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November 30, 2007
RAY A. PARKER, AND CAULETTE PARKER, HIS WIFE, PLAINTIFFS,v.VERIZON PENNSYLVANIA, INC., KIMBERLY K. ONESKO, AND GEORGE ONESKO DEFENDANTS.
Memorandum Opinion
I. Introduction
This is an action for employment discrimination. Plaintiff, Ray Parker (Parker), alleges that defendant, Verizon Pennsylvania, Inc. (Verizon), discriminated and retaliated against him in violation of Title I of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) by terminating him for exercising his rights under the ADA and the FMLA. Plaintiff*fn1 and his wife, Caulette Parker, also bring a state law claim of trespass against defendants, Kimberly Onesko and George Onesko for allegedly entering upon plaintiffs' property unlawfully and without consent on September 14, 2006. Pending before this Court is defendants' motion for summary judgment (doc. no. 26), with supporting documentation, and plaintiffs' response in opposition thereto (doc. no. 36). After careful consideration, and for the reasons that follow, defendants' motion for summary judgment (doc. no. 26) will be GRANTED as to the ADA and FMLA claims, and the remaining state law claim will be dismissed without prejudice.
II. Facts
The Court has assimilated approximately 99 pages of joint material facts submitted by the parties and has gleaned the following material facts.*fn2
Plaintiff was hired by Verizon as a Customer Sales and Service Consultant (CSSC) in November, 2003, and following training at the Stanwix Street, Pittsburgh, location, he was assigned to Verizon's Robinson Township Call Center.
As a CSSC, plaintiff's primary job duty was to answer telephone calls from Verizon customers who had service or billing issues, and in addition to speaking on the telephone, he was required to enter information into a computer relating to the customer call. Plaintiff concedes that talking on the telephone was an essential part of the CSSC job.
In August 2004, plaintiff was diagnosed with Sarcoidosis, an autoimmune disease that causes inflammation of the lungs and he was also diagnosed with Pulmonary Fibrosis (formation of scar tissue in the lungs resulting in inability to exchange gases resulting in hypoxemia) by his treating physician, Dr. Gosai.*fn3 As a result of plaintiff's diagnosis, he was required to treat with steroids, as well as Methotrexate, a drug with potentially severe side effects including nausea and diarrhea. Plaintiff also testified that although he had an oxygen tank available, he generally did not take the tank to work with him (except during his work at the Washington facility of Verizon). R. Parker Deposition at 69-70.
From the time of his diagnosis, plaintiff testified that he was able to dress, shower while sitting down, cook, walk short distances (in fact his doctor recommended that he walk more), mow his lawn, shop, drive, garden, exercise, spend time with his wife, and engage, as a Jehovah's Witness, in door-to-door religious ministry on a monthly basis, which involved talking to people at their homes (plaintiff engaged in this activity for a total of 60-70 hours).
In August 2004, the same month plaintiff was diagnosed with Sarcoidosis, he began his first (of three) short-term disability leaves. Following his first short term disability leave, in December 2004, he returned to the same job at the same number of hours and the same rate of pay. A few days after returning from his first leave, plaintiff began another second short-term disability leave and returned to work in February, 2005.
Prior to plaintiff's return to work in February, 2005, plaintiff's primary care physician, Dr. Gosai, sent a letter to Verizon*fn4 recommending that: (1) plaintiff be permitted to work a shorter work week and work day; (2) that plaintiff be assigned work that does not involve talking on the telephone; (3) that plaintiff's commute be shortened; and (4) that plaintiff initially work three days per week with one day off in between each day. Ms. Onesko spoke with plaintiff about the accommodations he requested.
Although defendant did not agree to plaintiff working with days off in between each day, defendant did permit plaintiff to work a reduced schedule of fewer hours each day. Verizon also honored Dr. Gosai's recommendation that plaintiff have no external or internal customer contact.
Defendants contend that because customer contact was the primary duty of his CSSC job, defendants actually created a position for plaintiff by placing him an "off-line" position where no talking was required. Plaintiff disputes that contention and argues that because plaintiff was designated a medically restricted employee in accordance with Verizon's Mid-Atlantic Medically Restricted Policy he was placed in an off-line position. Regardless of the characterization of whether a job was actually created for plaintiff, defendants did accommodate plaintiff by accepting Dr. Gosai's recommendation that plaintiff be assigned to work that did not involve talking on the telephone.
As to plaintiff's request that he be transferred to Verizon's Greensburg or Uniontown facilities because he wanted a less stressful commute, defendants did not agree to that accommodation because it deemed that request as not relating to his ability to perform his job with Verizon.
In the spring of 2005, while plaintiff was performing the off-line position, he requested a transfer to a less physically demanding job, despite the fact that he also testified that the off-line position was not physically demanding. R. Parker Depo. at 108-109.
In May 2005, Call Center Manager Joyce Adams told plaintiff and other employees with medical restrictions that positions in the Greensburg office would be available for those with restrictions that still allowed customer contact, but no sales. Plaintiff then contacted Dr. Gosai, who eventually changed plaintiff's restrictions to allow customer contact with no sales. Plaintiff testified that the reason for this change was based upon his medical condition stabilizing slightly during this time.
In December 2005, plaintiff began his third leave of absence and returned to work in February 2006, with restrictions of no talking on the telephone or customer contact. Following his return, based upon space issues at the Robinson facility, plaintiff, along with the entire off-line group, were transferred to Verizon's Washington, Pennsylvania facility, which was closer to plaintiff's home. Although the off-line position in Washington was the same number of hours as the CSSC, plaintiff's position went from having flexible start and end times, to a fixed start and end time. Plaintiff testified that he could not "think of any" instance where Verizon personnel refused to discuss any reasonable accommodations. R. Parker Depo. At 230-231.
Beginning in July or August 2006, plaintiffs decided to purchase a ranch style modular home because plaintiff was allegedly having difficulty climbing stairs in the former residence. While the home was being built, plaintiffs were residing with their aunt, approximately three blocks from the "construction site" where the new residence was being built.
On September 14, 2006, plaintiff called off work at approximately 7:45 a.m. by leaving a message for Susan Nelson, a Verizon Absence Administrator, stating: "I was taking an FMLA day today, that I wasn't feeling well." R. Parker Depo. at 148-149.
Plaintiff testified that on September 14, 2006, because he had taken the Methotrexate the night before, he "felt real nauseous" and had had "diarrhea throughout the night." R. Parker Depo at 149. Nonetheless, plaintiff left his aunt's home and went to the construction site of the new home, although plaintiff testified that he did normally go to the new home when he was feeling sick.
On September 14, 2006, plaintiff Caulette Parker had taken a half-day of work, and several construction workers as well as Caulette Parker's father were scheduled to be working at the construction site that day.
Plaintiff met the workers at the construction site and testified that he then went back to the bedroom and laid down on an inflatable mattress until his father-in-law arrived. R Parker Depo at 158. Plaintiff's father-in-law arrived at the construction site at 9:30-10:00 a.m. to build a set of stairs. Plaintiff testified that he walked up and down a set of 15 stairs a couple of times during the day. While plaintiff was in the basement, his father-in-law used an electric saw to construct the stairs. Plaintiff's father-in-law left the construction site at approximately 3:00 p.m.
Plaintiff did not call or go to the doctor's office on September 14, 2006.
Meanwhile, on the morning of September 14, 2006, Andrew Roberts, the husband of plaintiff's then manager, Debra Roberts, called his wife at Verizon and told her that he had seen plaintiff unloading something at the construction site. Plaintiff denies that he helped move materials or that he performed work on his new home. Nonetheless, Ms. Roberts then called Absence Administrator Susan Nelson and told Ms. Nelson that Mr. Roberts had seen plaintiff unloading what appeared to be shingles from a white van. After speaking with Kimberly Onesko, another Absence Administrator, hours later, Ms. Roberts also emailed Ms. Nelson and stated as follows:
On the day of 09-14-06 my husband Andrew Roberts was visiting his cousin that lives [sic] the Hiller area, which is nearby the house that Ray Parker is building. My husband saw Ray and a few other men unloading a white van that looked like it contained shingles then when my husband spoke with me he let me know he saw ray doing work at his new house which by the way he doesn't live there. Ray had advised me before he couldn't move in until the township had approved occupancy because the foundation needed to be finished. Ray is staying with in-laws just a few streets over from his new house. So after speaking with my Husband I called Suzy Nelson and advised her of the situation because Ray wasn't at work.
Susan Nelson Depo., Exhibit 9.
Ms. Onesko and Ms. Nelson agreed that a home visit should be conducted, and Ms. Onesko would do the home visit because she was more familiar with the area. Ms. Onesko left the Robinson Township Call Center at approximately noon and drove by the construction site, but she did not see plaintiff. Ms. Onesko then returned to her home to get a camera and asked her husband, George Onesko, who was not a Verizon employee, to accompany her on the home visit. The Oneskos returned to the construction site, which was marked with no trespassing signs, and observed plaintiff inside the garage. After conferring with Verizon Labor Relations Manager Cindy Marinari, Ms. Onesko decided to approach plaintiff. At approximately 5:30p.m., Ms. Onesko walked on the driveway to the Parkers' garage door, which was open. Ms. Onesko prepared notes of her home visit and her typed memorandum stated, in relevant part:
I approached the open garage door area - heard an electric saw being used in the basement area. I called out Ray's name, remaining outside the garage. Ray entered the garage from the basement area. Ray was perspiring and wiping his hands on a rag. At this point the saw stopped running.
Onesko Depo., Exhibit 18.
Plaintiff entered the garage from the basement of the house, and Ms. Onesko told plaintiff that if he was feeling better, he was required to report to work. Plaintiff responded that he was "starting to feel better, but [he] was not feeling well enough to go into work." R. Parker Depo. at 195. During this conversation, plaintiff Caulette Parker also entered the construction site to find her driveway at least partially blocked by the Oneskos' van. Mr. Onesko did not get out of the van during the conversation between plaintiff and Ms. Onesko. Plaintiffs never asked either of the Oneskos to leave the property. In fact, plaintiffs engaged in discussion with Ms. Onesko while she was on the property. The Oneskos caused no physical damage to the property. Plaintiff also believes that Mr. Onesko was on his property earlier in the day on September 14, 2006 allegedly to take photographs of plaintiff, but admits that Mr. Onesko was only on the property for one to two minutes, that plaintiff spoke to Mr. Onesko, that Mr. Onesko did no harm to the property and that plaintiff did not ask Mr. Onesko to leave. R. Parker Depo. at 181-183.
On September 15, 2006, plaintiff was suspended from his employment at Verizon pending further investigation of potential falsification of his medical condition. During the investigation, Ms. Nelson and Verizon Call Center Manager Rori Broggi*fn5 reviewed information that was provided by Ms. Onesko, which provided:
Investigation - Absence of Ray Parker on 9-14-06 Ray Parker has an NCS date of 11-17-2003. He has been medically restricted or on disability since 7-2004. His current work location is 41 E. Beau St. Washington Pa. He is part of the group of medically restricted consultants. He works a 10:30 to 7 tour. The home visit today was prompted by information provided by Deborah Roberts - temp management in Washington, PA. She advised that Ray was seen this morning at his home under construction helping to unload what appeared to be sheets of material from a white truck.
- Approximately 1:30 p.m. - visual observance of Ray's dark grey Mitsubishi parked outside the home he is building on the 3rd St. In Hiller Pa.
- Approximately 3:00 - car still parked outside the home.
- Approximately 5:00 - saw Ray Parker and a ladder - just inside the garage door opening (there are no doors installed) where the electrical service box is located.
- 5:25 p.m. - I approached the open garage door area - heard an electric saw being used in the basement area. I called out Ray's name, remaining outside the garage. Ray entered the garage from the basement area. Ray was perspiring and wiping his hands on a rag. At this point the saw stopped running. I told Ray I was aware he had reported off sick using his FMLA certification this morning, and asked him to explain how his absence for his precertified illness related to his performance of construction work on his new home. Ray said he had been sick that morning. At this point his wife entered the garage area from the street. She added that he had diarrhea in the morning. I told Ray that since he was no longer ill, he would be expected to report to work for the remainder of his tour. Verizon's expectation is that when you are too ill to work, you should remain at home, but once you are well, you would report to work. Ray asked what he should do and I advised him it was his decision but that he could choose to report to his work location for the balance of his tour. I also advised Ray that at this point he would not be paid for today's absence, and an investigation will ensue. Ray asked what would happen - I told him this would be investigated under the Code of Conduct. His wife said that he would be contacting the union; she also said Verizon, and me in particular, had been rude to her husband, as well as his doctor's office. She explained this was in reference to a conversation in the past between me and a nurse at his dr. office concerning the wording of his medical restriction. At that point I told Ray that I had nothing further to add today, and I departed.
I have also attached 7 photographs taken at the site today.
Kim Onesko - Absence Administrator
Nelson Depo. at 74-75; K. Onesko Depo. Exhibit 18.
Although plaintiff admits that Ms. Onesko wrote the above information, plaintiff denies that he performed any work on his new house on September 14, 2006.
Based upon the collective decision of management employees, Susan Nelson, Cindy Marinari, Rori Broggi, and Michael Billups, on September 26, 2006, plaintiff was discharged from Verizon on the basis that he misrepresented his health condition in violation of Verizon's Code of Business Conduct. Plaintiff's Discharge Notice stated that he was being discharged for violating the following provision from Verizon's Code of Business Conduct:
3.3.1 Company Benefits
Verizon's benefits plans and programs are provided as compensation and must be used honestly. You must not misrepresent your health status, your covered members, your beneficiaries, or any other facts, including reasons for absence, in order to claim benefits to which you, or someone else, are entitled.
R. Broggi Depo, Exhibit 18.
In addition to disputing the reason for the discharge, plaintiff testified that Verizon Manager Ms. Broggi yelled at plaintiff in front of his co-workers when she learned that he had restrictions that prevented him from working on the telephone in February 2006 and allegedly tried to force him to resign. Plaintiff also testified that he was denied a scheduled pay raise and was forced to file a grievance in order to receive his pay raise. Plaintiff further contends that the email sent by Ms. Onesko (a non-decision maker) to other decision-makers at Verizon, that Ms. Onesko stated that "I really hate to send him to the Washington office, because he lives in Bentleyville," supports his claim. Doc. No. 35-9, K. Onesko Depo., at 60-67 and Exhibit 13.
III. Standards of Review
Summary judgment under Fed.R.Civ.P. 56(c) is appropriate "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001), quoting Foehl v. United States, 238 F.3d 474, 477 (3d Cir.2001) (citations omitted). In deciding a summary judgment motion, the court must "view the evidence ... through the prism of the substantive evidentiary burden" to determine "whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of the evidence required by the governing law or that he did not." Anderson v. Consolidated Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993). Thus the non-moving party cannot rest on the pleadings, but instead must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), and cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex, 477 U.S. at 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n. 1 (3d Cir. 1994).
"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004.) See also Doe v. County of Centre, PA, 242 F.3d 437, 446 (3d Cir. 2001) (court must view facts in the light most favorable, draw all reasonable inferences, and resolve all doubts, in favor of the nonmoving party ).
IV. Discussion
In analyzing claims for discrimination and retaliation under the ADA and the FMLA, we apply the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this scheme: (1) plaintiff bears the burden of establishing a prima facie case of discrimination; (2) the burden of production then shifts to defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action; and (3) if defendant meets its burden of production, plaintiff must prove by a preponderance of the evidence that defendant's proffered reason was a pretext for discrimination. See McDonnell Douglas, 411 U.S. at 802; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-508 (1993).
(1) Prima Facie Case
In order to establish that Verizon has violated the ADA, and therefore, engaged in disability discrimination, plaintiff must show that: (1) he is disabled within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (3) he has suffered an adverse employment action as a result of discrimination. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999); Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir. 1998).
"Disability" is defined as (a) a physical/mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such impairment; or (c) being regarded as having such an impairment. 42 U.S.C. § 12102(2). The "regarded as" provision means either (1) a covered entity mistakenly believes that a person has an impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).
Merely having an impairment does not make a person disabled under the ADA. Toyota Motor Mfg, KY. Inc. v. Williams, 534 U.S. 184 (2002). Plaintiff also must demonstrate that the impairment limits a major life activity. Id. A major life activity is "substantially limited" if
(1) the impairment renders the individual unable to perform a major life activity that the average person in the general population can perform; or (2) the individual is significantly restricted as to the condition, manner, or duration under which the individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j)(1)(i)-(ii); Endres v. Techneglas, Inc. 139 F.Supp.2d 624, 625 (M.D. Pa. 2001).
Major life activities are "those activities that are of central importance to daily life." Toyota Motor Mfg, KY. Inc. v. Williams, 534 U.S. 184 (2002). Major life activities include: caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting and reaching. Kralik v. Durbin, 130 F.3d 76, 78-79 (3d Cir. 1997).
(a) Plaintiff has Arguably Shown that he is Disabled within the Meaning of the ADA
Plaintiff claims that he suffers from two disabilities: Sarcoidosis and Depression, and that he is substantially limited in the major life activities of breathing, talking, walking and thinking, thus rendering him disabled under the ADA definition.
As to plaintiff's claim that he is substantially limited in the major life activity of talking, plaintiff testified that "whenever I talk a lot, I get winded, I'm not able to talk constantly because of the damage to my lungs." R. Parker Deposition at 27. Plaintiff's treating physician also stated in his report that plaintiff's Sarcoidosis and Pulmonary Fibrosis affect the ability of the lungs to exchange gases. However, there is no dispute that plaintiff testified that following his diagnosis, he, as a Jehovah's Witness, has spent between 60 to 70 hours going to homes in the community to talk to people about religion. Also, as defendants point out, plaintiff spoke for approximately six hours during his deposition, and plaintiff currently works as a Customer Services Representative for Teletech, where he talks on the telephone regularly and requires no accommodation to do so. Doc. No. 39, Joint Statement of Facts at ¶ 76.
In Walker v. Independence Blue Cross, 2005 WL 1266590, at *5 (E.D. Pa. May 27, 2005), the Court held that an employee's inability to talk on the phone for long periods of time at work "is actually a claim of impairment in the major life activity of working" not of talking. Accordingly, under Walker, plaintiff's claim that he is substantially limited in the major life activity of talking is actually more akin to an alleged substantial limitation in the major life activity of working. Plaintiff has neither claimed nor established that he is substantially limited in the major life activity of working.
Keeping in mind that the threshold to be considered disabled under the ADA is a high standard, Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002), plaintiff has failed to set forth any evidence, other than the report of his treating physician, to support his contention that he is "substantially limited" in the major life activities of breathing, walking and thinking. However, when viewing the facts in the light most favorable to plaintiff, through his diagnosis, the report of his physician, and his testimony, plaintiff has at least arguably created an issue of fact to demonstrate that his impairments (as to his breathing) render him "significantly restricted as to the condition, manner, or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(i)-(ii); Endres v. Techneglas, Inc. 139 F.Supp.2d 624, 625 (M.D. Pa. 2001).*fn6
Accordingly, for purposes of summary judgment, plaintiff has presented sufficient evidence to create a material issue of fact regarding whether he is disabled under the ADA.
(b) Plaintiff has Arguably Shown that he is Otherwise Qualified to Perform the Essential Functions of the Job
Next, in order to make out a prima facie case of discrimination under the ADA, plaintiff must show that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation. See Taylor v. Phoenixville Sch. Dist., 184 F.3d at 306.
Plaintiff was otherwise qualified to perform the essential functions of the job, at least with reasonable accommodations. With the reasonable accommodations which were afforded by Verizon, plaintiff was able to perform an "off-line" position, but he was unable to perform the every essential function of the job of CSSC. In fact, Verizon tailored the requirements of the job and changed plaintiff's job to an "off-line" capacity just to accommodate plaintiff's alleged inability to talk for long periods of time. Although the Court is not convinced that plaintiff has shown that he was able to perform all of the essential functions of the job of CSSC, for purposes of summary judgment, the Court will resolve the dispute in plaintiff's favor and assume that plaintiff was able to perform the essential functions of the job with accommodations.
(c) Plaintiff has not Shown that he has Suffered an Adverse Employment Action as a Result of Discrimination
Plaintiff has presented no evidence to create a material issue of fact that he suffered an adverse employment action as a result of discrimination. An adverse employment decision includes an employer's failure to accommodate, reasonably, the employee's disability. Turner v. Hershey Chocolate U.S.A., 440 F.3d 604, 611 (3d Cir. 2006). An employer also has a duty to engage, in good faith, in the "interactive process," with the employee. Reifer v. Colonial Intermediate Unit 20, 462 F.Supp.2d 621 (M.D. Pa. 2006)(citations omitted).
As stated above, the evidence presented demonstrates that based upon the letter from plaintiff's treating physician, Dr. Gosai, Verizon made several accommodations to plaintiff's schedule and manner of work. Plaintiff has presented no evidence to show that defendant failed to engage in "the interactive process." In fact, the evidence of the accommodations afforded to plaintiff supports the contrary.
The only credible evidence plaintiff presents to support his claim that he suffered an adverse employment action as a result of discrimination is one alleged comment by Ms. Onesko that she "hated" to transfer defendant to an office closer to his home (plaintiff was indeed transferred to the Washington office), and one alleged exchange between Ms. Broggi and plaintiff (which occurred several months before his termination) wherein she allegedly yelled at him. However, a stray remark made by a non-decision maker made during a time period which is not proximally related to defendant's termination, does not bolster his case. Gomez v. Allegheny Health Serv., Inc. 71 F.3d 1079, 1085 (3d Cir. 1995)("[S]tray remarks by non-decision makers ... are inadequate to support an inference of discrimination by the employer.") See also, Ezold v. Wolf, Block, Shorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992)("Stray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.").
For these reasons, plaintiff can not establish the third essential element of a prima facie case under the ADA - - that he suffered an adverse employment action as a result of his disability. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).
(2) Verizon's Legitimate Non-Discriminatory Reason for Plaintiff's Discharge
As to the second prong of the McDonnell Douglas standard, the burden then shifts to Verizon to produce evidence that the plaintiff was terminated for a legitimate nondiscriminatory reason. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)(citing McDonnell Douglas, 411 U.S. at 802). Given the fact that plaintiff claimed FMLA benefits on the day the investigation ensued and the investigation allegedly revealed that plaintiff was actually working on his new home, the Court finds that Verizon easily met its burden to demonstrate a legitimate non-discriminatory reason for plaintiff's termination - - that is, for violating Verizon's Code of Business Conduct by "misrepresent[ing] [his] health status." Broggi Depo., Exhibit 18. See, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)("defendant need not persuade the court that it was actually motivated by the proffered reasons").
(3) Plaintiff has not shown pretext
Finally, under the final prong of the McDonnell Douglas analysis, the burden shifts to plaintiff to produce sufficient evidence to withstand summary judgment on the issue of pretext.
See McDonnell Douglas, 411 U.S. at 802. Plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve defendant's articulated legitimate reasons or (2) believe than an invidious discriminatory reason was more likely than not a motivating or determinative cause of defendant's action. See Fuentes, 32 F.3d at 764; Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992)(citation omitted). In other words, plaintiff must demonstrate such "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in defendant's proffered legitimate reasons such that a "reasonable fact-finder could rationally find them unworthy of credence and hence infer that the proffered nondiscriminatory reasons did not actually motivate" defendant's action. Fuentes, 32 F.3d at 764-765 (quoting Ezold, 983 F.2d at 531). Another way to establish that discrimination was more likely than not a cause of the employer's action is to show that the employer has treated more favorably similarly situated persons without the protected class. Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998)(citing Fuentes, 32 F.3d at 765).
Simply put, plaintiff has presented no evidence from which a rational fact finder could infer that his termination was a pretext for discrimination, or that he suffered any other adverse employment action as a result of his alleged disability. He again fails to establish any inconsistencies or contradictions in Verizon's proffered reason for his termination, and he does not claim that other similarly situated persons not within the protected class were treated more favorably. As stated above, one stray remark of "frustration" with plaintiff's transfer to the Washington office is not sufficient evidence to demonstrate pretext. K. Onesko Depo. 62-65, Exhibit 13. Gomez, 71 F.3d at1085.
In Shaner v. Synthes, 204 F.3d 494 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit affirmed the dismissal of an ADA claim of a plaintiff with multiple sclerosis (MS) and explained that plaintiff's evidence that the employer denied him training, gave him poor performance evaluations, relocated his office, requested that he attend counseling, and terminated him, was insufficient to rebut the employer's articulated reason for the discharge. The Court stated that: "Contrary to the interference which Shaner seeks to raise, the evidence shows that the company made substantial efforts to accommodate him. When Shaner returned from his first leave of absence in 1994, the company lightened his month-end work load and allowed him to attend water therapy sessions during work hours." 204 F.3d at 507.
Likewise, the facts in this case illustrate that Verizon provided plaintiff with requested time off, agreed to a reduced work hours arrangement, placed him in the "off-line" position, and maintained his hours, benefits and rate of pay throughout his entire employment.
The evidence further demonstrates that several managerial employees (specifically Susan Nelson, Cindy Marinari, Rori Broggi, and Michael Billups) made the decision to terminate plaintiff. Doc. No. 39, Joint Statement of Facts at ¶ 73. Although plaintiff would have this Court infer that several members of the Verizon management team were engaged in a conspiracy to discriminate against him based upon his alleged disability, plaintiff's real argument boils down to his own disagreement with the soundness of Verizon's decision to terminate plaintiff based on what Ms. Onesko allegedly witnessed during the September 14, 2006 home visit. However, in the absence of evidence indicating that the decision makers acted with improper motives, this Court will not act as a "super-personnel department." Brewer v. Quaker State Oil Refining Co., 72 F.3d 326, 332 (3d Cir. 1995).
Viewing the facts in the light most favorable to plaintiff, this Court finds that he has failed to establish sufficient evidence from which a reasonable fact-finder could rationally find that Verizon's articulated reasons for its employment action were unworthy of credence, or that the decision to terminate him was the result of any discriminatory motive. Where a plaintiff is unable to show weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in defendant's reasons for its action, summary judgment is required. See Fuentes, 32 F.3d at 756.
B. Retaliation
To establish a prima facie case of retaliation, plaintiff must demonstrate that: "(1) he engaged in protected activity protected; (2) the employer took an adverse employment action against him; (3) there was a causal connection between his participation in the protected activity and the adverse employment action." Moore v. City of Philadelphia, et al., - F.3d - , 2006 WL 2492256 (3d Cir. 2006)(quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). See Sabbrese v. Lowe's Home Centers, Inc., 320 F.Supp. 2d 31,, 320-23 (W.D. Pa. 2004)(noting that causal link in retaliation cases is typically established by evidence of timing and/or ongoing antagonism).
Plaintiff has failed to demonstrate a causal connection between his participation in the protected activity (using his FMLA leave) and his termination. In fact, as stated above, there is no dispute that defendant had been accommodating plaintiff's alleged disabilities for approximately two years prior to his termination. Verizon's stated reason for plaintiff's termination was misrepresentation of his health status and plaintiff has failed to point to any credible evidence that exercise of his FMLA rights had any casual connection whatsoever to his discharge. Therefore, plaintiff's claim for retaliation must fail.
C. FMLA Interference
To establish an FMLA interference claim, plaintiff must only show that he was entitled to benefits under the FMLA, and that the employer interfered with them. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Although Verizon disputes that plaintiff was eligible for FMLA benefits because he had not been employed for 1250 hours of service as of September 14, 2006, plaintiff counters that he met the 1250 hour eligibility requirement when he was certified for "intermittent" leave effective March 8, 2006 (which was later amended effective April 27, 2006). The FMLA provides that in certain circumstances, leave may be taken intermittently. 29 U.S.C. § 2612(b)(1).
Plaintiff cites Barron v. Runyan, 11 F. Supp. 676 (E.D. Va. 1998), in support of his position that an employee who seeks intermittent FMLA is only required to establish his eligibility for the first absence related to that leave, and was not required to re-establish eligibility for each subsequent absence taken for the same reason during the following 12 months. Id. at 679-683. In reaching this decision, the district court noted that adopting the employer's argument would render intermittent leave meaningless. Id.
This Court agrees with the analysis set forth by the Court in Runyan and therefore finds that plaintiff was eligible for benefits under the FMLA. That said, this Court does not find that Verizon in any way interfered with plaintiff's exercise of his benefits under the FMLA. To the contrary, the Court finds that Verizon was more than reasonable in its accommodation of plaintiff's conditions. Plaintiff's claim for FMLA interference necessarily fails.
D. State Law Trespass
Plaintiffs' remaining claim against individual defendants Kimberly and George Onesko is that they entered onto plaintiffs' land without consent or authority and against their will.
Pennsylvania law defines trespass to land as "an unprivileged, intention intrusion upon land in possession of another." Kopka v. Bell Telephone Co., 91 A.2d 232, 235 (Pa. 1952). However, the consent of a person in possession of the property to entry upon the premises is a complete defense to a trespass action. LAL v. CBS, Inc., 726 F.2d 97, 100 (3d Cir. 1984).
Defendants argue that because plaintiffs both conversed with Ms. Onesko while she was on their property, and neither asked them to leave the property (Statement of Facts at ¶ 67), plaintiffs, therefore, impliedly consented to the Onesko's entry upon their property. Plaintiffs counter that defendants failed to heed their no trespassing signs and blocked their driveway with their car.
Having declined to rule in favor of plaintiff on the federal question claims over which this Court had original jurisdiction, the final issue before this Court is whether the Court should hear the remaining state law claim for trespass.
In Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995), the United States Court of Appeals for the Third Circuit, citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), set forth the following analysis, which this Court finds to be instructive:
Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. Similarly, if it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.
Even after the pretrial process has been completed and trial commenced, recognition of a federal court's wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed.
Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so. 383 U.S. at 726. (internal citations omitted).
After careful consideration, having dismissed plaintiffs' discrimination and retaliation claims against Verizon, the Court will decline to decide the pendent state law trespass claim lodged against the Oneskos. Accordingly, plaintiffs' state law trespass claim will be dismissed, without prejudice.
V. Conclusion
For the reasons set forth hereinabove, defendants' motion for summary judgment (doc. no. 26) will be GRANTED as to plaintiff's claims for discrimination and retaliation under the ADA and the FMLA. The Court will not rule on defendants' motion for summary judgment as to plaintiffs' claim for trespass, but will dismiss said claim without prejudice to plaintiffs' refiling a trespass action in state court. An appropriate order follows.
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Serena Hotel
Speech by Prince Amyn Mohamed at the Official opening of Dushanbe Serena hotel 2011-11-01Posted August 16th, 2016 by librarian-hd
Your Excellency, President Rahmon,
Your Highness,
Chairman of the State Committee on Investment and Management of State
Honourable Ministers,
Ladies and Gentlemen
- Read more
- 164 reads
Speech by His Highness the Aga Khan at the Inauguration ceremony of the Dushanbe Serena hotel 2011-11-01Posted August 16th, 2016 by librarian-hd
Your Excellency, President Emomali Rahmon, President of the Republic of Tajikistan
Your Excellency, Davlatali Saidov, Chairman of the State Committee on Investment
and Management of State Property
Honorable Ministers
Ladies and Gentlemen
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- 196 reads
Prince Amyn Aga Khan visits Tajikistan 2011-04-05Posted January 4th, 2016 by librarian-hd
DUSHANBE, April 5, 2011, Asia-Plus -- Prince Amyn Aga Khan, younger brother of His Highness the Aga Khan—founder and Chairman of the Aga Khan Development Network (AKDN), arrived in Dushanbe today.
According to AKDN Tajikistan, during his one-day visit, Prince Amyn is reviewing progress of AKDN projects in the country, including the Dushanbe Serena Hotel.
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- 784 reads
Serena chain takes over the Movenpick Royal Palm Hotel in Dar es Salaam 2011-12-02Posted January 9th, 2014 by librarian-hd
By Apolinari Tairo, eTN Tanzania | Dec 02, 2011
TANZANIA (eTN) - East Africa's leading tourist hotel chain, Serena Hotels, has officially taken over Tanzania's biggest hotel, the Movenpick Royal Palm Hotel, in the Indian Ocean city of Dar es Salaam.
Previously managed by Mövenpick Hotels and Resorts, the Movenpick Royal Palm Hotel has been rebranded to the Dar es Salaam Serena Hotel effective December 1, 2011 with a new management team.
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- 2033 reads
The front view of the newly-launched Lake Victoria Serena Resort
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Serena opens branch at Lake Victoria - 2010-04-19Posted April 19th, 2010 by heritage
THE Serena Group has set up a second hotel in the country, the Lake Victoria Serena Resort. The resort, which is part of the Aga Khan economic empire, lies on an expansive piece of land measuring 275 acres on the shores of Lake Victoria.
The land belonged to the Ranch on the Lake Hotel until about four years ago when Serena Group bought it and built a new hotel. The facility has so far cost $20m (about sh40b).
Another $30m (sh60b) is earmarked to complete the construction.
President Yoweri Museveni yesterday presided over the official opening.
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- 2948 reads
Polana Serena Hotel undergoes a $25million expansion - 2008-12-10Posted April 7th, 2010 by heritage
Maputo – Serena Tourism Promotion Services (a subsidiary of the Aga Khan Fund for Economic Development) is pleased to announce that the Polana Serena Hotel will undergo extensive refurbishment and expansion to the tune of $25million from January 2009.
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- 1810 reads
Serena Hotels
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- 8242 reads
2005 Kabul Serena Inauguration
Kabul, Afghanistan, 8 November 2005: The Kabul Serena Hotel was officially inaugurated today by His Excellency President Karzai and His Highness the Aga Khan. The opening of the restored and expanded Kabul Serena Hotel, the former Kabul Hotel, is a milestone in Afghanistan's post-conflict redevelopment.
- 5957 reads
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20061110 - aserenaopen19
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text:
There are many good ENT hospitals in Chittoor. Click on hospitals detail for each ENT hospital Details Chittoor. In this page we have listed all the ENT Hospitals in Chittoor. There are many ENT hospitals in Chittoor. Find below list of ENT hospitals in Chittoor.
You may find same course in following Locations:
Notify me of follow-up comments
ENT, the abbreviation for ears, nose and throat is a branch of medicine that specializes in the diagnosis of ear, nose, throat as well as head and neck disorders. There are many ENT clinics in Chittoor. There are good doctors in these ENT hospitals in Chittoor, to give high quality treatment.
On this page you can see ENT hospital list in Chittoor. You can find ENT hospital address, ENT hospital phone number etc… We have also provided best ENT hospitals in Chittoor, from the whole ENT hospitals list in Chittoor.


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Annual Appeal: Please make a donation (tax deductible in USA) to keep the OEIS running. Over 5000 articles have referenced us, often saying "we discovered this result with the help of the OEIS".
a(n)=0 if and only if p_n is a peculiar prime, i.e., simultaneously Ramanujan (A104272) and Labos (A080359) prime (see sequence A164554).
a(n)>p_n if and only if p_n is Labos prime but not Ramanujan prime.
Table of n, a(n) for n=1..60.
V. Shevelev, Ramanujan and Labos primes, their generalizations, and classifications of primes, J. Integer Seq. 15 (2012) Article 12.5.4
J. Sondow, J. W. Nicholson, and T. D. Noe, Ramanujan Primes: Bounds, Runs, Twins, and Gaps, J. Integer Seq. 14 (2011) Article 11.6.2
If p_n is not a Labos prime, then a(n)=A080359(n-pi(p_n/2)).
Let n=5, p_5=11; p=2 is not suitable, since in (1,5.5) we have 3 primes, while in (2,11] there are 4 primes. Consider p=3. Now in intervals (1.5,5.5) and (3,11] we have the same number (3) of primes. Therefore, a(5)=3. The same value we can obtain by the formula. Since 11 is not a labos prime, then a(5)=A080359(5-pi(5.5))=A080359(2)=3.
Cf. A104272, A080359, A164554.
Sequence in context: A080134 A246728 A155685 * A011320 A208123 A090489
Adjacent sequences: A212490 A212491 A212492 * A212494 A212495 A212496
Vladimir Shevelev and Peter J. C. Moses, May 18 2012


text:
what's happening with turfplaning services?
southern turfplaning services
grambling state: a 'facelift'
Williams pleased with turfplaning project for practice field
Grambling - Grambling State University's football practice field recently received a "facelift."
With the playing serface accustomed to perennial use during the fall and spring, the Tigers' field had taken its fair share of wear and tear.
But now, thanks to a upgrade process called turfplaning, the field will be like new when the G-Men kick off their fall training camp ritual.
In June of 2012, a New Roads-based company called Alternative Turfplaner leveled out and "cleansed" the playing field at Cougar Stadium on the campus of Cedar Creek High School.
Result: the turf at the Cougars' stadium was transformed from intermittent "peaks and valleys" to a smooth surface that immediately gave the facility a much improved look.
Missouri turfplaning demonstration
Adam Bode with the City of Fenton Parks and Recreation will be hosting us. The demonstration is set for February 15 at 1:00 pm at Fenton Park, 1215 Larkin Williams Road, Fenton, MO 63026. If you are in the area, you don't want to miss this demostration! Please contact Lindsay at lindsay(at)g2turftools.com or Eric at eric(at)g2turftools.com if you are planning on attending or if you have any questions. Hope to see you there!
turfplaning Jones County Junior College
The local news channel was kind enough to feature a story on turfplaing. Check out the video clip here: http://youtu.be/ZTZT3Xffnko?hd=1
Tom Bass Field Undergoing Makeover
SENECA — Seneca High School is now firmly on the cutting edge when it comes to the playing surface at Tom Bass Field.
This week, Turfplaner of Carolina has been at the school with state-of-the-art technology to level out the Bobcats' football field, which Seneca athletic director Duke Lee said will save the school time, money and effort in the years to come.
"We've got great facilities and district support, and in talking with them, we wanted to look at something to level the field out some, and this kind of came across in my email one day," he said. "One thing led to another, and talking with the people from Turfplaning Services and our district people, we thought this is something we were going to do.


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Sobe 'Jana' is a guesthouse located in the Slovenian countryside, in Vopovlje village. We are 7 kilometres from the... More Info »
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text:
"Words are just a way we communicate. Images are a way we communicate. And I couldn't figure out why they had to be in different baskets."
"'House with Pool' is a long piece, and there are different readings, depending on when one enters. One person at the opening came in when the young woman is putting a sweater on the chair. His reading was, 'It's hers, and she's putting it there to be picked up later.'"
- Teresa Hubbard
"If you come in earlier, you have much more feeling that it's the mother's and that she leaves it there unconsciously for the daughter. However, you didn't see the gesture..."
- Alexander Birchler


text:
Best Fishing Times: 9:59AM to 11:59AM
Alternate Fishing Times: 2:10PM to 4:10PM
Fishing Mac Lake Upper Lake Dam, AL on 12/5/2016 will be best from 9:59AM through 11:59AM. If that time won't work for you, 2:10PM to 4:10PM looks promising. Remember to adjust these times based on barometric pressure, and weather changes.


text:
Welcome to C&ENjobs
Adjunct Position for Science Field Supervision
Rowan University
The Department of STEAM Education operates within the College of Education, which offers undergraduate programs in Health and Exercise Science, Music and Art and graduate programs in Science and Mathematics Education.
The College of Education is searching for qualified and experienced Science educators who demonstrate familiarity with the accreditation standards of national associations in science education, such as the National Science Teachers Association. This is a part-time, adjunct position with the possibility of renewal on a term by term basis. The position requires availability during the regular school day.
Starting Date: Spring 2016 Semester
Rowan University is a comprehensive state-designated research institution with approximately 15,000 students. Its main campus is located in Glassboro, N.J., 20-miles southeast of Philadelphia, and it has a branch campus and medical school in Camden and a second medical school in nearby Stratford. Rowan is the second university in the country to offer M.D. and D.O. medical-degree granting programs. The School of Osteopathic Medicine has a faculty practice plan that serves approximately 200,000 patients in Southern New Jersey. The institution is also home to the South Jersey Technology Park, which fosters the translation of applied research into commercial products and processes. Its business incubator also supports that mission. The University boasts seven colleges?William G. Rohrer College of Business, Henry M. Rowan College of Engineering and colleges of Communication and Creative Arts, Education, Humanities and Social Sciences, Performing Arts, and Science and Mathematics.
Contact: Questions regarding this position can be directed to Dr. Issam Abi-El-Mona at email@example.com
The application must be submitted through our online applicant tracking system.
All applications should include: a letter of application, which includes a description of research, teaching philosophy and interests, sample publication, curriculum vita, graduate transcripts, and three letters of recommendation.
Rowan University values diversity and is committed to equal opportunity in employment.
All positions are contingent upon budget appropriations.
|Please See Above
Internal Number: 45594078
About Rowan University
A leading public institution, Rowan University combines liberal education with professional preparation from the baccalaureate through the doctorate. Rowan provides a collaborative, learning-centered environment in which highly qualified and diverse faculty, staff, and students integrate teaching, research, scholarship, creative activity, and community service. Through intellectual, social and cul...tural contributions, the University enriches the lives of those in the campus community and surrounding region.
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Butterick 4130 B
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Butterick 4130; ca. 1980s; Misses' Jacket. Loose-fitting lined jackets have standing collar and full length sleeves gathered at cap. A and C have ribbon trim variations.


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Unit (RTS)
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This article or section contains information taken from the Warcraft strategy games and contains information relating to level editing or game mechanics.
A unit is any object in Warcraft I, II and III that can be selected. Other kinds of objects are Items, Doodads, Regions, Cameras and Terrain.
Units also refers to a sub-group of units, as opposed to Buildings. Interestingly, it can also be used as a subgroup of even that, as opposed to Heroes.


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These are all the Teen Talk Blog posted on Tuesday, 4 September, 2012.
Teen Tuesdays Today!
Help us kick off Teen Tuesdays for the school year! Today at 4 pm in the Jim Bridger Room, we will be crafting some crafts and snacking on snacks.
We hope to see you there!
Posted By Logan Library - Teen Talk at 10:14 AM in Category:Events
The Latest Talk!
Oct 5, 2016
» HAVING FUN AT YOUR LIBRARY?? May 13, 2016
» Get Your Game On @ Comic Con Mar 23, 2016
» Teens' Top Ten Reads Announced


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Digital Marketing Manager
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We are a small, yet dynamic business specialising in technologically advanced dental appliances and we are about to embark on a growth phase. In order to support this exciting stage, we are looking for a Digital Marketing Manager to build our online presence and create eye-catching and innovative print collateral.


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The Red Cottage -Our lowest off-season rates for 2016!!
From $139 / night
Description from the owner
Description from the owner
Bedrooms: 3/
Bathrooms: 2/
Sleeps: 7/
Type: Cottage
Book this 3 bedroom, 2 bathroom cottage in Black Mountain today! A total of 7 people can sleep here comfortably. This property has been booked 8 times.
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Proximity to TripAdvisor's Top Black Mountain Attractions
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United States District Court, D. New Jersey
May 12, 2014
MICHAEL DEJOSEPH, Plaintiff,v.CONTINENTAL AIRLINES, INC., et al., Defendants
For MICHAEL DEJOSEPH, Plaintiff: LOUIS J. SERAFINI, LEAD ATTORNEY, SERAFINI & SERAFINI, WAYNE, NJ.
For CONTINENTAL AIRLINES, INC., also known as CONTINENTAL AIRLINES, UNITED AIR LINES, INC., also known as UNITED AIRLINES, also known as UNITED, doing business as CONTINENTAL AIRLINES, doing business as ABC CORPORATION, doing business as XYZ CO., Defendants: CAROLYN GERACI FROME, LEAD ATTORNEY, WINNE, BANTA, HETHERINGTON & BASRALIAN, ESQS., HACKENSACK, NJ.
Page 596
Hon. Kevin McNulty, United States District Judge.
This matter comes before the court on the Report and Recommendation of Hon. Michael A. Hammer, United States Magistrate Judge, recommending that the Plaintiff's motion to remand this action to State court (Docket No. 5) be denied. For good cause that came to light after the entry of the Magistrate Judge's well-reasoned Report and Recommendation, and for the reasons set forth below, the motion for remand will be GRANTED.
Plaintiff DeJoseph is a resident of Cedar Grove in Essex County, New Jersey. Compl. (Docket No. 1) at 1. Defendant Continental Airlines, Inc., is now known as United Airlines, Inc., and United, too is a Defendant. United is incorporated in Delaware and has its principal place of business in the State of Illinois. Notice of Removal (Docket No. 1) at 2-3. Also named as defendants are John Does 1 through 10.
Plaintiff DeJoseph brings this case against Defendants based on personal injuries he allegedly suffered while on an airplane owned or operated by Continental (now United). Compl. at 2-4. DeJoseph alleges that while he was on the airplane, a " food/soup/product/hot liquid" served by United's employees spilled in his lap and he was injured. Compl. at 2-3.[1] DeJoseph alleges that United acted negligently, carelessly, and recklessly and that he suffered " severe and disabling injuries" that have resulted in past and ongoing medical treatment, absences from work, pain, and interruptions from his normal pursuits or daily activities. Compl. at 4-11 (Counts 1-4). In the fifth Count of the Complaint, DeJoseph alleges that United acted willfully and that he suffered " serious and permanent injuries" and/or fractures, disfigurement, dismemberment, and permanent loss or limitation of the use of an organ or bodily system. Id. at 14. In the sixth and final Count, DeJoseph further alleges that Defendants are strictly liable. In addition to the previously listed injuries, his alleged injuries in Count 6 include non-permanent injury or impairment " which prevents the performance of substantially all of his daily activities for at least 90 of the first 180 days after the accident." Id. at 16.
DeJoseph's Complaint requests compensatory damages, interest, costs, and any
Page 597
other relief the Court finds appropriate for Counts 1-4. Id. at 5-11. For Count 5, DeJoseph also requests punitive damages and attorneys fees. Id. at 12, 14. In accordance with the Rules of the New Jersey state court where the Complaint was filed, it states no specific monetary amount of damages.
DeJoseph filed his Complaint on October 18, 2013 in Superior Court in Essex County, New Jersey. Compl. at 1. United was served with the Complaint on December 4, 2013. Notice of Removal at 2. Defendants removed the action to this Court on December 20, 2013. (Docket No. 1). DeJoseph then moved to remand the action to state court, asserting that this federal court did not have subject matter jurisdiction over the action. (Docket No. 5).
Magistrate Judge Hammer issued a Report and Recommendation (" R& R" ), recommending that the Court deny the motion to remand, because the prerequisites of diversity jurisdiction appeared from the face of the Complaint. See 28 U.S.C. § 1332. (Docket No. 9). He reasoned, soundly, that the diverse citizenship of the parties was not disputed and the amount of damages demanded, though not stated, could easily be inferred to exceed $75,000. Magistrate Judge Hammer did not need to carry his analysis any farther to establish that federal court jurisdiction was appropriate.
DeJoseph objected to the R& R, and in doing so, stipulated that he does not seek damages exceeding $75,000. Pl. Obj. (Docket No. 10) at 3. As a result, the amount in controversy does not exceed the threshold for diversity jurisdiction.
Defendants argue in the alternative, as they did before Magistrate Judge Hammer, that there is nevertheless federal question jurisdiction pursuant to 28 U.S.C. § 1331. Def. Obj. Opp. (Docket No. 11) at 2-3. Magistrate Judge Hammer quite properly did not reach that issue. But now, based on the Plaintiff's belated diversity-destroying concession, I must decide the federal-question jurisdictional issue. For the reasons set forth below, I find that the Court does not have subject matter jurisdiction, and remand the case to state court.
Pursuant to the federal removal statute, " 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 defendants to the appropriate district court where the action is pending. 28 U.S.C. § 1441(a). Removal is not appropriate if the case does not fall within the district court's original federal question jurisdiction and the parties are not diverse. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 389 (3d Cir. 2002) (citing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). The party that asserts jurisdiction bears the burden of showing at all stages of the litigation that subject matter jurisdiction is proper in the federal court. Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d 392, 396 (3d Cir. 2004) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993).
The Third Circuit has cautioned that 28 U.S.C. § 1441 must be strictly construed against removal. Samuel-Bassett, 357 F.3d at 396, 403 (citing Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)). To that end, all doubts should be resolved in favor of remand. Id.; Abels v. State Farm Fire & Cas. Co., 770 F.2d 26, 29 (3d Cir. 1985) (internal citations omitted);
Page 598
Steel Valley Authority v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). Accordingly, " [w]e presume that federal courts lack jurisdiction unless the contrary appears affirmatively from the record." Philadelphia Fed'n of Teachers, Am. Fed'n of Teachers, Local 3, ALF-CIO v. Ridge, 150 F.3d 319, 323 (quoting Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)).
Plaintiff DeJoseph asserts that this Court does not have subject matter jurisdiction over this lawsuit, and moves to remand the case to state court. (Docket No. 5). I referred DeJoseph's motion for remand to Magistrate Judge Hammer for a Report and Recommendation. In their motion papers, the Defendants asserted two bases for subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331, via complete preemption of state-law-based claims; and (2) diversity jurisdiction pursuant to 28 U.S.C. § 1332. Def. Remand Opp. (Docket No. 7) at 3, 16. Based on the record before him, Judge Hammer concluded that there was diversity jurisdiction pursuant to 28 U.S.C. § 1332, and recommended denying the motion for remand on that basis. R& R (Docket No. 9) at 7. Having found diversity jurisdiction, Judge Hammer did not address Defendants' additional assertion of federal question jurisdiction. Id. at 7-8.
A party may object to a Magistrate Judge's report and recommendation within 14 days of being served with a copy of the recommended disposition. L. Civ. R. 72.1(c)(2); Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The district court " shall make a de novo determination of those portions to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge." L. Civ. R. 72.1(c)(2); 28 U.S.C. § 636(b)(1). See, e.g., Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (Section 636(b)(1) requires district courts to review de novo those portions of the report or specific findings to which objection is made, unless the objection is not timely or specific); United States v. Lightman, 988 F.Supp. 448, 457 (D.N.J. 1997). The district court may consider the record developed before the Magistrate Judge, but may also receive further evidence. Fed.R.Civ.P. 72(b)(3); L. Civ. R. 72.1(c)(2).
A. Diversity Jurisdiction
DeJoseph objected to Judge Hammer's finding of diversity jurisdiction, which was the sole basis of Judge Hammer's recommendation to deny the motion to remand. Pl. Obj. at 1; R& R at 7. Therefore, my review regarding this issue is de novo. Brown, 649 F.3d at 195.
Since the filing of the R& R, additional information has come to light regarding diversity jurisdiction of this lawsuit. The Complaint is ambiguous on its face as to the amount of damages being sought, stating only that Plaintiff seeks compensatory and punitive damages as well as attorneys fees. Compl. at 5-12, 14. In addition, DeJoseph's brief and reply brief submitted to the Magistrate Judge did not clarify whether the amount-in-controversy requirement was met. See Pl. Remand Br. (Docket No. 5); Pl. Remand Reply (Docket No. 8). In his R& R, Judge Hammer noted the punitive damage claim, which under New Jersey law can total up to five times the compensatory damages, as well as the demand for attorneys' fees. R& R at 7. On these bases, Judge Hammer reasonably concluded that the amount in controversy requirement was met.
In his objection, DeJoseph now disclaims any demand for damages above the
Page 599
threshold amount of $75,000.[2] Pl. Obj. (Docket No. 10) at 3; see also 28 U.S.C. § 1332. This representation by DeJoseph is new evidence which the Court may accept as part of the record for the purposes of the motion to remand. See Fed.R.Civ.P. 72(b)(3); L. Civ. R. 72.1(c)(2). I will consider DeJoseph's representation as a clarification of the ambiguity in the Complaint. See Angus v. Shiley, 989 F.2d 142, 145 n. 3 (3d Cir. 1993) ( where Complaint is ambiguous a Court might consider a subsequent stipulation as clarifying rather than amending an original pleading). As plaintiff, of course, he is the master of his complaint; he may limit the amount of money for which he sues. DeJoseph's representation will be treated as binding.
This evidence was not part of the record considered by Magistrate Judge Hammer, and thus was not considered as part of his R& R. But having accepted DeJoseph's stipulation, I must conclude that the required amount in controversy is not present, and that there is no basis for diversity jurisdiction in this case.
B. Federal Question Jurisdiction
The remaining potential basis for the Court's subject matter jurisdiction is federal question jurisdiction. See 28 U.S.C. § 1331. The R& R did not reach the question of federal question jurisdiction. The parties, however, briefed the issue in their remand motion papers and objections to the R& R.
Under the well-pleaded complaint rule, a cause of action " arises under" federal law, and removal is proper, only if there is a federal question presented on the face of the plaintiff's properly pleaded complaint. Dukes v. U.S. Healthcare, 57 F.3d 350, 353 (3d Cir. 1995) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9-12, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). DeJoseph's Complaint facially asserts only state law causes of action against the Defendants. Ordinarily, that would present an easy case for remand. Defendants assert, however, that DeJoseph's state law claims are not what they appear to be. Rather, say Defendants, these claims are completely preempted by the 1999 Multilateral Convention for the Unification of Certain Rules for International Carriage by Air, S. Treaty Doc No. 106-45, 1999 WL 33292734 (May 28 1999) (the " Montreal Convention" ). They must therefore be understood as " arising under" a treaty of the United States for purposes of federal question jurisdiction. Remand Opp. (Docket No. 7) at 4.
The complete preemption doctrine is an exception to the well-pleaded complaint rule: " Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63-64, 107 S.Ct. 1542, 95 L.Ed.2d. 55 (1987); Dukes, 57 F.3d at 354 (citing same); see generally Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 309-13 (3d Cir. 1994) (discussing the Court's complete-preemption jurisprudence). The complete preemption doctrine applies when
the pre-emptive force of [the federal statutory provision] is so powerful as to displace entirely any state cause of action [addressed by the federal statute]. Any such suit is purely a creature of federal law, notwithstanding the fact
Page 600
that state law would provide a cause of action in the absence of [the federal provision].
Dukes, 57 F.3d at 354 (quoting Franchise Tax Bd., 463 U.S. at 23, 103 S.Ct. at 2853-54). When the federal law completely preempts a state law cause of action, a claim within the scope of that federal law is federal in nature, even if it is pleaded in terms of state law, and it is therefore removable under 28 U.S.C. § 1441. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 8, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003).
Here, Defendants assert that, because DeJoseph's claims arise from " the course of an international flight," they are subject to the Montreal Convention, which provides the exclusive cause of action and remedy for his claims. Remand Opp. at 5. Defendants argue that this action thus arises under the Constitution, laws, or treaties of the United States, and jurisdiction is proper under 28 U.S.C. § 1331. Id. at 5-6.
I do not find, however, that complete preemption under the Montreal Convention is a proper basis for removal jurisdiction in this case. Neither the Supreme Court nor the Third Circuit has addressed whether the Montreal Convention completely preempts state law. It can be said, however, that complete preemption is far from universally recognized in the case law. There has been significant disagreement among federal courts on the topic, including differing interpretations of Supreme Court precedent, and significant additional doubts arise from the Montreal Convention's revision of its predecessor agreement, the Warsaw Convention.[3] See Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, 187 L.N.T.S. 11 (1934) (hereinafter " Warsaw Convention" ).[4] I make no attempt at a global resolution of preemption issues under the Montreal Convention. I do find, however, that complete preemption of plaintiff's causes of action is doubtful here, that preemption is better viewed as an affirmative defense, that removal to federal court is not appropriate, and that a remand should therefore be granted.
1. Treaty History
The Montreal Convention was designed as a replacement for the Warsaw Convention. It governs international carrier liability for flights between the United States and foreign states that are parties to the Convention, and for international flights having both their origin and destination in the United States. 1999 WL 33292734 at *6-7. Article 29 of the Montreal Convention
Page 601
is the focus of the preemption inquiry here. That provision bears considerable resemblance to Article 24 of the Warsaw Convention (as amended), and some courts have held that the Montreal provision should be interpreted in accordance with earlier cases analyzing the Warsaw version. See infra pp. 9-10. But despite the implications of this blended jurisprudence, the text of the provision has been revised over time.
Under the Warsaw Convention, the provision contained two subparts. Article 24(1) stated that cases covered by the provisions of the Convention dealing with injuries to baggage or goods, " however founded," could be brought only " subject to the conditions and limits set out in [the] Convention." [5] Warsaw Convention, Art. 24. Subsection 24(2) applied these same limits to covered personal injury actions. Id.
Then, in 1998, Montreal Protocol No. 4 was ratified. That Protocol amended subsection Article 24(1) to read in relevant part: " In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention." Subsection 24(2), which applied to cargo, contained additional language regarding the type of action covered: " In the carriage of cargo, any action for damages, however founded, whether under this Convention, or in contract or in tort or otherwise. . ." See El Al Israel Airlines, Ltd. v. Tseng, 525 U.S. 155, 174 n. 15, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999) (discussing amendment; emphasis added).[6]
The Montreal Convention, adopted in 1999, then collapsed the two subsections established by the Montreal Protocol No. 4. Now, the qualifier " whether under this Convention or in contract or in tort or otherwise" applies to the entire provision. See Montreal Convention Art. 29. In its present form applicable to this case, then, Article 29 of the Montreal Convention provides:
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention
Page 602
or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.
Montreal Convention, Article 29 (emphasis added).
2. Article 29's Preemptive Effect
Much of the jurisprudence interpreting Article 29's preemptive effect is derived from earlier interpretations of Article 24 of the Warsaw Convention, even though, as discussed above, the text of the provision has changed. The Supreme Court considered the preemptive effect of the Warsaw Convention in El Al Israel Airlines, Ltd. v. Tseng, which held that a plaintiff could not recover under local law " when her claim does not satisfy the conditions for liability under the Convention." 525 U.S. 155, 176, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). Under Tseng, a plaintiff who cannot satisfy the conditions of liability under the Warsaw Convention is precluded from bringing the claim under state law to avoid the Convention's liability limits. See id. at 172, 175.
Tseng has inspired varying interpretations of the Warsaw Convention's preemptive reach. Some courts have interpreted the Court's holding to announce a rule of complete preemption, meaning that all state law claims within the scope of the Convention are completely preempted. See e.g. Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1153 (8th Cir. 1999) (denying remand of state tort claims for personal injuries); Singh v. N. Am. Airlines, 426 F.Supp.2d 38, 45 (E.D.N.Y. 2006) (state tort claims for personal injuries); Donkor v. British Airways, Corp., 62 F.Supp.2d 963, 967 (E.D.N.Y. 1999) (state tort and breach of contract claims for damages due to detention after a long delay); Waters v. Port Authority of New York and New Jersey, 158 F.Supp.2d 415, 421-22 (D.N.J. 2001). Under this view, there is virtually no such thing as a state-law claim; a complaint that purports to assert one must nevertheless be viewed as a federal-law complaint from the outset.
Other courts have more narrowly read Tseng as finding conflict preemption under the Warsaw Convention but not complete preemption. See e.g. Sompo Japan Ins. Co. v. Nippon Cargo Airlines, Ltd., 522 F.3d 776, 785 (7th Cir. 2008); Rogers v. Am. Airlines, Inc., 192 F.Supp.2d 661, 667 (N.D. Tex. 2001) (explaining that federalism concerns mandate strict construction of removal statute and deference to well-pleaded complaint rule). Under this view, there is room for a state-law cause of action, even if such a cause of action might be subject to certain treaty-based limitations. To invoke preemption, the defendant must identify some specific conflict between a treaty provision and the state-law cause of action asserted. Preemption would be viewed, in this context, as a defense, not as a complete displacement of state law for all purposes.
I am persuaded by the latter reading of Tseng, particularly in light of this Circuit's pronouncement that removal jurisdiction be narrowly construed and that all doubts be resolved in favor of remand. Samuel-Bassett, 357 F.3d at 396, 403. The Supreme Court did not expressly find complete preemption under the Warsaw Convention. Compare other contexts, in which the Supreme Court has clearly stated its intention to find complete preemption, relying on clear congressional intent to allow removal to federal court. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,
Page 603
107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (complete preemption under Section 502(a) of ERISA); Avco Corp. v. Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (complete preemption under § 301 of the Labor Management Relations Act, 1974). A similarly unambiguous finding of complete preemption is missing from Tseng. Rivet v. Regions Bank of La., 522 U.S. 470, 476, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998) (noting that " federal preemption is ordinarily a defense" ). Extrapolation of a complete preemption doctrine from Tseng's holding would not comport with a narrow construction of 28 U.S.C. § 1441. See Rogers, 192 F.Supp.2d at 668-69.
This interpretation is only strengthened by the subsequent adoption of the Montreal Protocol No. 4 and the Montreal Convention. While one can theorize as to the intent informing the retooled Article 29 (formerly Article 24),[7] the plain meaning of the resulting text militates against finding complete preemption. The provision's language " whether under this Convention or in contract or in tort or otherwise" expressly contemplates the application of the Convention's limits to all types of cases within its scope--whether directly brought under the Convention or under state/local tort or contract law. See Montreal Convention, Art. 29; see also Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F.Supp.2d 888, 890 (N.D.Ill. 2008). By its very language, it at least admits the possibility of a cause of action brought " in contract or in tort," and suggests the application of the Convention's limits to such a claim. The text of Article 29 thus suggests that the Montreal Convention does not completely preempt all state law claims at their inception, but instead operates as an affirmative defense. See Sompo, 522 F.3d at 785.
As noted above, some courts finding complete preemption after the Montreal Convention was adopted continued to cite and discuss old Warsaw Convention cases. See Knowlton v. Am. Airlines, Inc., [WL] at * 4-5 (D. Md. Jan 31, 2007) (discussing split in authority regarding Warsaw Convention and finding complete preemption under Montreal Convention); Phifer v. Icelandair, 652 F.3d 1222, 1224 n. 1 (9th Cir. 2011); Baah v. Virgin A. Airways Ltd., 473 F.Supp.2d 591, 595-96 (S.D.N.Y. 2007) (citing legislative and executive statements showing intent to preserve Warsaw Convention precedent); Narayanan v. British Airways, Civ. No. 11-55870, 747F.3d1125, 2014 WL 1057304 at *2 n. 2 (9th Cir. Mar. 19, 2014).[8] That, I
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think, is a methodological oversimplification that might lead a court into substantive error. There are textual differences between Article 24 in the Warsaw Convention and Article 29 of the Montreal Convention. See Narayanan, 2014 WL 1057304 at *2 n. 2; but see Schaefer-Condulmari v. U.S. Airways Group, Inc., 2009 WL 4729882 at *8-9 (E.D. Pa. Dec. 8, 2009) (citing relevant language in Article 29 but looking to explanatory note in Convention to find complete preemption). True, judicial precedents developed under the Warsaw Convention were expected to obviate re-litigation of settled issues. But such precedents must be reanalyzed where the language of the Montreal Convention differs from that of its predecessor, the Warsaw Convention. See S. Exec. Rep. 108-8, at 3 (2003); 149 Cong. Rec. S10870 (daily ed. July 31, 2003) (statement of Sen. Biden) ( " The negotiators intended [ ], to the extent applicable, to preserve these precedents." ) (emphasis added).
In sum, complete preemption under the Montreal Convention continues to be disputed and neither the Supreme Court nor the Third Circuit has settled the issue. I have considered, however, (1) Tseng 's failure to expressly mandate complete preemption; (2) the plain text of Article 29, particularly as it differs from that of its predecessor; and (3) the Third Circuit's caution to narrowly construe the removal statute. Based on those considerations, I find that Article 29 of the Montreal Convention does not completely preempt all state and local causes of action to allow removal under 28 U.S.C. § 1441. Its preemptive effect is not so clear, strong, and categorical as to obviate state law from the get-go, and require a court to conclude that a state-law complaint is really a federal-law one. Federal question jurisdiction under 28 U.S.C. § 1331 is nowhere near a certainly, and Defendants' removal of DeJoseph's Complaint is not appropriate.
That is not to say that the Montreal Convention is without preemptive effect--the conditions and limits in the Convention clearly govern all actions within its scope. See Sompo, 522 F.3d at 781. But these are matters for defense in the plaintiff's chosen state-court forum, not for preemption of the plaintiffs causes of action at the outset of the case.
The Defendants have failed to meet their burden of showing that the Court has subject matter jurisdiction of this case. Neither diversity nor federal question jurisdiction is present, and therefore removal is not proper pursuant to 28 U.S.C. § 1441. Based on matters that have arisen after the submission of the Magistrate Judge's Report and Recommendation, I will not adopt it. The Plaintiffs motion to remand (Docket No. 5) is GRANTED, and the case is hereby remanded to state court.
An Order will be entered in accordance with this Opinion.
This matter comes before the Court on the Report and Recommendation (Docket No. 9) of Hon. Michael A. Hammer, United States Magistrate Judge, recommending the denial of the Plaintiff Michael DeJoseph's motion to remand the action to State court (Docket No. 5); and Plaintiff having filed an Objection to the Report and Recommendation (Docket No. 10); and Defendants having filed an Opposition to the Objection (Docket No. 11); and the Court, pursuant to Fed. R. Civ. Proc. 78, having reviewed the Report and Recommendation and the Parties' submissions; and it further
APPEARING that Judge Hammer's Report and Recommendation to deny the motion to remand was based on a finding of diversity jurisdiction (Docket No. 10); and it further
APPEARING that following the filing of the Report and Recommendation, the Court received new evidence regarding the amount of damages that Plaintiff seeks from the Defendants in this action; and it further
APPEARING that based on this new evidence, the Complaint fails to meet the amount in controversy requirement set forth in 28 U.S.C. § 1332 to establish diversity jurisdiction (Docket No. 10); and it further
APPEARING that there is no alternative basis for jurisdiction in this Court pursuant to 28 U.S.C. § 1331; and for good cause appearing;
IT IS, this 12th day of May, 2014,
ORDERED, in accordance with the accompanying Memorandum Opinion, that the Report and Recommendation is rejected and the motion to remand the action to State Court is GRANTED.
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