White v. The Gap, Inc.

Filing 11

MEMORANDUM AND ORDER: The plaintiff has filed a Motion to Remand to State Court (Docket No. 7), to which the defendant has responded in opposition (Docket No. 10). The defendant removed this case from the Circuit Court for Sumner County, Tennessee b ased upon diversity jurisdiction. For the reasons expressed herein, this case was properly removed to this court, and the plaintiffs Motion to Remand to State Court (Docket No. 7) is DENIED. ENTER this 27th day of March, 2012. Signed by District Judge Aleta A. Trauger on 3/27/12. (afs)

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
KATHY WHITE,

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Plaintiffs,
v.
(THE) GAP, INC.
Defendant.

Civil No. 3:12-0183
Judge Trauger

MEMORANDUM AND ORDER
The plaintiff has filed a Motion to Remand to State Court (Docket No. 7), to which the
defendant has responded in opposition (Docket No. 10). The defendant removed this case from
the Circuit Court for Sumner County, Tennessee based upon diversity jurisdiction. The plaintiff
does not challenge that there is diversity between the parties. Instead, the plaintiff argues that a
cause of action for retaliation for filing a worker’s compensation claim “arises under the
workmen’s compensation laws” of the State of Tennessee and, therefore, the action is not
removable under 28 U.S.C.§ 1445 (c).
The plaintiff relies upon a decision issued by Chief Judge Campbell in May of 2010,
holding that a retaliation claim such as this does arise under the worker’s compensation laws of
Tennessee and, therefore, is not removable. See Brown v. FedEx Freight, Inc., 2010 WL
1963385 (M.D. Tenn. May 17, 2010). With all due respect, this court cannot agree with Judge
Campbell’s ruling, given Sixth Circuit authority to the contrary. In Harper v. AutoAlliance
International, the Sixth Circuit stated that a case “arises under” worker’s compensation law only
when the worker’s compensation law created the cause of action, or when the plaintiff’s “right
to relief necessarily depends on resolution of a substantial question of workmen’s compensation

law”. 392 F.3rd 195, 203 (6th Circuit 2004). See also Nixon v. Waste Management, Inc., 156
Fed. Appx.784, 785 (6th Cir. Nov.21, 2005).
Retaliatory discharge for filing a worker’s compensation claim is a “common law tort”
created by the Supreme Court of Tennessee in Clanton v. Cain-Sloan Co., 677 S.W. 2d 441, 445,
(Tenn. 1984). See Hodges v. S.C. Toof & Co., 833 S.W.2nd 896, 899 (Tenn. 1992). Therefore,
because this retaliation cause of action was not “created” under worker’s compensation law, it
would only not be removable if the plaintiff’s right to relief necessarily depends on resolution of
a substantial question of worker’s compensation law. The plaintiff’s claim does not. The
Complaint simply alleges that the plaintiff was “terminated in direct retaliation for making a
worker’s compensation claim.” (Docket No. 1, attach., Compl. at ¶15 (emphasis in original).
The court need not, in this circumstance, resolve any questions, substantial or insubstantial, of
worker’s compensation law. Therefore, 28 U.S.C. § 1445 (c) does not forbid removal of this
case from state court.
For the reasons expressed herein, this case was properly removed to this court, and the
plaintiff’s Motion to Remand to State Court (Docket No. 7) is DENIED.
ENTER this 27th day of March, 2012.

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ALETA A. TRAUGER
U.S. District Judge