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Duong v. Itt Educational Services, Inc.

United States District Court, E.D. California

September 10, 2014

HUNG DUONG, Plaintiff,


STANLEY A. BOON, Magistrate Judge.

On August 12, 2014, Plaintiff Hung Duong ("Plaintiff") filed a motion to remand this action back to state court for lack of jurisdiction. (ECF No. 28.) The motion was referred to the undersigned magistrate judge for findings and recommendations pursuant to 28 U.S.C. § 636(b).

The hearing on Plaintiff's motion took place on September 10, 2014. Attorney Kevin Schwin appeared in person on behalf of Plaintiff. Attorney Thomas McInerney appeared telephonically on behalf of Defendants ITT Educational Services, Inc., Sam Russell, and Allison Hawkins/Hopkins[1] ("Defendants").

For the reasons set forth below, the Court recommends that Plaintiff's motion to remand be granted.



This action was removed from the Superior Court of California for the County of Alameda on June 9, 2014. (ECF No. 1.) This action was initially removed to the District Court for the Northern District of California. Defendants removed this action based upon diversity citizenship pursuant to 28 U.S.C. § 1332.

On June 16, 2014, United States Magistrate Judge Nathanael M. Cousins issued an Order to Show Cause Re: Subject Matter Jurisdiction and directed Defendants to show cause why diversity jurisdiction exists given that Plaintiff and two of the named defendants are citizens of California. (ECF No. 9.) Before the order to show cause was resolved, Defendants filed a motion to transfer venue to the District Court for the Eastern District of California pursuant to 28 U.S.C. § 1404(a). (ECF No. 13.) Plaintiff filed a motion to remand in the Northern District on July 3, 2014. (ECF No. 16.) On July 31, 2014, Defendants' motion to transfer venue was granted and the case was transferred from the Northern District to this Court.

Plaintiff's complaint asserts five causes of action for 1) retaliation under California's Fair Employment and Housing Act ("FEHA"), 2) discrimination based upon national origin under FEHA, 3) discrimination based upon age under FEHA, 4) discrimination based upon race under FEHA, and 5) defamation. Plaintiff names ITT Educational Services, Inc. ("ITT"), Sam Russell, and Allison Hawkins/Hopkins as defendants in this action. Plaintiff alleges that he was formerly employed by ITT, initially as an "Adjunct Instructor of Electronics and eventually as Chair of the Electronics Department. Plaintiff is a Vietnamese man who was 55 years old at the time of his termination.

Plaintiff further alleges that starting in August 2012, Defendant Hopkins began harassing Plaintiff, making unfounded accusations of poor job performance and failure to follow ITT's policies and procedures. In October 2012, Plaintiff applied for an opening for a position as Dean of ITT's Clovis, California campus. Plaintiff alleges he was asked to take a psychological/personality assessments as part of the application process, but other applicants were not asked to take this assessment. Plaintiff further alleges that Hopkins hired Pha Mouavangsou, a 37-38 year old Hmong man, instead of Plaintiff. Hopkins told Plaintiff that he was not given an interview for the Dean position because he was not recommended for the position based upon the results of the psychological/personality assessment.

Plaintiff alleges that after Mr. Mouavangsou was hired as dean, Mr. Mouavangsou began harassing Plaintiff by giving him tasks with short deadlines, issuing warnings for failing to work scheduled hours at times when Plaintiff was not scheduled to work, and usurping Plaintiff's authority as Chair of the Electronics Department by hiring a candidate for an Adjunct Instructor position with Plaintiff's approval or consent. Plaintiff also alleges that Hopkins asked Plaintiff to allow students in a particular class to take a make-up exam after failing the final exam despite Plaintiff's objections that it would be unethical.

In May 2013, Plaintiff filed a complaint of harassment and discrimination with ITT's Human Resources Department. Defendant Russell was assigned to investigate Plaintiff's complaint. Russell interviewed Hopkins, Mr. Mouavangsou, and others in his investigation. On June 3, 2013, Russell sent Plaintiff an e-mail summarily dismissing his concerns.

From then on, Hopkins and Ms. Mouavangsou began retaliating against Plaintiff. Plaintiff alleges that on June 7, 2013, Hopkins gave Plaintiff an excessively long list of tasks to be completed on short notice before Plaintiff's vacation which began on June 10, 2013, causing Plaintiff to cancel his vacation.

On June 12, 2013, Plaintiff was terminated. Plaintiff later discovered that Russell and Hopkins falsely reported to ITT's Human Resources Department that Plaintiff cancelled three classes without approval and Plaintiff asked an Adjunct Instructor to sign blank, pre-dated attendance forms. Plaintiff learned that he was terminated due to these false reports. Plaintiff further alleges that, even if these false reports were true, Plaintiff was treated differently than similarly situated employees who were not terminated or disciplined for signing blank, pre-dated attendance forms or cancelling/rescheduling classes without approval.



Removal of an action from state court to federal court is generally governed by 28 U.S.C. § 1441, which states, in pertinent part:

(a) Generally.-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 ...

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