Gafford v. General Elec. Co.

Decision Date18 June 1993
Docket NumberNo. 91-6482,91-6482
Citation997 F.2d 150
Parties62 Fair Empl.Prac.Cas. (BNA) 205, 62 Empl. Prac. Dec. P 42,451 Carol L. Kirchner GAFFORD, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Edwin F. Kagin (argued and briefed), Covington, KY, for plaintiff-appellant.

Edwin S. Hopson (argued and briefed), Holly Thacker, Wyatt, Tarrant & Combs, Earl F. Jones, General Elec. Co., Louisville, KY, for defendant-appellee.

Before: JONES and RYAN, Circuit Judges; and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Plaintiff-Appellant Carol L. Kirchner Gafford appeals the unfavorable disposition of her sex discrimination suit on a veritable plethora of multifarious grounds. We find no merit in Gafford's contentions and thus affirm.


Gafford graduated from high school in 1951. In November 1952, she began working for the General Electric Company ("GE") in Louisville, Kentucky, as a general clerk in its maintenance office. In the years that followed, she worked in various GE offices at various secretarial/receptionist jobs. She left GE on two different occasions, once from February 1958 to May 1959, and once from August 1969 to March 1971. While employed at GE, she took courses in advanced typing, shorthand, and English.

In April 1973, she began working for GE's Meetings and Conventions Operation as a "Grade 8" Secretary to Hal Kendle, Manager of the Meetings and Conventions Operation. Through time, her responsibilities increased. Her compensation and title increased accordingly. In September 1973, she was raised to a "Grade 9" Clerk; in November 1979, she became a "Grade 11" Coordinator.

In December 1985, Kendle retired. Upon his retirement, Tom Elgar, Manager of Sales Support and Administration, took over from Bill Clark, Manager of Sales, Training and Development, the responsibility for overall supervision of the Meetings and Conventions Operation. Clark had been Kendle's immediate supervisor. Kendle's position was not filled immediately. On December 1, 1986, responsibility for the Meetings and Conventions Operation was split between Clark, who resumed authority over certain aspects of the Meetings and Conventions Operation, and Elgar. Gafford asserts that, after Kendle's retirement, she assumed Kendle's duties and responsibilities, but not his title and salary.

In addition to this allegedly discriminatory act, Gafford was allegedly discriminatorily passed over for the job of Meeting Planner in the Meetings and Conventions Operation. In October 1986, a Meeting Planner died unexpectedly. Gafford filled out self-nomination papers for the position. She anticipated that the job vacancy might be posted while she was on vacation, so she gave the papers to a friend to submit upon posting. When she returned from her vacation, she was told that the job had not been posted. The job had, however, been given to Joe Schoettmer.

Gafford claims that Schoettmer was a "misfit and an underachiever." Gafford's Br. at 3. GE's description of Schoettmer is a bit more generous. Schoettmer had been employed by GE since 1951. During that time, he had acquired extensive hands-on experience as a meeting planner, and had received excellent performance ratings for relevant work experience. In October 1986, he was looking to transfer within the organization due to a change in the focus of his job description. Clark caught wind of this, and Schoettmer got the Meeting Planner job without any posting of a job vacancy. All those who played a role in the Schoettmer transfer claimed that they had not known Gafford was interested in the job.

Gafford's physical health and emotional well-being allegedly deteriorated as a result of being allegedly discriminatorily passed over for the Manager and Meeting Planner positions. She made no application for any other position at GE. She applied for early retirement in July 1988, indicating that she preferred to retire effective November 1, 1988.

In October 1988, GE decided to hire a new Manager of the Meetings and Conventions Operation. They chose Bill Fochtman, a GE employee with thirty years of experience, who was losing his former position due to corporate reorganization. In his various previous positions with GE, Fochtman had accumulated about sixteen years of actual meeting planning experience. At Fochtman's request, Gafford stayed on through December 16, 1988.


On September 27, 1989, Gafford sued GE in the Jefferson Circuit Court of the Commonwealth of Kentucky. Her claims arose under Kentucky's civil rights statute, specifically Kentucky Revised Statutes Annotated § 344.040 (Baldwin 1986). Her basic contention was that she did not get the Manager position or the Meeting Planner position because of her gender. She sought an unspecified amount of damages to compensate her for lost wages and retirement benefits, for mental and emotional anxiety and stress, and for court costs and attorney fees.

On October 18, 1989, GE filed a petition for removal in the United States District Court for the Western District of Kentucky based on diversity of citizenship. Gafford filed a response on October 24, 1989, and moved to remand the case due to lack of diversity and because GE did not post a removal bond. Gafford's motion to remand was denied in a memorandum opinion and order entered on January 17, 1990.

Gafford subsequently amended her complaint to allege claims of wrongful discharge, constructive discharge, and intentional infliction of emotional distress. On September 2, 1991, the district court granted partial summary judgment in favor of GE on the three new claims brought forth in Gafford's amended complaint. Gafford then moved to amend her amended complaint. This motion was denied on September 24, 1991.

Shortly before trial, Gafford filed two more motions to remand, challenging the existence of complete diversity and also arguing that the amount in controversy did not exceed $50,000. After a hearing, the district court concluded that it had jurisdiction to hear the case.

A jury trial began on September 26, 1991. When Gafford rested her case, the district court dismissed her sex discrimination claim regarding the Manager position. The issue of whether GE discriminated against Gafford on account of her gender in transferring Schoettmer to fill the Meeting Planner position was eventually submitted to the jury. The jury returned a verdict in favor of GE.

Gafford filed a motion for a new trial which was denied on November 27, 1991. She timely appealed.


Gafford first contests subject matter jurisdiction. The existence of subject matter jurisdiction generally is a question of law, subject to de novo review. Greater Detroit Resource Recovery Auth. v. United States Envtl. Protection Agency, 916 F.2d 317, 319 (6th Cir.1990); see also Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). We review a district court's factual determinations regarding jurisdictional issues for clear error. See Kruso, 872 F.2d at 1421; Blakemore v. Missouri Pac. R.R., 789 F.2d 616, 618 (8th Cir.1986); see also Texas Acorn v. Texas Area 5 Health Sys. Agency, Inc., 559 F.2d 1019, 1024 (5th Cir.1977); Siegerist v. Blaw-Knox Co., 414 F.2d 375, 381 (8th Cir.1969); cf. Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).

In removing this case, GE asserted federal subject matter jurisdiction on the basis of diversity of citizenship and satisfaction of the amount-in-controversy requirement. Generally, a civil case brought in state court may be removed by a defendant to federal court if it could have been brought there originally. 28 U.S.C. § 1441(a) (1988). A federal district court has original jurisdiction over, inter alia, any civil action "where the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs, and is between--(1) citizens of different States." 28 U.S.C. § 1332(a) (1988). A defendant desiring to remove a case has the burden of proving the diversity jurisdiction requirements. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir.1989); Cole v. Great Atl. & Pac. Tea Co., 728 F.Supp. 1305, 1307 (E.D.Ky.1990); see also Yeldell v. Tutt, 913 F.2d 533, 537 (8th Cir.1990). Gafford contends that GE did not meet its burden of proving satisfaction of the amount-in-controversy requirement because it did not prove to a legal certainty 1 that the amount in controversy met the federal requirement. Whether this or some other burden of proof is to be applied in situations such as this is a subject of much controversy. 2


The starting point for resolving the controversy is St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In that case, the Supreme Court considered whether a removed case could be remanded where the damages alleged in the original state court complaint were greater than the amount-in-controversy requirement for federal jurisdiction, but where the post-removal amended complaint listed a schedule of damages totalling less than the amount-in-controversy requirement and the damages awarded after a bench trial were also less than the amount-in-controversy requirement. The Court wrote:

The intent of Congress drastically to restrict federal jurisdiction in controversies between citizens of different states has always been rigorously enforced by the courts. The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim...

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