Roller v. Glazer's Distributors of Missouri et al

Filing 23

MEMORANDUM AND ORDER - Accordingly, IT IS HEREBY ORDERED that the plaintiff's motion to remand [#17] is GRANTED. Plaintiffs request for an award of attorney fees and costs is denied. IT IS FURTHER ORDERED that this case is remanded to the Circui t Court of St. Charles County, State of Missouri, from which it was removed. Signed by District Judge Catherine D. Perry on May 6, 2016. (MCB)(Certifed copy of Memorandum and Order and docket sheet sent to: Circuit Court of St. Charles County, Judy Zerr, Clerk, 300 N. 2nd. Street, St. Charles, MO 63301.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MELISSA ROLLER,
Plaintiff,
vs.
GLAZER’S DISTRIBUTORS OF
MISSOURI, INC. d/b/a GLAZER’S
MIDWEST, et al.,
Defendants.

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Case No. 4:16CV0022 CDP

MEMORANDUM AND ORDER
Plaintiff Melissa Roller filed this suit in Missouri state court against her
former employer, Glazer’s Midwest, her supervisor, Bertheda Taylor, and an office
manager at Glazer’s, Diane Tapella. In her petition, Roller alleged three counts:
1.) that Defendants discriminated against her because of her sex and pregnancy and
retaliated against her in violation of the Missouri Human Rights Act; 2.) that her
termination was a retaliatory discharge for whistleblowing in violation of Missouri
Public Policy; and 3.) that she was wrongfully discharged in violation of Missouri
Public Policy.
This case is now before me on Plaintiff’s motion to remand to state court.
Defendants allege in their removal petition that Plaintiff necessarily relies upon an
interpretation of a federal statute in support of her retaliatory discharge and

wrongful discharge claims, specifically, the Federal Labor Standards Act, 29
U.S.C. § 207. Defendants allege that federal jurisdiction is proper under 28 §§
U.S.C. 1331 and 1441(a). Because I conclude that Plaintiff’s claims do not involve
a substantial question of federal law, I will remand the case to state court.
I.

Background
Roller has worked for Glazer’s since August, 2011, first as a temporary

employee, and then starting in November, 2011, as a regular employee. In March
2013, Roller took a maternity leave for the birth of her child. She returned to work
in May, 2013. Before returning, Roller informed Glazer’s that she would need a
place to pump or express breast milk at work. Roller alleges that she was told to
pump in a multi-stall bathroom. Roller further alleges that she informed
defendants that it was illegal to require her to pump or express breast milk in a
bathroom, and she was then offered the option of using a warehouse office.
According to her petition, on some days she was only allowed to pump once a day
or not at all.
Roller was fired on November 13, 2013. Defendants claim her termination
was due to customer complaints, but Roller contends that she was never subjected
to any progressive discipline, nor was she given the details of any alleged customer
complaints. Roller alleges that she was actually fired because of her decision and

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need to pump breast milk at work, and because she orally complained that it was
illegal to only provide her with a bathroom in which to pump.
II.

Legal Standard
Under 28 U.S.C. § 1441, a civil case filed in state court may be removed to

federal district court if the district court had original jurisdiction over the action.
28 U.S.C. § 1331 gives the district court original jurisdiction over all civil actions
arising under the Constitution, laws, or treaties of the United States. Defendants
bear the burden of establishing federal jurisdiction by a preponderance of the
evidence. Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005). Any
doubts about the propriety of removal are resolved in favor of remand. Wilkinson
v. Shakleford, 478 F.3d 957, 963 (8th Cir. 2007).
III.

Discussion
“Federal question jurisdiction exists only when the plaintiff’s well-pleaded

complaint establishes either that federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question
of federal law.” McNeill v. Franke, 171 F.3d 561, 563 (8th Cir. 1999). Mere
reference to federal statutes is not sufficient to create federal question jurisdiction.
Id. (quoting Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986)). A
plaintiff’s incidental reference to federal law does not convert her state claims into
a federal cause of action. Carter v. Edgewood Children’s Center, 2009 WL
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383357 at *2 (E.D.Mo. Feb. 12, 2009). When state law creates the cause of action,
“original federal jurisdiction is unavailable unless it appears that some substantial,
disputed question of federal law is a necessary element of one of the well-pleaded
state claims, or that one or the other claim is ‘really’ one of federal law.” McNeill,
171 F.3d at 564.
Here, each cause of action was created by state law. In Fleshner v. Pepose
Vision Institute, Inc., the Missouri Supreme Court expressly adopted a publicpolicy exception to the at-will-employment rule. 304 S.W.3d 81, 92 (Mo. banc
2010). An at-will employee may not be terminated (1) for refusing to violate the
law or any well-established and clear mandate of public policy as expressed in the
constitution, statutes, regulations promulgated pursuant to statute, or rules created
by a governmental body or (2) for reporting wrongdoing or violations of law to
superiors or public authorities. Id. If an employer terminates an employee for
either reason, then the employee has a cause of action in tort for wrongful
discharge based on the public-policy exception. Id.
In order to succeed on a claim for wrongful discharge in violation of public
policy under Missouri law, a plaintiff must establish that: (1) she refused to violate
a law or a well-established and clear mandate of public policy, or reported such a
violation to a superior or public authority; (2) the defendant terminated her
employment; (3) her refusal or report was a contributing factor in her termination;
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and (4) as a result of her discharge, she sustained damage. Keveney v. Mo. Military
Acad., 304 S.W.3d 98, 103 (Mo. banc 2010); Missouri Approved Jury Instructions
(MAI) § 38.03 (7th ed.2012).
Roller brings claims under both theories of wrongful discharge. In Count II,
she alleges retaliatory discharge for whistle-blowing (reporting a violation to a
superior), and in Count III she alleges wrongful discharge in violation of Missouri
Public Policy (refusal to violate clear mandate of public policy).1
In her whistle-blower claim, Roller avers she told the defendants that it was
illegal to only provide her with a bathroom to pump or express breast milk. Her
belief that the actions were illegal was based on a provision of the Fair Labor
Standards Act, codified at 29 U.S.C. § 207. Defendants now argue that removal is
appropriate because Roller’s claim will require a determination of defendants’
culpability under the FLSA as an essential element of her claim.
Missouri case law is unclear as to whether the whistleblower exception to
the employment at-will doctrine requires proof of an actual violation of law. In
Dunn v. Enterprise Rent-A-Car Co., the court found that requiring an employee to
prove a violation of law had already been committed at the time the employee
reports the conduct was too narrow of an interpretation of the law to be consistent
with the purpose of public policy. 170 S.W.3d 1, 10 (Mo. Ct. App. 2005). In that
1

Defendants do not argue that the first count in the complaint, alleging violations of the Missouri
Human Rights Act, present a federal question, and so I will not address it here.

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case, the employee could prove that he had a reasonable belief that the defendant
company would have violated federal securities laws, and had intended to do so
promptly, at the time he reported the suspected illegal activity. Id. Ultimately, the
company did not complete the alleged unlawful act, but the court reasoned
“Because he may have been instrumental in helping to prevent what he reasonably
believed to be an unlawful act, [the plaintiff] should be protected by law for his
efforts.” Id. at 9.
In Margiotta v. Christian Hospital Northeast Northwest, the plaintiff alleged
he was terminated because he continuously reported incidents of safety violations
pertaining to patient care to his supervisors. 315 S.W.3d 342, 345 (Mo. banc
2010). In support of his claim, he relied on a federal regulation stating that a
patient has the right to receive care in a safe setting. Id. at 348. The Missouri
Supreme Court held that the regulation was too vague to support the plaintiff’s
action because it did not specifically proscribe the incidents he had reported. Id.
The court explained, “What Margiotta asks this Court to do is grant him protected
status for making complaints about acts or omission he merely believes to be
violations of the law or public policy. The public policy exception to the at-will
doctrine is not so broad.” Id.

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In Bazzi v. Tyco Healthcare Group, LP, 652 F.3d 943, 948 (8th Cir. 2011),
the Eighth Circuit upheld Dunn’s view that a plaintiff must show a good-faith
belief that was objectively reasonable. See also Graham v. Hubbs Machine &
Mfg., Inc., 92 F. Supp. 3d 935, 940 (E.D. Mo. 2015).
This court then considered the issue in Zasaretti-Becton v. Habitat Co. of
Missouri, LLC, No. 4:12 CV 587 DDN, 2012 WL 2396868 (E.D. Mo. June 25,
2012). The plaintiff relied on Dunn in asserting that even if the allegedly unlawful
conduct did not actually violate the law, nonetheless her reasonable belief that it
did so was sufficient to support her wrongful termination claims. The court
explained “To the extent Dunn, Clark, and any other pre-Margiotta holdings
recognize the validity of this legal theory, the court concludes that post-Margiotta,
a reasonable belief of legal wrongdoing is not itself sufficient to succeed on an
unlawful termination claim brought under Missouri’s public policy exception to
the at-will employment doctrine.” Id. at *8.
Roller argues that, under Dunn, she does not need to prove an actual
violation of the FLSA, but only that she had a good-faith reasonable belief that the
activity was unlawful. Thus, she argues, no interpretation of the federal law is
necessary and no federal question has been presented. Glazer’s, on the other hand,
asserts that “the relevant inquiry is whether the authority clearly prohibits the
conduct at issue in the action,” Graham, 92 F. Supp. 3d at 940 (quoting Margiotta,
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315 S.W.3d at 347). Glazer’s argues that under this standard, Roller must prove a
violation of public policy as an essential element of her claim. Because the FLSA
is the only law Roller identified in Count II, Glazer’s contends that the claim
necessarily requires interpretation of a federal statute and thereby confers subjectmatter jurisdiction to this Court.
Whether or not Missouri law requires anything more than an objectively
reasonable, good-faith belief that the alleged conduct was unlawful remains an
open question. However, even if an actual violation of law is required, I find that
the defendant has failed to show that a substantial federal question exists.
“Federal issue” is not a password opening federal courts to any state action
embracing a point of federal law.” Grable & Sons Metal Products, Inc. v. Darue
Engineering & Mfg., 545 U.S. 308, 315 (2005). “Instead, the question is, does a
state-law claim necessarily raise a stated federal issue, actually disputed and
substantial, which a federal forum may entertain without disturbing any
congressionally approved balance of federal and state judicial responsibilities.” Id.
Only a “special and small category” of cases will fall within this category. Empire
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 700 (2006).
The Empire court identified several factors in Grable that led to the
determination that federal jurisdiction was appropriate. The dispute in Grable
centered on the action of a federal agency and its compatibility with a federal
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statute, the question qualified as “substantial,” and its resolution was both
dispositive of the case and would be controlling in numerous other cases. Id.
Additionally, Grable presented a nearly “pure issue of law,” one that could be
settled once and for all and thereafter would govern numerous similar cases. Id. In
contrast, the claim in Empire was fact-bound and situation-specific. Id. at 700 –
01.
In contrast to Grable, all of plaintiff’s claims involve the action of private
defendants, not a federal agency, and require a fact-specific inquiry into
defendants’ conduct. The resolution of the federal question in this case would not
be dispositive of the case or controlling in any other cases. This case does not
present a “nearly pure issue of law” that would govern numerous other cases once
resolved. Moreover, the language of the statute at issue is not unclear or subject to
different interpretations. Nor have the parties disputed how the statute should be
interpreted or whether it applies to defendants. I conclude that the defendants have
not presented a federal question that is “actually disputed” and “substantial.”
Additionally, in considering the balance of federal and state judicial
responsibilities, I note that the State of Missouri has a significant interest in
addressing the primary questions presented in this case, including whether Roller
appropriately “blew the whistle” by informing her superior of the alleged unlawful

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conduct, and whether an objectively reasonable good-faith belief that defendants
engaged in unlawful conduct is sufficient to support her claims.
Defendants do not discuss Count III, the wrongful discharge claim, in their
brief except for one small footnote explaining that the argument supporting
removal is the same under both counts. However, in Count III the plaintiff also
points to two Missouri statutes as evidence of the “clear public policy”. This
presents even less of a substantial federal question than under Count II.
For all of these reasons, I find that this case does not fall within that “special
and small” category of cases wherein a state law cause of action is subject to
federal question jurisdiction.
II.

Request for Attorney Fees
Roller has moved, pursuant to 28 U.S.C. § 1447(c), to recover the attorney

fees it incurred because of the defendants’ improvident removal. Under § 1447(c),
“[a]n order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” Such an
award is discretionary, Martin v. Franklin Capital Corp., 546 U.S. 132, 136
(2005), and granted “only where the removing party lacked an objectively
reasonable basis for seeking removal.” Id. at 141. Although the defendants’
argument that a question of federal law was involved was not ultimately

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persuasive, they did not lack an objectively reasonable basis for making the
argument. Therefore, I will deny Roller’s motion for attorney fees.
III.

Conclusion
As the removing parties, defendants Glazer’s, Tapella, and Taylor bear the

burden of showing by a preponderance of the evidence that subject-matter
jurisdiction exists, and all doubts must be resolved in favor of remand. In re
Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010). Because none of
the claims in plaintiff’s well-pleaded complaint require resolution of a substantial
federal question, the defendants have not met their burden, and this case must be
remanded.
Accordingly,
IT IS HEREBY ORDERED that the plaintiff’s motion to remand [#17] is
GRANTED. Plaintiff’s request for an award of attorney fees and costs is denied.
IT IS FURTHER ORDERED that this case is remanded to the Circuit
Court of St. Charles County, State of Missouri, from which it was removed.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 6th day of April, 2016
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