Kundrot v. Parke-Davis Division of Warner-Lambert Co.
Kundrot v. Parke-Davis Division of Warner-Lambert Co.
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
Plaintiffs filed a complaint against the Parke-Davis Division of Warner-Lambert Company and three of its supervisory personnel in Washtenaw County Circuit Court, alleging violations of the Elliott-Larsen Civil Rights Act (ELCRA), M.C.L. § 37.2101 et seq.; and the Handicapper’s Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq. Defendants filed a petition to remove the case to this court pursuant to 28 U.S.C. § 1441, alleging that the individual defendants had been fraudulently joined in order to defeat diversity jurisdiction. Plaintiffs filed a motion to remand and impose sanctions.
Until October 1996, Plaintiffs Mary Kun-drot (Kundrot) and Kathleen Day (Day) were employees of the Parke-Davis Division of Warner-Lambert (Warner-Lambert) in Washtenaw County, Michigan. The complaint alleges, among other things, that defendant Lonia Tons Merte (Merte), Kundrot’s direct supervisor, would require “team meetings” with Kundrot and coworkers present. During those meetings, Merte would proclaim that she was either atheist or agnostic, ridicule Kundrot’s Catholic beliefs, and repeatedly suggest that Kundrot join a group named the Freedom From Religion Foundation. The “continual attack” by Merte prompted Kundrot to stop attending the meetings. Merte continued the alleged religious harassment outside of the meetings.
Sometime during these events, Day “allied” herself with Kundrot, and began complaining to Merte that the “attacks” were unfair and non-business related. In May 1996, both plaintiffs complained to defendant Christy Potterfield (Potterfield), the supervisor for Human Resources, describing Merte’s conduct. Despite the fact that Potterfield’s responsibilities included handling complaints of unlawful discrimination, Potterfield allegedly failed to take prompt remedial measures on behalf of Warner-Lambert. Consequently, plaintiffs complained to defendant John Bauke-ma (Baukema), a director of Warner-Lambert designated to handle complaints of unlawful discrimination. Baukema also allegedly failed to investigate or take prompt remedial action.
The complaint also alleges that Merte manufactured grounds on which to give both plaintiffs poor work performance reviews, despite their historical record of good reviews. The “harassing behavior” continued,
All three individual defendants, Merte, Potterfield and Baukema, are Michigan citizens, as is plaintiff Kundrot.
III. REMOVAL
Defendants filed a petition for removal based on diversity of jurisdiction pursuant to 28 U.S.C. § 1441(b), which provides in relevant part:
Any civil action of which the districts courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
Defendants do not dispute that all three individual defendants are Michigan citizens. Rather, defendants argue that these three defendants were not “properly joined.” Thus, as described in Alexander v. Electronic Data Systems Corp., 13 F.3d 940 (6th Cir. 1994), “the jurisdictional question in this case is whether” Merte, Potter-field and Baukema, “or any of them, were ‘parties in interest properly joined ... as defendants.’ ” Alexander, 13 F.3d at 947. If any one of these defendants was properly joined, complete diversity does not exist, and the case must be remanded to the Washtenaw County Circuit Court.
There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged or on the facts in view of the law.... One or the other at least would be required before it could be said that there was no real intention to get a joint judgment, and that there was no colorable ground for so claiming.
Alexander, 13 F.3d at 949 (quoting Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 176 (5th Cir. 1968).) “Therefore ‘the question is whether there is arguably a reasonable basis for predicting that the state law might impose liability on the facts involved.’ ” Id. See also Mills v. Electronic Data System Corp., 986 F.Supp. 437, 439 (E.D.Mich. 1997).
In the present case, plaintiffs allege violations of the ELCRA.
IV. CONCLUSION
For the above stated reasons, I find that removal was improper, as the individual Michigan defendants in this case were properly joined. Plaintiffs’ motion to remand to the Washtenaw County Circuit Court is granted. Plaintiffs’ request for sanctions is denied.
IT IS SO ORDERED.
. The complaint also alleges that the harassing behavior included harassment related to physical conditions suffered by plaintiffs (prompting the HCRA claim). These added allegations do not change the analysis of the removal issue, however, and need not be discussed.
. While Day now resides in Missouri, she was also apparently a Michigan resident at the time of the constructive discharge.
. As noted, the complaint also alleges a violation of the HCRA. Because I conclude that plaintiffs can sustain a colorable state law claim under the ELCRA against the individual defendants, there is no need to also consider the HCRA.
. Indeed, the complaint does not allege any actions by the corporate defendant other than those actions taken or omitted by these three individuals. To the extent that plaintiffs can sustain any claim, then, it is because at least one of these three individual defendants is responsible for creating a hostile work environment sufficient to constructively discharge plaintiffs.
. As several decisions of this Court have made clear, the ELCRA, as interpreted by Michigan courts, does allow plaintiffs to sustain an arguable claim against individual defendants on these facts. See Hall v. State Farm Ins. Co., 18 F.Supp.2d 751, 762-764 (E.D.Mich. 1998); Mills, supra, Lawrence v. Electronic Data Systems, 1994 WL 762217 (E.D.Mich. 1994); See also Ball v. Martin Marietta Magnesia Specialties, Inc., 130 F.R.D. 77 (W.D.Mich. 1990).
Reference
- Full Case Name
- Mary KUNDROT and Kathleen Day v. PARKE-DAVIS DIVISION OF WARNER-LAMBERT COMPANY, A Domestic Corporation, Lonia Tons Merte, Christy Porterfield, and John Baukema, jointly and severally
- Status
- Published