*The Honorable Adrian G. Duplantier, United States

District Judge for the Eastern District of

Louisiana, sitting by designation.

 The Honorable Fernando J. Gaitan, Jr., United 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 (hereinafter Phillips) and his wife, Regina Phillips

(together plaintiffs), appeal from a final order entered in the United

States District Court for the Western District of Missouri dismissing

1

their state law claims against Ford Motor Company (Ford), including

Phillips' claim pursuant to Mo. Rev. Stat. § 287.780 that Ford unlawfully

discriminated against him for exercising his rights under the Missouri

Workers' Compensation Law, Mo. Rev. Stat. § 287.010-.975. Phillips v. Ford

Motor Co., No. 94-
-2-

0632-CV-W-2 (W.D. Mo. May 1, 1995) (order granting motion to dismiss). For

reversal, plaintiffs argue that the district court erred in dismissing the

complaint and, alternatively, Mo. Rev. Stat. § 287.780, as applied by the

district court, violates either the United States Constitution or the

Missouri state constitution. 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 tunnel syndrome resulting

from repetitive work performed in his employment with Ford. He had

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 which

he suffered in 1985. On February 19, 1993, he went to the Ford company

doctor, who referred him to a specialist, Dr. William Benson. Dr. Benson

diagnosed Phillips with arthritis and recommended fusion surgery. Dr.

Benson also opined that the injury was work-related. Dr. Benson forwarded

his diagnosis and recommendation in writing to Ford. Ford placed Phillips

on medical leave. Phillips then filed a workers' compensation claim for

payment 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, with

the uncovered portion charged to Phillips personally. In August 1993,

Phillips was released to perform light duty work. Ford refused to pay

workers' compensation temporary total disability benefits for the interim

period of March 1993 to August 1993. Phillips applied to have Ford's

denial of workers'
 Phillips' application for administrative review of his

2

workers' compensation claim was pending before the division of

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 by

3

operation of 28 U.S.C. § 1445(c) (civil action in state court

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-

compensation benefits reviewed by an administrative law judge of the

division of workers' compensation (the Division), which is within the

department of labor and industrial relations of the state of Missouri.2

See Mo. Rev. Stat. §§ 286.110, 287.450-.490. 

While continuing to pursue administrative review of his workers'

compensation claim, Phillips, along with his wife, Regina Phillips, filed

the present lawsuit in Missouri state court on May 25, 1994. Their

complaint sets forth the following three counts: (Count I) Phillips' claim

of retaliation and discrimination pursuant to Mo. Rev. Stat. § 287.780,

alleging severe economic hardship, emotional and mental distress, and

aggravation of his injuries; (Count II) Phillips' request for punitive

damages; and (Count III) Regina Phillips' claim of loss of consortium.

Joint Appendix at 10-15 (petition for damages). On June 30, 1994, Ford

removed the case to the federal district court for the Western District of

Missouri, pursuant to 28 U.S.C. §§ 1441 and 1446, citing diversity of

citizenship 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,

1994, Ford filed "supplemental suggestions" in support of its motion to

dismiss.
 Although there is no distinct claim of intentional infliction 4

of emotional distress set forth in the complaint, the district

court apparently inferred such a separate claim from the

allegations set forth in Counts I and II of the complaint.

-4-

In support of its motion to dismiss, Ford asserted, among other

things, that Phillips had not stated a claim of unlawful discrimination

under Mo. Rev. Stat. § 287.780, even assuming the facts alleged in the

complaint. Section 287.780 provides:

No employer or agent shall discharge or in any way

discriminate against any employee for exercising any of

his [or her] rights under this chapter [the Missouri

Workers' Compensation Law, Mo. Rev. Stat.

§ 287.010-.975]. Any employee who has been discharged

or discriminated against shall have a civil action for

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:

Plaintiff has cited no legal authority for his

proposition that the denial of medical and disability

benefits constitutes an act of discrimination. The

court finds that to construe the denial of medical

benefits as retaliation or discrimination would open the

door for every claimant who is denied benefits to avoid

the administrative review of such claims required by

Missouri Workers' Compensation Law. Therefore,

plaintiff's claim of retaliation and discrimination must

be dismissed.

Id. at 2. Regarding Phillips' claim of intentional infliction of emotional

distress and Regina Phillips' claim of loss of consortium, the district

4

court further opined:

Because plaintiff's claim is recognized as a claim

under the jurisdiction of the Division of Workers'

Compensation, Missouri courts have held that Missouri

Workers' Compensation law also provides the exclusive

remedy for claims of intentional infliction of emotional
 After plaintiffs filed their notice of appeal, Humphrey was 5

published. In Humphrey, we reversed the district court's denial of

the plaintiff's motion for remand 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 under

Missouri's workers' compensation laws and therefore, by operation

of 28 U.S.C. § 1445(c), the district court lacked removal

jurisdiction over the case regardless of whether it presented a

federal question or there was diversity of citizenship. Id. at

1244-46 & 1245 n.8. Plaintiffs in the present case thereafter

moved in this court to dismiss this appeal for lack of subject

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 30

days of the removal and thus waived their claim of lack of removal

jurisdiction. Accord Williams v. AC Spark Plugs, 985 F.2d 783 (5th

Cir. 1993) (in case removed from state court to federal district

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 had been

improperly removed under § 1445(c); her motion for remand was

denied because she had failed to move for remand within 30 days of

the removal and the district court would have had original

jurisdiction based upon diversity of citizenship if the plaintiff

had filed in federal court). On September 22, 1995, this court

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 the

court). 

-5-

distress attributed to defendant's failure to pay

plaintiff['s] medical expenses. Wood v. Union Elec.

Co., 786 S.W.2d 613, 615 (Mo. Ct. App. 1990).

Accordingly, plaintiff['s] claim of intentional

infliction of emotional distress is also dismissed.

Additionally, plaintiff Regina Phillips' claim of

loss of consortium is dependent upon James Phillips'

claims of retaliation, discrimination, and intentional

infliction of emotional distress. Because these claims

have been dismissed, the loss of consortium claim must

also fail.

Slip op. at 2-3. The district court entered judgment in favor of Ford, and

plaintiffs appealed.5
-6-

Discussion

Dismissal of plaintiffs' claims

Plaintiffs first argue that the district court erred in granting

Ford's motion to dismiss their complaint, focusing particularly on

Phillips' claim that Ford discriminated against him for exercising his

rights under the Workers' Compensation Law, in violation 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 under

§ 287.780, based upon his or her employer's denial of workers' compensation

benefits, is an issue of first impression. They argued that no court had

ever specifically ruled out the possibility of recovering damages on such

a theory. However, after the present appeal was briefed and argued, the

Missouri Court of Appeals decided Felts v. Ford Motor Co., 916 S.W.2d 798

(Mo. Ct. App. 1995) (Felts), involving facts and issues which are

strikingly similar to those presented in the case at bar. In Felts, an

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 thereby 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 the

Division had exclusive original jurisdiction over the plaintiffs' claims.

Id. at 800. On appeal, the plaintiffs argued that the allegations of their

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 satisfy 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 workers' compensation benefits, their claims were subject to the

exclusive rights and
-7-

remedies provided in the state's workers' compensation laws and likewise

were within the exclusive original jurisdiction of the Division, id. at

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-related

injury; (2) he exercised his rights under the workers' compensation laws

by filing a workers' compensation claim seeking payment for medical

treatment; (3) Ford discriminated against him by denying him those and

other requested benefits; and (4) a causal connection existed between

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

category because "Mr. Phillips is making no claim that the on-the-job

injury was itself the cause of the emotional and economic injuries for

which he is seeking compensation under this suit, but rather that those

damages resulted from Ford's post-accident actions." Brief for Appellants

at 14. They further contend that their claims survive because they are not

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 claim

under Mo. Rev. Stat. § 287.780 because the denial of workers' compensation

benefits is not, as a matter of law, discriminatory conduct. Ford further

argues that the mere allegation of a denial of benefits motivated by

retaliatory intent does not, in and of itself, establish a claim under

§ 287.780. If so, Ford argues, every denial of workers' compensation

benefits could be characterized as retaliatory. Consequently, the workers'

compensation administrative process could be circumvented whenever benefits

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 of

negligence, to furnish compensation under the

provisions of this chapter for personal injury or

death of the employee by accident arising out of

and in the course of his [or her] employment, and

shall be released from all other liability therefor

whatsoever, whether to the employee or any other

person. . . .

2. The rights and remedies herein granted to

an employee shall exclude all other rights and

remedies of the employee, his wife, her husband,

parents, personal representatives, dependents,

heirs or next kin, at common law or otherwise, on

account of such accidental injury or death, except

such rights and remedies as are not provided for by

this chapter.

-8-

employee's right to receive benefits under the terms of the Workers'

Compensation Law. Thus, Ford argues, it should not matter how plaintiffs

in this case have characterized their claims; as long as their claims arise

out of the allegation that Ford wrongfully denied workers' compensation

benefits, those claims are subject to the exclusive rights and remedies

provided under the Missouri Workers' Compensation Law. Finally, as a

matter of statutory intent, Ford argues, it could not have been the

Missouri legislature's intent to create parallel remedies and legal avenues

for seeking relief based upon the exact same wrongful conduct (i.e., the

denial of workers' compensation benefits), particularly in light of the

specific language of Mo. Rev. Stat. § 287.120. We agree. 6

We begin our analysis with the observation that the district court's

order does not indicate whether the basis for the dismissal was Fed. R.

Civ. P. 12(b)(1) (lack 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 review, 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, the

district court lacked subject matter jurisdiction to consider plaintiffs'

claims. 

Section 287.780 provides that a civil action for damages may be

brought where an employer discharges or in any way discriminates against

an employee for exercising his or her rights under the Missouri Workers'

Compensation Law. In Hansome v. Northwestern Cooperage Co., 679 S.W.2d

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 right granted by Chapter 287, (3) employer's discharge of or

discrimination against plaintiff, and (4) an exclusive causal relationship

between plaintiff's actions and defendant's actions." In the present case,

Phillips did allege that, while employed by Ford, he exercised his rights

under the workers' compensation laws by filing a claim for medical benefits

based upon an apparent work-related injury. He further alleged that Ford

discriminated against him by denying him medical and temporary total

disability benefits, and "requiring" him to use his own medical insurance

to pay for his surgery. He also alleged that Ford engaged in these

purported acts of discrimination "solely because he exercised his rights

under the Missouri Worker's Compensation Law." Joint Appendix at 11-13

(plaintiffs' petition for damages). 

We hold, however, that Phillips' allegations are insufficient to

state a cause of action under Mo. Rev. Stat. § 287.780 because an employee

who relies upon his or her claim for workers' compensation benefits to

satisfy the second element 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 cannot assert a loss of 7

consortium claim pursuant to Mo. 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 it

were, it would fail for the same reasons that Phillips' § 287.780

claim fails. Thus, we need not 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 the

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

claim under § 287.780 and the district court therefore did not err in

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'

remaining claims are within the exclusive original jurisdiction of the

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 his employer's improper delay in authorizing surgery prevented him

from meeting the employer's guidelines and he was discharged for exercising

his rights under the Workers' Compensation Law; the Missouri Court of

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 exclusive jurisdiction of the

Division); Wiley v. Shank & 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

refusal to provide workers' compensation coverage for surgery).

Specifically, as to Phillips' claim of intentional infliction of emotional

distress, the question 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 employer in Missouri state court,

claiming intentional infliction of emotional distress resulting from a

denial of workers' compensation 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 workrelated injury claim is vested in the Division of Workers' Compensation,

§ 287.510 affords plaintiff a remedy to resolve any dispute over

defendant'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 intentional infliction of emotional

distress on grounds of both lack of subject matter jurisdiction and failure

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 herein granted to an employee shall exclude all other

rights and remedies of the employee [and] his wife . . . at common law or

otherwise, on account of such accidental injury or death, except such

rights and remedies as are not provided for by this chapter." (Emphasis

added.)). See Felts, 916 S.W.2d at 803 ("The loss of consortium claim also

fails. . . . Just as Mr. Felts' claim falls within the scope of the

[Workers' Compensation Law], it follows that Mrs. Felts['] claim must

too."). 

In sum, to the extent plaintiffs have asserted any viable claims in

this action, their rights and remedies must derive exclusively from the

Missouri Workers' Compensation Law and are within the exclusive original

jurisdiction of the Division. See id. at 802-03. The district court

therefore did not err in
-12-

dismissing Phillips' claim of intentional infliction of emotional distress

and Regina Phillips' claim of loss of consortium, insofar as the dismissal

was without prejudice, because the district court lacked subject matter

jurisdiction to consider those claims. 

Constitutionality of the statute

Plaintiffs also argue, in the alternative, that § 287.780, as applied

by the district court violates their state and federal constitutional

rights. They first rely on the so-called "open courts provision" of the

Missouri Constitution, Art. I, § 14, which provides that "the courts of

justice shall be open to every person, and certain remedy afforded for

every injury to person, 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) (quoting

Mahoney v. Doerhoff Surgical Servs., 807 S.W.2d 503, 510 (Mo. 1991) (en

banc)). 

We hold that plaintiffs have not established a violation of the open

courts provision because, to the extent they may have a cause of action

recognized by the substantive law, their right to obtain a remedy is

adequately protected by the administrative review and appeals process

available under the Workers' Compensation Law. See Goodrum v. Asplundh

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 contend that their federal and state constitutional

right to procedural due process has been violated because the district

court "depriv[ed] them of their opportunity to be heard at trial on the

merits of their claim against Ford under
-13-

§ 287.780, and the opportunity to make a submissible case on that claim."

Brief for Appellants at 36. 

Plaintiffs' due process argument is without merit. Phillips is not

being deprived of the opportunity to be heard on his § 287.780 claim; that

opportunity has been afforded in the present case. The right of due

process does not mean that every claim must proceed to trial. Moreover,

to the extent that plaintiffs have raised claims in this civil action which

should have been raised in their administrative action before the Division,

they have not been denied an opportunity to be heard. "`Due process does

not necessarily mean judicial process.'" Goodrum, 824 S.W.2d at 10

(quoting Percy Kent Bag Co. v. Missouri Comm'n on Human Rights, 632 S.W.2d

480, 485 (Mo. 1982) (en banc)). 

Finally, plaintiffs argue that their federal and state constitutional

right to equal protection has been violated because they have been forced

to bear "economic and emotional costs" as a result of Ford's alleged

systematic and wrongful denial of workers' compensation benefits. We

disagree. 

To begin, Ford's private actions are not subject 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 how

egregious, cannot violate the equal protection guarantee of the United

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 constitutionallyprotected suspect or quasi-suspect class (they merely identify with a group

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 the

dismissal of the complaint, except for Phillips' § 287.780 claim, is

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.