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Claxton v. Convergys Corp.

United States District Court, E.D. Missouri, Eastern Division

March 27, 2018

CONVERGYS CORPORATION, et al., Defendants.



         Before the Court is the Motion to Remand filed by Plaintiff Anquanette Claxton. (ECF 14). Also before the Court is Defendants' Motion to Strike Portions of Plaintiff's Reply Brief. (ECF 19). The matters are fully briefed and ready for disposition.


         On December 21, 2017, Plaintiff filed a cause of action in the Circuit Court of St. Louis County, Missouri, against Defendants Convergys Corporation, Brian Campbell, Vanessa Rodgers, and Cassandra Jackson (incorrectly named Cassandra “Johnson”). Plaintiff's State Cause of action alleged, against all Defendants, Disability Discrimination pursuant to the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.055 (Count 1), Retaliation for requesting leave pursuant to the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2612, et seq. (Count II), Wrongful Termination (Count III), and Intentional Infliction of Emotional Distress (IIED) (Count IV). (ECF 1.1 & 4). In Count III, Wrongful Termination, Plaintiff alleged that “Defendants penalized Plaintiff for using [the] FMLA” and that Defendants terminated Plaintiff for complaining and reporting work place policies that violate Missouri law and statutes.” On February 6, 2018, Defendants[1] removed Plaintiff's cause of action to the United States District Court for the Eastern District of Missouri based on federal question jurisdiction, 28 U.S.C. § 1331, and diversity jurisdiction, 28 U.S.C. § 1332(a)(1). The Notice of Removal stated that Counts II and III arose under and were based upon the FMLA, and that, therefore, the Court had federal question jurisdiction. The Notice of Removal also stated that Defendants Campbell, Rodgers, and Jackson were all fraudulently joined because they could not be individually liable under the MHRA, in that they were not “employers” within the meaning of Mo. Rev. Stat. § 213.010, and because Plaintiff did not sufficiently allege a cause of action for IIEC. (ECF 1).

         On February 13, 2018, Defendants filed a Motion to Dismiss in which they made the same arguments that they made in support of the alleged fraudulent joinder of Defendants Campbell, Rodgers, and Jackson that they made in the Notice of Removal. Defendants also argued that Plaintiff failed to exhaust her administrative remedies regarding Defendants Campbell and Rodgers. (ECF 8).

         On February 20, 2018, Plaintiff filed a Motion to Amend the Complaint (ECF 10), which the Court granted on February 21, 2018 (ECF 12). Plaintiff's First Amended Complaint purports to name all Defendants in each of its five Counts.[2] As to all Counts, the First Amended Complaint alleges that Plaintiff obtained a restricted work schedule from a doctor on or about December 1, 2014; that after she obtained the restricted work schedule, Plaintiff “began to receive ill treatment from Defendants”; that “Plaintiff complained about the ill treatment to HR and sought assistance to no avail” and reported her concerns to Defendants Rodgers and Campbell; that “[d]uring the time of Plaintiff's illness, Defendant [] Jackson demanded money from Plaintiff”; that “Plaintiff was pushed around, humiliated and demeaned because of her age and illness”; that Defendant Jackson was a “team lead/supervisor”; that Defendant Jackson's “demand placed Plaintiff under duress and in fear”; that “Plaintiff was made fun of for being older, slow and for having a bald spot at the top of her head”; that, “while Plaintiff was off work due to illness, she endured more retaliation for making management aware of her medically diagnosed illnesses”; that Plaintiff was terminated, on June 24, 2016, “based on age, disability discrimination and retaliation in violation of the MHRA”; and that “Plaintiff was discriminated against based on her disability, age and for reporting her complaints to management for the horrible treatment she suffered at Convergys in violation of the MHRA.” (ECF 13 at 2-4).

         Count I of the First Amended Complaint, titled “Disability Discrimination, ” alleges that Plaintiff had medically diagnosed conditions which were “a motivating factor resulting in [her] termination”; that she “was fired” based on her disabilities; and that Plaintiff's termination, based on her disabilities, violated the MHRA. Count II of the First Amended Complaint, titled “Retaliation, ” alleges that Defendants retaliated against Plaintiff for her complaining about Defendant Jackson's discriminatory actions and “Defendants['] discriminatory work place practices related to her disability, age, the offensive teasing, harassment, name calling, ” and Defendant Jackson's demand for money; that Defendants retaliated against Plaintiff based on her exercising her rights under the MHRA, including Plaintiff's reporting the “ill treatment she received on the job from supervisor [sic] demanding money for cigarettes, gas and lunch”; and that Defendants retaliated against Plaintiff based on her having an illness. Count III of the First Amended Complaint, titled “Wrongful Termination, ” alleges that Plaintiff was terminated in violation of Missouri public policy and the MHRA, and that Plaintiff was “wrongfully terminated for her disability, impairment, handicap and for reporting wrongdoing or violations of law to superiors, such as Defendant demanding money from [] Plaintiff.” Count IV of the First Amended Complaint, titled “Age Discrimination, ” alleges that Plaintiff's age, over forty, was a motivating factor in her termination; that Plaintiff's age did not prevent her from doing a good job; that “Plaintiff's termination [was] causally linked to her age”; and that “Defendants behavior and conduct violated the MHRA based on age discrimination.” Count V of the First Amended Complaint, titled “Intentional Infliction of Emotional Distress, ” alleges, that while Plaintiff suffered from enumerated medical conditions, Defendant Jackson “harassed and demeaned Plaintiff creating a daily hostile work environment” and causing “Plaintiff severe emotional distress that resulted in bodily harm and emotional harm.” Count V further states that, due to the “abusive treatment” described in Count V, as well as “discrimination based on age, discrimination based on disability, wrongful termination, retaliation, and [IIED] in violation of [the] MHRA, and Missouri state laws, Plaintiff seeks relief.” (ECF 13).

         On February 21, 2018, Plaintiff filed the pending Motion to Remand, in which she asks for attorney's fees incurred by reason of removal proceedings. (ECF 14). In support of the Motion to Remand, Plaintiff argues that the First Amended Complaint does not allege a violation of federal law, including the FMLA; that her state law claims are not pre-empted by federal law; that Defendants “cannot use FMLA as [a] federal defense to remove a case to federal court”; and that, therefore, the Court does not have federal question jurisdiction.

         Plaintiff further argues that all Defendants were properly joined; that she has stated a cause of action for IIED in Count V; and that, therefore, the Court does not have diversity jurisdiction. (ECF 14 at 1-4).


         Federal district courts have original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. “The presence or absence of federal-question jurisdiction is governed by the ‘well- pleaded complaint rule, ' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (quoting Gully v. First Nat'l Bank, 299 U.S. 109, 112-113 (1936)). See also Gaming Corp. of America v. Dorsey & Whitney, 88 F.3d 536, 542 (8th Cir. 1996) (“The ‘well- pleaded complaint rule' requires that a federal cause of action must be stated on the face of the complaint before the defendant may remove the action based on federal question jurisdiction.”) (quoting Caterpillar, 482 U.S. at 392). Because federal law provides that plaintiffs are the “masters of [their claims], [plaintiffs] may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, 482 U.S. at Federal district courts also have original jurisdiction over all civil actions which are “between citizens of different States and where the matter in controversy exceeds $75, 000. 28 U.S.C. § 1332. The party seeking the federal forum based on diversity has the burden of pleading diversity of the citizenship of the parties. Walker v. Norwest Corp., 108 F.3d 158, 161 (8th Cir. 1997). The burden of establishing diversity jurisdiction is by a preponderance of the evidence. Sheehan v. Gustafson, 967 F.2d 1214, 1215 (8th Cir. 1992); Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir. 1990); Russell v. New Amsterdam Cas. Co., 325 F.2d 996, 997 (8thCir. 1964).

         The court in Iowa Pub. Serv. Co. v. Med. Bow Coal, Co., held, in regard to diversity that:

[I]n a case where there are plural plaintiffs and plural defendants a federal court does not have diversity jurisdiction unless there is diversity between all plaintiffs and all defendants. . . . [I]f the “nondiverse” plaintiff is not a real party in interest, and is purely a formal or nominal party, his or its presence in the case may be ignored in determining jurisdiction.

556 F.2d 400, 403-404 (8th Cir. 1977) (internal citations omitted).

         Fraudulent joinder of a non-diverse party does not prevent removal. Anderson v. Home Ins. Co.,724 F.2d 82, 84 (8th Cir. 1983). See also, BPChemicals Ltd. v. Jiangsu Sopo Corp,285 F.3d 677, 685 (8th Cir. 2002) (holding that a defendant's right of removal based on diversity of citizenship may not be defeated by fraudulently joining a non-diverse party). The Eighth Circuit holds that “[j]oinder is fraudulent and removal is proper when there exists no reasonable basis in fact and law” to support a claim against the defendant whose joinder would preclude removal. Wiles v. Capitol Indem, Corp., 280 F.3d 868, 871 (8th Cir. 2002). “Conversely, if there is a reasonable basis in fact and law supporting the claim, the ...

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