United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 20-1966
`___________________________
`
`Randy R. Henson
`
`lllllllllllllllllllllPlaintiff - Appellant
`
`v.
`
`Union Pacific Railroad Company; Foster B. McDaniel
`
`lllllllllllllllllllllDefendants - Appellees
`____________
`
`Appeal from United States District Court
`for the Western District of Missouri - Kansas City
`____________
`
`Submitted: February 18, 2021
`Filed: July 8, 2021
`____________
`
`
`Before SMITH, Chief Judge, WOLLMAN and STRAS, Circuit Judges.
`____________
`
`WOLLMAN, Circuit Judge.
`
`Randy Henson began working for the predecessor of Union Pacific Railroad
`Company (Union Pacific) in 1979. Following more than thirty years with the
`railroad, Henson filed a charge with the Missouri Commission on Human Rights (the
`Commission) and the Equal Employment Opportunity Commission (EEOC) in
`October 2017, alleging a hostile work environment and ongoing age discrimination
`and retaliation. Henson asserted that he had been subjected to position changes and
`
`

`

`harassing comments. Henson retired effective August 1, 2018, at the age of sixty-
`three. Soon thereafter, Henson received a requested right-to-sue letter from the
`Commission.
`
`As relevant to this appeal, Henson filed suit against Union Pacific in Missouri
`state court, alleging age discrimination, constructive discharge, and hostile work
`environment1 claims under the Missouri Human Rights Act (MHRA). Henson also
`sued Missouri resident Foster B. McDaniel, claiming that McDaniel aided and abetted
`Union Pacific in its discriminatory acts. Union Pacific removed the case to federal
`district court2 on the basis of diversity, claiming that McDaniel had been fraudulently
`joined. McDaniel moved to dismiss the claims against him, claiming that Henson’s
`complaint failed to state a claim. Henson moved to remand the case to state court.
`
`Determining that McDaniel had been fraudulently joined to destroy diversity
`jurisdiction, the district court granted McDaniel’s motion to dismiss and denied
`Henson’s motion to remand. After answering the complaint, Union Pacific moved
`for judgment on the pleadings, which was granted on Henson’s constructive discharge
`claim and corresponding age discrimination and retaliation claims. The district court
`later granted Union Pacific’s motion for summary judgment on Henson’s hostile work
`environment claim. We affirm.
`
`I. Motion to Dismiss
`
`Henson argues that the district court erred in denying his motion to remand and
`in dismissing his aiding-and-abetting claims against McDaniel. We review de novo
`
`1Henson’s hostile work environment claim was added via amended complaint
`filed in federal court. The amended complaint set forth no new facts.
`
`2The Honorable Gary A. Fenner, United States District Judge for the Western
`District of Missouri.
`
`-2-
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`

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`a fraudulent joinder challenge, Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.
`2007), “resolv[ing] all facts and ambiguities in the current controlling substantive law
`in the plaintiff’s favor,” Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 811 (8th Cir.
`2003). “[I]t is well established that if it is clear under governing state law that the
`complaint does not state a cause of action against the nondiverse defendant, the
`joinder is fraudulent and federal jurisdiction of the case should be retained.” Iowa
`Pub. Serv. Co. v. Med. Bow Coal Co., 556 F.2d 400, 406 n.6 (8th Cir. 1977).
`“However, if there is a ‘colorable’ cause of action—that is, if the state law might
`impose liability on the resident defendant under the facts alleged—then there is no
`fraudulent joinder.” Filla, 336 F.3d at 810 (footnote omitted).
`
`The MHRA prohibits both discrimination in employment on the basis of age,
`Mo. Rev. Stat. § 213.055(1)(a), and retaliation for opposing unlawful discrimination,
`id. § 213.070.1(2). It provides in relevant part that “[i]t shall be an unlawful
`discriminatory practice for an employer . . . [t]o aid[ or] abet . . . the commission of
`acts prohibited under this chapter.” Id. § 213.070.1(1). Missouri law defines “aiding
`and abetting” as “affirmatively act[ing] to aid the primary tortfeasor” by giving
`“substantial assistance or encouragement” to him. Bradley v. Ray, 904 S.W.2d 302,
`315 (Mo. Ct. App. 1995); see also Markham v. Wertin, 861 F.3d 748, 755 (8th Cir.
`2017). To the extent that the MHRA provided for individual liability prior to August
`2017,3 “Missouri cases have only allowed for [such liability] when the individuals
`directly oversaw or were actively involved in the discriminatory conduct.” Reed v.
`McDonald’s Corp., 363 S.W.3d 134, 139 (Mo. Ct. App. 2012).
`
`3The MHRA was amended effective August 2017. Bram v. AT&T Mobility
`Servs., LLC, 564 S.W.3d 787, 794 (Mo. Ct. App. 2018). The district court applied
`the current version, but Henson argues that the pre-August 2017 version should
`apply. We conclude that dismissal was proper under either standard, and thus we will
`assume without deciding that the pre-2017 version applies here. See R.M.A. ex rel.
`Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 425 n.3 (Mo. 2019) (en
`banc).
`
`-3-
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`

`

`Henson’s complaint fails to make a colorable claim that McDaniel directly
`oversaw or was actively involved in discrimination. The complaint and
`administrative charge allege only two McDaniel-related specific facts: (1) McDaniel
`is a Missouri resident who supervises at least six employees, and (2) “On or abut [sic]
`June 21, 2017, Plaintiff confronted manager Foster B. McDaniel, as to what would
`happen to him. Mr. McDaniel replied, ‘don’t worry, this job will be yours as long as
`you want it. After you retire the job will be eliminated.’” Although Henson asserts
`that McDaniel’s statement was false, this allegation fails to show that McDaniel aided
`and abetted by providing “substantial assistance or encouragement” to Union Pacific
`in its allegedly discriminatory actions. See Stoker v. Lafarge N. Am., Inc., No.
`4:12-cv-0504-DGK, 2013 WL 434049, at *3 (W.D. Mo. Feb. 5, 2013) (complaint
`failed to state a claim of aiding and abetting discrimination when it alleged only that
`the defendant had made statements indicating that he “was out to get” the plaintiff
`and had a close relationship with the discriminating party). The complaint likewise
`fails to allege any McDaniel-specific facts related to Henson’s protected
`activity—filing his administrative charge—and thereby does not make a colorable
`claim that McDaniel retaliated or aided and abetted retaliation against Henson. Cf.
`Keeney v. Hereford Concrete Prods., Inc., 911 S.W.2d 622, 625 (Mo. 1995) (en banc)
`(“Section 213.070 prohibits retaliation ‘in any manner.’ To retaliate is to ‘inflict in
`return.’” (citation omitted)). The complaint’s remaining references to McDaniel are
`broad, conclusory allegations, which are insufficient to state a claim against him. See
`Block v. Toyota Motor Corp., 665 F.3d 944, 950 (8th Cir. 2011) (“The conclusory
`allegations in the complaint . . . are insufficient . . . .”). Dismissal on the basis of
`fraudulent joinder was therefore proper.
`
`II. Motion for Judgment on the Pleadings
`
`Henson argues that the district court erred in granting Union Pacific’s motion
`for judgment on the pleadings on Henson’s constructive discharge claim. The district
`court determined that Henson had failed to administratively exhaust the claim because
`
`-4-
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`

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`he resigned from Union Pacific after filing his charge and never filed an amendment
`expressly alleging constructive discharge. The district court further determined that
`such a discrete claim could not be “reasonably related” to the charged claims.
`
`We review de novo a grant of “judgment on the pleadings, viewing all facts
`pleaded by the nonmoving party as true and granting all reasonable inferences in
`favor of that party.” Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009)
`(cleaned up). Judgment on the pleadings is proper when “no material issue of fact
`remains to be resolved and the movant is entitled to judgment as a matter of law.” Id.
`(citation omitted).
`
`Missouri law requires plaintiffs to exhaust their administrative remedies prior
`to bringing MHRA claims. Mo. Rev. Stat. § 213.075.1. “[E]xhaustion requires a
`claimant to give notice of all claims of discrimination in the administrative complaint,
`but administrative complaints are interpreted liberally in an effort to further the
`remedial purposes of legislation that prohibits unlawful employment practices.”
`Alhalabi v. Mo. Dep’t of Nat. Res., 300 S.W.3d 518, 525 (Mo. Ct. App. 2009).
`Because “administrative remedies are deemed exhausted as to all incidents of
`discrimination that are like or reasonably related to the allegations of the
`administrative charge[,] . . . the scope of the civil suit may be as broad as the scope
`of the administrative investigation which could reasonably be expected to grow out
`of the charge of discrimination.” Id. However, “it is not reasonable to expect the
`[investigating agency] to look for and investigate [discrete] adverse employment
`actions if they are nowhere mentioned in the administrative charge.” Parisi v. Boeing
`Co., 400 F.3d 583, 586 (8th Cir. 2005); see also Lin v. Ellis, 594 S.W.3d 238, 242
`(Mo. 2020) (en banc) (“In deciding a case under the MHRA, [state] appellate courts
`are guided by both Missouri law and federal employment discrimination caselaw that
`is consistent with Missouri law.” (citation omitted)).
`
`-5-
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`

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`“Constructive discharge occurs when an employer deliberately renders an
`employee’s working conditions so intolerable that the employee is forced to quit his
`or her job.” Wallingsford v. City of Maplewood, 287 S.W.3d 682, 686 (Mo. 2009)
`(en banc). A constructive discharge is a discrete act of discrimination or retaliation
`that stands separate and distinct from the continuing violation of a hostile work
`environment. See generally Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) (“[In the
`claim-accrual context], a claim that an employer constructively discharged an
`employee is no different from a claim that an employer actually discharged an
`employee.”); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112–13 (2002);
`see also Wallingsford, 287 S.W.3d at 686 (“Claims of constructive discharge often
`include evidence of subtle discrimination in the form of social coercion, demotions
`or changes in job responsibilities. As a result, constructive discharge is a
`fact-intensive inquiry.”).
`
`Henson argues that his charge administratively exhausted his constructive
`discharge claim because the claim is “reasonably related” to his charge allegations.
`As potentially relevant to his constructive discharge claim, Henson’s charge alleged:
`
`I felt I was being set up to fail so that when I did the company could
`terminate me. Furthermore, the company was conveniently assigning
`older employees to jobs that were physically demanding, all in their [sic]
`plan to set us up to fail and terminate us.
`
`* * *
`
`We were not included nor [sic] considered as part of the team. Again,
`the company was pushing older employees out.
`
`* * *
`
`The continuing pattern of the above events are [sic] wholly directed as
`a means into a forced retirement and a termination of a loyal 38 years of
`distinguish [sic] service. There is no foreseeable trend that indicates that
`
`-6-
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`

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`the Union Pacific Railroad values my extensive knowledge and
`experience in favor of eliminating my position. The current
`climate/environment of the company is hostile towards workers like me,
`older, and it is in favor of the younger generation workers. We, the
`older employees, are constantly being set up for failure and in [sic]
`working environment that offers no means of success, except to accept
`the conditions of career surrender, which I am not yet willing to do.
`
`We conclude that Henson’s constructive discharge claim is not reasonably
`related to his charge allegations. Henson did not assert in his charge that he had been
`or was about to be constructively discharged. Cf. Reed, 363 S.W.3d at 144
`(constructive discharge claim not reasonably related to discrimination claims when
`plaintiff’s charges “did not even state that [she] no longer worked for [the defendant]
`nor any facts relating to intolerable working conditions”). But see Wedow v. City of
`Kan. City, 442 F.3d 661, 674–75 (8th Cir. 2006) (post-charge-filing retaliation claims
`reasonably related when charge stated that acts of retaliation were “ongoing and
`continuing” and when subsequent retaliatory acts were “of identical character” to
`charged acts); Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 852 n.1 (8th Cir.
`2012) (per curiam) (distinguishing Wedow and characterizing the court in Wedow as
`“[thinking] it was unnecessary for the complainants to file a new administrative
`charge with respect to each continuing incident of retaliation” that had already been
`alleged). Indeed, Henson’s assertion that he was “not yet willing to” “accept the
`conditions of career surrender” despite feeling like “[w]e, the older employees, are
`constantly being set up for failure” is evidence to the contrary. Cf. Green, 136 S. Ct.
`at 1778 (“An employee who suffered discrimination severe enough that a reasonable
`person in his shoes would resign might nevertheless force himself to tolerate that
`discrimination for a period of time.”). Henson’s alleged constructive discharge did
`not occur until approximately nine months after his charge had been filed. And
`Henson’s allegation that “[t]he continuing pattern of [alleged discrimination is]
`wholly directed as a means into a forced retirement and a termination” is more akin
`to merely checking a form’s “continuing violation” box than to making the
`
`-7-
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`

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`substantive allegations necessary to administratively exhaust a constructive discharge
`claim. Cf. Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002) (concluding
`that merely checking the “sex discrimination” box on the charge form and making a
`conclusory allegation—in contrast to “a long, particularized account”—was
`insufficient to establish a reasonable relationship between the facts alleged in the
`charge and a sex discrimination claim), overruled in part on other grounds by Jones
`v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).
`
`Putting aside the district court’s conclusion that, as a matter of Missouri law,
`the reasonable relation theory cannot apply to post-charge discrete discriminatory
`acts,4 we cannot conclude that based on Henson’s charge as submitted the
`administrative investigation would have reasonably included his alleged constructive
`discharge claim. The claim was therefore not reasonably related to the charge
`allegations, and judgment on the pleadings was proper.
`
`4The Tenth Circuit interprets Morgan as wholly overruling the reasonable
`relation theory as it relates to subsequent discrete acts. See, e.g., Chapman v.
`Carmike Cinemas, 307 F. App’x 164, 174 (10th Cir. 2009) (concluding that “[t]he
`‘reasonable relation’ theory is no longer good law in cases involving discrete, easily
`identifiable incidents” such as constructive discharge). The district court relied on
`this Tenth Circuit precedent to conclude that “the ‘reasonable relation’ theory does
`not apply to [subsequent] ‘discrete acts’” such as Henson’s constructive discharge
`claim. D. Ct. Order of July 15, 2019, at 7 (citing id.). We do not agree that the
`Missouri Supreme Court would necessarily adopt the Tenth Circuit’s restrictive
`interpretation of the reasonable relation theory. See Wedow, 442 F.3d at 673
`(declining to adopt the Tenth Circuit’s view of Morgan and concluding that “[w]hile
`our court has narrowed its view of what subsequent acts are sufficiently related to be
`within the scope of the properly filed administrative charges, we have not wholly
`abandoned the theory that reasonably related subsequent acts may be considered
`exhausted”).
`
`-8-
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`

`

`III. Motion for Summary Judgment
`
`Henson also argues that the district court erred in granting summary judgment
`in favor of Union Pacific on his hostile work environment claim.
`
`We review de novo a district court’s grant of summary judgment. LeGrand v.
`Area Res. for Cmty. & Hum. Servs., 394 F.3d 1098, 1101 (8th Cir. 2005). To prevail
`on an age-based hostile work environment claim under the MHRA, a plaintiff must
`show, in relevant part, that he was harassed, that his age was either a motivating or
`contributing factor in the harassment,5 and that “a term, condition, or privilege of [his]
`employment was affected by the harassment.” McGaughy v. Laclede Gas Co., 604
`S.W.3d 730, 748 (Mo. Ct. App. 2020). A plaintiff’s term, condition, or privilege of
`employment is affected by harassment only “if [the harassment] is sufficiently severe
`or pervasive . . . to alter the conditions of a plaintiffs [sic] employment and create an
`abusive working environment.” Alhalabi, 300 S.W.3d at 527. Accordingly, even
`“some conduct well beyond the bounds of respectful and appropriate behavior is
`nonetheless insufficient” to be severe and pervasive. Paskert v. Kemna-ASA Auto
`Plaza, Inc., 950 F.3d 535, 538 (8th Cir. 2020).
`
`Henson contends that the record contains sufficient evidence of age-based
`harassment.6 Many of the incidents, however, are either unrelated to his age or do not
`
`5We agree with the district court that the parties’ dispute over whether this case
`is governed by the “motivating” or “contributing” standard is immaterial.
`
`6Henson points to evidence of the following: a manager asserted that Henson
`had too much vacation time; unknown employees twice posted overtime- or
`intelligence-related jokes about Henson; Union Pacific temporarily transferred
`Henson—without changing his title, pay, or benefits—to a different position at which
`he worked longer hours; and a manager commented, “Man. They sure like f---ing
`you. If I had your time in, I wouldn’t put up with it. I’d pull the pin and get out of
`here.”
`
`-9-
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`

`

`rise to the level of harassment. See Moses v. Dassault Falcon Jet-Wilmington Corp.,
`894 F.3d 911, 922 (8th Cir. 2018) (concluding that the plaintiff “has not linked any
`of these allegedly harassing actions to his age . . . . [and therefore] has failed to show
`that the harassment resulted from his membership in a protected class”). Two
`incidents involving Union Pacific Manager Patrick Foley could be construed as age-
`related harassment. Henson alleges that Foley made comments about Henson no
`longer working for Union Pacific and on one occasion asked Henson if he had
`considered retirement. When Henson responded that he did not intend to retire, Foley
`remarked, “Well, if it makes any difference in your retirement plans, your job’s going
`to be gone by Halloween.” Foley’s questions appear to be a legitimate retirement
`inquiry—given Foley’s managerial planning interests, Henson’s understanding that
`“your job” meant his current position—not necessarily his employment with Union
`Pacific—and the likelihood that Henson’s role would soon change. See Cox v.
`Dubuque Bank & Tr. Co., 163 F.3d 492, 497 (8th Cir. 1998) (collecting cases and
`concluding that “neither state nor federal law prohibits an employer from making
`retirement inquiries reasonable under the circumstances” (internal quotation marks
`omitted)). On another occasion, Henson asked Foley for a locomotive-lifting device,
`to which Foley responded by handing Henson a printed photo of an electric motorized
`chair that contained an image of Henson’s face pasted onto the chair seat. Foley
`allegedly stated, “Old bastards like you need a lifting device. Here’s your electric
`chair.” Assuming that this incident constituted age-related harassment, it alone did
`not rise to the level of harassment “so intimidating, offensive, or hostile that it
`poisoned the work environment.” Watson v. Heartland Health Labs., Inc., 790 F.3d
`856, 861 (8th Cir. 2015) (citation omitted).
`
`We therefore conclude that summary judgment was properly granted in light
`of the lack of evidence constituting age-based harassment sufficiently severe or
`pervasive to establish the existence of a hostile work environment.
`
`-10-
`
`

`

`Conclusion
`
`The judgment is affirmed.
`______________________________
`
`-11-
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`