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Whitman v. Ruby Tuesday, Inc.

United States District Court, N.D. West Virginia

August 8, 2017

VALERIE WHITMAN, Plaintiff,
v.
RUBY TUESDAY, INC. and JOE MONTGOMERY, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND [DKT. NO. 3]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. BACKGROUND

         On 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.

         During 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 him.[1] In addition, he made derogatory or degrading comments to Whitman regarding her sexual acts that were frequent, severe, physically threatening, and humiliating.[2]

         Two 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”), [3] and Montgomery to address her complaints, no one undertook any corrective action. Instead, the discrimination, harassment, and hostile work environment worsened.

         Throughout 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 employee cry.

         On 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.

         The complaint seeks compensatory damages, punitive damages, attorney fees, costs, interest, and any other relief the Court deems appropriate.

         On 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.

         II. STANDARD OF REVIEW

         A. Removal and Remand

         28 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 ...


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