Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

John P. Chavez, Sr., An Individual v. Amerigas Propane

January 2, 2013

JOHN P. CHAVEZ, SR., AN INDIVIDUAL, PLAINTIFF,
v.
AMERIGAS PROPANE, INC., A CORPORATION; JASON HUIE, AN INDIVIDUAL; AND DOES 1-50, INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

On July 20, 2012, John Chavez, Sr. filed this action against Amerigas Propane, Inc. and Jason Huie in Los Angeles Superior Court.*fn1 On August 31, 2012, defendants removed the action to this court.*fn2 Chavez filed a motion to remand on October 1, 2012, asserting that the court lacks subject matter jurisdiction.*fn3 Defendants oppose the motion.*fn4

Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds that the matter is appropriate for decision without oral argument. The hearing scheduled for January 7, 2013 is therefore vacated and taken off calendar

I. BACKGROUND

Chavez was hired by Amerigas, a Pennsylvania corporation,*fn5 in 1984.*fn6 His duties included filling propane tanks for residential, commercial, and industrial customers, and driving a propane delivery truck.*fn7 On or about January 30, 2010, Chavez was injured in a non-work related accident.*fn8 Chavez notified his employer and went on medical leave beginning February 1, 2010.*fn9

Almost one year later, in January, 2011, Chavez's doctor authorized him to return to work.*fn10 Chavez took a physical, as required by Amerigas and the Department of Transportation, and passed; he resumed his duties fully on February 1, 2011.*fn11 In mid-February, however, Chavez told his supervisors that his left leg was sore due to a year of inactivity. He requested a modification of his duties or additional time off to recuperate.*fn12

Shortly thereafter, Huie, Chavez's supervisor,*fn13 told Chavez that Amerigas had given him the wrong physical prior to his return to full-time work.*fn14 He directed Chavez to undergo a second physical, which was significantly more strenuous than the first.*fn15 Among other things, Chavez was required to carry heavy weights up a set of stairs with no safety rail; he refused to perform this task, asserting that it was inherently dangerous.*fn16

Chavez contends that the second physical he was given was more strenuous than those given other employees returning to work after an injury.*fn17 When Chavez complained to the head dispatcher at Amerigas's Gardena office about being required to undergo a second physical, the dispatcher responded that he "[did not] know" whether the second test was a set-up designed to result in Chavez's dismissal.*fn18 On April 11, 2011, Amerigas notified Chavez that he was being terminated for failing to pass the second fitness test.*fn19
Chavez was allegedly replaced by a younger employee.*fn20 He asserts that during his tenure at Amerigas, Huie favored younger, Caucasian employees.*fn21 Chavez alleges that Amerigas violated the California Fair Employment and Housing Act ("FEHA") by engaging in age discrimination, retaliation, failing to make reasonable accommodation, failing to engage in the interactive process, and failing to take all steps necessary to prevent discrimination.*fn22 He also asserts that Amerigas violated the California Family Rights Act and wrongfully discharged him in violation of public policy.*fn23 Finally, Chavez asserts that both Amerigas and Huie are liable for intentional infliction of emotional distress.*fn24

II. DISCUSSION

A. Legal Standards Governing Removal Jurisdiction

The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court involves a federal question or is between citizens of different states and has an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b). Only state court actions that could originally have been filed in federal court can be removed. 28 U.S.C. § 1441(a) ("Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending"); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988)

The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[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) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart, 592 F.2d at 1064). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.