Gover v. Speedway Super America, LLC

• Decision Date: 02 December 2002
• Docket Number: No. C-3-02-77.,C-3-02-77.
• Parties: Tracey L. GOVER, Plaintiff, v. SPEEDWAY SUPER AMERICA, LLC, Defendant.
• Court: U.S. District Court — Southern District of Ohio

254 F.Supp.2d 695

Tracey L. GOVER, Plaintiff, v. SPEEDWAY SUPER AMERICA, LLC, Defendant.

No. C-3-02-77.

United States District Court, S.D. Ohio, Western Division.

December 2, 2002.

COPYRIGHT MATERIAL OMITTED

James Robert Livingston, Shipman, Dixon & Livingston Co., Troy, OH, for Plaintiff.

Diane Leslie Gentile, Audrey S. Adams, Cooper & Gentile Co., Talbott Tower, Dayton, OH, for Defedant.

DECISION AND ENTRY OVERRUING PLAINTIFF'S MOTION FOR REMAND (DOC. #6); DEFEDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. #9) SUTAINED IN PART AND OVERULED IN PART, SUBJECT TO RENEWAL AFTER THE COPLETION OF DISCOVERY ON THE ISSUE OF PRETEXT ON PLAINTIFF'S SEX AND PRENANCY DISCRIMINATION CLAIMS

RICE, Chief Judge.

The instant litigation arises out of the termination of Plaintiff Tracey L. Gover ("Gover") from her employment with Defendant Speedway Super America, LLC ("Speedway"). According to her Complaint (Doc. # 1), Plaintiff was hired by Speedway in January of 1994. Between November of 1997, and May 15, 2001, Plaintiff held the position of Store Manager at the Tipp City store. On May 13, 2001, Gover, who was six months pregnant, was contacted by Ms. Melissa Sorah, the Assistant Manager, because the main safe would not work. According to Plaintiffs affidavit, she contacted maintenance to see when they could fix the safe, but was told they could not come until the following day. Plaintiff then contacted her District Manager, Mr. Brian Brush, to receive his instructions as to what to do. She informed him that she had two safes: one in the floor and one in her office. She said that the floor safe did not have functional keys, but that she would place the money in that safe if it had a slot in the lid, because it was secure and had a security camera on it. She further stated that, if no slot existed, her only choice was to place the funds in her office safe and put on "day lock," meaning it would be only partially secure. According to Plaintiff, Mr. Brush approved of these actions. After finding no functional keys and no slot in the floor safe, Plaintiff paced the funds in her office safe. The following morning, Gover was contacted by the Miami County Sheriffs Department, which informed her that the store had been left open and unattended. The security camera revealed that a store employee had taken the money from the safe and the cashier drawer and had left. Approximately $8,181.00 in company funds was taken. On May 15, 2001, Gover was terminated for "unsecured company funds." Gover alleges that she was terminated, because she was female and pregnant. She further alleges that other employees who were involved in this incident, but were neither female nor pregnant, received a lessor punishment.

On January 23, 2002, Plaintiff initiated the instant lawsuit in the Miami County Court of Common Pleas (Doc. # 1), alleging that her termination violated Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e; the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k); the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; and Ohio Revised Code § 4112.02. On February 19, 2002, Defendant removed the action to this Court, alleging that the Court has federal question subject matter jurisdiction (Doc. # 1).

Pending before the Court are Plaintiffs Motion for Remand (Doc. # 6) and Defendant's Motion for Summary Judgment (Doc. # 9). For the reasons assigned, Plaintiffs Motion is OVERRULED, and Defendant's Motion is SUSTAINED in PART and OVERRULED in PART.

I. Plaintiff's Motion for Remand (Doc. #6)

The party seeking to litigate in federal court bears the burden of establishing the existence of federal subject matter jurisdiction. McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). This is no less true where, as here, it is the defendant, rather than the plaintiff, who seeks the federal forum. E.g., Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453-54 (6th Cir.1996). When the party asserting federal jurisdiction finds its allegations challenged, it must submit evidence substantiating its claims. Amen v. City of Dearborn, 532 F.2d 554, 560 (6th Cir.1976). The removing defendant's burden is to prove, by a preponderance of the evidence, that the jurisdictional facts it alleges are true. Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993). The district court has "wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (citations omitted). The court may consider such evidence without turning the motion into one for summary judgment. Id.

In her Motion for Remand, Plaintiff acknowledges that she has brought claims that arise under federal law. She argues, however, that her claims may be brought in state court and that she has elected to proceed in that forum. Plaintiffs argument misconstrues removal to federal court. 28 U.S.C. § 1441(a) provides, in pertinent part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Id. In other words, although a defendant is not required to remove an action to federal court, it has the right to do so, if it so desires, as long as subject matter jurisdiction exists and the defendant has complied with the procedural requirements for removal. See id.; 28 U.S.C. § 1446. Herein, Plaintiff has brought claims over which this Court has original subject matter jurisdiction, namely her federal discrimination claims. She has not argued that Defendant failed to comply with the procedural requirements of 28 U.S.C. § 1446 and, therefore, any such argument is waived. See Page v. City of Southfield, 45 F.3d 128 (6 th Cir.1995) (procedural defects in removal are waivable). Accordingly, Defendant's removal of this action to federal court was proper. Plaintiffs Motion for Remand (Doc. # 6) is OVERRULED.

II. Defendant's Motion for Summary Judgment (Doc. # 9)

A. Standard Governing Summary Judgment Motions

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, All U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)(The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law, Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 341 (6th Cir. 1994)("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., All U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in favor of...