ORDER RE: PLAINTIFF'S MOTION TO REMAND [8]

RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Plaintiff Rosi Godinez's ("Plaintiff") Motion to Remand [8]. The Court, having reviewed all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS:

The Court GRANTS Plaintiff's Motion.

I. BACKGROUND

A. Factual Background

Plaintiff is a resident of the County of Los Angeles and a citizen of the State of California. Compl. ¶ 2. Defendant Alta-Dena Certified Dairy, LLC ("Defendant Alta-Dena") is a limited liability company organized in the State of Delaware and is a citizen of Delaware, Wisconsin, and Texas. Notice of Removal 3:18-4:17. Defendant Maria Flores ("Defendant Flores") is a citizen of California and is employed by Alta-Dena as a "Human Resources Business Professional." Compl. ¶ 4; Notice of Removal 4:20-21.

Plaintiff was employed as a "Quality Assurance Lab Tech" at Defendant Alta-Dena's City of Industry facility for approximately 35 years, from around 1978 until her termination in 2013. Compl. ¶ 7. In the months leading up to her termination, Plaintiff suffered from physical disabilities, including a knee injury that limited her ability to work. Id. at ¶¶ 8-9. As a result, Plaintiff sought accommodations to her working environment, schedule, duties, and leave under the Fair Employment and Housing Act ("FEHA") and the California Family Rights Act ("CFRA"). Id. However, Plaintiff did not receive such accommodations. Id. at ¶ 10. Although Defendant Alta-Dena's managers knew of Plaintiff's disabilities, they did not respond favorably to her continued complaints and requests. Id. at ¶¶ 10-12. Plaintiff was terminated on October 31, 2013. Id.

Plaintiff asserts claims against Defendant Alta-Dena for: (1) disability discrimination in violation of FEHA [Cal. Gov't Code § 12940(a)], (2) failure to provide reasonable accommodation in violation of FEHA [Cal. Gov't Code § 12940(m)], (3) failure to engage in the interactive process of assessing disabilities in violation of FEHA [Cal. Gov't Code § 12940(n)], (4) violation of the CFRA [Cal. Gov't Code § 12945.2], (5) retaliation in violation of FEHA [Cal. Gov't Code §§ 12940(h) and 12940(i)], (6) wrongful termination in violation of public policy, (7) disability harassment in violation of FEHA [Cal. Gov't Code § 12940(j)], and (8) failure to prevent harassment discrimination and retaliation in violation of FEHA [Cal. Gov't Code § 12940(k)]. Plaintiff also asserts a claim against Defendant Flores for disability harassment in violation of FEHA [Cal. Gov't Code § 12940(j)].

Plaintiff filed her Complaint against Defendants in Los Angeles Superior Court on March 17, 2014 and seeks nominal damages, compensatory damages, punitive damages, interest, costs of suit, attorney's fees, applicable statutory penalties, and further relief as deemed proper by the court.

B. Procedural Background

On April 16, 2014, Defendant Alta-Dena filed a Notice of Removal, stating that this Court has federal diversity jurisdiction over the case because Defendant Flores was fraudulently joined. Notice of Removal 4:20-27. Defendant Alta-Dena asserts that in order to assert a claim for harassment against an employee such as Defendant Flores, California law requires that the harassment occur outside the scope of necessary job performance. Id. Defendant Alta-Dena argues that Defendant Flores's actions-unwarranted criticism, scrutiny, reprimands, failure to engage in the interactive process, failure to provide reasonable accommodations, suspending Plaintiff from work, and terminating her employment-all took place within her role as a personnel manager. Id. As such, Defendant Alta-Dena avers that Defendant Flores's conduct cannot possibly give rise to a harassment claim. Id. Defendant Alta-Dena asserts that because Plaintiff cannot establish a cause of action for disability harassment against Defendant Flores, the joinder is a "sham" and Defendant Flores's California citizenship should be disregarded for removal purposes. Id. Because Plaintiff is a citizen of California and Defendant Alta-Dena is a citizen of Delaware, Wisconsin, and Texas, Defendant Alta-Dena asserts that the Court has diversity jurisdiction over this Action. Id.

The Action was removed to this Court on April 17, 2014. On May 16, 2014, Plaintiff filed the present Motion to Remand [8]. Defendant Alta-Dena filed an Opposition on May 27, 2014 [9], and Plaintiff filed her Reply on June 4, 2014 [10].

II. LEGAL STANDARD

Removal to federal court is governed by 28 U.S.C. § 1441, which states that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants." Subject matter jurisdiction may be based on diversity or the existence of a federal question, as set forth in 28 U.S.C. §§ 1331 and 1332. District courts have diversity jurisdiction over all civil actions between citizens of different states in which the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. § 1332.

Section 1446(b) governs the timing of removal. If the case stated by the initial pleading is "removable on its face," then a defendant has thirty days from receipt of the pleading to remove the case. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885 (9th Cir. 2010) (quoting Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005)). However, if no basis for removal is apparent in that pleading, the thirty-day removal period does not begin until the defendant receives "a copy of an amended pleading, motion, order or other paper" from which removability may first be ascertained. 28 U.S.C. § 1446(b).

The Court may remand a case to state court for lack of subject matter jurisdiction or defects in removal procedure. 28 U.S.C. § 1447(c). The party seeking removal bears the burden of establishing federal jurisdiction. Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction over a case that has been removed to federal court, the case must be remanded. 28 U.S.C. § 1447(c). The removal statute is construed against removal jurisdiction, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941) (stating that removal statutes should be construed narrowly in favor of remand to protect jurisdiction of state courts).

III. ANALYSIS

Here, Plaintiff asserts a claim against Defendant Flores for disability harassment in violation of FEHA (Cal. Gov't Code § 12940(j)). Defendant Alta-Dena removed this Action to this Court, alleging that Defendant Flores was fraudulently joined to an otherwise diverse action. Thus, Defendant Alta-Dena asserts that Defendant Flores is a "sham" defendant and that her citizenship can be ignored in this Action, which is properly before the Court on diversity grounds. Opp'n 2:6-7.

Fraudulent joinder is a "term of art" and "does not require an ill motive." Amarant v. Home Depot U.S.A., Inc., No. 1:13-CV-00245-LJO (SKO), 2013 WL 3146809, at *4 (E.D. Cal. June 18, 2013). Courts have determined that "joinder will be deemed fraudulent where the plaintiff fails to state a cause of action against the resident defendant." Id. A defendant bears a "heavy burden" of showing, by clear and convincing evidence, that the plaintiff cannot possibly assert a cause of action against the non-diverse party in state court. Hale v. Bank of Am., No. CV 12-10064 MMM (PJWx), 2013 WL 989968, at *3 (C.D. Cal. Mar. 13, 2013); See also Macey v. Allstate Prop. & Cas. Ins. Co., 220 F.Supp.2d 1116, 1117 (N.D. Cal. 2002). The standard is strictly construed in favor of remand; thus, any material ambiguities must be examined in the light most favorable to the plaintiff. Id. If a court finds that a defendant has been fraudulently joined, the court can ignore the defendant's citizenship for the purposes of assessing diversity jurisdiction. Amarant, 2013 WL 3146809, at *3.

A. Defendant Alta-Dena Fails to Meet Its Burden of Establishing that Plaintiff Cannot Possibly Establish a FEHA Harassment Claim Against Defendant Flores

To state a FEHA harassment claim, an employee must allege facts showing that workplace harassment was "severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees." Hale v. Bank of Am., 2013 WL 989968, at *4 (citing Hughes v. Pair, 46 Cal.4th 1035, 1043 (2009)). Conduct is harassment when it takes place "outside the scope of necessary job performance . . . presumably engaged for personal gratification, because of meanness, bigotry, or for other personal motives." Reno v. Baird, 18 Cal.4th 640, 646 (1998). However, "employment-related decisions" or "personnel decisions of a plainly delegable character" cannot constitute a harassment claim. Id.

A plaintiff is barred from asserting a FEHA harassment claim only if the allegations obviously and undisputably cannot lead to such a claim. Hale, 2013 WL 989968, at *5-6. In Hale, allegations that a defendant "publicly ostracized plaintiff, withheld items he gave to other employees, and harshly reprimanded her for absences" did not preclude a viable harassment claim because the allegations did not eliminate the possibility of harassing conduct outside the scope of employment. Id.; See also Roby, 47 Cal. 4th at 709. In Hale, the court recognized that "depending on context, many of [the plaintiff's] alleged actions [reached] far beyond typical personnel management decisions" and can support an inference that the defendant's actions were motivated by a discriminatory animus that created a hostile work environment. Id. Because the court in Hale could not conclude with certainty that all of the plaintiff's allegations fell within the scope of employment, joinder was proper and remand was appropriate. Id.

Similarly here, Plaintiff advances allegations that cannot with certainty preclude a FEHA harassment claim against Defendant Flores. Here, while Defendant Alta-Dena argues that remand is inappropriate because Defendant Flores's actions cannot constitute a cause of action for harassment, the Court finds this argument unpersuasive. Although personnel actions, by themselves, cannot constitute a cause of action for harassment, allegations of conduct that might extend beyond the scope of employment can give rise to a viable harassment claim. Id. Examined in the light most favorable to Plaintiff, Defendant Flores's alleged conduct, including "unwarranted criticism, scrutiny, [and] reprimands," have the potential to form the basis of a FEHA harassment claim. Compl. ¶ 61. Like the plaintiff in Hale whose allegations of reprimands and public ostracism did not clearly fall within the scope of employment, here, Plaintiff does not allege that Defendant Flores's actions took place only within the context of her job. In other words, Plaintiff's allegations against Defendant Flores could constitute conduct occurring "outside the scope of necessary job performance." See Reno, 18 Cal. 4th at 646.

Moreover, Defendant Alta-Dena fails to consider the possibility that Defendant Flores's conduct is sufficiently "severe" or "pervasive" to alter the conditions of Plaintiff's employment and constitute a harassment claim. Lyle, 38 Cal. 4th at 277-79. Defendant Alta-Dena omits discussion of the "severe" and "pervasive" standard altogether, concluding that the issue is "of no moment here." Opp'n 8:1-2. In doing so, Defendant Alta-Dena fails to show by clear and convincing evidence that Plaintiff cannot possibly assert a cause of action for disability harassment under state law.

Further, the Court is not persuaded by Defendant Alta-Dena's contention that Defendant Flores cannot be held individually liable for her conduct as an employee of Alta-Dena. Although individuals are not liable for discriminatory or retaliatory acts done within the scope of employment, Cal. Gov't Code § 12940(j)(3) states that "an employee . . . is personally liable for any harassment . . . that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action." See McClung v. Emp't Develop. Dep't, 34 Cal.4th 467, 470 (2004) (holding that the FEHA imposes personal liability for harassment on both supervisory and non-supervisory employees). Contrary to the assertions of Defendant Alta-Dena, Defendant Flores can in fact be held individually liable for a FEHA harassment claim, even as an Alta-Dena employee. Thus, the Court finds that Defendant Alta-Dena fails to meet its heavy burden of showing, by clear and convincing evidence, that Plaintiff cannot possibly assert a cause of action against Defendant Flores.

B. Deficiencies in Plaintiff's Complaint Can Be Cured by Amendment

Furthermore, remand is appropriate where, as here, a plaintiff can amend her complaint to include allegations sufficient for a viable state-law harassment claim. Ontiveros v. Michaels Stores, Inc., No. CV 12-09437-MMM (FMOx), 2013 WL 815975, at *4-5 (C.D. Cal. Mar. 5, 2013). Even if Plaintiff's Complaint contains pleading defects, the Court allows Plaintiff to cure the defects and raise her state-law claims in state court. Id. at *9.

In Ontiveros, removal was inappropriate because a defendant failed to establish that a plaintiff could not possibly assert a successful cause of action for harassment against a manager by providing additional facts. Id. at *5-6; See also Burris v. AT&T Wireless, Inc., No. C 06-02904-JSW, 2006 WL 2038040, at *2 (N.D. Cal. July 19, 2006) (citing Nickelberry v. DaimlerChrysler Corp., No. C-06-1002-MMC, 2006 WL 997391, at *1-2 (N.D. Cal. Apr. 17, 2006) (remanding action where defendant failed to demonstrate that the plaintiff could not amend to cure a pleading deficiency regarding an alleged sham defendant)). In Ontiveros, the plaintiff's examples of harassment consisted solely of actions within the scope of the defendant's employment; however, the court recognized that "purported deficiencies in the pleading [did] not demonstrate that [the defendant] [was] a sham defendant." 2013 WL 815975, at *5-6. The court noted that because the pleadings-though deficient-did not contain facts that would bar the plaintiff from providing additional factual allegations that could give rise to a viable harassment claim, remand was appropriate. Id.

Similarly here, Plaintiff alleges that Defendant Flores was aware of Plaintiff's disabilities and harassed Plaintiff by "unwarranted criticism, scrutiny, reprimands of Plaintiff, by failing to engage in the interactive process, by failing to provide reasonable accommodations, suspending her from work, refusing to allow her to work and earn compensation, and ultimately terminating her employment." Compl. ¶ 61. Although Defendant Alta-Dena argues that Plaintiff's allegations against Defendant Flores all fall within the scope of her employment and thus, are insufficient to form the basis of a FEHA harassment claim, Defendant Alta-Dena fails to demonstrate that Plaintiff cannot cure the deficiency through amending her Complaint. See Gill v. Hearst Pub. Co., 40 Cal.2d 224, 228 (1953) (finding that parties can amend their pleadings when their allegations contain uncertainties or ambiguities). Thus, Plaintiff correctly argues that Defendant Alta-Dena did not meet its heavy burden of proving fraudulent joinder by "clear and convincing" evidence. See Ontiveros, 2013 WL 815975, at *5. Because Plaintiff's joinder of Defendant Flores is proper, the Court lacks subject matter jurisdiction over this Action and GRANTS Plaintiff's Motion to Remand.

IV. CONCLUSION

In sum, the Court finds that Plaintiff's joinder of Defendant Flores is proper because Defendant Alta-Dena does not demonstrate that there is no possibility of a viable state-law claim against Defendant Flores. Because Defendant Flores is not fraudulently joined, and because Defendant Flores and Plaintiff are both citizens of California, the Court lacks subject matter jurisdiction over this Action. Thus, the Court GRANTS Plaintiff's Motion to Remand. This action is hereby remanded to the Superior Court of California, County of Los Angeles, Case No. BC539703.

IT IS SO ORDERED.