### *The Honorable Adrian G. Duplantier, United States

District Judge for the Eastern District o f Louisiana, sitting by designation. The Honorable Fernando J. Gaitan, Jr., Un ited States District 1 

### Judge for the Western District of Missouri. ____________ No. 95-2381

____________ James Phillips; * Regina M. Phillips, * * Appellants, * * Appeal from the United States v. * District Court for the * Western District of Missouri Ford Motor Company, * * Appellee. *

____________ Submitted: November 13, 1995 Filed: May 8, 1996

____________ Before McMILLIAN and LOKEN, Circuit Judges, and DUPLANTIER, * District Judge.

____________ McMILLIAN, Circuit Judge.
James Phillips (here inafter Phillips) and his wife, Regina Phillips (together plaintiffs), appeal from a final order entered in the Unite d States D istrict Court for the Western District of Missouri dismissin g 1 their state law claims against Ford Motor Company (Ford), includin g Phillips' claim pursu ant to Mo. Rev. Stat. § 287.780 that Ford unlawfully discri minated against him for exercising his rights under the Missour i Workers' Compensation Law, Mo. Rev. Stat. § 287.010-.975. Phillips v. For d Motor Co. , No. 94-

### -2-

0632-CV-W-2 (W.D. Mo. May 1, 1995) (order granting motion to dismiss). Fo r reversal, plaintiffs argue that the district cou rt erred in dismissing the complaint and, altern atively, Mo. Rev. Stat. § 287.780, as applied by the distri ct court, violates either the United States Constitution or th e Missouri state consti tution. For the reasons stated below, we modify the district court's order and affirm the order as modified.

Background
Phillips was diagnosed in 1985 with carpal tunn el syndrome resulting from repe titive work performed in his employment with Ford. He ha d corrective surgery in 1986. Ford provided workers' compensation coverage for Phillips' surgery and a disability settlement. Phillips continued to work for Ford.

In early 1993, Phillips began experiencing pain similar to that whic h he su ffered in 1985. On February 19, 1993, he went to the Ford compan y doctor, who referred him to a specialist, Dr. William Benson. Dr. Benson diagno sed Phillips with arthritis and recommended fusion surgery. Dr

. Benson also opined that the injury was work-rela ted. Dr. Benson forwarded his diagnosis and recommendation in writing to F ord. Ford placed Phillips
on medical leave. Phillips then filed a workers' compensation claim for paymen t of medical treatment, including the surgery recommended by Dr

. Benson. Ford refused to pay for the treatment on grounds that the injury was not work-related.

Dr. Benson performed the fusion surgery in March 1993. The surgery
was partially covered by Phillips' personal medical insurance carrier, wit h the uncovered portion charged to Phillips personally. In August 1993 , Phillips was released to perform light duty work. Ford refused to pa y workers' compensation temporary total disability benefits for the interim per iod of March 1993 to August 1993. Phillips applied to have Ford' s denial of workers'

### P hillips' application for administrative review of hi s 2 

### wo rkers' compensation claim was pending before the division o f workers' compensation at the time plaintiffs filed their brief in the present case. Brief for Appellants at 7. Actually, the district court lacked removal jurisdiction b y 3 

### operation of 28 U.S.C. § 1445(c) (civil action in state cour t arising under workers' compensation laws of that state may not be removed). See Humphrey v. Sequentia, Inc. , 58 F.3d 1238, 1244-47 (8th Cir. 1995) ( Humphrey ). However, plaintiffs failed to timely move for remand.

-3- compen sation benefits reviewed by an administrative law judge of th e divisi on of workers' compensation (the Division), which is within th e depa rtment of labor and industrial relations of the state of Missouri. 2 See Mo. Rev. Stat. §§ 286.110, 287.450-.490.

Whil e continuing to pursue administrative review of his workers ' compensation claim, P hillips, along with his wife, Regina Phillips, filed the prese nt lawsuit in Missouri state court on May 25, 1994. Thei r complaint sets forth the following three counts: (Count I) Phillips' claim of retaliation and discrimination pursuant to Mo. Rev. Stat. § 287.780 , allegin g severe economic hardship, emotional and mental distress, an d aggrav ation of his injuries; (Count II) Phillips' request for punitiv e damages; and (Count III) Regina Phillips' claim of loss of consortium

. Joint App endix at 10-15 (petition for damages). On June 30, 1994, For d removed the case to the federal district court f or the Western District of Missouri, pursuant to 28 U.S.C. §§ 1441 and 1446, citing diversity o f citizenshi p as the basis for the district court's original jurisdiction. 3 On October 26, 1994, the following documents were filed with the district court: Ford's motion to dismiss; plaintiffs' opposition to Ford's motion to dismiss; and Ford's reply to plaintiffs' opposition. On November 17, 199 4, Ford filed "supplemental suggestions" in support of its motion t o dismiss.

### Although there is no distinct claim of in tentional infliction 4 

### of emotional distress set forth in the complaint, the distric t court apparently inferred such a separate claim from th e allegations set forth in Counts I and II of the complaint.
-4- In supp ort of its motion to dismiss, Ford asserted, among othe r thi ngs, that Phillips had not stated a claim of unlawful discriminatio n under Mo. Rev. Stat. § 287.780, even assuming the facts alleged in th e complaint. Section 287.780 provides:

No employer or agent shall discha rge or in any way discrim inate against any employee for exercising any of his [or her] rights under this chapter [the Missour i Workers' Compensation Law, Mo. Rev. Stat

. § 2 87.010-.975]. Any employee who has been discharge d or discriminated against shall have a civil action fo r damages against his [or her] employer.

The district court granted Ford's motion to dismiss. Phillips v

. Ford Motor Co. , No. 94-0632-CV-W-2 (W.D. Mo. May 1, 1995). The district court explained:

Plai ntiff has cited no legal authority for hi s prop osition that the denial of medical and disabilit y be nefits constitutes an act of discrimination. Th e court f inds that to construe the denial of medica l benefits as retaliation or discrim ination would open the door fo r every claimant who is denied benefits to avoid the administrative review of such claims required b y Mis souri Workers' Compensation Law. Therefore , plaintiff's claim of retaliation a nd discrimination must be dismissed.

Id. at 2. Regarding Phillips' claim of intentional infliction of emotiona l distres s and Regina Phillips' claim of loss of consortium, the distric t

4 court further opined:

Because plaintiff's claim is reco gnized as a claim under the jurisdiction of the Division of Workers ' Comp ensation, Missouri courts have held that Missour i Work ers' Compensation law also provides the exclusiv e remedy for claims of intentional i nfliction of emotional

### After plaintiffs filed their notice of appeal, Humphrey was 5 

### published. In Humphrey , we reversed the district court's de nial of the plaintiff's motion for rem and of his claim brought pursuant to Mo. Rev. Stat. § 287.780, which had been removed by the defendant under 28 U.S.C. § 1441(b). 58 F.3d at 1239-40, 1247. We held in Humphrey that the plaintiff's § 287.780 claim arose unde r Missouri's workers' compensation laws and therefore, by operation of 28 U.S.C. § 1445(c), the district court lacked remova l jurisd iction over the case regardless of whether it presented a federal question or there was diversity of citizenship. Id. a t 1244-46 & 1245 n.8. Plaintiffs in the present case thereafte r mo ved in this court to dismiss this appeal for lack of subjec t matter jurisdiction and for remand to state court. In response , Ford argued that plaintiffs were not entitled to remand at such a late stage because they had failed to move for remand within 3 0 days of the removal and thus w aived their claim of lack of removal jurisdiction. Accord Williams v. AC Spark Plugs , 985 F.2d 7 83 (5th Cir. 1993) (in case removed from state court to federal distric t court, the plaintiff lost on the merits in a bench trial and then moved for a remand to state court on grounds that the case h ad been imp roperly removed under § 1445(c); her motion for remand wa s denied because she had failed to move for remand within 30 days of the removal and the district court would have had origina l jurisdiction based upon diversity of citizenship if the plaintiff had f iled in federal court). On September 22, 1995, this cour t denied plaintiffs' motion to dismiss the appeal and for remand to state court. Phillips v. Ford Motor Co. , No. 95-2381 (8th Cir

. Sept. 22 , 1995) (order entered by clerk at the directions of th e court).
-5- dist ress attributed to defendant's failure to pa y pla intiff['s] medical expenses. Wood v. Union Elec

. Co. , 7 86 S.W.2d 613, 615 (Mo. Ct. App. 1990)

. Accordingly, plaintiff['s] claim of intentiona l infliction of emotional distress is also dismissed. Additi onally, plaintiff Regina Phillips' claim of los s of consortium is dependent upon James Phillips ' clai ms of retaliation, discrimination, and intentiona l inflict ion of emotional distress. Because these claims hav e been dismissed, the loss of consortium claim mus t also fail.
Slip op. at 2-3. The district court entered judgment in favor of Ford, an d plaintiffs appealed. 5

### -6- Discussion

Dismissal of plaintiffs' claims

Plaint iffs first argue that the district court erred in grantin g Ford's motion to dismiss their complaint, focusing particularly o n Philli ps' claim that Ford discriminated against him for exercising hi s rights under the Workers' Compensation Law, in v iolation of Mo. Rev. Stat. § 287.780. Plaintiffs maintained in their brief and at oral argument that the issue of whether an employee may bring a discrimination claim unde r § 287.780, based upon his or her employer's denial of workers' compensatio n benefits, is an issue of first impression. They argued that no court had ever specifically rul ed out the possibility of recovering damages on such
a theory. However, after the present appeal was briefed and argued, the Missouri Court of App eals decided Felts v. Ford Motor Co. , 916 S.W.2d 798 (Mo. Ct. App. 1995) ( Felts ), involving facts and issues which ar e strikin gly similar to those presented in the case at bar. In Felts , a n employee and his wife sued his employer in Missouri state court alleging that the employer had violated his rights under Mo. Rev. Stat. § 287.780 by denying workers' compensation benefits and th ereby causing, among other things, aggravation of his injuries, pain and suffering, economic hardship , mental and emotional distress, and the wife's loss of consortium. Id. at 799-800. The state trial court dismissed the action, noting that th e Division had exclusiv e original jurisdiction over the plaintiffs' claims. Id. at 800. On appeal, the plaintiffs argued that the allegations of thei r complaint were sufficient to state a cause of action. Id. The Missouri Court of Appeals disagreed, however, and held that (1) the complaint did not s atisfy all four elements of a discrimination claim under Mo. Rev

. Stat. § 287.780, id. at 802-03, and (2) to the extent the plaintiffs were seeking a remedy based directly or indirectly upon the employer's denial of wor kers' compensation benefits, their claims were subject to th e exclusive rights and

### -7-

remedies provided in the state's workers' compensation laws and likewise
wer e within the exclusive original jurisdiction of the Division, id. a t 803.

In the present case, plaintiffs argue that the allegations in their complaint state a claim under Mo. Rev. Stat. § 287.780 because: (1 ) Phillips was an employee of Ford at the time he suffered a work-relate d injury; (2) he exercised his rights under the workers' compensation laws by fil ing a workers' compensation claim seeking payment for medica l treatment; (3) Ford discriminated against him by denying him those an d other requested benefits; and (4) a causal connection existed betwee n Phillips' claim for medical coverage and Ford's denial of benefits. While plaintiffs concede that the Division has exclusive original jurisdiction to decide whether a particular injury is compensable under the Workers ' Compensation Law, they contend that their claims do not fall within that categor y because "Mr. Phillips is making no claim that the on-the-jo b injur y was itself the cause of the emotional and economic injuries fo r which he is seeking compensation under this suit, but rather that thos e damages resulted from Ford's post-accident actio ns." Brief for Appellants at 14. They further contend that their claims survive because they are no t seeking the workers' compensation benefits themselves, but consequential damages that flow from Ford's refusal to pay those benefits. Id. at 16.

In response, Ford argues that plaintiffs failed to state a clai m under Mo. Rev. Stat. § 287.780 because the denia l of workers' compensation benefits is not, as a matter of law, discriminat ory conduct. Ford further argu es that the mere allegation of a denial of benefits motivated b y retal iatory intent does not, in and of itself, establish a claim unde r § 287.780. If so, Ford argues, every denial of workers' compensatio n benefits could be characterized as retaliatory. Consequently, the workers ' compensation administrative process could be circumvented whenever benefit s are denied, even where the source of the dispute is the

### Section 287.120 provides in pertinent part: 6


### 1. Every employer subject to the provisions of this chapter shall be liable, irrespective o f ne gligence, to furnish compensation under th e provisions of this chapter for personal injury o r death of the employee by accident arising out o f and in the course of his [or her] employment, and shall be released from all other liability therefo r wh atsoever, whether to the employee or any othe r person. . . . 2. The rights and remedies herei n granted to an emp loyee shall exclude all other rights an d re medies of the employee, his wife, her husband , parents, personal representatives, dependents , heirs or next kin, at common law or otherwise, on account of such accide ntal injury or death, except such rights and remedies as are not provided for b y this chapter.
-8- empl oyee's right to receive benefits under the terms of the Workers ' Compensation Law. Th us, Ford argues, it should not matter how plaintiffs in this case have characterized their claims; as long as their claims aris e out of the allegation that Ford wrongfully denied workers' compensatio n ben efits, those claims are subject to the exclusive rights and remedie s provide d under the Missouri Workers' Compensation Law. Finally, as a matter of statutory intent, Ford argues, it could not have been th e Missouri legislature's intent to create parallel remedies and legal avenue s for seeking relief based upon the exact same wrongful conduct (i.e., the denial of workers' compensation benefits), particularly in light of th e specific language of Mo. Rev. Stat. § 287.120. We agree. 6
We begin our analysis with the observation that the district court's order doe s not indicate whether the basis for the dismissal was Fed. R

. Civ. P. 12(b)(1) (lac k of subject matter jurisdiction) or Fed. R. Civ. P. 12(b)(6) (failure to state a claim), both of which were asserted by Ford in the district court . In either case, our review of the dismissal is de
novo . Upon de novo r eview, we hold that Phillips failed to state a claim under Mo. Rev. Stat.

### -9-

§ 287. 780 (Count I of the complaint) and, in all other respects, th e district court lacked subject matter jurisdiction to consider plaintiffs' claims.

Section 287.780 provides that a civil action for damages may b e brought where an employer discharges or in any way discriminates against
an employee for exercising his or her rights under the Missouri Workers' Com pensation Law. In Hansome v. Northwestern Cooperage Co. , 679 S.W.2 d 273, 275 (Mo. 1984) ( en banc) ( Hansome ), the Missouri Supreme Court noted "[t]he action authorized by this statute has four elements: (1) plaintiff' s status as employee of defendant before injury, ( 2) plaintiff's exercise of
a righ t granted by Chapter 287, (3) employer's discharge of o r discrimination against plaintiff, and (4) an exc lusive causal relationship between plaintiff's actions and defendant's actions." In the present case , Phillips did allege t hat, while employed by Ford, he exercised his rights under the workers' compensation laws by filing a claim for medical benefit s based upon an apparen t work-related injury. He further alleged that Ford discri minated against him by denying him medical and temporary tota l disability benefits, and "requiring" him to use his own medical insurance to pay for his surgery. He also alleged that Ford engaged in thes e purported acts of discrimination "solely because he exercised his rights und er the Missouri Worker's Compensation Law." Joint Appendix at 11-1 3 (plaintiffs' petition for damages).

We h old, however, that Phillips' allegations are insufficient t o state a cause of action under Mo. Rev. Stat. § 2 87.780 because an employee who r elies upon his or her claim for workers' compensation benefits t o satisfy the second el ement under Hansome cannot then rely upon the denial of that very claim as the basis for alleging "discrimination" to satisfy the third element. In other words, an employer's denial of workers ' compensation benefits -- even if wrongful -- cannot, as a matter of law, constitute the type of wrongdoing that the statute was designed to address

. See

### Ford also argues that Regina Phillips can not assert a loss of 7 

### consortium claim pursuant to M o. Rev. Stat. § 287.780 because that provision only refers to claims by an "employee" against his or her employer. We note that Regina Phillips' loss of consortium claim was not brought pursuant to Mo. Rev. Stat. § 287.780, but if i t were, it would fail for the same reasons that Phillips' § 287.780 claim fails. Thus, we need no t consider Ford's suggestion that an injured employee's spouse can never bring a claim under Mo. Rev

. Stat. § 287.780.
-10- Felts , 916 S.W.2d at 802-03. It would be illogical to construe Mo. Rev. Stat. § 287.780 in a manner that would allow every claimant who has been denied workers' compensation benefits the right to bring a civil action in state court. Such a construction would undo the effect of Mo. Rev. Stat. § 287.120, which provides that the rights and remedies granted by th e Missouri's Workers' Compensation Law exclude all other rights and remedies of the employee, and it would render meaningless the Division's exclusive original jurisdiction . We therefore hold that Phillips failed to state a cla imunder § 287.780 and the district court therefore did not err i n dismissing that claim. 7

In all other respects, this case is nothing more than an effort to obtain compensatory and punitive damages arising, albeit indirectly, out of Ford's denial of workers' compensation benefits. Therefore, plaintiffs ' remain ing claims are within the exclusive original jurisdiction of th e Division. See State ex rel. Standard Register Co. v. Mummert , 880 S.W.2d 925, 926-27 (Mo. Ct. App. 1994) (employee alleged, pursuant to § 287.780, that h is employer's improper delay in authorizing surgery prevented hi m from meeting the employer's guidelines and he was discharged for exercisin g his rig hts under the Workers' Compensation Law; the Missouri Court o f Appeals held that the trial court erred in failing to dismiss the action because the case necessarily required adjudication of an issue under the Workers' Compensation Law and was within the exc lusive jurisdiction of the Division); Wiley v. S hank & Flattery, Inc. , 848 S.W.2d 2, 4 (Mo. Ct. App. 1992) (workers' compensation

### -11-

laws provide exclusive remedy for claims arising out of alleged wrongful refu sal to provide workers' compensation coverage for surgery)

. Specifically, as to Phillips' claim of intention al infliction of emotional distress, the questio n of original jurisdiction was addressed and decided in Wood v. Union Elec. Co. , 786 S.W.2d 613, 614-15 (Mo. Ct. App. 1990 ) ( Wood ). In Wood , the plaintiff sued his employe r in Missouri state court, clai ming intentional infliction of emotional distress resulting from a denial of workers' co mpensation benefits. In affirming the trial court's dismissal for lack of subject matter jurisdiction, the Missouri Court of Appeals explained "[s]ince exclusive jurisdiction over the underlying work

related injury claim is vested in the Division of Workers' Compensation, § 287.510 affords plaintiff a remedy to resolve any dispute ove r defen dant's alleged failure to pay the medical expenses." Id. at 615 ; accord Houston v. Aetna Cas. & Sur. Co. , 701 S.W .2d 207, 208 (Mo. Ct. App. 1985) (affirming dismissal of claim of intention al infliction of emotional distress on grounds of both lack of subject matter jurisdiction and failur e to state a claim). As to Regina Phillips' loss of consortium claim, she is also bound by the jurisdictional constraints imposed by § 287.120 ("The rights and remedies h erein granted to an employee shall exclude all other rights and remedies o f the employee [and] his wife . . . at common law or otherwi se, on account of such accidental injury or death, except suc h rights and remedies as are not provided for by this chapter." (Emphasi s added.)). See Felts , 916 S.W.2d at 803 ("The loss of consortium claim als o fails. . . . Just as Mr. Felts' claim falls within the scope of th e [Worke rs' Compensation Law], it follows that Mrs. Felts['] claim mus t too.").

In sum, to the exten t plaintiffs have asserted any viable claims in thi s action, their rights and remedies must derive exclusively from th e Missouri Workers' Compensation Law and are within the exclusive original jur isdiction of the Division. See id. at 802-03. The district cour t therefore did not err in

### -12-

dismissing Phillips' claim of intentional inflic tion of emotional distress and Regina Phillips' claim of loss of consortium , insofar as the dismissal
was wi thout prejudice, because the district court lacked subject matte r jurisdiction to consider those claims.
Constitutionality of the statute

Plaintiffs also argue, in the alternative, that § 287.780, as applie d by the district court violates their state and federal constitutiona l rights. They first rely on the so-called "open courts provision" of the Missouri Constitution, Art. I, § 14, which provides that "the courts o f justi ce shall be open to every person, and certain remedy afforded fo r every injury to perso n, property or character, and that right and justice shall be administered without sale, denial or delay." This provision has been interpreted to guarantee Missouri citizens "the `right to pursue in the courts the causes of action the substantive law recognizes.'" Powell

v. American Motors Corp. , 834 S.W.2d 184, 191 (Mo. 1992) (en banc) (quotin g Mahoney v. Doerhoff Surgical Servs. , 807 S.W.2d 503, 510 (Mo. 1991) (e n banc)).
We hold that plaintiffs have not established a violation of the open courts pr ovision because, to the extent they may have a cause of actio n
reco gnized by the substantive law, their right to obtain a remedy i s adequat ely protected by the administrative review and appeals proces s
ava ilable under the Workers' Compensation Law. See Goodrum v. Asplund h Tree Expert Co. , 824 S.W.2d 6, 9-10 (Mo. 1992) (en banc) ( Goodrum ) (cited in Felts , 916 S.W.2d 798, 803).

Plaintiffs also cont end that their federal and state constitutional right to procedural due process has been violated because the distric t court "de priv[ed] them of their opportunity to be heard at trial on th e merits of their claim against Ford under

### -13-

§ 287.780, and the op portunity to make a submissible case on that claim." Brief for Appellants at 36.
Plaintiffs' due proc ess argument is without merit. Phillips is not being deprived of the opportunity to be heard on his § 287.780 claim; that opport unity has been afforded in the present case. The right of du e process does not mean that every claim must proceed to trial. Moreover, to the extent that plaintiffs have raised claims in this civil action whic h should have been raised in their administrative action before the Division , they have not been de nied an opportunity to be heard. "`Due process does not necessarily mean judicial process.'" Goodrum , 824 S.W.2d at 1 0 (quoting Percy Kent Bag Co. v. Missouri Comm'n o n Human Rights , 632 S.W.2d 480, 485 (Mo. 1982) (en banc)).
Finally, plaintiffs argue that their federal and state constitutiona l right to equal protec tion has been violated because they have been forced to b ear "economic and emotional costs" as a result of Ford's allege d system atic and wrongful denial of workers' compensation benefits. W e disagree.
To begin, Ford's private actions are not subjec t to equal protection scrutiny. Medical Inst. of Minn. v. National Ass'n of Trade & Tech. Schs. , 817 F.2d 1310, 1312 (8th Cir. 1987) (private action, no matter ho w egregi ous, cannot violate the equal protection guarantee of the Unite d States Constitution). To the extent plaintiffs' equal protection argument is directed at the administration of Missouri's Workers' Compensation Law, plaintiffs have not shown that they are members of a constitutionally

protected suspect or quasi-suspect class (they merely identify with a grou p of individuals who have been denied benefits). Nor have they alleged that
a fundamental right has been infringed. Accordingly, because plaintiffs have failed to assert any legal or factual basis for finding Missouri' s workers' compensation scheme

### -14-

unreasonable in light of the state's legitimate legislative goals, their equal protection argument is meritless.

Conclusion

The order of the district court is modified to provide that th e dism issal of the complaint, except for Phillips' § 287.780 claim, i s without prejudice; otherwise, for the reasons stated above, the district court's order is affirmed.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.