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Parker v. Spokane Transit Authority

United States District Court, E.D. Washington

March 29, 2018

GREG PARKER, Plaintiff,
v.
SPOKANE TRANSIT AUTHORITY, a municipal corporation; and ANITA TEAGUE, individually, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

          ROSANNA MALOUF PETERSON, UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT, without oral argument, is Plaintiff Greg Parker's motion to remand, ECF No. 7. Having reviewed the parties' briefing, [1] and for the reasons that follow, the Court grants the motion to remand.

         BACKGROUND

         Mr. Parker originally filed this action against Defendants Spokane Transit Authority and Anita Teague for employment discrimination in Spokane County Superior Court on October 27, 2017. Plaintiff stated four causes of action in his complaint: (1) discrimination based on sexual orientation under the Washington Law Against Discrimination (“WLAD”), chapter 49.60, Revised Code of Washington (“RCW”); (2) unlawful retaliation; (3) breach of contract; and (4) violation of public policy. With respect to Plaintiff's claim for damages based on unlawful retaliation, Plaintiff alleged:

Defendants retaliated against Plaintiff for being a member of the Union, for filing claims for discrimination and/or workplace safety with the Department of Labor and Industries, [Occupational Safety and Health Administration (“OSHA”)] and [Equal Employment Opportunity Commission (“EEOC”)] by treating him in a hostile manner and by terminating his employment.

ECF No. 1-2 at 5.

         Plaintiff maintains that all four claims arise under Washington law, and, therefore, this Court lacks jurisdiction to hear the case. Defendants counter that Plaintiff's retaliation claim exists under federal law (Title VII) rather than under Washington law, which does not protect against retaliation for “filing an OSHA complaint or EEOC charge that seeks recovery for alleged adverse treatment apart from discharge from employment.” ECF No. 9 at 6.

         LEGAL STANDARD

         An action filed in state court may be removed to the federal district court embracing the place where the action is pending when the federal court would have original jurisdiction over the action. 28 U.S.C. § 1441(a). A plaintiff may challenge removal by moving for remand. 28 U.S.C. § 1447(c); see also Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). When remand from federal to state court is sought based on lack of subject matter jurisdiction, the party opposing remand bears the burden of demonstrating that the matter is properly before the federal court. Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368, 1371 (9th Cir.), cert. denied, 484 U.S. 850 (1987). Removal statutes are strictly construed; any doubt as to the propriety of removal should be resolved in favor of remand. Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir. 1996). The district court must remand the case “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c); see also Smith v. Mylan, Inc., 761 F.3d 1042, 1044 (9th Cir. 2014); Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (holding that remand for lack of subject matter jurisdiction “is mandatory, not discretionary”).

         Federal question jurisdiction rests on “a claim or right arising under the Constitution, treaties, or laws of the United States.” 28 U.S.C. § 1441(b). To support federal jurisdiction under the well-pleaded complaint rule, the complaint must present a federal question on its face. California v. United States, 215 F.3d 1005, 1014 (9th Cir. 2000). When a plaintiff has not pleaded a federal cause of action on the face of the complaint, the court must assess whether he has artfully pleaded a state law cause of action that necessarily arises under federal law. Lippitt v. Raymond James Financial Services, Inc., 340 F.3d 1033, 1041 (9th Cir. 2003).

         ANALYSIS

         Remand

         The dispositive question for purposes of remand is whether Plaintiff necessarily relies on a violation of federal law to succeed on his claim for unlawful retaliation. See Lippitt, 340 F.3d at 1043.

         Defendants argue that Plaintiff's unlawful retaliation cause of action cannot be interpreted as a state common law tort claim because disciplinary action or harassment less severe than termination ...


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