1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Luis Palencia Caba, No. 2:21-cv-02012-KJM-AC 12 Plaintiff, 13 v. ORDER 14 Caleres, Inc., a New York corporation, et al., 1S Defendants. 16 17 Plaintiff Luis Palencia Caba brings this employment action against defendants Caleres, 18 | Inc., BG Retail, LLC, and Kathy Martin. Defendants removed this action on diversity grounds, 19 | arguing Palencia Caba fraudulently joined Martin and her citizenship therefore should be 20 | disregarded. Palencia Caba disagrees and now moves to remand. The court grants the motion 21 | to remand. 22 | IL. BACKGROUND 23 In March 2019, Luis Palencia Caba was diagnosed with a chronic migraine condition, 24 | which “caus[ed] him debilitating pain.” First Am. Compl. (FAC) § 33, Not. of Removal Ex. B, 25 | ECF No. 1-2. Palencia Caba realized dehydration was one of the triggers for his migraines. /d. 26 | At the time, he was an associate store manager at a Famous Footwear. /d. § 20. The store was 27 | owned by BG Retail, LLC, whose sole member is Caleres, Inc. Corporate Disclosure, ECF 28 | No. 4; FAC 9§ 9-10.
1 Defendants “maintained a policy forbidding its retail employees from carrying or having a 2 water bottle or drinking water while they worked on the sales floor or at the cash register.” FAC 3 ¶ 34. Palencia Caba contacted Human Resources to request an accommodation so he could keep 4 his water bottle with him. Id. Human Resources approved the request. Id. Palencia Caba alleges 5 that when his District Manager, Kathy Martin, learned of his accommodation “she made remarks 6 to [him] suggesting she was displeased” he had the accommodation. Id. ¶¶ 11, 35. 7 Eventually Palencia Caba returned to Human Resources and inquired about using his 8 “family leave intermittently” to mitigate his migraines. Id. ¶ 36. Again, Human Resources 9 approved the request. Id. On August 31, 2019, Palencia Caba informed Martin “he was not 10 feeling well and needed to go home.” Id. ¶ 37. Martin objected. Id. And “[w]hen [Palencia 11 Caba] informed Defendant Martin that he had already been approved by Defendants for 12 intermittent leave based on his medical condition, Defendant Martin responded: ‘What, do you 13 think you can just come and go as you please now? I am not going to have that.’” Id. ¶ 38. 14 Martin proceeded to “aggressively” question Palencia Caba about his condition, flare ups, and 15 their effects on him. Id. Only after Palencia Caba provided Martin with this additional 16 information did she allow him to leave. Id. 17 Palencia Caba reported this incident to Human Resources. Id. ¶ 39. He also disclosed 18 that Martin had previously told him “she did not like ‘the way he talked.’” Id. Palencia Caba 19 believed this remark “reflected either her negative view of his slightly Spanish-accented English 20 or a negative view of his occasionally ‘camp’ and vivacious communication style, most 21 stereotypically associated with same-sex orientation.” Id. Palencia Caba was able to take 22 intermittent leave between September 2019 and April 3, 2020. Id. ¶ 40. 23 “Caleres and/or BG Retail” terminated many employees during the initial months of the 24 COVID-19 pandemic. Id. Palencia Caba was terminated on April 3, 2020. Id. But he alleges 25 beginning in June 2020 defendants “contacted the great majority if not all of its former retail 26 employees . . . invit[ing] them to re-apply to their former jobs.” Id. Palencia Caba is aware that 27 Martin contacted other “Assistant Store Managers and encouraged them to return to work” 28 without requiring them to re-apply. Id. Martin, however, never contacted him. Id. 1 Palencia Caba filed this action in Sacramento County Superior Court against Caleres and 2 Kathy Martin. See generally Compl., Not. of Removal Ex. A, ECF No. 1-1. Palencia Caba filed 3 a first amended complaint adding defendant BG Retail, LLC. See generally FAC. 4 The first amended complaint asserts putative class claims against Caleres, Inc. and BG 5 Retail, LLC for (1) failure to pay minimum wage, (2) failure to provide rest breaks and rest break 6 penalties, (3) failure to provide accurate paystubs, (4) waiting time penalties, (5) unfair 7 competition, and (6) violation of the Private Attorneys General Act. See generally id. It further 8 asserts claims against Caleres, Inc., BG Retail, LLC and Martin for (7) harassment and failure to 9 prevent harassment, (8) violation of California Family Rights Act, and (9) retaliation under 10 California Labor Code section 1102.5. See generally id. 11 Defendants removed, invoking this court’s diversity jurisdiction. Not. of Removal at 4, 12 ECF No. 1. Palencia Caba and Martin are residents of California. FAC ¶¶ 8, 11. Caleres and BG 13 Retail are headquartered in Missouri. Id. ¶¶ 9–10. 14 Palencia Caba moves for remand. Mot., ECF No. 12. The motion is fully briefed. Opp’n, 15 ECF No. 17; Reply, ECF No. 19. The court submitted the motion on the papers. Min. Order, 16 ECF No. 18. 17 II. LEGAL STANDARD 18 When a federal district court would have had original jurisdiction over an action originally 19 filed in state court, the action may be removed to federal court. 28 U.S.C. § 1441(a). The 20 removal statute is strictly construed, and doubts regarding the court’s jurisdiction are resolved in 21 favor of remand. See Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 22 (9th Cir. 2008). Removal is proper only when (1) the case presents a federal question or (2) there 23 is diversity of citizenship between the parties and the amount in controversy exceeds $75,000. 24 See 28 U.S.C. §§ 1331, 1332(a). 25 Diversity jurisdiction requires complete diversity, meaning each plaintiff has different 26 citizenship than each defendant. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 27 548 (9th Cir. 2018) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). “In determining 28 whether there is complete diversity, district courts may disregard the citizenship of a non-diverse 1 defendant who has been fraudulently joined.” Id. (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 2 232 U.S. 146, 152 (1914)). “There are two ways to establish fraudulent joinder: (1) actual fraud 3 in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action 4 against the non-diverse party in state court.” Id. (citation and marks omitted). 5 The court may find fraudulent joinder only if, “after all disputed questions of fact and all 6 ambiguities in the controlling state law are resolved in the plaintiff’s favor, the plaintiff could not 7 possibly recover against the party whose joinder is questioned.” Nasrawi v. Buck Consultants, 8 LLC, 713 F. Supp. 2d 1080, 1084 (E.D. Cal. 2010) (citing Kruso v. Int’l Tel. & Tel. Corp., 872 9 F.2d 1416, 1426 (9th Cir. 1989)). “But ‘if there is a possibility that a state court would find that 10 the complaint states a cause of action against any of the resident defendants, the federal court 11 must find that the joinder was proper and remand the case to the state court.’” Grancare, 889 12 F.3d at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Luis Palencia Caba, No. 2:21-cv-02012-KJM-AC 12 Plaintiff, 13 v. ORDER 14 Caleres, Inc., a New York corporation, et al., 1S Defendants. 16 17 Plaintiff Luis Palencia Caba brings this employment action against defendants Caleres, 18 | Inc., BG Retail, LLC, and Kathy Martin. Defendants removed this action on diversity grounds, 19 | arguing Palencia Caba fraudulently joined Martin and her citizenship therefore should be 20 | disregarded. Palencia Caba disagrees and now moves to remand. The court grants the motion 21 | to remand. 22 | IL. BACKGROUND 23 In March 2019, Luis Palencia Caba was diagnosed with a chronic migraine condition, 24 | which “caus[ed] him debilitating pain.” First Am. Compl. (FAC) § 33, Not. of Removal Ex. B, 25 | ECF No. 1-2. Palencia Caba realized dehydration was one of the triggers for his migraines. /d. 26 | At the time, he was an associate store manager at a Famous Footwear. /d. § 20. The store was 27 | owned by BG Retail, LLC, whose sole member is Caleres, Inc. Corporate Disclosure, ECF 28 | No. 4; FAC 9§ 9-10.
1 Defendants “maintained a policy forbidding its retail employees from carrying or having a 2 water bottle or drinking water while they worked on the sales floor or at the cash register.” FAC 3 ¶ 34. Palencia Caba contacted Human Resources to request an accommodation so he could keep 4 his water bottle with him. Id. Human Resources approved the request. Id. Palencia Caba alleges 5 that when his District Manager, Kathy Martin, learned of his accommodation “she made remarks 6 to [him] suggesting she was displeased” he had the accommodation. Id. ¶¶ 11, 35. 7 Eventually Palencia Caba returned to Human Resources and inquired about using his 8 “family leave intermittently” to mitigate his migraines. Id. ¶ 36. Again, Human Resources 9 approved the request. Id. On August 31, 2019, Palencia Caba informed Martin “he was not 10 feeling well and needed to go home.” Id. ¶ 37. Martin objected. Id. And “[w]hen [Palencia 11 Caba] informed Defendant Martin that he had already been approved by Defendants for 12 intermittent leave based on his medical condition, Defendant Martin responded: ‘What, do you 13 think you can just come and go as you please now? I am not going to have that.’” Id. ¶ 38. 14 Martin proceeded to “aggressively” question Palencia Caba about his condition, flare ups, and 15 their effects on him. Id. Only after Palencia Caba provided Martin with this additional 16 information did she allow him to leave. Id. 17 Palencia Caba reported this incident to Human Resources. Id. ¶ 39. He also disclosed 18 that Martin had previously told him “she did not like ‘the way he talked.’” Id. Palencia Caba 19 believed this remark “reflected either her negative view of his slightly Spanish-accented English 20 or a negative view of his occasionally ‘camp’ and vivacious communication style, most 21 stereotypically associated with same-sex orientation.” Id. Palencia Caba was able to take 22 intermittent leave between September 2019 and April 3, 2020. Id. ¶ 40. 23 “Caleres and/or BG Retail” terminated many employees during the initial months of the 24 COVID-19 pandemic. Id. Palencia Caba was terminated on April 3, 2020. Id. But he alleges 25 beginning in June 2020 defendants “contacted the great majority if not all of its former retail 26 employees . . . invit[ing] them to re-apply to their former jobs.” Id. Palencia Caba is aware that 27 Martin contacted other “Assistant Store Managers and encouraged them to return to work” 28 without requiring them to re-apply. Id. Martin, however, never contacted him. Id. 1 Palencia Caba filed this action in Sacramento County Superior Court against Caleres and 2 Kathy Martin. See generally Compl., Not. of Removal Ex. A, ECF No. 1-1. Palencia Caba filed 3 a first amended complaint adding defendant BG Retail, LLC. See generally FAC. 4 The first amended complaint asserts putative class claims against Caleres, Inc. and BG 5 Retail, LLC for (1) failure to pay minimum wage, (2) failure to provide rest breaks and rest break 6 penalties, (3) failure to provide accurate paystubs, (4) waiting time penalties, (5) unfair 7 competition, and (6) violation of the Private Attorneys General Act. See generally id. It further 8 asserts claims against Caleres, Inc., BG Retail, LLC and Martin for (7) harassment and failure to 9 prevent harassment, (8) violation of California Family Rights Act, and (9) retaliation under 10 California Labor Code section 1102.5. See generally id. 11 Defendants removed, invoking this court’s diversity jurisdiction. Not. of Removal at 4, 12 ECF No. 1. Palencia Caba and Martin are residents of California. FAC ¶¶ 8, 11. Caleres and BG 13 Retail are headquartered in Missouri. Id. ¶¶ 9–10. 14 Palencia Caba moves for remand. Mot., ECF No. 12. The motion is fully briefed. Opp’n, 15 ECF No. 17; Reply, ECF No. 19. The court submitted the motion on the papers. Min. Order, 16 ECF No. 18. 17 II. LEGAL STANDARD 18 When a federal district court would have had original jurisdiction over an action originally 19 filed in state court, the action may be removed to federal court. 28 U.S.C. § 1441(a). The 20 removal statute is strictly construed, and doubts regarding the court’s jurisdiction are resolved in 21 favor of remand. See Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 22 (9th Cir. 2008). Removal is proper only when (1) the case presents a federal question or (2) there 23 is diversity of citizenship between the parties and the amount in controversy exceeds $75,000. 24 See 28 U.S.C. §§ 1331, 1332(a). 25 Diversity jurisdiction requires complete diversity, meaning each plaintiff has different 26 citizenship than each defendant. Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 27 548 (9th Cir. 2018) (citing Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996)). “In determining 28 whether there is complete diversity, district courts may disregard the citizenship of a non-diverse 1 defendant who has been fraudulently joined.” Id. (citing Chesapeake & Ohio Ry. Co. v. Cockrell, 2 232 U.S. 146, 152 (1914)). “There are two ways to establish fraudulent joinder: (1) actual fraud 3 in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action 4 against the non-diverse party in state court.” Id. (citation and marks omitted). 5 The court may find fraudulent joinder only if, “after all disputed questions of fact and all 6 ambiguities in the controlling state law are resolved in the plaintiff’s favor, the plaintiff could not 7 possibly recover against the party whose joinder is questioned.” Nasrawi v. Buck Consultants, 8 LLC, 713 F. Supp. 2d 1080, 1084 (E.D. Cal. 2010) (citing Kruso v. Int’l Tel. & Tel. Corp., 872 9 F.2d 1416, 1426 (9th Cir. 1989)). “But ‘if there is a possibility that a state court would find that 10 the complaint states a cause of action against any of the resident defendants, the federal court 11 must find that the joinder was proper and remand the case to the state court.’” Grancare, 889 12 F.3d at 548 (quoting Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009)). The 13 “plaintiff need only have one potentially valid claim against a non-diverse defendant to survive a 14 fraudulent joinder challenge.” Nasrawi, 713 F. Supp. 2d at 1084–85 (citation and marks omitted). 15 “Fraudulent joinder claims may be resolved by ‘piercing the pleadings’ and considering 16 summary judgment-type evidence such as affidavits and deposition testimony.” Morris v. 17 Princess Cruises, Inc., 236 F.3d 1061, 1068 (9th Cir. 2001) (citation and marks omitted). The 18 removing defendant “bears a heavy burden” in attempting to show removal is proper given the 19 “general presumption against fraudulent joinder.” Hunter, 582 F.3d at 1044. 20 III. ANALYSIS 21 The parties do not dispute that the amount in controversy is met for purposes of federal 22 jurisdiction, and that Palencia Caba is completely diverse from the defendants other than Martin. 23 The court therefore looks to Palencia Caba’s claims against Martin to determine if “there is a 24 possibility that a state court would find that [they are] adequately alleged.” Vazquez v. Costco 25 Wholesale Corp., No. 21-2563, 2021 WL 1784342, at *3 (C.D. Cal. May 5, 2021) (citation 26 omitted) (emphasis in original). 27 The court focuses solely on the harassment claim because Palencia Caba need only have 28 one valid claim to defeat fraudulent joinder and the court finds he does have a possible 1 harassment claim. “To establish a prima facie case of harassment, [plaintiff] must show that 2 (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the 3 harassment was based on her protected status; (4) the harassment unreasonably interfered with her 4 work performance by creating an intimidating, hostile, or offensive work environment; and 5 (5) defendants are liable for the harassment.” Galvan v. Dameron Hosp. Assn., 37 Cal. App. 5th 6 549, 563 (2019). To be actionable, the harassment “must be sufficiently severe or pervasive ‘to 7 alter the conditions of the victim’s employment and create an abusive working environment.’” 8 Vazquez, 2021 WL 1784342, at *3 (quoting Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 9 130 (1999)). 10 The defendants’ arguments essentially boil down to the contention that Palencia Caba has 11 not alleged sufficient facts to establish a claim for harassment against Martin based on any 12 protected category. They argue plaintiff only alleges a single incident of allegedly harassing 13 conduct with regard to national origin and sexual orientation, and only once did Martin comment 14 on his speech. Opp’n at 9; see FAC ¶ 39. They say Martin’s other alleged actions amount to 15 “quintessential management duties.” Opp’n at 8. 16 It is true that generally a plaintiff pursuing a harassment claim must show more than 17 “occasional” or “isolated” incidents. Fowler v. Fever Labs Inc., No. 20-10369, 2021 WL 183318, 18 at *2 (C.D. Cal. Jan. 15, 2021). Rather, he must demonstrate “a concerted pattern of harassment 19 of a repeated, routine or a generalized nature. . . .” Id. (citation and marks omitted). But “[a] 20 single incident of harassing conduct is sufficient to create a triable issue regarding the existence 21 of a hostile work environment if the harassing conduct has unreasonably interfered with the 22 plaintiff’s work performance or created an intimidating, hostile, or offensive working 23 environment.” Cal. Gov’t Code § 12923(b). Thus, it is possible for a state court to find a valid 24 harassment claim exists, even if there were only a handful of incidents. Here, Palencia Caba 25 pleads more than one incident prior to his termination, in addition to his not receiving an offer to 26 return; these allegations appear sufficient to state a harassment claim. 27 Similarly, common management duties “such as hiring and firing, . . . office or work 28 station assignments, . . . [and] deciding who will be laid off” generally “do not come within the 1 meaning of harassment. . . .” Reno v. Baird, 18 Cal. 4th 640, 647 (1998). “However, ‘some 2 official employment actions done in furtherance of a supervisor’s managerial role can also have a 3 secondary effect of communicating a hostile message, . . . . when the actions establish a 4 widespread pattern of bias.’” Davis v. Phillips 66, No. 17-128, 2017 WL 6558697, at *8 (N.D. 5 Cal. Dec. 22, 2017) (quoting Roby v. McKesson Corp., 47 Cal. 4th 686, 705–709 (2009), as 6 modified (Feb. 10, 2010)). So it is possible for a court to find a manager’s performance of her 7 essential duties contributes to an actionable harassment claim. 8 Even if defendant raises a serious question regarding whether Palencia Caba’s harassment 9 claim, as presently alleged, could survive a motion to dismiss, the fact that a claim may fail on a 10 motion to dismiss does not necessarily mean that defendant was fraudulently joined. Grancare, 11 889 F.3d at 549. Presently the court need only find a mere “glimmer of hope that plaintiff can 12 establish [a] claim” to find in favor of remand. Gonzalez v. J.S. Paluch Co., No. 12-8696, 2013 13 WL 100210, at *4 (C.D. Cal. Jan. 7, 2013) (citation and marks omitted). Such a glimmer exists if 14 “a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend.” 15 Grancare, 889 F.3d at 550. Any shortcomings in the factual allegations of Palencia Caba’s claim 16 against Martin might be cured by amendment. 17 The court finds Palencia Caba has sufficiently stated a claim of harassment, and therefore 18 Martin is not fraudulently joined. 19 IV. CONCLUSION 20 The court grants the motion to remand (ECF No. 12) and remands the case to 21 Sacramento County Superior Court. All previously set deadlines and hearings are vacated. 22 The Clerk of Court is directed to close the case. 23 IT IS SO ORDERED. 24 DATED: April 15, 2022.