Schuh v. Advantage Plus, Inc.
Filing
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OPINION AND ORDER that this action is REMANDED to the Superior Court of Cobb County, Georgia. Signed by Judge William S. Duffey, Jr on 10/7/2013. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
KRISTINE L. SCHUH,
Plaintiff,
v.
1:13-cv-3214-WSD
ADVANTAGE PLUS, INC.,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant’s Notice of Removal [1].
I.
BACKGROUND
On August 6, 2013, Plaintiff Kristine L. Schuh (“Plaintiff”) initiated this
action in the Superior Court of Cobb County, Georgia. In her Complaint [1-1],
Plaintiff alleges that her former employer, Defendant Advantage Plus, Inc.
(“Defendant”), discriminated against her because of Plaintiff’s disabilities,
including diabetes and “mental health related issues.” (Compl. [1-1] ¶ 6.) Plaintiff
asserts three state law causes of action against Defendant: disability discrimination
in violation of O.C.G.A. § 45-19-29 (Count I); wrongful termination (Count II);
and liability for punitive damages (Count III).
On September 27, 2013, Defendant removed the action to this Court. In its
Notice of Removal [1], Defendant asserts that the Court has federal question
jurisdiction over this matter because this is a “civil action arising out of the laws of
the United States, namely, Title VII.” (Not. Removal [1] ¶ 5.)1
II.
DISCUSSION
Federal courts “have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any
party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006). The Eleventh Circuit
consistently has held that “a court should inquire into whether it has subject matter
jurisdiction at the earliest possible stage in the proceedings. Indeed, it is well
settled that a federal court is obligated to inquire into subject matter jurisdiction
sua sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 410 (11th Cir. 1999).
Defendant asserts that the Court has federal question jurisdiction. District
courts have federal question jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.” See 28 U.S.C. § 1331 (2006).
Whether a claim “arises under” federal law “is governed by the ‘well-pleaded
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Defendant does not assert that the Court has diversity jurisdiction over this
matter, and neither the Complaint nor the Notice of Removal shows that the parties
are citizens of different states or that the amount in controversy exceeds $75,000.
See 28 U.S.C. § 1332(a).
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complaint rule,’ which provides that § 1331 jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.”
Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1290 (11th Cir. 2004) (quoting
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). The plaintiff is “the
master of the claim,” and he may avoid federal jurisdiction by relying exclusively
on state law, even where a federal claim is also available. Id. (quoting Caterpillar,
482 U.S. at 392). Even when a plaintiff has pleaded only state-law causes of
action, however, he may not avoid federal jurisdiction if either “(1) his state-law
claims raise substantial questions of federal law or (2) federal law completely
preempts his state-law claims.” Id. (citing Franchise Tax Bd. v. Constr. Laborers
Vacation Trust, 463 U.S. 1, 13 (1983)).
Plaintiffs’ Complaint here asserts only state law causes of action, and
contrary to Defendant’s assertion, does not assert a claim under Title VII. The
Complaint mentions Title VII in only one paragraph: “Plaintiff filed this action
under Title VII within ninety (90) days after receipt of her ‘Notice of Right to Sue’
letter from the EEO[C].” (See Compl. [1-1] ¶ 16.) It is clear to the Court that this
single mention of Title VII is no more than a scrivener’s error because the
paragraph is contained within Count I, which otherwise cites, and asserts a claim
under, only O.C.G.A. § 45-19-29, a Georgia statute prohibiting employment
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discrimination based on disability. Title VII, by contrast, does not even prohibit
disability discrimination. See, e.g., Lewis v. Zilog, Inc., 908 F. Supp. 931, 953
n.11 (N.D. Ga. 1995) (“Title VII does not proscribe disability discrimination, nor
does it give protected status to disabled persons.”)2
Plaintiff’s Complaint does not assert a federal cause of action, and
Defendant does not argue either that Plaintiff’s claims present “substantial
questions of federal law” or that “federal law completely preempts” the claims.
See Dunlap, 381 F.3d at 1290 (citing Franchise Tax Bd., 463 U.S. at 13). The
Court thus lacks subject matter jurisdiction over this matter, and the action is
required to be remanded to the state court. See 28 U.S.C. § 1447(c) (“If at any
time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
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Title VII makes it unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff alleges only disability discrimination,
not discrimination based on her “race, color, religion, sex, or national origin.” See
id. Although other federal statutes prohibit, in certain circumstances, disability
discrimination in employment, see, e.g., 42 U.S.C. § 12101 et seq., Plaintiff does
not assert claims under these statutes, and Defendant has not asserted that these
statutes are at issue in this action.
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III.
CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that this action is REMANDED to the
Superior Court of Cobb County, Georgia.
SO ORDERED this 7th day of October, 2013.
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