Smith v. Bayer Material Science, LLC et al

Filing 47

MEMORANDUM OPINION AND ORDER Granting Plaintiff's 9 Motion to Remand to State Court; and Denying as Moot Defendant's 45 Motion to File a Response to Plaintiff's Supplemental Memorandum: Case is remanded to Circuit Court of Marshall Co., WV, and DISMISSED and STRICKEN from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr on 8/7/13. (cert.copy to Clerk of Circuit Court of Marshall Co. w/ cert. copy of docket sheet))(soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID A. SMITH,
Plaintiff,
v.

Civil Action No. 5:12CV171
(STAMP)

BAYER MATERIAL SCIENCE, LLC,
MARK J. DAVIS, CHARLES KOTSON
and KATHY MADDEN,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING PLAINTIFF’S MOTION TO REMAND AND
DENYING AS MOOT DEFENDANTS’ MOTION TO FILE A
RESPONSE TO PLAINTIFF’S SUPPLEMENTAL MEMORANDUM
I.

Background

The plaintiff, who is a former employee of defendant Bayer
Material Science, LLC (“Bayer”), filed this civil action in the
Circuit Court of Marshall County, West Virginia as a result of his
termination from his employment with Bayer on January 10, 2012.
The plaintiff’s complaint alleges that he was terminated as a
result of a disability, in violation of the West Virginia Human
Rights Act (“WVHRA”).

The plaintiff asserts that he suffers from

throat cancer and, as a result of this illness, was regarded as
disabled by his employer, and is actually considered disabled under
the WVHRA.
The

plaintiff’s

throat

cancer

diagnosis

and

treatment

allegedly caused him to be absent from work from approximately
August 27, 2010 through July 11, 2011.
plaintiff,

after

his

return

to

work

Further, according to the
on

July

11,

2011,

the

plaintiff’s throat cancer resulted in his utilization of Bayer’s
short notice rules for calling off two times.

The complaint

asserts that the plaintiff was warned by the defendants on August
4,

2011

and

December

15,

2011

that

his

attendance

was

“intolerable,” that further instances of absence would “result in
disciplinary action up to and including termination of employment,”
and that he would no longer receive various benefits provided to
other similarly situated employees. Finally, the plaintiff asserts
that on January 10, 2012, the defendants terminated his employment
for improperly requesting a day off and for failing to properly
handle a fall on the ice at Bayer facilities. The plaintiff claims
that these stated reasons were pretextual, and that the plaintiff
was actually terminated due to his disability.

The complaint

raises a claim for disability discrimination under the WVHRA, a
hostile work environment claim, and a civil conspiracy claim
against all defendants, and raises claims of negligent hiring/
retention

and

negligent

supervision,

as

well

as

a

claim

of

respondeat superior liability against Bayer.
The defendants removed this civil action to this Court under
28 U.S.C. § 1441, arguing federal question jurisdiction pursuant to
28 U.S.C. § 1331.

In support of this assertion, the defendants

maintain that the plaintiff’s complaint alleges that the defendants
violated the Family and Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601, and is thus founded, at least in part, upon a claim arising
under federal law.

The defendants assert that this Court also has

2

jurisdiction over the plaintiff’s state law claims through pendant
jurisdiction under 28 U.S.C. § 1367.

The plaintiff then filed a

motion for remand, which asserts that he has not raised a claim
under FMLA, but rather has specifically and intentionally raised
only state law claims under the WVHRA and West Virginia common law.
The defendants responded to the plaintiff’s motion to remand, and
the plaintiff filed a reply to their response.1

Accordingly, the

plaintiff’s motion for remand is now fully briefed and ripe for
disposition by this Court.

For the reasons that follow, the

plaintiff’s motion for remand will be granted.
II.

Applicable Law

A defendant may remove a case from state court to federal
court in instances where the federal court is able to exercise
original jurisdiction over the matter.

28 U.S.C. § 1441.

Federal

courts have original jurisdiction over primarily two types of
cases: (1) those involving federal questions under 28 U.S.C. § 1331
and (2) those involving citizens of different states where the
amount in controversy exceeds $75,000.00, exclusive of interests
and costs pursuant to 28 U.S.C. § 1332(a).

The party seeking

removal bears the burden of establishing federal jurisdiction. See

1

The plaintiff has also since filed a supplemental memorandum
in support of his motion for remand. This Court finds that this
supplemental memorandum was filed out of time, and without leave of
Court, and will thus not be considered. See LR Civ P 7.02(b)(3).
Further, nothing contained in the supplemental memorandum alters
this Court’s opinion as it is expressed herein. As such, the
defendants’ motion for leave to respond to the plaintiff’s
supplemental memorandum in support of his motion for remand will be
denied as moot.
3

Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151
(4th Cir. 1994). Removal jurisdiction is strictly construed due to
“significant federalism concerns,” implicated by abrogating a state
court

of

the

jurisdiction.

ability
Id.

to

decide

a

case

over

which

it

has

Thus, if federal jurisdiction is doubtful, the

federal court must remand.

Id.

III.

Discussion

In the notice of removal as well as in their response to the
plaintiff’s motion for remand, the defendants argue that federal
question jurisdiction exists because the plaintiff’s complaint
raises a claim under the FMLA.

This argument is based upon the

following language in Count IV of plaintiff’s complaint, entitled
“Negligent Hire/Retention against Bayer”:
40. Defendant Madden failed to identify Plaintiff as a
member of a protected class under the West Virginia Human
Rights Act, failed to cause discussions to take place
regarding Plaintiff’s need for reasonable accommodation,
failed to identify Plaintiff’s need to leave work for
doctor’s visits as a reasonable accommodation, failed to
recognize Plaintiff’s condition as a “serious health
condition” under the Family Medical Leave Act, failed to
identify Plaintiff’s need for FMLA leave, and failed
generally to educate and direct Defendants Kotson and
Davis regarding the same.
41. Given the above, Defendant Bayer was negligent in
its hiring and/or retention of defendant Madden.
ECF No. 1 Ex. 1 *6-*7 (emphasis added).
In

his

motion

for

remand,

the

plaintiff

contests

the

defendants’ assertion that his complaint sets forth a FMLA claim,
and states that the complaint references FMLA simply in the context
of asserting that the individual defendants failed to follow Bayer

4

policies regarding discrimination, leaves of absence, and employee
use of FMLA leave.

The plaintiff maintains that this reference is

only to support his West Virginia state claims and to provide
evidence of Bayer’s alleged negligent hiring and retention of
defendant Kathy Madden (“Madden”), as she failed to follow required
protocol.

This factual support for his state law claim does not

assert a claim under the FMLA.
The presence or absence of federal question jurisdiction is
governed by the well-pleaded complaint rule, which provides that a
federal question must be presented on the face of the plaintiff’s
properly pleaded complaint. See Caterpillar, Inc. v. Williams, 482
U.S. 386, 392 (1987); Hunter Douglas, Inc. v. Sheet Metal Workers
Int’l Assoc., Local 159, 714 F.2d 342, 345 (4th Cir. 1983).

Only

those cases “in which a well-pleaded complaint establishes either
that

federal

law

creates

the

cause

of

action

or

that

the

plaintiff’s right to relief necessarily depends upon resolution of
a substantial question of federal law” are subject to removal.
Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S.
Cal., 463 U.S. 1, 27-28 (1983).

This Court finds that, under the

well-pleaded complaint rule, the plaintiff’s references to the FMLA
fail to create federal jurisdiction.
The FMLA creates two private causes of action which can be
invoked by employees against their employers.

First, an employee

can bring an “interference” claim, wherein he alleges that his
employer interfered with his rights under the FMLA, including the
employee’s entitlement to a certain amount of leave set forth in
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the Act.

29 U.S.C. § 2615(a)(1).

Second, an employee may bring an

action under FMLA wherein he alleges that his employer retaliated
against him for exercising his rights under the FMLA.
§ 2615(a)(2).

29 U.S.C.

The defendants claim that “[b]y the plain language

of the Complaint, Plaintiff has asserted a FMLA interference claim
against defendants, specifically by alleging that Defendants failed
to recognize Plaintiff’s FMLA-covered condition and his need for
FMLA leave and that defendants Bayer and Madden allegedly failed to
instruct Kotson and Davis regarding the same.”

ECF No. 10 *3.

The

defendants argue that the plaintiff’s attempts to rely upon his
labeling of Claim IV, and to assert that his use of FMLA, was
simply an example of defendant Madden’s dereliction of duty, is
nothing more than semantics.
In support of this assertion, the defendants rely heavily upon
this Court’s opinion in King v. Cardinal Health 411, Inc., No.
5:10cv112, 2011 U.S. Dist. LEXIS 1469 (Jan. 6, 2011).

In that

case, this Court found that, even though the plaintiff’s complaint
did not expressly assert a claim under the FMLA, the language of
the complaint set forth a cause of action under the Act.

In King,

the plaintiff’s amended complaint included the following language:
The Defendants’ termination, failure to reinstate and/or
rehire the Plaintiff violated the Family Medical Leave
Act in that Plaintiff should not have been terminated for
missing a day of work due to her serious medical
condition. 29 U.S.C. § 2601 et seq.
Id. at *8.
The defendants contend that, like the plaintiff in King, the
plaintiff in this case, through his reference to an FMLA violation,
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has raised a claim under the Act and has thus invoked this Court’s
jurisdiction.

This Court disagrees, as the plaintiff’s complaint

in this case differs from the plaintiff’s complaint in King.
In King, as quoted above, the plaintiff alleged that the
defendants violated FMLA, and also specifically cited the Act in
her complaint. This Court found that this allegation unambiguously
pled an FMLA claim, and required this Court to determine “a federal
question: whether the termination of the plaintiff’s employment
violated the FMLA.” Id.

In this case, however, the plaintiff does

not make a specific allegation of a violation of the FMLA. Rather,
the plaintiff alleges that defendant Bayer negligently hired and
retained defendant Madden, and evidence of this negligence is
defendant Madden’s failure to follow or inform others of the
requirements of protocol and the FMLA.
Further, as the plaintiff points out, the plaintiff in King
argued that the FMLA formed and defined the West Virginia public
policy that the plaintiff was employing as its cause of action.
Accordingly, King’s cause of action was entirely reliant upon a
finding that the defendants violated the FMLA, as the requirements
of the FMLA formed the entire definition of the public policy
alleged.

Such a public policy claim was also the basis of the

court’s refusal to grant a remand motion in another case cited by
the defendants in support of federal jurisdiction in this case,
Anderson v. Shade Tree Serv., Co., No. 4:12cv1066, 2012 U.S. Dist.
LEXIS 113009 (E.D. Mo. Aug. 10, 2012).

In that case, the Eastern

District of Missouri found that the plaintiff had actually alleged
7

a FMLA claim despite his decision to call the claim a “Wrongful
Discharge” claim, because the claim alleged a violation of Missouri
public policy as it was defined by the requirements of the FMLA.
As stated by the court in that case, “[p]ublic policy

Id.

naturally encourages compliance with all laws, including federal
law.

Whether public policy exists supporting compliance with the

FMLA, the exclusive remedy available to a plaintiff discharged in
violation of the FMLA is under federal statute, not common law.”
Id. at *5.
In this case, unlike in King and Anderson, any violation of
the FMLA on the part of defendant Madden would only be a single
example among many of alleged dereliction of duties on the part of
defendant Madden used to support a claim that Bayer was negligent
in hiring and retaining her.

As such, a determination of whether

Madden violated the FMLA is not a sufficient federal question to
constitute a “real and substantial issue” which is essential to the
plaintiff’s claim in Count IV.

City Nat’l Bank v. Edmisten, 681

F.2d 942, 945 (4th Cir. 1982).

As the Fourth Circuit stated in

Mulcahey, 29 F.3d at 153, “if a claim is supported not only by a
theory establishing federal subject matter jurisdiction, but also
by

an

alternative

theory

which

would

not

establish

such

jurisdiction, then federal subject matter jurisdiction does not
exist.”

Id. (citing Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 811 (1988)).
Such is the case in Count IV of the plaintiff’s complaint. In
that count, the plaintiff supports his claim of negligent hiring
8

and retention with several allegations of wrongdoing by defendant
Madden, only one of which relies upon a theory of failure to
recognize and properly handle plaintiff’s condition under the a
federal law. This case is indeed quite factually similar to Pudder
v. Wal-Mart, 2:11cv970, 2012 U.S. Dist. LEXIS 61293 (S.D. W. Va.
May 2, 2012), wherein the Southern District of West Virginia found
that it lacked federal question jurisdiction over plaintiff’s claim
for retaliation under state law alleging retaliation under nine
separate manifestations, one of which was a denial of requested
FMLA leave.

The Court stated, relying upon Christianson and

Mulcahey, “[o]ne theory to support [the plaintiff’s] claim is that
Defendants
entitled.

denied

her

FMLA

leave

to

which

she

was

lawfully

It is plain from the complaint, however, that plaintiff

alleges other theories to support her state law claim, without
reliance on her FMLA theory.”

See also Wagner v. Regent Invs.,

Inc., 966, 970 (E.D. Va. 1995) (“where federal law was only
essential to one of several theories under which the plaintiff
sought relief for the same claim, the invocation of that law was
not sufficient to confer federal question jurisdiction”). As such,
this Court finds that the plaintiff’s reference to a FMLA in
connection with defendant Madden as a single theory of many to
support his state law claim of negligent hiring/retention on the
part of defendant Bayer is insufficient to grant this Court subject
matter jurisdiction under the well pleaded complaint rule.
plaintiff’s motion for remand is thus granted.

9

The

IV.

Conclusion

For the reasons stated above, the plaintiff’s motion to remand
(ECF No. 9) is GRANTED.

The defendants’ motion for leave to file

a response to the plaintiff’s supplemental memorandum in support of
motion for remand (ECF No. 45) is DENIED AS MOOT as this Court did
not consider the supplemental memorandum in the formulation of its
opinion in this matter.

Accordingly, this matter is hereby

REMANDED to the Circuit Court of Marshall County, West Virginia.
It is further ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein and to the Clerk of the Circuit Court of
Marshall County, West Virginia.
DATED:

August 7, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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