Shawn Salter v. United Parcel Service, Inc., et al.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SHAWN SALTER, No. 2:25-cv-01482-DJC-CSK [12] Plaintiff, [13] v. ORDER [14] UNITED PARCEL SERVICE, Inc., et al., [15] Defendants. [16] 17 Plaintiff Shawn Salter originally filed the present suit in Sacramento County 18 Superior Court against his former employer, Defendant United Parcel Service, Inc. 19 (“UPS”), and four UPS employees, Defendants Roger Carney, Lee Maruta, Kim Tse, and 20 Matthew Woodruff. Plaintiff claims that while employed by Defendant UPS, he was 21 subject to discrimination, harassment, and retaliation on the basis of disability and 22 race. Plaintiff also claims that he was not provided with reasonable accommodations 23 and that he faced retaliation for engaging in protected activities under FEHA as well 24 as for his actions as a whistleblower. 25 Defendant UPS removed this action, asserting this Court had diversity of 26 citizenship as Defendants Carney, Maruta, Tse, and Woodruff were sham defendants. 27 (Notice of Removal (ECF No. 1) at 3–7.) Defendants Carney, Maruta, Tse, and [28] 1 Woodruff are each allegedly residents of California. (Compl. (ECF No. 1)1 ¶¶ 4–7.) 2 Plaintiff has now filed a motion requesting that the Court remand this action to the 3 Sacramento County Superior Court. (ECF No. 8.) Defendant UPS has separately 4 moved to dismiss the Individual Defendants from this action.2 (ECF No. 6.) 5 For the reasons stated below, Plaintiff’s Motion to Remand is granted, and 6 Defendant’s Motion to Dismiss is denied as moot. 7 BACKGROUND 8 The allegations in the present Complaint largely lack associated dates and are 9 relayed out of chronological order. As a result, it is difficult to determine the exact 10 series of events alleged in the Complaint, but the Court addresses the factual 11 allegations that are readily understood. Plaintiff alleges that he was employed by 12 Defendant UPS for “nearly two years” during which he was ultimately promoted to 13 Investigation Supervisor. (Compl. ¶ 11.) While he was employed there, Plaintiff claims 14 that he requested accommodations for severe osteoarthritis after he was reassigned 15 to a facility that required more walking. (Id. ¶¶ 68–70.) Plaintiff was originally told to 16 “move on” by management and after he submitted a formal accommodation request, 17 “Defendant UPS strung Plaintiff along for more than a year.” (Id. ¶¶ 71–72.) 18 At a later time and approximately five weeks before Plaintiff’s ultimate 19 termination, Plaintiff claims that he heard Defendant Carney, Plaintiff’s supervisor, say 20 to Defendant Maruta that “most of the placards aren't in the names of the people 21 actually parking there.” (Id. ¶ 74.) To which Defendant Maruta responded, “[a]nyone 22 who parks in a handicapped space but can walk on their own two legs is either a pussy 23 or faking it.” (Id. ¶ 75.) Plaintiff states that he reported the incident, but that UPS’s [24] 25 1 Plaintiff’s Complaint is included within the Notice of Removal filed by Defendant UPS beginning at ECF page number 18. The Court cites to the internal page and paragraph numbers from the 26 Complaint. 27 2 Individual Defendants have appeared in this action and, as far as the Court can tell, Counsel for Defendant UPS does not purport to represent them. The Court need not determine if the Motion to 28 Dismiss is therefore improper as the Court will grant remand. 1 human resources department only indicated it had investigated the incident with no 2 further details. (Id. ¶¶ 77–78.) 3 Plaintiff also alleges that he had previously been passed over for a position and 4 overheard Defendant Tse state in connection with that position, “I'm tired of all of 5 these white guys in these positions . . . we need to bring more color onto the team. I 6 want to bring on an Asian male.” (Id. ¶¶ 39–41.) Defendant Tse was also the subject 7 of an investigation for creating a hostile work environment based on a complaint by 8 Plaintiff.3 (Id. ¶ 33.) In connection with that investigation, Plaintiff was allegedly placed 9 on a conference call with Defendant Woodruff — Plaintiff and Defendant Tse’s 10 supervisor — who told Plaintiff to "just forget this and buckle down and work hard," 11 and promised Plaintiff a promotion if he did so. (Id. ¶ 38.) 12 Plaintiff brought nine causes of action with the Individual Defendants named in 13 Plaintiff’s claims for race discrimination in violation of FEHA (all Individual Defendants), 14 disability discrimination in violation of FEHA (Defendants Carney and Maruta), 15 disability harassment in violation of FEHA (Defendants Carney and Maruta), racial 16 harassment in violation of FEHA (Defendants Tse and Woodruff), and violation of Cal. 17 Gov. Code § 12964.5 (all Individual Defendants). (See Compl.) Briefing is complete 18 on both Plaintiff’s Motion to Remand (Remand Mot. (ECF No. 8); Remand Opp’n (ECF 19 No. 11); Remand Reply (ECF No. 12)) and Defendants’ Motion to Dismiss (Dismiss 20 Mot. (ECF No. 5); Dismiss Opp’n (ECF No. 7); Dismiss Opp’n (ECF No. 9)). The matter 21 is taken under submission without oral argument pursuant to Local Rule 230(g). 22 //// 23 //// 24 //// 25 //// 26 //// [27] 3 It is unclear from the facts alleged whether this investigation related to the comment about hiring 28 previously referenced or a different incident. 1 MOTION TO REMAND4 2 I. Legal Standard 3 A case may be removed to federal court if that court would have original 4 jurisdiction over the matter, which generally requires asserting federal question 5 jurisdiction under 28 U.S.C. § 1331 or diversity jurisdiction under 28 U.S.C. § 1332 . 6 See 28 U.S.C. § 1441 ; Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009). 7 “However, it is to be presumed that a cause lies outside the limited jurisdiction of the 8 federal courts and the burden of establishing the contrary rests upon the party 9 asserting jurisdiction.” Hunter, 582 F.3d at 1042 (quoting Abrego v. The Dow Chem. 10 Co., 443 F.3d 676, 684 (9th Cir. 2006) (citation omitted)) (internal quotation marks and 11 alterations omitted). As a result, “[t]he ‘strong presumption against removal 12 jurisdiction means that the defendant always has the burden of establishing that 13 removal is proper,’ and that the court resolves all ambiguity in favor of remand to state 14 court.” Id. (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (per curiam) 15 (internal quotation marks omitted)). 16 Under the doctrine of “fraudulent joinder” or “sham defendant,” a federal court 17 may ignore a non-diverse defendant's citizenship if either of two stringent standards is 18 met: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the 19 plaintiff to establish a cause of action against the non-diverse party in state court.” See 20 Grancare, LLC v. Thrower by & through Mills, 889 F.3d 543, 548 (9th Cir. 2018) 21 (quoting Hunter, 582 F.3d at 1044–46 (citations omitted)). Defendant challenges the 22 joinder of Defendants Carney, Maruta, Tse, and Woodruff on the second basis, which 23 requires Defendant to show there is no possibility that a state court would find that the [24] 4 In their Opposition to Plaintiff’s Motion to Remand, Defendant first argues that because Plaintiff’s 25 Opposition to Defendant’s Motion to Dismiss was filed one day late, the Court should treat the delayed filing as Plaintiff consenting to Defendant’s Motion to Dismiss the Individual Defendants. (Remand 26 Opp’n at 3.) While the Court requires that all parties abide by the deadline established by the Federal Rules of Civil Procedure, the Local Rules, and the Court’s Standing Order, a one-day delay with no 27 apparent prejudice to Defendant from that delay does not warrant the Court treating that missed deadline as Plaintiff’s “consent” to dismissal of the Individual Defendants without leave to amend such 28 that remand is not warranted. 1 Complaint states a cause of action against these Defendants. See id. (quoting Hunter, [2] 582 F.3d at 1046 ). Defendant “bears a ‘heavy burden’ since there is a ‘general 3 presumption against [finding] fraudulent joinder.’” Grancare, 889 F.3d at 548 (quoting 4 Hunter, 582 F.3d at 1046 ) (alteration included). 5 Establishing an inability to state a cause of action against the non-diverse 6 defendant requires more than showing that the claim does not meet the standards for 7 a motion to dismiss under Rule 12(b)(6). Rather, the court must determine “[whether] 8 there is a possibility that a state court would find that the complaint states a cause of 9 action against any of the resident defendants.” Hunter, 582 F.3d at 1046 (quoting 10 Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003)) (emphasis 11 added); Grancare, 889 F.3d at 549–50 (“A claim against a defendant may fail under 12 Rule 12(b)(6), but that defendant has not necessarily been fraudulently joined.”). 13 “Consequently, if a defendant simply argues that plaintiff has not pled sufficient facts 14 to state a claim, the heavy burden of showing fraudulent joinder has not been met.” 15 Ontiveros v. Michaels Stores, Inc., No. 12-cv-09437-MMM-FMO, 2013 WL 815975 , at 16 *5 (C.D. Cal. Mar. 5, 2013) (collecting cases). 17 As the Ninth Circuit has recognized, fraudulent joinder is typically used to assert 18 procedural defenses and immunities that are distinct from the underlying merits of the 19 claim. See Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1320 (9th Cir. 1998); Grancare, 20 LLC, 889 F.3d at 548–49 (“A standard that equates fraudulent joinder with Rule 21 12(b)(6) conflates a jurisdictional inquiry with an adjudication on the merits.”) 22 (collecting cases). For example, a successful statute of limitation challenge, see 23 Ritchey, 139 F.3d at 1320 and Hamilton Materials, Inc. v. Dow Chemical Corp., 494 24 F.3d 1203, 1206 (9th Cir. 2007), a state law privilege, see McCabe v. General Foods 25 Corp., 811 F.2d 1336, 1339 (9th Cir. 1987), or other inability to hold the defendant 26 liable, see United Computer Systems, Inc. v. AT & T Corp., 298 F.3d 756, 761 (9th Cir. 27 2002), are instances in which fraudulent joinder may be established because those 28 defenses render the claim “impossible.” 1 II. Discussion 2 In removing this action to this Court, Defendant UPS asserted that removal was 3 proper because the Individual Defendants are sham defendants and that, without 4 their joinder, this Court has diversity jurisdiction. (Notice of Removal at 3.) Plaintiff 5 now seeks remand of this action, arguing that the Individual Defendants are proper 6 defendants and, as such, there is not complete diversity of the parties. 7 As an initial matter, the Parties agree that Plaintiff’s race and disability 8 discrimination claims are not cognizable against the Individual Defendants and should 9 be dismissed. (Remand Opp’n at 3; Dismiss Opp’n at 11.) For the remainder of 10 Plaintiff’s claims against the Individual Defendants, Defendant argues that these claims 11 fail as a matter of law. The core of Plaintiff’s remaining claims against the Individual 12 Defendants are FEHA race and disability harassment claims. 13 To state a disability harassment claim under FEHA, a plaintiff must demonstrate 14 that: (1) they are a member of a protected class; (2) they were subjected to 15 harassment because they belonged to this group; and (3) the alleged harassment was 16 so severe that it created a hostile work environment. Lawler v. Montblanc N. Am., LLC, [17] 704 F.3d 1235, 1244 (9th Cir. 2013). For the claims of Defendant Murata’s disability 18 harassment, Plaintiff claims that he heard Defendant Murata state that “[a]nyone who 19 parks in a handicapped space but can walk on their own two legs is either a pussy or 20 faking it.” (FAC ¶ 146.) Defendant first argues that this comment was “not obviously 21 in reference to disabled individuals, but instead could just as easily be referencing 22 able-bodied individuals fraudulently using handicapped placards.” (Remand Opp’n at 23 5.) This argument ignores the central implication of Defendant Murata’s alleged 24 statement: that simply because an individual is able to walk, they are either lesser or 25 faking a disability. While Defendant Murata may have some defense based on the 26 intent or context of his alleged statement, taking as true the allegations as stated in 27 the Complaint, these statements may constitute harassing conduct; simply because 28 someone can walk does not mean they are lesser or do not have a disability. 1 Defendant also argues that Plaintiff has not established that this statement was 2 relevant to him, as he has not alleged that he had a handicap placard nor offered 3 evidence that he is a member of a protected class. Defendants may be correct on 4 these points, but these are deficiencies that can be cured with future amendment. 5 Finally, Defendant contends that this statement is not sufficiently severe or pervasive. 6 (Remand Opp’n at 6.) In a vacuum, this single statement not directed to Plaintiff would 7 not be sufficiently severe or pervasive to establish a claim under FEHA. See Lawler, [8] 704 F.3d at 1244 . However, this allegation is not made in a vacuum but in the context 9 of allegations of other alleged discriminatory conduct, including the failure to respond 10 to Plaintiff’s accommodation request for over a year and Plaintiff being told to “pick his 11 battles” and “move on” from requests for accommodation. (FAC ¶¶ 71–73.) Plaintiff 12 also indicates that he has reason to believe that the comment made by Defendant 13 Murata was specifically connected to an investigation regarding Plaintiff’s 14 accommodation request (Remand Reply at 6), though the FAC does not currently 15 contain any such allegations. 16 It is still possible that even in this broader context, these allegations are 17 insufficient to establish a disability harassment claim. However, the question for 18 purposes of fraudulent joinder is not whether the Court would grant a motion to 19 dismiss under Rule 12(b)(6) based on the allegations in the Complaint. Defendant’s 20 arguments that remand is not warranted largely concern the sufficiency of Plaintiff’s 21 allegations to state harassment claims against the Individual Defendants. (See 22 Remand Opp’n at 5–11.) As Defendant is not moving to dismiss these claims based 23 on procedural defenses and immunities, and thus has a “heavy burden” to prove that 24 Defendants Carney, Maruta, Tse, and Woodruff were fraudulently joined. Defendant’s 25 argument that Plaintiff has not identified specific factual allegations that could be 26 included in a future complaint is not determinative. Defendants bear the burden to 27 show that Plaintiff could not possibly state claims against the Individual Defendants. 28 Defendant has not carried this burden by establishing only that Plaintiff’s allegations 1 | against the Individual Defendants are insufficient as currently pled.> See Grancare, 2 | LLC, 889 F.3d at 548 . 3 The Court finds that Defendant has not met their burden to show fraudulent 4 | joinder. As such, Plaintiff's Motion to Remand must be granted as there is not 5 | complete diversity of the parties. 28 U.S.C. § 1447 (c); see 28 U.S.C. § 1332 (a). 6 CONCLUSION 7 In accordance with the above, IT |S HEREBY ORDERED that: 8 1. Plaintiff's Motion to Remand (ECF No. 8) is GRANTED. 9 2. Defendant UPS's Motion to Dismiss (ECF No. 5) is DENIED AS MOOT. 10 3. The Clerk of Court is directed to remand this case to the Superior Court of 11 California, County of Sacramento, and close this case. [12] 13 IT IS SO ORDERED. 14 | Dated: September 12, 2025 “Daniel A CoD Hon. Daniel alabretta UNITED STATES DISTRICT JUDGE [17] 18 | DJct -salter25ev01482.mtr&mtd [26] 27 | ° The Court only addresses allegations against Defendant Murata above for this reason. The allegations against Defendant Murata are utilized to illustrate why the Court ultimately grants Plaintiff's Motion to 28 | Remand. °