1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

TABATHA MILLER,

10 Case No. 22-cv-03878-RS Plaintiff, 11 v. ORDER GRANTING MOTION TO 12 REMAND WALMART INC., et al., 13 Defendants. 14

15 I. INTRODUCTION 16 Plaintiff Tabitha Miller brings the instant suit against her former employer Walmart 17 Associates, Inc. and Walmart, Inc. (together, “Walmart”), as well as Walmart employee Emmy 18 Rodriguez, a Front End Lead Manager and/or People Lead for Walmart, and unnamed DOES 1 19 through 50. Plaintiff first filed her suit in the Superior Court of the County of Contra Costa, 20 alleging various causes of action, including claims of harassment in violation of the Fair 21 Employment and Housing Act (FEHA) and intentional infliction of emotional distress, but 22 Defendants removed the action to federal court on the basis of federal diversity. Plaintiff now 23 brings a motion to remand to state court. Defendants oppose on the grounds that Defendant 24 Rodriguez is a sham defendant and therefore her citizenship does not defeat diversity. As 25 discussed below, because it is possible for Plaintiff to state a claim against Defendant Rodriguez, 26 the motion to remand is granted. 27 1 II. BACKGROUND1 2 Plaintiff began her employment with Walmart in Contra Costa County in December 2018. 3 Beginning in 2020, Plaintiff suffered a number of grievances. In February 2020, Plaintiff learned 4 she was pregnant with a high-risk pregnancy, and informed her employer to seek 5 accommodations. These requests were refused, and she was “mock[ed] and harass[ed] . . . for 6 sitting down.” Dkt. No. 16, Ex. 1 (“Compl.”) at ¶ 10. A month later, Plaintiff faced complications 7 requiring surgery and suffered a miscarriage, after which she took a leave of absence. Upon her 8 return, Plaintiff suffered “intensified” harassment from her supervisors and others, and began 9 suffering from depression and anxiety due to “ongoing mistreatment at work.” Compl. at ¶ 12-13. 10 Against this backdrop, Plaintiff described difficulties she faced during the two instances 11 she quarantined after being exposed to COVID-19. The first time, the leave administrator changed 12 Plaintiff’s entries in the leave portal, thereby “complicating” her leave. Compl. at ¶ 14. The second 13 time, Plaintiff was wrongfully terminated—and reinstated only after she disputed the termination. 14 Plaintiff also claims she was not hired for two management positions for which she was qualified: 15 in November 2019, she was told that “because [she] is a woman, she was not strong enough to do 16 the job” of Garden Manager, and she was not hired for Lead Home Lines Manager in May 2020 17 “in retaliation for having complained about discrimination and retaliation.” Compl. at ¶ 16. 18 Plaintiff filed at least two formal complaints with Walmart’s Ethics Department, 19 complained to the Store Manager, and submitted a Charge of Discrimination with the EEOC, all 20 without resolution. Instead, Plaintiff faced retaliation as a result, including micromanaging; 21 exclusion from breaks; comments about taking rest breaks and/or sitting down; refusals for 22 reasonable accommodation; denial of promotions; being stalked during rest breaks; and others 23 “messing with” Plaintiff’s leave paperwork. Compl. at ¶ 18. 24 Due to her resulting anxiety and depression, Plaintiff took an approved leave of absence 25

26 1 The factual background is based on the well-pled allegations in the complaint, which we take as 27 true for the purposes of this motion. 1 from approximately January 2021 to May 2021, during which time she was again terminated and 2 only reinstated after contesting the termination. 3 Plaintiff avers that the discrimination, harassment, retaliation, and mistreatment from the 4 company and supervisors have continued. For this and a number of other violations, Plaintiff filed 5 suit in the Superior Court of the County of Contra Costa. Among her 23 causes of action, only two 6 under the present language of the complaint implicate Defendant Rodriguez: pregnancy disability 7 harassment and intentional infliction of emotional distress. 8 III. LEGAL STANDARD 9 “[A]ny civil action brought in a State court of which the district courts of the United States 10 have original jurisdiction” may be removed to federal district court. 28 U.S.C. § 1441(a). 11 However, there is a “strong presumption against removal jurisdiction,” and thus “the defendant 12 always has the burden of establishing that removal is proper.” Hunter v. Philip Morris USA, 582 13 F.3d 1039, 1042 (9th Cir. 2009). Furthermore, this presumption against removal requires that “the 14 court resolve[] all ambiguity in favor of remand to state court.” Id. 15 To remove an action on the basis of diversity jurisdiction, a defendant must demonstrate 16 complete diversity of citizenship amongst the parties. 28 U.S.C §§ 1332(a), 1441(b). Where it is 17 not the case that “each of the plaintiffs [is] a citizen of a different state than each of the 18 defendants,” Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001) (citations 19 omitted), diversity jurisdiction does not attach. Yet this rule brooks an exception: “where a non- 20 diverse defendant has been ‘fraudulently joined,’” that defendant’s presence does not extinguish 21 diversity jurisdiction. Id. 22 In the Ninth Circuit, “[t]here are two ways to establish fraudulent joinder: ‘(1) actual fraud 23 in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action 24 against the non-diverse party in state court.’” Grancare, LLC v. Thrower ex rel. Mills, 889 F.3d 25 543, 548 (9th Cir. 2018) (quoting Hunter, 582 F.3d. at 1044). To satisfy the latter method, the 26 defendant must show with “clear and convincing evidence,” Hamilton Materials, Inc. v. Dow 27 Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007), that it is “obvious according to the settled rules 1 of the state” that the plaintiff cannot state a claim against them. Hunter, 582 F.3d at 1046. In other 2 words, “if there is a possibility that a state court would find that the complaint states a cause of 3 action against any of the resident defendants, the federal court must find that joinder was proper 4 and remand the case to state court.” Grancare, 889 F.3d at 548 (citing Hunter, 582 F.3d at 1046). 5 This presents a standard more exacting than the Rule 12(b)(6) dismissal for failure to state a claim, 6 as the district court “must consider . . . whether a deficiency in the complaint can possibly be 7 cured by granting the plaintiff leave to amend.” Id. at 550. Only those claims for which any 8 amendment would be futile will meet the deficiency standard required to find a joinder fraudulent. 9 IV. DISCUSSION 10 In her motion to remand, Plaintiff identifies six allegations concerning Defendant 11 Rodriguez’s conduct. including: (1) nefariously changing Plaintiff’s leave requests in the third- 12 party administrator portal, thereby “complicating” Plaintiff’s leave (Compl. at ¶ 14); 13 (2) micromanaging Plaintiff, excluding Plaintiff from rest breaks, stalking Plaintiff during breaks, 14 and making inappropriate comments about her taking breaks (Compl. at ¶ 19); (3) “messing with” 15 Plaintiff’s scheduling in retaliation for being named in Plaintiff’s complaints about harassment 16 (Compl. at ¶¶ 21-22); (4) repeatedly attempting to get rid of Plaintiff by improperly altering her 17 schedule (Compl. at ¶ 22); (5) harassing Plaintiff due to her sex and pregnancy (Compl. at ¶ 40); 18 and (6) acting in an extreme and outrageous fashion (Compl. at ¶ 126). 19 Defendants correctly note that several of these referenced paragraphs, as written in the 20 complaint, do not specifically reference Defendant Rodriguez. Paragraph 14 pleads that 21 “management would nefariously change Plaintiff’s entries,” and Paragraph 19 details that Plaintiff 22 “experienced” the offensive behavior, without identifying the actors responsible. Only Paragraphs 23 21 and 22, alleging that Plaintiff was wrongfully removed from the work schedule for two weeks 24 on or about May 2, 2022, are specifically made with respect to Defendant Rodriguez. This was 25 retaliation by Defendant Rodriguez for being included in Plaintiff’s “complaints about ongoing 26 harassment, discrimination, retaliation, depression, anxiety, and stress,” a belief which was “based 27 on Defendant Rodriguez repeatedly attempting to get rid of Plaintiff and improperly altering 1 Plaintiff’s schedule.” Compl. at ¶¶ 21-22. Plaintiff’s claims for disability pregnancy harassment 2 and IIED are evaluated with these allegations in mind.2 3 A. FEHA Disability Harassment 4 Under the FEHA, it is unlawful for an employee to be harassed by either an employer or a 5 fellow employee because of physical disability, age, or gender. Cal. Gov’t Code § 12940(j). 6 Harassment “refers to bias that is expressed or communicated through interpersonal relations in 7 the workplace.” Roby v. McKesson Corp., 47 Cal. 4th 686, 707 (2009). It “consists of conduct 8 outside the scope of necessary job performance, conduct presumably engaged in for personal 9 gratification, because of meanness or bigotry, or for other personal motives.” Janken v. GM 10 Hughes Elecs., 46 Cal. App. 4th. 55, 63 (1996). While “commonly necessary personnel 11 management actions, such as hiring and firing, job or project assignments, office or work station 12 assignments, promotion or demotion, performance evaluations . . . do not come within the 13 meaning of harassment,” Reno v. Baird, 18 Cal. 4th 640, 646–47 (1998) (citations omitted), the 14 California Supreme Court has made clear that “some official employment actions” can form the 15 basis for a harassment cause of action, because they “can also have a secondary effect of 16 communicating a hostile message.” Roby, 47 Cal. 4th at 709. In order to be actionable, such 17 harassing actions must be sufficiently “severe or pervasive as to alter the working conditions” and 18 create a hostile environment. Id. at 708 (citations omitted). 19 As pled, the specific allegations against Defendant Rodriguez, which largely concern 20 changes made to Plaintiff’s work schedule, do not evince conduct so “severe or pervasive as to 21 alter [Plaintiff’s] working conditions.” Even if Defendant Rodriguez’s actions were retaliatory, it 22 is also unclear that any purported harassment was directly based on Plaintiff’s pregnancy. Plaintiff 23

24 2 Paragraphs 40 and 126 are conclusory and devoid of specific allegations with respect to Defendant Rodriguez’s conduct, and therefore not discussed further. 25 Plaintiff suggests that she “clarified that references to management sometimes referred to 26 Defendant Rodriguez” in her motion to remand. Dkt. No. 18 at 5. While this supports the idea that Plaintiff may be able to cure by amending her complaint, Plaintiff’s claims will be evaluated in 27 light of the facts in her well-pled complaint. 1 does not presently state a claim for harassment.3 Nonetheless, Defendants have not met their 2 burden of proving that Plaintiff could not possibly do so, if given leave to amend. 3 Defendants argue that Plaintiff’s submission of a verified complaint amounts to a tacit 4 admission that Plaintiff has no additional facts, and thereby precludes Plaintiff from adding to the 5 complaint. Dkt. No. 17 at 10. This does not pass muster in light of the liberal amendment policy 6 under both federal and state procedural law. Defendants’ appeal to Hendy v. Losse to argue the 7 contrary, moreover, is misplaced. Hendy cautions that “[w]here a verified complaint contains 8 allegations destructive of a cause of action, the defect cannot be cured in subsequently filed 9 pleadings by simply omitting such allegations without explanation.” 54 Cal. 3d 723, 742 (1991) 10 (citations omitted) (emphasis added). Plaintiff’s amendment in Hendy was denied because it 11 would have been contradictory to an earlier-pled fact (alleging that the defendant was an 12 independent contractor, not an employee, as originally claimed in the complaint), but Plaintiff “did 13 not suggest to the trial court that a factual basis existed for amendment of the complaint . . . and he 14 has not demonstrated to this court either that the allegation that [defendant] was an employee was 15 the result of inadvertence or mistake, or that he has since discovered a factual basis for alleging 16 that [defendant] was an independent contractor.” Id. at 743. By contrast, an amendment adding 17 details about Defendant Rodriguez’s conduct would neither omit already-pled facts nor introduce 18 facts that necessarily conflict with what Plaintiff originally verified in her complaint. 19 Because Plaintiff may amend her complaint, it is presently impossible to determine that the 20 allegations against Defendant Rodriguez cannot, as a matter of law, establish a cause of action for 21 harassment in violation of FEHA. The California Legislature has proclaimed that “a single 22 incident of harassing conduct is sufficient to create a triable issue regarding the existence of a 23 hostile work environment,” provided that such conduct “has unreasonably interfered with the 24 plaintiff’s work performance or created an intimidating, hostile, or offensive working 25

26 3 Plaintiff’s inapposite citation to Silverman v. Wells Fargo Ins. Servs. USA, Inc., 20 F. Supp. 3d 1357 (S.D. Fla. 2014), an out-of-district case analyzing tortious interference with an advantageous 27 business relationship under Florida law, likewise does not further her case. 1 environment.” Cal. Gov’t Code § 12923. Plaintiff’s complaint includes broad allegations of 2 inappropriate comments about rest breaks and stalking, which present the possibility of allegations 3 supportive of pregnancy-related harassment. The allegations that Defendant Rodriguez took 4 retaliatory action for being included in “complaints about ongoing harassment, discrimination, 5 retaliation, depression, anxiety, and stress,” and that Defendant Rodriguez “repeatedly attempt[ed] 6 to get rid of Plaintiff,” moreover, suggest the possibility that conduct was continued, rather than 7 isolated. Compl. at ¶¶ 20, 22. While Defendants’ caselaw citations are helpful markers for the kind 8 of conduct that falls short of the required threshold for harassment, they do not present a bar to the 9 potential allegations Plaintiff may make in the future. 10 B. Intentional Infliction of Emotional Distress (IIED) 11 To prevail on her claim for IIED, Plaintiff must show: “(1) extreme and outrageous 12 conduct by the defendant with the intention of causing, or reckless disregard of the probability of 13 causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and 14 (3) actual and proximate causation of the emotional distress by the defendant's outrageous 15 conduct.” Light v. Dep’t of Parks & Recreation, 14 Cal. App. 5th 75, 101 (2017). Critically, to 16 qualify as “outrageous,” the conduct must be “so extreme as to exceed all bounds of that usually 17 tolerated in a civilized community.” Id. (citations omitted). 18 Defendants claim Plaintiff cannot possibly sustain her IIED claim because personnel 19 decisions can never constitute the requisite outrageous conduct for IIED liability, and IIED claims 20 are entirely barred by workers’ compensation exclusivity. Dkt. No. 17 at 5. They are mistaken. 21 The California Court of Appeal has explained that plaintiffs may pursue their claims “where the 22 conduct at issue violates FEHA and also satisfies the elements of the [IIED] claim,” because such 23 “unlawful discrimination and retaliation in violation of FEHA falls outside the compensation 24 bargain,” and therefore outside the ambit of “worker’s compensation exclusivity. ” Light, 14 Cal. 25 App. 5th at 101. Whereas courts will dismiss allegations amounting to a plaintiff’s simple 26 discontent with personnel decisions, see Buscemi v. McDonnell Douglas Corp., 736 F.2d 1348, 27 1352 (9th Cir. 1984) (Plaintiff’s claim was “no more than a claim that [he] was fired without good 1 cause and that as a result he suffered emotional distress”), claims where the distress arises from 2 offensive conduct outside the normal course of employment or the employer’s role will not be 3 barred, as such conduct does not “stem[] from a risk reasonably encompassed within the 4 compensation bargain.” Light, 14 Cal. App. 5th at 97-98 (collecting cases concluding that “claims 5 for [IIED] in the employment context may be asserted where the actionable conduct also forms the 6 basis for a FEHA violation”). 7 Here, Plaintiff claims she suffered IIED based on retaliation and harassment related to her 8 “sex, pregnancy, and disability.” Dkt. No. 16 at 8. Cases where courts have declined to find IIED 9 for personnel decisions like pretextual termination or work-related criticism are therefore 10 inapposite. See Dkt. No. 17 at 8-9. Indeed, this court has previously declined to find fraudulent 11 joinder in similar situations. See, e.g., Tuens v. U.S. Bank Nat'l Ass’n, 2020 WL 5893406, at *5 12 (N.D. Cal. Oct. 5, 2020) (issuing order to show cause why joinder was not proper, and later 13 remanding4, where Plaintiff complained of a “pattern of hostile conduct” by employer that 14 “culminated in [Plaintiff’s] termination,” including issuance of an action plan for unsatisfactory 15 performance and denying credit for business opportunities developed); Browand v. Ericsson Inc., 16 2018 WL 3646445, at *8 (N.D. Cal. Aug. 1, 2018) (finding IIED claim survived where Plaintiff 17 alleged differential treatment of women, such as refusing to offer additional training, lying about 18 why Plaintiff would not be receiving a raise, and focusing on career opportunities for male 19 employees not provided to female employees like Plaintiff). 20 As Plaintiff’s complaint does not clearly specify which specific actions comprised the 21 alleged harassment, it fails to demonstrate the outrageousness necessary for IIED liability. 22 Nevertheless, “vagueness is not necessarily enough to merit a finding of fraudulent joinder.” 23 Browand, 2018 WL 3646445, at *8. As explained above, Plaintiff’s references to conduct such as 24 ongoing harassment and stalking prevent the conclusion that it is impossible for Plaintiff to state a 25

26 4 Order Remanding Case, Tuens v. U.S. Bank Nat’l Ass’n, No. 20-cv-03459, ECF No. 31 (N.D. 27 Cal. Nov. 9, 2020). 1 claim for ITED, should she amend to provide additional facts that rise to outrageous behavior. Dkt. 2 No. 16 at 8; see also Reyes v. Marshalls of CA, LLC, 2022 WL 2753520, at *4 (C.D. Cal. July 14, 3 2022). Ultimately, “[Plaintiff] has not stated claims for FEHA harassment against [Defendant] but 4 ...1tis possible that she could. Thus, it is also possible that [Plaintiff] could state a claim for □□□□ 5 against [Defendant].” Tuens, 2020 WL 5893406, at *7. 6 V. CONCLUSION 7 While Plaintiffs present allegations may not amount to actionable claims for harassment 8 and ITED, the fact that she could theoretically present viable claims if she were given leave to 9 || amend renders remand appropriate. Accordingly, the motion to remand is granted. 10 11 IT IS SO ORDERED. 12

13 Dated: September 16, 2022 =

RICHARD SEEBORG

IS Chief United States District Judge 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28 ORDER GRANTING REMAND CASE No. 22-cv-03878-RS