Cheryl Jansen v. Systems Services of America, Inc et al, No. 5:2019cv00120 - Document 20 (C.D. Cal. 2019)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION TO REMAND by Judge Andre Birotte Jr.: The Court GRANTS Plaintiffs' Motion to Remand 12 . The matter is remanded to San Bernardino Superior Court, Case No. CIVDS1831844. On 2/6/2019, Defendant filed a Motion to Compel Arbitration and Stay Court Proceedings 13 . Defendant's Motion is hereby denied as moot pursuant to the Court's Order remanding the matter to state court. ( MD JS-6. Case Terminated. ) (gk)
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Cheryl Jansen v. Systems Services of America, Inc et al Doc. 20 1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHERYL JANSEN, an individual, 11 12 13 14 Plaintiff, v. Case No. 5:19-cv-00120 AB (SHKx) ORDER GRANTING PLAINTIFF’S MOTION TO REMAND SYSTEM SERVICES OF AMERICA, INC., a corporation, et al., 15 Defendants. 16 On January 31, 2019, Plaintiff Cheryl Jansen (“Plaintiff”) filed a Motion to 17 18 Remand. (Dkt. No. 12.) Defendant System Services of America, Inc. (“Defendant 19 SSA”) opposed the motion and Plaintiff filed a reply. (Dkt. Nos. 14, 15.) The Court 20 heard oral argument on March 1, 2019. For the following reasons, the Court 21 GRANTS Plaintiff’s Motion to Remand. 22 I. BACKGROUND 23 A. The Parties 24 Plaintiff Cheryl Jansen is a resident of California. First Amended Complaint 25 (“FAC”) ¶ 4 (Dkt. No. 12.) Plaintiff began working for System Services of America, 26 Inc. (“SSA”) as a Customer Service Representative and/or Receptionist around 27 January 16, 1989. (FAC ¶ 16.) During Plaintiff’s tenure at SSA, she was supervised 28 by Defendants Rick Toneck and Dianna Bailey Thompson (“Toneck” and 1. Dockets.Justia.com 1 “Thompson”, respectively). (FAC ¶ 17.) Around October 19, 2017, Plaintiff sought 2 medical treatment for work-related stress. (FAC ¶ 25.) Plaintiff was placed on 3 medical leave until November 13, 2017, but was terminated from SSA after 28 years 4 of employment on November 1, 2017. (FAC ¶ 25–26.) At the time of Plaintiff’s 5 termination, she was 63 years old. (FAC ¶ 27.) 6 Defendant SSA is a Delaware corporation with its principal place of business in 7 Arizona. (Notice of Removal, ¶¶ 10, 12 (Dkt. No. 1)). Defendants Toneck and 8 Thompson are residents of California. (FAC ¶¶ 6-7.) 9 10 B. Plaintiff’s Allegations Plaintiff alleges that Toneck and Thompson abused their positions of authority 11 by micromanaging and disciplining Plaintiff, and increasing her workload. (FAC ¶ 12 22.) Plaintiff also alleges that Toneck had a history of forcing older workers into a 13 warehouse “freezer rotation,” as a way to get them to quit or resign. (FAC ¶ 19.) 14 Additionally, Plaintiff asserts that Toneck and Thompson’s conduct created a hostile 15 work environment that caused Plaintiff to suffer work-related injuries. (FAC ¶ 21.) 16 Further, Plaintiff alleges that Toneck told Frances Villegas (“Villegas”), an Associate 17 Service Specialist who suffered age-based harassment and discrimination, that “they 18 should start working the older people out of the system.” (FAC ¶ 20.) Plaintiff asserts 19 that Toneck and Thompson’s actions established that they had animus against older 20 workers, including Plaintiff. (FAC ¶ 23.) 21 Plaintiff raised several claims solely against Defendant SSA. However, 22 Plaintiff asserts three causes of action against Defendant SSA, Toneck, and Thompson 23 for: (1) harassment ; (2) intentional infliction of emotional distress; and (3) negligent 24 infliction of emotional distress. (See FAC.) 25 C. Removal to this Court 26 On January 22, 2019, Defendant SSA removed this case to this Court from the 27 San Bernardino County Superior Court. (See Notice of Removal.) According to 28 Defendant SSA, the Court has subject matter jurisdiction over this case because there 2. 1 is complete diversity of citizenship amongst the parties. Id. Defendant SSA alleges 2 that Defendants Toneck and Thompson are “sham” defendants that are to be 3 disregarded when evaluating diversity of citizenship. Id., ¶ 5. 4 II. LEGAL STANDARD 5 A. Removal 6 Federal courts are courts of limited jurisdiction and possess only that 7 jurisdiction as authorized by the Constitution and federal statute. Kokkonen v. 8 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Under 28 U.S.C. § 1441(b) 9 (“Section 1441”), a civil action may be removed to the district court where the action 10 is pending if there is diversity jurisdiction. A federal district court has diversity 11 jurisdiction over a dispute between “citizens of different States” that places more than 12 $75,000 in controversy, exclusive of interest and costs. 28 U.S.C. § 1332(a). Section 13 1332(a)(1) requires complete diversity such that “the citizenship of each plaintiff is 14 diverse from the citizenship of each defendant.” Caterpillar Inc. v. Lewis, 519 U.S. 15 61, 68 (1996). Section 1441(b)(2) further limits removal to cases in which no 16 defendant “properly joined and served . . . is a citizen of the State in which such action 17 is brought.” 28 U.S.C. § 1441(b)(2). 18 B. Diversity Jurisdiction–Fraudulent Joinder 19 A non-diverse party may be disregarded for purposes of determining whether 20 jurisdiction exists if the court determines that the party’s joinder was “fraudulent” or a 21 “sham.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). 22 “Fraudulent joinder” occurs, for the purpose of determining diversity jurisdiction, 23 where the plaintiff fails to state a cause of action against the resident defendant, and 24 failure is obvious according to settled rules of state. McCabe v. Gen. Foods Corp., 25 811 F.2d 1336 (9th Cir. 1987). “But if there is a possibility that a state court would 26 find that the complaint states a cause of action against any of the resident defendants, 27 the federal court must find that the joinder was proper and remand the case to the state 28 court.” Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 3. 1 2018) (quotations omitted). 2 The defendant has a high burden of proof when establishing fraudulent joinder. 3 A removing defendant may present evidence to prove fraudulent joinder, but the 4 district court must resolve all disputed questions of fact in the plaintiff’s favor. See 5 Grancare, 889 F.3d at 549. Thus, a defense should not require “a searching inquiry 6 into the merits of the plaintiff's case, even if that defense, if successful, would prove 7 fatal.” Id. In this regard, “[r]emand must be granted unless the defendant shows that 8 the plaintiff would not be afforded leave to amend his complaint to cure [a] purported 9 deficiency” in its allegations against the non-diverse defendant. Padilla v. AT & T 10 Corp., 697 F. Supp. 2d 1156, 1159 (C.D. Cal. 2009) (quotations omitted). Ultimately, 11 “[f]raudulent joinder must be proven by clear and convincing evidence.” Hamilton 12 Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). 13 III. DISCUSSION 14 A. The Court Does Not Have Subject Matter Jurisdiction 15 As stated above, Defendant SSA asserts that there is complete diversity of 16 citizenship because Toneck and Thompson are “sham” defendants that should be 17 ignored for purposes of determining diversity jurisdiction. (Notice of Removal ¶ 5.) 18 Plaintiff, Toneck, and Thompson are citizens of California. (See FAC.) Defendant 19 SSA is a citizen of Delaware and Arizona. (Notice of Removal ¶ 10.) Thus, absent 20 Plaintiff’s claims against Toneck and Thompson, diversity jurisdiction exists. In the 21 alternative, the Court cannot maintain diversity jurisdiction and allow removal under 22 28 U.S.C. § 1441(b)(2) if Toneck and Thompson are, in fact, properly joined 23 defendants. Therefore, subject matter jurisdiction rests on the issue of whether there 24 is complete diversity because the parties do not dispute that the amount in 25 controversy, in this case, exceeds $75,000. 26 1. Harassment Claim 27 For a claim to constitute harassment, a plaintiff must demonstrate that a 28 defendant’s conduct was “sufficiently severe or pervasive to ‘alter the conditions of 4. 1 [the victim’s] employment and create an abusive work environment.’” Fisher v. San 2 Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609 (Cal. Ct. App. 1989) (citation 3 omitted). When determining if the conduct complained of is sufficiently pervasive or 4 severe, a court should look at the totality of the circumstances. Id. at 610. 5 Additionally, it is established that “harassment by a high-level manager of any 6 organization may be more injurious to the victim because of the prestige and authority 7 that the manager enjoys.” Roby v. McKesson Corp., 47 Cal.4th 686, 709 (Cal. 2009). 8 9 Here, Plaintiff’s allegations, when viewed in the totality of the circumstances, support a plausible harassment claim against Toneck and Thompson. Plaintiff alleges: 10 “ (1) [that] Mr. Toneck expressly stat[ed] to human resources that the older workers 11 should be worked out of the system; (2) that Mr. Toneck wrongfully terminated Ms. 12 Villegas, a prior victim of age discrimination of SSA, by recommending and 13 influencing her dismissal; (3) that Ms. Thompson and Mr. Toneck sent a 14 discriminatory message through their acts of supervising by issuing and authorizing 15 discipline . . . , providing a PIP plan . . . , and terminating a long term worker despite 16 her being granted an accommodation of medical leave then terminated her while on 17 leave (younger workers were not [treated in the same manner, nor] denied the same 18 accommodations); and (4) before her termination, Ms. Thompson also unfairly treated 19 Ms. Villegas by reporting Ms. Villegas despite having no job duties of supervision 20 over her.” (Dkt. No. 15 at 5.) These allegations, examined in Plaintiff’s favor, are 21 sufficient to establish that a California state court could find that Toneck and 22 Thompson created a hostile or abusive work environment. 23 Defendant SSA argues that Toneck assigned “other employees (and not 24 Plaintiff), to work in the freezer area.” (Dkt. No. 14 at 9.) However, California law 25 establishes that “‘[e]vidence of the general work atmosphere, involving employees 26 other than the plaintiff, is relevant to the issue of whether there existed an atmosphere 27 of hostile work environment.’” Fisher, 214 Cal. App. 3d at 610. Here, if all of 28 Plaintiff’s allegations are taken as true, Plaintiff not only witnessed employees getting 5. 1 assigned to freezer duty simply because they were older, but also witnessed the unfair 2 and discriminatory treatment of Villegas, an older employee, that eventually led to her 3 termination. Additionally, Plaintiff was micromanaged and disciplined in a manner 4 similar to Villegas, creating a belief that her age and newfound disability were the 5 reasons for her employer’s severe treatment of her. These assertions alone are enough 6 to establish a hostile work atmosphere for an older employee, such as Plaintiff. 7 Further, Defendant SSA asserts that Toneck and Thompson’s comments and 8 actions were not pervasive in comparison to the supervisor in Roby. However, “[w]ith 9 respect to the pervasiveness of harassment, courts have held an . . . employee must 10 show a concerted pattern of harassment of a repeated, routine, or a generalized 11 nature.” Lyle v. Warner Bros. Television Prods., 38 Cal. 4th 264, 283 (2006). Here, 12 the only isolated incident mentioned throughout Plaintiff’s list of claims was a 13 comment made by Toneck to Villegas regarding age. On the other hand, Plaintiff 14 claims that forcing older workers to freezer duty was a “business practice” accepted 15 and implemented by Defendants. Ultimately, establishing conduct of a generalized 16 nature. 17 Finally, Defendant SSA’s reliance on Roby to assert that a “widespread pattern 18 of bias” is necessary to establish managerial liability for harassment, is inapposite. 19 While true that “micromanaging and discipline” in the workplace may fall under the 20 scope of “personnel management actions,” this does not excuse the several other 21 allegations made against Thompson and Toneck. Nonetheless, all allegations are to be 22 viewed in the totality of circumstances, and thus, establish a plausible claim for 23 harassment. 24 IV. 25 CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiffs’ Motion to Remand. 26 The matter is remanded to San Bernardino Superior Court. On February 6, 2019, 27 Defendant filed a Motion to Compel Arbitration and Stay Court Proceedings. The 28 Court took the matter under submission on March 5, 2019. Defendant’s Motion is 6. 1 hereby denied as moot pursuant to the Court’s Order remanding the matter to state 2 court. 3 IT IS SO ORDERED. 4 5 6 7 8 Dated: March 18, 2019 _______________________________________ HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT COURT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7.
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