United States District Court, E.D. Kentucky, Northern Division
MEMORANDUM OPINION AND ORDER
L Bunning United States District Judge
matter is before the Court on Plaintiff Henry Tackett's
Motion to Remand (Doc. # 9) this action to the Kenton County
Circuit Court. The Motion is fully briefed and ripe for the
Court's review. For the reasons set forth herein,
Plaintiff's Motion to Remand shall be
FACTUAL AND PROCEDURAL BACKGROUND
case arises out of the firing of Plaintiff Henry Tackett by
Defendant Elovations Services Group, LLC
("Elovations") on July 6, 2018. (Doc. # 1-1 at 4).
Tackett became a Trainer at Elovations on or around July 8,
2014. Id. at 2. A number of Tackett's co-workers
were minority employees, including many "Muslim male and
female employees who wore religious headpieces as required by
their religion." Id. at 3. In approximately May
or June 2018, new security guards were hired at Elovations;
it is alleged that the new security employees either
"authorized or changed [the] company dress code policies
to allegedly reduce employee theft." Id. The
new policy prohibited the wearing of religious headpieces and
Muslim employees were told to remove their religious headwear
or face termination. Id.
alleges that on or around July 3, 2018, a distressed Muslim
employee informed Tackett that the employee had been fired
because he would not remove his religious headpiece.
Id. The security supervisor who had terminated the
employee- Shawn Webster-allegedly heard Tackett say
"[i]t's a shame that we've lost such good
employees here because of religious discrimination."
Id. Webster allegedly reported Tackett for being
insubordinate and confrontational to management. Id.
Tackett was "written [a] 'corrective
action'" which stated "[t]his morning you
confronted Security Supervisor Shawn Webster and challenged
him on performing his duties, stating, 'this is stupid.
We're losing good people."' Id. at 4.
Tackett allegedly would not sign the corrective action
statement and, rather, provided Elovations with his version
of what happened. Id. Three days later, on July 6,
2018, Tackett was terminated; Tackett was told the
termination decision could be reviewed if he completed a
"Problem Resolution Request" form. Id.
Tackett completed the form and submitted it on July 10, 2018;
he was informed on July 16, 2018 that his employment would
remain terminated "by reason of misconduct."
light of his firing, Tackett filed suit in Kenton County
Circuit Court on August 17, 2018. Id. at 2. His
Complaint alleges a claim of religious discrimination which
disparately impacted Muslim employees and created a hostile
work environment, and a claim of retaliation, both under the
Kentucky Civil Rights Act. Id. at 4-5. Plaintiff
requests a number of damages including attorney's fees
and costs. Id. at 5-6. Defendant Elovations then
removed the case to this Court on September 19, 2018 on the
grounds of diversity jurisdiction. (Doc. #1). Plaintiff moved
to remand the case to state court on September 28, 2018,
arguing that the amount-in-controversy requirement for
diversity jurisdiction had not been met. (Doc. # 9).
Defendant having responded on October 10, 2018 (Doc. # 10)
and Plaintiff having replied on October 22, 2018 (Doc. #11),
the motion is now ripe for the Court's review.
Standard of Review
defendant may, "[e]xcept as otherwise expressly provided
by Act of Congress," seek to remove "any civil
action brought in a State court of which the district courts
of the United States have original jurisdiction." 28
U.S.C. § 1441(a). "The party seeking removal bears
the burden of establishing its right thereto." Her
Majesty the Queen in Right of the Province of Ont. v. City of
Detroit (Her Majesty), 874 F.2d 332, 339 (6th Cir.
1989). Parties contesting removal on the grounds of
subject-matter jurisdiction may file a motion to remand at
any time following the notice of removal and prior to final
judgment. 28 U.S.C. § 1447(c). "[T]he removal
petition is to be strictly construed," Her
Majesty, 874 F.2d at 339, and "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
removing party bears the burden of establishing federal
jurisdiction. Eastman v. Marine Mech. Corp., 438
F.3d 544, 549 (6th Cir. 2006). If removal to federal court is
based on diversity jurisdiction, the removing party must
establish that there is complete diversity between the
parties and the amount in controversy exceeds $75, 000.00. 28
U.S.C. § 1332. In this case, complete diversity is not
contested. Rather, the Plaintiff argues the federal court
does not have jurisdiction over the matter because the
amount- in-controversy requirement is not met. (Doc. # 9-1 at
state's civil procedure rules prohibit a complaint from
containing a specific request for damages, a removing
defendant must show that the amount-in-controversy
requirement is met by a preponderance of the evidence.
Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871
(6th Cir. 2000) (citing Gafford v. Gen. Bee. Co.,
997 F.2d 150, 157-58 (6th Cir. 1993), abrogated on other
grounds by Hertz v. Friend, 559 U.S. 77 (2010)).
Kentucky has such a civil procedure rule and thus the
defendant "bears the burden of demonstrating that the
district court has original jurisdiction;" it "must
set forth ... specific facts supporting the assertion that
the amount in controversy exceeds the amount required by
statute." Adkins v. Kroger Ltd. P'ship I,
No. 5:18-cv-156-DCR, 2018 WL 1611592, at * 1 (E.D. Ky. Apr.
3, 2018) (quoting Shupe v. Asplundh Tree Expert Co.,
566 F. App'x476, 481 (6th Cir. 2014)).
determining the amount in controversy, the Court must not
take into account interest and costs. 28 U.S.C. §
1332(a). It is generally appropriate for the Court, however,
to consider other damages, including lost wages, punitive
damages, and statutory attorney's fees. Shupe,
566 Fed.Appx. at 479; Adams v. Volkswagan Grp. of
Am., No. 2:15-cv-184-DLB-JGW, 2016 WL 6986892, at *3
(E.D. Ky. Jan. 5, 2016). Here, the Plaintiff makes requests
for past and future lost wages and benefits, compensatory
damages for emotional distress and embarrassment, and
attorney's fees, which the Court must consider in
determining the amount in controversy. Shupe,
566 Fed.Appx. at 479 (finding that a Court can consider
actual damages, including "back pay, front pay, lost
benefits, humiliation, emotional distress, embarrassment, and
attorney's fees"). In an affidavit, Defendant sets
forth that Tackett's yearly compensation, including wages
and benefits, totaled $37, 504.49. (Doc. # 10-1 at 2). Should
the litigation be lengthy, it is presumable that Plaintiffs
lost wages alone would exceed the amount-in-controversy
requirement. Cox v. CTA Acoustics, Inc., No.
6:18-cv-114-CHB, 2018 WL 4119929, at *2 (E.D. Ky. Aug. 29,
2018). Further, sister courts in this district have
previously found that lost wages and attorney's fees in
cases under the Kentucky Civil Rights Act likely exceed $75,
000. See e.g. Jones v. AT&T Mobility, LLC, No.
6:17-cv-320-KKC, 2018 WL 3341183, at * 2 (E.D. Ky. July 6,
2018). Accordingly, the Court finds that given the nature of
the case, Plaintiffs compensation, and the extent of damages
requested, the claim, more likely than not, exceeds the $75,
000 amount-in-controversy requirement. Rogers, 230
F.3d at 871 (citing Gafford, 997 F.2d at 158).
conclusion, however, is not the end of the Court's
inquiry. At issue here is whether Plaintiffs statement in his
Motion to Remand that the claim is for less than $75, 000 is
a sufficient ...