Opinion
3:03-CV-0850-P
August 11, 2003
ORDER
Plaintiff filed suit in state court asserting claims under section 451.001 of the Texas Labor Code, section 21.001 of the Texas Labor Code, and 29 U.S.C. § 623 et seq.. Defendant removed the case due to the federal question presented. It is undisputed that this Court has original jurisdiction over the Age Discrimination in Employment Act ("ADEA") claim and may exercise supplemental jurisdiction over the Texas Commission on Human Rights Act ("TCHRA") claim.
Plaintiff moves to remand the case because her section 451.001 claim arises under the State's worker's compensation laws. She appears to argue that the mere presence of a worker's compensation claim requires remand of the entire case to state court, even when jurisdiction over other claims is proper. Defendant urges the Court to assert supplemental jurisdiction over the section 451.001 claim or, alternatively, to sever and remand the section 451.001 claim.
In Sherrod v. Am. Airlines, 132 F.3d 1112, 1119 (5th Cir. 1998), the plaintiff asserted claims under the ADEA and the Americans with Disabilities Act, in addition to claims under the TCHRA and section 451.001. Because the section 451.001 claim arose under Texas' workers' compensation laws, Jones v. Roadway Express, Inc., 931 F.2d 1086, 1092 (5th Cir. 1992), it was nonremovable under 28 U.S.C. § 1445(c). See id. When urged to follow the reasoning of Cedillo v. Valcar Enterp. Darling Del. Co., 773 F. Supp. 932 (N.D. Tex. 1991) (Fitzwater, J.), and to hold that a federal district court can exercise supplemental jurisdiction over worker's compensation claims when removal is premised on the presence of a federal question, the Fifth Circuit declined. It held that "§ 1445(c) prohibits removal of state worker's compensation claims regardless of whether jurisdiction is based on diversity or federal question." Sherrod, 132 F.3d at 1118-19. The Fifth Circuit went on to hold that Judge Fitzwater "erred by failing to sever and remand the state worker's compensation claims." Id. at 1119.
This case is controlled by Sherrod. The section 451.001 claim is SEVERED and REMANDED to the 95th Judicial District Court, Dallas County, Texas.
It is so ordered.