White v. Amedisys Holding, LLC. et al

Filing 15

MEMORANDUM ORDER: (1) Because this case was improvidently removed, that it be remanded to the Bell County Circuit Court; (2) The decision on Defendants' Motion to Dismiss (Doc. # 8) shall be left to the deliberation of the learned Bell County Circuit Court Judge; and (3) This matter be stricken from the Court's active docket. Case Terminated. Signed by Judge David L. Bunning on 9/19/2017.(RBB)cc: COR, certified copy to Bell Circuit Court via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 17-108-DLB
RHONDA WHITE
vs.

PLAINTIFF
MEMORANDUM ORDER

AMEDISYS HOME HEALTH, LLC, et al.

DEFENDANTS

***   ***   ***   ***   ***   *** 

I.

INTRODUCTION

This is a civil rights (Ky. Rev. Stat. Ann. § 344.040) and workers’ compensation
retaliation (Ky. Rev. Stat. Ann. § 342.197) employment action brought against Plaintiff’s
former employer and two of her former supervisors. Plaintiff filed suit in the Bell County
Circuit Court. Defendants removed the action to this Court. The Court does not have
jurisdiction over this action, as Plaintiff’s claim under Ky. Rev. Stat. Ann. § 342.197,
Kentucky Workers’ Compensation (“WC Retaliation”) statute, presents a claim arising out
of a state workers’ compensation claim, for which 28 U.S.C. § 1445(c) prohibits removal.
The Court therefore remands this action to the Bell County Circuit Court.
II.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Rhonda A. White is a citizen of Kentucky. (Doc. # 1-1 at 2). Defendant

Amedisys Holding, LLC is a Louisiana limited-liability company whose sole member is
Amedisys, Inc., a publicly traded corporation registered in Delaware with its principal
place of business in Baton Rouge, Louisiana. (Doc. # 1 at 3). Defendant Melissa
McKinney’s sole residence for at least the last six years has been in Tennessee. (Doc. #

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3). Defendant Melissa Leake’s sole residence for at least the last fourteen years has
been in Tennessee. (Doc. # 4).
In March 2017, Plaintiff filed a complaint in Bell County Circuit Court, alleging
violations of the Kentucky Civil Rights Act (KCRA) and the WC Retaliation statute. (Doc.
# 1-1 and 1-5). Plaintiff alleged that she was employed by Amedisys and supervised by
Defendants Leake and McKinney; that she was wrongfully harassed, coerced, and
discriminated against by Defendants; and was terminated on or about January 31, 2017.
(Doc. # 1-1 at ¶¶ 2-4). Plaintiff further alleged the following:
(1) That she was discriminated against based on a work-related injury and workers’
compensation claim. Id. at ¶ 4;
(2) That Defendants violated her rights, wrongfully fired her, and discriminated
against her. Id. at ¶5;
(3) That she suffered a work-related injury on January 9, 2017, and was wrongfully
harassed, coerced, and discriminated against as a “direct result” of her
potential workers’ compensation claim, her color, her ethnicity, and as a person
with a back injury. Id. at ¶ 7; and
(4) That Plaintiff was the only person of color at Amedisys, had not experienced
any racial discrimination until new management arrived, in particular, Plaintiff
was left out of conversations or conversations stopped when she entered a
room, she was excluded from lunch activities, outside break activities, and
other outings, and she was segregated and discriminated against, in violation
of the Kentucky Civil Rights Act. Id. at ¶ 6.

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In her prayer for relief, Plaintiff demanded reinstatement, lost wages, back pay,
front pay, lost benefits, health care coverage, all costs, workers’ compensation benefits,
all benefits, and reasonable attorneys’ fees, all in excess of five-thousand dollars. Id. at
3. Plaintiff’s Complaint also demanded punitive damages in excess of five-thousand
dollars. Id.
Defendants Amedisys, McKinney, and Leake removed the case to this Court,
claiming the Court has diversity jurisdiction under 28 U.S.C. § 1332(a) because complete
diversity existed and the amount-in-controversy was met. (Doc. # 1 at 2-4). Specifically,
Defendants claimed that Plaintiff’s back pay claims, potential emotional distress damage,
and requests for attorneys’ fees claims collectively added up to more than $75,000,
satisfying § 1332’s amount-in-controversy requirement. Id. at 4-6. Plaintiff did not contest
the removal of the action.
On May 2, 2017, Defendants moved to dismiss several of Plaintiff’s claims under
Rule 12(b)(6). (Doc. # 8). Defendants argued that the claims under the WC Retaliation
statute and the KCRA were not legally cognizable against Defendants Leake and
McKinney in their individual capacities, and that Plaintiff’s putative KCRA conspiracy
claim under Ky. Rev. Stat. Ann. § 344.280 (“KCRA Conspiracy”) against all Defendants
failed as a matter of law.1 (Doc. # 8-1 at 5-11). Defendants also requested that the Court
extend its time to answer the remaining claims until after the Court ruled on their Motion
to Dismiss.

Id. at 11.

Plaintiff responded by stating that she had no objection to

dismissing the claims against Defendants McKinney and Leake, or to the dismissal of a

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Although not specifically pled in the Complaint, Defendants have read the Complaint to include allegations
of a violation of Ky. Rev. Stat. Ann. § 344.280, which prohibits two or more people from conspiring to
retaliate in response to a person’s action opposing the KCRA or bringing a complaint or charge under the
KCRA. 

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putative retaliation claim. (Doc. # 12). In Defendants’ Reply, they urged the Court to
dismiss with prejudice all claims against Defendants Leake and McKinney and the
putative KCRA Conspiracy claim against Amedisys.

(Doc. # 14).

Amedisys also

requested that the Court order Plaintiff to file an amended complaint, setting forth her
remaining claims against Amedisys with greater particularity. Id.
In considering the partial Motion to Dismiss, it appears that Defendants and
Plaintiff are on the exact same page: Plaintiff has agreed to the dismissal of all claims
against the individual defendants, and dismissal of the putative KCRA Conspiracy claim
against all Defendants, leaving only her WC Retaliation and KCRA claims against
Amedisys.
However, before considering the merits of Defendants’ motion, the Court must
make the independent finding that it has jurisdiction over the case.
III.

ANALYSIS
A.

The Court does not have jurisdiction over this matter.

The “first and foremost question” that a court must ask, “even when the parties
concede or do not raise the issue,” is whether it has jurisdiction to review an action.
Valinksi v. Detroit Edison, 197 F. App’x 403, 405 (6th Cir. 2006) (quoting Douglass v. E.G.
Baldwin & Assocs. Inc., 150 F.3d 604, 606-07 (6th Cir. 1998)). Regardless of the parties’
actions or intent, the federal courts are required to independently “investigate and police
the boundaries of their own jurisdiction. Id. Thus, although Plaintiff has not objected to,
or even commented upon, Defendant’s removal of this action, the Court must determine
whether it has jurisdiction over this matter.

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Congress’ grant of removal power to defendants under 28 U.S.C. § 1441 is broad.
(“[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 defendant or defendants…”). However,
this broad grant is limited by other statutes, including § 1445 of the same chapter, aptly
titled “Nonremovable actions.” Relevant to this case is subsection (c) of § 1445, which
provides: “A civil action in any State court arising under the workmen’s compensation
laws of such state may not be removed to any district court of the United States.” Both
“arising under the workmen’s compensation laws” and “may not be removed” have been
earnestly disputed in the courts.
1. Plaintiff’s claim of retaliation for pursuit of workers’ compensation
benefits “arises under” Kentucky’s workmen’s compensation law.
The Sixth Circuit has held that a civil action “arises under a state workmen’s
compensation law when either (1) the workmen’s compensation law created the cause of
action or (2) the plaintiff’s right of relief necessarily depends on resolution of a substantial
question of workmen’s compensation law.” Harper v. AutoAlliance Int’l, Inc., 392 F.3d
195, 203 (6th Cir. 2004). In Harper, the Court found that the Michigan law at question
made it unlawful for an employer to discharge or discriminate against an employee
because the employee had filed a complaint under Michigan’s workmen’s compensation
law, but provided no remedy or means of enforcement, leaving both to common-law tort
actions and remedies. Id. at 203-04. As a result, the Sixth Circuit concluded that the
plaintiff’s claims did not “arise under” Michigan’s workmen’s compensation laws, and were
not prohibited from removal to federal court. Id.
In contrast, Kentucky’s worker’s compensation statute creates a cause of action
and provides a remedy. Ky. Rev. Stat. Ann. § 342.197(3) (“Any individual injured by an

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act in violation of the provisions of subsection (1) or (2) of this section shall have a civil
cause of action in Circuit court to enjoin further violations, and to recover the actual
damages sustained by him, together with the cost of the law suit, including a reasonable
fee for his attorney of record.”). Other district courts in Kentucky agree. See Christie v.
IMI South, LLC, No. 5:15-cv-23-JHM, 2015 WL 1916145, *2 (W.D. Ky., Apr. 27, 2015)
(“KRS § 342.197 arises under Kentucky’s worker’s compensation law because it creates
a remedy.”); see also McCormack v. R.R. Donnelley & Sons Co., 436 F. Supp. 2d 857,
859 (E.D. Ky. 2006) (“[T]he Kentucky cause of action qualifies [under Harper] for a
number of reasons. First, the protections of the provision are specific to workers’
compensation, and the prohibition and remedy sit squarely within the chapter of the
Kentucky code devoted to workers’ compensation.”); Sheckles v. Ralcorp Frozen Bakery
Products, Inc., No. 10-cv-665-JBC, 2011 WL 873507, *2 (W.D. Ky. Mar. 11, 2011) (“[The
worker’s

compensation

retaliation

statute]

arises

under

Kentucky

workmen’s

compensation law because it creates a remedy. Unlike the Michigan and Tennessee
statutes, KRS § 342.197(3) specifically creates a remedy for discharged employees
seeking benefits. This limits the remedy to that specifically provided for under the
statute.”) (internal citation omitted).
Put simply, under Harper, Kentucky’s worker’s compensation retaliation statute,
which provides a cause of action and a remedy, “arises under” the state workmen’s
compensation laws and is not removable under 28 U.S.C. § 1445(c).2

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Because the worker’s compensation retaliation statute falls within the first of two possible types of cases
that “arise out of” workmen’s compensation laws, there is no need to perform the analysis to determine
whether “the plaintiff’s right of relief necessarily depends on resolution of a substantial question of
workmen’s compensation law.” Harper at 203. 

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2. The prohibition on removal is a jurisdictional limitation on the
district courts, which requires remand.
The removal statutes—28 U.S.C. § 1441 et seq.—carve out three specific types of
cases that may not be removed. See § 1445. In particular, civil actions brought in state
courts and arising under the workmen’s compensation laws of the state are
“nonremovable.” § 1445(c).
Along with the prohibition on removal of certain cases, Congress established a
simple procedure for dealing with improperly removed cases: send them back. 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.”).
The Sixth Circuit case law strongly suggests that removal of a case in
contravention to § 1445 is a jurisdictional violation. Harper, which controls here, makes
it clear that “[a] civil action ‘arising under the workmen’s compensation laws of [a] State’
cannot be removed to a federal district court.” Harper, 393 F.3d at 202. The Harper
Circuit analyzed the meaning of “arising under” and “workmen’s compensation laws,”
without returning to the word “cannot.” Without any qualification to this term, it must be
understood as a prohibition on the ability to remove, or on permission to remove. See
Can, Black’s Law Dictionary (10th ed. 2014).3
The unpublished Sixth Circuit cases are in line with Harper, and consistently treat
removal of actions with workmen’s compensation claims as jurisdictional. The most

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There has been some debate within this district as to whether the removal of an action otherwise prohibited
under § 1445 is a jurisdictional or a procedural violation. Compare McCormack v. R.R. Donnelley & Sons
Co., 436 F. Supp. 2d 857 (E.D. Ky. 2006), with Hackworth v. Guyan Heavy Equipment, Inc., 613 F. Supp.
2d 908 (E.D. Ky. 2009). Under the latter interpretation—that improper removal is a procedural defect—
Plaintiff’s failure to timely move for remand constitutes a waiver, and the Court is not required to remand.
See Hackworth, 613 F. Supp. 2d at 912. But under Harper and the plain language of the statute, the action
cannot be removed.

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recent case, Nixon v. Waste Management, Inc., forcefully describes the procedure for
dealing with improperly removed cases. Nixon, 156 F. App’x 784, 786 (6th Cir. 2005)
(“Mr. Nixon’s retaliatory discharge action must be remanded to the Hardin County court,
therefore, if the action [arises under the Tennessee workers’ compensation laws]”); see
also Snuggs v. Excel Mfg of Ky., Inc., 187 F.3d 638, *1 (6th Cir. 1999) (table) (“Snuggs
contends that the district court erred in upholding removal of her case. She cites 28 U.S.C.
§ 1445(c) in support of her claim. This court reviews a district court’s determination of
subject matter jurisdiction de novo.”); Thornton v. Denny’s, Inc., 992 F.2d 1217, *2 (6th
Cir. 1993) (table) (“Our first inquiry is whether the federal district court had jurisdiction to
hear the merits of Thornton’s case. Thornton contends that the district court lacked federal
subject matter jurisdiction to hear the case because it arises out of a Michigan workers’
compensation law. Removal of state-law workers’ compensation cases is prohibited even
if there is diversity of citizenship.”); Robinson v. Daugherty, 785 F.2d 310, *1 (6th Cir.
1986) (table) (“Plaintiff cannot establish jurisdiction under 28 U.S.C. § 1357 … because
plaintiff was not enforcing any federal laws when he was injured. Finally, 28 U.S.C. §
1445(c) provides that ‘A civil action in any State court arising under the workmen’s
compensation laws of said State may not be removed to any district court of the United
States.’”).
In addition to the controlling effect of Harper, these cases weigh heavily in favor of
finding that improper removal is a jurisdictional defect. See Greene v. King James Coal
Mine, Inc., 575 F.3d 628, 640 (6th Cir. 2009) (“Although these [ ] cases are all unpublished
and not binding on us, we find them persuasive.”). Therefore, this Court does not have
jurisdiction over the action removed from the Bell County Circuit Court and the action

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must be remanded.4
IV.

CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)

Because this case was improvidently removed, that it be remanded to the

Bell County Circuit Court;
(2)

The decision on Defendants’ Motion to Dismiss (Doc. # 8) shall be left to

the deliberation of the learned Bell County Circuit Court Judge; and
(3)

This matter be stricken from the Court’s active docket.

This 19th day of September, 2017.

K:\DATA\ORDERS\London\2017\17-108 White v Amedisys Order.docx

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In certain circumstances where multiple claims are brought in an action, one of which is nonremovable,
claims that independently give rise of federal-question jurisdiction can remain in federal court. 28 U.S.C. §
1441(c)(1). The nonremovable claims would be severed and remanded. Id. at § 1441(c)(2). However,
Plaintiff’s other claim in this action does not pose a federal question. Therefore, the Court is unable to
exercise jurisdiction over the other claim and the entire action must be remanded. See, e.g., Horn v. Kmart,
No. 1:06-cv-493, 2007 WL 1138473 (S.D. Ohio, April 16, 2007) 

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