Planck v. Enersys Delaware, Inc. et al

Filing 7

MEMORANDUM OPINION & ORDER: plaintiff Mary Planck's motion to remand 4 is GRANTED. This matter is REMANDED to Madison Circuit Court and STRICKEN from this Court's active docket. Signed by Judge Karen K. Caldwell on 4/7/2015.(STC)cc: COR, Madison Circuit Court

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
MARY PLANCK,

CIVIL ACTION NO. 5:14-316-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

ENERSYS DELAWARE, INC., ED
BAUER, and DENNIS BRAUMBAUGH,
Defendants.
This matter is before the Court on plaintiff Mary Planck’s motion to remand (DE 4).
Planck brought this action in Madison Circuit Court alleging that EnerSys Delaware, Inc.
(“EnerSys”), Ed Bauer, and Dennis Braumbaugh unlawfully terminated her employment
with EnerSys. Defendants assert that plaintiff fraudulently joined Bauer and Braumbaugh
to defeat federal diversity jurisdiction. For the following reasons, plaintiff’s motion to
remand will be granted.
I. BACKGROUND
In June 2011, Planck began working as a “labeler” for EnerSys, a battery
manufacturer, at its Richmond, Kentucky plant. (DE 1-1 Compl. at ¶¶ 7, 12.) On or about
June 3, 2013, she applied for, and received, the “Wastewaters Operator’s position.” (DE 1-1
Compl. at ¶ 12.) On her first day as a Wastewaters Operator, Planck developed “a rash on
her arms, neck, face, chest, and stomach” and “experienced extreme headaches” while
working in the Fiberglass Tubing Plant. (DE 1-1 Compl. at ¶ 13.) After notifying her
supervisor, plaintiff was referred to the company doctor, Dr. Ruth Ann Combs, who
removed plaintiff from the Fiberglass Tubing Plant and prescribed medication to treat the

rash. (DE 1-1 Compl. at ¶ 14.) Planck’s supervisor placed her on a temporary suspension.
(DE 1-1 Compl. at ¶ 15.)
On June 7, 2013, plaintiff was en route to an appointment with Dr. Combs when her
vehicle collided with the vehicle of Dennis Braumbaugh, EnerSys Plant Manager. (DE 1-1
Comp. at ¶ 16.) Planck received medical treatment for her injuries and was released to
return to work two weeks later. (DE 1-1 Compl. at ¶¶ 17, 18.)
When Planck returned to EnerSys, “she was placed on the same machine as before
in the Fiberglass Tubing Plant,” and she again developed a rash and experienced
headaches. (DE 1-1 Compl. at ¶ 18.) Plaintiff reported her condition to her supervisor and
was ultimately instructed by the company doctor to schedule an appointment with an
allergy specialist. (DE 1-1 Compl. at ¶ 18.) Planck subsequently met with an allergist who
advised that plaintiff “could not work around fiberglass or the chemicals used in the
Fiberglass Tubing Plant” and wrote plaintiff a note stating that she needed to be removed
from the Fiberglass Tubing Plant. (DE 1-1 Compl. at ¶ 19.)
After the appointment, Planck reported the allergist’s findings to Michelle Johns, a
human resources assistant with Enersys. (DE 1-1 Compl. at ¶ 20.) Johns instructed Planck
to attend a meeting with Ed Bauer, human resources official, on June 28, 2013. (DE 1-1
Compl. at ¶ 20.) At the meeting, plaintiff presented the allergist’s note, and Bauer made a
copy of it. (DE 5-1 Planck’s Dep. at 149.) According to Planck, Bauer then informed her “if
she could not work in the Fiberglass Tubing Plant then there was no job available and her
separation papers would be sent to her.”(DE 1-1 Compl. at ¶ 21.) Plaintiff asserts that she
was not offered a transfer back to her previous position despite the fact that two male
employees “disqualified themselves from a position and then later received transfers back
to their previous positions[.]” (DE 1-1 Compl. at ¶¶ 23-24.)
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On or about March 3, 2014, plaintiff filed this suit in Madison Circuit Court. She
asserts three claims solely against EnerSys: (1) disability discrimination, in violation of the
Kentucky Civil Rights Act (“KCRA”), KRS § 344.040; (2) sex discrimination, in violation of
the KCRA, KRS § 344.040; and (3) promissory estoppel. (DE 1-1). She also advances a claim
against EnerSys, Bauer, and Braumbaugh for terminating her employment in retaliation
for requesting a reasonable accommodation, in violation of the KCRA, KRS § 344.280. (DE
1-1). Plaintiff seeks damages, costs, interest, and attorneys’ fees. (DE 1-1).
Defendants timely removed the action to this Court based on federal diversity
jurisdiction. (DE 1). A federal court has subject matter jurisdiction over civil actions where
the amount in controversy exceeds $75,000.00 and the action is between citizens of different
states. 28 U.S.C. § 1332(a). “In order for a defendant to remove a case to federal court based
upon diversity jurisdiction, there must be complete diversity of citizenship both at the time
the case is commenced and at the time the notice of removal is filed.” Jerome-Duncan, Inc.
v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999).
Planck and defendants Bauer and Braumbaugh are all Kentucky citizens. (DE 1
Notice of Removal at 3; DE 1-1 Compl. at ¶¶ 1, 5.) However, defendants assert that the
Court should disregard the citizenship of Bauer and Braumbaugh because plaintiff
fraudulently joined them to this suit. (DE 1 Notice of Removal at 6-10.) Defendants argue
that Planck cannot show that she engaged in a protected activity—as is required to
establish a retaliation claim under the KCRA—and instead impermissibly relies on her
status as a woman and allegedly disabled person. (DE 1 Notice of Removal at 6-10.)
Accordingly, defendants contend that Planck cannot assert a colorable retaliation claim
against the non-diverse Bauer and Braumbaugh, so there is complete diversity between the
parties. (DE 1 Notice of Removal at 10.)
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Planck filed motion to remand this action to Madison Circuit Court. (DE 4). She
argues that she was engaged in a “protected activity” for purposes of the KCRA when she
requested a reasonable accommodation for her disability and has otherwise established a
prima facie claim for retaliation. (DE 4 Pl.’s Mot. to Remand at 5-8.) Therefore, plaintiff
contends that she has a colorable retaliation claim against defendants Bauer and
Braumbaugh and that they were not fraudulently joined. The parties do not dispute that
the amount in controversy exceeds $75,000.00.
II. FRAUDULENT JOINDER
“Fraudulent joinder occurs when the non-removing party joins a party against whom
there is no colorable cause of action.” Saginaw Hous. Comm'n v. Bannum, Inc., 576 F.3d
620, 624 (6th Cir. 2009) (citing Jerome-Duncan, 176 F.3d at 907). In determining whether
the non-removing party asserted a colorable claim against a non-diverse party, the “court
must resolve all disputed questions of fact and ambiguities in the controlling state law in
favor of the non removing party. 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 Cir. 1999) (citations
omitted); see also 16 James Wm. Moore, Moore's Federal Practice § 107.14[2][c] (3d ed.
2013) (“If a possibility of a valid claim exists against the in-state defendant, the case is
properly cognizable only in state court if the citizenship of that defendant would bar
diversity jurisdiction.”). A non-diverse defendant is fraudulently joined to the action if it is
clear that the plaintiff cannot recover from the non-diverse defendant. Casias v. Wal–Mart
Stores, Inc., 695 F.3d 428, 432–33 (6th Cir. 2012). “A defendant attempting to prove
fraudulent joinder thus faces a particularly heavy burden.” Kent State Univ. Bd. of Trs. v.
Lexington Ins. Co., 512 F. App'x 485, 489 (6th Cir. 2013).

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When engaging in a fraudulent joinder analysis, courts “apply a test similar to, but
more lenient than, the analysis applicable to a Rule 12(b)(6) motion to dismiss.” Casias, 695
F.3d at 433. As appropriate, “[t]he court may look to material outside the pleadings for the
limited purpose of determining whether there are ‘undisputed facts that negate the claim.’”
Id. (quoting Walker v. Phillip Morris USA, Inc., 433 F. App’x 946, 955–56 (6th Cir. 2011)).
Therefore, “the court may . . . examine . . . affidavits and deposition testimony for evidence
of fraud” to determine if a party has been fraudulently joined. Gentek Bldg. Prods. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). “However, the Court must be
careful not to ‘step[ ] from the threshold jurisdictional issue [of fraudulent joinder] into a
decision on the merits.’” Lindon v. Kakavand, No. CIV.A. 5:13-26-DCR, 2013 WL 5441981,
at *6 (E.D. Ky. Sept. 27, 2013) (alteration in original) (quoting Boyer v. Snap-On Tools
Corp., 913 F.2d 108, 112 (3d Cir. 1990)).
III. KCRA RETALIATION CLAIM
While KCRA claims cannot typically be asserted against individuals, KRS § 344.280
“plainly permits the imposition of liability on individuals” for acts of retaliation. Morris v.
Oldham Cnty. Fiscal Court, 201 F.3d 784, 794 (6th Cir. 2000). To establish a prima facie
case for retaliation, plaintiff must demonstrate that (1) she engaged in a protected activity;
(2) this exercise of her civil rights was known to the defendant; (3) the defendant thereafter
took adverse employment action against the plaintiff; and (4) there was a causal connection
between the protected activity and the adverse employment action.1 Carpenter v. Univ. of

Because Planck attempts to establish retaliation solely through circumstantial evidence, the Court
employs the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Bryson v. Regis Corp., 498 F.3d 561, 577 (6th Cir. 2007); Kentucky Dep’t of Corr. v.
McCullough, 123 S.W.3d 130, 134 (Ky. 2003). Here, however, the parties’ arguments focus solely on
whether plaintiff can establish a prima facie case for retaliation and do not address the remainder of
the McDonnell Douglas analysis. Accordingly, the Court will only consider whether Planck has
established a colorable prima facie claim of retaliation against Bauer and Braumbaugh.
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Kentucky, No. 2012-CA-000994-MR, 2015 WL 1304361, at *8 (Ky. Ct. App. Mar. 20, 2015)
(citing Brooks v. Lexington–Fayette Urban Cnty. Hous. Auth., 132 S.W.3d 790, 803 (Ky.
2004)). Planck argues that she engaged in statutorily protected conduct by requesting a
reasonable accommodation for her disability. Defendants do not dispute that Planck
satisfies the last three elements of the prima facie showing, and contend only that Planck
has failed to demonstrate that she was engaged in a protected activity.2 Defendants contest
whether plaintiff actually requested a reasonable accommodation and contend that she
simply relies on her status as a woman and an allegedly disabled individual to assert a
claim of retaliation.
Under Kentucky law, protected activity consists of “oppos[ing] a practice declared
unlawful by [KRS 344], or . . . fil[ing] a complaint, testify[ng], assist[ing] or participat[ing]
in any manner in any investigation, proceeding, or hearing under [KRS 344.]” KRS §
344.280(1). Because the KCRA was modeled after federal law, Kentucky courts interpret
the KCRA consistently with the Americans with Disabilities Act of 1990 (“ADA”) and other
federal law. See KRS § 344.040(1) (stating that one of the purposes of Chapter 344 is “[t]o
provide for the execution within the state of the policies embodied in . . . the Americans
with Disabilities Act of 1990”); Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003)
(“The Kentucky Civil Rights Act was modeled after federal law, and our courts have
interpreted the Kentucky Act consistently therewith.”); Bryson v. Regis Corp., 498 F.3d 561,

Neither plaintiff nor defendants include the second element (employer knowledge) their
articulations of a prima facie retaliation claim. (DE 4 Pl.’s Mot. to Remand at 4; DE 5 Defs.’ Resp. to
Pl.’s Mot. to Remand at 5.) The Kentucky Supreme Court, however, included employer knowledge as
the second element of a prima facie case in Brooks v. Lexington–Fayette Urban County Housing
Authority, 132 S.W.3d 790, 803 (Ky. 2004). As explained by the Sixth Circuit, “[r]egardless of
whether employer knowledge is a stand-alone element of a prima facie case of retaliation, it is fairly
clear from Sixth Circuit case law that employer knowledge of a plaintiff's protected activity is
required.” Scott v. Eastman Chem. Co., 275 F. App’x 466, 482 (6th Cir. 2008). Here, defendants do
not claim that they were unaware of the actions that Planck argues constitute a protected activity.
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569 n.5, 577 (6th Cir. 2007) (“[T]he same legal standards control the adjudication of claims
brought under the KCRA, as under the ADA.”). Although a person making a request for a
reasonable accommodation might not literally “oppose” an unlawful practice or “participate”
in the administrative or judicial complaint process, the Sixth Circuit and most circuits
agree that a request for a reasonable accommodation is a protected act under the ADA. See
A.C. ex rel. J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 698 (6th Cir. 2013); Baker v.
Windsor Republic Doors, 414 F. App’x 764, 777 n.8 (6th Cir. 2011); Bryson, 498 F.3d at
577.3
Thus, the question then becomes whether Planck’s actions constituted a request for
a reasonable accommodation. Defendants point to Planck’s deposition testimony to argue
that she relies on her status as a woman and allegedly disabled person, rather than a
request for an accommodation, as the cause of her termination. (DE 5 Defs.’ Resp. to Pl.’s
Mot. to Remand at 5-7.) Indeed, defendants “disagree that Plaintiff ever sought a
reasonable accommodation” during her meeting with Bauer. (DE 5 Defs.’ Resp. to Pl.’s Mot.
to Remand at 11 n.2.) Planck asserts that she requested an accommodation when she
presented the allergist’s note to Bauer. (DE 4 Pl.’s Mot. to Remand at 6.) She claims that
“with the support of a doctor’s note,” she asked to “be removed from the tubing plant, and
returned to her former position, or any other position for that matter[.]” (DE 4 Pl.’s Mot. to
Remand at 6.) The Sixth Circuit has explained that although a plaintiff bears the burden of
requesting a reasonable accommodation, the ADA does not require employees to “use the

See, e.g., Mayers v. Laborers' Health & Safety Fund of N. Am., 478 F.3d 364, 369 (D.C. Cir. 2007);
Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106 (1st Cir. 2007); Cassimy v. Bd. of Educ. of
Rockford Pub. Sch., 461 F.3d 932, 938 (7th Cir. 2006); Coons v. Sec'y of U.S. Dep't of the Treasury,
383 F.3d 879, 887 (9th Cir. 2004); Heisler v. Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003); Weixel
v. Bd. of Educ. of N.Y., 287 F.3d 138, 149 (2d Cir. 2002); Haulbrook v. Michelin N. Am., Inc., 252
F.3d 696, 706 n.3 (4th Cir. 2001); Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1266 (10th Cir.
2001).
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magic words ‘accommodation’ or even ‘disability.’” Leeds v. Potter, 249 F. App’x 442, 449
(6th Cir. 2007) (quoting Smith v. Henderson, 376 F,3d 529, 535 (6th Cir. 2004)). “Simply
asking for continued employment can be a sufficient request for an accommodation.”
Burress v. City of Franklin, Tenn., 809 F. Supp. 2d 795, 813 (M.D. Tenn. 2011) (citing Burns
v. Coca-Cola Enters., Inc., 222 F.3d 247, 257 (6th Cir. 2000)). Viewing the facts in the light
most favorable to Planck, it is possible that she requested a reasonable accommodation
when she met with Bauer, presented the allergist’s note, and asked to be removed from the
Fiberglass Tubing Plant and reassigned to a different position.
Therefore, construing all disputed questions of fact and ambiguities in state law in
favor of plaintiff, the Court finds that plaintiff has asserted a colorable retaliation claim
against Bauer and Braumbaugh. The Court recognizes that Kentucky courts have not yet
addressed the question of whether a request for a reasonable accommodation constitutes a
protected activity under the KCRA. However, because Kentucky courts interpret the KCRA
consistently with the ADA, the Court finds that Kentucky courts might impose liability
against Bauer and Braumbaugh.
Accordingly, IT IS ORDERED that plaintiff Mary Planck’s motion to remand (DE
4) is GRANTED. This matter is REMANDED to Madison Circuit Court and STRICKEN
from this Court’s active docket.
Dated April 7, 2015.

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