Cedillo v. Valcar Enterprises

• Decision Date: 01 October 1991
• Docket Number: Civ. A. No. CA3-91-1645-D.
• Citation: 773 F. Supp. 932
• Parties: Agripin CEDILLO, Plaintiff, v. VALCAR ENTERPRISES & DARLING DELAWARE COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Texas

773 F. Supp. 932

Agripin CEDILLO, Plaintiff, v. VALCAR ENTERPRISES & DARLING DELAWARE COMPANY, INC., Defendant.

Civ. A. No. CA3-91-1645-D.

United States District Court, N.D. Texas, Dallas Division.

October 1, 1991.

John E. Wall, Jr. of Dallas, Tex., for plaintiff.

Laura M. Franze and D. Michelle McCullough of Gardere & Wynne, Dallas, Tex., for defendant.

FITZWATER, District Judge:

Plaintiff's motion to remand presents the questions whether a workers' compensation retaliation action made nonremovable by 28 U.S.C. § 1445(c) becomes removable when pendent to a federal question claim and whether the court should exercise supplemental jurisdiction over the retaliation claim.

I

Plaintiff Agripin Cedillo ("Cedillo") sued defendant Valcar Enterprises & Darling Delaware Company, Inc. ("Valcar") on March 19, 1990 in Texas state court for violating the Texas Commission on Human Rights Act ("TCHRA"), Tex.Rev.Civ.Stat. Ann. art. 5221k, § 1.01 et seq. (West 1987 & Supp.1991), contending Valcar discriminated against him on the basis of age and/or handicap by terminating him, discriminating against him in the terms, conditions, and privileges of his employment, and retaliating against him. See Orig.Pet. ¶¶ IV-V. Cedillo alleged Valcar violated Tex.Rev.Civ.Stat.Ann. art. 8307c (West Pamp.Supp.1991), by discharging him in retaliation for prosecuting a workers' compensation claim. Orig.Pet. ¶ VII. In June 1991 plaintiff filed a first amended petition alleging Valcar discriminated against him in violation of the TCHRA on account of age and national origin/creed by terminating him, discriminating against him in the terms, conditions, and privileges of his employment, and retaliating against him. See 1st Am.Pet. ¶¶ 4-5. The national origin/creed component was later withdrawn by agreement of the parties. The first amended petition retained the article 8307c workers' compensation retaliation claim. See id. ¶ 7. On August 9, 1991 Cedillo filed a second amended original petition in state court. This amended petition alleged discrimination on account of "age and compensation proceedings." See 2nd Am.Pet. ¶ 5. The pleading once again claimed Valcar had violated article 8307c. See id. ¶ 7. It also added for the first time a claim for relief pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. See 2nd Am.Pet. ¶ 4.

Within 30 days of the date Cedillo filed his second amended petition, Valcar removed the action to this court on the basis of federal question jurisdiction. Valcar asks the court to exercise pendent jurisdiction over plaintiff's state law claims. Cedillo moves to remand the case, contending Valcar's removal was untimely and is precluded by 28 U.S.C. § 1445(c).

II

The court turns first to the timeliness issue. Cedillo urges the court that removal is tardy because his original petition presented the federal age discrimination claim. He points to TCHRA § 1.02(1), which states that one purpose of the Act is to provide for the execution of the policies in 29 U.S.C. § 633. He therefore reasons the case was removable from its inception because a federal age discrimination question was always involved. When Valcar failed timely to remove the case in relation to the original petition, Cedillo contends, it lost its removal right. The court disagrees.

The well-pleaded complaint rule governs the apposite removability analysis. "The rule provides that the plaintiff's properly pleaded complaint governs the jurisdictional determination, and if, on its face, such a complaint contains no issue of federal law, then there is no federal question jurisdiction." Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1160-61 (5th Cir.1989) (citing cases), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990). Cedillo's original petition did not state an ADEA claim. It purported only to obtain relief for age discrimination on the basis of the TCHRA. See Orig.Pet. ¶¶ III-V and VIII(a) and (b). Plaintiff's first amended petition was similarly cast. See 1st Am.Pet. ¶¶ 3-5 and 8(a) and (b). And Cedillo's age discrimination claim was not a necessarily federal cause of action phrased in state law terms, such that this court will look beyond the letter of the petition to the substance of the claim. Cf. Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1254 (5th Cir.1990) (where common law claims in state court complaint necessarily were federal in character because essence was that defendant violated ERISA, federal question was presented and case was removable). An age discrimination claim is not exclusively federal. That Cedillo could have, but did not, allege the ADEA in his original and first amended petitions is not controlling. He was the master of his complaint and was entitled to avoid federal court by the claims he chose to prosecute. See The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411-12, 57 L.Ed. 716 (1913); Aaron, 876 F.2d at 1161 n. 7; see also 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3722 at 275-76 (1985) (where there is a choice between federal and state remedies, federal courts will not ignore plaintiff's choice of state law as basis for action).

Accordingly, the court agrees with Valcar that the federal question on which it predicates removal jurisdiction did not enter the case until August 9, 1991. Valcar timely removed within 30 days thereafter.

III

Cedillo next urges that 28 U.S.C. § 1445(c)¹ precludes removal because his case involves a retaliation claim brought pursuant to article 8307c.² Valcar argues this court may hear Cedillo's retaliation claim pursuant to principles of pendent jurisdiction, because the ADEA claim presents a removable federal question and "Plaintiff's claims all arise from a common nucleus of fact — the termination of his employment from Valcar." D.Br. at 3.³

A

Valcar relies for its pendent jurisdiction argument principally upon Nabors v. City of Arlington, Tex., 688 F.Supp. 1165 (E.D.Tex.1988). Nabors essentially analyzed the removability question in terms of § 1441(b)⁴ and pendent jurisdiction. A plaintiff discharged by the defendants sued for relief pursuant to 42 U.S.C. § 1983 for federal constitutional violations. The plaintiff also brought state claims for breach of contract and retaliatory discharge in violation of article 8307c. 688 F.Supp. at 1166. The defendants removed the action and the plaintiff moved to remand. The Nabors court held § 1441(c) was unavailable to the removing defendants because the plaintiff's claims were not separate and independent. Id. at 1167. The court then concluded that § 1441(b) made the plaintiff's § 1983 action removable. See id. at 1169.⁵ Because the federal claim was removable, the Nabors court determined whether the retaliation action could be removed as a pendent claim. The dispositive issue in determining removability was whether § 1445(c) precluded removal. The court held the statute did not because the animating policy for enactment of § 1445(c) — to restrict removal of diversity cases — was not implicated. The court also apparently held article 8307c was not within the reach of § 1445(c). Id. at 1169-70.⁶ The court was therefore free to exercise pendent jurisdiction over the retaliation claim.

The court in Fernandez v. Reynolds Metals Co., 384 F.Supp. 1281, 1283 (S.D.Tex.1974), suggested a different result. In dictum the court stated the entire case could not be removed, even if the plaintiff's state court petition presented claims in addition to the retaliation action.⁷

As a district court bound by Fifth Circuit precedent, this court first turns to decisions of the circuit court to ascertain whether they command the outcome in this case. No opinion expressly decides the issue, but a recent case can be read to favor removability when an article 8307c retaliation claim is within the district court's pendent jurisdiction.

In Jones v. Roadway Express, Inc., 931 F.2d 1086, reh'g denied, 936 F.2d 789 (5th Cir.1991), a plaintiff sued for retaliatory discharge and (apparently) for relief pursuant to a collective bargaining agreement. 931 F.2d at 1087. The defendant removed to federal court on the basis of diversity of citizenship and federal question jurisdiction. Id. The defendant contended the plaintiff's claims were preempted by the Labor Management Relations Act. Id. The plaintiff moved to remand and the district court denied the motion. Id. The plaintiff then amended his complaint to assert only an article 8307c claim. Id. at 1088. The district court granted summary judgment against the plaintiff, who then appealed. Id.

The Fifth Circuit held the plaintiff's claim was neither precluded by state law nor preempted by federal law. Id. at 1089-90. This left only the state law workers' compensation retaliation claim. After deciding the plaintiff's retaliation claim fell within the proscription of § 1445(c), the court said "our holding requires that this case be remanded to state court." Id. at 1092.

The circuit court's decision to order a remand to state court was presented as an issue on rehearing. In his opinion for the court, Judge Wiener explained that the panel had "instructed the district court to vacate its judgment and remand the case to state court because only a state-law claim remained and because Congress had declared its intent that workers' compensation suits should be resolved in state court whenever possible." 936 F.2d at 792. He emphasized that the dispositive issue was whether to remand the case to state court when only a state law claim remained. Id. The opinion suggests the retaliation claim was properly removed and could have been retained — as a matter of discretion — pursuant to the court's pendent jurisdiction. See id. The court ordered the remand not of necessity, but in deference to Congressional intent:

Congress clearly intended that state courts should resolve workers' compensation suits. Though Congress

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