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Whittaker v. CCIS North of Philadelphia

April 22, 2010


The opinion of the court was delivered by: Ronald L. Buckwalter, S. J.


Currently pending before the Court is the Motion of Defendant CCIS North of Philadelphia ("CCIS") to Dismiss Plaintiff's Complaint and Plaintiff Hanifa Whittaker's Response and Request for Remand. For the following reasons, the Court dismisses with prejudice Plaintiff's claim under the Family Medical Leave Act, 29 U.S.C. § 2601, et seq., and remands the remainder of the case to the Court of Common Pleas for Philadelphia County, Pennsylvania.


According to the facts set forth in the Amended Complaint, Plaintiff began employment with the Defendant on May 1, 2007, under an implied contract. (Am. Compl. ¶¶ 3, 5.) During the course of Plaintiff's employment, Defendant allegedly ignored multiple harmful work conditions that existed for an extended period of time on the premises and led to Plaintiff's illnesses. (Id. ¶ 11.) Specifically, Plaintiff claims that dirt, debris, dust, and other toxic substances fell upon her work area for multiple months. (Id. ¶ 10.) Further, Defendant created a "hostile work environment" by permitting "detrimental and unhealthy conditions exist, particularly, permitting the temperature to be either too hot or too cold, permitting rodent feces to exist in the Plaintiff's work area, and specifically not preventing tar and other toxic substances [from accumulating] in and around the Plaintiff's work station." (Id. ¶ 17.)

As a result of these various conditions, Plaintiff suffered significant respiratory conditions, including bronchitis, headaches, and sinus infections. (Id. ¶ 10.) Plaintiff gave notice of her medical conditions to her superiors and used her allotted sick days to take off from work. (Id. ¶¶ 18, 19.) Despite the fact that the employee manual permitted Plaintiff to take her earned sick days and that Plaintiff provided Defendant with the proper doctor's notes, Defendant subsequently claimed that it never received these doctors' notes. (Id. ¶¶ 8-9, 21-23.) When Plaintiff pointed to the employer's manual relating to sick leave, Plaintiff's manager, Yvonne Williams, became personally upset at Plaintiff and engaged in a vendetta to have her terminated. (Id. ¶¶ 15-16.)

On March 27, 2009, the Defendant terminated Plaintiff under the pretense of excessive absenteeism. (Id. ¶¶ 4, 6, 7.) At the time of her termination, Plaintiff still had 10.5 of personal time, 4.3 hours of sick time, and 31 hours of vacation time remaining. (Id. ¶¶ 20, 24.) As a result of this wrongful termination, Plaintiff allegedly suffered a loss of wages of approximately $800 per month. (Id. ¶ 26.) At no time did Defendant advise Plaintiff of her right to worker's compensation. (Id. ¶ 12.)

On September 16, 2009, Plaintiff filed a Complaint in the Court of Common Pleas for Philadelphia County, Pennsylvania setting forth only state law claims. In response, Defendant filed Preliminary Objections. By way of Order dated February 19, 2010, the state court sustained Defendant's Preliminary Objection for lack of sufficient specificity in the Complaint and ordered Plaintiff to file an amended version, but overruled Defendant's remaining Preliminary Objections. On February 27, 2010, Plaintiff filed her Amended Complaint. Although that document does not specifically enumerate any counts, it apparently alleges claims for violation of Pennsylvania public policy, fraud, negligence, wrongful discharge and violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. (Id. ¶¶ 4, 7, 11, 13, 14, 17, 21, 23.) She seeks damages for back pay "and other losses that relate to the fraudulent conduct that [Defendant] [has] engaged in up until the day that the Plaintiff can physically return to work." (Id. ¶ 28.) Further, Plaintiff contends that, due to the fraudulent actions of Defendant and, in particular, Yvonne Williams, Defendant is liable for counsel fees and costs. (Id. ¶ 27.) Her total claims seek an amount not in excess of $50,000. (Id. ¶ 28.)

Defendant sought removal of the litigation to federal court on March 12, 2010, on the grounds that the Amended Complaint alleged, for the first time, a federal cause of action pursuant to the FMLA. (Notice of Removal ¶¶ 6, 8.) Removal was granted under this Court's federal question jurisdiction pursuant to 28 U.S.C. § 1331.*fn1

On March 19, 2010, Defendant moved for partial dismissal of Plaintiff's Amended Complaint and Plaintiff filed her Opposition on March 31, 2010. In her responsive brief, Plaintiff also sought to withdraw her claim under the FMLA and have the case remanded to state court.


Pursuant to 28 U.S.C. § 1441(a), a defendant may remove a civil action filed in a state court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). A defendant seeking removal of an action must file a petition for removal with the district court within thirty days of plaintiff's service of the complaint upon defendant. See 28 U.S.C. § 1446(b). "The defendants bear the burden of establishing removal jurisdiction and compliance with all pertinent procedural requirements." Winnick v. Pratt, No. CIV.A.03-1612, 2003 WL 21204467, at *1 (E.D. Pa. May 20, 2003) (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).

Once an action is removed, a plaintiff may challenge removal by moving to remand the case back to state court. Cook v. Soft Sheen Carson, Inc., No. CIV.A.08-1542, 2008 WL 4606305, at *1 (D.N.J. Oct. 15, 2008). In reviewing such a motion, the Court must determine whether removal was proper at the time of the petition for removal. Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985). Remand to the state court is appropriate for: "(1) lack of district court subject matter jurisdiction or (2) a defect in the removal process." PAS v. Travelers Ins. Co., 7 F.3d 329, 352 (3d Cir. 1993). Remand is mandatory and can occur at any time during the litigation if the court determines that it lacks federal subject matter jurisdiction. Kimmel v. DeGasperi, No. CIV.A.00-143, 2000 WL 420639, at *1 (E.D. Pa. Apr. 7, 2000) (citing 28 U.S.C. § 1447(c)).

In this case, Plaintiff does not challenge either the procedural validity of Defendant's removal or the presence of this Court's subject-matter jurisdiction. Rather, she contends only that because she wishes to withdraw her sole federal claim under the FMLA, this Court should decline to exercise supplemental jurisdiction over the remaining state claims.*fn2 Pursuant to prevailing Supreme Court jurisprudence on the subject, this Court agrees.

Under 28 U.S.C. § 1367(c), "[t]he district court may decline to exercise supplemental jurisdiction over a [state law] claim... if... the district court has dismissed all claims over which it has original jurisdiction." Id. Where a case has been removed from state court to federal court on the basis of federal question jurisdiction, the United States Supreme Court has recognized that a district court retains the discretion to remand that matter back to state court when all federal law claims have been dropped or dismissed from the action and only pendant state law claims remain. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 357 (1988). In such circumstances, "a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in [federal] court involving pendent state-law claims." Id. at 350. Moreover, the Supreme Court held that the possibility of a plaintiff engaging in "manipulative tactics" of forum-shopping simply by deleting federal claims did not warrant denying the district court the ...

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