Farrior v. Sodexho, U.S.A.
| Decision Date | 07 February 1997 |
| Docket Number | Civil Action No. 96-G-3127-S. |
| Citation | 953 F.Supp. 1301 |
| Parties | Willie Ruth FARRIOR, Plaintiff, v. SODEXHO, U.S.A., d/b/a Morrison's Cafeteria, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Lawrence T. King, Todd Anthony Delcambre, Dillard, Goozee & King, Birmingham, Alabama, for plaintiff.
Crawford S. McGivaren, Jr., Joseph V. Musso, Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Alabama, Paul F. Beckwith, Harry Leo Manion, Cooley, Manion, Moore & Jones, Boston, Massachusetts, for defendant.
The cause presently before the court was filed in the Tenth Judicial Circuit of Alabama by Willie Ruth Farrior who had been injured on the job as a food server. Plaintiff charges retaliatory termination from her employment by defendants as a direct result of her having requested treatment for her injury — a termination violative of Alabama Code § 25-5-11.1 (1986) which reads as follows:
§ 25-5-11.1. Employee not to be terminated solely for action to recover benefits. ...
No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter....
The above section was enacted as part of Acts 1984, 2nd Ex.Sess., No. 85-41, p. 44, § 11,1 an act which begins with the following words: "To amend various sections of Chapter 5, Title 25, Code of Alabama 1973, which relate to workman's compensation in Alabama,"2 followed by a lengthy recitation of its contents. The text itself is lengthy, too, but deals with nothing but workers' compensation. The wording of the act and the codification of the act clearly show the legislature intended the act to be an amendment to the Workers' Compensation Act. Section 25-5-11.1 amends the compensation act by prohibiting retaliatory discharge for filing a workers' compensation claim, a useful, perhaps absolutely necessary, enforcement provision.
Section 13 of Act No. 85-41 further states: "The provisions of this act are expressly declared not to be severable (emphasis added)." Art. IV, § 45 of the Constitution of Alabama reads: "Each law shall contain but one subject, which shall be clearly expressed in its title." See Opinion of the Justices, 294 Ala. 571, 319 So.2d 699, 702 (1975), which quotes Yeilding v. State ex rel. Wilkinson, 232 Ala. 292, 167 So. 580 (1936). "A statute has but one subject, no matter how many different matters it relates to, if they are all cognate, and but different branches of the same subject." 232 Ala. at 296, 167 So. at 583. Act No. 85-41 deals with one subject: workers' compensation, including an enforcement regulation, § 25-5-11.1.
Act No. 85-41 has a single subject because even a casual reading discloses that everything in it has to do with workers' compensation. The courts must find a single subject in order to deem the act constitutional under the Alabama Constitution. That single subject is easily found merely by reading the act, as aforesaid.
As additional evidence that the legislature understood § 11 of the act to be on the same subject as the rest of the act, we see in § 13 a statement by the legislature that the act is not severable. This is a highly unusual provision. Acts almost routinely include severability clauses. A non-severability clause is almost unheard of and constitutes a legislative finding that every section is so important to the single subject that no part of the act can be removed without destruction of the legislative purpose. This creates an inference so strong that it amounts to a loud legislative declaration that § 11 is a part of the Workers' Compensation Act, Act No. 85-41.
Having established that § 25-5-11.1 is a part of the Workers' Compensation Act the court turns to 28 U.S.C. § 1445(c), which follows, to see if the instant action was properly removed:
A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.
The court holds that pursuant to 28 U.S.C. § 1445(c) the above-styled action was improvidently removed to this court because § 25-5-11.1 is part of an act which amended the Workers' Compensation Act and is therefore part of the Workers' Compensation Act. The claim sued on necessarily, therefore, arose under the Workers' Compensation Act, as amended.
Not only is the court of the opinion that this cause has been improvidently removed for the reasons stated, the court adopts the reasoning and language of the June 25, 1996, order and memorandum opinion of Judge C. Lynwood Smith, Jr. in Burton v. Heilig-Meyers Furniture Company, Inc., Civil Action No. 96-S-1219-NE. A copy of Judge Smith's order and opinion are attached hereto and made a part of this opinion.
The court hereby GRANTS the motion of plaintiff to remand the above-styled cause to the Tenth Judicial Circuit of Alabama. An order consistent with this opinion is being entered contemporaneously herewith.
ATTACHMENT
IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ALABAMA NORTHEASTERN
DIVISION
Dennis L. Burton, Plaintiff
vs
Heilig-Meyers Furniture Company
Inc., Defendant
Civil Action No. CV96-S-1219-NE.
June 25, 1996.
Plaintiff commenced this action by filing a complaint in the Circuit Court of Jackson County, Alabama, alleging that defendant retaliated against him for filing a workers' compensation claim. On May 9, 1996, defendant filed a notice of removal to this court. Plaintiff now moves to remand, asserting that removal is improvident pursuant to 28 U.S.C. § 1445(c), which states:
A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States.
In accordance with the memorandum of opinion entered contemporaneously herewith in the similar, but unrelated, case of James W. Roberts v. Beaulieu of America, 950 F.Supp. 1509 (N.D.Ala.1996) CV-95-S-2782-NE (a copy of which is attached hereto), it is ORDERED that this case be, and the same hereby is, REMANDED to the Circuit Court of Jackson County, Alabama. The clerk is DIRECTED to take all steps necessary to effect this order. Costs are taxed to the parties who or which incurred them.
/s/ Lynwood Smith
C. LYNWOOD SMITH, JR
United States District Judge
IN THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ALABAMA NORTHEASTERN
DIVISION
James W. Roberts, Jr., Plaintiff
vs.
Beaulieu of America, Inc., Defendant.
Civil Action No. CV-95-S-2782-NE.
June 25, 1996.
MEMORANDUM OF OPINION
This action was commenced in the Circuit Court of Jackson County, Alabama. Plaintiff alleges that, while employed by defendant, he was injured on the job, filed a claim for workers' compensation benefits, and thereafter was wrongfully terminated in violation of Alabama Code § 25-5-11.1 (1992). That statute provides:
No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11. [Emphasis supplied.]
Plaintiff demands judgment "in an amount for compensatory and punitive damages as the jury may deem just and appropriate, plus costs." (Complaint p. 2.) Service of process was perfected on September 29, 1995, and defendant removed the action to this court on October 27th, within the time allowed by 28 U.S.C. §§ 1441, 1446, premising jurisdiction on 28 U.S.C. § 1332, based upon the parties' diversity of citizenship.1
Plaintiff moved to remand on November 13, 1995, contending that retaliatory discharge claims "arise under Alabama's worker's compensation laws" and, accordingly, are not removable to federal court pursuant to 28 U.S.C. § 1445(c), which provides:
(c) A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States. [Emphasis supplied.]
That motion was denied by United States District Judge Robert B. Propst on December 20, 1995, for reasons stated in a memorandum opinion entered in a similar, but unrelated case: Moreland v. Gold Kist, Inc., 908 F.Supp. 898 (N.D.Ala.1995).2 Thereafter, the action was reassigned to the undersigned judge, and, plaintiff filed a motion to reconsider the motion to remand.
Upon full consideration of the pleadings, briefs, oral arguments of counsel, and independent research, this Judge deferentially disagrees with his more senior and respected colleague, and concludes this action should be remanded to state court.
The remedy created by Alabama Code § 25-5-11.1 is essential to the efficacy of Alabama's statutory worker's compensation scheme and, therefore, retaliatory discharge claims based on that statute "aris[e] under the workmen's compensation laws of such State [and] may not be removed to any district court of the United States." 28 U.S.C. § 1445(c). Further, because state courts neither have cause nor authority to address this issue, state court opinions may not contradict that conclusion. See Subra v. CMS Therapies, Inc., 900 F.Supp 407 (M.D.Ala.1995) (Albritton, J.); see also Pettaway v. Wayne Poultry Company, 791 F.Supp. 290 (M.D.Ala.1992) (Albritton, J.).
With its basic decision thus expressed, this court — being keenly aware of the diversity of opinions on this issue among the circuits, and even among the judges of the Northern District of Alabama3 — feels compelled to explain the reasoning which leads to the conclusion reached today.
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...to the single subject that no part of the act can be removed without destruction of the legislative purpose." Farrior v. Sodexho, U.S.A., 953 F.Supp. 1301, 1302 (N.D.Ala.1997).19 Our research indicates that only a few courts have addressed the issue of non-severability provisions. A majorit......
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