:13-CV-98 CEJ, 2013 WL 1755373, at *3 (E.D. Mo. Apr. 23, 2013).

Therefore, Plaintiff’s constructive discharge claims have not been administratively exhausted and

must be dismissed.

Plaintiff also argues that his Petition was not limited to claims of constructive discharge.

(Doc. # 32, pp. 8-10). As noted above, Plaintiff’s claim that his alleged demotion was

discriminatory is not actionable because it was a discrete act that occurred outside the statutory

time limit. Morgan, 536 U.S. at 113. Although this allegation, if true, may be used as background

for his hostile work environment claim, McKinney, 2019 WL 1028080, at *3, Plaintiff cannot seek

an independent remedy for the demotion. Moreover, any argument that shift or assignment

changes constitute a discrete act is a non-starter. It is a longstanding principle that “[c]hanges in

duties or working conditions that cause no materially significant disadvantage, such as []

reassignment, are insufficient to establish the adverse conduct required to make a prima facie

case.” Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994).2

CONCLUSION

Plaintiff did not exhaust his administrative remedies on the constructive discharge claim.

Accordingly, Defendant’s Motion for Judgment on the Pleadings is GRANTED and Counts I, II,

III, and IV are dismissed.

The addition of a hostile work environment claim against Defendant would not prejudice

Defendant and is not futile. Accordingly, Plaintiff’s Motion for Leave to Amend Pleadings is

2 To the extent Plaintiff is contending he set forth a hostile work environment claim in his original

Petition, that argument is mooted because the Court has granted him leave to add such a claim.

Whether the pre-August 28, 2017 MHRA applies to some, all, or none of hostile work environment

claim is a question better left for another day when it can be fully briefed by the parties.

GRANTED. Plaintiff shall file his Amended Complaint, excluding the constructive discharge

claims, within ten days from the date of this Order.

IT IS SO ORDERED.

/s Gary A. Fenner

GARY A. FENNER, JUDGE

UNITED STATES DISTRICT COURT

DATED: July 15, 2019