Opinion
Civil Action No. SA-05-CA-993-XR.
November 15, 2005
ORDER
On this date, the Court considered Plaintiff's Motion to Remand (docket no. 4) and Defendants' Response. After careful consideration, the Court will DENY Plaintiff's motion to remand the Texas Commission on Human Rights Act (TCHRA) disability claim, and DENY Plaintiff's motion to remand the intentional infliction of emotional distress claim, but the Court REMANDS Plaintiff's Tex. Labor Code section 451 claim to the state court.
Facts and Procedural Background
Plaintiff brings suit against his former employer alleging that he was discriminated against because of his epilepsy in violation of the Americans with Disabilities Act (ADA) and the TCHRA, Texas Labor Code §§ 21.051, et seq. Plaintiff also claims he was retaliated against because he filed a worker's compensation claim in connection with a shoulder and back injury. Plaintiff claims recourse under Texas Labor Code § 451. Finally, Plaintiff alleges that he was humiliated and harassed because of his epilepsy and brings a claim for intentional infliction of emotional distress (IIED).
Defendants timely removed this lawsuit to this federal court, and Plaintiff moves to remand all his state causes of action. Plaintiff argues that 18 U.S.C. § 1445(c) and Sherrod v. American Airlines, Inc., 132 F. 3d 1112 (5th Cir. 1998) prohibit removal of the § 451 worker's compensation retaliation claim.
Defendant agrees that a § 451 claim standing alone cannot be removed, but relying upon Martin v. AT T Corp., No. SA04CA-1143-RF, 2005 WL 822554 (W.D. Tex. Apr. 6, 2005) argues that since this Court has jurisdiction over the ADA claim, it should exercise pendent jurisdiction over the § 451 claim and the other state causes of action.
In Sherrod, the Fifth Circuit addressed the issue of whether a § 451 claim could be removed alongside an age discrimination claim under the Age Discrimination in Employment Act (ADEA). "The district court concluded that § 1445(c) does not prevent a district court from exercising supplemental jurisdiction over state worker's compensation claims when joined with a federal question." Sherrod, 132 F. 3d at 1119. In reversing, the Fifth Circuit concluded that "the language of § 1445(c) is clear and the court's decision in Jones does not distinguish between removal based on diversity and federal question jurisdiction, the district court erred by failing to sever and remand the state worker's compensation claims." Id. See also Harris v. Bombadier Aerospace Corp., 2003 WL 21939761 (N.D. Tex. Aug. 11, 2003); Smith v. Fujicolor Processing, Inc., 2002 WL 1798918 (N.D. Tex. Aug. 2, 2002).
Defendants argue that since the causes of action have the same set of operative facts and splitting the causes of action could present problems of double recovery and confusion when the cases are tried, remand should be denied. The Court agrees that the parties' resources and the courts' resources would be better spent trying all these causes of action in one venue. Nevertheless, the Plaintiff objects, as is his right, has not waived remand, and Sherrod compels this Court to remand the § 451 claim.
Since the TCHRA disability claim and the IIED claim, however, are substantially related to the ADA claim, the Court will exercise its pendent jurisdiction over these claims.
The section 451 claim is SEVERED and REMANDED to the 407th Judicial District Court, Bexar County, Texas.