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

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


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 Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)).

B. Whether this Case Was Properly Removed under 28 U.S.C. § 1332

Defendants contend that the court has diversity jurisdiction to hear this action under 28 U.S.C. § 1332.*fn25 "[J]urisdiction founded on [diversity] requires that parties be in complete diversity and the amount in controversy exceed $75,000." Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003); see 28 U.S.C. § 1332(a)(1) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States. . ."). Federal courts have jurisdiction only where there is complete diversity: the plaintiff's citizenship must be diverse from that of each named defendant. 28 U.S.C. §§ 1332(a)(1), 1332(c)(1); see Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 n. 3 (1996); see also Cook v. AVI Casino Enters., Inc., No. 07-15088, 2008 WL 4890167, *3 (9th Cir. Nov. 14, 2008) (Unpub. Disp.) ("We have jurisdiction only if Cook, a resident of California, has citizenship which is diverse from that of every defendant," citing Lewis, 519 U.S. at 68).

As noted, Chavez has sued his former employer, AmeriGas, and his former supervisor, Huie. If both Chavez and Huie are California citizens,*fn26 there is not complete diversity as required by § 1332. See Matheson, 319 F.3d at 1090. Defendants argue, however, that Huie was fraudulently joined to defeat diversity jurisdiction. The court examines this contention below.

C. Legal Standard Governing Fraudulent Joinder

"It is a commonplace that fraudulently joined defendants will not defeat removal on diversity grounds." Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (citing Emrich, 846 F.2d at 1193 & n. 1; McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir.1987)); see also Burden v. General Dynamics Corp., 60 F.3d 213, 221-22 (5th Cir. 1995) (concluding that the district court had subject matter jurisdiction where a defendant charged with intentional infliction of emotional distress had been fraudulently joined). The joinder of a non-diverse defendant is considered fraudulent, and that party's citizenship may be disregarded, "[i]f the plaintiff fails to state a cause of action against the [non-diverse] defendant, and the failure is obvious according to the settled rules of the state. . . ." Hamilton Materials, Inc.v. Dow Chemical Co.,494 F.3d 1203, 1206 (9th Cir. 2007)(quoting McCabe, 811 F.2d at 1339).

"Fraudulent joinder must be proven by clear and convincing evidence." Hamilton Materials, 494 F.3d at 1206 (citing Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461 (2d Cir. 1998)). Because courts must resolve all doubts against removal, a court determining whether joinder is fraudulent "must resolve all material ambiguities in state law in plaintiff's favor." Macey v. Allstate Property and Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002) (citing Good v. Prudential, 5 F.Supp.2d 804, 807 (N.D. Cal.1998)). Thus, "[i]f there is a non-fanciful possibility that plaintiff can state a claim under [state] law against the non-diverse defendants[,] the court must remand." Id.; see also Good, 5 F.Supp.2d at 807 ("The defendant must demonstrate that there is no possibility that the plaintiff will be able to establish a cause of action in State court against the alleged sham defendant").Given this standard, "[t]here is a presumption against finding fraudulent joinder, and defendants who assert that plaintiff has fraudulently joined a party carry a heavy burden of persuasion." Plute v. Roadway Package Sys., Inc., 141 F.Supp.2d 1005, 1008 (N.D. Cal. 2001).

The defendant "must have the opportunity to prove that individuals joined in the action cannot be liable on any theory." Ritchey, 139 F.3d at 1318; see also McCabe, 811 F.2d at 1339 (stating that the removing defendant is entitled to present facts showing that the joinder is fraudulent); Campana v. American Home Products Corp.,No. 1:99cv250 MMP, 2000 WL 35547714, *3 (N.D. Fla. Mar. 7, 2000) ("The removing party must show, with credible evidence, that there is no possibility that a plaintiff can state a cause of action against the nondiverse defendant"). "[F]raudulent joinder claims may be resolved by 'piercing the pleadings' and considering summary judgment-type evidence such as affidavits and deposition testimony." Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (quoting favorably the Fifth Circuit's decision in Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (citations omitted)); see also West American Corp. v. Vaughan Basset Furniture, 765 F.2d 932, 936 n. 6 (9th Cir. 1985) (stating that the court may consider affidavits, depositions, and other evidence); James W. M. Moore, MOORE'S FEDERAL PRACTICE § 102.21(5)(a) (3d ed. 2008)

("The federal court's review for fraud must be based on the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties").

D. Whether There Is a "Non-Fanciful" Possibility That Chavez's Complaint States an Intentional Infliction of Emotional Distress Claim Against Huie

The only cause of action alleged against Huie is a claim for intentional infliction of emotional distress ("IIED"). To determine whether Huie has been fraudulently joined, therefore, the court must evaluate whether defendants have shown by clear and convincing evidence that Chavez has failed to state such a claim and the failure is obvious under state law. A plaintiff pleading a claim for intentional infliction of emotional distress must allege (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing, emotional distress; (2) the fact that the plaintiff suffered severe or extreme emotional distress; and (3) the fact that the outrageous conduct actually and proximately caused the distress. Conley v. Roman Catholic Archbishop of San Francisco, 85 Cal.App.4th 1126, 1133 (2000) (citing Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 593 (1979) ("The elements of a prima facie case of intentional infliction of emotional distress consist of: (1) extreme and outrageous conduct by the defendant with the intent to cause, or reckless disregard for the probability of causing, emotional distress; (2) [the] suffering of severe or extreme emotional distress by plaintiff; and (3) [a finding that] plaintiff's emotional distress is actually and proximately the result of defendant's outrageous conduct"); Wilkens v. National Broadcasting Co., 71 Cal.App.4th 1066, 1087 (1999) (same); Symonds v. Mercury Savings and Loan Ass'n,225 Cal.App.3d 1458, 1468 (1990) (same). The defendant's conduct "must . . . be directed at the plaintiff or [take place] in the presence of the plaintiff." Smith v. Pust, 19 Cal.App.4th 263, 274 (1993). Generally, "conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" Cochran v. Cochran, 65 Cal.App.4th 488, 494 (1998).

The complaint alleges that Huie knew or should have known that his conduct would cause Chavez to suffer emotional distress; that Huie acted with the intent of inflicting emotional distress; and that, as a result of Huie's actions, Chavez did in fact suffer emotional distress.*fn27 Defendants argue that the complaint does not allege sufficiently outrageous conduct by Huie to state an IIED claim. The only conduct Huie allegedly directed at Chavez was (1) ordering Chavez to submit to a second physical and (2) discriminating against older, non-Caucasian employees.*fn28

"A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged." Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 80 (1996). Personnel management activity includes "actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or non-assignment of supervisory functions, deciding who will and who will not attend meetings, [and] deciding who will be laid off." Id. at 64-65. "[A] claim of intentional infliction of emotional distress [can be asserted, however,] '[w]here the behavior goes beyond the act of termination'" or other management activity. Dagley v. Target Corp., Inc., No. CV 09-1330-VBF (AGRx), 2009 WL 910558, *3 (C.D. Cal. Mar. 31, 2009) (quoting Gibson v. American Airlines, No. C 96-1444 FMS, 1996 WL 329632, *4 (N.D. Cal. June 6, 1996)); see also Graves v. Johnson Control World Services, Inc., No. C-05-1772 SC, 2006 WL 618796 *11 (N.D. Cal. Mar. 13, 2006) ("In response, Johnson Control argues that Graves cannot prevail on this cause of action because, as a matter of law, personnel management decisions are not 'outrageous conduct beyond the bounds of human decency.' . . . The court in Janken . . . note[d] that the remedy for personnel management decisions, even where improperly motivated, is 'a suit against the employer for discrimination.' . . . However, Defendant overstates the reach of the Court's decision in Janken to the extent that it argues that any decision affecting personnel management is not actionable under an intentional infliction of emotional distress theory, no matter what the motivation. . . . That proposition is far too broad for the Janken decision to bear, and, in fact, courts considering intentional infliction of emotional distress claims have clearly ruled that such claims can be brought where the 'distress is engendered by an employer's illegal discriminatory practices,'" citing Accardi v. Superior Court, 17 Cal.App.4th 341, 353 (1993), and Hamilton v. Signature Flight Support Corp., No. C-05-409, 2005 WL 1514127, *7 (N.D. Cal. June 21, 2005)); Rojo v. Kliger, 52 Cal.3d 65, 81 (1990) (stating that an "employer's discriminatory actions may constitute . . . outrageous conduct under a theory of intentional infliction of emotional distress"); Murray v. Oceanside Unified School Dist., 79 Cal.App.4th 1338, 1362 (2000) (stating, in a case involving discrimination based on sexual orientation, that "a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices"); Accardi, 17 Cal.App.4th at 353 (permitting a claim for intentional infliction of emotional distress based on allegations of sex discrimination to go forward because the claim was "founded upon actions that are outside the normal part of the employment environment and violate this state's policy against sex discrimination"); Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 618 (1990) ("Given an employee's fundamental, civil right to a discrimination free work environment . . . , by its very nature, sexual harassment in the work place is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society [and will,] . . . if properly pled, . . . constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress against Dr. Tischler").

"Whether . . . alleged behavior is 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." Angie M. v.Superior Court, 37 Cal.App.4th 1217, 1226 (1995). Thus, in other cases in which defendants have argued that a supervisor's alleged conduct was not sufficiently outrageous to support an intentional infliction of emotional distress claim, district courts applying the fraudulent joinder standard have generally found a non-fanciful possibility of liability, even where plaintiff's claim appears "relatively weak." See Asurmendi v. Tyco Electronics Corp., No. C 08-5699 JF (PVT), 2009 WL 650386, *5 (N.D. Cal. Mar. 11, 2009). District courts have also granted motions to remand where the complaint failed to allege outrageous conduct, because it was possible that plaintiff could cure the deficiency by amendment. See Burris v. AT&T Wireless, Inc., No. C 06-02904 JSW, 2006 WL 2038040, *2 (N.D. Cal. July 19, 2006) ("Cingular does not argue that Burris cannot assert a tort claim for emotional distress against his former supervisor as a matter of law. Rather, Cingular argues that Burris failed to state a claim for intentional infliction of emotional distress because he did not allege any extreme or outrageous conduct, a necessary element of this claim. . . . Although as currently ple[d], Burris has not alleged conduct which may be considered extreme or outrageous, Cingular has not demonstrated that, under California law, Burris would not be afforded leave to amend his complaint to cure this purported deficiency. Accordingly, Cingular failed to demonstrate that it is obvious under settled state law that Burris cannot prevail against Mr. Caniglia and thus has not demonstrated that this Court has subject matter jurisdiction").

The court cannot say that there is no possibility that the facts alleged by Chavez would be sufficient to support a finding of IIED against Huie, or that the relevant state law is so well settled that Chavez "would not be afforded leave to amend his complaint to cure [any] purported deficiency." Burris, 2006 WL 2038040 at *2. The complaint alleges that before he directed Chavez to submit to the second, "inherently dangerous" physical, Huie knew of Chavez's leg injury; a jury could find that Huie knew walking up a flight of stairs with an injured leg and no safety rail while carrying weights was more likely to be dangerous for Chavez, and thus cause him to suffer anxiety and/or fear, than an ordinary individual.*fn29 See Hailey v. California Physicians' Service, 158 Cal.App.4th 452, 473 (2007) ("The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity," quoting McDaniel v. Gile, 230 Cal.App.3d 363, 372 (1991)).

Furthermore, the fact that other, similarly situated employees were not required to submit to the same type of strenuous screening test, and the fact that Huie allegedly discriminated against older, non-Caucasian employees, could lead a jury to infer that Huie deceptively required the test in order to effectuate Chavez's termination, and that he knew doing so was "substantially certain to result in severe emotional distress." Dagley,2009 WL 910558 at *3. Indeed, Chavez alleges that the second physical was a "set up," and that Huie intended to use the results as a pretext to dismiss him due to his age and race.*fn30 In Dagley, plaintiff's supervisor terminated her while she was on medical leave. Plaintiff alleged an intentional infliction of emotional distress claim against the supervisor; her employer argued that the supervisor had been fraudulently joined. The district court disagreed, and remanded the action to state court. It noted plaintiff's allegation that the supervisor "either knew or should have known that terminating [Plaintiff] at the age of 63, in her time of need, while she was disabled and/or suffering from a medical condition . . . was substantially certain to result in severe emotional distress." Id. (alteration original). The court reasoned:

"'[A] claim of intentional infliction of emotional distress is possible '[w]here the behavior goes beyond the act of termination. . . .' Gibson [ ], 1996 WL 329632, at *4 [ ]. For example, if 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 that results in the plaintiff being denied rights granted to other employees,' then a claim for intentional infliction of emotional distress is possible against a supervisor. Id. In Gibson, the court found that such a claim was possible against plaintiff's supervisor when the supervisor fired plaintiff in part for taking medical leave. Id. The Gibson court stated that plaintiff was denied the right to medical leave in a deceptive manner when other employees were given such a right. Id. In this case, Plaintiff alleges that she was terminated during her medical leave without any inquiry or warning from Ms. Hernandez. It is possible that a reasonable jury could find that Ms. Hernandez denied Plaintiff's right to medical leave in a deceptive manner by terminating her, and that therefore Plaintiff may possibly have a claim of intentional infliction of emotional distress against Ms. Hernandez. Ms. Hernandez therefore is not a sham defendant." Id.

Here, similarly, it is possible that a jury could infer, based on the facts alleged, that Huie deceptively ordered the second test and terminated Chavez for failing to complete it. While the test was ostensibly administered to evaluate Chavez's fitness for the job, a factfinder could determine that the test was unnecessarily strenuous or dangerous and that it was required to create a pretextual reason for terminating Chavez. In other cases where plaintiff based an intentional infliction of emotional distress claim on similar allegations of deceptive conduct, district courts have declined to find that supervisors were fraudulently joined. See e.g. Asurmendi, 2009 WL 650386 at *5 (holding that an allegation that a manager misrepresented that the purpose of plaintiff's meeting with another manager was to discuss molding rather than the employer's decision to terminate plaintiff "might be sufficient, in light of the totality of the circumstances, for a state court to find that [manager's] behavior was 'outrageous'"). See also Webber v. Nike USA, Inc., No. 12--CV--00974 BEN (WVG), 2012 WL 4845549, *3 (S.D. Cal. Oct. 9, 2012) (concluding that plaintiff's supervisor was not fraudulently sued for IIED in part because the supervisor set "new sales goals that he understood to be unattainable" and terminated plaintiff for failing to meet them).

The cases cited by defendants -- in which courts found supervisors had been fraudulently joined -- are distinguishable. In Kobos v. Schwan's Home Service, Inc., No. 1:09cv0856 LJO DLB, 2009 WL 2425399, *3-4 (E.D. Cal. Aug. 7, 2009), for example, the court found that plaintiff's complaint failed to state an IIED claim against a supervisor where "Plaintiff's Complaint contains only one factual allegation against Defendant Houselog; that is, 'Defendant HOUSELOG took items off of plaintiff's truck and blamed plaintiff for items missing.'" Although the plaintiff suggested that he could make additional allegations against the supervisor in his motion to remand, the court declined to "consider those allegations and [made] no determination as to whether or not they would be sufficient to state a claim against Houselog for intentional infliction of emotional distress." Id. at 4. It concluded that the sole allegation in the complaint did "not demonstrate extreme and outrageous conduct sufficient to state a cause of action for intentional infliction of emotional distress." Id.

Here, by contrast, Chavez has alleged facts showing that Huie knew the severity of Chavez's leg injury, and nonetheless ordered him to complete an overly strenuous and dangerous test that no other employee had had to pass as a prerequisite to retaining his job. Chavez also alleges that Huie's conduct was intentionally designed to cause Chavez emotional distress. These individualized allegations, specifically linked to Chavez's termination from Amerigas, are more "outrageous" than the single allegation in Kobos.

Defendants maintain that the declaration Huie has submitted demonstrates that it is impossible for an IIED claim against him to succeed.*fn31 Huie states that he did not decide to require Chavez to take the second physical; rather, he asserts, the decision was made by Jean Tyrell, a registered nurse and a Workforce Health Consultant for Amerigas.*fn32 Huie's declaration, however, provides no details as to whether Huie had discretion to override the decision or direct that the test not be administered. Furthermore, the declaration does not address whether the second test was a standard test or whether it was designed specifically for Chavez. Huie, for example, does not contradict Chavez's allegation that no other similarly situated employee was required to take the second screening test. Thus, even if all the averments in Huie's declaration are accurate, it is still possible that Huie ultimately made the decision to require Chavez to submit to an unduly strenuous screening test that Huie knew, based on Chavez's condition, Chavez would be unable pass. For this reason, the court cannot say that it would be impossible for a jury to find Huie acted outrageously.*fn33

Even if Huie's declaration makes it impossible for Chavez to prove that Huie's direction that Chavez take the second screening test constituted IIED, the declaration does not address Chavez's allegation that Huie discriminated against him due to his age and ethnicity in other ways. Chavez's IIED claim is based on more than Huie's purported direction that Chavez take a second physical. Chavez alleges that Huie showed favoritism to younger, Caucasian employees throughout his tenure at Amerigas and failed to promote Chavez because of his ethnicity.*fn34 Courts have generally found that IIED claims based on workplace discrimination are properly asserted against individual supervisors. See e.g. Barsell v. Urban Outfitters, Inc.,No. 09-2604 MMM (RZx), 2009 WL 1916495, *4 (C.D.Cal. July 1, 2009) ("Because this claim [for IIED] is based on allegations of disability discrimination, there is a non-fanciful possibility" that plaintiff can state a claim against her supervisor); Graves v. Johnson Control World Services, Inc., No. C-05-1772 SC, 2006 WL 618796 *11 (N.D. Cal. Mar. 13, 2006) ("[C]courts considering intentional infliction of emotional distress claims have clearly ruled that such claims can be brought where the 'distress is engendered by an employer's illegal discriminatory practices"); Rojo, 52 Cal.3d at 81 (stating that an "employer's discriminatory actions may [also] constitute . . . outrageous conduct under a theory of intentional infliction of emotional distress"); Murray v. Oceanside Unified School Dist., 79 Cal.App.4th 1338, 1362 (2000) (stating, in a case involving discrimination based on sexual orientation, that "a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer's illegal discriminatory practices"); De Ruiz v. Courtyard Management Corp., No. C 06-03198 WHA, 2006 WL 2053505, *4 (N.D. Cal. July 21, 2006) ("[C]onduct contrary to the public policy . . . can support an IIED claim" against an individual supervisor). Chavez's allegations that Huie engaged in discriminatory conduct towards him, including allegations that Huie failed to promote him due to his age and race, are incorporated into his IIED claim.*fn35 To the extent that Chavez's IIED claim is predicated on Huie's purportedly illegal discriminatory practices, the court cannot conclude that it is obvious Chavez cannot state a claim against him even given Huie's declaration.

Ultimately, while defendants may ultimately prevail on what appears to be a relatively weak IIED claim, "such a consideration is of limited import for purposes of the instant motion, which requires Plaintiff to make even less of a showing than would be required on a motion to dismiss." Asurmendi, 2009 WL 650386 at *5. See also Charles v. ADT Sec. Services, No. CV 09-5025 PSG (AJWx), 2009 WL 5184454, *2 (C.D. Cal. Dec. 21, 2009) ("While these allegations may very well prove insufficient, the Court cannot, at this stage, conclude that Plaintiff has no possibility of recovery, especially when Plaintiff's termination is viewed in the context of his disability"). Accordingly, the court finds that defendants have not met their burden of showing by clear and convincing evidence that Chavez has no possibility of prevailing on the merits of his IIED claim against Huie. As a result, the court cannot find that Huie has been fraudulently joined.*fn36

III. CONCLUSION

For the reasons stated, the court finds that Huie has not been fraudulently joined. Because defendants have failed to demonstrate that Huie's citizenship is diverse from Chavez's, and because it appears likely that both are California citiznes, the court lacks subject matter jurisdiction to hear the action.*fn37 Chavez's motion to remand is therefore granted, and the clerk is directed to remand the action to Los Angeles Superior Court forthwith.


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