The opinion of the court was delivered by: Judge Patricia A. Gaughan
Memorandum of Opinion and Order
Introduction This matter is before the Court upon plaintiff's Motion to Remand (Doc. 7). This case arises out of plaintiff's former employment with defendants. The issue herein is whether defendants properly removed this case on the basis of federal question jurisdiction. For the following reasons, plaintiff's motion is GRANTED.
Plaintiff, Keith Cantrell, filed his Complaint against defendants, Equity Trust Company, Equity Administrative Services, Inc., Eric Thomas, and John Does 1-2, in the Cuyahoga County Common Pleas Court. The Complaint alleges the following.
Plaintiff was employed by Equity from July 2008 until May 2011. Equity is a trust services, financial services, and retirement planning company. Eric Thomas was the Manager of Business Development, and plaintiff's immediate supervisor. He participated in the decision to terminate plaintiff. John Does 1-2 are unknown Equity employees and/or owners who exercised management level supervision and control, and participated in the decision to terminate plaintiff.
Plaintiff was a sales representative until June 2009, when he was given the title of Retirement Plan Specialist. Also in June 2009, plaintiff was promoted to the position of sales supervisor and given the title of Supervisor of Business Development. He held that position until his termination in May 2011.
In January 2011, plaintiff was subpoenaed to testify at deposition in litigation involving claims of racial discrimination and wrongful termination by a former Equity employee against Equity. Plaintiff testified in February 2011, and provided truthful testimony. As a result, defendants retaliated against plaintiff and took adverse actions against him including making negative comments, diminishing his supervisory authority, raising his sales goals, decreasing his compensation, and ultimately terminating him.
In March 2011, plaintiff took a short unpaid medical absence which was authorized and approved by Equity pursuant to its employee absence policy. In April 2011, plaintiff was authorized and approved by Equity to take short intermittent medical absences. Plaintiff requested reasonable accommodations related to his employment as a result of his medical condition. Equity thereafter discriminated, retaliated, and took adverse actions against plaintiff. Defendant Thomas made comments critical of plaintiff and related to his medical condition and absences.
The Complaint sets forth six claims. Count one alleges wrongful termination and asserts that plaintiff was terminated in violation of Ohio's public policy of promoting truthful testimony of witnesses. Count Two alleges disability discrimination under Ohio Revised Code §§ 4112.01 and 4112.99. Count Three alleges wrongful termination in violation of the laws of Ohio and Ohio's public policy of promoting the ability of employees to pursue necessary medical care and related absences from work. Count Four alleges intentional infliction of emotional distress. Count Five alleges unpaid overtime wages under the Ohio Revised Code and Ohio law. Count Six alleges retaliation under the Ohio Revised Code and Ohio law.
Defendants thereafter filed a Notice of Removal of the Complaint. This matter is now before the Court upon plaintiff's Motion to Remand.
28 U.S.C. § 1447(c) states in part, "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."
Defendants assert in the Notice of Removal that plaintiff's allegations relating to his medical absences were pursuant to the federal Family and Medical Leave Act (FMLA), and that Count Three, which alleges that "Defendants took adverse employment actions and terminated [plaintiff] because of his pursuit of necessary medical care and absence from work for medical reasons," is actually an FMLA retaliation claim. Consequently, it is an attempt to disguise a federal FMLA claim as a state law claim for wrongful termination.
Plaintiff contends that Count Three does not invoke the FMLA, and is a contractually based claim relating to the discriminatory application of Equity's paid "employee absence policy" referred to in the factual background of the Complaint (Compl.¶ 24) and which plaintiff states (although not alleged in the Complaint) is set forth in the Employee Handbook. Plaintiff also points out that Count Three alleges, "A clear public policy exists under Ohio law in favor of promoting the ability of employees [to] pursue medical care, to take medical absences where authorized and approved under the terms of employment, and to return to employment following medical absences." (Compl. ¶ 52, emphasis added) As such, plaintiff maintains that his wrongful discharge claim is based on Ohio's public policy of enforcing agreements, ...