1. Under Local Rule 7.1(A)(2), plaintiff's counsel sought consent to remand this action in a conversation with the defendants' counsel, Michael Rosen, Esq., of Foley, Hoag, and Eliot, LLP, on November 3, 1998. The undersigned explained the basis for this motion, but Mr. Rosen did not agree to a remand.
2. Ranging from (1) pre-firing harassment and (2) interference with assistance from the employer's worker's compensation carrier's ergonomist to (3) refusal to allow him time off for medical treatment to (4) dismissal when he took the time off after delaying it repeatedly to accommodate the employer to (5) discrimination against him when he sought, on various occasions, reinstatement or to be hired for another position.
3. The First Circuit has enforced this provision in Armistead v. C & M Transport, Inc., et al., 49 F.3d 43 (1995). The Fifth and Eighth Circuits have also done so in, Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir. 1991) and Humphrey v. Sequentia, Inc., 58 F.3d 1238 (8th Cir. 1995), which involved the anti-retaliation provisions of Workers Compensation statutes. The Seventh Circuit, in Spearman v. EXXON Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994), refused to remand an action under Illinois' common law tort of retaliation, as that tort was not part of the Workers Compensation statute - a distinction noted by the First Circuit in Armistead, in remanding an action brought under Massachusetts' Workers Compensation statute.
4. § 1441. Actions removable generally
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
[subsections (d) and (e) omitted]
5. The prohibition, in the second sentence of § 1441(b), quoted above, against removal of diversity cases if any of the defendants is a citizen of the forum state stands on a different footing from § 1445 nonremovability, as it is the party, not the claim, that is non-removable: See Charles D. Bonanno Linen Service, Inc., et al. v. William J. McCarthy, et al., (1st Cir. 1983), in which the presence of resident defendants against whom only state law claims were asserted (referred to as "the pendent parties") resulted in remanding just those defendants to state court - a result that may best be understood in light of the immunity from suit over union activities that Congress gave union members. That partial remand had the effect of severing the cases, protecting the members from the risk of prejudice from being sued together with the union in the same trial.
6. To see the interaction of § 1441(c) and § 1445, see Gonsalves v. Amoco Shipping Company, 733 F.2d 1020 (2nd Cir. 1984), vacating a jury verdict for the defendant in a case with a claim under the Jones Act - protected from removal under § 1445(a) - as the removable claims were part of the same cause of action with the Jones Act claim, making § 1441(c) bar removal of the case, requiring complete remand.
A recent case, Sherrod v. American Airlines, Inc., 132 F.3d 1112 (5th Cir. 1998), could have provided an example on all fours with the present case. Unfortunately, it's clear from the opinion there that no one in that confused litigation - which involved a plaintiff who filed three parallel lawsuits and even filed her successful motion to remand the Workers Compensation law claim under § 1445(c) in the wrong lawsuit - ever noticed the applicability of § 1441(c) to force remand of all claims. Instead, the opinion in Sherrod focused on whether supplemental jurisdiction to a federal claim could support removal of a Worker's Compensation law claim to federal court, concluding that § 1445(c) was too explicit to allow that. (As no one had argued for remand of the whole case under § 1441(c), the federal claims were allowed to remain.)
7. Lydon recognized, before pre-empting the employee's Workers Compensation retaliation claim - brought under one of the same provisions here sued upon - that if that claim was not pre-empted it would have been non-removable under § 1445(c).
8. The Family and Medical Leave Act contains this important provision at 29 U.S.C. § 2651:
§ 2651. Effect on other laws
(a) Federal and State antidiscrimination laws. Nothing in this Act or any amendment made by this Act shall be construed to modify or affect any Federal or State law prohibiting discrimination on the basis of race, religion, color, national origin, sex, age, or disability.
(b) State and local laws. Nothing in this Act or any amendment made by this Act shall be construed to supersede any provision of any State or local law that provides greater family or medical leave rights than the rights established under this Act or any amendment made by this Act.