Opinion
Case No. CV 17-4124 FFM
07-18-2017
LOUIE MUSACCO, Plaintiff, v. OLD DOMINION FREIGHT LINE, INC., et al. Defendants.
ORDER ON PLAINTIFF'S MOTION TO REMAND
I. PROCEDURAL BACKGROUND
Louie Musacco ("Plaintiff") filed his Complaint on April 20, 2017, in the Superior Court of California for the County of Los Angeles. On August 28, 2015, defendant Old Dominion Freight Line, Inc., ("Old Dominion") removed the action to this Court.
The parties thereafter consented to proceed before the undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b).
On June 20, 2017, Plaintiff filed a Motion to Remand , arguing that the Court does not have jurisdiction because defendant Willie Bunton ("Bunton") and Plaintiff are both California citizens.
Defendants opposed Plaintiff's motion on June 27, 2017. In their opposition, Defendants assert the Court should disregard Bunton's citizenship in determining jurisdiction because he is a "sham" defendant.
Plaintiff replied to Defendants' arguments on June 30, 2017.
II. FACTUAL BACKGROUND
Plaintiff was an employee of Old Dominion beginning in approximately February, 1998. (Compl. ¶ 8.) During at least part of his employment with Old Dominion, Plaintiff suffered from Macular Degeneration, which impaired his vision. (Id.) In order to minimize the effects of his condition, Plaintiff accommodated himself by sitting closer to his computer screen while at work. (Id.)
Macular Degeneration "is a common eye condition and a leading cause of vision loss among people age 50 and older. It causes damage to the macula, a small spot near the center of the retina and the part of the eye needed for sharp, central vision, which lets us see objects that are straight ahead." Facts About Age-Related Macular Degeneration, National Eye Institute, nei.neh.gov/maculardegen/armd_facts. Macular degeneration "can interfere with simple everyday activities, such as the ability to see faces, drive, read, write or do close work." Id. --------
In June, 2014, defendant Bunton, one Plaintiff's supervisors, approached Plaintiff and asked him why he had not gone to the eye doctor for help with his Macular Degeneration and resulting vision problems. (Compl. ¶ 9.) Bunton had apparently approached Plaintiff about his vision on numerous prior occasions. (See id.) Plaintiff reminded Bunton, as he had on the prior occasions, that he suffers from Macular Degeneration and requires certain accommodations like sitting close to his computer screen. (Id.)
On or about July 22, 2014, Bunton held a meeting with Plaintiff during which he "wrote [Plaintiff] up for poor performance caused by allegedly incomplete work." (Compl. ¶ 10.) In response, Plaintiff again told Bunton that he had vision problems. (Id.) Bunton replied that Plaintiff should visit an eye doctor. (Id.) Plaintiff agreed to do so. (Id.)
On some date shortly after Plaintiff's meeting with Bunton, Plaintiff was called into work at 12:00 a.m. despite the fact that Plaintiff normally began work at 3:00 a.m. (Compl. ¶ 11.) Once Plaintiff arrived at work, his supervisor (in this instance, Hector Torres) gave Plaintiff a stack of shipping manifests to review. (Id.) According to Plaintiff, reviewing manifests was generally outside the scope of his work. (Id.) Torres then criticized Plaintiff for taking too long to complete the tasks. (Id.) Plaintiff responded that he worked slowly because of his vision problems. (Id.)
On July 30, 2014, Plaintiff was called into a meeting with Bunton. (Compl. ¶ 12.) Therein, Bunton stated that Torres was concerned about Plaintiff's vision. (Id.) Bunton further stated that he wanted Plaintiff to schedule an appointment with an eye doctor and ordered Plaintiff to report to him the eye doctor's findings. (Id.) After Plaintiff arrived home later that day, Bunton called Plaintiff and told him that Old Dominion had placed Plaintiff on a thirteen-week forced medical leave because Plaintiff "was a liability" to the company's operations. (Compl. ¶ 13.) Bunton also reminded Plaintiff that he expected to hear about the outcome of Plaintiff's appointment with his eye doctor. (Id.)
At some point between July 30, 2014, and October 20, 2014, Plaintiff visited an eye doctor. (Compl. ¶ 14.) The doctor apparently informed Plaintiff and either Old Dominion or Bunton that Plaintiff could return to work if he were provided various accommodations, including extra time to complete tasks. (Id.)
Sometime after his doctor cleared him to return to work, Plaintiff spoke with Old Dominion's Workers' Compensation and Family Medical Leave Act Coordinator. (Compl. ¶ 15.) She informed Plaintiff that Bunton stated that Old Dominion did not have any job openings for Plaintiff. (Id.) She also stated that Plaintiff could not return to his prior position because that position required a forklift license, which Plaintiff did not possess and could not obtain, presumably because of his vision problems. (Id.) Plaintiff alleges that his prior job did not require him to drive a forklift. (Id.)
Ultimately, Old Dominion terminated Plaintiff's employment in October, 2014. (Id.) Thereafter, Plaintiff filed the instant Complaint, asserting two claims against all Defendants, including Bunton: (1) harassment under California's Fair Employment and Housing Act ("FEHA") and (2) Intentional Infliction of Emotional Distress ("IIED"). / / /
III. DISCUSSION
A. Standard for Removal
1. Removal
A defendant may remove a civil case filed in state court to the federal district court in the district where the action was initially filed so long as the district court has jurisdiction over the case. 28 U.S.C. § 1441(a). District courts have original jurisdiction over all claims where the amount in controversy exceeds $75,000 and the suit is between "citizens of different states." 28 U.S.C. § 1332(a). The requirement that citizens be from different states demands complete diversity, i.e. no defendant may maintain citizenship in the same state as any plaintiff. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). Moreover, section 1441 states that no defendant "properly joined and served . . . is a citizen of the state in which the action is brought." 28 U.S.C. § 1441(b)(2). Despite a defendant's right to remove a case to federal court, "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation omitted). This "strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citations and internal quotation marks omitted).
2. Fraudulent Joinder
Notwithstanding the complete diversity requirement of section 1332, "[a] non-diverse party may be disregarded for the purposes of determining whether jurisdiction exists if the court determines that the party's joinder was 'fraudulent' or a 'sham.'" Olguin v. Int'l Paper Co., 2016 WL 1643722, at *2 (C.D. Cal. Apr. 26, 2016). In order to show that the non-diverse defendant is a sham, the defendant must prove by clear and convincing evidence that "there is no possibility that the plaintiff could prevail on any cause of action it brought against the non-diverse defendant." Burris v. AT&T Wireless, Inc., 2006 WL 2038040, at *1 (N.D. Cal. July 19, 2006). Moreover, there is a presumption against finding fraudulent joinder and, therefore, "all disputed questions of fact and all ambiguities in the controlling state law are resolved in the plaintiff's favor." Padilla v. AT&T Corp., 697 F. Supp. 2d 1156, 1158 (C.D. Cal. 2009) (citing Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1426 (9th Cir. 1989). Thus, "[i]f there is a non-fanciful possibility that plaintiff can state a claim under California law against the non-diverse defendants the Court must remand." Macey v. Allstate property and Cas. Ins. Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002); see also Olguin, 2016 WL 1643722, at *2 ("Merely a glimmer of hope that plaintiff can establish [a] claim is sufficient to preclude the application of [the] fraudulent joinder doctrine." (alterations in original) (internal quotation marks omitted)). B. Plaintiff's IIED Claim
Because Plaintiff raises two claims against Bunton, remand is appropriate unless Defendants can establish that there is no possibility Plaintiff can prevail on either claim. With respect to Plaintiff's IIED claim, Defendants contend that Plaintiff cannot state a claim against Bunton because: (1) California's Workers' Compensation Act ("CWCA") precludes a civil action for IIED; and (2) Plaintiff has failed to state an IIED claim against Bunton. The Court finds that neither of these arguments is persuasive and, as a result, concludes that Bunton is not a sham defendant.
1. Workers' Compensation
Ordinarily, workers' compensation is the exclusive remedy for injuries sustained in the workplace. Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 151 (1987) (discussing the exclusivity provisions of Cal. Lab. Code § 3602(a)). However, a plaintiff's suit for damages is not preempted by the CWCA "if the defendants' misconduct exceeded the normal risks of employment." Fretland v. Cty. of Humboldt, 69 Cal. App. 4th 1478, 1492 (1999). "Discrimination in employment is not a normal incident of employment." Accardi v. Superior Court, 17 Cal. App. 4th 341, 347 (1993) (emphasis omitted); see also Corona v. Quad Graphics Printing Corp., 218 F. Supp. 3d 1068, 1073 (C.D. Cal. 2016) (collecting cases)).
While Plaintiff does not assert a discrimination claim against Bunton, both his harassment and IIED claims against Bunton are based on discriminatory conduct. Indeed, the Complaint suggests, at minimum, that Bunton subjected Plaintiff to discriminatory treatment, including termination, on the basis of a disability caused by Macular Degeneration. The Complaint also suggests that Bunton orchestrated Plaintiff's firing by building a baseless disciplinary record against Plaintiff and providing false reasons (the shortage of open positions and Plaintiff's lack of a forklift license) for Plaintiff's termination. That the Complaint does not expressly include those specific allegations is immaterial at this stage. See Padilla, 697 F. Supp. 2d at 1159 ("[A] defendant seeking removal based on an alleged fraudulent joinder must do more than show that the complaint at the time of removal fails to state a claim against the non-diverse defendant." (citation omitted)). Because the allegations of the Complaint can be read in such a way to support an argument that Bunton subjected Plaintiff to illegal discrimination, Plaintiff's IIED claim is not barred by the CWCA.
2. IIED Claim
Under California law, a plaintiff states a claim for IIED when he shows that: (1) the defendant engaged in "extreme or outrageous conduct . . . with the intention of causing, or reckless disregard of the probability of causing, emotional distress"; (2) the plaintiff suffered "severe emotional distress"; and (3) the defendant's actions caused plaintiff's distress. Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). Conduct is outrageous "when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. (internal quotation marks omitted); see also Cochran v. Cochran, 65 Cal. App. 4th 488, 494 (1998) (citations omitted) (holding that a defendant's conduct is "extreme or outrageous" when a reasonable person would exclaim "outrageous!" upon hearing of the defendant's actions). "Behavior may be considered outrageous if a defendant . . . abuses a relation or position which gives him power to damage the plaintiff's interest . . . ." Corona, 218 F. Supp. 3d at 1074 (internal quotation marks omitted) (omissions in original).
Defendant argues that Plaintiff will never be able to demonstrate that Bunton's conduct rose to the level of "extreme and outrageous." The Court disagrees. While Bunton's conduct is not plainly "extreme and outrageous," the Court declines to conclude at this stage of the proceedings that Plaintiff could never satisfy that element of his IIED claim. As discussed above, Plaintiff asserts that Bunton organized Plaintiff's forced medical leave and subsequent termination, even though Plaintiff was capable of performing his prior work, and provided pretextual reasons to support Plaintiff's termination. To be sure, the Court is doubtful that Plaintiff has alleged facts sufficient to show that Bunton's behavior "exceed[ed] all bounds of that usually tolerated in a civilized community." Nonetheless, a reasonable factfinder could determine that Bunton's conduct was extreme and outrageous because he abused a position of power over Plaintiff. Thus, even though the evidence demonstrating extreme and outrageous behavior is "relatively weak," remand remains appropriate because Plaintiff's claim is non-fanciful. See Martinez v. Michaels, 2015 WL 4337059, at *10 (C.D. Cal. Jul 15, 2015); see also Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1226 (1995) ("[T]he alleged behavior [wa]s sufficiently extreme as to constitute 'outrageous' behavior is properly determined by the fact finder after trial or possibly after discovery upon a motion for summary judgment.").
Defendant also asserts that Plaintiff cannot make out an IIED claim against Bunton because "personnel-management activity is insufficient to support an IIED claim." To be sure, actions undertaken by managers, such as employee termination, generally do not constitute extreme or outrageous conduct. See Janken v. GM Hughes Electronics, et al., 46 Cal. App. 4th 55, 80 (1996). Nonetheless, simply because an action was taken as part of an overall personnel-management scheme does not preclude a plaintiff's IIED claim against a supervisor. See Martinez, 2015 WL 4337059, at *9. "The test for such claims is whether 'the [supervisor's] behavior goes beyond the act of termination' or some other managerial decision." Olguin, 2016 WL 1643722, at *4 (quoting Dagley v. Target Corp., 2009 WL 910558, at *3 (N.D. Cal. June 6, 1996)). Thus, where a plaintiff "alleges conduct other than that inherent in terminating an employee, such as violating a fundamental interest of the employee . . . in a deceptive manner . . . then the plaintiff may plausibly assert an IIED claim against the supervisor responsible for the conduct." See id. at *4 (citations omitted); Barsell, 2009 WL 1916495, at *8 ("In cases alleging intentional infliction of emotional distress on the basis of . . . deceptive conduct, district courts have declined to find that supervisors were fraudulently joined.").
In a case illustrating this point, another court within this district recently remanded a case to state court after determining that the plaintiff's IIED claim against his supervisor was non-fanciful. See Corona, 218 F. Supp. 3d at 1074-75. There, plaintiff asserted that the defendant supervisors had forced him to carry heavy objects, resulting in an injury for which plaintiff took a medical leave of absence. Id. at 1074. The plaintiff further alleged that he was then fired because of the injury and his age, but that his supervisors provided pretextual reasons for the termination. Id. Ultimately, the court concluded that plaintiff's IIED claim was non-fanciful because it was "centered on allegations that [defendant supervisors] provided false reasons to terminate [plaintiff] based on his age and disability, and subjected him to intimidation that jeopardized his job, health, and career, which are allegations of conduct other than that inherent in terminating an employee." Id. at 1074-75 (internal quotation marks omitted).
Here, Plaintiff has sufficiently asserted that Bunton's conduct went beyond conduct inherent in terminating an employee. Indeed, like the allegations in Corona, the Complaint suggests that Bunton impermissibly terminated Plaintiff on the basis of his disability and provided false reasons justifying the termination. Plaintiff further contends that Bunton used false pretenses to build a disciplinary record against Plaintiff to provide support for the termination. These deceptive actions, combined with the purported illegal disability-based termination, were all conduct that goes beyond what is normally expected or permissible on the part of a manager or supervisor. Therefore, Bunton's behavior may constitute extreme and outrageous conduct despite his position as Plaintiff's supervisor. See Rojo v. Kliger, 52 Cal. 3d 65, 81 (1990) ("[A]n employer's discriminatory actions may constitute . . . outrageous conduct redressable under a theory of intentional infliction of emotional distress."); Graves v. Johnson Control Worldwide Servs., Inc., 2006 WL 618796, at *11 (N.D. Cal. Mar. 13, 2006) ("[IIED] claims may be brought where the 'distress is engendered by an employer's illegal discriminatory practices.'" (quoting Accardi, 17 Cal. App. 4th at 353)).
IV. CONCLUSION
For the foregoing reasons, Plaintiff's Motion to Remand is GRANTED and this action is REMANDED to the Superior Court of California for the County of Los Angeles.
IT IS SO ORDERED. DATE: July 18, 2017
/S/FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge