Summary
severing and remanding plaintiff's retaliation claim brought under state workers' compensation law, but exercising federal question jurisdiction over claim brought under the Americans With Disabilities Act
Summary of this case from Alderman v. ADT, LLCOpinion
ACTION NO. 4:21cv34
05-12-2021
LEE HICKLIN, Plaintiff, v. CITY OF HAMPTON, Defendant.
ORDER
On November 24, 2020, Plaintiff Lee Hicklin ("Plaintiff"), appearing pro se, filed a Complaint against his former employer, Defendant City of Hampton ("Defendant") in the Hampton Circuit Court. Compl., ECF No. 1-2. In his Complaint, Plaintiff claims that Defendant discriminated against him in violation of the Americans With Disabilities Act ("ADA"), and terminated his employment in retaliation for filing a Workers' Compensation claim. Id. at 1-3.
The case number assigned to Plaintiff's state court action was CL20002959-00.
The court has construed Plaintiff's retaliation claim as one brought pursuant to Virginia Code § 65.2-308(A), which states that "[n]o employer or person shall discharge an employee solely because the employee intends to file or has filed a claim" under Virginia's Workers' Compensation statute. Order Show Cause at 1 n.1, ECF No. 3 (quoting Va. Code Ann. § 65.2-308(A)).
Defendant was served with Plaintiff's Complaint on April 2, 2021, and removed Plaintiff's state court action to this court on April 13, 2021. Notice Removal at 1, ECF No. 1. Upon review, the court noted that Plaintiff's ADA discrimination claim clearly gave rise to federal question jurisdiction; however, it appeared to the court that Plaintiff's retaliation claim was nonremovable pursuant to 28 U.S.C. § 1445(c). Order Show Cause at 2, ECF No. 3. In an Order to Show Cause dated April 16, 2021, the court stated:
Pursuant to 28 U.S.C. § 1445(c), "[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States." 28 U.S.C. § 1445(c). Because Plaintiff's retaliation claim is based on the anti-retaliation provision of Virginia's Workers' Compensation statute, it appears that such claim is not subject to removal. See Green v. Hajoca Corp., 573 F. Supp. 1120, 1121-23 (E.D. Va. 1983) (remanding a case in which the plaintiff alleged that his employer retaliated against him for applying for workers' compensation benefits).
Id.
Pursuant to 28 U.S.C. § 1441(c), when a civil action contains (i) a claim that gives rise to federal question jurisdiction, and (ii) "a claim that has been made nonremovable by statute," "the entire action may be removed;" however, the district court is required to sever the nonremovable claim and "remand the severed claim[] to the State court from which the action was removed." 28 U.S.C. § 1441(c). Although it appeared that 28 U.S.C. § 1441(c) required the court to sever Plaintiff's retaliation claim, and remand this claim back to the Hampton Circuit Court, the court provided Defendant an opportunity to address this issue before taking any such action. Order Show Cause at 2-3. In its April 16, 2021 Order to Show Cause, the court stated:
Defendant is ORDERED to SHOW CAUSE why Plaintiff's retaliation claim should not be severed from this action and remanded back to the Hampton Circuit Court. Defendant is ORDERED to file a written submission regarding this issue within twenty-one days from the date of entry of this Order to Show Cause.Id. at 3.
On May 6, 2021, Defendant filed a "Response to the Order to Show Cause" ("Response"). Resp., ECF No. 6. In its Response, Defendant agrees that the court is required to "sever the retaliation claim from the Plaintiff's ADA claim, and remand the retaliation claim back to the Hampton Circuit Court." Id. at 1.
Under these circumstances, the court hereby SEVERS Plaintiff's retaliation claim from this action and REMANDS Plaintiff's retaliation claim back to the Hampton Circuit Court.
The Clerk is DIRECTED to send a copy of this Order to Plaintiff, counsel for Defendant, and the Hampton Circuit Court.
IT IS SO ORDERED.
/s/_________
REBECCA BEACH SMITH
SENIOR UNITED STATES DISTRICT JUDGE May 12, 2021