1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 AARON CROFT, Case No. 21-cv-01083-EMC

8 Plaintiff,

ORDER DENYING PLAINTIFF’S

9 v. MOTION TO REMAND

10 GTT COMMUNICATIONS, INC., et al., Docket No. 15 11 Defendants.

12 13 14 Plaintiff Aaron Croft has sued his former employer, GTT Communications, Inc., and his 15 former supervisor there, Eric Cohen, for employment discrimination. Mr. Croft initially filed suit 16 in state court. GTT removed the case, arguing that there is diversity jurisdiction once the 17 citizenship of Mr. Cohen, who was fraudulently joined, is ignored. (Both Mr. Croft and Mr. 18 Cohen are citizens of California.) Currently pending before the Court is Mr. Croft’s motion to 19 remand. Having considered the parties’ briefs and the oral argument of counsel, the Court hereby 20 DENIES the motion. 21 I. FACTUAL & PROCEDURAL BACKGROUND 22 A. Complaint 23 In his complaint, Mr. Croft alleges as follows. 24 GTT is a company that provides internet service. See Compl. ¶ 1. Mr. Croft began to 25 work for GTT as an Account Director in approximately May 2018. See Compl. ¶ 17. He was 26 terminated on January 15, 2020. See Compl. ¶ 27. 27 Before he was terminated, Mr. Croft was performing his job well. For example, “just 1 which was part of an overall larger deal.” Compl. ¶ 17. In addition, in 2019, he was awarded the 2 “Hustle Ball” in recognition of “the number of new service contracts entered into with new 3 clients.” Compl. ¶ 17. 4 In August or September 2019, Mr. Croft began to suffer from increased pain in his back 5 due to a degenerative disc disease. See Compl. ¶ 18. 6 In September or October 2019, Mr. Croft discussed with David Gilbert (whose position is 7 unspecified) the issue of his daily commute to the Pleasanton office (sixty miles each) which was 8 “causing him additional pain and exacerbating his back condition.” Compl. ¶ 19. He also 9 discussed with Mr. Gilbert the issue sitting “hour upon hour” in a cubicle. Compl. ¶ 19. 10 On October 21, 2019, Mr. Croft’s physician gave him a note recommending work 11 restrictions – i.e., advising against a lengthy daily commute and prolonged periods of sitting time. 12 See Compl. ¶ 20. Mr. Croft informed Mr. Cohen, his supervisor, of the restrictions. Mr. Cohen 13 said that “the restrictions would not be a concern.” Compl. ¶ 20. 14 In late October or early November, Mr. Croft’s medical providers recommended surgery 15 for his back. “The surgery date was set for January 17, 2020, and [Mr.] CROFT would need to be 16 off from work for approximately four to six [w]eeks as a result.” Compl. ¶ 21. Mr. Croft 17 informed both Mr. Gilbert and Mr. Cohen. Pursuant to instructions from Mr. Gilbert, Mr. Croft 18 also informed Human Resources. See Compl. ¶ 21. On December 2, 2019, Mr. Croft contacted 19 Human Resources to ask for the FMLA/CFRA forms for his upcoming surgery and to request 20 reasonable accommodations. See Compl. ¶ 22. 21 Subsequently, Mr. Croft “noticed a change in how he was being viewed as an employee, 22 and began to see his work being unfairly scrutinized.” Compl. ¶ 24. 23 On January 5, 2020, Mr. Croft flew to Texas to attend GTT’s Sale Kickoff Conference. 24 There was a dinner on the first night of the conference. At the dinner, Mr. Cohen, who had also 25 attended, called Mr. Croft “‘weak’” at least 6 times – in front of colleagues and co-workers – 26 because he was taking time-off for surgery and requesting reasonable accommodations for his 27 back condition. See Compl. ¶ 26. Mr. Croft asked Mr. Cohen to have a private conversation 1 behavior was inappropriate. Mr. Cohen responded that he was simply “‘being honest’ about how 2 he felt about [Mr.] CROFT’s situation” and that he “‘thought it was weak that [Mr. Croft] couldn’t 3 just drive to Pleasanton.’” Compl. ¶ 25. At the dinner the following night, Mr. Cohen 4 commended Mr. Croft in front of others, complimenting him on his work. See Compl. ¶ 25. 5 After returning from the conference, Mr. Croft was asked to participate in a one-on-one 6 meeting with Mr. Cohen on the phone. This call took place on January 15, 2020, i.e., only two 7 days before Mr. Croft’s scheduled surgery.

8 [Mr.] COHEN asked [Mr.] CROFT about the details of all his clients, the opportunities he had and/or was actively working on, and 9 at which phase each of the opportunities [was] currently. [Mr.] COHEN also asked [Mr.] CROFT who he knew on a personal level 10 at the company, and proceeded to go through a list of items found on the “Success Plan” that [Mr.] CROFT had previously gone over with 11 Mr. Gilbert in early August of 2019. 12 Compl. ¶ 26. In essence, Mr. Cohen was conducting a negative performance evaluation – 13 “unannounced and done in complete surprise without warning or prior notice.” Compl. ¶ 26. 14 Later the same day, Mr. Croft had another phone call with Mr. Cohen. A Human 15 Resources representative was also present on the call. Mr. Cohen told Mr. Croft that he was 16 terminated, effective immediately, based on his performance. See Compl. ¶ 27. The Human 17 Resources representative told Mr. Croft that his health coverage would end immediately and 18 noted, “‘I understand this is not the best time for you,’” implicitly recognizing that Mr. Croft was 19 due for surgery in just 2 days. Compl. ¶ 27. 20 The following day, the Human Resources representative contacted Mr. Croft and told him 21 that his termination date had been moved from January 15 to January 17, 2020 (i.e., the day of his 22 surgery). See Compl. ¶ 28. 23 On January 27, 2020, Mr. Croft wrote an email “to GTT executives and decision makers 24 Ernie Ortega, Tony Rivale, Rick Calder, Janet Reger, and Jeremy Schonzeit [the Human 25 Resources representative],” complaining about “the events that had transpired over the previous 26 five months.” Compl. ¶ 29. Mr. Croft specifically complained about Mr. Cohen’s conduct, 27 including the surprise performance review and lack of progressive discipline. He also noted his 1 for reasonable accommodations, and request for FMLA/CFRA leave in relation to the surgery to 2 address his back condition.” Compl. ¶ 29. 3 Based on, inter alia, the above allegations, Mr. Croft has asserted the following claims for 4 relief: 5 (1) Discrimination in violation of FEHA (e.g., denying reasonable accommodations 6 and terminating him). 7 (2) Failure to accommodate and/or engage in the interactive process in violation of 8 FEHA. 9 (3) Disability-based harassment/hostile work environment in violation of FEHA. 10 (4) Failure to prevent discrimination, retaliation, and harassment/hostile work 11 environment in violation of FEHA. 12 (5) Retaliation in violation of FEHA. 13 (6) Violation of public policy (i.e., a Tameny claim). 14 (7) Wrongful termination in violation of public policy (i.e., a Tameny claim). 15 (8) Intentional infliction of emotional distress (“IIED”). 16 In his pleading, Mr. Croft did not make clear which claims above were asserted against which 17 Defendant (i.e., GTT, Mr. Cohen, or both). In his opposition, however, he represents that the 18 following claims have been asserted against Mr. Cohen: disability-based harassment/hostile work 19 environment and retaliation. 20 B. Evidence Submitted in Conjunction with Notice of Removal 21 GTT removed Mr. Croft’s case from state to federal court, asserting diversity jurisdiction 22 once the citizenship of Mr. Croft was disregarded. 23 In support of its removal, GTT submitted declarations that reflect as follows: 24 • GTT is a Delaware corporation with its principal place of business in Virginia. See 25 Docket No. 1-1 (Pless Decl. ¶ 2). 26 • “Plaintiff was compensated a base salary of $102,000 per year, plus commissions 27 when he was employed by GTT.” Docket No. 1-1 (Pless Decl. ¶ 3). 1 C. Evidence Submitted in Conjunction with Motion to Remand 2 As part of its opposition to the motion to remand, GTT submitted a declaration from Mr. 3 Cohen. In his declaration, Mr. Cohen states that he did not become Mr. Croft’s supervisor until 4 January 1, 2020, i.e., shortly before the sale conference and his subsequent termination. See 5 Cohen Decl. ¶ 3. Mr. Cohen also states that he did not make the decision to terminate Mr. Croft. 6 See Cohen Decl. ¶ 5. Finally, Mr. Cohen states that he consents to GTT’s removal of the case to 7 federal court. See Cohen Decl. ¶ 6. 8 II. DISCUSSION 9 A. Legal Standard 10 “[A]ny civil action brought in a State court of which the district courts of the United States 11 have original jurisdiction[] may be removed by the defendant.” 28 U.S.C. § 1441(a). “Because of 12 the ‘Congressional purpose to restrict the jurisdiction of the federal courts on removal,’ the 13 [removal] statute is strictly construed, and federal jurisdiction ‘must be rejected if there is any 14 doubt as to the right of removal in the first instance.’” Duncan v. Stuetzle, 76 F.3d 1480, 1485 15 (9th Cir. 1996). The defendant has the burden of establishing that removal was proper – i.e., that 16 there is subject matter jurisdiction. See id. 17 In the instant case, GTT removed based on diversity jurisdiction. Although Mr. Croft sued 18 a nondiverse defendant – Mr. Cohen – GTT argues that Mr. Cohen’s citizenship can be ignored 19 because he was fraudulently joined to the case. 20 Typically, “[i]n a fraudulent joinder claim, a diverse defendant contends that a plaintiff 21 joined a non-diverse defendant against whom the plaintiff has no real claim in order to defeat 22 federal [diversity] jurisdiction.” Mullin v. GM, LLC, No. CV 15-7668-DMG (RAOx), 2016 U.S. 23 Dist. LEXIS 2560, at *9 n.3 (C.D. Cal. Jan. 7, 2016). That being said, technically, “fraudulent 24 joinder” is a term of art. See Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 25 2001). In other words, there need not be a conscious effort on the part of the plaintiff to defeat 26 diversity jurisdiction. See Rangel v. Bridgestone Retail Operations, LLC, 200 F. Supp. 3d 1024, 27 1030 (C.D. Cal. 2016) (stating that “[f]raudulent joinder is a term of art and does not implicate a 1 defendant’s presence in the lawsuit is ignored for purposes of determining diversity, ‘if the 2 plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious 3 according to the settled rules of the state.’” Morris, 236 F.3d at 1067 (emphasis added); see also 4 Diaz v. Allstate Ins. Grp., 185 F.R.D. 581, 586 (C.D. Cal. 1998) (stating that, for removal, “‘the 5 defendant must demonstrate that there is no possibility that the plaintiff will be able to establish a 6 cause of action in state court against the alleged sham defendant’”) (emphasis omitted). As 7 explained by the Seventh Circuit, “[a]lthough false allegations of jurisdictional fact may make 8 joinder fraudulent, in most cases fraudulent joinder involves a claim against an in-state defendant 9 that simply has no chance of success, whatever the plaintiff’s motives.” Poulos v. Naas Foods, 10 Inc., 959 F.2d 69, 73 (7th Cir. 1992). 11 Obviousness is critical to a fraudulent joinder assessment. Indeed, “the inability to make 12 the requisite decision in a summary manner itself points to the inability of the removing party to 13 carry its burden.” Allen v. Boeing Co., 784 F.3d 625, 634 (9th Cir. 2015) (internal quotation 14 marks omitted). If a plaintiff has a colorable claim against a nondiverse defendant, then there is 15 no fraudulent joinder. See Jimenez v. Witron Integrated Logistics, Inc., No. CV 15-00605 DSF 16 (PLAx), 2015 U.S. Dist. LEXIS 157444, at *3 (C.D. Cal. Nov. 20, 2015) (stating that “[t]he 17 question is whether plaintiff has a colorable claim against the alleged sham defendants, not 18 whether the defendants can propound defenses to the cause of action”); see also Stillwell v. 19 Allstate Ins. Co., 663 F.3d 1329, 1333 (11th Cir. 2011) (noting that the standard for fraudulent 20 joinder is different from the standard applicable to a 12(b)(6) motion to dismiss; the latter requires 21 plausibility while the former only possibility). 22 Notably, there is a “‘general presumption against fraudulent joinder.’” Hunter v. Philip 23 Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009), and “[f]raudulent joinder must be proven by 24 clear and convincing evidence.” Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 25 1206 (9th Cir. 2007). Furthermore, “‘all disputed questions of fact and all ambiguities in the 26 controlling state law are [to be] resolved in plaintiff’s favor.’” Gupta v. IBM, No. 5:15-cv-05216- 27 EJD, 2015 U.S. Dist. LEXIS 169088, at *5 (N.D. Cal. Dec. 16, 2015); see also Rankankan v. 1 Cal. June 22, 2016) (stating that “‘[a]ll doubts concerning the sufficiency of a cause of action 2 because of inartful, ambiguous or technically defective pleading must be resolved in favor of 3 remand, and a lack of clear precedent does not render the joinder fraudulent’”); cf. Ritchey v. 4 Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998) (stating that “a defendant must have the 5 opportunity to show that the individuals joined in the action cannot be liable on any theory”). 6 B. Claims Against Mr. Cohen 7 1. Disability-Based Harassment/Hostile Work Environment 8 The parties agree that a FEHA harassment claim can be brought against an individual 9 supervisor, and not just an employer. FEHA provides that it is unlawful for “an employer . . . or 10 any other person” to harass an employee based on, inter alia, physical or mental disability. See 11 Cal. Gov’t Code § 12940(j)(1). The statute further provides that “[a]n employee of an entity . . . is 12 personally liable for any harassment prohibited by this section that is perpetrated by the employee, 13 regardless of whether the employer or covered entity knows or should have known of the conduct 14 and fails to take immediate and appropriate corrective action.” Id. § 12940(j)(3) (emphasis 15 added); see also Lewis v. City of Benicia, 224 Cal. App. 4th 1519, 1524, 169 Cal. Rptr. 3d 794, 16 801 (2014) (stating that, “[u]nder FEHA, an employee who harasses another employee may be 17 held personally liable”; citing § 12940(j)(3) in support); Janken v. GM Hughes Elecs., 46 Cal. 18 App. 4th 55, 62-63 (1996) (noting that supervisors may be held personally liable for harassment 19 but not discriminatory personnel decisions; the “differential treatment of harassment and 20 discrimination is based on the fundamental distinction between harassment as a type of conduct 21 not necessary to a supervisor’s job performance, and business or personnel management decisions 22 – which might later be considered discriminatory – as inherently necessary to performance of a 23 supervisor’s job”). 24 The question for the Court therefore is whether it is obvious that Mr. Croft has no 25 harassment claim based on the facts alleged in the complaint – or whether it is possible (not 26 plausible) that he has such a claim. In the complaint, Mr. Croft asserts that Mr. Cohen engaged in 27 the following improper conduct: (1) repeatedly calling Mr. Croft “weak” at the sales conference in 1 and then firing him (on the same day). 2 As an initial matter, the Court takes note that Mr. Cohen has submitted a declaration 3 testifying that he did not make the decision to terminate Mr. Croft (as he had only been Mr. 4 Croft’s supervisor for two weeks). See Cohen Decl. ¶ 5. But “‘all disputed questions of fact . . . 5 are [to be] resolved in plaintiff’s favor.’” Gupta v. IBM, No. 5:15-cv-05216-EJD, 2015 U.S. Dist. 6 LEXIS 169088, at *5 (N.D. Cal. Dec. 16, 2015). The Court therefore does not give Mr. Cohen’s 7 declaration any consideration at this time. 8 That being said, there is an issue as to whether Mr. Croft’s termination can even be 9 considered harassment in the first place. FEHA has separate provisions for discrimination and 10 harassment. Compare Cal. Gov’t Code § 12940(a) (making it unlawful for an employer to refuse 11 to hire, to terminate, or to discriminate against a person “in compensation or in terms, conditions, 12 or privileges of employment” based on, inter alia, physical or mental disability), with id. § 13 12940(j)(1), (3) (addressing harassment based on, inter alia, physical or mental disability). In 14 Roby v. McKesson Corp., 47 Cal. 4th 686 (2009), the California Supreme Court explained the 15 distinction between discrimination and harassment as follows.

16 FEHA’s discrimination provision addresses only explicit changes in the “terms, conditions, or privileges of employment”; that is, 17 changes involving some official action taken by the employer. In the case of an institutional or corporate employer, the institution or 18 corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse 19 job assignment, significant change in compensation or benefits, or official disciplinary action. 20 By contrast, harassment often does not involve any official exercise 21 of delegated power on behalf of the employer. . . . Thus, harassment focuses on situations in which the social environment of the 22 workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to 23 the harassed employee. 24 Id. at 706 (emphasis in original). “In short, “harassment is generally concerned with the message 25 conveyed to an employee, and therefore with the social environment of the workplace, whereas 26 discrimination is concerned with explicit changes in the terms or conditions of employment.” Id. 27 at 708 (emphasis in original). 1 was insufficient evidence to support the jury’s harassment verdict – essentially because the lower 2 court put too much stock into a statement in an earlier California Supreme Court decision that 3 “commonly necessary personnel management actions . . . do not come within the meaning of 4 harassment.” Id. at 700 (internal quotation marks omitted).

5 The Court of Appeal viewed that statement as indicating a sharp distinction that not only placed discrimination and harassment 6 claims into separate legal categories but also barred a plaintiff from using personnel management actions as evidence in support of a 7 harassment claim. The Court of Appeal therefore disregarded every act of defendants that could be characterized as personnel 8 management, and, looking only at the remaining evidence, the court found it insufficient to support the jury’s harassment finding. 9 10 Id. at 700-01. 11 The Roby Court explained that this approach was incorrect because, “in some cases the 12 hostile message that constitutes the harassment is conveyed through official employment actions, 13 and therefore evidence that would otherwise be associated with a discrimination claim can form 14 the basis of a harassment claim.” Id. at 708 (emphasis omitted; adding that, “in analyzing the 15 sufficiency of evidence in support of a harassment claim, there is no basis for excluding evidence 16 of biased personnel management actions so long as that evidence is relevant to prove the 17 communication of a hostile message”). 18 In the case before it (a disability-based harassment case), the Roby Court noted that some 19 of the supervisor’s actions could not be “fairly . . . characterized as an official employment 20 action”; this included

21 Schoener’s demeaning comments to Roby about her body odor and arm sores, Schoener’s refusal to respond to Roby’s greetings, 22 Schoener’s demeaning facial expressions and gestures toward Roby, and Schoener’s disparate treatment of Roby in handing out small 23 gifts. None of these events . . . involved Schoener’s exercising the authority that McKesson had delegated to her . . . . 24 25 Id. at 709. But

26 some official employment actions done in furtherance of a supervisor’s managerial role can also have a secondary effect of 27 communicating a hostile message. This occurs when the actions employment actions rather than hostile social interactions in the 1 workplace, but they may have contributed to the hostile message that Schoener was expressing to Roby in other, more explicit ways. 2 These would include Schoener’s shunning of Roby during staff meetings, Schoener’s belittling of Roby’s job, and Schoener’s 3 reprimands of Roby in front of Roby’s coworkers. 4 Id. 5 The Roby Court thus found that the lower court erred in “ignoring the discrimination 6 evidence when analyzing the harassment verdict . . . . [T]he FEHA treats discrimination and 7 harassment as distinct categories, but nothing in the FEHA requires that the evidence in a case be 8 dedicated to one or the other claim but never to both.” Id. at 710. 9 In light of Roby, an act of termination could, in theory, be not only discrimination under 10 FEHA but also constitute evidence of harassment under FEHA. The problem for Mr. Croft is that, 11 per Roby, official employment actions communicate a hostile message when “when the actions 12 establish a widespread pattern of bias.” Id. at 709 (emphasis added). Here, it is obvious that Mr. 13 Croft has not alleged a widespread pattern even when taking into account the act of his 14 termination. As evidence of harassment, Mr. Croft has simply pointed to two acts: (1) Mr. Cohen 15 repeatedly calling him “weak” on one occasion – the sales conference in January, and (2) his 16 termination 10 days later. Compare, e.g., Quigley v. United Airlines, Inc., No. 3:21-cv-00538- 17 WHO, 2021 U.S. Dist. LEXIS 59745, at *26 (N.D. Cal. Mar. 29, 2021) (noting that, for plaintiff’s 18 harassment claim, “he would need to plead sufficiently pervasive bias that led to a hostile 19 message, which the termination and mistakes on the insurance forms do not plausibly show”), with 20 Schaldach v. Dignity Health, No. 2:12-cv-02492-MCE-KJN, 2013 U.S. Dist. LEXIS 173537, at 21 *17 (E.D. Cal. Dec. 6, 2013) (holding that plaintiff plausibly alleged harassment because, as 22 alleged, defendants “engaged in a pattern of discriminatory actions which sent a message to the 23 work force that older employees were not valued and would be systematically replaced by younger 24 workers[;] [t]his pattern started with the message from the President to supervisors to hire ‘young,’ 25 ‘cute,’ and ‘perky’ employees, and continued with the systematic efforts to terminate older 26 employees and replace them with young people”). 27 This Court addressed the necessity of a pattern of harassment in Pichon v. Hertz Corp., No. 1 In order to have a viable age harassment claim, a plaintiff must show that the “the harassment was sufficiently severe or pervasive to alter 2 the conditions of employment and create an abusive working environment.” Landucci v. State Farm Ins. Co., 65 F. Supp. 3d 694, 3 703 (N.D. Cal. 2014). “With respect to the pervasiveness of harassment, courts have held that an employee generally cannot 4 recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of 5 harassment of a repeated, routine, or a generalized nature.” Lyle v. Warner Bros. Televis. Prods., 38 Cal. 4th 264, 283 (2006). Thus, 6 “when the harassing conduct is not severe in the extreme, more than a few isolated incidents must have occurred to prove a claim based 7 on working conditions.” Id. at 284. In Hughes v. Pair, 46 Cal. 4th 1035 (2009), the California Supreme Court held that the plaintiff 8 had failed to plead pervasive sexual harassment because “the alleged sexual harassment consisted only of comments defendant made to 9 plaintiff during a single telephone conversation and a brief statement defendant made to plaintiff in person later that day during a social 10 event at a museum.” Id. at 1048.

11 In the instant case, Mr. Pichon does not make any real contention that the alleged age harassment was severe; rather, he takes the 12 position that the harassment was pervasive. The problem for Mr. Pichon is that he has simply pointed to a handful of comments made 13 by Mr. Chua – and this is so even when the Court includes the comments allegedly made by Mr. Chua as stated in the Cole 14 declaration (that Defendants have asked the Court to strike). Mr. Chua directed only two comments at Mr. Pichon; in essence, the 15 comments merely inquired or assumed that he would retire soon. Mr. Chua did make one disparaging comment within Mr. Pichon’s 16 earshot about the age of other workers who were in an entirely different job which evidently involved some physicality. But Mr. 17 Pichon has failed to cite any authority to support his position that a handful of comments (particularly of the kind here) constitutes 18 severe or pervasive harassment sufficient to create a hostile working environment. Thus, Mr. Pichon has alleged neither a plausible or 19 possible claim of a hostile working environment based on age. Moreover, Mr. Pichon has failed to demonstrate that he could plead 20 additional factual allegations to support either a severe or pervasive harassment theory. His submission of the Cole declaration was an 21 attempt to give more factual support but, as noted above, even when that evidence is taken into account, that adds little, if anything, to the 22 claim of a hostile work environment. It is obvious that, under California law, Mr. Pichon’s age harassment claim is not viable. 23 24 Id. at *13-15. There is no pervasive pattern of harassment here. 25 2. Retaliation 26 Mr. Croft also brings a FEHA retaliation claim against Mr. Cohen. According to 27 Defendants, this claim obviously fails because (1) simply making a request for accommodation is 1 complaining about disability discrimination in an email dated January 27, 2020 – took place after 2 he had been already been terminated. 3 Defendants’ arguments are problematic for two reasons. 4 • First, FEHA does provide that retaliation against a person for requesting 5 accommodation is unlawful. See Cal. Gov’t Code § 12940(l)(4) (providing that it 6 is unlawful “[f]or an employer or other entity covered by this part to, in addition to 7 the employee protections provided pursuant to subdivision (h), retaliate or 8 otherwise discriminate against a person for requesting accommodation under this 9 subdivision, regardless of whether the request was granted”). Compare id. § 10 12940(h) (providing that it is unlawful “[f]or any employer, labor organization, 11 employment agency, or person to discharge, expel, or otherwise discriminate 12 against any person because the person has opposed any practices forbidden under 13 this part or because the person has filed a complaint, testified, or assisted in any 14 proceeding under this part”). Defendants’ reliance on Rope v. Auto-Chlor System 15 of Washington, Inc., 220 Cal. App. 4th 635, 652 (2013) (“find[ing] no support in 16 the regulations or case law for the proposition that a mere request – or even 17 repeated requests – for an accommodation, without more, constitutes a protected 18 activity sufficient to support a claim for retaliation in violation of FEHA”), is 19 unavailing because it was decided in 2013 and, in 2015, the California legislature 20 amended § 12940 by adding, inter alia, subdivision (l)(4) cited above. See Moore 21 v. Regents of Univ. of Cal., 248 Cal. App. 4th 216, 245 (2016). 22 • Second, arguably, Mr. Croft engaged in “traditional” protected activity before his 23 termination because, at the sales conference, Mr. Croft asked to speak to Mr. Cohen 24 privately and told Mr. Cohen that “calling him ‘weak’ was inappropriate.” Compl. 25 ¶ 25. 26 That being said, there is a more fundamental problem with Mr. Croft’s retaliation claim. 27 That is, supervisors cannot be held individually liable for retaliation under FEHA. In Jones v. 1 All of these reasons for not imposing individual liability for discrimination – supervisors can avoid harassment but cannot avoid 2 personnel decisions, it is incongruous to exempt small employers but to hold individual nonemployers liable, sound policy favors 3 avoiding conflicts of interest and the chilling of effective management, corporate employment decisions are often collective, 4 and it is bad policy to subject supervisors to the threat of a lawsuit every time they make a personnel decision – apply equally to 5 retaliation. 6 Id. at 1167. Notably, the Jones Court recognized that § 12940(h), the main retaliation provision, 7 provided that it is unlawful for a “person” to retaliate but stated that, “[i]n context, the Legislature 8 may have used the word ‘person’ in subdivision (h) for reasons unrelated to a desire to make 9 individuals personally liable for retaliation.” Id. at 1163. 10 C. Amount in Controversy 11 Mr. Croft argues that, even if he obviously has no claims against Mr. Cohen, there is 12 diversity jurisdiction over his claims against GTT only if the amount in controversy exceeds 13 $75,000 and GTT has failed to establish such.

14 Where, as here, it is unclear from the face of the complaint whether the amount in controversy exceeds $75,000, “the removing 15 defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds the 16 jurisdictional threshold.” The amount in controversy may include “damages (compensatory, punitive, or otherwise) and the cost of 17 complying with an injunction, as well as attorneys’ fees awarded under fee shifting statutes.” “Conclusory allegations as to the 18 amount in controversy are insufficient.” In assessing the amount in controversy, we may consider allegations in the complaint and in the 19 notice of removal, as well as summary-judgment-type evidence relevant to the amount in controversy. 20 21 Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018); see also Matheson v. 22 Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (noting that “we have 23 endorsed the Fifth Circuit’s practice of considering facts presented in the removal petition as well 24 as any ‘summary-judgement-type evidence relevant to the amount in controversy at the time of 25 removal’”). “Where doubt regarding the right to removal exists, a case should be remanded to 26 state court.” Id. 27 In the instant case, Mr. Croft has not identified how much he seeks in damages but does 1 damages, medical expenses, punitive damages, and attorney’s fees. See Compl. (prayer for relief). 2 GTT contends that Mr. Croft easily exceeds the $75,000 threshold given these categories:

3 Plaintiff was compensated a base salary of $102,000 per year, plus commissions, when he was employed by GTT. Based on the prayer 4 and the amount Plaintiff was earning pre-termination, GTT estimates that Plaintiff is attempting to seek well over $75,000 in 5 compensatory damages, as well as additional punitive damages and attorneys’ fees (as permitted under the FEHA). The total potential 6 amount in controversy, exclusive of attorneys’ fees and costs and potential punitive damages, is approximately $150,000, which 7 exceeds $75,000. Plaintiff was terminated in mid-January 2020. His potential damages for back pay alone, based on his annual salary 8 of $102,000 are $119,000, excluding commissions ($8,500 base salary per month x 14 months since termination). The amount in 9 controversy will exceed $180,000 should punitive damages be taken into account. 10 11 Opp’n at 9; see also Docket No. 1-1 (Pless Decl. ¶ 3) (testifying that Mr. Croft had a base salary of 12 $102,000 per year, plus commissions, while at GTT). 13 In his reply brief, Mr. Croft argues that he would not get back pay of $119,000 because (1) 14 he “would have no expectation to recover damages for [lost] pay for the six-weeks of unpaid time- 15 off to recovery [from] his surgery in early 2020” and (2) he would have no expectation to recovery 16 damages once he secured replacement employment, which he did “around September 2020.” 17 Reply at 2. According to Mr. Croft, back pay would cover at most the period from March 2020 18 through August 2020, which is 6 months, and 6 months with a $8,500 base salary would amount 19 to $51,000. See Reply at 2 (arguing that “applying appropriate offsets . . . , it is not unlikely that 20 arguments for damages more akin to half a year’s salary . . . would be made”). 21 But there are problems with Mr. Croft’s arguments. First, he has not provided any 22 “summary judgment-type evidence” showing that he secured replacement employment in 23 September 2020. Second, even if he could only get back pay for a 6 month period, he is still 24 seeking medical expenses, punitive damages, and attorneys’ fees. These additional categories 25 more than likely get him over the $75,000 threshold, especially as GTT’s burden here is only 26 preponderance of the evidence. In this regard, the Court takes note that Mr. Croft’s counsel 27 charges $450 per hour and, at least at one point, asked to be compensated $9,900 for bringing the 1 motion to remand.1 See Fordiani Decl. ¶ 6 (testifying that he spent 16.5 hours on the opening brief 2 and expects to spend 4 hours to review the opposition and prepare the reply and 0.5 hour to attend 3 the hearing). Given this, fees for prosecuting this case to conclusion could easily push the total 4 amount in controversy to $75,000. 5 III. CONCLUSION 6 For the foregoing reasons, the Court denies Mr. Croft’s motion to remand. Mr. Cohen was 7 fraudulently joined to the lawsuit and therefore his citizenship can be disregarded. There is 8 complete diversity between Mr. Croft and GTT, and GTT has shown by a preponderance of the 9 evidence that the amount in controversy exceeds $75,000. 10 This order disposes of Docket No. 15. 11 12 IT IS SO ORDERED. 13 14 Dated: May 10, 2021 15 16 ______________________________________

EDWARD M. CHEN

17 United States District Judge 18 19 20 21 22 23 24 25 26 27