United States District Court, W.D. Missouri, Western Division
R. HENSON, Plaintiff,
UNION PACIFIC RAILROAD COMPANY and FOSTER B. MCDANIEL, Defendants.
A. FENNER, JUDGE UNITED STATES DISTRICT COURT.
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.
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 ¶¶
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).
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).
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).
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.).
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).
Rule 15(a)(2) Leave to Amend Pleading Standard
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).
Rule 12(c) Judgment on ...