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Markham v. Wertin

United States Court of Appeals, Eighth Circuit

June 29, 2017

Bryce Markham Plaintiff- Appellant
v.
Tony Wertin Defendant-Appellee

          Submitted: November 15, 2016

         Appeal from United States District Court for the Western District of Missouri - St. Joseph

          Before RILEY, [1] Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Bryce Markham filed a petition in Missouri state court against the International Brotherhood of Electrical Workers Local 545 (Local 545) and Tony Wertin, alleging that Local 545 had violated the Missouri Human Rights Act (MHRA) by failing to accommodate Markham's disability, by discriminating against him based on his disability, and by retaliating against him for reporting his disability and seeking accommodation. The petition further alleged that Wertin had aided and abetted Local 545's discriminatory and retaliatory conduct. Local 545 removed the action to federal district court and thereafter moved to dismiss. Markham moved to remand the case and to amend the petition. The district court determined that Markham's claims were completely preempted under § 301(a) of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), and § 9(a) of the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a), and that the statute of limitations had expired on those federal claims. The district court thus denied Markham's motion to remand and his motion to amend the petition and granted Local 545's motion to dismiss. Markham appeals from the dismissal of his aiding-and-abetting claim against Wertin, the denial of his motion to remand, and the denial of his motion for leave to amend. We reverse and remand.

         I. Background

         Local 545 offers a joint apprenticeship and training program. Participants must complete the program before they can become journeymen or be eligible for full union representation. Markham alleged that Wertin was the supervisor of the apprenticeship and training program and an authorized agent of Local 545. According to Markham, Wertin and members of the Joint Apprenticeship and Training Committee (JATC) assign apprentices to various companies for on-the-job training.

         Markham enrolled in the apprenticeship and training program in 2008. In May 2013, he lost consciousness while on a lunch break during an on-the-job training assignment. Markham returned to work later that day, but he called in sick the next day. Wertin thereafter informed Markham that he had been terminated from the assignment and instructed Markham to submit a doctor's note documenting the reason for his absence, which Markham did.

         Markham suffers from Crohn's Disease. His doctor's note indicated that Markham had tested positive for tetrahydrocannabinol (THC), the active compound in marijuana, but also explained that Markham had been prescribed a legal synthetic version of THC to treat his Crohn's Disease. A urinalysis indicated no presence of marijuana in Markham's system.

         Markham was placed on probation on June 11, 2013. He was told that the reason for the probation was that two companies had terminated his on-the-job training assignments "for cause, " but he was not told what the cause was. Markham expressed to Wertin his belief that he had been placed on probation because of his illness. Thereafter, Markham was not assigned to any on-the-job training until January 2014, and even then his training opportunities were "drastically reduced compared to other members of the Program, including those with fewer hours completed." Compl. ¶ 39. Moreover, when he was given on-the-job training assignments, "it was for very small jobs, or for jobs that did not provide actual training, but rather relegated [Markham] to doing menial work for others." Id. ¶ 40. On at least one occasion, Markham was unavailable for an assignment because he was not given adequate notice.

         Markham was unable to accrue on-the-job training hours as quickly as his peers. The JATC removed Markham from the program on June 9, 2014, before he had completed it and "at the suggestion and/or direction of Wertin." Id. ¶ 44. Although Markham attended two union meetings in attempts to appeal his dismissal, he was never readmitted to the apprenticeship and training program.

          Markham filed a petition in the Circuit Court of Buchanan County, Missouri, alleging the four counts mentioned above. Markham alleged that Wertin aided and abetted Local 545's acts of discrimination and retaliation, claiming that:

[Markham's] disability, report of his disability, and his request for accommodation for his disability were all at least a contributing factor in Defendant Wertin's aiding, abetting, compelling, and coercion of Defendant IBEW to fail to place [Markham] for on-the-job training, to terminate [Markham's] ...

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