Albert v. Smith's Food & Drug Centers, Inc.

• Decision Date: 29 January 2004
• Docket Number: No. 02-2052.,02-2052.
• Citation: 356 F.3d 1242
• Parties: Victoria ALBERT, Plaintiff-Appellant, v. SMITH'S FOOD & DRUG CENTERS, INC.; Dallon Clarkson; Kevin Slowey, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

356 F.3d 1242

Victoria ALBERT, Plaintiff-Appellant, v. SMITH'S FOOD & DRUG CENTERS, INC.; Dallon Clarkson; Kevin Slowey, Defendants-Appellees.

No. 02-2052.

United States Court of Appeals, Tenth Circuit.

January 29, 2004.

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J. Douglas Foster (Kerri L. Peck with him on the briefs), Foster, Johnson, McDonald, Lucero, Koinis, LLP, Albuquerque, NM, for Plaintiff-Appellant.

Edward Ricco (Thomas L. Stahl, Jeffrey L. Lowry, with him on the brief), Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendants-Appellees.

Before BRISCOE, McKAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Plaintiff Victoria Albert filed this suit against her former employer, Smith's Food & Drug Centers, Inc. ("Smith's"), and individual defendants, Dallon Clarkson and Kevin Slowey. Albert alleged that Smith's failed to reasonably accommodate her asthmatic condition, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"), and the New Mexico Human Rights Act, N.M. Stat. Ann. § 28-1-7 (1978) ("NMHRA"). Albert also alleged state law interference with contract claims against Clarkson and Slowey. The district court granted summary judgment in favor of Smith's on the ADA and NMHRA claims and dismissed the state claims against Clarkson and Slowey after concluding they had been fraudulently joined to destroy diversity. Albert appeals.

This court has jurisdiction under 28 U.S.C. § 1291. We reverse the district court's grant of summary judgment on the ADA claim, and affirm the district court's rulings on the NMHRA claim and on Albert's failure to mitigate her damages. We remand with instructions for the district court to vacate the order dismissing the claims against Clarkson and Slowey and alter the dismissal of Clarkson and Slowey to dismissal without prejudice. Finally, we deny Albert's requests for certification to the New Mexico Supreme Court.

II. BACKGROUND

Since early childhood, Albert's asthma has limited her activities. She has been instructed by her doctors to avoid crowds, cigarette smoke, people wearing perfume, and outdoor activities. She must avoid being active at night, remain indoors during windy conditions, and cannot be in enclosed spaces with cleaning agents. In addition, a large variety of materials can trigger an asthma attack for Albert and such an episode renders her completely unable to function. Albert uses a variety of medications in an attempt to control her symptoms, but she alleges that even with these medications she experiences symptoms most of the time.

Albert worked for Smith's in various positions for approximately fourteen years. Albert became concerned that her asthma was getting worse because of her exposure to numerous aggravating substances as a result of her work as a cashier. As a consequence, she began to seek other jobs in the company that she felt would limit her exposure to triggering substances. Although Albert applied for other positions, other applicants were chosen to fill them.

In August 1999, Albert had a severe asthma attack while at work. Albert took a medical leave of absence until October 14, 1999, when she was authorized by her health care provider to return to work with certain restrictions. Albert gave a note from her health care provider to Slowey, her supervisor, informing Smith's that she should avoid exposure to certain substances and should avoid cashiering. While on leave of absence, Albert contacted Slowey to ask if any scanner or receiver positions were available.

Upon her return to Smith's, Ms. Albert was assigned to the customer service booth for three weeks. On November 1, 1999, Albert was informed that there were no more hours available for her in the customer service booth. Clarkson, another of Albert's supervisors, informed Albert that if her health care provider would authorize her return to the cashier position, she could have her job back. Albert claims she contacted the health care provider, but the provider would not give Albert that authorization. Albert stopped working in the customer service booth on November 5, 1999. After November 5, 1999, Albert did not apply for any positions in any Smith's store, nor did she contact the Smith's where she had worked. On November 15, Albert filed for unemployment compensation.

On November 18, Albert filed a charge of discrimination against Smith's with the EEOC. On December 17, 1999, Smith's responded to the charge, stating that Albert had been "voluntarily off work" since November 1999. In addition, Smith's stated that Albert had been informed she could be placed in a receiver or scanner position if one opened, but no such position had become available since November. It was later shown that a position had in fact become available on December 10, 1999, and that other similar positions opened up around the same time. A computer report from Smith's lists Albert's termination date as April 10, 2000.

Albert filed a complaint in state court alleging state law claims against Smith's. While the litigation proceeded, the parties began negotiations in an attempt to settle the case. Smith's offered Albert reinstatement to a position that would accommodate her disabilities. Smith's stated Albert would receive higher pay and the same seniority she had in the previous position. In addition, Albert was free to accept the offer and continue to pursue her lawsuit against the company. Smith's made the offer on July 18, 2001 and it was set to expire on July 24. Albert asked for additional time to consider the offer and Smith's extended the deadline to July 25. Albert did not accept the offer on July 25. During a settlement conference on July 26, Albert stated that she would accept the reinstatement offer, but Smith's refused to reinstate Albert unless she dropped her lawsuit.

While the settlement negotiations proceeded, the parties also filed several motions. In her original complaint, Albert made a claim under NMHRA for discrimination based on her disability. In her second amended complaint, Albert included claims against Clarkson and Slowey. Both Clarkson and Slowey are residents of New Mexico, as is Albert. Smith's removed the action to federal district court and asserted that Clarkson and Slowey had been fraudulently joined to defeat diversity. Albert filed a motion to remand the matter to state court. The district court denied the motion and dismissed Clarkson and Slowey from the suit.

Smith's then filed a motion for summary judgment on the NMHRA claim. Smith's also moved for summary judgment on Albert's state claims for front pay and back pay arguing Albert had failed to mitigate her damages. Before the district court ruled on the motion, Albert filed a third amended complaint adding claims under the ADA. The district court then granted summary judgment on the NMHRA claim and concluded that Albert had failed to mitigate her damages by failing to accept an offer of reinstatement. Smith's filed a motion for summary judgment on the ADA claim, the district court granted it, and Albert filed this appeal.

III. DISCUSSION

A. The claims against Clarkson and Slowey

Albert argues the district court erred when it dismissed the claims against Clarkson and Slowey. Albert's argument raises two issues. First, because the district court's analysis of the claims against Clarkson and Slowey was in the context of Albert's motion to remand the case to state court, Albert's argument is necessarily an attack on the district court's fraudulent joinder analysis. As discussed below, this court need not address whether the district court's denial of the motion to remand was proper because an alternative basis for federal jurisdiction existed at the time the district court rendered judgment. Second, Albert's arguments also attack the district court's decision to dismiss her claims against Clarkson and Slowey on the merits. Because the district court's dismissal of these claims took place in the context of a fraudulent joinder analysis, a jurisdictional inquiry, we conclude that the district court should not have dismissed the claims with prejudice.

1. Denial of the motion to remand

"This court has jurisdiction over a denial of a motion to remand to state court when coupled with the appeal of a final judgment." Huffman v. Saul Holdings Ltd. P'ship, 194 F.3d 1072, 1076 (10th Cir.1999)(quotation omitted). Albert argues that the district court's fraudulent joinder analysis is flawed because the court failed to resolve whether she could state a claim for interference with prospective contractual relations between herself and Smith's. Even assuming that Albert is correct, however, this court will not reverse the district court's denial of the motion to remand. Indeed, a remand to a state court would be improper because the district court thereafter had federal question jurisdiction by virtue of the ADA claim.

In Caterpillar Inc. v. Lewis, the Supreme Court discussed the impact of jurisdictional defects at the time of removal on the subject matter jurisdiction of the trial court. 519 U.S. 61, 64, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). In that case, although the suit was removed on the basis of diversity jurisdiction, at the time of removal there was not complete diversity among the parties. Id. at 67, 117 S.Ct. 467. By the time final judgment was rendered, however, the jurisdictional defect had been cured. Id. The Supreme Court held that remanding the case to state court after final judgment would "impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted administration of justice." Id. at 77, 117 S.Ct. 467.

Were this court to conclude that the district court's decision on the merits of Albert's claims should be affirmed, the holding in Caterpillar would obviate the need to address any attack on the denial of the motion to remand. As discussed below, however, we have concluded that the...