Manuel Marquez v. United Parcel Service Co., et al

Filing 24

MINUTES (In Chambers): ORDER Re Plaintiff's Motion to Remand 11 ; Defendant United parcel Service Inc's Motion for Judgment on the Pleadings 15 by Judge Michael W. Fitzgerald: The Motion to Remand is GRANTED. Because the Court lacks jurisdiction over the case, the Motion for Judgment on the Pleadings is DENIED as moot. Accordingly, the Court REMANDS the action to the Superior Court of the State of California for the County of Los Angeles. (MD JS-6. Case Terminated.) (jp)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

JS-6

CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez
Attorneys Present for Plaintiff:
None Present

Court Reporter:
Not Reported
Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER RE PLAINTIFF’S MOTION TO
REMAND [11]; DEFENDANT UNITED
PARCEL SERVICE INC.’S MOTION FOR
JUDGMENT ON THE PLEADINGS [15]
Before the Court are two motions. First, Plaintiff filed a Motion to Remand
on April 24, 2017. (“Motion to Remand” or “Plaintiff’s Motion,” Docket No. 11).
Defendant United Parcel Service Inc. (“UPS”) filed an Opposition and Plaintiff
filed a Reply. (Docket Nos. 14, 20). Second, Defendant UPS filed a Motion for
Judgment on the Pleadings on May 15, 2017. (“Motion for Judgment on the
Pleadings” or “UPS’s Motion,” Docket No. 15). Plaintiff filed an Opposition and
UPS filed a Reply. (Docket Nos. 18, 21).
For the reasons stated below, the Motion to Remand is GRANTED.
Defendant Garcia was not “fraudulently joined” (used in the technical
jurisdictional sense) because there is at least a possibility that Plaintiff can recover
on the claims asserted against him. Even if Garcia’s allegedly wrongful conduct
constitutes “personnel management decisions” that are generally exempt from
liability, Defendant UPS has failed to establish that such deficiencies cannot be
cured by amending the Complaint. As a consequence, this Court lacks jurisdiction
over the case and the Motion for Judgment on the Pleadings is DENIED as moot.

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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
I.

BACKGROUND

Plaintiff Manuel Marquez filed suit against Defendants UPS and Diego
Garcia, an individual, on February 23, 2017. (Complaint, Docket No. 1-1). His
Complaint alleges claims of discrimination, harassment, retaliation, and other
violations of California civil rights and employment law.
Plaintiff worked for UPS beginning in 2010 and was fired on August 26,
2016. (Id. ¶ 11). Plaintiff hurt his ankle in December 2015, triggering a series of
events that ultimately led to his termination. (Id.). After Plaintiff took one week
off work due to the effects of his injury, which had not occurred on the job, he
returned to work. (Id. ¶ 12). He was then given a “write-up” for attendance issues
related to the week he took off. (Id.). Plaintiff then took a medical leave of nearly
four months between January 2016 and May 2016 due to “the stress and
psychological injury that [he] experienced arising from his treatment at UPS.” (Id.
¶ 13). When he returned to work in May 2016, UPS “tried to fire [him] for
attendance issues.” (Id. ¶ 14). Plaintiff filed a grievance and was allowed to keep
his job.
After his return to work in May 2016, Plaintiff alleges he was subjected to
“significant harassment and retaliation by a UPS supervisor named Diego Garcia.”
(Id. ¶ 15). The harassment included “derisive comments by Garcia about
[Plaintiff’s] work product, statement by Garcia that [Plaintiff] needed to hurry up
when in fact [Plaintiff] was performing his job duties efficiently and productively,
comments by Garcia to the effect of lets go when in fact [Plaintiff] was doing his
job efficiently and productively . . . .” (Id. ¶ 15). In addition, Plaintiff alleges that
Garcia would bring in food for other employees but not invite Plaintiff, that Garcia
treated Plaintiff differently than other employees, and that Garcia once sent
Plaintiff home early and then tried to write him up for leaving early without
permission. (Id.). Later in the Complaint Plaintiff alleges that Garcia mocked
Plaintiff’s disability and suggested that Plaintiff was faking his disability. (Id. ¶
38).
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CIVIL MINUTES—GENERAL
2

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
Plaintiff also alleges that after he informed UPS about the hostile work
environment, UPS did not sit down with Plaintiff to go over his claims. (Id. ¶ 16).
Plaintiff was ultimately fired in August 2016 for attendance issues. (Id. ¶ 19).
The Complaint followed in February 2017.
II.

LEGAL STANDARD FOR REMAND

As all parties recognize, the threshold requirement for removal under 28
U.S.C. § 1441 is a “finding that the complaint . . . is within the original jurisdiction
of the district court.” Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th
Cir. 2003). In most circumstances, “federal district courts have jurisdiction over
suits for more than $75,000 where the citizenship of each plaintiff is different from
that of each defendant.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th
Cir. 2009) (citing 28 U.S.C. § 1332(a)). A well-established exception to the
complete-diversity rule is “‘where a non-diverse defendant has been ‘fraudulently
joined.’” Id. (quoting Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th
Cir. 2001)). The joinder is considered fraudulent “[i]f the plaintiff fails to state a
cause of action against the [non-diverse] defendant, and the failure is obvious
according to the settled rules of the state . . . .” Hamilton Materials, Inc. v. Dow
Chemical Co., 494 F.3d 1203, 1206 (9th Cir. 2007). Defendant must “prove that
individuals joined in the action cannot be liable on any theory.” Ritchey v. Upjohn
Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)
Because all doubts weigh against removal, a court determining whether
joinder is fraudulent “must resolve all material ambiguities in state law in
plaintiff's favor.” Macey v. Allstate Property and Cas. Ins. Co., 220 F.Supp.2d
1116, 1117 (N.D. Cal. 2002) (citing Good v. Prudential Ins. Co. of America, 5
F.Supp.2d 804, 807 (N.D. Cal. 1998)). “If there is a non-fanciful possibility that
plaintiff can state a claim under [state] law against the non-diverse defendant[,] the
court must remand.” Id.; see also Good, 5 F. Supp. 2d at 807 (“[T]he defendant
must demonstrate that there is no possibility that the plaintiff will be able to
establish a cause of action in State court against the alleged sham defendant.”).
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CIVIL MINUTES—GENERAL
3

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
Given this standard, “[t]here is a presumption against finding fraudulent joinder,
and defendants who assert that plaintiff has fraudulently joined a party carry a
heavy burden of persuasion.” Plute v. Roadway Package Sys., Inc., 141 F. Supp.
2d 1005, 1008 (N.D. Cal. 2001).
Even when a pleading contains insufficient allegations to state a claim for
relief against a non-diverse defendant, a remand is proper “where defendant fail[s]
to show that plaintiff would not be granted leave to amend his complaint to cure
the asserted deficiency by amendment.” Johnson v. Wells Fargo & Co., No. CV
14-06708 MMM JCX, 2014 WL 6475128, at *8 (C.D. Cal. Nov. 19, 2014)
(quoting Padilla v. AT & T Corp., 697 F. Supp. 2d 1156, 1159 (C.D. Cal. 2009)).
“Consequently, if a defendant simply argues that plaintiff has not pled sufficient
facts to state a claim, the heavy burden of showing fraudulent joinder has not been
met.” Martinez v. Michaels, No. CV 15-02104 MMM (EX), 2015 WL 4337059, at
*5 (C.D. Cal. July 15, 2015); see Birkhead v. Parker, No. C 12–2264 CW, 2012
WL 4902695 at *3 (N.D. Cal. Oct. 15, 2012) (“Even if these allegations do not rise
to the level of outrageous conduct, Defendants cannot establish that Plaintiff would
not be able to amend the complaint to allege a[ ] viable claim [for intentional
infliction of emotional distress] against [his former supervisor] under California
law.”).
III.

DISCUSSION

Plaintiff moves for remand on the basis that he and Garcia are both
California citizens, destroying the diversity jurisdiction alleged in UPS’s Notice of
Removal. (Docket No. 1). UPS claims that Garcia is fraudulently joined and his
citizenship should be disregarded. As the removing party, UPS bears the burden of
establishing fraudulent joinder. See Plute, 141 F. Supp. 2d at 1008. Because the
Court concludes that UPS failed to show that Plaintiff cannot possibly state a claim
for harassment against Garcia, the Court concludes that remand is appropriate here.

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CIVIL MINUTES—GENERAL
4

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
A.

Harassment Claim Under FEHA

California law draws a sharp distinction between discrimination and
harassment claims. See Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55,
62–63, 53 Cal. Rptr. 2d 741 (1996); see also Reno v. Baird, 18 Cal. 4th 640, 64547, 76 Cal. Rptr. 2d 499 (1998) (summarizing Janken with approval and affirming
Janken's delineation between harassment and discrimination). While an
employee’s manager may be personally liable for harassment under FEHA, only
the employer is responsible for the supervisor’s personnel management decisions
later considered to be discriminatory. Janken, 46 Cal. App. 4th at 62–63. As the
Court of Appeal explained in Janken,
The Legislature's differential treatment of harassment and
discrimination [under FEHA] is based on the
fundamental distinction between harassment as a type of
conduct not necessary to a supervisor's job performance,
and business or personnel management decisions—which
might later be considered discriminatory—as inherently
necessary to performance of a supervisor's job.
Id. A claim for harassment cannot be based on supervisory actions, such as “hiring
and firing, job or project assignments, promotion or demotion, performance
evaluations, the provision of support, the assignment or non-assignment of
supervisory functions, [etc.]” Id. at 63. Rather, “harassment consists of conduct
outside of the scope of necessary job performance, conduct presumably engaged in
for personal gratification, because of meanness or bigotry, or for other personal
motives.” Id. Importantly, a harassment claim based on managerial functions fails
“even if improper motivation is alleged.” Id. (emphasis added). According to
Janken, “If personnel management decisions are improperly motivated, the remedy
is a suit against the employer for discrimination.” Id.
Most of the allegations against Garcia fall within the purview of Garcia’s
supervisorial role. For instance, many of the allegations concern comments made
by Garcia regarding the time Plaintiff took off work for his injury. At best, these
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
allegations show that Garcia implemented UPS’s policies concerning leave in a
discriminatory manner. There is no denying, however, that Garcia at all times
acted in his role as Plaintiff’s manager. The Court is unconvinced that all of
Garcia’s alleged remarks, such as those concerning Plaintiff’s ability to do his job
correctly or efficiently, constitute taunts or personal insults that fall outside the
scope of Garcia’s managerial functions. Indeed, those comments are supervisorial
in nature and relate directly to Plaintiff’s job performance.
Bolstering this conclusion are numerous cases finding similar conduct to be
insufficient to state a harassment claim under FEHA. See, e.g., Velente-Hook v. E.
Plumas Health Care, 368 F. Supp. 2d 1084, 1103 (E.D. Cal. 2005) (holding that
the following conduct does not give rise to a harassment claim against employees,
even though it may expose the employer to liability under disability laws: (1)
telling the plaintiff that she would be fired if she did not return to work due to her
medical condition; (2) forcing the plaintiff to return to work under duress and thus
causing her health to deteriorate; and (3) refusing to release the plaintiff’s
paycheck in front of her colleagues unless she agreed to discuss a “fitness-forduty” test); Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1245 (9th Cir. 2013)
(“[The plaintiff’s manager] questioned her appearance, criticized the display of
merchandise, instructed her to perform work-related assignments, and disagreed
with the way she stored repair parts. [The manager] alleged conduct relates to
business operations . . . . Such conduct does not constitute harassment under the
FEHA.”); but see Roby v. McKesson Corp., 47 Cal. 4th 686, 709, 101 Cal. Rptr. 3d
773 (2009) (demeaning comments about body odor and arm sores, refusal to
respond to greetings, demeaning facial expressions and gestures, and disparate
treatment in handing out small gifts cannot be “fairly be characterized as an official
employment action” and may therefore constitute harassment).
On the other hand, Plaintiff’s allegation that Garcia accused Plaintiff of
faking his injury does not obviously fall within Garcia’s supervisorial role. Even
UPS seems to concede as much in its briefing. UPS attempts to downplay the
significance of this allegation by labeling it as merely a “suggestion” made by
Garcia. (Motion for Judgment on the Pleadings at 2).
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CIVIL MINUTES—GENERAL
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
But although Plaintiff’s allegations are factually deficient, UPS provides no
reason to believe that those deficiencies cannot be cured through amendment. At
the hearing, UPS points to its briefing in the Motion for Judgment on the
Pleadings. Having reviewed that brief, the Court remains unconvinced that
amendment could not possibly cure whatever defects exist in Plaintiff’s allegations
against Garcia.
Indeed, nothing indicates that Plaintiff cannot allege actionable harassment
conduct that does not constitute personnel management decisions. And as long as
there is a possibility that Plaintiff can state a viable claim for relief, the Court
cannot conclude that Garcia’s joinder is fraudulent. As one district courted stated,
Even if the Court presumes for purposes of discussion
that the complaint does not allege sufficient facts to meet
this requirement as to Warenda, Defendants have failed
to demonstrate fraudulent joinder. As explained above,
Defendants must demonstrate that Plaintiffs could not
possibly state a claim against Warenda in state court.
Even if the allegations in Plaintiffs' complaint are
insufficient to withstand a demurrer in state court, an
issue as to which the Court offers no opinion, Defendants
have not sufficiently established that Plaintiffs could not
amend their complaint and add additional allegations to
correct any deficiencies. In other words, the complaint's
shortcomings, if any, are strictly factual; Plaintiffs clearly
may pursue a cause of action for harassment against
Warenda under section 12940(j)(3) of the California
Government Code if they can allege sufficient facts.
Stanbrough v. Georgia-Pac. Gypsum LLC, No. CV 08-08303GAF(AJWX), 2009
WL 137036, at *2 (C.D. Cal. Jan. 20, 2009) (emphasis in the original); Ontiveros
v. Michaels Stores, Inc., No. CV 12-09437 MMM (FMOx), 2013 WL 815975, at
*6 (C.D. Cal. Mar. 5, 2013) (“While Michaels' argument might prevail in the
context of a motion to dismiss, it does not suffice to support removal on the basis
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
of fraudulent joinder. Even if the complaint does not allege sufficient facts to
plead a viable harassment claim against Baghdadlian, Michaels has not shown that
the Ontiveros could not amend to add additional allegations of harassment.”). As a
result, the Court cannot disregard Garcia’s citizenship for jurisdictional purposes,
and remand is required here.
This case is factually similar to another case in which this Court remanded a
case involving harassment claims against a supervisor. See Goodman v. Wal-Mart
Store, Inc., 15-CV-6505 MWF (AGRx), (Nov. 18, 2015) (Docket No. 23)
(granting motion to remand after concluding defendant-supervisor was not
fraudulently joined because weak pleadings concerning harassment were capable
of successful amendment). UPS fails to distinguish Goodman in its Opposition.
At the hearing UPS stated that Goodman can be distinguished because here
UPS has filed its Motion for Judgment on the Pleadings. Having reviewed that
Motion, however, the Court remains of the view that the claims alleged against
Garcia are capable of amendment, such that remand is required here.
Following the hearing, the Court reviewed Cofer v. Parker-Hannifin Corp.,
194 F. Supp. 3d 1014 (C.D. Cal. 2016). In Cofer, the motion to remand was
considered after two successful motions to dismiss, and therefore the district court
was quite confident that the plaintiff could not successfully allege a claim against
the defendant who destroyed complete diversity. Id. at 1017. This action is
otherwise.
B.

Plaintiff’s Request for Attorneys’ Fees

In the event of remand, Plaintiff’s Motion requests attorneys’ fees be
awarded. The Court may award just costs and attorneys’ fees incurred as a result
of removal under 28 U.S.C. § 1447(c). See Martinez, 2015 WL 4337059 at *10.
“Absent unusual circumstances, courts may award attorney's fees under § 1447(c)
only where the removing party lacked an objectively reasonable basis for seeking
removal.” Id.
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CIVIL MINUTES—GENERAL
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV-17-2468-MWF (ASx)
Date: June 13, 2017
Title:
Manuel Marquez v. United Parcel Service Co., et al.
The Court declines to award attorneys’ fees. Although ultimately
unpersuasive, UPS’s arguments are not “objectively unreasonable.”
IV.

CONCLUSION

For the foregoing reasons, the Motion to Remand is GRANTED. Because
the Court lacks jurisdiction over the case, the Motion for Judgment on the
Pleadings is DENIED as moot.
Accordingly, the Court REMANDS the action to the Superior Court of the
State of California for the County of Los Angeles.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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