Dusso v. Board of Education of Montgomery County, Kentucky et al
Filing
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MEMORANDUM OPINION AND ORDER: Pla's 4 Motion to Remand to State Court is GRANTED. Signed by Judge Karen K. Caldwell on March 29, 2016. (AWD) cc: COR,Montgomery Circuit Court
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
JAMES EDWARD DUSSO,
CIVIL ACTION NO. 5:15-287-KKC
Plaintiff,
V.
MEMORANDUM OPINION AND
ORDER
BOARD OF EDUCATION OF
MONTGOMERY COUNTY, and
JOSHUA POWELL, in his Individual
and Official Capacity as
Superintendent of the Board of
Education of Montgomery County,
Defendants.
*** *** ***
This matter is before the Court on Plaintiff James Dusso’s motion to remand. (DE 4).
Defendant Board of Education of Montgomery County (the “Board of Education”) filed a
Notice of Removal on September 22, 2015. (DE 1). Plaintiff now moves this Court to return
this action to the Montgomery Circuit Court (the “State Court”), pursuant to 28 U.S.C. §
1447(c), alleging that removal was improper because this Court lacked subject matter
jurisdiction. For the reasons stated below, the Court will grant Plaintiff’s motion to remand.
I. BACKGROUND
Plaintiff filed suit in State Court on August 19, 2015. (DE 1 at 2). The Board of
Education removed the matter to this Court on grounds that Plaintiff, in his Complaint,
raised a federal question under Title VII, 42 U.S.C. § 2000e-3(a) et seq. (DE 1 at 2.)
Although Plaintiff’s Complaint contains five counts, the Board of Education only relies on
the first count for its conclusion that a “federal cause of action was apparent on a plain
reading of the Complaint.” (DE 4 at 1–2.)
In relevant part, Plaintiff’s first count is as follows:
III. COUNT ONE
KRS 344.280 (and Title VII)
The Kentucky retaliation statute is part of the Kentucky Civil
Rights Act, KRS 344.
....
18. KRS 344.280 provides that a Conspiracy to violate
this chapter is unlawful.
....
The Prima Facie Case
1. Plaintiff engaged in a protected activity (under Title
VII or KCRA). Plaintiff Dusso engaged in a Protected Activity
when he opposed discrimination[.]
....
3. Defendant took materially adverse employment
action against Plaintiff. (Though the language of the Kentucky
statute says “any manner” of discrimination or retaliation is
unlawful, Plaintiff must prove that he or she suffered a
materially adverse change in the terms or conditions of
employment consistent with federal Title VII cases. [citing
Kentucky and Sixth Circuit precedent])
....
23. The defendant’s conduct violated KRS 344.280
(DE 1-3 at 4–8.) Other portions of the Complaint are relevant to this Court’s forthcoming
analysis. First, under the heading of “PARTIES” Plaintiff represents:
14. That at the time of the injuries complained of
herein, Defendants acted in bad faith, against Kentucky Law,
and with intentional and/or negligent disregard for the rights
of Mr. Dusso, plaintiff, an employee under their supervision.
(DE 1-3 at 4.) Second, Plaintiff’s fifth and final count is captioned “BASED ON
DEFENDANT POWELL’S VIOLATION OF VARIOUS KRS STATUTES,” and it
alleges:
35. at relevant times during Powell’s employment at
Montgomery County School Board, he committed various
multiple violations of Kentucky law.
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(DE 1-3 at 10.) For reasons fully set forth below, the Court finds that the Plaintiff, in his
Complaint, references, but does not rely upon, Title VII. (DE 4 at 1.) Because this Court is
persuaded that remand is proper for lack of jurisdiction, Plaintiff’s alternative offer to
voluntarily dismiss any federal claim he may have inadvertently raised need not be
addressed.
II. ANALYSIS
A civil action may be removed from a state court if the federal courts would have had
original jurisdiction over the action if it were filed there in the first instance. 28 U.S.C. §
1441. The Board of Education bears the burden of establishing its entitlement to this
forum. Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 453–54 (6th Cir. 1996).
The interests of comity and federalism require strict construction of the statutes conferring
jurisdiction to the federal courts on removal. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108–09 (1941). Subject to only a few limited exceptions not claimed here, removal
jurisdiction must be apparent from the face of the complaint. Eastman v. Marine Mech.
Corp., 438 F.3d 544, 550 (6th Cir. 2006). Thus, remand is required unless the Board of
Education can carry its burden by showing that the “Complaint establishes . . . that federal
law creates the cause of action.” Id.
It is important to note, however, that “the party who brings a suit is master to
decide what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25
(1913). Consequently, “the fact that the wrong asserted could be addressed under either
state or federal law does not ordinarily diminish the plaintiff's right to choose a state law
cause of action.” Alexander v. Elec. Data Sys. Corp., 13 F.3d 940, 943 (6th Cir. 1994).
Contrary to Defendant’s representations, this Court is unconvinced that Plaintiff
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“specifically pled a cause of action under Title VII.” (DE 6 at 2.) The face of the Complaint
is, at best, ambiguous on that point. Given the parties’ relative burdens, such ambiguity is
sufficient to justify remand. See Her Majesty The Queen In Right of the Province of Ontario
v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989) (“The removal petition is to be strictly
construed, with all doubts resolved against removal.”); Shelley's Total Body Works v. City of
Auburn, No. C07-126P, 2007 WL 765205, at *2 (W.D. Wash. Mar. 9, 2007) (“Federal courts
have repeatedly held that vague, ambiguous, or passing references to federal law in a
complaint are not sufficient to support removal based on federal question jurisdiction.”)
(collecting cases).
The contrast between Plaintiff’s obvious reliance on state law—which indisputably
creates five of Plaintiff’s causes of action1—and his alleged reliance on federal law is clear
from the caption of the first count of the Complaint, wherein Plaintiff specifically identifies
the Kentucky statute on which he relies, “KRS 344.280.” Plaintiff goes on to explain that
the statute is part of the Kentucky Civil Rights Act (“KCRA”), and proceeds to set forth the
right protected thereunder. Plaintiff’s caption includes only a vague reference to “Title VII.”
(DE 1-3 at 4.) Unlike the state law citation, this reference is set-off parenthetically with no
further reference to “Title VII.” (DE 1-3 at 4.) The first—and only—time the Complaint
identifies the “Title VII” referenced as the federal counterpart to KRS 344.280 is in a
parenthetical in which “federal Title VII cases” are mentioned to explain the gloss that
Kentucky courts have imported from federal anti-retaliation precedent into state precedent.
(DE 1-3 at 7.)
As fully set forth above, both the “PARTIES” section—preceding the Counts
alleged—and the fifth count—grouping the previous allegations while specifying their
1
Not surprisingly, five is also equals to the total numbered Counts contained in the Complaint.
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application to Defendant Powell—mention only state law violations. (DE 1-3 at 4, 10.) The
fifth count’s failure to reference Title VII is particularly difficult to square with any reliance
a federal cause of action. Count two relies almost exclusively on Defendant Powell’s conduct
as the basis for that claim. (DE 1-3 at 5–6.) If count two was intended to include not only a
state claim, but also a federal claim, it is unclear why the fifth count’s prayer for relief,
against Defendant Powell specifically, would rely entirely on “various multiple violations of
Kentucky law.” (DE 1-3 at 10 (emphasis added).)
Even if ambiguity was not sufficient to justify remand, other indicators further
suggest that Plaintiff’s mere reference to Title VII was not an attempt to pursue a federal
cause of action. For instance, following Plaintiff’s allegation that Defendant subjected him
to a materially adverse employment action, he goes on to explain parenthetically that
“though the language of the Kentucky statute says “any manner” of discrimination or
retaliation is unlawful, Plaintiff must prove that he or she suffered [a materially adverse
employment action] consistent with federal Title VII cases.” (DE 1-3 at 7.) Plaintiff then
cites Kentucky Supreme Court precedent, which has repeatedly interpreted the KCRA
consistent with corresponding provisions of federal law. See e.g., Brooks v. LexingtonFayette Urban Cty. Hous. Auth., 132 S.W.3d 790, 802 (Ky. 2004) (quoting Hollins v. Atlantic
Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999)). “[S]ince 1887 it has been settled law that a case
may not be removed to federal court on the basis of a federal defense, . . . even if the defense
is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is
the only question truly at issue in the case.” Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Trust for S. California, 463 U.S. 1, 14 (1983). At most, Plaintiff merely
sought to anticipate a federal defense by recognizing that state precedent had incorporated
a federal law requirement for a prima facie retaliation case, such actions cannot support
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jurisdiction. See Scaccia v. Lemmie, 236 F. Supp. 2d 830, 838–39 (S.D. Ohio 2002) (remand
ordered despite Plaintiff’s citation to federal precedent when “immediately preceded by a
citation” to state law because cite “in this context merely indicates . . . elements that he
believes he must establish”).
Finally, the Complaint’s singular pursuit of state causes of action is further
supported by the absence of any mention of Plaintiff obtaining a right-to-sue letter from the
EEOC. Under Title VII, obtaining such a letter is “a necessary prerequisite to filing suit.”
Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1488 (6th Cir. 1989). This is not a case of
so-called “artful pleading.” Mikulski v. Centerior Energy Corp., 501 F.3d 555, 561 (6th Cir.
2007) (“Under the artful-pleading doctrine, a federal court will have jurisdiction if a
plaintiff has carefully drafted the complaint so as to avoid naming a federal statute as the
basis for the claim, and the claim is in fact based on a federal statute.”) Plaintiff made no
attempt to conceal a federal issue; he noted Title VII’s relevance, but chose to pursue only
the alternative state law cause of action. Pan Am. Petroleum Corp. v. Superior Court of Del.
In & For New Castle Cty., 366 U.S. 656, 663 (1961) (“If the plaintiff decides not to invoke a
federal right, his claim belongs in a state court.”). Plaintiff’s failure to meet the
prerequisites necessary for a Title VII action bolsters a conclusion that is apparent on the
face of the complaint. Plaintiff only pursues a state cause of action and thus, Defendant’s
removal impermissibly superceded his choice to file in state court.
III. CONCLUSION
In sum, Plaintiff has not alleged a federal cause of action. Any reference to federal
law is explained by the Kentucky Supreme Court’s use of Title VII precedent in
interpreting the KCRA. “Where both state and federal remedies are available, such as
under the civil rights laws, and where federal law does not preempt a state law, a plaintiff
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may avoid federal jurisdiction by relying upon state law.” Egan v. Premier Scales & Sys.,
237 F. Supp. 2d 774, 775 (W.D. Ky. 2002). The Complaint only seeks to pursue state causes
of action. To read it “any other way would suggest that the defendant, not the [Plaintiff], is
‘the master of [his] complaint.’” Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 475 (6th Cir.
2008) (emphasis in original) (internal citations omitted).2 Consequently, this Court lacks
jurisdiction over this action and removal was improper.
Accordingly, IT IS ORDERED that Plaintiff’s Motion to Remand (DE 4) is
GRANTED.
Dated March 29, 2016.
Even if Plaintiff’s complaint did pursue a federal cause of action, his offer to amend his complaint
and voluntarily dismiss any federal cause of action would provide this Court discretion to reach the
same result. Eastman v. Marine Mech. Corp., 438 F.3d 544, 551 (6th Cir. 2006) (“if an amendment
eliminates all the federal claims, remand becomes a discretionary decision for the district court”).
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