                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1401
                        ___________________________

                                      Jack Noel

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

                    AT&T Corp.; SBC Internet Services, Inc.

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                  for the Eastern District of Missouri - St. Louis
                                  ____________

                          Submitted: September 11, 2014
                            Filed: December 4, 2014
                                 ____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

GRUENDER, Circuit Judge.

      In this diversity suit brought under the Missouri Human Rights Act, Jack Noel
claims SBC Internet Services, Inc. and AT&T Corp. (together, “SBC”) constructively
discharged him because of his disability. Finding no genuine issue of material fact
as to whether Noel was constructively discharged, the district court1 granted SBC’s
motion for summary judgment. We affirm.

       In 2006, Noel accepted a new position at SBC that involved frequent travel,
which aggravated his diabetes. Two years later, Noel was hospitalized after
collapsing at an airport, and the next year, SBC gave him a temporary assignment that
did not involve travel. After Noel performed poorly in both his new position and the
temporary assignment, SBC put him on a performance-improvement plan. Two
weeks later, Noel was hospitalized again, this time for five days after suffering a
breakdown. He never returned to SBC. Noel’s doctor advised Noel that further
travel might be harmful, and after six months of disability leave, Noel resigned from
SBC. No one at SBC told him to resign, told him he could not return to work, or ever
disparaged him in any way related to his diabetes.

      On appeal, Noel claims that SBC violated the Missouri Human Rights Act by
discharging him because of his diabetes, a disability. See Mo. Rev. Stat. § 213.055.
To prove his claim, Noel must show that (1) he “is legally disabled; (2) [he] was
discharged; and (3) [his] disability was a factor in the . . . discharge.” See Hervey v.
Mo. Dep’t of Corrs., 379 S.W.3d 156, 160 (Mo. 2012). Because Noel admits he
resigned, he does not argue that SBC actually discharged him. He claims instead that
SBC constructively discharged him by “deliberately [rendering his] working
conditions so intolerable that [he was] forced to quit.” See Wallingsford v. City of
Maplewood, 287 S.W.3d 682, 686 (Mo. 2009). The district court granted summary
judgment for SBC, determining that Noel did not raise a genuine issue as to whether
he was constructively discharged.




      1
       The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.

                                          -2-
       We review a grant of summary judgment de novo. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Summary judgment is
proper if there is no genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law. Id. “[F]acts must be viewed in the light most
favorable to the nonmoving party only if there is a genuine dispute as to those facts.”
Id. (quoting Ricci v. DeStefano, 557 U.S. 557, 586 (2009)).

       We find no genuine factual dispute as to whether Noel was constructively
discharged because SBC did not “deliberately [render his] working conditions so
intolerable that [he was] forced to quit.”2 See Wallingsford, 287 S.W.3d at 686. Noel
presents no instances in which SBC did anything of the sort. Rather, Noel admits that
no one told him to resign, told him he could not return to work, or ever disparaged
him in any way related to his diabetes. Indeed, SBC actually gave Noel a temporary
reprieve from travel. See Quinn v. St. Louis Cnty., 653 F.3d 745, 752 (8th Cir. 2011)
(noting that attempts at accommodation suggest the employer does not want the
employee to quit).

       Our conclusion finds further support in Gambler v. Missouri Department of
Health and Senior Services, 225 S.W.3d 470 (Mo. Ct. App. 2007). There, Gambler
quit her job, which had a three-hour daily commute, after she was denied a promised
transfer. Id. at 472-74. The Missouri Court of Appeals explained that the evidence
failed to show that her working conditions were intolerable, id. at 476-79, and noted
instead that she was subject to “the exact same working conditions that had existed
from the commencement of her employment,” id. at 478. Similarly, SBC expected
Noel only to continue his job as it had been. If anything, Noel was treated better than

      2
        Missouri courts sometimes have asked whether “the employer intended to
force the employee to quit, or the employer could reasonably foresee that its actions
would cause the employee to quit.” DeWalt v. Davidson Serv./Air, Inc.,
398 S.W.3d 491, 501 (Mo. Ct. App. 2013) (emphasis added). Noel’s argument also
fails under this language, which similarly requires some action on SBC’s part.

                                          -3-
Gambler. While she was denied a promised transfer, Noel was temporarily relieved
from travel.

        Ultimately, Noel argues that his work was made intolerable not by SBC but
by his own worsening health. As he puts it, “there can be a change in an employee’s
condition that makes conditions intolerable.” Noel offers no cases to support this
argument, and we find it foreclosed by the plain language of the Missouri Supreme
Court, which asks whether “an employer deliberately renders an employee’s working
conditions so intolerable that the employee is forced to quit,” Wallingsford,
287 S.W.3d at 686. It is undisputed that, in accordance with his doctor’s advice, Noel
chose to resign because of his diabetes. He has not raised a genuine issue of material
fact as to whether SBC forced him to quit.3

      Because Noel does not claim he was actually discharged and has not raised a
genuine issue as to whether he was constructively discharged, his Missouri Human
Rights Act claim fails. We thus do not reach the parties’ other arguments. The
judgment of the district court is affirmed.
                       ______________________________




      3
       Noel also suggests in a single, unsupported sentence that SBC constructively
discharged him by failing to accommodate his disability. As Noel did not raise this
issue before the district court, we decline to address it. See Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004).

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