Belle v. Insight Communications Company, L.P. et al

Filing 25

MEMORANDUM OPINION AND ORDER: IT IS ORDERED that Belles motion for leave to amend his complaint 17 is GRANTED and his attached complaint shall be FILED in the record. IT IS FURTHER ORDERED that Belles motion to remand 6 is GRANTED. IT IS FURTHER ORDERED that all other pending motions are DENIED AS MOOT and this case is STRICKEN from the courts active docket. Signed by Judge Jennifer B. Coffman on 6/15/12. cc:counsel, Jefferson Circuit Court (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE
CIVIL ACTION NO. 12-34-C
MICHAEL BELLE,
V.

PLAINTIFF,
MEMORANDUM OPINION &_ORDER

INSIGHT COMMUNICATIONS COMPANY, L.P., et al.

DEFENDANTS.

* * * * * * * * * *
The defendants, Insight Communications Company L.P. and Vonda Czapor,
removed this case on the basis of diversity of citizenship from Jefferson Circuit
Court on January 17, 2012.

The defendants have satisfied their burden to

establish that the jurisdictional amount in controversy “ more likely than not”
exceeded $75,000 at the time of removal. See R.10. Pending before the court are
four motions: the def endants’ motion to dismiss the complaint (R.4), Belle’ s motion
to remand (R.6), the defendants’ construed motion to dismiss Czapor as a party in
this case due to fraudulent joinder (R.7); and Belle’ s motion to file an amended
complaint (R.17). For the follow ing reasons, the court concludes that Czapor w as
not fraudulently joined in this matter; therefore, complete diversity is lacking, and
this case w ill be remanded to Jefferson County Circuit Court.
Belle has alleged a claim against Czapor, his former supervisor at Insight, for
retaliation under the Kentucky Civil Rights Act (KCRA), KRS § 344.010, et. seq.
On March 27, 2012, after this case w as removed and in response to the
defendants’ motion to dismiss, Belle moved for leave to amend his complaint. In
that amended complaint, Belle clarified his retaliation claim against Czapor, offering
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more specific allegations in support of that claim. He experienced racial comments
about his voice, he w as forced to eat after his Caucasian co-w orkers, and he
generally experienced racial bias in the w orkplace.

See R. 17, Exhibit 2 at 3-4.

Belle alleges that he complained about this discriminatory conduct to Czapor and
his employer and that afterw ard he w as treated differently.

As a result of his

complaints, Belle alleges, he w as denied promotions and Czapor made f alse
disciplinary statement s about him, resulting in his termination from Insight.
As an initial matter, t he court considers w hether an amended complaint, filed
post-removal, can be considered in a fraudulent joinder and jurisdiction analysis.
Generally, w hen an action is removed, t he court determines w hether diversity
exists at the time of removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537 (1939);
Coyne v. Am. Tobacco Co., 183 F.3d 488, 492 (6th Cir. 1999). How ever, in a
fraudulent joinder analysis the court may look beyond the pleadings and examine
such documents as affidavits and deposition testimony to assess challenged facts.
See Gentek Bldg Prods., Inc. v. Steel Peel Litigation Trust , 491 F.3d 320, 330 (6th
Cir. 2007). The addit ional document here is a proposed amended complaint.
Belle sought leave to amend his complaint in order to clarify his claim for
retaliation against his supervisor Czapor. Leave to amend a complaint “ should be
freely given w hen justice so requires.” Fed. R. Civ. Pro. 15(a). The court w ill grant
such leave because t he amended complaint seeks to clarify the existing retaliation
claim against Belle, rather than to add new parties or a new cause of action.
Compare Davis v. Gen. Motors Corp., 353 F. Supp.2d 1203 (M.D. Ala.
2005)(permitting plaintiffs to amend their complaint pursuant to Fed. R. Civ. Pro.
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15(a) after removal to clarify existing claims), w ith Anderson v. Merck, 417
F.Supp.2d 842 (E.D. Ky. 2006)(declining to consider post -removal amended
complaint that w ould assert a new cause of action). Therefore, the court w ill grant
Belle leave to file t he amended complaint and w ill consider his allegations of
retaliation in det ermining w hether Czapor w as fraudulently joined for the purpose of
defeating diversity jurisdiction.
Insight, as the removing party, has the burden to demonstrate that Czapor
w as fraudulently joined. See Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d
904, 907 (6th Cir. 1999)(finding that the removing party “ may avoid remand only
by demonstrating that the non-diverse party w as fraudulently joined.” ).

To

establish fraudulent joinder, Insight must show that Belle has “ no colorable cause
of action” under the relevant stat e law against Czapor. See Saginaw Hous.
Comm’ n v. Bannum, Inc., 576 F.3d 620, 624 (6th Cir. 2009)(citing Coyne v. Am.
Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999)). If there is a “ colorable basis”
for predicting that a plaintiff may recover against non-diverse defendants then
remand is appropriate. Alexander v. Elec. Data Sys., Corp., 13 F.3d 940, 949 (6th
Cir. 1994). The court is to resolve all disputed questions of fact and ambiguities in
favor of the non-removing party, and all doubts are resolved in f avor of remand. Id.
Belle has stated a colorable claim against Czapor for retaliation under
Kentucky state law . To prevail on such a claim, Belle must demonstrate: (1) that
he engaged in an activity protected by the KCRA; (2) this activit y w as know n to his
employer; (3) he suffered an adverse employment action; and (4) a causal

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connection exists bet w een the prot ected activity and the adverse action. Brooks v.
Lexington-Fayette Urban Housing Authorit y, 132 S.W.3d 790 (Ky. 2004).
According to Belle, shortly after he began employment at Insight he
experienced discriminatory and harassing behavior and comment s from Czapor. He
describes racial comments about his voice and being forced to eat after Caucasian
co-w orkers. He w as subjected to discrimination and ret aliation, including the denial
of promotions, w rongful discipline by Czapor, and ultimately his termination from
Insight. Belle has alleged that he engaged in an activity prot ected by the KCRA —
that he reported and complained about t he discrimination to Czapor.

When an

employee communicates to his employer a belief that the employer has engaged in
employment

discrimination,

protected activity.

that

communication virtually

alw ays constitutes

Craw ford v. Metro. Gov. of Nashville and Davidson County,

TN., 555 U.S. 271, 276 (2009)(internal citations omitted).
As to the other three elements, Belle has alleged a colorable basis for
retaliation in his amended complaint. The court w ill infer that Czapor w as aw are of
the protected activit y because Belle stat es that he report ed the discriminatory
conduct to Czapor.

In addition, as Belle’ s supervisor, Czapor had the pow er to

“ hire, fire, and otherw ise discipline” Belle.

Belle claims that he suffered adverse

employment action, including the denial of promotions and ultimately the
termination of his employment from Insight. Finally, a “ causal connection” exists
betw een the prot ect ed activity and the adverse action.

Belle stat es that he

reported the conduct to Czapor beginning in April 2010 and continuing until the
date of his termination. Evidence of ret aliation coupled w ith temporal proximity to
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the adverse action is enough to establish such a connection.

See Little v. BP

Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir. 2007)(concluding that
temporal proximity considered w ith “ other evidence of ret aliatory conduct” is
sufficient to establish a causal connection). Clearly, a colorable basis for retaliation
exists against Czapor. The defendants have failed to meet the stringent standards
to establish fraudulent joinder. Thus, complete diversity is lacking, and the court
must remand this case to Jefferson Count y Circuit Court. Accordingly,
IT IS ORDERED that Belle’ s motion for leave to amend his complaint (R. 17 )
is GRANTED and his attached complaint shall be FILED in the record.
IT IS FURTHER ORDERED that Belle’ s motion to remand (R. 6) is GRANTED.
IT IS FURTHER ORDERED that all other pending motions are DENIED AS
MOOT and this case is STRICKEN from the court’ s active docket .

Signed on June 15, 2012

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