Papushak v. Aramark Services, Inc.

Filing 14

Opinion & Order signed by Judge James S. Gwin on 10/24/17 granting plaintiff's motion to remand this case back to Cuyahoga County Court of Common Pleas for the reasons set forth in this order. (Related Docs. 9 , 11 , and 12 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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KATHERYN PAPUSHAK,
Plaintiff,
vs.
ARAMARK SERVICES, INC.,
Defendant.

CASE NO. 1:17-cv-2034

OPINION & ORDER
[Resolving Docs. 9, 11, 12]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Katheryn Papushak moves to remand this case back to state court.1 Plaintiff
argues that the Court does not have subject matter jurisdiction because her claims arise under
Ohio’s workers’ compensation laws.2 Defendant Aramark Services, Inc. (“Aramark”) opposes
Plaintiff’s motion to remand.3
For the following reasons, the Court GRANTS Plaintiff’s motion to remand.
I. BACKGROUND
On August 24, 2017, Plaintiff Papushak filed her complaint in Cuyahoga County Court of
Common Pleas.4 Plaintiff Papushak sues her former employer, Defendant Aramark, for its
retaliation against her for having sought workers’ compensation benefits.5 Papushak says Aramark
violates Ohio’s workers’ compensation statute.6

Plaintiff’s complaint alleges Defendant

discharged her “because Plaintiff filed a claim and/or instituted, pursued or testified in a
proceeding under the workers’ compensation act.”7
1

Doc. 9.
Id.
3
Doc. 11. Plaintiff replies. Doc. 12.
4
Doc. 1-1.
5
Id.
6
Id.
7
Id. at ¶ 2.
2

Case No. 1:17-cv-2034
Gwin, J.
On September 27, 2017, Defendant Aramark removed the case to this Court by citing
diversity jurisdiction.8 On October 2, 2017, Plaintiff moved to remand this case back to state
court.9
II. DISCUSSION
A defendant may remove “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction.”10
However, “[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.”11
Under Harper v. AutoAlliance International Inc., a civil action “arises under” a state’s
workmen’s compensation laws when either “(1) the workmen’s compensation law created the
cause of action or (2) the plaintiff’s right to relief necessarily depends on resolution of a substantial
question of workmen’s compensation law.”12
Defendant argues that Ohio’s workers’ compensation laws did not create a cause of action
for wrongful discharge due to filing or pursuing a workers’ compensation claim.13 Defendant also
argues that Plaintiff’s claim does not depend on or require any interpretation of the Ohio workers’
compensation statute.14
The Court disagrees with Defendant. Plaintiff’s claim for retaliatory discharge due to filing
and/or pursuing a workers’ compensation claim arises under Ohio’s workers’ compensation
laws.15

8

Doc. 1.
Doc. 9.
10
28 U.S.C. § 1441(a).
11
Id. § 1445(c).
12
392 F.3d 195, 203 (6th Cir. 2004).
13
Doc. 11 at 5.
14
Id. at 5-6.
15
See Goble v. City of Brunswick, 491 F. Supp. 2d 722, 724-25 (N.D. Ohio 2007) (finding claim for retaliatory
discharge due to filing a workers’ compensation claim satisfied both Harper prongs); Hafner v. Cowan Sys., LLC, No.
1:04-CV-629, 2005 WL 1417104, at *2 (S.D. Ohio June 16, 2005) (remanding case because claims, including
9

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Case No. 1:17-cv-2034
Gwin, J.
The first Harper prong is satisfied. Ohio Rev. Code Ann. § 4123.90, Ohio’s workers’
compensation statute, created the cause of action.16 Section 4123.90 specifically gives claimants
a right and remedy for retaliatory discharge for filing or pursuing a workers’ compensation claim.17
The statute was also the first to recognize Plaintiff’s cause of action. Ohio enacted the statute in
1986 before it recognized a general wrongful discharge tort in 1990.18
The second Harper prong is also satisfied. Plaintiff’s complaint alleges she was discharged
because she pursued her rights under Ohio’s workers’ compensation statute.19 As a result, the
success of Plaintiff’s claim will directly depend on how Section 4123.90 is construed.20
Defendant attempts to refute the second prong by arguing that Plaintiff’s claim is not
actually based on a wrongful discharge due to filing and/or pursuing a workers’ compensation
claim.21 To support this argument, Defendant cites facts outside of Plaintiff’s complaint.22

wrongful discharge after filing a workers’ compensation claim, arose under Ohio’s workers’ compensation laws);
Mencer v. Kraft Foods Glob., Inc., 695 F. Supp. 2d 667, 678 (S.D. Ohio 2010).
16
Goble, 491 F. Supp. 2d at 724-25; Mencer, 695 F. Supp. 2d at 678.
17
Ohio Rev. Code Ann. § 4123.90 (‘No employer shall discharge, demote, reassign, or take any punitive action against
any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the
workers’ compensation act for an injury . . .”).
18
See Greeley v. Miami Valley Maint. Contractors, Inc., 551 N.E.2d 981, 986-87 (Ohio 1990) (“We believe that the
time has come for Ohio to join the great number of states which recognize a public policy exception to the
employment-at-will doctrine.”). Defendant cites Hazlett v. Martin Chevrolet, Inc. to argue that Ohio recognized a
general claim for wrongful discharge before Section 4123.90’s enactment. See Doc. 11 at 5. Hazlett, however,
concerned only the narrow issue of wrongful termination in violation of Ohio’s disability discrimination statute. See
496 N.E.2d 478, 480 (Ohio 1986).
19
Doc. 1-1 at ¶ 2; Doc. 12 at 2. Defendant’s citation to Cincinnati Bengals, Inc. v. Abdullah is not dispositive as to
whether Plaintiff’s claim depends on interpreting Ohio’s workers’ compensation statute. See Doc. 11 at 3, 6. That
case did not involve claims for wrongful discharge based on filing a workers’ compensation claim. See No. 1:09-CV738, 2010 WL 1904952, at *1, 6 (S.D. Ohio Jan. 6, 2010) (deciding whether football players could file workers’
compensation claims in California or in Ohio).
20
See Goble, 491 F. Supp. 2d at 724-25 (finding that the success of plaintiff’s wrongful discharge claim under Section
4123.90 depended on interpretation of the statute); Hines v. Marriott Int’l, Inc., 246 F.Supp.2d 815 (N.D. Ohio 2002)
(finding that retaliation claim was “too integrally related to her worker’s compensation claims to be deemed
‘independent’ of the state statutory scheme governing such claims”).
21
Doc. 11 at 1-2, 5.
22
Id.

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Case No. 1:17-cv-2034
Gwin, J.
The Court has discretion to consider facts outside of the pleadings when resolving a
disputed jurisdictional issue.23 But the removing Defendant has the burden to prove, by a
preponderance of the evidence, that the jurisdictional facts it alleges are true.24 Defendant relies
on bare factual assertions not grounded in any affidavits or documents.25 The Court finds that
Defendant has not met its burden.26
III. CONCLUSION
Accordingly, for the above reasons, the Court GRANTS Plaintiff’s motion to remand.

IT IS SO ORDERED

Dated: October 24, 2017

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

23

Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990); Szymanski v. CSX Transp., Inc., No.
3:06CV7097, 2006 WL 1561976, at *2 (N.D. Ohio June 1, 2006) (“District courts in our Circuit have likewise
exercised discretion to look beyond the pleadings to determine whether remand must occur.”).
24
Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir. 1993).
25
See Doc. 11.
26
Plaintiff’s arguments concerning diversity jurisdiction (Doc. 12 at 2) are waived because they were raised for the
first time in her reply brief. See Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008).

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