BRYAN GOLDEN
Case No. 23-cv-04224-PCP
March 29, 2024
ORDER GRANTING MOTION TO REMAND; Re: Dkt. No. 12, 13, 23
Plaintiff Bryan Golden filed this action against defendants Microsoft Corporation, Mark Weiss, Izumi Kawahara, Steve Miczak, Garrett Faulkner, and DOES 1-20 in Santa Clara Superior Court on June 27, 2023. Mr. Golden alleges age, sex, and gender discrimination and other violations of California law relating to his termination from Microsoft in June 2021. On August 18, 2023, the then-served defendants, Microsoft and Mr. Weiss, filed a timely notice of removal with this Court, contending that the individual defendants (all of whom, like Mr. Golden, are California residents) were fraudulently joined and should have their citizenship disregarded in determining jurisdiction under
BACKGROUND
Mr. Golden is a 57-year-old resident of Santa Clara County, California, and a former employee of Microsoft. Compl., Dkt. No. 1-1 ¶¶ 2, 4. Microsoft is a technology company incorporated under the laws of Washington with its principal place of business in Redmond, Washington. Id. ¶ 5; Dkt. No. 1, at 6. Individual defendants Weiss, Kawahara, Miczak, and Faulkner are all residents of California and were employees of Microsoft working under the supervision of Mr. Golden during the time at issue in this case. Id. ¶¶ 6–9.
Mr. Golden alleges that he was first hired by Microsoft around May 31, 2015 to serve as a Senior Prototype Engineer in Microsoft‘s HoloLens Model Shop in Mountain View, CA. Id. ¶ 14. Although he was initially a contractor, he signed an employment agreement with Microsoft to begin full-time employment on June 28, 2015. Id. ¶¶ 14, 17. Mr. Golden asserts that Microsoft promoted him to Director of the HoloLens Model Shop in September 2019, a role in which he oversaw and supervised the creation of prototype models. Id. ¶ 18. Mr. Golden received annual compensation of approximately $219,000 with an annual incentive bonus of about $50,000. Id. ¶ 22. Until his final performance review in May 2021, Mr. Golden alleges that his biannual performance reviews at Microsoft were “stellar” and “overwhelmingly positive.” Id. ¶ 20.
Mr. Golden alleges that, while he was employed by Microsoft, the individual defendants colluded “to defame and remove him from the company due to his age, sex and gender,” ultimately leading to his unlawful termination by Microsoft on June 28, 2021. Id. ¶¶ 2, 31. “For many years,” he claims, he “was unaware that .... his team members were repeatedly attempting to paint him as an ill-tempered director who offended with the most minor acts and statements.” Id. ¶ 26.
On these allegations, Mr. Golden filed a complaint against Microsoft with the California Department of Fair Employment and Housing, which issued a right-to-sue notice on June 27, 2023. Id. ¶ 13; Dkt. No. 1-1, at 32, 34. That same day, Mr. Golden filed this action asserting 18 total causes of action and seeking to recover damages based on violations of the California Fair Employment and Housing Act (FEHA),
Mr. Golden asserts 9 of his 18 claims against individual defendants Weiss, Kawahara, Miczak, and Faulkner: harassment and hostile work environment based on age in violation of FEHA,
On August 18, 2023, the then-served defendants Microsoft and Mr. Weiss filed a notice of removal with this Court contending that all individual defendants were fraudulently joined and should have their citizenship disregarded in determining jurisdiction under
On August 25, 2023, Microsoft and Mr. Weiss both moved to dismiss and to strike the complaint. Dkt. Nos. 12, 13. On September 15, 2023, Mr. Golden moved to remand this case to state court. Dkt. No. 23.
LEGAL STANDARD
Fraudulent joinder may be established in two ways: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Grancare, 889 F.3d at 548 (citation omitted). Only the second basis
is at issue here. Fraudulent joinder is established on that basis if an “individual[ ] joined in the action cannot be liable on any theory.” Id. (quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). “But if there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Id. (cleaned up). In the Ninth Circuit, a “defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden’ since there is a ‘general presumption against [finding] fraudulent joinder.‘” Id. The Court need only make a “summary inquiry” to identify whether there is any possibility that the plaintiff can state a claim against the defendant because “the inability to make the requisite decision in a summary manner itself points to an inability of the removing party to carry its burden.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009) (cleaned up).
“[T]he test for fraudulent joinder and for failure to state a claim under Rule 12(b)(6) are not equivalent.” Grancare, 889 F.3d at 549. Even “[i]f a defendant cannot withstand a Rule 12(b)(6) motion, the fraudulent inquiry does not end there. For example, the district court must consider ... whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend.” Id. at 550. The party seeking removal is entitled to present additional evidence to demonstrate that a defendant was fraudulently joined. See id. at 549.
ANALYSIS
I. The Court Lacks Subject Matter Jurisdiction.
Unlike state courts, “[f]ederal courts are courts of limited jurisdiction [and] possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As potentially relevant here, Congress has authorized federal jurisdiction only in cases that present a federal question, see
The parties do not dispute that federal question jurisdiction does not exist because Mr. Golden‘s complaint arises solely under California law. See
To state a prima facie claim for harassment under FEHA, the plaintiff must allege (1) membership in a protected group; (2) that the plaintiff was subjected to harassment because of that membership, and (3) that “the harassment was so severe that it created a hostile work environment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244. Unlike Title VII, FEHA permits employees to pursue harassment claims against individuals as well as employers. See
Mr. Golden alleges that he was harassed based on age, sex and gender, which are protected groups under FEHA. See Compl. ¶¶ 2, 63, 71. Mr. Golden complains that the younger individual defendants colluded “to defame and remove him from the company due to his age, sex and
FEHA cause of action against the individual defendants, and it is at least possible that a state court would permit those claims to proceed, particularly given the different pleading standards that apply in California state courts, see Marina Pac. Hotel & Suites, LLC v. Fireman‘s Fund Ins. Co., 81 Cal. App. 5th 96, 104–05 (2022) (noting that California state courts must assume the truth of all facts alleged in the complaint regardless of their improbability), and the possibility that Mr. Golden could amend his complaint to address any deficiencies the state court might identify.
None of Microsoft and Mr. Weiss‘s arguments to the contrary are persuasive.
Microsoft and Mr. Weiss cite Janken v. Hughes Elecs., 46 Cal. App. 4th 55 (1996), and argue that reporting conduct to Microsoft‘s Human Resources Department constitutes “personnel management activity” that “cannot constitute harassment” as a matter of law. Dkt. No. 28, at 12. In Janken, four employees brought claims against individual supervisory employees for age discrimination in violation of FEHA. The appellate court went to great lengths to distinguish between harassment and discrimination under FEHA, concluding that “it was the intent of the Legislature to place individual supervisory employees at risk of personal liability for personal conduct constituting harassment, but that it was not the intent of the Legislature to place individual supervisory employees at risk of personal liability for personnel management decisions later considered to be discriminatory.” Id. at 62. The court concluded that “the Legislature‘s differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor‘s job performance, and business or personnel management decisions—which might later be considered discriminatory—as inherently necessary to performance of a supervisor‘s job.” Id. at 62–63.
The defendants’ reliance on Janken is inapt for at least two reasons.
First, Janken focused on “personnel management actions” uniquely within the purview of supervisory employees. Id. at 64 (emphasis added). The appellate court was concerned that holding supervisory employees liable for such decisions would place them in “a conflict [that] present[s] sobering implications for the effective management of our industrial enterprises and other organizations of public concern,” because it “would coerce the supervisory employee not to make the optimum lawful decision for the employer ... [but instead] make whatever decision was least likely to lead to a claim of discrimination against the supervisory employee personally, or likely to lead only to that discrimination claim which could most easily be defended.” Id. at 74–75. Unlike Janken, this case involves alleged decisions and conduct by nonsupervisory, subordinate employees, and the concerns raised in Janken do not extend to actions by subordinates who are not making personnel decisions of that sort, even where they report a supervisor‘s conduct pursuant to company policy. Indeed, given that a repeated pattern of filing baseless personnel reports could provide a powerful means for creating an
Second, even if reporting a supervisor‘s conduct according to company policy did constitute “personnel action” for the purposes of Janken, a state court might conclude that Mr. Golden has alleged conduct that was not necessary to any employee‘s performance of their job, such as the individual defendants’ alleged collusion and defamation.
The defendants next argue that Sheppard v. Freeman, 67 Cal. App. 4th 339 (1998), recognized a co-employee privilege that protects an employee who reports a co-worker‘s conduct under the terms of an employer‘s policies. See Dkt. No. 28, at 13–15. Relying on Sheppard, the defendants conclude that “reporting of potential misconduct that leads to an employer‘s investigation—regardless of whether the Plaintiff disagrees with the substance of the report or believes it improperly motivated—cannot constitute harassment because it is personnel action delegated to employees and necessary for the company‘s business.” Id. at 13.
Sheppard does not apply here. In that case, an airline employee sued his coworkers individually for interference with contract and prospective economic advantage, libel, and intentional infliction of emotional distress, all based on their alleged conduct leading to his termination from the airline. Sheppard, 67 Cal. App. 4th at 342. The court held that “except where a statutory exception applies, an employee or former employee cannot sue other employees based on their conduct relating to personnel actions.” Id. (emphasis added). Rather than “create ‘a sweeping new immunity,‘” the opinion “properly limit[ed] the ‘piling on’ of boundless nonstatutory tort claims.” Id. at 346 n.6 (emphasis added). The court clarified that its decision “d[id] not purport to limit” statutory causes of action, including those brought pursuant to FEHA. Id. The court specifically held that its holding did not extend to the plaintiff‘s libel claim because “the right to sue for libel is governed by statute, and ... the Legislature has prescribed the circumstances under which this cause of action and the defenses and privileges pertaining thereto, may lie.” Id. at 342. The Court, therefore, reversed the judgment in favor of the coworkers only as it pertained to the claim for libel. Id.
Like the right to sue for libel, the right to sue for harassment under FEHA is governed by statute and thus falls within the “statutory exception” to Sheppard‘s co-employee privilege. Under
Finally, the defendants argue that Mr. Golden cannot allege any age or gender nexus because the individual defendants’ sworn statements “indicate they have never joked or spoken to anyone about Plaintiff‘s age, sex, or gender.” See Dkt. No. 28, at 16 (citing the declarations). While the defendants are correct that the absence of a nexus between the alleged harassment and a plaintiff‘s membership in
For these reasons, the Court cannot conclude “to a near certainty” that Mr. Golden‘s joinder of the individual defendants was fraudulent. Diaz v. Allstate Ins. Group, 185 F.R.D. 581, 586 (C.D. Cal. 1998) (citation omitted). And because the individual defendants are properly joined California citizens, complete diversity is lacking, this Court lacks jurisdiction, and Mr. Golden‘s lawsuit must be remanded to state court.
CONCLUSION
For the foregoing reasons, the Court grants Mr. Golden‘s motion to remand. The pending motions to dismiss and strike the complaint are denied without prejudice. The Clerk is ordered to remand this case to Santa Clara County Superior Court.
IT IS SO ORDERED.
Dated: March 29, 2024
P. Casey Pitts
United States District Judge