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Ngo v. United Airlines, Inc.

United States District Court, N.D. California

November 15, 2019

LOI NGO, Plaintiff,
UNITED AIRLINES, INC., et al., Defendants.


          Joseph C. Spero Chief Magistrate Judge.


         Plaintiff Loi Ngo asserts state law claims, including claims of discrimination and harassment under the California Fair Employment and Housing Act (“FEHA”), against his former employer, United Airlines (“United”), and two of his former supervisors, Mohammed Buksh and Yvonne Pierce. He filed this action in the Superior Court of the State of California, County of Alameda and Defendants removed to federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a)(1). Although Defendants Buksh and Pierce are citizens of California - as is Ngo - Defendants contend there is diversity of citizenship because Buksh and Pierce were fraudulently joined in this action. Presently before the Court is Ngo's Motion to Remand (“Motion”), in which he argues that this action should be remanded to state court on the basis that there is no federal subject matter jurisdiction because neither Pierce nor Buksh is a “sham defendant” and therefore there is no diversity jurisdiction. The Court finds that the Motion is suitable for determination without oral argument and therefore vacates the motion hearing set for November 22, 2019 pursuant to Civil Local Rule 7-1(b). Because the Court finds that this case must be remanded to state court, the Initial Case Management Conference set for the same date is also vacated.

         For the reasons stated below, the Court GRANTS the Motion.[1]


         Ngo alleges that he was employed by United for nearly 29 years when he was fired on March 2, 2018 during a medical leave of absence. FAC ¶ 16. Ngo worked on maintaining aircraft components at United's San Francisco International Airport (“SFO”) maintenance base. Id. In recent years, he worked as a sheet metal technician, fabricating, repairing and overhauling sheet metal parts. Id. Defendant Buksh is currently a Senior Manager in the United's Components Shop at SFO and was a skip-level supervisor of Ngo. FAC ¶ 12. Defendant Pierce is a supervisor working under Buksh; she was Plaintiff's direct supervisor. FAC ¶ 13.

         Ngo alleges in the FAC that Buksh and Pierce demonstrated hostility toward Ngo's disability-related physical restrictions from the time he first transferred to their unit. In particular, Ngo alleges that when Pierce learned Ngo was being transferred to her unit, she made it clear she did not want him because he had a 40-pound lifting restriction due to a prior industrial accident at United, telling Human Resources that she only wanted “100% workers.” FAC ¶ 41. Likewise, Buksh allegedly tried to persuade Ngo to find a doctor who would be willing to support clearing the 40-pound lifting restriction from the file so that Ngo would appear to be 100% healed, even though Buksh knew that he was not. Id.

         Ngo alleges that after he was transferred to Pierce and Buksh's unit he was injured twice - once in April 2016, when he injured his thumb (“the thumb injury”) and next in May 2016, when he injured his elbow (“the elbow injury”). FAC ¶¶ 17, 22. He alleges that after the thumb injury he was cleared to return to work with a 15-pound lifting restriction and instructions to reduce the use of his right upper body at work. FAC ¶ 17. According to Ngo, Pierce did not abide by these restrictions, forcing him to rely on his left arm and upper body to operate a sanding machine that required the use of two hands, even though she knew Ngo was right-handed and that he was in pain, and refusing to allow him to take adequate breaks to alleviate the physical strain. FAC ¶ 19. Ngo alleges that Buksh supported Pierce's forcing him to “use the outdated sanding machine, while in pain, in defiance of his doctor-ordered work restrictions.” FAC ¶ 20. Ngo further alleges that the elbow injury was “due to the stress of relying on [the] left side of his body while working on the sanding machine.” FAC ¶ 22.

         According to Ngo, Pierce and Buksh knew that United had a newer sanding machine that was designed to prevent injuries like the one he sustained but refused to allow him to use it. FAC ¶ 23. Similarly, although there was “plenty of work available that Ngo could do” in the sheet metal maintenance operation that would not have violated his doctor-ordered physical restrictions, “Buksh and Pierce intentionally refused to shift Ngo to work that would have accommodated his physical restrictions.” FAC ¶ 21.

         After the elbow injury, Ngo was “examined by doctors arranged by United and was ordered to undergo physical therapy.” FAC ¶ 25. According to Ngo, Buksh and Pierce made it difficult for him to go to physical therapy, denying him time off to go to the clinic where United had arranged for him to receive physical therapy and consistently giving him the “run-around” with respect to getting approvals, with each of them telling Ngo he needed to obtain approval from the other. FAC ¶3 27, 32. Because of Pierce and Buksh's overt hostility to his requests for scheduling accommodations, Ngo alleges, he was able to go to physical therapy only once. FAC ¶ 33. In contrast, “[o]ther workers (not East Asian or not immigrants) who needed time off or scheduling accommodations for medical reasons were given permission to go to their medical appointments” and physical therapy. FAC ¶ 31.

         Ngo further alleges that Pierce treated him worse than other workers in response to his request for time off for family medical reasons, referring to his son as “your retarded son” when he requested to “take a little time off to care for his disabled son.” FAC ¶¶ 29-30.

         Ngo also alleges that Buksh and Pierce repeatedly asked him about the details of his medical conditions, even though all they were entitled to know were the post-injury work restrictions that had been approved by United. FAC ¶ 34. According to Ngo, Buksh once pressed Ngo to give him a copy of a medical form he was not entitled to see, and on another occasion searched his tool box for medical reports. FAC ¶¶ 35-36.

         Ngo alleges that as a result of the hostile work environment created by Buksh and Pierce he developed depression and anxiety and was forced to take an unpaid medical leave of absence. FAC ¶ 40. He attempted to return to work on May 9, 2017, reporting to work with a doctor's note clearing him to return to work with the same physical restrictions as when he had return to work in May 2016, but Buksh and Pierce sent him home saying they needed to get approval from headquarters. FAC ¶¶ 45-46. According to Ngo, [t]heir conduct was a striking departure from normal practices and betrayed an animosity targeted at Ngo.” FAC ¶ 46. Ngo was forced to continue his medical leave as a result of this rejection. FAC ¶ 47. He was once again cleared to return to work in August 2017. FAC ¶ 48. He contacted United Medical department at United Headquarters and was instructed to return report to work on August 10, 2017; he was told that if any questions arose local management should call United Medical. Id.

         According to Ngo, problems did arise: when he returned to work on August 10, 2017 Pierce and another manager told him he “could not be there.” FAC ¶ 50. When Ngo told the managers that he was cleared to return to work and that they should call United Medical, Pierce and the other manager refused to do so, instead attempting to confiscate Ngo's employee badge, to Ngo's “shock and embarrassment.” FAC ¶ 51. At that point another manager intervened and told Pierce that Ngo was still an employee of United so long as he was on medical leave and that she could not confiscate the badge. Id. Ngo was “humiliated and traumatized” by this experience. Id. He alleges that he has ‚Äúseen numerous employees go on medical leave and never has he seen or ...

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