Filing 31

REPORT AND RECOMMENDATIONS re 21 Second MOTION to Remand filed by PETER SHARKEY Objections, if any, to R&R due by 4/1/2015. Signed by Magistrate Judge Joseph A. Dickson on 3/18/2015. (nr, )

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Civil Action No. 14-cv-02788 (JLL) (JAD) PETER SHARKEY, Plaintiff, I REPORT AND RECOMMENDATION ON I PLAINTIFF'S RENEWED MOTION TO REQUEST FOR REMAND AND ATTORNEYS' FEES AND COSTS i v. VERIZON NEW JERSEY INC. Defendant. -----------------------------------------------------------------------------------J JOSEPH A. DICKSON, U.S.M.J. This matter comes before the Court upon Plaintiffs renewed motion to remand this ma r to the Superior Court of New Jersey, Essex County, pursuant to 28 U.S.C. § 1447(c). (ECF 21). The Hon. Jose L. Linares, U.S.D.J. referred Plaintiffs motion to this Court for a Report Recommendation. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court did t hear oral argument on Plaintiffs application. Upon consideration of the parties' submissions, for the reasons stated below, it is the recommendation of this Court that Plaintiffs motion e GRANTED IN PART AND DENIED IN PART. Specifically, this Court recommends that e District Court remand this case to the New Jersey Superior Court and deny Plaintiffs applicati n for an award of attorneys' fees pursuant to 28 U.S.C. § 1447(c). I. BACKGROUND a. Relevant Factual Background Plaintiff Peter Sharkey was an employee of Defendant Verizon New Jersey I ("Verizon") from December 1986 to the end of December 2013. (Am. Compl., ECF No. 19, ~ During his employment, Plaintiff worked as a Facilities Technician. ffib ~ 7-8). Plaintiff alle that he injured his back in a work-related accident sometime in 1990. (Id. ~ 9). As a result oft injury, Plaintiff underwent three back surgeries, with the latest surgery being in 2003. ffiL ml - 10). After his most recent surgery in 2003, Plaintiff's physician imposed certain restrictions n Plaintiff, such as prohibiting him from climbing polls or ladders or lifting more than sixty poun s. (Id. ~ 10). Despite those restrictions, which Verizon was aware of, Plaintiff continued in his r e as a Facilities Technician until August 2013. (Id.if~ 7, 11, 28). Specifically, Plaintiff alleges t t Verizon temporarily accommodated his disability by permitting him to work on ground-moun d pedestals for a period of approximately eight years (the "Accommodations Period"). (Id. ~~ 1 ). Plaintiff contends that, during the Accommodations Period, he "satisfied all metrics establis for measuring the productivity of a Verizon Facilities Technician and was therefore able to perfo the essential functions of his job." ffiL ~ 16). Specifically, Plaintiff alleges that he "completed e required four (4)jobs per day'', fuh ~ 12), had a "repeater rate" (a measure ofhow often a technic· is required to return to a job) of less than ten percent, reviews", (id.~ fuh ~ 13 ), received "excellent perform 14), and "few (if any) customer complaints." (Id.~ 15). Plaintiff alleges that, in or about September 2012, Verizon and AFL-CIO Locals 827 1944 agreed to adopt a Medical Restriction Leave of Absence Policy Amendment (the "M LOAPA"). (Id. ~ 17). The MR-LOAPA concerned "the treatment of associate employees w o are determined to be able to work but have medical restrictions that may prevent performance f 2 all the essential functions of their normal assignment with or without reasonable accommodatirn " (Id. if 18). The MR-LOAPA also provided, in pertinent part, that "an employee who ":ts 'medically restricted' for more than 150 days and for whom another position was not availal e would, if eligible, be placed on a Medically Restricted Leave of Absence (MR-LOA) or a lea e pursuant to the Family Medical Leave Act." (Id. if 19). Once that leave expired, Verizon cot d "drop[] [the employee] from the payroll." (Id.). On or about August 13, 2013, Verizon informed Plaintiff that, as a result of his ongoi g medical restrictions and the MR-LOAPA, it would no longer permit Plaintiff to work as a Facilit es Technician. (Id. W 20-22). Verizon told Plaintiff that he was required to find an appropri1 •e alternative position and that, ifhe failed to do so by January 10, 2014, Verizon would place h m on an unpaid medical for seven months. (Id. if 21 ). Verizon further advised Plaintiff that, at 1 e conclusion of that seven month medical leave, Verizon would terminate Plaintiff's employme t. (Id.). Plaintiff alleges that, on or about August 13, 2013 (i.e., the date Verizon advised Plaint ff that it would no longer permit him to work as a Facilities Technician), Verizon began to gi •e Plaintiff a series of "light duty'' assignments, such as "riding in a truck with technicians; rewiri g a pedestal; taking computer classes; and working in Motor Vehicles transporting and driving true ts to the inspection station." (Id. if 22). Between late August 2013 and December 2013, Plaint lff attempted, without success, to locate another position at Verizon. (Id. if 23-24). Plaintiff alle~ •s that, "faced with the certainty that he would be placed on the unpaid MR-LOA for seven mon1 is and then terminated, [he] elected to leave the company at the end of December 2013." (Id. 3 if 2~ . b. Procedural History Plaintiff commenced this matter on March 25, 2014 by filing a Complaint against V eri n in the Superior Court of New Jersey, Law Division, Essex County, alleging multiple violations the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-1, et seq. ("NJLAD"). (Compl., E No. 1 at 10, ifif 23-45). On May 1, 2014, Verizon removed the case to the United States Dist Court for the District of New Jersey pursuant to 28 U.S.C. § 1441(a), contending that Plainti s claims implicated questions of federal law. (Not. of Rem., ECF No. 1, if 22). Specifically, Veri n asserted that Plaintiff's claims were completely preempted by the Labor Management Relati s Act, 29 U.S.C. § 185, et. seq. ("LMRA"), "because their resolution requires an analysis interpretation of a collective bargaining agreement ... between Verizon NJ and the labor representing Plaintiff." (Id. at if 6). Verizon also argued that Plaintiff's claims were complet preempted the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et s , ("BRISA"). (Id. at if 7). In particular, Verizon contended that an analysis of Plaintiff's allegati n of constructive discharge (an offshoot of Plaintiff's other substantive claims) required interpretation and application of the terms of the BRISA governed separation offer that Plain chose to participate in. (Id. at if 16). Plaintiff filed a motion to remand the case back to the New Jersey Superior Co challenging Verizon's preemption arguments, (ECF No. 4), which Verizon opposed. (ECF 6). By Report and Recommendation dated November 21, 2014, this Court recommended that e District Court grant Plaintiff's motion and remand this matter back to state court. (ECF No. 1 Verizon filed a timely objection to that Report and Recommendation. (ECF No. 16). By Or r dated December 18, 2014, the Hon. Jose L. Linares, U.S.D.J. denied Plaintiff's motion to rem without prejudice, sua sponte dismissed both counts of Plaintiff's Complaint for failure to stat a 4 claim and granted Plaintiff leave to file an amended pleading. (ECF No. 18). Judge Linares et forth his rationale for those rulings in an accompanying Opinion. (ECF No. 17). In particul Ir, Judge Linares determined that, because Plaintiffhad not alleged sufficient facts to enable the Co U1: to conduct the necessary preemption analyses, the Court was not in a position to resolve Plainti1 ~s motion to remand. For instance, with regard to Verizon' s arguments regarding LMRA preemptic p, Judge Linares wrote: It is not entirely clear to this Court, however, whether Plaintiffs theory of the case is that the terms of the MR-LOAPA, itself, caused the adverse employment action, or if the actions taken as a result of the policy changes caused the adverse employment action in either Count ... Only by understanding the true contours of Plaintiff's claims of disparate treatment and failure to accommodate, will this Court be in a position to properly assess whether such claim "substantially" depends on the analysis of any particular terms of the relevant CBA - and thus to determine whether Count one and Two are completely preempted by§ 301 of the LMRA." (See Opinion, ECF No. 17, at 10-11). Judge Linares found that Plaintiff's flawed pleadi g similarly precluded a proper analysis of Verizon' s ERIS A preemption argument. (Id. at 11-12 On January 16, 2015, Plaintiff filed an Amended Complaint in accordance with Jud ~e Linares's December 18, 2014 Order. (ECF No. 19). On January 22, 2015, Plaintiff filed 1 ~e renewed motion to remand currently before the Court, once again challenging Defendant Verizo1 's complete preemption arguments and seeking an award of attorneys' fees in connection with 1 ~e removal/remand process. (ECF No. 21). The parties have since fully briefed that motion. (EC F Nos. 28, 29). II. LEGAL DISCUSSION a. Removal and Remand - Generally Section 1441 (a) of Title 28 allows removal of a civil action from state court to federal co lrt ifthe federal court would have original subject matter jurisdiction over the action. Caternillar Tt 5 ~. v. Williams, 482 U.S. 386, 392 (1987). A federal district court has original subject ma r jurisdiction over all civil actions where the amount in controversy exceeds $75,000 and the acti n is between citizens of different states. 28 U.S.C. § 1332(a)(l). This is known as "divers y jurisdiction." An action can be removed on the basis of diversity jurisdiction only "if there i a complete diversity between all named plaintiffs and defendants." Lincoln Prop. Co. v. Roche, 5 6 U.S. 81, 84 (2005). This "complete diversity" requirement prohibits removal if a plaintiff and defendant are citizens of the same state. Kaufman v. Allstate N.J. Insur. Co., 561 F.3d 144, 1 8 (3d Cir. 2009). An action may also be removed if it includes a claim arising under the Constituti , laws, or treaties of the United States. 28 U.S.C. § 144l(a). This is commonly known as "fed question jurisdiction." A claim "arises under" federal law if"a well-pleaded complaint establis s either that federal law creates the cause of action or that the plaintiffs right to relief necessa depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 27-8 (1983). In certain cases fed question jurisdiction will lie over state law claims that implicate significant federal issues or " on substantial questions of federal law." Grable & Sons Metal Products Inc. v. Dame En ' Mfa., 545 U.S. 308, 312 (2005). Federal question jurisdiction exists over state law claims w n ''the state law claim necessarily raises a stated federal issue, actually disputed and substant which a federal forum may entertain without disturbing any congressionally approved balance federal and state judicial responsibilities." Id. at 308. Here, Defendant Verizon initially removed this action to federal court solely on the b of federal question jurisdiction, contending that Plaintiff's claims, though pied exclusively un r New Jersey state law, were completely preempted by both the LMRA and ERISA. (Not. of Re ., ECF No. 1, ~~ 5-8). As noted above, Plaintiff filed an Amended Complaint pursuant to the H 6 Jose L. Linares, U. S .D .J. 's December 22, 2014 Order prior to filing his renewed motion to rem In light of the revised content of Plaintiffs pleading, Verizon has acknowledged that ERI preemption is no longer applicable, (Def. Br., ECF No. 28, at 4, n.l), and the Court will there£ e limit its analysis to whether the LMRA serves as a valid basis for removal. As the United States Court of Appeals for the Third Circuit "[ o]rdinarily, a case is not removable to federal court simply because, as here, the defendant rai s federal preemption as a defense. Rather, removal on the basis of federal question jurisdiction . generally requires that a federal question be presented on the face of the plaintiffs properly plea complaint." Trans Penn Wax Corp. v. McCandless, 50 F.3d 217, 228 (3d Cir. 1995) (inte citations omitted). "This well-pleaded complaint rule 'makes the plaintiff the master of the clai he or she may avoid federal jurisdiction by exclusive reliance on state law."' Id. (quof Caterpillar Inc., 482 U.S. at 392). "In certain limited circumstances, however, a defendant may e able to remove a case notwithstanding a complaint's apparent grounding in state law. Ones circumstance occurs when a state-law claim is preempted under section 301 of the LMRA." Plaintiffs renewed motion for remand, therefore, turns squarely on whether, as Defend contends, the LMRA operates to preempt Plaintiffs state law claims. If the LMRA does preempt at least one of those claims (the only remaining potential basis for subject ma jurisdiction that Defendant has articulated) then the Court must grant Plaintiffs motion. 28 U.S § 1447(c) ("If at any time before final judgment it appears that the district court lacks subj matter jurisdiction, the case shall be remanded."). b. Federal Preemption Under the LMRA In Allis-Chalmers Corp. v. Lueck. 471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (198 ), the Supreme Court set forth the standard for determining whether a state law cause of actio is 7 completely preempted by § 301 of the LMRA: "When resolution of a state-law claim substantially dependent upon analysis of the terms of an agreement made between the parties i a labor contract, that claim must either be treated as a§ 301 claim or dismissed as pre-empted federal labor-contract law." Id. at 220, 105 S.Ct. 1904 (citation omitted). In that case, the plain brought a state tort claim against his employer for the bad-faith processing of an insurance clai The Supreme Court concluded that the cause of action was completely preempted by § 301 beca e "the duties imposed and rights established through the state tort ... derive from the rights obligations established by the [collective-bargaining] contract," and resolution of the <lisp e would therefore "inevitably.. .involve contract interpretation." Id. at 217-18. The Supreme Co rt noted, however, that "it would be inconsistent with congressional intent under[§ 301] to pre- t state rules that proscribe conduct, or establish rights and obligations, independent of a la r contract." Id. at 212. Subsequently, in Caterpillar Inc., the Supreme Court considered whether§ 301 permit employees covered by a collective bargaining agreement to bring state law contract claims breach of individual contracts between an employee and his/her employer. After reiterating th 301 "governs claims founded directly on rights created by collective-bargaining agreements, also claims substantially dependent on analysis of a collective bargaining agreement," the Supr Court concluded that employees' state claims for breach of their individual employment contr were not preempted. Id. at 394 (internal quotation omitted). The Supreme Court reasoned: Section 301 says nothing about the content or validity of individual employment contracts. It is true that respondents, bargaining unit members at the time of the plant closing, possessed substantial rights under the collective agreement, and could have brought suit under § 301. As masters of the complaint, however, they chose not to do so. Moreover ... respondents' complaint is not substantially dependent upon interpretation of the collective-bargaining agreement. It does not rely upon the collective agreement indirectly, nor does it address 8 r the relationship between the individual contracts and the collective agreement. Id. at 394-95. The Third Circuit has interpreted Caterpillar as standing for the proposition that "employees h e the option of vindicating their interests by means of either a section 301 action or an action brou under state law, as long as the state law action as pleaded does not require interpretation of e collective bargaining agreement." Voilas v. General Motors Corp.. 170 F.3d 367, 373-74 Cir.1999) (citing Caterpillar. 482 U.S. at 394-95, 107 S.Ct. 2425). Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988), where it consid whether§ 301 completely preempted an employee's state law retaliatory discharge claim agai st her employer. The Supreme Court's analysis focused first upon the elements necessary to mak a prima facie retaliatory discharge claim under the relevant state law: (1) discharge or a threat discharge, and (2) a motive to deter the employee from exercising her rights. These elements, e court noted, constituted "purely factual questions pertain [ing] to the conduct of the employee the conduct and motivation of the employer," neither of which "required a court to interpret term of a collective-bargaining agreement." Id. at 407, 108 S.Ct. 1877. Accordingly, the Supre e Court concluded that the employee's state claim was "independent" of the relevant collecti bargaining agreement for purposes of§ 301 because "resolution of the state-law claim did t require construing the collective bargaining agreement." Id. Moreover, the Lingle Court found it irrelevant that "the state-law analysis might w ll involve attention to the same factual considerations as the contractual determination of whet r [the einployee] was fired for just cause [under her collective-bargaining agreement]." Id. at 4 108 S.Ct. 1877. "Such parallelism," the Supreme Court noted, would not "render the state-1 9 , analysis dependent upon the contractual analysis." The Supreme Court stated that the reason r this is that § 301 pre-emption merely ensures that federal law will be the basis for interpret collective-bargaining agreements, and says nothing about the substantive rights a State provide to workers when adjudication of those rights does not depend upon the interpretation collective-bargaining agreements. In other words, even if dispute resolution pursuant t a collective-bargaining agreement, on the one hand, and state law, on the other, would req addressing precisely the same set of facts, as long as the state law claim can be resolved with interpreting the agreement itself, the claim is "independent" of the agreement for§ 301 preempt n purposes. Id. at 409-410, 108 S.Ct. 1877. In Livadas v. Bradshaw, 512 U.S. 107 (1994), the Court summarized the thrust ofits ear r Section 301 jurisprudence as follows: "the pre-emption rule has been applied only to assure t at the purposes animating § 301 will be frustrated neither by state laws purporting to determ e 'questions relating to what the parties to a labor agreement agreed, and what legal consequen s were intended to flow from breaches of that agreement,' ... nor by parties' efforts to renege n their arbitration promises by 'relabeling' as tort suits actions simply alleging breaches of dut s assumed in collective-bargaining agreements." Id. at 122-23 (internal citations omitted). Livadas Court also noted that"§ 301 cannot be read broadly to pre-empt nonnegotiable ri conferred on individual employees as a matter of state law, and ... that it is the legal characte a claim, as 'independent' of rights under the collective-bargaining agreement ... (and not whet r a grievance arising from 'precisely the same set of facts' could be pursued"... that decides whet r a state cause of action may go forward." Id. at 123-24 (internal citations omitted). Finally, Court reiterated that ''when the meaning of contract terms is not the subject of dispute, the b e fact that a collective-bargaining agreement will be consulted in the course of state-law litigaf n 10 plainly does not require the claim to be extinguished." Id. at 124. With those principles in mi , the Livadas Court determined that the LMRA did not preempt the plaintiffs state-law claims un the California Labor Code (i.e., based on the defendant's alleged failure to pay all wages due o plaintiff promptly upon the plaintiffs termination), as resolution of the plaintiff's claim "entirely independent of any understanding embodied in the collective-bargaining agreem between the union and the employer." Id. at 124-25. The Court also noted that "when liabilit governed by independent state law, the mere need to 'look to' the collective-bargaining agreem for damages computation is no reason to hold the state-law claim defeated by§ 301." Id. at 1 The United States Court of Appeals for the Third Circuit has similarly distinguished situations n which a court must actually "interpret" a collective-bargaining agreement (thus triggering LM preemption) from those where the court simply examines the terms of such an agreement (to wh LMRA preemption is not applicable). See Kline v. Sec. Guards, Inc .. 386 F.3d 246, 251-54 Cir. 2004) ("A finding of § 301 preemption is not mandated simply by the contention t Appellants' state law claims "necessarily implicate" the CBA. That is, the mere fact that we m look at the CBA in order to determine that it is silent on any issue relevant to Appellants' st e claims does not mean that we have "interpreted" the CBA.") c. Application to Plaintiff's Individual Causes of Action Plaintiff asserts two causes of action in his Amended Complaint. First, Plaintiff conte s that Verizon failed to accommodate his alleged disability in violation of the New Jersey L Against Discrimination ("NJLAD"). (Am. Compl., ECF No. 19, W 26-37). Second, Plain ff alleges that Verizon engaged in "disparate treatment" discrimination under the NJLAD. (Id. 38-46). At a facial level, both claims appear to tum solely on questions of New Jersey state 1 The Court will address LMRA preemption in connection with each of Plaintiff's claims in tum 11 i. Failure to Accommodate Disability In order to prevail on a "failure to accommodate" claim under the NJLAD, a plaintiff m st establish: "(1) he was disabled and his employer knew it; (2) he requested an accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4) he could have be m reasonably accommodated." Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 246 ~ ~a Cir. 2006). This Court finds that each of those elements can be resolved without an "interpretatiG 11" of the collective-bargaining agreement at issue. Verizon, which bears the burden of establishi 11.g that this Court may exercise subject matter jurisdiction over Plaintiffs claims, Mannimr v. Mer ll Lynch Pierce Fenner & Smith, Inc., 772 F.3d 158, 162 (3d Cir. 2014) ("'The removing party., . carries a heavy burden of showing that at all stages of the litigation the case is properly before ie federal court.'") (internal citations omitted), contends that Plaintiffs "failure to accommoda ~" claim is preempted by Section 301 of the LMRA. (Def. Br., ECF No. 28, at 7-8). Verizo 's argument, however, is based on a mischaracterization of the allegations set forth in PlaintH r>s Amended Complaint. Verizon represents that "Plaintiffs specific claim is that the application of the collectiv~ y bargained MR-LOAPA to him resulted in a failure to accommodate him. Specifically, Plain1 ff alleges that the MR-LOAPA caused Verizon to deny him an accommodation." (Id. at '). Defendant then concludes, without further explanation, that: "Plaintiffs claim, therefore, is t iat the MR-LOAP A itself violated the NJLAD." (Id.). That is a mischaracterization of PlaintiJ ~s claim. Plaintiff does not challenge the validity or legal impact of the MR-LOAPA at all. G; ~ generally Am. Compl., ECF No. 19). Rather, Plaintiff contends that Verizon's actions n rescinding the accommodation it had previously provided for approximately eight years, tali m nearly a year after Verizon and Plaintiffs union allegedly entered into the MR-LOAPA, 12 fut ~if 17, 20, 32), coupled with its failure to provide a reasonable alternative accommodation, constin e an actionable "failure to accommodate" under the NJLAD. (Id. ~~ 27-34). Plaintiff bases is cause of action solely on Defendant's alleged conduct, not the content or effect of the MR-LOAP ~, as is his right as master of the complaint under governing Supreme Court precedent. See. e. ., Caterpillar Inc., 482 U.S. at 394. Defendant further argues that the Court will have to "interpret the MR-LOAPA o determine whether the suite of benefits it provided to Plaintiff satisfied [Verizon's] le! obligations. fl} Those benefits include not only those listed in the Complaint, but additi01 al accommodations such as priority placement in lateral or downgrade jobs that the Plaintiff can c p, among others." (Def. Br., ECF No. 28, at 8). Defendant ostensibly argues that the Court will ha e to interpret the MR-LOAPA in order to determine whether Defendant made a "good faith" ef£ rt to accommodate Plaintiffs disability (i.e., the third element of a "failure to accommodate clair ). Defendant's argument fails in two respects. First, Defendant's argument would require the Co1 rt to go beyond the allegations of the Complaint to determine (based solely on Defendant's counse 's unsupported representations), (.lib), that the MR-LOAP A provided Plaintiff with addition 1, potential accommodations. Indeed, Plaintiff has alleged that that Defendant failed to provide h m with alternative, reasonable accommodations. (Am. Compl., ECF No. 19, ~ 33). ("Veriz m engaged in no interactive process - formal or informal - to identify other potential reasonal e accommodations that could be adopted.") Second, the Court finds that, even ifthe MR-LOAJ I\. does include a list of potential, alternative accommodations, the Court's review of such a list wm d not constitute an "interpretation" of the MR-LOAPA consistent with governing precedent frc tn the Supreme Court and Court of Appeals. See Livadas, 512 U.S. at 125 (the Court acknowledg d that having to "look to" a collective-bargaining agreement for guidance on the calculation 13 ~f damages did not constitute the sort of"interpretation" that would trigger Section 301 preemptio ); Kline, 386 F.3d at 251-54 ("[T]he mere fact that we must look at the CBA in order to determ' e that it is silent on any issue relevant to Appellants' state claims does not mean that we h e 'interpreted' the CBA."). Defendant, who bears the burden of establishing that the Court's exercise of subject ma jurisdiction would be appropriate, Manning, 772 F.3d at 162, has not articulated any other reas n as to why the Court might have to "interpret" the parties' collective-bargaining agreement in context of adjudicating Plaintiffs "failure to accommodate" claim. A court can resolve e element of Plaintiffs claim without analyzing or interpreting the parties' collective bargai agreement. Indeed, it appears that a court will only have occasion to interpret the terms the LOAP A itself if Defendant injects the content and legal effect of that agreement into the case s part of a defense (e.g., that Plaintiff, through his union representatives, somehow waived statutory rights he now seeks to enforce). As noted above, however, defenses cannot typic serve as the basis for removal, Rivet v. Regions Bank, 522 U.S. 470, 475 (1998) ("A defens not part of a plaintiffs properly pleaded statement of his or her claim. Thus, 'a case may not e removed to federal court on the basis of a federal defense, ... even if the defense is anticipated n the plaintiffs complaint, and even if both parties admit that the defense is the only question at issue in the case.") (internal citations omitted), and Defendant has not provided the Court any case law suggesting that this situation necessitates an exception from that general rule. In sum, the Court finds that Plaintiffs "failure to accommodate" claim, as pied, neit seeks relief in connection with the parties' collective-bargaining agreement nor requires interpretation of that agreement. Rather, Plaintiffs claim is based upon an independent ri 14 created under New Jersey state law. That claim, therefore, is not subject to preemption unc ~ Section 301 of the LMRA. ii. Disparate Treatment Defendant's arguments concerning Plaintiffs "disparate treatment" claim fail )r essentially the same reasons. "Disparate treatment claims under the NJLAD are evaluated usi g the familiar framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Kimber-Anderson v. City of Newark, 502 F. App'x 210, 2 2 (3d Cir. 2012). "Following that framework the plaintiff must first come forward with sufficic tit evidence to constitute a prima facie case of discrimination." Id. (citing Dixon v. Rutl!ers T te State Univ. of New Jersey, 110 N.J. 432, 541A.2d1046, 1051 (N.J. 1988)). To establish a prit ta facie case, a plaintiff must demonstrate "[1] that she belongs to a protected class, [2] that she Vii il.S performing her job at a level that met her employer's legitimate expectations, [3] that she suffer =d an adverse employment action, and [4] that others not within that protected class did not suf er similar adverse employment actions." Id. (citing El-Sioufi v. St. Peter's Univ. Hosp., 382 N ~. Super. 145, 887 A.2d 1170, 1182 (N.J. Super. Ct. App. Div. 2005)). Defendant argues that Plaintiff has alleged that the MR-LOAPA itself caused the injures that he suffered in connection with his "disparate treatment"/"constructive discharge" claim. (D f. Br., ECF No. 28, at 5) ("Plaintiff alleges that the MR-LOAPA caused a 'significant change in [h ~] employment status"' ... Plaintiff also specifically alleges that it was the application of the M lLOAP A to him that caused his constructive discharge.") Defendant, in tum, contends that, o properly analyze Plaintiffs allegations of"constructive discharge'', "the Court will have to revi~ w all of the MR-LOAPA's provisions and determine whether working under them rendet d Plaintiffs position so undesirable as to force him to resign. The Court cannot possibly perfo m 15 this inquiry without analyzing all of the provisions of the MR-LOAP A." (Id. at 6). Like ts position on Plaintiffs "failure to accommodate" claim, however, Defendant's argument her is premised on a mischaracterization of Plaintiff's allegations. Plaintiff simply alleges that it was Defendant's actions that caused the injuries associa d with his claims for "disparate treatment" I "constructive discharge." Plaintiff alleged that he " qualified to perform and in fact was performing the essential functions of his job with accommodation that Verizon had provided him for approximately eight years", (Am. Compl., E No. 19, ~ 41), and that he was "performing his job at a level that met Verizon's legitim e expectations." (Id.~ 42) (citing the fulfillment of his "four jobs per day" quota, his "low repe rate", "excellent performance reviews" and overall customer satisfaction in support of statement). Plaintiff further alleges that, because of his disability, Defendant prohibited him fr continuing to work as a "Facilities Technician", reassigned him to various "light duty" tasks, ~~ 35, 43), and advised Plaintiff that it was going to place him on a temporary, unpaid medi al leave before ultimately terminating his employment. (Id. ~~ 21, 35, 43). Plaintiff alleges t at "[ o]ther, non-disabled Verizon employees did not [s]uffer similar adverse employment actio (Id. ~ 44). Simply put, Plaintiff alleges only that Defendant's specifically enumerated acti s violated his rights under the NJLAD. His claim is neither "founded directly on rights created a collective-bargaining agreement[]", nor "substantially dependent on analysis of a collecti bargaining agreement." Caterpillar, 482 U.S. at 394. 1 The Court, therefore, finds that Plainti 1 s For the same reasons articulated in Section ll(c)(i) above in connection with Plaintiffs "fail to accommodate" claim, the Court finds that, even ifDefendant sought to inject the content of MR-LOAPA into the case as part of a defense, that would not provide a legitimate grounds r removal. 16 claims for "disparate treatment" I "constructive discharge" are not subject to preemption unc er Section 301 of the LMRA. iii. This Case Should Be Remanded to the New Jersey Superior Court As noted above, Defendant's only remaining, stated basis for invoking this Court's subj1 ct matter jurisdiction was that each of Plaintiffs causes of action were preempted under Section 3 11 of the LMRA. For the reasons set forth above, this Court finds that none of Plaintiffs claims, as currently pied, are subject to preemption. The Court therefore finds that this case must )e remanded to the New Jersey Superior Court in accordance with 28 U.S.C. § 1447(c) ("If at a lY time before final judgment it appears that the district court lacks subject matter jurisdiction, 1 ie case shall be remanded."). d. Plaintiff's Request for Attorneys' Fees The Court next addresses Plaintiffs request for attorneys' fees pursuant to 28 U.S.C § 1447(c). (Pl. Br., ECF No. 21-1, at 9). Section 1447(c) provides: "[a]n order remanding the ci: e may require payment of just costs and any actual expenses, including attorney fees, incurred a• a result of the removal." 28 U.S.C. § 1447(c) (emphasis added). "[A] district court has bro d discretion and may be flexible in determining whether to require the payment of fees under secti n 1447(c). Mints v. Educ. Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996). The Supreme Cou tt, however, has established that "the standard for awarding fees [under 28 U.S.C. § 1447(c)] shot d tum on the reasonableness of the removal. Absent unusual circumstances, courts may awa d attorney's fees only where the removing party lacked an objectively reasonable basis for seeki g removal. Conversely, when an objectively reasonable basis exists, fees should be denied." Mar n v. Franklin Capital Com., 546 U.S. 132, 141, 126 S.Ct. 704 (2005). Under the circumstanc s presented in this case, the Court cannot say that Defendant "lacked an objectively reasonable bm s 17 for seeking removal." See Martin, 546 U.S. at 141, 126 S.Ct. 704; see also Christianbur Garm t Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694 (awarding fees simply because the party did t prevail "could discourage all but the most airtight claims, for seldom can a party be sure of ultim e success"). Indeed, Plaintiff made no effort to address the "objectively reasonable basis" stand d in either of its briefs on this motion. (See generally ECF Nos. 21-1 and 29). Accordingly, ·s Court respectfully recommends that Plaintiffs request for fees and costs be DENIED. III. CONCLUSION Based upon the foregoing, this Court respectfully recommends that Plaintiffs motion o remand this matter to the Superior Court of New Jersey, Essex County, pursuant to 28 U.S.C 1447(c), (ECF No. 21), be granted in part and denied in part. Specifically, this Co respectfully recommends that the District Court remand this case to the Superior Court of N Jersey and deny Plaintiff's request for attorneys' fees. cc. Honorable Jose L. Linares, U.S.D.J. 18

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