United States District Court, W.D. Missouri, Western Division
ORDER GRANTING MOTION TO DISMISS COUNT II OF THE
COMPLAINT AND DENYING MOTION TO REMAND
disability discrimination and retaliation action arises from
Defendant Union Pacific Railroad Company's failure to
hire Plaintiff Richard White, allegedly due to an injury he
incurred while working for a previous employer. Now before
the Court are Defendant's motion to dismiss
Plaintiff's retaliation claim (Doc. 2) and
Plaintiff's motion to remand the case to state court
(Doc. 7). Because the retaliation claim is without merit, the
Court GRANTS the motion to dismiss and DENIES the motion to
alleges that he suffered a spinal injury and filed for
workers' compensation while in the service of a former
employer. He later applied for conductor and engineer
positions with Defendant, noting his prior injury in his job
applications. Defendant interviewed Plaintiff and informed
him that he was conditionally hired pending the results of a
fitness examination. Plaintiff passed the exam, but Defendant
requested additional information regarding his impairment,
which Plaintiff provided. Soon afterward, Defendant notified
Plaintiff that he would not be hired due to his injury.
filed a discrimination claim with the Missouri Commission on
Human Rights (“MCHR”) and the Equal Employment
Opportunity Commission. The MCHR issued him a right-to-sue
letter, and he sued Defendant in the Circuit Court of Jackson
County, Missouri, alleging two counts: that Defendant failed
to hire him due to a disability, in violation of Mo. Rev.
Stat. § 213.010 (Count I), and retaliated against him
for exercising his workers' compensation rights, in
violation of Mo. Rev. Stat. § 287.780 (Count II).
Defendant timely removed the case, invoking the Court's
diversity jurisdiction,  and now moves to dismiss Count II.
Plaintiff, meanwhile, moves to remand the proceeding on the
ground that his retaliation claim was made non-removable by
of action that arise under state workers' compensation
laws generally may not be removed to federal court. 28 U.S.C.
§ 1445(c). This includes retaliation claims, such as
Plaintiff's, brought pursuant to Mo. Rev. Stat. §
287.780. Humphrey v. Sequentia, 58 F.3d 1238, 1246
(8th Cir. 1995). There is an exception, however, when a
plaintiff fraudulently pleads an otherwise nonremovable claim
to avoid federal jurisdiction. See Great N. Ry. Co. v.
Alexander, 240 U.S. 276, 282 (1918) (“[I]n the
absence of a fraudulent purpose to defeat removal, the
plaintiff may by the allegations of his complaint determine
the status with respect to removability of a case[.]”);
Farmers' Bank & Tr. Co. of Hardinsburg, Ky., v.
Atchison, T. & S.F. Ry. Co., 25 F.2d 23, 27 (8th
Cir. 1928). A claim is fraudulently pleaded if it is
“so baseless and colorable as to constitute a
fraudulent attempt” to thwart removal. Farmers'
Bank, 25 F.2d at 29 (discussing claims barred from
removal under the predecessor to 28 U.S.C. § 1445(a));
see also Lackey v. Atl. Richfield Co., 990 F.2d 202,
206-08 (5th Cir. 1993) (analogizing the rule to fraudulent
asserts that Defendant decided not to hire him at least in
part because he exercised his workers' compensation
rights with a former employer. However, the plain text of Mo.
Rev. Stat. § 287.780 squarely precludes this claim. It
authorizes an employee punished for pursuing workers'
compensation to file suit against “his or her
employer” (emphasis added). It provides for no cause of
action against a prospective employer, as Missouri courts
have made clear. See, e.g., Templemire v. W
& M Welding Co., 433 S.W.3d 371, 376 (Mo. 2014)
(listing a plaintiff's “status as an employee of
[the] defendant” as an element of a § 287.280
retaliation claim (internal quotations and citation
omitted)); Lambrich v. Kay, 507 S.W.3d 66, 80
(Mo.Ct.App. 2016) (same); see also Minzy v. Union Pac. R.
Co., No. 4:07-cv-00453-DGK, 2008 WL 11338058, at *7
(W.D. Mo. Aug. 7, 2008) (citing § 287.780 in support of
its conclusion that public-policy retaliation claims fail
where the defendant never employed the plaintiff). Thus,
because Defendant did not hire Plaintiff, it cannot be sued
by him under § 287.780.
arguing otherwise, Plaintiff points to Hayes v. Show Me
Believers, Inc., 192 S.W.3d 706, 708 (Mo. 2006), where
the Missouri Supreme Court held that § 287.780 permits
suits against employers that retaliate against their
employees for filing compensation claims against previous
employers. But there the defendant had employed the
plaintiff, and at no point did the Hayes court
suggest that § 287.780 allowed employees to sue
employers for whom they never worked. See DellingerSci.
App. Intern. Corp., 649 F.3d 226, 227-30 (4th Cir. 2011)
(requiring a direct employer-employee relationship under the
Fair Labor Standards Act, because terms like
“employee” and “employer” do not
exist “in a vacuum”). Indeed, it could not have,
since the statute does not create a cause of action for such
also contends that a reasonable factfinder could conclude
that he was, in fact, Defendant's employee. Yet his
complaint contradicts this position by repeatedly asserting
that he was not hired. It likewise accuses Defendant of
condoning discrimination “instead of employing”
him. And although Plaintiff states that Defendant rescinded a
conditional employment offer, this does not raise the
possibility that the company became his employer. See
Leslie v. Sch. Servs. & Leasing, Inc., 947 S.W.2d
97, 100 (Mo.Ct.App. 1997) (“[M]erely contracting for
future employment is not enough, by itself, to qualify a
claimant as an employee . . . .” (discussing Ott v.
Consolidated Underwriters, 311 S.W.2d 52, 56-57
(Mo.Ct.App. 1958))). Rather, the employer-employee
relationship turns on whether the claimant “worked in
the service of the alleged employer and the employer
controlled those services.” Champion v. J.B. Hunt.
Transp. Inc., 6 S.W.3d 924, 928 (Mo.Ct.App. 1999)
(citation omitted). Plaintiff pleads no facts that would
permit such a finding here. The Court therefore concludes
that his § 287.780 retaliation claim is meritless.
Court GRANTS Defendant's motion to dismiss (Doc. 2) and
DENIES Plaintiff's motion to remand (Doc. 7). Count II of
the complaint is hereby DISMISSED.