Waesche v. Embry-Riddle Aeronautical University Incorporated

• Court: District Court, D. Arizona
• Decided: March 26, 2021
• Docket: 3:21-cv-08020
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Olga I Waesche, et al., No. CV-21-08020-PCT-DLR

10 Plaintiffs, ORDER

11 v.

12 Embry-Riddle Aeronautical University Incorporated, et al., 13 Defendants. 14 15 16 Before the Court is Plaintiffs’ pro se motion to remand. The motion is fully briefed 17 (Docs. 9, 11, 14) and will be denied. 18 I. Background 19 On August 22, 2016, Embry-Riddle Aeronautical University, Inc. (“ERAU”) hired 20 Plaintiff Olga Waesche as a Russian language adjunct professor. (Doc. 1-3 at 4.) 21 Following the resignation of the only other Russian language adjunct professor, Dr. Jon 22 Haass, the relevant Interim Dean, promised on September 12, 2019 to secure Ms. Waesche 23 a full-time assistant professor position in exchange for her agreement to teach all the 24 Russian language classes at the Prescott campus. (Id.) However, when Ms. Waesche 25 visited the human resources office on September 20, 2019, instead of the full-time assistant 26 professor contract she was expecting, she received a full-time instructor contract. (Id.) Ms. 27 Waesche immediately contacted Mr. Haass, who explained that he had not yet been able 28 to secure her position but would keep trying. (Id. at 6.) Ms. Waesche thereafter signed the 1 instructor contract. (Id.) 2 On January 21, 2020, Mr. Haas delivered a letter to Ms. Waesche relaying that 3 ERAU did not intend to renew her contract for the 2020-21 academic year (the “Letter”). 4 (Id.) On February 21, 2020, Ms. Waesche met with Mr. Haass regarding the Letter, and 5 he promised to help resolve the issue, to no avail. (Id. at 7.) On March 5, 2020, Ms. 6 Waesche informally met with the Speaker, Vice Speaker, and Interim Chief Academic 7 Officer of the Prescott campus, and she was informed that she was not a faculty member 8 and had no right to file a grievance. (Id.) Ms. Waesche emailed the Prescott campus Senate 9 to initiate a formal grievance on March 15, 2020 but faced efforts to prevent her grievance 10 process from moving forward. (Id. at 8.) On April 16, 2020, Ms. Waesche requested 11 review from a Formal Grievance Committee (the “Committee”). The Committee issued a 12 report (the “Report”) in Ms. Waesche’s favor, concluding that ERAU violated numerous 13 Handbook policies with respect to the Letter’s issuance and the grievance process. (Id. at 14 9-11.) The Committee submitted the Report to the Prescott campus Chancellor, who 15 declined to act. 16 On January 12, 2021, Plaintiffs, proceeding pro se, filed their complaint in Yavapai 17 County Superior Court. The complaint brings claims for breach of contract, breach of the 18 implied covenant of good faith and fair dealing, and negligent infliction of emotional 19 distress.1 (Doc. 1-3 at 3-14.) On February 3, 2021, ERAU removed the action to this Court 20 based on diversity jurisdiction. (Doc. 1.) On February 16, 2021, Plaintiffs filed the instant 21 motion to remand, which is now ripe. 22 II. Discussion 23 Pursuant to 28 U.S.C. § 1332, diversity jurisdiction is present when complete 24 diversity of citizenship exists and the amount in controversy exceeds $75,000. Here, 25 diversity of citizenship is undisputed; instead Plaintiffs contend that their complaint does

26 1 On May 21, 2020, Ms. Waesche filed a charge of discrimination with the Arizona Attorney General’s Office and the Equal Employment Opportunity Commission 27 (“EEOC”). She has not yet received a right to sue letter but indicates in her complaint that she intends to amend her complaint to add claims if she does. (Doc. 1-3 at 11.) For the 28 purposes of this order, the Court will assess the amount in controversy based on the claims currently raised, not those that may be added in the future. 1 not and cannot demand an amount in excess of $75,000. Defendant, as the removing party, 2 has the burden of establishing by a preponderance of the evidence that the amount-in- 3 controversy requirement has been met. Sanchez v. Monumental Life Ins. Co., 102 F.3d 4 398, 404 (9th Cir. 1996). When assessing the total amount at stake in the litigation, 5 including damages and attorneys’ fees if applicable, the Court may consider the complaint, 6 notice of removal, and “summary-judgment-type evidence.” Chavez v. JPMorgan Chase 7 & Co., 888 F.3d 413, 416 (9th Cir. 2018). Having reviewed the evidence, the Court 8 concludes that the amount-in-controversy requirement has been met. 9 The Court will provide several examples of damages that, added together, push the 10 amount in controversy above the minimum, but refrains from picking apart each allegation 11 and claim. As a first example, Plaintiffs allege Ms. Waesche suffered injuries including 12 loss of backpay, contributions to her TIA 403b Retirement Program, loss of contributions 13 to her social security account, and other damages—including emotional distress—when 14 ERAU did not renew her employment contract for the 2020-21 year. Ms. Waesche’s 2020- 15 21 contract, which she lost, was worth approximately $72,830 including benefits, alone.2 16 (Doc. 11-1 at 3.) Considering this value in conjunction with a potential emotional-distress 17 jury award, the amount in controversy would easily be pushed over the $75,000.01 18 threshold. Similarly, Plaintiffs bring claims stemming from six alleged breaches of the 19 implied covenant of good faith and fair dealing. One breach allegedly occurred when Mr. 20 Haass failed to obtain Ms. Waesche an assistant professor position, despite their agreement. 21 Had she received this promotion, her salary would have been significantly higher during 22 the 2019-20 year. Specifically, a comparable assistant professor’s salary and benefits 23 package at the Prescott campus within the same department that year equaled $85,973.83, 24 an amount $14,080.79 greater than the $71,896.04 package Ms. Waesche qualified for. (Id. 25 at 4.) This figure pushes the amount in controversy even more over the jurisdictional 26 2 Plaintiffs dispute the accuracy of this figure, arguing that Ms. Waesche would not 27 have accepted or benefitted from the insurance package valued in excess of $15,000 because she preferred to rely on her husband’s military retirement benefits. (Doc. 14 at 3.) 28 Regardless of whether Ms. Waesche would have accepted the insurance package included, the contract’s value has been proffered to be $72,830. |} minimum. Plus, Plaintiffs allege five additional bases for breach that arise primarily from 2|| alleged efforts to thwart her grievance process following her receipt of the Letter. These || bases could qualify Plaintiffs for even greater relief, especially if a jury were to award 4|| punitive damages. Rawlings v. Apodaca, 726 P.2d 565, 578 (Ariz. 1986) (explaining that 5 || an award of punitive damages for breach of the implied covenant of good faith and fair 6|| dealing may be appropriate if certain showings are made).* Looking to these examples, || the Court concludes that the amount in controversy exceeds $75,000.01 such that diversity 8 || jurisdiction is present. Consequently, 9 IT IS ORDERED that Plaintiffs’ motion to remand (Doc. 9) is DENIED. 10 Dated this 25th day of March, 2021. 11 12 13 , {Z, 14 _- {UO 15 Usted States Dictric Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 _? The parties note that Plaintiffs’ remaining claim for negligent infliction of emotional distress is currently the subject of ERAU’s pending motion to dismiss. The Court will not assess the merits of ERAU’s motion, here.

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