Henderson v. United Auto Worker's Local 249 Union et al

Filing 40

ORDER - the Court GRANTS defendant Ford Motor Company (Ford's) Motion to Dismiss #7 and GRANTS United Auto Workers Local 249 Union (UAW's) Motion to Dismiss #20 and DENIES plaintiff's Motion for Leave to File An Amended Complaint #28 . The Court also DENIES AS MOOT UAW's Motion for Extension of Time to Respond to Plaintiff's Motion for Leave to File An Amended Complaint #33 , DENIES AS MOOT Plaintiff's Motion for Discovery #35 and DENIES AS MOOT Defendants' Motion for Extension of Time to File Dispositive Motions #38 . Signed on 8/11/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Mailed to Michelle Denise Hendeson, P.O. Box 47234, Kansas City, MO, 64188, on 8/14/2017. Modified on 8/14/2017 (Crocker, Susan).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
MICHELLE DENISE HENDERSON,
Plaintiff,
vs.
UNITED AUTO WORKERS LOCAL 249
UNION and FORD MOTOR COMPANY,
Defendants.

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) Case No.: 4:16-CV-00763-FJG
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ORDER
Currently pending before the Court is defendant Ford Motor Company (“Ford’s”)
Motion to Dismiss (Doc. # 7),United Auto Workers Local 249 Union (“UAW’s”) Motion to
Dismiss (Doc. # 20) and plaintiff’s Motion for Leave to File An Amended Complaint
(Doc. 28), UAW’s Motion for Extension of Time to Respond to Plaintiff’s Motion for
Leave to File An Amended Complaint (Doc. # 33), Plaintiff’s Motion for Discovery (Doc.
# 35) and Defendants’ Motion for Extension of Time to File Dispositive Motions (Doc. #
38).
I.

BACKGROUND

Plaintiff’s initial Complaint was filed on July 18, 2016. In her initial Complaint,
plaintiff alleged claims against the defendants for violations of Title VII, Age
Discrimination in Employment Act, Americans with Disabilities Act and the Missouri
Human Rights Act. Ford filed a Motion to Dismiss on November 15, 2016. On
December 7, 2016, plaintiff was directed to show cause on or before December 30,
2016 why the Motion to Dismiss should not be granted. Plaintiff filed a one sentence

response on December 30, 2016 just stating that she requested that the Court not grant
the defendants’ Motions to Dismiss and that she wished to continue to trial. On January
26, 2017, defendant UAW filed a Motion to Dismiss. On February 27, 2017, the court
directed plaintiff to file a substantive response to the Motions to Dismiss on or before
March 20, 2017. On March 20, 2017, plaintiff filed a response stating that after the filing
of her initial Complaint, she discovered a great deal more information that should be
brought before the court. Plaintiff then proceeded to list various causes of action such
as breach of fiduciary duty, negligence, Americans with Disabilities Act, Breach of
Contract, Wrongful Termination, deprivation of rights pursuant to 42 U.S.C. § 1983 and
the Missouri Merchandising Practices Act. On April 24, 2017, plaintiff delivered to the
Court a forty-one page pleading entitled “Amended Civil Complaint” in which she
provides additional details regarding the above referenced causes of action. Attached
to the Amended Complaint are hundreds of pages of medical and mental health reports,
statements and grievances. However, plaintiff did not file this pleading with the Court,
nor does it appear from the Certificate of Service that she served this pleading on
opposing counsel. On May 3, 2017, the Court directed plaintiff to file a Motion
requesting leave to file the Amended Complaint. The Court instructed plaintiff to explain
the reasons why she was seeking leave to amend her Complaint after the expiration of
the deadline and also indicate whether she intended to continue asserting the claims in
her initial Complaint for violations of for Title VII, ADEA and the Missouri Human Rights
Act or whether she concedes that these claims are time barred.
II. STANDARD
In French v. Central Credit Services, No. 4:16CV1654RLW, 2017 WL 3105848

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(E.D.Mo. July 20, 2017), the Court stated:
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, the court
should freely grant leave to amend a pleading when justice so requires.
“[T]he court has broad discretion and will only deny leave to amend in
order to avoid undue delay, where there has been bad faith on the part of
the plaintiff, when amendment would be futile or when amendment would
result in unfair prejudice to the defendants.” Swider v. Hologic, Inc., Civ.
No. 12-1547 (DSD/AJB), 2012 WL 6015558 at *2 (D.Minn. Dec. 3,
2012)(citation omitted). However, “[w]here a party seeks leave to amend a
complaint after the deadline in the applicable case management order has
passed, the [Federal Rule of Civil Procedure] 16(b) good-cause standard
applies first, then the ‘when justice so requires’ standard of Rule 15(a)
applies.” Jo Ann Howard & Assoc., P.C. v. Cassity, No. 4:09-CV-01252ER, 2014 WL 6607077, at *4 (E.D.Mo. Nov. 19, 2014). “Good cause
requires a change in circumstance, law, or newly discovered facts.” Id.
(citing Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 948 (8th Cir. 2012)).
Id. at *1.
To survive a motion to dismiss under 12(b)(6), Aa complaint must contain
sufficient factual matter, accepted as true, to state a claim for relief that is plausible on
its face.@ Ashcroft v. Iqbal, 556 U.S. 662,129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). A pleading that merely pleads Alabels and conclusions@ or a Aformulaic
recitation@ of the elements of a cause of action, or Anaked assertions@ devoid of Afurther
factual enhancement@ will not suffice. Id. (quoting Twombly). ADetermining whether a
complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.@ Id.
at 1950. Under Fed. R. Civ. P. 12(b)(6) we must accept the plaintiff=s factual allegations
as true and grant all reasonable inferences in the plaintiff=s favor. Phipps v. FDIC, 417
F.3d 1006, 1010 (8th Cir. 2005).

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III. DISCUSSION
A. Motion to Amend
1. Good Cause for Leave to Amend
In her Motion for Leave to File an Amended Complaint, plaintiff states that the
“amended complaint maintains the counts and allegations against the same defendants
from the original complaint, but accounts for the significant factual and procedural
developments that have occurred since the original complaint was filed.” (Motion to
Amend, pp. 1-2). Plaintiff then states that she has been at a disadvantage in this case
from the beginning due to severe injuries she suffered in a fire in December 2016.
Plaintiff states that the side effects of being in a medically induced coma hampered her
memory and as a result, her ability to meet the deadlines in the Scheduling and Trial
Order. Additionally, plaintiff states that “[n]one of the factors that may militate against
granting a motion to amend is present in this case. Plaintiff moved swiftly to file these
papers once the Supreme Court’s ruling issued and administrative proceedings
resumed 1. Thus, there is no undue delay in Plaintiff’s request to amend. The newlyalleged facts were entirely unknown – and in fact, not in existence- at the time the
Commission filed its original complaint. Plaintiff is not seeking the amendment in bad
faith or with a dilatory motive.” (Motion to Amend , pp.5-6). Again, the Court is not sure
what “newly alleged facts” plaintiff is referring to, as the facts alleged in the Amended
Complaint occurred between August 2007 and February 4, 2015 and relate to four
different injuries plaintiff suffered while employed by Ford. Plaintiff alleged that she was

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The Court is unsure what plaintiff is referring to here, as there has been no Supreme
Court ruling which impacted plaintiff’s Amended Complaint. Nor is the Court aware of
any administrative proceedings, other than the denial of plaintiff’s charge by the EEOC.
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put on involuntary leave status due to these injuries and despite the Union’s
involvement, Ford has failed to return her to work in a position that would accommodate
her disabilities. Plaintiff’s initial Complaint was filed on July 18, 2016. In her initial
Complaint, plaintiff alleged that she was put on involuntary leave due to on the job
injuries and despite union involvement Ford failed to return her to work in a position that
she can perform within the medical restrictions and in a non-hostile, non-threatening
work environment. Plaintiff also alleged that no one from the Union took steps to return
her to work. She also stated that she was told that she was not allowed to return to the
Ford plant after she was assaulted on November 19, 2014. (Doc. # 5, pp. 6-7).
The only significant difference that the Court can discern between the original
complaint and the amended Complaint, are the causes of action. In the initial
Complaint, plaintiff asserted causes of action under Title VII, Age Discrimination in
Employment Act (“ADEA”), Americans with Disabilities Act (“ADA”) and Missouri Human
Rights Act (“MHRA”). In the Amended Complaint, plaintiff again alleges violation of
ADA, but also adds the the following counts: 42 U.S.C. § 1983; Breach of Fiduciary
Duty; Negligence; Breach of Contract and Wrongful Termination.
Defendants argue that the Motion for Leave to Amend should be denied
because: 1) plaintiff failed to demonstrate good cause and 2) any amendment would be
futile. Defendants state that the deadline in the Scheduling Order to file amended
pleadings was February 24, 2017, however, plaintiff did not deliver her amended
complaint to the Court until April 24, 2017, two months past the deadline. As noted
above, “[g]ood cause requires a change in circumstance, law, or newly discovered
facts.” Jo Ann Howard & Assoc., P.C. v. Cassity, No. 4:09-CV-01252-ER, 2014 WL

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6607077, at *4 (E.D.Mo. Nov. 19, 2014). The Court does not find that plaintiff has
demonstrated that she meets any of these criteria.
The original complaint was filed on July 18, 2016. Plaintiff’s Amended Complaint
was received by the Clerk’s Office on April 24, 2017. The factual premise of both the
original and amended complaints is the same, plaintiff has not added any new factual
information to her amended complaint, that she did not possess before. Nor has
plaintiff alleged that there have been any changes in the laws relating to her claims. The
only change in circumstance that plaintiff has alleged is that she was severely injured
during a fire in December. But, this was six months after the original complaint was filed
and all of the facts and information contained in the amended complaint were known to
plaintiff before she was injured. Thus, the Court does not find that plaintiff has satisfied
the good cause standard for filing an Amended Complaint. However, even if plaintiff
had been able to satisfy this standard, the Court still finds that the Motion to Amend
should be denied because any amendment would be futile.
2. Futility
Defendants state that the motion for leave to file an amended complaint should
also be denied because the amendments would be futile, as they could not withstand a
motion to dismiss. The Court will examine each of the counts alleged in plaintiff’s
Amended Complaint to determine if there are any viable claims.
a. 42 U.S.C. § 1983
In this count, plaintiff states that on July 20, 2013, she was pinned between two
F150 trucks. Plaintiff states that Ford refused to allow her to seek medical treatment or
to call paramedics. Plaintiff states that she has been denied medical treatment and was

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threatened with termination if she did not release her work injury claims. Plaintiff claims
that Ford neglected its duties to plaintiff with regard to her injuries and did not take the
appropriate steps until after the incident to improve the work place conditions.
A private party, however, can be held liable under 42 U.S.C. § 1983 if it
acts under color of state law. . . .Acts of a private party are fairly
attributable to the State so as to be deemed under color of state law for 42
U.S.C. § 1983 purposes if, though only if, there is such a close nexus
between the State and the challenged action that seemingly private
behavior may be fairly treated as that of the State itself. . . .The mere fact
that a business is subject to state regulation does not by itself convert its
action into that of the State. . . .[even though] the regulation is extensive
and detailed.
Newman v. Hernia Mesh Co., No. C17-0076-LTS, 2017 WL 2990860, *4 (N.D.Iowa July
13, 2017)(internal citations and quotations omitted). In the instant case, plaintiff has not
alleged that Ford was a state actor or acted under color of state law when it allegedly
violated her rights. Thus, the Court finds that plaintiff’s § 1983 claim could not withstand
a motion to dismiss and allowing amendment to add this claim would be futile.
b. Americans with Disabilities Act
Plaintiff states that she was injured while working on the job for Ford and these
injuries left her with permanent disabilities. Plaintiff states that despite the Union’s
involvement, Ford failed to accommodate her disabilities. Ford argues that plaintiff’s
claim appears to focus on the alleged failure to accommodate during her employment
as opposed to the termination of her employment. Ford argues that regardless plaintiff’s
claims would be untimely. Plaintiff filed her Charge of Discrimination on March 25,
2016. Ford argues that plaintiff was terminated in February 2015 and thus any
arguments regarding its failure to accommodate plaintiff’s disabilities during her
employment would be time barred.

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Before a plaintiff may file a complaint in federal court alleging violations
of the ADA, the ADEA, or Title VII, she must first exhaust her
administrative remedies.” Colquitt v. St. John’s Mercy Health Service,
Case No. 4:11-CV-1460 (E.D.Mo. Jan.17, 2012)(citing Parisi v. Boeing
Co., 400 F.3d 583, 585 (8th Cir.2005)). Exhaustion is accomplished by
filing a charge of discrimination with the EEOC within 300 days of the
alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e)(1).
Additionally, for claims based on the MHRA, a plaintiff must file a charge
of discrimination with the Missouri Human Rights Commission within 180
days of the discriminatory act. See Mo.Rev.Stat. §213.075(1); Holland v.
Sam’s Club, 487 F.3d 641, 643 (8th Cir.2007)(Plaintiff “must file a charge
of discrimination within 300 days of the occurrence under Title VII and
within 180 days under the MHRA.”).
Luetkemeyer v. Columbia Public Schools, No. 4:13-CV-1110 (CEJ), 2013 WL 5707859,
*2 (E.D.Mo. Oct. 21, 2013).
Plaintiff alleges that Ford terminated her on February 4, 2015, but she also
alleges that she did not find out that she had been terminated until July 31, 2015. “[T]he
time for filing a claim with the EEOC starts running on the date when the employee
receives a definite notice of the termination, not upon [her] discharge.” Riddle v.
Citigroup, 449 Fed.Appx. 66, 69 (2d Cir. 2011)(quoting Flaherty v. Metromail Corp., 235
F.3d 133,137 (2d Cir. 2000)). In Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328
(8th Cir. 1995), the Court stated, “[i]n the context of an ADEA action, our court, following
Ricks, has accordingly held that the limitations period begins to run when the plaintiff
receives notice of a termination decision.” In the instant case, even though plaintiff
states that Ford terminated her on February 4, 2015, she alleges that she did not
receive actual notice of her termination until July 31, 2015. Using July 31, 2015 as the
accrual date, would mean that plaintiff’s claim of ADA discrimination based on her
termination would be timely as it was filed within 300 days of March 25, 2016. However,
only plaintiff’s claim relating to her termination would be timely because her other claims

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of failure to accommodate occurred in 2007, 2009 and 2013.
Finding that the claim is timely however, is only one hurdle that plaintiff’s claim
must surpass. Plaintiff must also sufficiently plead that her termination was based on
her disability. “In order to establish a prima facie case of disability discrimination under
the ADA and MHRA, Plaintiff must show: she is disabled as defined in 42 U.S.C.
§12102(2); (2) she is qualified to perform the essential functions of the job, with or
without reasonable accommodation; and (3) she has suffered an adverse employment
action because of her disability.” Krone v. City of Pine Lawn, No. 4:16CV1801RLW,
2017 WL 1424320, *2 (E.D.Mo. Apr. 20, 2017)(internal citation and quotations omitted).
In Johnson v. Robert McDonald Secretary Dept. of Veterans Affairs, No. 4:15-CV-1869
CAS, 2016 WL 3997072, *5 (E.D.Mo. July 26, 2016), the Court noted in that case that
where the complaint “does not contain any factual allegations as to the nature of
plaintiff’s claimed disability, or that plaintiff was terminated because of her disability. It
therefore fails to state a claim for disability discrimination. See Walz v. Ameriprise Fin.,
Inc., 779 F.3d 842, 845 (8th Cir. 2015).” Id. at *5 (emphasis added). In the instant case
plaintiff asserts that she sustained injuries while working as an Assembly Line Worker
for Ford. She states that these injuries left her with permanent disabilities and despite
the involvement of the Union, Ford failed to accommodate her disabilities in accordance
with the work restrictions placed on plaintiff. (Plaintiff’s Proposed Amended Complaint,
p. 16-17). Plaintiff then also quotes long passages discussing the ADA and what an
employer’s obligations are under the ADA. Plaintiff also includes several examples of
various factual scenarios describing situations where employers are required to make
accommodations. In the last paragraph of this Count, plaintiff states:

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In this case the only accommodations that FORD would have made is a
change in the type of job assignments given to the Plaintiff. FORD
refused to do, instead continued to assign the Plaintiff jobs that required
the Plaintiff to perform certain task functions that continued to aggravate
injuries that the plaintiff sustained on the job, as an Assembly Line
Worker. Due to the Plaintiff working the assigned task contrary to medical
restriction, and as a result of the fear of termination. The injuries that
Plaintiff sustained are now permanent, for which the Plaintiff received
temporary disability for and a ($25,000.00) Twenty-Five Thousand Dollar
settlement.
(Plaintiff’s Proposed Amended Complaint, p. 22). These allegations do not include any
reference to plaintiff’s termination or that Ford terminated her because of her disability.
The allegations relate only to plaintiff’s claim that Ford failed to accommodate her after
her injuries. However, as discussed above, because these injuries occurred in 20072013, they are outside the limitation period. Accordingly, the Court finds that any
amendment based on a violation of the ADA would be futile.
c. Breach of Fiduciary Duty
Plaintiff alleges that Ford denied her medical attention in connection with an
incident that occurred on July 20, 2013 and the Union failed to aid plaintiff in the
enforcement of workmen’s compensation policies concerning workplace injuries.
Plaintiff alleges that the Union failed to enforce the medical restrictions that had been
placed on plaintiff. Plaintiff states that the Union by “not acting in their fiduciary
capacity, the Union acted in complicit fashion with FORD to deprive the Plaintiff of their
right to receive emergency medical treatment, and continued in such denial through the
harassment the Plaintiff endured when the Plaintiff voiced in opposition to FORD who
denied the Plaintiff emergency medical treatment at the time of the injury incident. The
Union Representative failed to act [in] the Plaintiff’s best interest.” (Proposed Amended
Complaint, pp. 23-24).
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Defendants argue that the proposed breach of fiduciary duty claim could not
withstand a motion to dismiss because it is preempted under the Missouri Workers’
Compensation law. Lambrich v. Kay, 507 S.W.3d 66, 77 (Mo.App. 2016). Additionally,
defendants state that plaintiff has not alleged facts which show that there was any type
of a fiduciary relationship between plaintiff and Ford or plaintiff and the Union. The
Court agrees that plaintiff has not alleged any such facts. In Elkhart Metal Fabricating,
Inc. v. Martin, No. 14-CV-00705, 2015 WL 1604852 (E.D.Mo. Apr. 9, 2015), the Court
stated:
There are no Missouri cases, however, that stand for the proposition that
an employer corporation necessarily owes fiduciary duties to its
employees as a matter of law. This does not mean that a fiduciary
relationship can never arise in such a situation. It means such a duty does
not arise automatically due to the nature of the relationship. Instead, a
claimant who wishes to demonstrate the existence of a fiduciary duty
owed by an employer to an employee must plead and prove [these] five
elements . . ..
Id. at *4. The elements of a fiduciary relationship are:
(1) one party must be subservient to the dominant mind and will of the
other party as a result of age, state of health, illiteracy, mental disability, or
ignorance; (2) things of value such as land, monies, a business, or other
things of value, which are the property of the subservient party, must be
possessed or managed by the dominant party; (3) there must be a
surrender of independence by the subservient party to the dominant party;
(4) there must be an automatic and habitual manipulation of the actions of
the subservient party by the dominant party; and (5) there must be a
showing that the subservient party places a trust and confidence in the
dominant party.
Id. (quoting A.G. Edwards & Sons, Inc. v. Drew, 987 S.W.2d 386, 394 (Mo.App.1998)).
In the instant case, plaintiff’s proposed Amended Complaint does not allege the
existence of any of these elements. Accordingly, the Court finds that it would be futile to
allow plaintiff to amend her Compliant to assert a breach of fiduciary duty claim.

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d. Negligence
In her proposed amended Negligence claim, plaintiff stated that it is her position
that “the employer’s (FORD) negligence, having occurred during the course of the
Plaintiff’s employment, gives rise to a compensable claim under Workmen’s
Compensation.” Plaintiff then proceeds to cite to cases from other jurisdictions. Plaintiff
then concludes her claim by stating:
In the final analysis, what we are confronted with here is an act of
negligence by the employer, FORD, FORD’s negligent failure to provide
proper medical care to an employee stricken on the job with a work related
injury sustained as a result of an unsafe work environment. As in the case
of “normal and customary work functions as typical to the assembly line at
FORD,” we are of the view that an “act of negligence” (assuming
arguendo, a duty to act) does constitute “a sudden and tangible
happening, of a traumatic nature.”
(Proposed Amended Complaint, p. 28). As noted above, the court finds that such
negligence claims are preempted by the Missouri Workmen’s Compensation statute.
Indeed, plaintiff seems to acknowledge this in her proposed Amended complaint stating:
“[i]t is the Plaintiff’s position, however, that the employer’s (FORD) negligence, having
occurred during the course of plaintiff’s employment, gives rise to a compensable claim
under Workmen’s Compensation. . . .” (Proposed Amended Complaint, p. 27). Thus, the
Court finds that such an amendment would be futile, due to the preemption of the claim.
e. Breach of Contract
In her Breach of Contract claim plaintiff alleges that the Union failed to protect
her when the supervisory staff failed to provide medical attention to the Plaintiff. Plaintiff
also alleges that the Union failed to act in her best interests when she was threatened
with termination for seeking a reasonable accommodation due to her work related
injuries and for seeking outside medical attention. Plaintiff also alleges that the Union
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failed to act in a fiduciary manner when Ford threatened her with termination for filing a
workmen’s compensation claim and unemployment.
Defendants argue that such a claim would not withstand a motion to dismiss
because plaintiff has not alleged exhaustion of the grievance/arbitration procedures set
forth by the collective bargaining agreement. Defendants state that because the
contract which plaintiff is alleging was breached is the collective bargaining agreement
between Ford and the UAW, § 301 of the Labor Management Relations Act applies and
plaintiff “is required to attempt to exhaust any grievance or arbitration remedies provided
in the collective bargaining agreement.” DelCostello v. Inter. Broth. of Teamsters, 462
U.S. 151, 163, 103 S.Ct. 2281, 2290, 76 L.Ed.2d 476 (1983).
In the factual portion of plaintiff’s proposed Amended Complaint plaintiff states
that on August 17, 2015, she went in grievance. In October 2015, plaintiff states that
she went to the U.S. Government of Nationals union and is still in grievance eight
months later. These alleged facts seem to indicate that plaintiff has started the
grievance procedure with the Union, but it does not appear that at the time that plaintiff
filed her proposed Amended Complaint, those proceedings had concluded. Thus, the
Court finds that plaintiff’s proposed amended breach of contract claim could not
withstand a motion to dismiss because plaintiff has failed to plead all the necessary
elements of the breach of contract claim.
f. Wrongful Termination
Plaintiff also asserts a claim for wrongful termination. Plaintiff states that she
was threatened with termination if she filed for unemployment. Plaintiff also alleges that
Ford denied her medical treatment and threatened her with termination if she did not

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release all of her occupational injury claims. Plaintiff also alleges that she reported
Ford’s unsafe work place conditions to OSHA and she filed health and safety claims
against Ford. In her proposed amended complaint, plaintiff alleged that she was working
under the collective bargaining agreement that was negotiated by the UAW. (Proposed
Amended Complaint, p. 36).
In May v. Pratt Industries (USA), Inc., No. 1:06CV129HEA, 2008 WL 1777409
(E.D.Mo. Apr. 16, 2008), the Court stated:
In Missouri, employees without employment contracts, as articulated
above, are considered at-will employees and can be terminated with or
without cause. . . .Missouri courts, however, have recognized a public
policy exception to the at will employment doctrine. . . .This public policy
exception, like the doctrine itself, is confined to at-will employees. . .
Accordingly, contract employees, those employed for a “definite term” and
who cannot be discharged without just cause, have no state law cause of
action for wrongful discharge. The public policy exception to employmentat-will is a narrow one. . . .Missouri courts have outlined four categories of
public-policy exceptions: (1) discharge of an employee because of his or
her refusal to perform an illegal act; (2) discharge because an employee
reported violations of law or public policy to superiors or public authorities;
(3) discharge because an employee participated in acts that public policy
would encourage, such as jury duty, seeking public office, asserting a right
to collective bargaining, or joining a union; and (4) discharge because an
employee filed a worker’s compensation claim.
Id. at *5 (emphasis added). In the instant case, plaintiff states in her proposed Amended
Complaint that she worked under the UAW’s collective bargaining agreement. The
types of claims that she is alleging in her wrongful termination count are the types of
claims which would be covered under the public policy exception, but as noted by the
Court above, this exception applies only to at-will employees and contract employees
“have no state law cause of action for wrongful discharge.” Accordingly, the Court finds
that plaintiff’s Wrongful Termination count could not withstand a Motion to Dismiss and
thus it would be futile to allow amendment of plaintiff’s Complaint to assert this claim.
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g. Other Claims in Original Complaint
In her original complaint, plaintiff alleged claims for violations of Title VII, ADEA,
Americans with Disabilities Act and the Missouri Human Rights Act. In her Motion for
Leave to Amend, plaintiff stated that the Amended Complaint maintains the counts and
allegations from the original compliant but accounts for the specific factual and
procedural developments that have occurred since the original complaint was filed.
As the Court discussed above with regard to the ADA claim, the Title VII, Age
Discrimination and Missouri Human Rights Act claims would also be untimely. Title VII
and the ADEA also require that they be filed with 300 days of the discriminatory action.
In the original complaint, plaintiff states that she was put on involuntary leave on
January 21, 2014 due to injuries that she sustained and despite union involvement, the
company failed to return her to work that she can perform. Plaintiff also alleges that she
was assaulted by an HR Rep in November 2014 and that no action was taken toward
the person that assaulted her. As noted earlier, plaintiff filed her Charge of
Discrimination on March 25, 2016. So, any alleged discriminatory events occurring in
2014 would be untimely. Even if the Court were to assume that plaintiff was alleging
that her termination (which she allegedly learned about on July 31, 2015) violated these
statutes, she has not alleged that her termination was due to her race, color, sex or age
or disability. In her original Complaint, plaintiff states only:
I was put on involuntary leave on or about 1/21/2014, due to injuries
sustained on the job that have left me with permanent disability bilaterally
in my hand/arms/shoulders/hips. Despite union involvement and my
constant cooperation and inquiries, the company has failed to return me to
work in a position that I can perform within medical restrictions and in a
non-hostile, nonthreatening work environment. I was also assaulted by a
HR Rep 11/19/2014, removed from the premises, and no action was taken
toward the person that assaulted me. I have been told by a UAW rep that I
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am not wanted back at the plant because I did not have a good rapport
with the UAW or Ford.
(Initial Complain, Doc. #5, p. 6). Plaintiff makes a similar claim against the Union in her
initial complaint alleging that despite being a member since 2007, the Union did not take
the necessary steps to return her back to work. Id. at p. 7. These allegations at most
allege a failure to accommodate claim and do not allege that plaintiff was terminated as
a result of or due to a discriminatory purpose. Thus, the Court finds that the allegations
in the original Complaint relating to failure to accommodate are untimely and that
plaintiff fails to state a claim in her original Complaint based on her termination. Thus,
the Court finds that these claims should be dismissed.
IV. CONCLUSION
Accordingly, for the reasons stated above, the Court hereby GRANTS defendant
Ford Motor Company (“Ford’s”) Motion to Dismiss (Doc. # 7) and GRANTS United Auto
Workers Local 249 Union (“UAW’s”) Motion to Dismiss (Doc. # 20) and DENIES
plaintiff’s Motion for Leave to File An Amended Complaint (Doc. 28). The Court also
DENIES AS MOOT UAW’s Motion for Extension of Time to Respond to Plaintiff’s
Motion for Leave to File An Amended Complaint (Doc. # 33), DENIES AS MOOT
Plaintiff’s Motion for Discovery (Doc. # 35) and DENIES AS MOOT Defendants’ Motion
for Extension of Time to File Dispositive Motions (Doc. # 38).

Date: August 11, 2017
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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