Barefield v. United Parcel Service Inc et al
ORDER granting 17 motion to remand and remanding this case to the Circuit Court of Pulaski County, Arkansas; denying Mr. Barfield's request for attorney's fees; and denying as moot 23 motion for a stay of this Court's scheduling order. Signed by Judge Kristine G. Baker on 11/18/2015. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 4:15-cv-00411-KGB
UNITED PARCEL SERVICE, INC.,
DAVE EUSANIO and MARK FIJO
Before the Court is plaintiff Rodney Barefield’s motion to remand to state court (Dkt. No.
17). Defendants oppose the motion (Dkt. No. 19). Mr. Barefield also has filed a motion to stay
the Court’s scheduling order, pending a ruling on the motion to remand (Dkt. No. 23).
Defendants oppose this request, as well (Dkt. No. 24). This Court grants the motion to remand
and denies as moot Mr. Barefield’s motion to stay.
Mr. Barefield filed this case in the Circuit Court of Pulaski County, Arkansas. He claims
that defendants Dave Eusanio, Mark Fijo, and the United Parcel Service, Inc. (“UPS”)
“discriminated against Plaintiff on the basis of his race and retaliated against him in violation of
the” Arkansas Civil Rights Act (“ACRA”), Ark. Code Ann. § 16-123-101 et seq. (Dkt. No. 8, at
2). He asserts that the defendants harassed and intimidated him because of his race, also in
violation of the ACRA. He further alleges that he “complained of discrimination and opposed
illegal discriminatory practices” at UPS and that, after he filed suit in state court, Mr. Fijo
terminated him “in violation of company policy because Plaintiff has a disability and requested
leave. In the disciplinary meeting, Fijo repeatedly referred to Plaintiff's leave in a negative
manner” (Dkt. No. 8, at 3). Mr. Barefield seeks compensatory damages for severe mental and
emotional distress and lost wages, punitive damages, reasonable attorney’s fees, and other
On July 6, 2015, all defendants filed a notice of removal with this Court (Dkt. No.
1). They claim that removal is proper on the basis of federal question jurisdiction pursuant to 28
U.S.C. § 1331, as they contend that Mr. Barefield is asserting a claim against them under the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2611 et seq. (Dkt. No. 1, at 1). Mr.
Barefield argues that he has no federal claims, as he “suffered no adverse job action cognizable
under the FMLA” (Dkt. No. at 2) and as “he has no damages that are recoverable under the
FMLA” (Dkt. No. 17, at 1). Citing a recent decision from the Eighth Circuit Court of Appeals,
he also notes that a “request for leave is not necessarily a request for FMLA leave” (Dkt. No. 17,
at 1). In response, UPS, Mr. Fijo, and Mr. Eusanio point to comments made by Mr. Barefield at
his deposition, which the defendants claim prove that his retaliation claim is a claim under the
FMLA (Dkt. No. 19, at 2). They also contend that the FMLA permits an eligible employee to
recover damages of the type Mr. Barefield seeks (Dkt. No. 19, at 2 (citing 29 U.S.C. §
“Federal courts are courts of limited jurisdiction” and “possess only that power
authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “[A]ny civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by . . . the defendants, to the district
court of the United States for the district and division embracing the place where such action is
pending.” 28 U.S.C. § 1441(a). The removing party has the burden to show, by a preponderance
of the evidence, that removal was proper. Altimore v. Mount Mercy College, 420 F.3d 763, 768
(8th Cir. 2005). Any “doubts about federal jurisdiction must be resolved in favor of remand.”
Baker v. Martin Marietta Materials, Inc., 745 F.3d 919, 923 (8th Cir. 2014).
UPS, Mr. Fijo, and Mr. Eusanio argue that this Court has original jurisdiction over Mr.
Barefield’s action because it presents a federal question. “Federal question jurisdiction exists if
the ‘well-pleaded complaint establishes either that federal law creates the cause of action or that
the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal
law.’” Williams v. Ragnone, 147 F.3d 700, 702 (8th Cir. 1998) (quoting Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 27–28 (1983)). The plaintiff is the master of
his complaint and, as such, “can generally avoid removal to federal court by alleging only state
law claims.” Johnson v. MFA Petroleum Co., 701 F.3d 243, 247 (8th Cir. 2012).
Mr. Barefield bases his claim for damages on the ACRA, which allows recovery of
damages or injunctive relief for intimidation, harassment, discrimination based on race or
disability, and retaliation. Ark. Code. Ann §§ 16-123-101 to 108. At no point in his complaint
does he allege a violation of the FMLA or attempt to state any other claim under federal law. It
is possible that he could have a claim for damages under the FMLA, but he has not asserted a
claim on that basis. One does not appear on the face of his complaint. Instead, he has chosen to
pursue remedies that are available to him under Arkansas law. He states in support of his motion
to remand, in reference to the purported FMLA claim, that he declines to pursue a claim he has
not plead and will not plead (Dkt. No. 18, at 2). In choosing to pursue only claims and remedies
available to him under Arkansas law, Mr. Barefield avoided presenting any federal question for
this Court to consider and, as that was the sole basis alleged for supporting subject matter
jurisdiction upon removal, this Court finds that remand is necessary.
For these reasons, Mr. Barefield’s motion to remand is granted (Dkt. No. 17), and the
Court remands this case to the Circuit Court of Pulaski County, Arkansas. 28 U.S.C. § 1447. To
the extent that Mr. Barefield requests attorney’s fees, that request is denied. This Court denies as
moot his motion for a stay of this Court’s scheduling order (Dkt. No. 23).
SO ORDERED this 18th day of November, 2015.
Kristine G. Baker
United States District Judge
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