United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on plaintiff Mary Planck's motion to remand (DE 4). Planck brought this action in Madison Circuit Court alleging that EnerSys Delaware, Inc. ("EnerSys"), Ed Bauer, and Dennis Braumbaugh unlawfully terminated her employment with EnerSys. Defendants assert that plaintiff fraudulently joined Bauer and Braumbaugh to defeat federal diversity jurisdiction. For the following reasons, plaintiff's motion to remand will be granted.
In June 2011, Planck began working as a "labeler" for EnerSys, a battery manufacturer, at its Richmond, Kentucky plant. (DE 1-1 Compl. at ¶¶ 7, 12.) On or about June 3, 2013, she applied for, and received, the "Wastewaters Operator's position." (DE 1-1 Compl. at ¶ 12.) On her first day as a Wastewaters Operator, Planck developed "a rash on her arms, neck, face, chest, and stomach" and "experienced extreme headaches" while working in the Fiberglass Tubing Plant. (DE 1-1 Compl. at ¶ 13.) After notifying her supervisor, plaintiff was referred to the company doctor, Dr. Ruth Ann Combs, who removed plaintiff from the Fiberglass Tubing Plant and prescribed medication to treat the rash. (DE 1-1 Compl. at ¶ 14.) Planck's supervisor placed her on a temporary suspension. (DE 1-1 Compl. at ¶ 15.)
On June 7, 2013, plaintiff was en route to an appointment with Dr. Combs when her vehicle collided with the vehicle of Dennis Braumbaugh, EnerSys Plant Manager. (DE 1-1 Comp. at ¶ 16.) Planck received medical treatment for her injuries and was released to return to work two weeks later. (DE 1-1 Compl. at ¶¶ 17, 18.)
When Planck returned to EnerSys, "she was placed on the same machine as before in the Fiberglass Tubing Plant, " and she again developed a rash and experienced headaches. (DE 1-1 Compl. at ¶ 18.) Plaintiff reported her condition to her supervisor and was ultimately instructed by the company doctor to schedule an appointment with an allergy specialist. (DE 1-1 Compl. at ¶ 18.) Planck subsequently met with an allergist who advised that plaintiff "could not work around fiberglass or the chemicals used in the Fiberglass Tubing Plant" and wrote plaintiff a note stating that she needed to be removed from the Fiberglass Tubing Plant. (DE 1-1 Compl. at ¶ 19.)
After the appointment, Planck reported the allergist's findings to Michelle Johns, a human resources assistant with Enersys. (DE 1-1 Compl. at ¶ 20.) Johns instructed Planck to attend a meeting with Ed Bauer, human resources official, on June 28, 2013. (DE 1-1 Compl. at ¶ 20.) At the meeting, plaintiff presented the allergist's note, and Bauer made a copy of it. (DE 5-1 Planck's Dep. at 149.) According to Planck, Bauer then informed her "if she could not work in the Fiberglass Tubing Plant then there was no job available and her separation papers would be sent to her."(DE 1-1 Compl. at ¶ 21.) Plaintiff asserts that she was not offered a transfer back to her previous position despite the fact that two male employees "disqualified themselves from a position and then later received transfers back to their previous positions[.]" (DE 1-1 Compl. at ¶¶ 23-24.)
On or about March 3, 2014, plaintiff filed this suit in Madison Circuit Court. She asserts three claims solely against EnerSys: (1) disability discrimination, in violation of the Kentucky Civil Rights Act ("KCRA"), KRS § 344.040; (2) sex discrimination, in violation of the KCRA, KRS § 344.040; and (3) promissory estoppel. (DE 1-1). She also advances a claim against EnerSys, Bauer, and Braumbaugh for terminating her employment in retaliation for requesting a reasonable accommodation, in violation of the KCRA, KRS § 344.280. (DE 1-1). Plaintiff seeks damages, costs, interest, and attorneys' fees. (DE 1-1).
Defendants timely removed the action to this Court based on federal diversity jurisdiction. (DE 1). A federal court has subject matter jurisdiction over civil actions where the amount in controversy exceeds $75, 000.00 and the action is between citizens of different states. 28 U.S.C. § 1332(a). "In order for a defendant to remove a case to federal court based upon diversity jurisdiction, there must be complete diversity of citizenship both at the time the case is commenced and at the time the notice of removal is filed." Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999).
Planck and defendants Bauer and Braumbaugh are all Kentucky citizens. (DE 1 Notice of Removal at 3; DE 1-1 Compl. at ¶¶ 1, 5.) However, defendants assert that the Court should disregard the citizenship of Bauer and Braumbaugh because plaintiff fraudulently joined them to this suit. (DE 1 Notice of Removal at 6-10.) Defendants argue that Planck cannot show that she engaged in a protected activity-as is required to establish a retaliation claim under the KCRA-and instead impermissibly relies on her status as a woman and allegedly disabled person. (DE 1 Notice of Removal at 6-10.) Accordingly, defendants contend that Planck cannot assert a colorable retaliation claim against the non-diverse Bauer and Braumbaugh, so there is complete diversity between the parties. (DE 1 Notice of Removal at 10.)
Planck filed motion to remand this action to Madison Circuit Court. (DE 4). She argues that she was engaged in a "protected activity" for purposes of the KCRA when she requested a reasonable accommodation for her disability and has otherwise established a prima facie claim for retaliation. (DE 4 Pl.'s Mot. to Remand at 5-8.) Therefore, plaintiff contends that she has a colorable retaliation claim against defendants Bauer and Braumbaugh and that they were not fraudulently joined. The parties do not dispute that the amount in controversy exceeds $75, 000.00.
II. FRAUDULENT JOINDER
"Fraudulent joinder occurs when the non-removing party joins a party against whom there is no colorable cause of action." Saginaw Hous. Comm'n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009) (citing Jerome-Duncan, 176 F.3d at 907). In determining whether the non-removing party asserted a colorable claim against a non-diverse party, the "court must resolve all disputed questions of fact and ambiguities in the controlling state law in favor of the non removing party. All doubts as to the propriety of removal are resolved in favor of remand." Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (citations omitted); see also 16 James Wm. Moore, Moore's Federal Practice § 107.14[c] (3d ed. 2013) ("If a possibility of a valid claim exists against the in-state defendant, the case is properly cognizable only in state court if the citizenship of that defendant would bar diversity jurisdiction."). A non-diverse defendant is fraudulently joined to the action if it is clear that the plaintiff cannot recover from the non-diverse defendant. Casias v. Wal-Mart Stores, Inc., 695 F.3d 428, 432-33 (6th Cir. 2012). "A defendant attempting to prove fraudulent joinder thus faces a particularly heavy burden." Kent State Univ. Bd. of Trs. v. Lexington Ins. Co., 512 F.Appx. 485, 489 (6th Cir. 2013).
When engaging in a fraudulent joinder analysis, courts "apply a test similar to, but more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss." Casias, 695 F.3d at 433. As appropriate, "[t]he court may look to material outside the pleadings for the limited purpose of determining whether there are undisputed facts that negate the claim.'" Id. (quoting Walker v. Phillip Morris USA, Inc., 433 F.Appx. 946, 955-56 (6th Cir. 2011)). Therefore, "the court may... examine... affidavits and deposition testimony for evidence of fraud" to determine if a party has been fraudulently joined. Gentek Bldg. Prods. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). "However, the Court must be careful not to step from the threshold jurisdictional issue [of fraudulent joinder] into a decision on ...