The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S MOTION TO REMAND ACTION TO STATE ) COURT (Document 5)
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Elizabeth Thomason ("Plaintiff") was employed by Defendant Skywest Airlines, Inc. ("Defendant"), from August 2007 until her resignation on August 11, 2009. (Doc. 1, Ex. A, ¶ 1.) As a customer service agent, Plaintiff received "good performance evaluations and wage increases" prior to bidding on a full time customer service position that would allow for accommodation of her religious beliefs. (Doc. 1, Ex. A., ¶ 12.) In spite of the availability of a shift that would permit Plaintiff to attend Sunday morning religious services, and instead of the position for which she bid, Plaintiff was regularly given mandatory shift assignments that precluded religious service attendance. (Doc. 1, Ex. A., ¶¶ 13-14.) Despite Plaintiff's repeated requests for full time positions and accommodation, her requests were ignored by Defendant.
In July 2009, Plaintiff filed a written complaint with Defendant for discrimination and failure to accommodate her religious observance. (Doc. 1, Ex. A., ¶¶ 15-16.) Following her complaint, Plaintiff was subjected to harassment and was eventually forced to resign due to a hostile work environment. (Doc. 1, Ex. A., ¶¶ 17-18.)
Thereafter, in January 2010, Plaintiff filed a complaint against Defendant with the Department of Fair Employment and Housing, receiving a "Right to Sue Letter" in January 2011. (Doc. 1, Ex. A, ¶ 21.) On December 21, 2011, Plaintiff filed a complaint against Defendant in the Fresno County Superior Court. Plaintiff alleged discrimination and harassment and failure to prevent discrimination and harassment on the basis of religious creed, failure to accommodate religious observance, and retaliation, all in violation of California Government Code section 12940. (See Doc. 1, Ex. A.)
On January 19, 2012, Defendant filed its answer to the complaint. (See Doc. 1, Ex. C.)*fn1
The following day, Defendant filed a Notice of Removal in this Court. (Doc. 1.)
On January 24, 2012, Plaintiff filed the instant motion. (Docs. 5-7.) On February 17, 2012, Defendant filed an opposition to the motion. (Doc. 10.) On February 24, 2012, Plaintiff filed her reply to Defendant's opposition. (Doc. 12.)
On February 28, 2012, this Court determined the matter was suitable for decision without oral argument pursuant to Local Rule 230(g).*fn2 The hearing scheduled for March 2, 2012, was vacated and the matter was deemed submitted for written findings. (Doc. 13.)
Title 28 of the United States Code*fn3 section 1441(a) provides that a defendant may remove "any civil action brought in a State court of which the district courts . . . have original jurisdiction . . .." Removal is proper when a case originally filed in state court presents a federal question or where there is diversity of citizenship among the parties and the amount in controversy exceeds $75,000. See §§ 1331, 1332(a).
Section 1447(c) provides that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." "The removal statute is strictly construed against removal jurisdiction [and] [t]he defendant bears the burden of establishing that removal is proper." Provincial Gov't of Marinduque v. Placer Dome, Inc., 582 F.3d 1083 (9th Cir. 2009). The Ninth Circuit has held that "[w]here doubt regarding the right to removal exists, a case should be remanded to state court." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).
A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007). When reviewing a motion to remand, a district court must analyze jurisdiction "on the basis of the pleadings filed at the time of removal without reference to subsequent amendments." Sparta Surgical Corp. v. Nat'l Ass'n of Sec. Dealers, Inc., 159 F.3d 1209, 1213 (9th Cir. 1998) (citation omitted). If a defendant has improperly removed a case over which the district court lacks subject matter jurisdiction, the district court shall remand the case to the state court. § 1447(c); see also Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006) (noting that a district court resolves all ambiguity in favor of remand). However, a district court lacks discretion to remand a case to the state court if the case was properly removed. Carpenters S. Cal. Admin. Corp. v. Majestic Hous., 743 F.2d 1341, 1343 (9th Cir. 1984); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 356, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988).
Where the parties in an action are citizens of different states, a district court "shall have original jurisdiction . . . where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs." § 1332(a). This amount includes claims for general and special damages (excluding costs and interests), attorneys fees if recoverable by statute or contract, and punitive damages, if recoverable as a matter of law. Conrad Assocs. v. Hartford Accident & Indem. Co., 994 F.Supp. 1196, 1198 (N.D. Cal. 1998). The amount in controversy is "determined at the time the action commences, and a federal court is not divested of jurisdiction . . . if ...