discrimination hostile work environment retaliation and constructive discharge against defendants union pacific railroad and foster mcdaniel who was the manager of something called the truck desk the defend removed this case to the western district of missouri on the grounds of diversity jurisdiction and alleged that daniel had been improperly joined on the basis of the of the fraudulent jointer doctrine as pleaded that the claims were barred by the statute limitations contained in the missouri human rights act because they were not timely in other words the court said that the then means to the missouri human rights act in august of and seventeen a woman needed supervisor liability and in essence said we're not considering well ignored if you will the claim for a hostile work environment and proceeded to dismiss the claim only fo that they would be barred by the statute of limitations but for the hostile work environment claim i just want to i want to be clear about nature of your argument and yes thank you the question is whether they would be barred we think the retaliation claim is allowed against an individual there are cases directly told in that in the western district of missouri the federal courts because of the wording of the missouri statute is different than the federal retaliation statute it's quote exceedingly broad under the k case almost anything that results in damages is considered retaliation so you do not have to have an adverse employment action to the missouri retaliates sion statute so you're not in kansas anymore if you will your honor but that's the way it works in missouri and that's probably why probably why they have been a judges they didn't like the way it worked it was too if you will prob plaintive so that's all gone now there is no such supervisor liability if that answers your question we believe those claims are still valid and would would be a lie against a mistake or under the under the political structure to the jury we believe that as alleged in the nature of supervisor liability under missouri law in missouri is any pursing person acting in the interest of the employer and has the court held until versus ford that clearly covers a supervisor be that he oversaw this transfer to the truck desk and participated in keeping mr mcdaniel and the other older gentleman in the dark end of missouri law lab building a supervisor isn't just based on direct participation in other words before the date of the statute we allege in the petition of course as you know that he had a confrontation if you will where he told mr macdermot mr hanson that don't worry this job will be yours until you retire from our standpoint construed in favor of the plaintive that means you're going to be stuck at the truck desk encouraging them if you will to resign but the petition also includes the fact that mr mcdaniel  was telling a lie when he did that and it goes on to say that he aided and abetted this scheme to get rid of older employees that theory which may or may not be viable in federal court is directly down main street in missouri under the cox vs kansas city chiefs case in fact that was the whole d him cox as one of the attorneys on that case that you can't have a claim for aids just criminal action in the b two witnesses are allowed to come in and say i also was sent to the truck desk i'm no longer sixty why are you sent they refused to tell me so suggest keeping him in the dark and keep lying to him about why he was there before the day the statute was was the bulk of the allegations the union pacific tries to argue in their brief you know the crux of their argument well anyway even if we say that the bulk of the allegations pertain to things after the effective da so if you're just waiting how much weight you give well at least twenty paragraphs started one paragraph twenty nine deal with what happened from june to august and there's there's at least ten or fifteen in in there including by mr foley who was a direct supervisor and by the way under misery law under the hill case you need not be a direct supervisor to be sued for supervisor liability is just if you're and you don't even have to be in the chain of command is the direct holding nor do you have to allege an adverse employment action so again to defend it and we believe the district court decided this case as if it were under the new law which  they said there's no supervisor liability so the district court dismissed it and held that it it was it was improperly joint later in a couple of his further orders the judge seemed to realize that oh the hostile work environment claimed yes that was properly alleged in the petition he said it was facially plausible the district court said so i'm going to allow you to add it now but only only against the  you can't add it against me can you and in a footnote he said well that's because there's only one incident that led to the petition and i think that may be what what this court thinks well there's only one comment however a motion to read man the court is allowed to pierce the pleadings and take a little further look at than just saying well is there enough here to make it plausible to make it reasonable is in other words is there a possibility a court's going to say yes mr mcdaniel you you have to stay in this case until until trial and they cite no cases of any kind saying that this claim of prison accrued before the effective date the statute under federal law of course under the morgan case the united states supreme court held in two thousand and two that to be timely you only need one any act within the three hundred day window well in one hundred and eighty day window if you look at it from a there is no missouri law that means maybe they should have have a chance to look at that issue before the federal court definitively decides it even though just fenner believe i have to figure this out i've got to get my head around this in his rd order granting summary judgment he did say well we can't have a claim for hostile work environment against mr mcdaniel again that issue wasn't even briefed at that point but he puts in a footnote sorry by the way you know that claim can't fly just because there's only one incident left in effect just parroting back what what the railroad said so that's their position we cite says it was at the time of the injury so when does an injury occur from a hostile work environment well it accumulates so there isn't a definitive date it's when the last act of harassment within one hundred and eighty two or three hundred day window occurs that's when it could be said to could be said to occur but again a classic case of no misery log directly holding that the case should be dismissed and more so it's on the right on that borderline between two statutes we're now everyone knows there's no supervisor that's a clear demarcation but just because the charge was filed after that date for example if the charges were filed before august of two thousand and seventeen i think this court would have no difficulty saying ok that's timely presumably because all of the incidents occurred before that date that are in said charge it was filed a few months after the amendment but it but you look back one hundred and eighty dollars days for timeliness you do not study just the data filing and secondly as this court held long ago i guess you could say in the new film versus  case in neufeld judge arnold judge richard arnold said we don't know for sure what they were thinking when they sent him if you will to this discriminatory place but we can certainly get an insight into that based on his later statements so specifically in the case stands for the proposition that a later statement can cast a shed light on what their intent was so what i'm getting at is the a just comments that were made here and later we have a statement by mr foley that is an old bastard we have a statement by mr mcdaniel simply stating that you were with this earlier railroad when he started out and you know was antique antiqu good morning your honor your balls for union pacific and foster mcdaniel and may have please the court don't worry this job will be yours as long as you want it after you retire the job will be eliminated the sum total of the factual allegations that were raised by mr henson against foster mcdaniel in identifying him as an individual defendant in this lawsuit as alleged in petition that singular comment was made in response to mr henson quote confronting mr mitt mcdaniel as to what would happen you know the statement job would be his as long as he wanted it is not unlawful under the missouri human rights act the only reason mr mcdaniel was named as an individual defendant in this action was because of his missouri citizenship to defeat diversity jurisdiction accordingly district court correctly held daniel was fraudulent he joined to defeat diversity dismissed him and denied the motion rema in numerous allegations against a supervisor patrick fully who was also named as an individual in henson's charge of discrimination yet mr henson did not foley on behalf of jerry england has been referred to in the record and mr henson's briefing in martin few saira both were brought in jackson county both ringback were moved to the united states district court for the western district o missouri and in both cases there was complete diversity because mr foley was a citizen and that is why mr mcdaniel has been named in this case and not mr foley despite there being substantially more allegations in the petition against mr foley the sum total of factual allegations in the petition and mr buchanan has several times referred to mr mcdaniel as being the manager of the truck desk that is not alleged in the petitions you're on your honors all the petition identifies mr mcdaniel as is manager that's done in paragraph eight that's done again in paragraph twenty nine nothing in the petition actually d alleges or explains d the relationship between mr mcdaniel and mr henson all that is  he was a missouri resident and that he made a statement to mr mcdaniel about having a job as long as he as long as he wanted the remaining scant allegations against mr hanssen our legal to look to the petition to d understand what claims mr henson world brought against mr mcdaniel he filed a motion t remain characterize the claims in his petition as alleging age discrimination and retaliation that's in the record of pages eighty dollars eighty one cents is that the petition allege that abetted illegal discriminatory and retaliatory acts that on april st two thousand and sixteen you pacific began a plan to get rid of a discriminate against older workers about henson bringing a hostile work environment claim about henson bringing a harassment claim against mcdaniel or even at all in th the statute of limitations which is what the district court you know the district court did up ruling on mike i know you're trying to probably set it up but i want to just cut to the chase and figure out how all this relates so absolutely your honor and i think it's actually court looked at is that in the discrimination and retaliation counts pleaded by mr hence the sole adverse action alleged was a constructive just charge there is a whole body of authority that have consider that a constructive discharge occurs and is the same as a discharge so it occurs when the employment relationship and so in the constructive discharge context when the resignation occurred the missouri human rights act was a mynd effective august th two thousand and seventeen to eliminate individual liability so mr so after that date it is that mr buchanan is seated there would be no claim under the missouri human rights act against mr mcdaniel as an individual and so that was the basis of the district ruling because only a constructive discharge action was needed and the resignation of mr henson occurred in august two thousand and eighteen so nearly a year after the amended statute went into effect eliminating individual liability therefore there was no claim that there was no colorable claimant or missouri law because big daniel was no longer within the definition of being an employer at that time and that is that is the issue that the court denied remained on was the fact that the a cruel dates was after the effect of the amended it was not a statute of limitations issue your honor looking not only how the petition was construed by mr henson in the move in free man but looking at the counts of the petition itself count one alleged age discrimination with the only stating that a constructive discharge and that's a paragraph eighty five of the petition the retaliation count i think something that is important to point out and i think it's probably been lost a little bit in how these issues were framed but a careful reading of the petition demonstrates that the only alleged protected activity in the petition occurred on october t effective date of the major amendments eliminating individual liability there are no other allegations of protected activity before that date if you look at paragraph twenty eight of the petition alleges mr henson kept repeatedly asking what the plan was for him but never received an answer there's nothing about complaining about age discrimination in that count in that allegation paragraph twenty and confronted mr mcdaniel as to what would happen to him nothing about complaining about these discrimination and not per paragraph forty three mr henson asked mr fully what was the plan for relocating him again new protected opposition to discrimination paragraph forty eight hands and repeal the ask what was to be his future again do protected opposition to discrimination and then in which mr henson reached out in any way or alleged to have reached out in any way to somebody in pacific about anything relating to his job none of those are protected act activities the charge was the only protected activit in this case that occurred after the effective date of the amendments because there can be no law no retaliation as a matter of law before protect activity occurs any type of retaliation alleged in the complaint or in the petition looking at that two paragraphs in the petition that actually use the words hostile work environment neither of which were pleaded as counts so the claim neither of these allegations both of which are conclusory nature implicate defendant mcdaniel whatsoever and here i think is an important point honor is that there has to be some type of agency reason to impose liability against an individual to fund in a hostile work environment but in this situation with an individual manager there is nothing in the petition that establishes that any of the alleged harass or had any relationship with m such that he could be liable for their conduct and mr buchanan is trying to frame it as essential in missouri follows this rule that as long as you're a supervisor you can be individually named responsible but that is not the law of appeals looked at this in the reverse of the big donald's case where the company's presidents was the named individual the fund and the report granted summary judgment and the president's failure finding that there could be no individual liability because the president was not involved in the actual discriminatory conduct and the president did not actually oversee the discriminatory  all of the cases missouri cases imposing individual liability ever choir the supervisor to actively be involved as the either discriminator or overseeing the discrimination and in this situation there are no allegations that mr mcdaniel did none there's no allegations about his relationship to any of the part of any of the persons in this case let alone mr hens additionally mr henson failed to plead specific facts from which the court could reasonably have inferred the mcdaniel aided and abetted unlawful age discrimination and retaliation aiding and abetting the wrongdoing of another requires pleading and proving that the defendant affirmatively act to aid the primary toward fees or to give it a substantial assistance or encouragement there's nothing in the petition other than the conclusion color oblio or reasonably demonstrating that mr mcdaniel was affirmatively acting to aid any of the alleged wrongdoers by giving substantial assistance or recognized instructive discharge does not happen until the resignation occurs and under morgan which is followed by the missouri courts as well you cannot administer it only exhaust a discreet act before it has happened it is it is impossible to have happened and so while mr henson may have said i think somewhere down the line i may have to resign because of this work environment that i'm  at the time of his charge he had not resigned he could not assert as a matter of fact that he was no longer employed by you and so the the consequence of him doing longer being employed nine months later was sorry about that thank you good to go to test ross his point the exhaustion issue it was covered in the in the u s c investigation because of the timing cork the defendant did not get a copy of this charge until june of and eighteen so when he resigned two months later that became part of the e e o c investigation including his resignation letter so by a quirk of timing it is exhausted simply if one looks at the purpose of exhaustion and we brief this in the in our in our case but as as to what they say about the standard here they say we only plead a claim for constructive discharge correct to the extent that they're trying to say that you construe everything in favor of the defendant well even if we do which is not the proper standard for renan at all it's contrary to the standard for a motion to dismiss even so the current true truth of the matter is that you can't have a constructive discharge without discrimination the underlying content is what he didn't mention the nd element the precipitating conduct of course is a pleasant petition in paragraph twenty nine to forty five that occurred before the charges filed in the form of a hostile work environment so you cannot just have a free floating claim for constructive discharge it would be dismissed unless you allege the basis for it which is the element so i think that's that's the court understands that but to say that only one issue only one fact that's incorrect defendant should not be allowed and meant let's make it clear they're trying to say that standard should be construed  petition against the plaintiff on this motion to remain and and secondly don't piers the pleadings even the law of this circuit says yes you can look at summary judgment type evidence he was the manager of what the judge might wonder of the truck desk and that's why he's named why foley isn't named this was the man who was in charge of those three men all over sixty who were sent over to our deal in case the and that's the basis not just that  one comment which if as we said was simply encouraging him to stay in that did enjoy and like his partner mr lamb board who just resigned it may have two thousand and seventeen to quit and so they wouldn't have to fire him