Sherrod v. American Airlines, Inc.

• Decision Date: 27 January 1998
• Docket Number: No. 97-10011,97-10011
• Parties: , 7 A.D. Cases 1298, 11 NDLR P 311 Rebecca SHERROD, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1112

132 F.3d 1112

39 Fed.R.Serv.3d 1456, 7 A.D. Cases 1298,

11 NDLR P 311

Rebecca SHERROD, Plaintiff-Appellant, v. AMERICAN AIRLINES, INC., Defendant-Appellee.

No. 97-10011.

United States Court of Appeals, Fifth Circuit.

Jan. 27, 1998.

Ben A. Goff, Dallas, TX, for Plaintiff-Appellant.

Thomas L. Case, Douglas Clark Bracken, Dallas, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and BENAVIDES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

In this employment discrimination case which originated in state court, the plaintiff-appellant, Rebecca Sherrod, filed suit against the defendant-appellee, American Airlines, Inc., under the Texas Worker's Compensation Act, Texas Labor Code Ann. § 451.001 et seq. (Vernon 1996); the Texas Commission on Human Rights Act ("TCHRA"), Texas Labor Code Ann. § 21.001 et seq. (Vernon 1996); and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. After removal to the United States District Court for the Northern District of Texas on the basis of federal question jurisdiction, the plaintiff added claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. The plaintiff appeals the order of the district court granting summary judgment for the defendant on all plaintiff's claims. We affirm in part and reverse in part.

I.

Plaintiff, Rebecca Sherrod, worked as a flight attendant for Defendant, American Airlines, Inc., from 1968 to 1988. In November 1985, Sherrod received an on-the-job injury to her neck which required surgery. Sherrod returned to work in 1986, but re-injured her neck in December 1987 while working as a flight attendant. The second injury required surgery to correct the cervical fusion attempted in the first surgery. American Airlines placed Sherrod on sick leave for a term of five years pursuant to the Collective Bargaining Agreement ("CBA") entered into by American and the Association of Professional Flight Attendants. Sherrod, however, never returned to work.

In December 1990, Sherrod sought reinstatement as a flight attendant. Dr. Norman McCall, a member of American's medical department, recommended that Sherrod not return to flight status. Dr. McCall based his recommendation on an examination conducted by Dr. Tom Mayer which found that Sherrod could only lift 45 pounds occasionally, and 25 pounds frequently. Consequently, American medically disqualified Sherrod from returning to a flight attendant position. Sherrod's personal physician, Dr. Phillip Williams, concurred with Dr. Mayer's lifting limitation. Once Sherrod's personal physician concurred with American's medical staff, the CBA permitted Sherrod's removal from the list of active flight attendants.

Sherrod filed a grievance against American for medically disqualifying her from flight service. In arbitration, the arbitrator found that American did not violate the CBA. Under the CBA, American could not terminate Sherrod until five years of sick leave had elapsed without her return to flight duty.

Beginning in 1993, the Personnel Department at American assisted Sherrod in looking for another position within American. Sherrod interviewed for one position but was turned down. In March 1994, American offered Sherrod an interview for the same position, but Sherrod declined the interview and informed April Mott in the Personnel Department that she had filed an EEOC complaint in an effort to regain her position as flight attendant. In May 1994, American terminated Sherrod citing the expiration of her five years of sick leave and her refusal to interview. The letter of termination which American sent to Sherrod referred to the March conversation between Sherrod and Mott. In February 1996, Sherrod applied for another position with American but learned that she was ineligible for rehire for any position.

In August 1994, Sherrod filed suit against American in the District Court of Dallas County claiming violations of the Texas Worker's Compensation Act § 451.001, the Texas Commission on Human Rights Act ("TCHRA") and the ADEA. American removed the action to the U.S. District Court for the Northern District of Texas (Civil Action No. 3:94-CV-2044-D). The case was assigned to Judge Fitzwater's court.

Sherrod filed a second lawsuit in October 1994 in the U.S. District Court for the Northern District of Texas (Civil Action No. 3:94-CV-2250-R), alleging violations of the ADA. Sherrod incorrectly filed under the second civil action number an Objection to Removal, Motion to Remand, and Brief in Support (together hereinafter referred to as "Motion to Remand"). On November 1, 1994, Judge Fish, in whose court the second civil action was filed, ordered the Motion to Remand "unfiled" because it had been filed in the wrong court. Sherrod did not refile the Motion to Remand under the correct docket number. On November 28, 1994, Judge Fitzwater consolidated the two pending cases under Civil Action Number 3:94-CV-2044-D. In January 1995, Judge Fitzwater denied Sherrod's Motion to Remand without reference to the fact that the Motion to Remand had been "unfiled" by the previous court.

In November 1995, Sherrod filed a third lawsuit in federal court (Civil Action No. 3:95-CV-2769-R) alleging unlawful retaliation under the ADA and ADEA. 29 U.S.C. § 623(d) (ADEA); 42 U.S.C. § 12203(a)(ADA). These claims were consolidated with the first lawsuit. In May 1996, the District Court granted American's motion for summary judgment on Sherrod's ADEA, TCHRA, and Texas Labor Code § 451.001 claims. In December 1996, the District Court granted summary judgment for American on Sherrod's remaining claims.

II.

The plaintiff argues that the district court erred by overruling her Motion to Remand in violation of federal law prohibiting the removal of state worker's compensation claims. In reviewing a district court's denial of a plaintiff's motion to remand a case from federal court to state court, the Court of Appeals applies a de novo standard of review. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir.1995). Before deciding whether the court's denial of the motion to remand was appropriate, however, we must first decide whether Sherrod waived her right to move for remand.

A motion to remand a case on the basis of any defect, other than lack of subject matter jurisdiction, must be made within thirty days after notice of removal or the plaintiff loses the opportunity to move for remand. 28 U.S.C. § 1447(c). Thus, if the plaintiff objects to removal due to some procedural defect, then a motion to remand must be made within thirty days. See id. See also Williams v. AC Spark Plugs Division of General Motors Corp., 985 F.2d 783, 786 (5th Cir.1993) (discussing waiver of the right to move for remand under § 1447(c)). Additionally, 28 U.S.C. § 1445(c) precludes the removal of an action to federal court which arises under the worker's compensation laws of any state. See 28 U.S.C. § 1445(c). Therefore, a waiver of the right to move for a remand of a state worker's compensation claim depends on whether the removal of such a claim causes a procedural or jurisdictional defect. See Williams, 985 F.2d at 786. In Williams, the court held that the wrongful removal of a state worker's compensation claim is a procedural defect. Id. Consequently, a plaintiff must make a motion to remand based on the wrongful removal of a state worker's compensation claim within thirty days after notice of removal or the plaintiff waives the opportunity to move for remand. Id.

American claims that Sherrod waived her objection to removal because the Motion to Remand was filed in the wrong court, ordered "unfiled" by Judge Fish, and not refiled by Sherrod within thirty days after notice of removal. Thus, American claims that Sherrod's Motion to Remand was not properly before the district court after the two cases were consolidated in Judge Fitzwater's court. Sherrod did not fail to make the motion to remand within 30 days. On the contrary, Sherrod made the motion, but made it under the wrong docket number. When the claims were later consolidated, all motions filed in the second lawsuit were deemed filed in the consolidated suit. American filed a response in opposition to the Motion to Remand in the proper court even though the motion had been incorrectly filed in Judge Fish's court where the second lawsuit was pending. Although Sherrod had filed the Motion to Remand in the wrong court, the district court ruled on the motion after consolidation as if the motion had been filed in the proper court.

The district court has power under Federal Rule of Civil Procedure 60(a) to correct clerical mistakes in judgments, orders, or other parts of the record at any time on its own initiative. See Fed.R.Civ.P. 60(a). Although the scope of Rule 60(a) is very limited, Rule 60(a) may be used to correct "mindless mechanistic mistakes" which require no additional legal reasoning. In re West Texas Marketing Corp., 12 F.3d 497, 504 (5th Cir.1994). The relevant test for the application of Rule 60(a) is "whether the change affects substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or is instead a clerical error, a copying or computational mistake, which is correctable under the Rule." Id.

Although Sherrod filed the Motion to Remand under the incorrect docket number, the district court corrected the error by treating the motion as if it were filed under the proper docket number. American recognized the plaintiff's error and filed a response in opposition to the motion to remand in the appropriate court. Thus, treating the motion as if it were filed under the correct number would not affect any substantive rights of the parties because both parties had the opportunity to address the issue of remand. Consequently, Sherrod did not waive her right to move for remand and such motion was properly before the court.

Because...