Gavitt v. T-Mobile USA, Inc., 3:20-cv-01331-BR

AMANDA GAVITT, Plaintiff, v. T-MOBILE USA, INC.; SAVANNA FERNANDEZ;and JENNIFER LAMB, Defendants.

3:20-cv-01331-BR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

December 1, 2020

OPINION AND ORDER

RICHARD B. MYERS

Bennett Hartman, LLP

210 S.W. Morrison Street

Suite 500

Portland, OR 97204-3149

(503) 227-4600

Attorneys for Plaintiff

CODY M. WESTON

EDWARD CHOI

Perkins Coie LLP

1120 N.W. Couch Street, 10th Floor

Portland, OR 97209-4128

(503) 727-2000

Attorneys for Defendants

BROWN, Senior Judge.

This matter comes before the Court on Plaintiff Amanda Gavitt's Motion (#7) to Remand and the Motion (#5) to Dismiss of Defendants Savannah Fernandez and Jennifer Lamb. The Court concludes the record is sufficiently developed such that oral argument would not be helpful to resolve these Motions. For the reasons that follow, the Court DENIES Plaintiff's Motion to Remand and the Motion to Dismiss of Defendants Fernandez and Lamb.

BACKGROUND

The following facts are taken from Plaintiff's Complaint and the parties' materials related to Plaintiff's Motion to Remand and the Motion to Dismiss of Defendants Fernandez and Lamb.

In May 2016 Defendant T-Mobile USA, Inc., hired Plaintiff as a Mobile Expert.

On December 23, 2018, "Plaintiff took a protected leave of absence from her employment to seek and receive mental health treatment." Compl. at ¶ 11. On April 8, 2019, Plaintiff returned to work. Plaintiff alleges T-Mobile subjected her to "differential treatment in the daily conditions of her employment" after she returned from her leave of absence. Specifically, Plaintiff alleges T-Mobile ignored or denied her requests for paid time off (PTO), did not allow her "to work forcommission for two weeks," and failed to compensate her at a higher rate of pay when it scheduled her to work during rest periods. Compl. at ¶¶ 13-15.

On May 14, 2019, Plaintiff's counsel sent T-Mobile an email in which counsel "verifi[ed] . . . Plaintiff is a victim of domestic violence, harassment, sexual assault, or stalking as defined by ORS 659A.270, and request[ed] reinstatement of [Plaintiff's] hours after returning from protected leave pursuant to ORS 659A.272." Compl. at ¶ 16.

On June 9, 2019, Defendant Fernandez issued Plaintiff a written reprimand. The cause for the reprimand is not described in the pleadings

On July 20, 2019, T-Mobile hired a new employee to work as a Mobile Expert at the same T-Mobile store where Plaintiff works. The new employee "has been scheduled to work more hours than Plaintiff." Compl. at ¶ 18.

In January 2020 T-Mobile did not pay Plaintiff a "promised end-of-year bonus." Compl. at ¶ 19.

On February 7, 2020, "Plaintiff requested disability accommodation for an aggravation or worsening of her left knee impairment." Compl. at ¶ 20.

On February 20, 2020, Defendant Lamb, an Accommodation Manager with T-Mobile, denied Plaintiff's request for accommodation on the ground that Plaintiff's left-knee impairmentwas "short term and transitory . . . which does not rise to the level of a disability under the ADA." Compl. at ¶ 21.

On April 3, 2020, Plaintiff's counsel "gave written notice to T-Mobile of Plaintiff's wage claim and provided facts sufficient for T-Mobile to pay Plaintiff all unpaid wages." Compl. at ¶ 23. As of August 7, 2020, Defendant T-Mobile had not paid Plaintiff all of the wages owed to her. Plaintiff remains employed by Defendant T-Mobile, but she is unable to work "because T-Mobile denied her request for accommodation." Compl. at ¶ 22.

On June 24, 2020, Plaintiff filed a Complaint in Multnomah County Circuit Court against Defendants T-Mobile, Fernandez, and Lamb alleging nine claims: (1) failure to pay all wages when due in violation of Oregon Revised Statutes § 652.120 against T-Mobile; (2) sex discrimination in violation of Oregon Revised Statutes § 569A.030(1)(b) against T-Mobile; (3) discrimination because of Plaintiff's opposition to an unlawful employment practice in violation of Oregon Revised Statutes § 659A.030(1)(f) against all Defendants; (4) aiding and abetting an unlawful employment practice in violation of Oregon Revised Statutes § 659A.030(1)(g) against Fernandez and Lamb; (5) discrimination "because of accommodation request" in violation of Oregon Revised Statutes § 659A.109 against T-Mobile; (6) disability discrimination in violation of Oregon Revised Statutes § 659A.112against T-Mobile; (7) discrimination "because of [Plaintiff's} protected complaint" in violation of Oregon Revised Statutes § 659A.199 against T-Mobile; (8) discrimination "because of protected leave" in violation of Oregon Revised Statutes § 659A.277 against T-Mobile; and (9) discrimination "because of victim status" in violation of Oregon Revised Statutes § 659A.290(2)(b) against T-Mobile. Plaintiff seeks compensatory damages of $50,000, back pay in the amount of $10,000, $405 in unpaid wages, attorneys' fees, and post-judgment interest.

On August 7, 2020, Defendants timely removed the matter to this Court on the basis of diversity jurisdiction. In their Notice of Removal Defendants note Plaintiff and Defendants are citizens of different states and assert the amount in controversy exceeds $75,000. Specifically, Defendants state Plaintiff seeks economic damages of $10,405; compensatory damages of $50,000; and attorneys' fees, which "will more than likely exceed $15,000 in this matter." Notice of Removal at ¶ 5.

On August 14, 2020, Defendants Fernandez and Lamb filed a Motion to Dismiss in which they seek an order dismissing Plaintiff's Fourth Claim against them for "aiding and abetting an unlawful employment practice" in violation of Oregon Revised Statutes § 659A.030(1)(g).

On September 8, 2020, Plaintiff filed a Motion to Remand in which Plaintiff seeks an order remanding this matter to statecourt on the ground that Defendants have not established this Court has jurisdiction because the amount in controversy does not exceed $75,000.

The Court took the Motions under advisement on October 6, 2020.

STANDARDS

I. Motion to Remand

28 U.S.C. § 1446(a) provides in pertinent part: "A defendant or defendants desiring to remove any civil action . . . from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal."

A motion to remand is the proper procedure for challenging removal. Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9^th Cir. 2007). "Removal and subject matter jurisdiction statutes are strictly construed, and a defendant seeking removal has the burden to establish that removal is proper and any doubt is resolved against removability." Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A., 761 F.3d 1027, 1034 (9^th Cir. 2014)(quotation omitted).

28 U.S.C. § 1441(a) is strictly construed against removal jurisdiction, and federal jurisdiction must be rejected "if there is any doubt as to the right of removal." GeographicExpeditions, Inc. v. Est. of Lhotka ex rel. Lhotka, 599 F.3d 1102, 1106-07 (9^th Cir. 2010)(citation omitted). "This gives rise to a strong presumption against removal jurisdiction [which] means that the defendant always has the burden of establishing that removal is proper," and the court "strictly construe[s] the removal statute against removal jurisdiction." Id.

II. Motion to Dismiss

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Bell Atlantic v. Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955 [(2007)]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. . . . The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557, 127 S. Ct. 1955 (brackets omitted).

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Novak v. U.S., 795 F.3d 1012, 1017 (9^th Cir. 2015).

"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9^th Cir.2012)(citation omitted). A court, however, "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9^th Cir. 2007)(citation omitted).

PLAINTIFF'S MOTION (#7) TO REMAND

As noted, Plaintiff moves to remand this matter on the ground that Defendants have not established the amount in controversy exceeds $75,000, and, therefore, this Court does not have jurisdiction. Defendants assert they have sufficiently established the amount in controversy exceeds $75,000.

I. Standards

A defendant may remove an action to federal court only if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). "Removal statutes are to be 'strictly construed' against removal jurisdiction." Nevada v. Bank of America Corp., 672 F.3d 661, 667 (9^th Cir. 2012)(quoting Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)). The party asserting federal jurisdiction bears the burden of overcoming the presumption against federal jurisdiction. Kokkonen, 511 U.S. at 377. Federal courts must reject federal jurisdiction "if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, 980 F.2d 564, 566 (9^th Cir. 1992).

An amount in controversy exceeding $75,000 is a prerequisite for diversity...