1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID B. ALEMAN, Case No. 2:23-cv-06863-FLA (JPRx)

12 Plaintiff,

ORDER GRANTING PLAINTIFF’S

13 v. MOTION TO REMAND, DENYING

MOTION FOR LEAVE TO FILE

14

FIRST AMENDED COMPLAINT,

AIRGAS USA, LLC, et al., 15 AND DISCHARGING ORDER TO Defendants. SHOW CAUSE [DKTS. 10, 11, 19] 16

17 18

19

20 21 22 23 24 25 26 27 28 1 ORDER 2 Before the court is Plaintiff David B. Aleman’s Motion to Remand to the Los 3 Angeles County Superior Court (“Motion”). Dkt. 10 (“Mot.”). Defendant Airgas 4 USA, LLC (“Defendant” or “Airgas”) opposes the Motion. Dkt. 12 (“Opp’n”). 5 Defendants Eddy Lao and Jose Corranza (together, “Supervisor Defendants”) did not 6 respond to the Motion. On October 24, 2023, the court found the Motion appropriate 7 for resolution without oral argument and vacated the hearing set for October 27, 2023. 8 Dkt. 27; see Fed. R. Civ. P. 78(b); Local Rule 7-15. 9 For the reasons stated herein, the court GRANTS the Motion and REMANDS 10 this action to the Los Angeles County Superior Court. 11 BACKGROUND 12 This action arises from the purported discriminatory treatment and hostile work 13 environment Plaintiff was subjected to during his employment as a plant operator for 14 Airgas, a distributor of gases, welding products, safety products, tools, and hardware 15 for various industries. See Mot. at 1. 16 On June 20, 2023, Plaintiff filed a complaint in the Los Angeles County 17 Superior Court against Airgas and the Supervisor Defendants, asserting eleven state 18 law causes of action for: (1) failure to provide meal breaks; (2) failure to provide rest 19 breaks; (3) failure to pay wages; (4) failure to pay overtime; (5) failure to provide 20 accurate itemized wage statements; (6) violations of Cal. Bus. & Prof. Code 21 §§ 17200–208; (7) race discrimination in violation of the Fair Employment and 22 Housing Act (“FEHA”); (8) retaliation in violation of FEHA; (9) failure to prevent 23 discrimination and retaliation in violation of FEHA; (10) hostile work environment in 24 violation of FEHA; and (11) wrongful termination in violation of public policy. Dkt. 25 1-1 (“Compl.”). However, only the tenth cause of action for hostile work environment 26 is asserted against the Supervisor Defendants. See id. 27 On August 21, 2023, Airgas removed this action to this court based on diversity 28 jurisdiction. Dkt. 1 (“NOR”) ¶ 7; see 28 U.S.C. § 1332(a)(1). In the instant Motion, 1 Plaintiff contends complete diversity does not exist because Plaintiff and the 2 Supervisor Defendants are California citizens. Mot. at 9. Defendant, in opposition, 3 argues the Supervisor Defendants are “sham defendants” who were named solely to 4 defeat subject matter jurisdiction. Opp’n at 7 (“The Supervisor Defendants are both 5 citizens of California, but their citizenship should be disregarded because they are 6 sham defendants.”) (citation omitted). 7 DISCUSSION 8 I. Legal Standard 9 A. Diversity Jurisdiction 10 Federal courts are courts of “limited jurisdiction,” possessing “only that power 11 authorized by the Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of 12 Am., 511 U.S. 375, 377 (1994); U.S. Const. art. III, § 2, cl. 1. “It is to be presumed 13 that a cause lies outside [of federal courts’] limited jurisdiction, and the burden of 14 establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 15 U.S. at 377 (citations omitted); Sopcak v. N. Mountain Helicopter Serv., 52 F.3d 817, 16 818 (9th Cir. 1995). 17 A challenge to subject matter jurisdiction “can be either facial, confining the 18 inquiry to allegations in the complaint, or factual, permitting the court to look beyond 19 the complaint.” Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th 20 Cir. 2003). Therefore, the court is not restricted to the face of the pleadings and may 21 review evidence, such as declarations and testimony, to resolve any factual disputes 22 concerning the existence of jurisdiction. See McCarthy v. United States, 850 F.2d 23 558, 560 (9th Cir. 1988). 24 Federal courts have jurisdiction where each plaintiff’s citizenship is diverse 25 from each defendant’s citizenship and the amount in controversy exceeds $75,000, 26 exclusive of interest and costs. 28 U.S.C. § 1332(a)(1). Diversity jurisdiction 27 requires “complete diversity, meaning that each plaintiff must be of a different 28 1 citizenship from each defendant.” Grancare, LLC v. Thrower by & through Mills, 2 889 F.3d 543, 548 (9th Cir. 2018) (citation omitted). 3 B. Fraudulent Joinder 4 “In determining whether there is complete diversity, district courts may 5 disregard the citizenship of a non-diverse defendant who has been fraudulently 6 joined.” Id. (citation omitted). 7 “There are two ways to establish fraudulent joinder: (1) actual fraud in the 8 pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of 9 action against the non-diverse party in state court.”1 Id. (internal quotation marks and 10 citations omitted). “Fraudulent joinder is established the second way if a defendant 11 shows that an individual joined in the action cannot be liable on any theory.” Id. 12 (cleaned up). “But if there is a possibility that a state court would find that the 13 complaint states a cause of action against any of the resident defendants, the federal 14 court must find that the joinder was proper and remand the case to the state court.” Id. 15 (cleaned up) (emphasis in original). 16 “A defendant invoking federal court diversity jurisdiction on the basis of 17 fraudulent joinder bears a ‘heavy burden’ since there is a general presumption against 18 finding fraudulent joinder.” Id. (cleaned up); see also Hamilton Materials, Inc. v. 19 Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007) (“Fraudulent joinder must be 20 proven by clear and convincing evidence.”). 21 C. Hostile Work Environment Under FEHA 22 Under FEHA, an employee who harasses another employee may be held 23 personally liable. Lewis v. City of Benicia, 224 Cal. App. 4th 1519, 1524 (2014) 24 (citation omitted); see also Judicial Council of California Civil Jury Instructions 25 2522A. To establish a prima facie case of a hostile work environment against a fellow 26 1 Here, Airgas seeks to establish fraudulent joinder in the second way (i.e., Airgas 27 argues Plaintiff cannot establish a cause of action against the Supervisor Defendants in 28 California state court). See Opp’n at 7–13. 1 employee, a plaintiff must show: (1) he is a member of a protected class; (2) he was 2 subjected to unwelcome harassment; (3) the harassment was based on his protected 3 status; (4) the harassment unreasonably interfered with his work performance by 4 creating an intimidating, hostile, or offensive work environment; and (5) the defendant 5 is liable for the harassment. See Ortiz v. Dameron Hosp. Assn., 37 Cal. App. 5th 568, 6 581 (2019). 7 To show “unreasonable interference,” 8 the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a 9 reasonable person subjected to the discriminatory conduct would find, 10 as the plaintiff did, that the harassment so altered working conditions 11 as to make it more difficult to do the job. 12 Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring) 13 (cleaned up); Cal. Gov’t Code § 12923(a) (approving standard set forth by Justice 14 Ginsburg in Harris). 15 Additionally, “to be actionable, the harassment must be sufficiently severe or 16 pervasive to alter the conditions of the victim’s employment and create an abusive 17 working environment.” Villalobos v. Costco Wholesale Corp., Case No. 2:23-cv- 18 00622-DJC (JDPx), 2023 WL 5108499, at *4 (E.D. Cal. Aug. 9, 2023) (citations and 19 internal quotation marks omitted). “There is no recovery for harassment that is 20 occasional, isolated, sporadic, or trivial; rather the plaintiff must show a concerted 21 pattern of harassment of a repeated, routine or a generalized nature.” Id. (citation and 22 internal quotations marks omitted). “The sporadic use of abusive language, gender- 23 related jokes, and occasional teasing are not actionable harassment.” Id. (cleaned up). 24 While a few isolated incidents can support a FEHA harassment claim, they must be 25 “severe in the extreme.” Hughes v. Pair, 46 Cal. 4th 1035, 1043 (2009) (a single 26 harassing incident involving physical violence, or a threat thereof, may qualify as 27 severe in the extreme). 28 1 Last, harassment does not include conduct that is “necessary for management of 2 the employer’s business or performance of the supervisory employee’s job.” Janken 3 v. GM Hughes Elecs., 46 Cal. App. 4th 55, 63 (1996). “[C]ommonly necessary 4 personnel management actions such as hiring and firing, job or project assignments, 5 office or work station assignments, promotion or demotion, performance evaluations, 6 the provision of support, the assignment or non-assignment of supervisory functions, 7 deciding who will and who will not attend meetings, deciding who will be laid off, 8 and the like, do not come within the meaning of harassment.” Id. at 64–65. “Instead, 9 harassment consists of conduct outside the scope of necessary job performance, 10 conduct presumably engaged in for personal gratification, because of meanness or 11 bigotry, or for other personal motives.” Id. at 63. 12 II. Analysis 13 Airgas is the party asserting subject matter jurisdiction and, thus, bears the 14 “heavy burden” of establishing that the Supervisor Defendants are sham defendants. 15 See Kokkonen, 511 U.S. at 377; Grancare, 889 F.3d at 548. Airgas argues Plaintiff 16 cannot state a claim for hostile work environment under FEHA against the Supervisor 17 Defendants because Plaintiff fails to allege facts that are “sufficiently severe or 18 pervasive to alter the conditions of [his] employment and create an abusive working 19 environment.” Mot. at 8 (cleaned up). 20 Plaintiff alleges the Supervisor Defendants “subjected him to a hostile work 21 environment based on his race.” Mot. at 2. In particular, Plaintiff alleges the 22 Supervisor Defendants: 23  “were constantly trying to find ways to terminate Plaintiff” (id. at 3); 24  “threaten[ed] him with termination for inconsequential things,” e.g., 25 when Plaintiff did not submit proof of vaccination, the Supervisor 26 Defendants told Plaintiff to do so or he would be terminated (id. at 3–4); 27 28 1  “accus[ed] him of things that he did not do, and subject[ed] him to unjustified and arbitrary criticism and unfair disciplinary action” (id. 2 at 3); 3  “treat[ed] other employees more favorably than Plaintiff,” e.g., “certain 4 employees were allowed to take weekends off,” but not Plaintiff (id. at 4); 5 6  “failed to make any attempts to restart [a] plant or address Plaintiff’s concerns or injuries” after Plaintiff emailed them that his plant had shut 7 down and he suffered injuries from ammonia gas (id. at 5–6); 8  “insinuat[ed] that Plaintiff had something to do with the plant shutting 9 down” (id. at 6); 10  refused to address Plaintiff’s complaints that he “suffered injuries to his 11 eyes, ears, shoulder, knees, back, and nose” (id.); 12  refused to address Plaintiff’s complaints about “various ammonia and 13 carbon dioxide leaks” (id.); 14  “stopped communicating with Plaintiff and started relaying instructions to him via [a mechanic]” (id.); 15 16  ignored Plaintiff’s texts and calls (id.); 17  “accused Plaintiff of purposefully not using the lift machine (which was 18 used to cut [] ice)” (id. at 6–7); 19  instructed Plaintiff to load a trailer despite knowing “the trailer floor was broken and thus unsafe to load” (id. at 7); and 20 21  wrote and placed a note “on the supervisor’s desk in the warehouse, which every employee visits throughout the day and can see, blaming 22 Plaintiff” for loading an incorrect order despite the fact that it was 23 dispatch who “accidentally gave the driver the wrong order number” (id.). 24 25 A number of the foregoing allegations involve “personnel management 26 actions,” and, thus, Plaintiff cannot rely on them to state a claim for harassment. See 27 Janken, 46 Cal. App. 4th at 63–64. For example, the Supervisor Defendants’ threats 28 to terminate Plaintiff for not submitting proof of vaccination, disciplining Plaintiff for 1 not using the lift machine, refusing to grant Plaintiff time off, and not providing 2 support in response to Plaintiff’s requests, such as when his plant shut down, are non- 3 actionable “personnel management actions.” See id. 4 On the other hand, several allegations involve conduct “outside the scope of 5 necessary job performance,” which Plaintiff may rely on to state a claim for 6 harassment. These include scheming to get Plaintiff fired, ignoring Plaintiff’s calls 7 and texts, communicating with Plaintiff only through a mechanic, shaming Plaintiff in 8 front of his coworkers, and ignoring Plaintiff’s safety concerns and instructing him to 9 perform unsafe work. See id. 10 Accordingly, the question is whether “there is a possibility,” see Grancare, 889 11 F.3d at 548 (emphasis in original), that the properly considered allegations against the 12 Supervisor Defendants “suffice[] to prove that a reasonable person subjected to the 13 alleged discriminatory conduct would find [] that the harassment so altered working 14 conditions as to make it more difficult to do the job,” Harris, 510 U.S. at 25. 15 A reasonable person in Plaintiff’s position could possibly find Plaintiff’s job 16 was more difficult to perform because his supervisors ignored him and communicated 17 with him only through an intermediary. This alleged conduct appears to be a 18 “concerted pattern of harassment” rather than an “occasional” or “isolated” 19 occurrence. See Villalobos, 2023 WL 5108499, at *4. Airgas has not met its heavy 20 burden to show otherwise. See Opp’n; Hamilton Materials, 494 F.3d at 1206. 21 Airgas argues, “[e]ven assuming … Plaintiff could establish severe or pervasive 22 conduct … he fails to plead even a single fact to support the legal conclusion that the 23 alleged conduct was because of his protected status.” Opp’n at 10 (emphasis 24 removed). Further, Airgas claims Plaintiff’s allegations of racism are “objectively 25 frivolous” because the other supervisors who worked alongside Plaintiff “were the 26 same race as Plaintiff.” Id. at 1 (emphasis removed). 27 Plaintiff, however, alleges that, “[o]ut of the three other supervisors who 28 worked [at the plant], Plaintiff had the darkest skin,” Compl. ¶ 28, and that the 1 | Supervisor Defendants “subjected him to a hostile work environment based on his 2 | race,” Mot. at 2. Airgas does not offer any authority establishing racism only exists 3 | among individuals of different races. Plaintiffs allegations, therefore, sufficiently 4 | establish it is at least possible that the Supervising Defendants’ purportedly harassing 5 || conduct was directed at Plaintiff because of his race. 6 Accordingly, Airgas has failed to establish that the Supervisor Defendants are 7 | sham defendants. 8 CONCLUSION 9 For the foregoing reasons, the court GRANTS the Motion and ORDERS as 10 | follows: 11 1. The action is REMANDED to the Los Angeles County Superior Court, 12 Case No. 23STCV14835; 13 2. All deadlines and dates are VACATED; 14 3. The Order to Show Cause Why the Action Should Not Be Remanded for 15 Lack of Subject Matter Jurisdiction (Dkt. 19) is DISCHARGED; and 16 4. Plaintiff's motion for leave to file a first amended complaint (Dkt. 11) is 17 DENIED as moot. 18 19 IT IS SO ORDERED. 20 21 | Dated: August 26, 2024 2 FERNANDO L. AENLLE-ROCHA United States District Judge 23 24 25 26 27 28