United States District Court, N.D. California, San Francisco Division
For Ann Hornby, Plaintiff: Yosef Peretz, LEAD ATTORNEY, Sumy Kim, Peretz and Associates, San Francisco, CA.
For Integrated Project Management, Inc., Harry Georgiades, Richard Piehl, Defendants: Edward Garcia, Jr., Bragg & Kuluva, San Francisco, CA.
ORDER GRANTING PLAINTIFF'S MOTION TO REMAND, DECLINING TO RULE ON MR. GEORGIADES AND MR. PIEHL'S MOTION TO DISMISS, AND DENYING PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES [Re: ECF Nos. 9, 10]
LAUREL BEELER, United States Magistrate Judge.
In this action, plaintiff Ann Hornby sued her former employer, defendant Integrated Project Management, Inc. (" IPM"), and her former supervisors, defendants Harry Georgiades and Richard Piehl, in state court for claims arising out of the conditions and termination of her employment. ( See Garcia Decl., Ex. A, ECF No. 2-1 at 5-18 (" Complaint").) Defendants removed the action to federal court on the ground that there is complete diversity between the parties because she fraudulently joined Mr. Georgiades and Mr. Piehl. ( See Notice of Removal, ECF No. 2 at 2-4.) Mr. Georgiades and Mr. Piehl now move to dismiss the two claims that Ms. Hornby brings against them, and Ms. Hornby moves to remand the action to state court. ( See Motion to Dismiss, ECF No. 9; Motion to Remand, ECF No. 10.) Pursuant to Civil Local Rule 7-1(b), the court found this matter suitable for determination without oral argument. Because the court finds that Mr. Georgiades and Mr. Piehl have not met their burden to show that Ms. Hornby cannot possibly recover from them, the court grants Ms. Hornby's motion to remand and, given the court's lack of subject-matter jurisdiction over the action, declines to rule on Mr. Georgiades and Mr. Piehl's motion to dismiss. The court also denies Ms. Hornby's request for attorneys' fees.
Ms. Hornby, who is a 62-year-old California citizen, worked for IPM, which is an Illinois corporation, as a Project Manager Consultant from April 2011 until July 1, 2013. (Complaint ¶ ¶ 3-4, 14.) During her first year with IPM, she reported directly to Mr. Georgiades, who is a California citizen and resident and was IPM's Director of Regional Operations, and Kim Pham, IPM's Regional Operations Manager. (Id. ¶ ¶ 6, 16.) She received a satisfactory performance review on October 4, 2011; she was commended for making a positive first impression at IPM. (Id. ¶ 18.) On February 20, 2012, she was awarded a substantial performance bonus for her work in 2011. (Id. ¶ 20.) On April 4, 2012, she received a " good" performance review, which stated, " After a year with IPM, [Ms. Hornby] has a solid understanding of IPM's value of customer service and project management excellence." (Id. ¶ 21.)
On October 16, 2012, Ms. Pham was promoted to the position of Business Development Executive, so Monroe Hatch took over as Regional Operations Manager. (Id. ¶ 22.) In October or November 2012, Ms. Hornby was praised by " Defendants" for " quickly provid[ing] value and produc[ing] high quality deliverables" for a client on a particular project. (Id. ¶ 23.) On April 4, 2013, she received another " good" performance review, this time from Mr. Georgiades and Mr. Hatch. (Id. ¶ 24.)
That same day, Mr. Piehl, who is a California citizen and resident, replaced Mr. Hatch as Regional Operations Manager and became Ms. Hornby's new direct supervisor. (Id. ¶ 25.) And during that same month, Mr. Piehl assigned Ms. Hornby to a new project: working with Jenny Zhong, a project manager at Genentech. (Id. ¶ 26.) According to Ms. Hornby, Ms. Zhong has a long history of being difficult to work with and being abusive to IPM's Project Manager Consultants. (Id.) The turnover rate of IPM Project Manager Consultants who are assigned to work with her has been high. (Id.) Indeed, two previous IPM Project Manager Consultants who had been assigned to work with Ms. Zhong are no longer with IPM because of the difficulty working with Ms. Zhong and catering to her demands. (Id.)
As such, Ms. Zhong's reputation as a difficult client is well recognized within IPM generally and by Mr. Georgiades and Mr. Piehl specifically. (Id. ¶ 27.) In fact, Mally Arad, a one-time IPM Regional Operations Manager, and Ms. Pham both recommended to Mr. Georgiades that Ms. Hornby not be assigned to work with Ms. Zhong because such an assignment would not be a " good fit" for Ms. Hornby. (Id. ¶ 28.)
Despite these recommendations, Mr. Georgiades and Mr. Piehl " deliberately set [Ms. Hornby] up for failure" by assigning her to work with Ms. Zhong, as they knew that Ms. Hornby would not be able to meet Ms. Zhong's demands. (Id. ¶ 29.) Throughout the assignment, Ms. Hornby communicated to " Defendants" on multiple occasions that Ms. Zhong's demands would be more appropriately fulfilled by one of IPM's Subject Matter Experts, as Ms. Zhong often expected Ms. Hornby to perform duties that were beyond the role of a Project Manager Consultant generally and beyond Ms. Hornby's specific knowledge. (Id. ¶ 31.) " Defendants, " however, failed to take any action on her communications and " never gave her the appropriate support to succeed in her assignment with Ms. Zhong." (Id. ¶ 32.) Specifically, " Defendants" never provided her with the necessary assistance during her assignment with Ms. Zhong, whether through training, mentoring, or the assignment of a Subject Matter Expert. (Id. ¶ 33.) Instead, Mr. Piehl " would make comments to [Ms. Hornby] on the basis of her age . . . that she was too slow at learning the systems and projects she was assigned to." (Id. ¶ 34.) Nevertheless, Ms. Hornby tried to meet Ms. Zhong's demands by working very long hours and learning a vast and new subject area in a short time. (Id. ¶ 35.)
After working with Ms. Zhong for one or two stressful months, Ms. Hornby's fibromyalgia symptoms, which had been dormant for 13 years, reappeared, and by late May 2013 they had become so severe that she had to seek medical attention. (Id. ¶ 37.) She scheduled an appointment with her doctor for the morning of May 28, 2013. (Id.) On May 24, 2013 (four days before her medical appointment), Mr. Piehl told Ms. Hornby that she was to meet with him on the afternoon of May 28, 2013 to discuss her assignments. (Id. ¶ 38.)
On the morning of May 28, 2013, Ms. Hornby's doctor told her that her fibromyalgia " had flared up" and recommended that she take a two-and-a-half-week leave of absence from work to rest. (Id. ¶ 39.) While she was at the doctor's office, Mr. Piehl sent Ms. Hornby an email that included a performance review. (Id. ¶ 40.) The review gave her a " transitional" performance rating and stated that she must " improve her 'average' performance and begin to 'wow' her clients." (Id.) The review stood in contrast to the " good" rating and positive comments about her performance that were made in April 4, 2013 performance review. (Id. ¶ 41.)
After she returned from seeing her doctor, Ms. Hornby presented Mr. Piehl with a letter from her doctor that requested that Ms. Hornby be placed on medical leave until June 14, 2013. (Id. ¶ 42.) Shortly thereafter, Ms. Hornby was called into a meeting with Mr. Piehl, Mr. Georgiades, and IPM's Chief Financial Officer, JoAnn Jackson, who attended by telephone. (Id. ¶ 43.) During the meeting, Ms. Hornby was given a letter, which was signed by Mr. Piehl, stating that Ms. Hornby's " talents [we]re not a good fit with IPM requirements." (Id.) It also stated that Ms. Zhong " has asked that [Ms. Hornby] transition [her] responsibilities to an internal ...