Submitted: November 15, 2016
from United States District Court for the Western District of
Missouri - St. Joseph
RILEY,  Chief Judge, WOLLMAN and KELLY,
WOLLMAN, Circuit Judge.
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
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.
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.
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
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.
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