United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S
MOTION TO REMAND [DKT. NO. 3]
M. KEELEY UNITED STATES DISTRICT JUDGE.
before the Court is the motion to remand filed by the
plaintiff, Valerie Whitman (“Whitman”) (dkt. no.
3). For the reasons that follow, the Court
GRANTS Whitman's motion and
REMANDS this civil action to the Circuit
Court of Harrison County, West Virginia.
August 10, 2016, the defendant Ruby Tuesday, Inc.
(“Ruby Tuesday” or “Company”) hired
Whitman as an assistant manager. After she completed her
training at Ruby Tuesday's Uniontown, Pennsylvania
location, Whitman began working as the assistant manger at
Ruby Tuesday's Clarksburg, West Virginia, restaurant on
October 3, 2016.
her employment, Whitman performed all of her work duties in a
satisfactory or above satisfactory manner and never committed
any dischargeable offense. Nevertheless, shortly after
beginning work at the Clarksburg location, Whitman
experienced gender discrimination, harassment, and a hostile
work environment, largely due to the actions of the
defendant, Joe Montgomery (“Montgomery”).
Montgomery, who had knowledge of Whitman's lesbian sexual
orientation prior to her employment at the Clarksburg
location, refused to allow her to speak directly to
In addition, he made derogatory or degrading comments to
Whitman regarding her sexual acts that were frequent, severe,
physically threatening, and humiliating.
weeks after she began work, Whitman reported the hostile work
environment and discrimination to Shawna, the General Manager
of Ruby Tuesday in Uniontown. Although Whitman met with
Shawna, Buddy Beavers (“Beavers”),  and Montgomery to
address her complaints, no one undertook any corrective
action. Instead, the discrimination, harassment, and hostile
work environment worsened.
Whitman's employment at the Clarksburg location, she
suffered sexual harassment from several other male employees
who, like Montgomery, made inappropriate and unwelcome
comments about sexual acts or insinuating sexual contact with
her. She reported the sexual harassment to Montgomery, who
laughed about the situation and again failed to take any
corrective action. Further, when Whitman reported the sexual
harassment to Beavers, he assured her that he would schedule
a meeting regarding her complaints, but he never did so. On
December 21, 2016, Beavers, on behalf of Ruby Tuesday,
terminated Whitman's employment, stating as the basis
that she had cursed at another employee and had made that
March 13, 2017, Whitman filed her complaint against the
defendants in the Circuit Court of Harrison County, West
Virginia, asserting four causes of action:
• Count I: Gender
Discrimination/Stereotyping under the
WVHRA;• Count II:
Hostile Work Environment - Sexual Harassment under the WVHRA;
• Count III: Retaliatory Discharge
under the WVHRA; and
• Count IV: Tort of Outrage.
complaint seeks compensatory damages, punitive damages,
attorney fees, costs, interest, and any other relief the
Court deems appropriate.
April 18, 2017, pursuant to 28 U.S.C. § 1332, the
defendants removed the case to the this Court based on
diversity jurisdiction, arguing that Whitman, a West Virginia
citizen, had fraudulently joined Montgomery, who is also a
West Virginia citizen, for the sole purpose of destroying
diversity. On April 21, 2017, Whitman amended her complaint,
adding several factual allegations to the existing claims
(dkt. no. 2), and also filed a motion to remand (dkt. no. 3).
The motion is fully briefed and ripe for review.
STANDARD OF REVIEW
Removal and Remand
U.S.C. § 1441 permits a defendant to remove a state
court action to a federal district court if that court would
have had diversity jurisdiction over the case when it was
first filed. See KJBJ, LLC v. EnerVest Operating,
LLC, 2016 WL 3566865, at *2 (N.D. W.Va., June 27, 2016).
A district court has original jurisdiction when there is
complete diversity of citizenship between the parties and the
amount in controversy exceeds $75, 000. See 28
U.S.C. § 1332(a)(1). If the court lacks jurisdiction or
has doubt “about the propriety of ...