1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE SHELTON, No. 2:24-cv-01541-TLN-JDP 12 Plaintiff, 13 v. ORDER 14 WAYFAIR LLC; DANNY DOE; FRANK DOE; JOE DOE; and DOES 1 to 100, 15 inclusive, 16 Defendants. 17 18 This matter is before the Court on Plaintiff George Shelton’s (“Plaintiff”) Motion to 19 Remand. (ECF No. 4.) Defendant Wayfair LLC (“Wayfair”), Danny Payne (“Payne”), and Joe 20 Giguere (“Giguere”) (collectively, “Defendants”) filed an opposition. (ECF No. 8.) Plaintiff 21 filed a reply. (ECF No. 14.) For the reasons set forth below, Plaintiff’s Motion to Remand is 22 GRANTED. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff, a 47-year-old Black male, began working for Wayfair as a Material Handler 3 sometime in October 2021. (ECF No. 4 at 10.) Plaintiff alleges he was an exemplary employee 4 evidenced by the fact that he had never been written up or counseled with respect to his 5 performance. (Id. at 10–11.) Plaintiff is diabetic and as a result developed neuropathy. (Id. at 6 11.) Plaintiff alleges that in February 2022, Plaintiff’s neuropathy caused him “extreme chest and 7 arm pain.” (Id.) After consulting a doctor, Plaintiff presented Payne, his supervisor, with a 8 doctor’s note that required a light duty work restriction as a temporary alleviation until a formal 9 diagnosis and treatment plan could be implemented. (Id.) Payne subsequently informed Plaintiff 10 that there were no light duty assignments available at the time. (Id.) Plaintiff alleges he later 11 learned, however, that other co-workers of Latino or Asian descent were granted light duty work 12 around the same time without presenting a doctor’s note. (Id.) Due to the apparent lack of light 13 duty assignments available, Plaintiff took a medical leave of absence. (Id.) 14 Upon Plaintiff’s return to Wayfair, Plaintiff alleges some employees, particularly Payne, 15 treated him “differently.” (Id.) Specifically, approximately one week after returning, Plaintiff 16 alleges Payne “sternly” asked Plaintiff why he had not completed a task in one night. (Id.) 17 In May 2022, Plaintiff’s wife was diagnosed with Graves’ disease. (Id.) Plaintiff alleges 18 he informed Payne, as well as Wayfair’s Human Resources (“HR”), of his wife’s diagnosis and 19 requested a shift change so he could assist his wife. (Id. at 12.) HR denied Plaintiff’s request on 20 the basis that Plaintiff required perfect attendance points for a shift change. (Id.) Plaintiff alleges 21 other employees who had imperfect attendance were allowed to change shifts. (Id.) 22 On or around June 19, 2022, Plaintiff alleges he was speaking to his fellow employees 23 about safety concerns when an Inventory Control Lead screamed at Plaintiff, “[i]f you don’t like 24 the motherfucking job then go find some other fucking place to work.” (Id.) Plaintiff reported 25 the incident to Frank “Doe,” who allegedly told Plaintiff and his co-workers to “watch their 26 backs.” (Id.) 27 On or around June 21, 2022, Plaintiff alleges Giguere, the Operations Manager at 28 Wayfair, approached Plaintiff and questioned whether Plaintiff was responsible for a one-star 1 Google review the company received. (Id. at 13.) Plaintiff alleges he told Giguere he did not 2 personally submit the review. (Id.) 3 On June 22, 2022, Payne informed Plaintiff he was in violation of the company cell phone 4 policy. (Id.) Plaintiff alleges he never heard management complain about the use of his cell 5 phone. (Id.) Shortly thereafter, Payne told Plaintiff that his position was terminated. (Id.) 6 On April 16, 2024, Plaintiff filed the operative Complaint against Wayfair, Payne, 7 Giguere, and Frank “Doe” (“Frank”) 1 in San Joaquin County Superior Court, alleging: (1) 8 discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) hostile work 9 environment harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to 10 accommodate disability in violation of FEHA; (5) failure to engage in the interactive process in 11 violation of FEHA; (6) failure to prevent discrimination, harassment, and retaliation in violation 12 of FEHA; (7) negligent hiring, supervision, and retention; (8) wrongful termination of 13 employment in violation of public policy; (9) violation of Labor Code § 1102.5; (10) violation of 14 Labor Code § 232.5; and (11) intentional infliction of emotional distress (“IIED”). (ECF No. 1-1 15 at 5–29.) Plaintiff’s first, second, and eleventh causes of action are alleged against all 16 Defendants, while the remaining eight causes of action are alleged against Wayfair. (Id.) 17 On May 31, 2024, Defendants removed the action to this Court based on diversity 18 jurisdiction. (ECF No. 1.) On June 28, 2024, Plaintiff filed the instant motion to remand. (ECF 19 No. 4.) 20 II. STANDARD OF LAW 21 A civil action brought in state court, over which the district court has original jurisdiction, 22 may be removed by the defendant to federal court in the judicial district and division in which the 23 state court action is pending. 28 U.S.C. § 1441(a). The district court has original jurisdiction 24 25 1 In the Notice of Removal, Defendants argue the Court should disregard the citizenship of Frank because Plaintiff sued him under a fictitious name, Frank “Doe.” (ECF No. 1 at 11.) 26 Defendants’ argument is brief, and Plaintiff fails to address the argument in his motion or in reply. However, because Frank’s residence is immaterial to the Court’s ultimate conclusion, the 27 Court does not consider whether his residence should be disregarded or make any findings with respect to said residence. 28 1 over civil actions between citizens of different states in which the alleged damages exceed 2 $75,000. 28 U.S.C. § 1332(a)(1). The party asserting federal jurisdiction bears the burden of 3 proving diversity. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (citing Resnik v. La Paz Guest 4 Ranch, 289 F.2d 814, 819 (9th Cir. 1961)). Diversity is determined as of the time the complaint 5 is filed and removal effected. Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 6 (9th Cir. 2002). Removal statutes are to be strictly construed against removal. Gaus v. Miles, 7 Inc., 980 F.2d 564, 566 (9th Cir. 1992). 8 The amount in controversy is determined by reference to the complaint itself and includes 9 the amount of damages in dispute, as well as attorney’s fees, if authorized by statute or contract. 10 Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). Where the complaint does not 11 pray for damages in a specific amount, the defendant must prove by a preponderance of the 12 evidence that the amount in controversy exceeds $75,000. Singer v. State Farm Mut. Auto. Ins. 13 Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 14 398, 404 (9th Cir. 1996)). If the amount is not facially apparent from the complaint, the Court 15 may “require parties to submit summary-judgment-type evidence relevant to the amount in 16 controversy at the time of removal.” Id. (citing Allen v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE SHELTON, No. 2:24-cv-01541-TLN-JDP 12 Plaintiff, 13 v. ORDER 14 WAYFAIR LLC; DANNY DOE; FRANK DOE; JOE DOE; and DOES 1 to 100, 15 inclusive, 16 Defendants. 17 18 This matter is before the Court on Plaintiff George Shelton’s (“Plaintiff”) Motion to 19 Remand. (ECF No. 4.) Defendant Wayfair LLC (“Wayfair”), Danny Payne (“Payne”), and Joe 20 Giguere (“Giguere”) (collectively, “Defendants”) filed an opposition. (ECF No. 8.) Plaintiff 21 filed a reply. (ECF No. 14.) For the reasons set forth below, Plaintiff’s Motion to Remand is 22 GRANTED. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff, a 47-year-old Black male, began working for Wayfair as a Material Handler 3 sometime in October 2021. (ECF No. 4 at 10.) Plaintiff alleges he was an exemplary employee 4 evidenced by the fact that he had never been written up or counseled with respect to his 5 performance. (Id. at 10–11.) Plaintiff is diabetic and as a result developed neuropathy. (Id. at 6 11.) Plaintiff alleges that in February 2022, Plaintiff’s neuropathy caused him “extreme chest and 7 arm pain.” (Id.) After consulting a doctor, Plaintiff presented Payne, his supervisor, with a 8 doctor’s note that required a light duty work restriction as a temporary alleviation until a formal 9 diagnosis and treatment plan could be implemented. (Id.) Payne subsequently informed Plaintiff 10 that there were no light duty assignments available at the time. (Id.) Plaintiff alleges he later 11 learned, however, that other co-workers of Latino or Asian descent were granted light duty work 12 around the same time without presenting a doctor’s note. (Id.) Due to the apparent lack of light 13 duty assignments available, Plaintiff took a medical leave of absence. (Id.) 14 Upon Plaintiff’s return to Wayfair, Plaintiff alleges some employees, particularly Payne, 15 treated him “differently.” (Id.) Specifically, approximately one week after returning, Plaintiff 16 alleges Payne “sternly” asked Plaintiff why he had not completed a task in one night. (Id.) 17 In May 2022, Plaintiff’s wife was diagnosed with Graves’ disease. (Id.) Plaintiff alleges 18 he informed Payne, as well as Wayfair’s Human Resources (“HR”), of his wife’s diagnosis and 19 requested a shift change so he could assist his wife. (Id. at 12.) HR denied Plaintiff’s request on 20 the basis that Plaintiff required perfect attendance points for a shift change. (Id.) Plaintiff alleges 21 other employees who had imperfect attendance were allowed to change shifts. (Id.) 22 On or around June 19, 2022, Plaintiff alleges he was speaking to his fellow employees 23 about safety concerns when an Inventory Control Lead screamed at Plaintiff, “[i]f you don’t like 24 the motherfucking job then go find some other fucking place to work.” (Id.) Plaintiff reported 25 the incident to Frank “Doe,” who allegedly told Plaintiff and his co-workers to “watch their 26 backs.” (Id.) 27 On or around June 21, 2022, Plaintiff alleges Giguere, the Operations Manager at 28 Wayfair, approached Plaintiff and questioned whether Plaintiff was responsible for a one-star 1 Google review the company received. (Id. at 13.) Plaintiff alleges he told Giguere he did not 2 personally submit the review. (Id.) 3 On June 22, 2022, Payne informed Plaintiff he was in violation of the company cell phone 4 policy. (Id.) Plaintiff alleges he never heard management complain about the use of his cell 5 phone. (Id.) Shortly thereafter, Payne told Plaintiff that his position was terminated. (Id.) 6 On April 16, 2024, Plaintiff filed the operative Complaint against Wayfair, Payne, 7 Giguere, and Frank “Doe” (“Frank”) 1 in San Joaquin County Superior Court, alleging: (1) 8 discrimination in violation of the Fair Employment and Housing Act (“FEHA”); (2) hostile work 9 environment harassment in violation of FEHA; (3) retaliation in violation of FEHA; (4) failure to 10 accommodate disability in violation of FEHA; (5) failure to engage in the interactive process in 11 violation of FEHA; (6) failure to prevent discrimination, harassment, and retaliation in violation 12 of FEHA; (7) negligent hiring, supervision, and retention; (8) wrongful termination of 13 employment in violation of public policy; (9) violation of Labor Code § 1102.5; (10) violation of 14 Labor Code § 232.5; and (11) intentional infliction of emotional distress (“IIED”). (ECF No. 1-1 15 at 5–29.) Plaintiff’s first, second, and eleventh causes of action are alleged against all 16 Defendants, while the remaining eight causes of action are alleged against Wayfair. (Id.) 17 On May 31, 2024, Defendants removed the action to this Court based on diversity 18 jurisdiction. (ECF No. 1.) On June 28, 2024, Plaintiff filed the instant motion to remand. (ECF 19 No. 4.) 20 II. STANDARD OF LAW 21 A civil action brought in state court, over which the district court has original jurisdiction, 22 may be removed by the defendant to federal court in the judicial district and division in which the 23 state court action is pending. 28 U.S.C. § 1441(a). The district court has original jurisdiction 24 25 1 In the Notice of Removal, Defendants argue the Court should disregard the citizenship of Frank because Plaintiff sued him under a fictitious name, Frank “Doe.” (ECF No. 1 at 11.) 26 Defendants’ argument is brief, and Plaintiff fails to address the argument in his motion or in reply. However, because Frank’s residence is immaterial to the Court’s ultimate conclusion, the 27 Court does not consider whether his residence should be disregarded or make any findings with respect to said residence. 28 1 over civil actions between citizens of different states in which the alleged damages exceed 2 $75,000. 28 U.S.C. § 1332(a)(1). The party asserting federal jurisdiction bears the burden of 3 proving diversity. Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (citing Resnik v. La Paz Guest 4 Ranch, 289 F.2d 814, 819 (9th Cir. 1961)). Diversity is determined as of the time the complaint 5 is filed and removal effected. Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 6 (9th Cir. 2002). Removal statutes are to be strictly construed against removal. Gaus v. Miles, 7 Inc., 980 F.2d 564, 566 (9th Cir. 1992). 8 The amount in controversy is determined by reference to the complaint itself and includes 9 the amount of damages in dispute, as well as attorney’s fees, if authorized by statute or contract. 10 Kroske v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). Where the complaint does not 11 pray for damages in a specific amount, the defendant must prove by a preponderance of the 12 evidence that the amount in controversy exceeds $75,000. Singer v. State Farm Mut. Auto. Ins. 13 Co., 116 F.3d 373, 376 (9th Cir. 1997) (citing Sanchez v. Monumental Life Ins. Co., 102 F.3d 14 398, 404 (9th Cir. 1996)). If the amount is not facially apparent from the complaint, the Court 15 may “require parties to submit summary-judgment-type evidence relevant to the amount in 16 controversy at the time of removal.” Id. (citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 17 1335–36 (5th Cir. 1995)). 18 Removal based on diversity requires that the citizenship of each plaintiff be diverse from 19 the citizenship of each defendant (i.e., complete diversity). Caterpillar Inc. v. Lewis, 519 U.S. 61, 20 68 (1996). For purposes of diversity, a limited liability company (“LLC”) is a citizen of every 21 state in which its “owners/members” are citizens. Johnson v. Columbia Prop. Anchorage, LP, 22 437 F.3d 894, 899 (9th Cir. 2006) (explaining that courts are to treat LLCs like partnerships, 23 which have the citizenships of all of their members). A corporation is a citizen of any state in 24 which it is incorporated and any state in which it maintains its principal place of business. 28 25 U.S.C. § 1332(c)(1). An individual defendant’s citizenship is determined by the state in which 26 they are domiciled. Weight v. Active Network, Inc., 29 F. Supp. 3d 1289, 1292 (S.D. Cal. 2014). 27 // 28 // 1 III. ANALYSIS 2 Plaintiff argues this action should be remanded to state court because: (1) Defendants have 3 failed to demonstrate complete diversity between the parties at the time of removal; and (2) 4 Defendants cannot establish Payne, Giguere, and Frank were fraudulently joined because Plaintiff 5 can sufficiently allege a harassment claim and an IIED claim against them.2 (ECF No. 4 at 14– 6 22.) With respect to the harassment claim, Plaintiff argues the alleged harassment and threats 7 from Payne and Giguere are actions outside the scope of legitimate managerial actions. (Id. at 8 11.) Finally, Plaintiff further argues his allegations demonstrate Payne and Giguere’s actions 9 were severe and pervasive. (Id.) 10 In opposition, Defendants argue complete diversity exists because Plaintiff is a resident of 11 California, Wayfair is a citizen of Massachusetts, and Payne and Giguere were fraudulently 12 joined because Plaintiff’s only claims against them — harassment under FEHA, discrimination 13 under FEHA and IIED — fail as a matter of law. (ECF No. 8 at 5, 7–12.) With respect to the 14 harassment claim, Defendants argue that even if Plaintiff characterizes the allegations as 15 harassment, there is no personal liability for conduct that constitutes personnel management 16 actions. (Id.) Defendants further contend the alleged actions by Payne and Giguere do not 17 constitute a hostile work environment because they are not severe or pervasive conduct. (Id. at 9– 18 10.) 19 “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading of 20 jurisdictional facts[;] or (2) inability of the plaintiff to establish a cause of action against the non- 21 diverse party in state court.’” Grancare, LLC v. Thrower by and through Mills, 889 F.3d 543, 22 548 (9th Cir. 2018) (quoting Hunter v. Phillip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009)). 23 2 Plaintiff also argues Defendants failed to establish Plaintiff cannot amend his Complaint 24 to recover against Payne, Giguere, and Frank, and Defendants have not met their burden of establishing the amount in controversy is sufficient for removal. (Id. at 23-25.) However, because 25 the Court finds that joinder of Payne and Giguere was proper because Plaintiff sufficiently alleges a harassment claim against them, the Court declines to consider these arguments. Additionally, 26 the Court does not and need not address whether Plaintiff’s IIED claim fails as a matter of law. 27 See Nasrawi v. Buck Consultants, LLC., 713 F.Supp.2d 1080, 1084 (2010) (holding a plaintiff need only have one potentially valid claim against a non-diverse defendant to survive a fraudulent 28 joinder challenge.) 1 “Fraudulent joinder is established the second way if a defendant shows that an ‘individual[] 2 joined in the action cannot be liable on any theory.’” Id. (quoting Ritchey v. Upjohn Drug Co., 3 139 F.3d 1313, 1318 (9th Cir. 1998)). “But ‘if there is a possibility that a state court would find 4 that the complaint states a cause of action against any of the resident defendants, the federal court 5 must find that the joinder was proper and remand the case to the state court.’” Id. (emphasis 6 omitted) (quoting Hunter, 582 F.3d at 1046). “A defendant invoking federal court diversity 7 jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ since there is a ‘general 8 presumption against [finding] fraudulent joinder.’” Id. (quoting Hunter, 582 F.3d at 1046). To 9 determine whether a non-diverse defendant is a sham defendant, “all disputed questions of fact 10 and all ambiguities in the controlling state law are resolved in the plaintiff’s favor[.]” Nasrawi, 11 713 F. Supp. 2d at 1084. Upon this assumption, “[i]f there is a non-fanciful possibility that 12 plaintiff can state a claim under California law against the non-diverse defendants the court must 13 remand.” Macey v. Allstate Prop. & Cas. Ins. Co., 220 F. Supp. 2d 1116, 1117 (N.D. Cal. 2002). 14 As to Defendants’ first argument, the Court finds that while Defendants are correct that 15 adverse official employment actions do not necessarily constitute harassment, such actions are not 16 per se shielded from harassment claims. Reno, 18 Cal. 4th at 646–47. The California Supreme 17 Court has expressly recognized “in some cases the hostile message that constitutes the harassment 18 is conveyed through official employment actions,” and thus, such evidence “can form the basis of 19 a harassment claim.” Roby v. McKesson Corp., 47 Cal. 4th 686, 708 (2009), as modified (Feb. 20 10, 2010); accord Landucci v. State Farm Ins. Co., 65 F.Supp.3d 694, 705–06 (N.D. Cal. 2014). 21 Consequently, Defendants fail to persuade the Court that Payne and Giguere cannot be held 22 personally liable for their actions. 23 As to Defendants’ second argument, the Court’s task on the present motion is not to 24 evaluate whether Payne or Giguere’s actions were sufficiently severe or pervasive enough for 25 Plaintiff to prevail on his claim. See Meyers v. Trendwest Resorts, Inc., 148 Cal. App. 4th 1403, 26 1427-28 (2007). Rather, it is to determine whether Plaintiff has so obviously failed to state a 27 claim under California law that his joinder of Payne and Giguere is fraudulent for purposes of 28 jurisdiction. See Hunter, 582 F.3d at 1043. Essentially, the Court’s job is not to determine if 1 Plaintiff will actually — or even probably — prevail on the merits of his case; rather, the Court 2 must evaluate whether there is any possibility that he will do so. See Grancare, 889 F.3d at 548. 3 The Court finds Defendants have not established that there is no possibility Plaintiff could 4 show Payne and Giguere’s actions towards him had the effect of communicating a hostile 5 message or hostile work environment based on a protected class. Throughout Plaintiff’s 6 Complaint lies an undertone of racial and disability discrimination and harassment. (See 7 generally ECF No. 41-1 at 5–21.) For example, when Plaintiff — who is Black — submitted his 8 request for light duty work along with a doctor’s note confirming his disability to Payne, he was 9 denied. (Id. at 12–13.) However, Plaintiff alleges his fellow co-workers’ requests — which the 10 Complaint notes are “either Latinos or of Asian descent” — were granted “easily” without a 11 doctor’s note. (Id.) When Plaintiff requested a shift change to aid his ailing wife, his Lead 12 Supervisor and Wayfair’s HR representative — who the Complaint notes are Latino — denied his 13 request, citing Plaintiff’s imperfect attendance. (Id. at 13–14.) Yet, Plaintiff alleges other 14 employees who had imperfect attendance were allowed to change shifts. (Id.) Again, “[a] single 15 incident of harassing conduct is sufficient to create a triable issue regarding the existence of a 16 hostile work environment if the harassing conduct…created an intimidating, hostile, or offensive 17 working environment.” Cal. Gov’t Code § 12923(b). Any of these alleged actions could be 18 found by a trier of fact to have created a hostile message or work environment that constitute 19 harassment in violation of the FEHA. Therefore, the Court finds there is a possibility a state court 20 would find the Plaintiff’s Complaint states a cause of action of harassment against Payne and 21 Giguere. 22 For these reasons, the Court finds that Defendants have not satisfied their burden to show 23 Plaintiff obviously failed to state a harassment claim against Payne and Giguere. Accordingly, 24 Plaintiff’s motion is GRANTED. 25 // 26 // 27 // 28 // 1 IV. CONCLUSION 2 Based on the foregoing reasons, the Court GRANTS Plaintiff's Motion to Remand. (ECF 3 | No.4.) This case is hereby REMANDED to the San Joaquin County Superior Court, and the 4 | Clerk of the Court is directed to close this case. 5 IT IS SO ORDERED. 6 | Date: February 10, 2025 Lop Pl 8 TROY L. NUNLEY 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28