Full Opinion (html_with_citations)

                United States Court of Appeals
                             For the Eighth Circuit
                          ___________________________

                              No. 22-2922
                      ___________________________

                              Colleen M. Johnson

                                    Plaintiff - Appellant

                                       v.

   Midwest Division - RBH, LLC, doing business as Belton Regional Medical
                     Center; Patrick Avila; Nicole Pasley

                                  Defendants - Appellees
                                ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                         Submitted: September 21, 2023
                           Filed: December 11, 2023
                                 ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.


      After nine months on medical leave, Colleen M. Johnson told Midwest
Division-RBH, LLC—doing business as “Belton Regional”—that she could not
give a date when she would return to work. The next day, Belton Regional fired
her. She sued in state court. After the case was removed, the district court 1
dismissed the common law claims and later granted summary judgment on her
claims under the Missouri Human Rights Act (“MHRA”). Having jurisdiction
under
28 U.S.C. § 1291
, this court affirms.

                                        I.

       Johnson suffers from heart-related issues, necessitating a cardiologist’s
care for more than a decade. Belton Regional knew of her condition when hiring
her, at age 61, to lead its Oncology Department in January 2017. Three months
later, Patrick Avila became Chief Operating Officer, and thus Johnson’s direct
supervisor. Within a year and a half, he presented her with a “coaching
document.”

      A year later, Johnson notified Belton Regional’s leadership and human
resource officers that Avila created a toxic environment, specifically by bullying
employees. Two months later, he gave her a disciplinary warning. They
discussed the expectation that she would not foster a “we/they environment”
between staff and administration. Avila also issued her a Disciplinary/Corrective
Action Form and a Performance Improvement Plan about staff communication
and managing labor.

       Four days later, Avila gave Johnson a final disciplinary warning, citing her
effort to “effectively shut down any attempts at the communication process”
during their disciplinary meeting. This final warning stated that her acts ran
“counter to the Behavioral Standards set by Belton Regional” and she was
expected to listen to feedback and be more receptive to coaching. Further:
“Failure to adhere to these requirements will result in termination.”



     1
      The Honorable Brian C. Wimes, United States District Judge for the
Western District of Missouri.
                                -2-
        Within five days, Johnson requested short-term disability leave. Belton
 Regional approved it. Three weeks later, she called Belton Regional’s ethics
 hotline. She did not refer to any discrimination, though she did tell the
 investigator that Avila had engaged in bullying.

       While on leave, Johnson wrote the investigator identifying others who had
 voiced concerns about Avila’s workplace behavior. The coworkers were of
 various ages, with unknown disability statuses. According to her written
 statement, she was subject to a hostile work environment based on Avila’s
 workplace conduct (she did not reference anything about age or disability).

       While Johnson was on leave, Nicole Pasley began performing Johnson’s
 job. Shortly after Pasley began, Avila asked Human Resources when Johnson
 would return to work. When Avila learned Johnson would not be back for
 months, he called it the “best case scenario/result.”

       After Johnson had been on leave for a total of nine months, Belton
 Regional’s vice president of HR asked Johnson when she might be able to return
 to work. She replied that her medical providers had not released her to return.
 The next day, Belton Regional terminated her employment.

       Johnson sued in state court. After the case was removed, the district court
 dismissed the common law claims, then granted summary judgment on the
 MHRA claims.

                                        II.

                                        A.

      Johnson argues that the district court erred in denying remand and ruling that
the MHRA preempted her common law claims. Johnson asserted three common
law claims: intentional or negligent infliction of emotional distress against Avila;
                                        -3-
defamation against both Belton Regional and Pasley (her replacement); and
conversion/destruction/trespass of personal property against both Belton Regional
and Pasley. Johnson, Avila, and Pasley are citizens of Missouri. Belton Regional
is a citizen of Louisiana and Tennessee. This court reviews de novo the district
court's denial of the motion to remand, as well as the denial of the motion to
dismiss. In re Prempro Prods. Liab. Litig.,
591 F.3d 613, 619
 (8th Cir. 2010),
quoting Menz v. New Holland North America, Inc.,
440 F.3d 1002, 1004
 (8th Cir.
2006).

       Diversity jurisdiction requires an amount in controversy greater than
$75,000 and complete diversity of citizenship.
28 U.S.C. § 1332
(a). Fraudulent
joinder is an exception to the complete diversity rule. Prempro,
591 F.3d at 620
.
“Fraudulent joinder occurs when a plaintiff files a frivolous or illegitimate claim
against a non-diverse defendant solely to prevent removal.”
Id.
 “Where
applicable state precedent precludes the existence of a cause of action against a
defendant, joinder is fraudulent.” Filla v. Norfolk S. Ry. Co.,
336 F.3d 806
, 810
(8th Cir. 2003). Joinder is not fraudulent if state law might impose liability on
the resident defendant under the facts alleged. Id. “All doubts about federal
jurisdiction should be resolved in favor of remand to state court.” Prempro,
591 F.3d at 620
.

       The MHRA says: “This [Human Rights Act] chapter, in addition to
chapter 285 [Employer and Employees Generally] and chapter 287 [Workers’
Compensation Law], shall provide the exclusive remedy for any and all claims
for injury or damages arising out of an employment relationship.” § 213.070.2,
RSMo Supp. 2017.

      Johnson seeks remand of this case, asserting that the three common law
claims are “independently actionable” and thus the Missouri defendants were not
fraudulently joined. In two of her common law claims, Johnson alleges that
Pasley was “acting within the course and scope of her employment with
defendant” Belton Regional. Cf. Matthews v. Syncreon, US, Inc., 2020 WL
                                       -4-
6538332, at *3 (W.D. Mo. Nov. 6, 2020) (remanding where the plaintiff
“sufficiently alleges, in the alternative, that his assault and battery allegations
occurred outside the scope of his employment relationship with Defendants”);
T.F. v. BB St. Louis, LLC,
2021 WL 494795
, at *2 (E.D. Mo. Feb. 10, 2021)
(remanding where plaintiff did not allege the tort was “in the scope of” the
individual defendant’s (or the plaintiff’s) employment); Alst v. Mo. CVS
Pharmacy, LLC,
2020 WL 2319882
 (W.D. Mo. May 11, 2020) at * 2
(remanding where the plaintiff alleged that the conduct occurred “outside and
beyond the scope of her employment”).

       Also, Johnson brings these two claims against both her employer and
Pasley, based on the same facts. See Winfrey v. Ford Motor Co.,
2020 WL 1558117
, at *2 (W.D. Mo. Apr. 1, 2020) (ruling that common law claims were
preempted by MHRA where they arose “from the same factual allegations
underlying Plaintiff's MHRA claims”). By the pleadings and the facts, Johnson’s
claims against Pasley and Belton Regional for defamation and
conversion/destruction/trespass of personal property arise out of the employment
relationship, and are thus preempted by the MHRA. See § 213.070.2, RSMo
Supp. 2017.

       Johnson’s third common law claim (against Avila alone) also arises out of
an employment relationship. In this claim for unlawful infliction of emotional
distress, Johnson alleges that Avila inflicted “discrimination and harassment” by
“criticism and harassment.” Because these are the same factual allegations
underlying the MHRA claims, the common law claim against Avila is preempted
by the MHRA. See § 213.070.2, RSMo Supp. 2017.




                                       -5-
       The district court properly ruled that joinder of Avila and Pasley was
 fraudulent, resulting in complete diversity. The district court correctly denied
 remand and properly dismissed the common law claims.2

                                        B.

        “This court reviews de novo a grant of summary judgment.” Torgerson v.
 City of Rochester,
643 F.3d 1031, 1042
 (8th Cir. 2011) (en banc). Summary
 judgment is proper “if the movant shows that there is no genuine dispute as to
 any material fact and the movant is entitled to judgment as a matter of law.” Fed.
 R. Civ. P. 56(a). To create a genuine dispute of fact, “the mere existence of a
 scintilla of evidence in support of the plaintiff’s position will be insufficient;
 there must be evidence on which the jury could reasonably find for the plaintiff.”
 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252
 (1986). “On a motion for
 summary judgment, facts must be viewed in the light most favorable to the
 nonmoving party only if there is a genuine dispute at those facts.” Torgerson,
643 F. 3d at 1042
 (internal quotations omitted).

                                         i.

        Johnson alleged two counts of hostile work environment, based on age and
 disability. For her age claim, she relies on these comments: After about a year
 as her supervisor, Avila began asking Johnson about her retirement plans,
 commenting on who might replace her as Director, and joking that she “wasn’t
 getting any younger.” Johnson says she overheard the Chief Nursing Officer say

      2
        Johnson, in passing, asserts that the district court should have allowed an
amended complaint—first requested after the district court ruled on the motions to
dismiss and to remand. The district court did not abuse its considerable discretion
in refusing a post-ruling motion to amend. “District courts ‘have considerable
discretion to deny a post-judgment motion for leave to amend because such
motions are disfavored.’” Schnuck Markets, Inc. v. First Data Merch. Servs.
Corp.,
852 F.3d 732, 740
 (8th Cir. 2017), quoting United States ex rel. Roop v.
Hypoguard USA, Inc.,
559 F.3d 818, 824
 (8th Cir. 2009).
                                         -6-
she wanted to “change the face of Belton by getting rid of some of the older
employees.” Avila made derogatory comments to Johnson about a 72-year-old
receptionist and asked Johnson to downgrade her rating, and that of the oldest
nurse. Avila discussed terminating an older employee and Johnson objected,
claiming it looked like age discrimination. Avila replied: “If you’re not on
board, you’ll be next.”

       For her disability claim, Johnson relies on these comments: Almost two
years into her job, Avila told Johnson that he would no longer accommodate her
ability to work from home and said: “I’m sick of hearing about your
accommodations.” Later, during a heated discussion, the vice president of HR
told her to calm down because “you don’t want to have another heart attack.”
Avila also asked who would replace her if she had another heart attack.

       While on medical leave, Johnson sent multiple anonymous letters
addressing how she and other employees were treated. The letters did not
mention age or disability but focused on bullying. Her letters did not suggest
that the work environment was hostile because it was discriminatory. Even when
she spoke with a Belton Regional investigator about her experiences, she did not
assert that her treatment was based on discrimination.

      A successful claim of a hostile work environment requires the plaintiff to
show: (1) she is a member of a group protected under the MHRA; (2) she was
subjected to unwelcome harassment; (3) the plaintiff's membership in the
protected group was a motivating factor in the harassment; and (4) a term,
condition, or privilege of the plaintiff's employment was affected by the
harassment. Eivins v. Missouri Dep't of Corr.,
636 S.W.3d 155
, 179 (Mo. App.
2021).

       A prima facie case of age discrimination requires the plaintiff to show: (1)
she suffered an adverse employment action; (2) her age was the motivating
factor; and (3) she suffered damage as a result.
Id. at 166
. A “motivating factor”
                                       -7-
requires that age “actually played a role in the adverse action or decision and had
a determinative influence on the adverse decision or action.” § 213.010(19),
RSMo Supp. 2017.

      Here, Johnson needed to identify evidence that her age was the
“determinative influence” on her termination. When Belton Regional requested
that she give a return date, she had been on medical leave for nine months.
Johnson refused to provide a date. She provides no evidence that she was
terminated based on her age, as opposed to her refusal to provide a date when she
would return.

      Johnson believes there is an inference. Yet, with a single exception, all the
comments she cites occurred before her leave began, more than nine months
before her termination. The exception is an email six months before her
termination between Avila, Pasley, and two Belton Regional employees. Avila,
the sender, is complimenting the three team members who assisted while
Johnson was on leave. Avila does not mention anything about age in the
message. This is not evidence of age discrimination.

       For disability discrimination, a prima facie case requires the plaintiff to
demonstrate: “(1) she was disabled, (2) she was discharged, and (3) her disability
was the motivating factor in her discharge.” Ashby v. Woodridge of Missouri,
Inc.,
673 S.W.3d 537
, 544 (Mo. App. 2023). “[T]he employer has an affirmative
duty to reasonably accommodate an employee’s handicap but the burden is on
the employee to establish that with reasonable accommodation he could perform
the job.” Medley v. Valentine Radford Commc'ns, Inc.,
173 S.W.3d 315, 321
(Mo. App. 2005) (internal quotations omitted).

      Johnson cannot demonstrate that her disability was the motivating factor
for her discharge. As discussed, the determinative influence on her discharge
was her refusal to provide a date when she would return. Though Missouri law
requires a reasonable accommodation, employers are “not required to provide
                                       -8-
indefinite leaves of absence.”
Id. at 323
. Johnson did not provide evidence that
she was terminated based on her disability.

                                      ii.

       Johnson asserts that she was constructively discharged. In her opposition
to summary judgment, she said only that “this is not a conventional wrongful
discharge case, nor is it a conventional constructive discharge case.” She thus
“failed to provide meaningful legal analysis” that applied to the facts and
supported her claim. See Johnson Tr. of Operating Engineers Loc. #49 Health
& Welfare Fund v. Charps Welding & Fabricating, Inc.,
950 F.3d 510, 523
(8th Cir. 2020). The failure to oppose summary judgment with a constructive
discharge argument waives that argument.

                              *******

      The judgment is affirmed.
                        ______________________________




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