SHARKEY v. VERIZON NEW JERSEY INC.
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, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-cv-02788 (JLL) (JAD)
REPORT AND RECOMMENDATION ON
I PLAINTIFF'S RENEWED MOTION TO
ATTORNEYS' FEES AND COSTS
VERIZON NEW JERSEY INC.
JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon Plaintiffs renewed motion to remand this ma
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
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
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).
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.
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.
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,
fuh ~ 13 ), received "excellent perform
14), and "few (if any) customer complaints."
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
all the essential functions of their normal assignment with or without reasonable accommodatirn "
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.
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
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.
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.
Between late August 2013 and December 2013, Plaint lff
attempted, without success, to locate another position at Verizon. (Id.
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.
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
claims implicated questions of federal law. (Not. of Rem., ECF No. 1, if 22). Specifically, Veri
asserted that Plaintiff's claims were completely preempted by the Labor Management Relati
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
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
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
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).
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
v. Williams, 482 U.S. 386, 392 (1987). A federal district court has original subject ma
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
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
''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
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.").
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
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 s
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
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,
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!
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
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
'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
created under New Jersey state law. That claim, therefore, is not subject to preemption unc
Section 301 of the LMRA.
Defendant's arguments concerning Plaintiffs "disparate treatment" claim fail
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 " that she belongs to a protected class,  that she Vii
performing her job at a level that met her employer's legitimate expectations,  that she suffer =d
an adverse employment action, and  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
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
41), and that he was "performing his job at a level that met Verizon's legitim e
(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
44). Simply put, Plaintiff alleges only that Defendant's specifically enumerated acti
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
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
claims for "disparate treatment" I "constructive discharge" are not subject to preemption unc er
Section 301 of the LMRA.
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.").
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
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
for seeking removal." See Martin, 546 U.S. at 141, 126 S.Ct. 704; see also Christianbur Garm
Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694 (awarding fees simply because the party did
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,
Court respectfully recommends that Plaintiffs request for fees and costs be DENIED.
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.
Honorable Jose L. Linares, U.S.D.J.
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