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Title Hale v. Bank of America

March 13, 2013


The opinion of the court was delivered by: Honorable Margaret M. Morrow


Present: The Honorable MARGARET M. MORROW


Deputy Clerk Court Reporter

Attorneys Present for Plaintiff: Attorneys Present for Defendants:

None None

Proceedings: Order Remanding Case to State Court

On February 15, 2013, the court issued an order to show cause why this case should not be remanded to state court.*fn1 Defendant Bank of America, N.A. responded on February 25, 2013.*fn2 Plaintiff Besthines Hale filed a response on March 4, 2013.*fn3 For the reasons below, the court finds that it lacks jurisdiction over this matter and remands it to Los Angeles Superior Court.


On October 5, 2012, plaintiff commenced this action in state court against Bank of America, N.A. ("BofA") and Raymond Cervantez ("Cervantez").*fn4 On November 26, 2012, BofA removed the action to this court, invoking the court's diversity jurisdiction under 28 U.S.C. § 1332.*fn5 Plaintiff is a citizen of California.*fn6 BofA is a federally chartered national banking association formed and existing under the laws of the United States, with headquarters located in North Carolina; it is therefore is a citizen of North Carolina for diversity purposes.*fn7

See Mireles v. Wells Fargo Bank, N.A., 845 F.Supp.2d 1034, 1061 (C.D. Cal. 2012) (recognizing that a national banking association is a citizen of the state in which its main office is located). The complaint does not plead Cervantez's citizenship, although BofA's notice of removal indicates he is a California resident.*fn8

BofA or its predecessor hired plaintiff as a senior personal banker in approximately February 1984.*fn9 Plaintiff, a black female, was assigned to Westwood Village Branch 99.*fn10 Cervantez was the manager of that branch during the relevant period.*fn11 On or about May 22, 2009, plaintiff appears to have either (1) reported concerns about race discrimination and sexual favoritism in the branch to Cervantez, or (2) "reported up" regarding a prior complaint to Cervantez.*fn12 Plaintiff asserts that no action was taken to investigate or address her concerns,*fn13 and that defendants retaliated against her over a period of several months, culminating in her termination.*fn14 Plaintiff filed one or more formal complaints with the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission.*fn15 Upon termination, she called the bank's Compliance division, which purportedly informed her that pursuant to company policy, "at no time should an employee be fired for no cause or for race[,] creed or color."*fn16

Plaintiff alleges that Cervantez engaged in persistent harassment and discriminatory behavior.*fn17 She contends that since Cervantez became manager of the banking center, all promotions but one have gone to employees of Hispanic descent.*fn18 The one non-Hispanic promoted was purportedly part of Cervantez's "party group."*fn19 Plaintiff asserts that defendants took no action to address these issues, despite her repeated efforts to report them.*fn20

Instead, plaintiff contends, Cervantez retaliated by engaging in more outrageous behavior, and eventually by terminating her. Cervantez purportedly harassed plaintiff verbally on numerous occasions, yelling at her publicly about allegedly pretextual concerns with her work.*fn21 Plaintiff contends that he "verbally assaulted [her] by screaming at, berating and humiliating [her] while accusing [her] of not being able to do her job" in front of customers and another superior.*fn22

He purportedly cut hours plaintiff had worked from her pay, with no explanation.*fn23 On several occasions, Cervantez allegedly approached plaintiff when no one else was present,*fn24 prompting her to write a letter stating that she was afraid to be alone with him.*fn25 Furthermore, Cervantez allegedly contacted other employees at their homes in an attempt to solicit negative reviews about plaintiff.*fn26 Plaintiff contends that an investigation of her complaints concluded that Cervantez and/or BofA were out of compliance with federal and state law.*fn27

Plaintiff pleads claims for (1) employment discrimination based on national origin, age, sex, race, or color in violation of the California Fair Employment and Housing Act ("FEHA"), Government Code § 12940; (2) harassment in violation of FEHA; (3) retaliation in violation of FEHA; and (4) intentional infliction of emotional distress ("IIED").*fn28 The harassment and ...

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