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Fernandez v. PSC Industrial Outsourcing LP

United States District Court, N.D. California, San Jose Division

July 24, 2017



          EDWARD J. DAVILA United States District Judge.


         Plaintiff Richard Fernandez (“Plaintiff”) brought this action for employment discrimination in the California Superior Court for the County of San Benito. Defendants PSC Industrial Outsourcing, LP (“PSC”), a citizen of the State of Delaware, and Gary Colbert (“Colbert”), a citizen of the State of California, removed the action, asserting diversity jurisdiction under 28 U.S.C. §1441(b). Defendants acknowledge that both Plaintiff and Defendant Colbert are citizens of California; however, Defendants contend that Colbert is a sham defendant whose presence does not defeat diversity. Plaintiff filed a motion to remand and noticed the motion for hearing on July 27, 2017. The Court finds it appropriate to take the motion under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). Having considered the motion, opposition, and reply briefs, and for the reasons set forth below, Plaintiff's motion to remand the action to San Benito County Superior Court is granted.


         Plaintiff's original complaint contains six causes of action: (1) disability discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) failure to engage in the interactive process in violation of the FEHA; (3) failure to accommodate in violation of the FEHA; (4) wrongful termination in violation of public policy; (5) intentional infliction of emotional distress (“IIED”); and (6) negligent infliction of emotional distress (“NIED”). All six claims are asserted against Plaintiff's former employer, PSC; the IIED and NIED claims are asserted against Plaintiff's former manager, Colbert. After Defendants removed the action to this Court, Plaintiff filed a First Amended Complaint (“FAC”), to set forth additional facts in support of his six causes of action.

         In the FAC, Plaintiff alleges that in December 2011, he began working as a Technician for PSC, a company that provides specialty maintenance services for the aerospace, manufacturing, refining, chemical, and other industries. Starting in October 2015, Plaintiff made numerous complaints to Colbert about company practices that he believed posed imminent harm to himself and his co-workers. For example, Plaintiff raised concerns about the lack of training provided to workers regarding the operation of a self-contained breathing apparatus (“SCBA”), a device worn by workers to provide breathable air in a hazardous atmosphere. Plaintiff also complained that PSC failed to provide employees with proper equipment to clean hazardous material in a liquid tank.

         Plaintiff alleges that after he made the complaints, “Colbert's conduct became hostile.” More specifically, Plaintiff alleges that Colbert treated him with disdain; withheld resources necessary for him to perform his job; refused to take steps to protect him from workplace bullying; and ignored complaints that another supervisor, Bruce Gilbert, intentionally created a hostile work environment and used abusive language. Plaintiff also alleges that instead of addressing Plaintiff's concerns, Colbert intentionally assigned Plaintiff to work on projects that Gilbert supervised.

         Plaintiff alleges that in December of 2015, he took a medical leave of absence due to severe lower back pain, and in late February of 2016, he requested an extension of his medical leave of absence and mailed PSC a Certification of Health Care Provider for Employee's Serious Health Condition Form (“Certification”). Plaintiff alleges that despite repeated phone calls, PSC ignored his request for an extension of his medical leave of absence and terminated him on March 24, 2016. Plaintiff alleges on information and belief that Colbert made and/or approved the termination decision. Plaintiff further alleges that PSC cancelled his employer-provided medical benefits, and consequently, medical treatment for his back has been compromised and delayed. Plaintiff alleges that he has and continues to suffer pain, humiliation, severe emotional distress, trauma and sleeplessness.


         Removal jurisdiction is a creation of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979) (“The removal jurisdiction of the federal courts is derived entirely from the statutory authorization of Congress.”). In general, only those state court actions that could have been originally filed in federal court may 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.”); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“Only state-court actions that originally could have been filed in federal court may be removed to federal court by defendant.”). Accordingly, the removal statute provides two basic ways in which a state court action may be removed to federal court: (1) the case presents a federal question, or (2) the case is between citizens of different states and the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1441(a), (b).

         On a motion to remand, it is the removing defendant's burden to establish federal jurisdiction, and the court must strictly construe removal statutes against removal jurisdiction. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (“The ‘strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.”). “Where doubt regarding the right to removal exists, a case should be remanded to state court.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003).


         Plaintiff does not dispute that, without Colbert, there would be complete diversity, and the amount in controversy would exceed the jurisdictional minimum. Thus, the only issue on this motion is whether Plaintiff has stated or can state a claim against Colbert.

         A. ...

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