Opinion
3:03CV341-H
August 18, 2003
MEMORANDUM AND ORDER
THIS MATTER is before the Court on the Plaintiffs' "Objection to Removal to United States District Court" (document #2) filed July 21, 2003, which the Court will treat as a Motion to Remand; and the "Defendants' Response . . ." (document #3) filed August 7, 2003. On August 14, 2003, the Plaintiff filed her Reply, which was captioned "Response to Defendant's [Response] . . ." (document #4).
The parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c), and these motions are now ripe for disposition.
Having carefully considered the parties' arguments, the record, and the applicable authority, the undersigned will grant the Plaintiff's Motion to Remand, as discussed below.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This is an action seeking damages and injunctive relief for alleged age discrimination in violation of "the public policy of the State of North Carolina and the United States of America." Complaint at 2 (document #1).
The parties are citizens of North Carolina. The Plaintiff alleges that sometime in 1995, she was hired by the Defendant, Jim Deason d/b/a Deason Landscape Irrigation, as a "lawn maintenance laborer." Complaint at 1 (document #1). Thereafter, on March 23, 2003, when the Plaintiff was 52-years old and the Defendant's oldest employee, he allegedly told the Plaintiff that she "`was getting some age on her' and fired her." Id.
On June 9, 2003, the Plaintiff filed the subject Complaint in the Superior Court of Gaston County, North Carolina, alleging as the sole basis for recovery that:
[A]lthough the Defendant does not have 15 full-time employees, it is, on information and belief, against the public policy of the State of North Carolina and the United States of America to allow discrimination on the basis of age.
Complaint at 2 (document #1) (emphasis added).
On July 3, 2003, the Defendant removed the state court action to federal court, alleging that Plaintiff's reference to United States public policy amounts to a claim under the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621 et seq., and therefore, that federal question subject matter jurisdiction exists.
Upon receipt of the Defendant's Notice of Removal, the Plaintiff filed a motion in state court to amend its Complaint by striking the words "and the United States of America."
On July 18, 2003, the Plaintiff filed what is, in effect, a Motion to Remand. In her briefs, the Plaintiff acknowledges that because the Defendant had fewer than 15 employees, she does not have a viable claim under the ADEA nor even under state statutory law, but contends that her claim arises solely under the state common law doctrine of wrongful discharge, which, as a matter of public policy, includes claims for age discrimination.
The Plaintiff's motion has been fully briefed as discussed above and is, therefore, ripe for determination.
II. DISCUSSION
The undersigned notes first that the Plaintiffs' Motion to Remand is timely. See 28 U.S.C. § 1447(c) (motion to remand must be filed within 30 days of filing of notice of removal).The existence of subject matter jurisdiction is a threshold issue, and absent a proper jurisdictional basis, a removed case must be remanded to state court. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 96 (1998). Accord Jones v. American Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999); and Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The party claiming federal jurisdiction, in this case the Defendant, has the burden of proving that subject matter jurisdiction exists. Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
It is well established that "[t]he subject matter jurisdiction of federal courts is limited and the federal courts may exercise only that jurisdiction which Congress has prescribed." Chris v. Tenet, 221 F.3d 648, 655 (4th Cir. 2000), citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accord Darcangelo v. Verizon Communications, Inc., 292 F.3d 181, 186 (4th Cir. 2002) ("In general, an action filed in state court may be removed to federal court only if it might have been brought in federal court originally"). Because the citizenship of the parties is clearly not diverse, federal subject matter jurisdiction in this case, if any, must be based upon what is commonly called a "federal question."
Title 28 U.S.C. § 1331 provides that district courts have subject matter jurisdiction of every civil action that
"arises under the Constitution, laws, or treaties of the United States." This means that Congress has given the lower federal courts jurisdiction to hear only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.
Greene v. General Motors Corporation, 261 F. Supp.2d 414, 417 (W.D.N.C. 2003) (reference to defendant's alleged violation of federal warranty standards as evidence that defendant violated state law does not create federal question jurisdiction), quoting Battle v. Seibels Bruce Ins. Co., 288 F.3d 596, 606-07 (4th Cir. 2002) (emphasis in the original).
Regarding claims in which "federal law creates the cause of action," it is not enough that a plaintiff alleges a claim within the same, general subject matter as a federal statute. Accord Greene, 261 F. Supp.2d at 417-19. Rather, federal question jurisdiction under this first prong of § 1331 will lie only where the plaintiff has stated a claim under a federal statute, id., which is clearly not the case here.
Regarding claims under the second prong of § 1331 — those requiring "resolution of a substantial issue of federal law" — subject matter jurisdiction is even less common, that is, "the vast majority of cases brought under the general federal-question jurisdiction of the federal courts are those in which federal law creates the cause of action [and t]he well-pleaded complaint rule requires that federal question jurisdiction not exist unless a federal question appears on the face of a plaintiff's properly pleaded complaint." Greene, 261 F. Supp.2d at 418, citing Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369-70 (4th Cir. 2001); and Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986).
It is well settled that neither the ADEA nor its North Carolina equivalent, the Equal Employment Practices Act ("EEPA"), N.C. Gen. Stat. § 143-422.2, provides a remedy for age discrimination by an employer with fewer than 15 full-time employees. See 29 U.S.C. § 630(b) (to qualify as an "employer" for ADEA purposes, defendant must have 20 full-time employees); and N.C. Gen. Stat. § 143-422.2 (EEPA applies to "employers which regularly employ 15 or more employees"). Moreover, as the Defendant concedes in his brief, any pre-existing federal public policy against age discrimination has been subsumed by the ADEA, which provides the exclusive federal cause of action and remedy for redress of age discrimination. Accord 29 U.S.C. § 626.
In contrast to federal law, however, under some circumstances North Carolina allows an employee who has been discharged for a discriminatory reason to bring a common law action for wrongful discharge in violation of the public policy expressed in the EEPA. Amos v. Oakdale Knitting Co., 331 N.C. 348, 353, 416 S.E.2d 166, 169 (1992). Accord Cox v. Indian Head Industries, 123 F. Supp.2d 892 (W.D.N.C. 2000) (approving a common law claim for wrongful discharge where plaintiff was allegedly subjected to sexually offensive comments and touching amounting to constructive discharge).
Applying these legal principles to the Plaintiff's Complaint, there is clearly no basis for exercising federal question jurisdiction, that is, the Plaintiff has not pled a claim arising under the ADEA or any other federal statute, nor does her asserted right to relief necessarily depend on the resolution of any federal law question, much less a substantial one. Rather, the Plaintiff expressly acknowledges in her Complaint that her age-based claim does not meet one of the foundational requirements of the ADEA, that is, that the Defendant did not have 20 employees during the relevant time period.
Simply put, a plaintiff seeking to recover for age discrimination against an employer who employs fewer than 20 employees has not pled a federal cause of action under the ADEA, which, consequently, cannot have "create[d] [her] cause of action" for the purposes of federal question jurisdiction. Accord Greene, 261 F. Supp.2d at 417.
Rather, by pleading that the Defendant employed fewer than 15 employees, the minimum requirement under the EEPA, the Plaintiff has raised a substantial state law question (perhaps one of first impression), namely: whether North Carolina courts will extend the public policy wrongful discharge doctrine to employers with less than 15 employees. This is manifestly an issue for the state, not the federal courts, to resolve.
III. ORDER
NOW, THEREFORE, IT IS ORDERED:
1. Plaintiffs' "Objection to Removal to United States District Court [and Motion to Remand]" (document #2) is GRANTED; and this matter is REMANDED to the Superior Court for Gaston County.
2. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties.
SO ORDERED, this 18th day of August, 2003.