Hinton v. New Hope Housing, Inc.
Filing
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MEMORANDUM OPINION Re: Plaintiff's Motin to Remand, Defendant's Motion to Dismiss. Signed by District Judge James C. Cacheris on 10/31/2011. Copy mailed to pro se plaintiff(klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
KENNETH HINTON,
Plaintiff,
v.
NEW HOPE HOUSING, INC.,
Defendant.
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1:11cv906 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff’s Motion
to Remand [Dkt. 7] and Defendant’s Motion to Dismiss [Dkt. 4].
For the following reasons, the Court will grant Plaintiff’s
Motion to Remand and deny Defendant’s Motion to Dismiss as moot.
I. Background
This case arises out of the alleged wrongful
termination of pro se plaintiff Kenneth Hinton (the “Plaintiff”
or “Hinton”) by New Hope Housing, Inc. (the “Defendant”).
A.
Factual Background
Hinton was employed by Defendant as a Housing
Specialist from August 24, 2010 until his employment was
terminated on December 14, 2010.
(“Compl.”) ¶ 6.)
(Complaint [Dkt. 1-1]
During the course of his employment, Hinton
encountered the parasitic insects commonly known as “bedbugs.”
(Compl. ¶ 9.)
Defendant subsequently filed complaints regarding
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safety and health hazards with various county, state and federal
agencies.
(Compl. ¶ 11.)
Plaintiff alleges that he was wrongfully terminated in
retaliation for filing these complaints, and that Defendant
thereby violated the anti-retaliation provisions of the Virginia
Occupational Safety and Health laws (“VOSH”), Va. Code § 40.151.2:1, et seq.
VOSH states that “[n]o person shall discharge
or in any way discriminate against an employee because the
employee has filed a safety or health complaint or has testified
or otherwise acted to exercise rights under the safety and
health provisions of this title for themselves or others.”
Code § 40.1-51.2:1.
Va.
The Complaint also contains references to
violations of various federal laws, including the Occupational
Safety and Health Act (“OSHA”), 29 U.S.C. § 651, et seq., and
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq.
Plaintiff’s claims include defamation, retaliation,
failure to maintain a safe work environment, breach of public
policy, and wrongful termination.
B.
Procedural Background
On July 1, 2011, Plaintiff filed an action in the
Circuit Court of Fairfax County.
Defendant was served with a
copy of the summons on August 2, 2011.
On August 24, 2011,
Defendant removed the action to this Court, arguing that removal
is appropriate under 28 U.S.C. § 1441(b).
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(Notice of Removal
[Dkt. 1] (“Notice”) ¶ 3.)
Defendant contends that the Court has
original jurisdiction over all of Plaintiff’s claims except for
the defamation claim because the Complaint includes allegations
that Defendant violated OSHA, Title VII, and “an unidentified
Whistleblower Protection Act.”
11] (“Opp.”) at 2.)
(Notice ¶ 4; Opposition [Dkt.
On August 31, 2011, Defendant filed a
Motion to Dismiss [Dkt. 4].
Plaintiff then filed a Motion to
Remand on September 7, 2011, arguing that removal is improper
because the Complaint only alleges state law claims and fails to
raise a substantial federal issue.
4-5.)
(Mot. to Remand [Dkt. 7] at
Plaintiff’s Motion to Remand and Defendant’s Motion to
Dismiss are before the Court.1
II.
Standard of Review
Civil actions over which a federal court would have
original jurisdiction can be removed by the defendant from state
court to the appropriate federal district court pursuant to 28
U.S.C. § 1441.
The party seeking removal bears the burden of
establishing federal jurisdiction.
See, e.g., Mulcahey v.
Columbia Organic Chem. Co., 29 F.3d 148, 151 (4th Cir. 1994)
(citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97
(1921)). “If federal jurisdiction is doubtful, a remand is
necessary.”
Id. (citations omitted).
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On October 26, 2011, Plaintiff moved to waive oral argument on both motions.
Defendant did not object to these motions being decided without oral
argument.
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III. Analysis
The removal statute relied on by Defendant provides
that “[a]ny civil action of which the district courts have
original jurisdiction founded on a claim or right arising under
the Constitution, treaties, or laws of the United States shall
be removable without regard to the citizenship or residence of
the parties.”
28 U.S.C. § 1441(b).
Federal district courts
have original jurisdiction over “all civil actions arising under
the Constitution, laws, or treaties of the United States.”
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U.S.C. § 1331.
Section 1331 provides litigants two distinct pathways
into federal court.
Federal question jurisdiction exists when a
plaintiff’s cause of action is created by federal law or, in
exceptional cases, “if the plaintiff’s right to relief
necessarily depends on a substantial question of federal law.”
Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004)
(quoting Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation
Trust for S. Cal., 463 U.S. 1, 9 (1983)) (internal quotation
marks and alterations omitted).
“A plaintiff’s right to relief
for a given claim necessarily depends on a question of federal
law only when every legal theory supporting the claim requires
the resolution of a federal issue.”
Id. (citation omitted).
The Supreme Court has outlined the following test for the
second, narrower pathway:
“the question is, does a state-law
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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.”
Grable & Sons
Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314
(2005).
With these principles in mind, the Court concludes
that it is without original jurisdiction and that removal was
therefore improper.
law.
The claims at issue are created by state
Plaintiff’s claims cannot arise under OSHA, as OSHA does
not provide plaintiffs with a private right of action.
See Byrd
v. Fieldcrest Mills, Inc., 496 F.2d 1323, 1323 (4th Cir. 1974)
(per curiam).
Plaintiff also references Title VII in his breach
of public policy claim.
The Court does not, however, read the
claim as attempting to state a cause of action under Title VII,
but rather invoking Title VII as a source of public policy
supporting the claim.2
See Rains v. Criterion Sys., Inc., 80
F.3d 339, 345-47 (9th Cir. 1996) (remanding case where plaintiff
relied on Title VII in part to establish public policy against
employment discrimination on basis of religious belief); see
also Peele v. Enter. Leasing Co. of Norfolk/Richmond, 979 F.
Supp. 1069, 1071-73 (E.D. Va. 1997) (remanding case where
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Plaintiff’s citation of federal statutes is arguably superfluous, as
Virginia law seems to require that common law wrongful discharge claims point
to public policy stated in a Virginia statute. Peele v. Enter. Leasing Co.
of Norfolk/Richmond, 979 F. Supp. 1069, 1071-72 (E.D. Va. 1997). Even so,
this does not mean the Complaint should be construed as attempting to state
federal claims. See id.
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plaintiff cited federal and state law to establish public policy
in support of wrongful termination claim).
Title VII is not
mentioned anywhere else in the Complaint.3
Defendant also fails to demonstrate that any of
plaintiff’s claims necessarily require the resolution of a
substantial federal issue.
That Defendant cites his filing of
OSHA complaints as a proximate cause of his alleged wrongful
termination does not raise a substantial federal issue.
As with Title VII, Plaintiff also relies on OSHA as a
source of public policy supporting his claims.
As discussed
above, no private right of action exists under OSHA.
The
Supreme Court assigned heavy weight to this factor in Merrell
Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 814 (1986),
explaining that the “congressional determination that there
should be no federal remedy for the violation of [a] federal
statute is tantamount to a congressional conclusion that the
presence of a claimed violation of the statute as an element of
a state cause of action is insufficiently substantial to confer
federal question jurisdiction.”
Thus, the absence of a private
right of action under OSHA weighs strongly in favor of remand.
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There are also references to “The Whistleblower Protection Act”
interspersed throughout the Complaint. Plaintiff does not cite a specific
statute. Meanwhile, Defendant simply argues that the Complaint pleads
violations of federal law, including OSHA, Title VII, and “possibly an
unidentified ‘Whistleblower Protection Act.’” (Opp. at 5.) Without
meaningful guidance from the parties, the Court will not attempt to guess the
specific statute to which Plaintiff refers. Accordingly, the Court finds
these references insufficient to establish federal question jurisdiction.
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Additionally, in each instance where Plaintiff alleges
violations of federal law, Plaintiff also asserts that
Defendant’s conduct violated VOSH.
Thus, not every legal theory
supporting Plaintiff’s claims requires resolution of a federal
issue, see Patterson v. Avante at Waynesboro, Inc., No.
10cv00006, 2010 WL 785904, at *1 (W.D. Va. Feb. 26, 2010), and
federal question jurisdiction does not exist.4
The Court
therefore remands this case to state court.
IV.
Conclusion
For these reasons, the Court will grant Plaintiff’s
Motion to Remand.
Defendant’s Motion to Dismiss is denied as
moot, and may be refiled in state court.
An appropriate Order will issue.
October 31, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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Even if Plaintiff’s state law claims were construed as relying solely on
violations of federal law, Defendant has not demonstrated that the
substantiality of the federal issues raised are sufficient to confer federal
question jurisdiction or that assertion of jurisdiction would not disrupt the
federal-state jurisdictional balance. See Varco v. Tyco Elec. Corp., No. RDB
08-125, 2009 WL 728571, at *5-7 (D. Md. Mar. 16, 2009) (remanding wrongful
termination claim that necessarily hinged on resolution of a federal issue).
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