OPINION & ORDER

[Resolving Docs. 9, 11, 12]

JAMES S. GWIN, District Judge.

Plaintiff Katheryn Papushak moves to remand this case back to state court.1 Plaintiff argues that the Court does not have subject matter jurisdiction because her claims arise under Ohio's workers' compensation laws.2 Defendant Aramark Services, Inc. ("Aramark") opposes Plaintiff's motion to remand.3

For the following reasons, the Court GRANTS Plaintiff's motion to remand.

I. BACKGROUND

On August 24, 2017, Plaintiff Papushak filed her complaint in Cuyahoga County Court of Common Pleas.4 Plaintiff Papushak sues her former employer, Defendant Aramark, for its retaliation against her for having sought workers' compensation benefits.5 Papushak says Aramark violates Ohio's workers' compensation statute.6 Plaintiff's complaint alleges Defendant discharged her "because Plaintiff filed a claim and/or instituted, pursued or testified in a proceeding under the workers' compensation act."7

On September 27, 2017, Defendant Aramark removed the case to this Court by citing diversity jurisdiction.8 On October 2, 2017, Plaintiff moved to remand this case back to state court.9

II. DISCUSSION

A defendant may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction."10

However, "[a] civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States."11

Under Harper v. AutoAlliance International Inc., a civil action "arises under" a state's workmen's compensation laws when either "(1) the workmen's compensation law created the cause of action or (2) the plaintiff's right to relief necessarily depends on resolution of a substantial question of workmen's compensation law."12

Defendant argues that Ohio's workers' compensation laws did not create a cause of action for wrongful discharge due to filing or pursuing a workers' compensation claim.13 Defendant also argues that Plaintiff's claim does not depend on or require any interpretation of the Ohio workers' compensation statute.14

The Court disagrees with Defendant. Plaintiff's claim for retaliatory discharge due to filing and/or pursuing a workers' compensation claim arises under Ohio's workers' compensation laws.15

The first Harper prong is satisfied. Ohio Rev. Code Ann. § 4123.90, Ohio's workers' compensation statute, created the cause of action.16 Section 4123.90 specifically gives claimants a right and remedy for retaliatory discharge for filing or pursuing a workers' compensation claim.17 The statute was also the first to recognize Plaintiff's cause of action. Ohio enacted the statute in 1986 before it recognized a general wrongful discharge tort in 1990.18

The second Harper prong is also satisfied. Plaintiff's complaint alleges she was discharged because she pursued her rights under Ohio's workers' compensation statute.19 As a result, the success of Plaintiff's claim will directly depend on how Section 4123.90 is construed.20

Defendant attempts to refute the second prong by arguing that Plaintiff's claim is not actually based on a wrongful discharge due to filing and/or pursuing a workers' compensation claim.21 To support this argument, Defendant cites facts outside of Plaintiff's complaint.22

The Court has discretion to consider facts outside of the pleadings when resolving a disputed jurisdictional issue.23 But the removing Defendant has the burden to prove, by a preponderance of the evidence, that the jurisdictional facts it alleges are true.24 Defendant relies on bare factual assertions not grounded in any affidavits or documents.25 The Court finds that Defendant has not met its burden.26

III. CONCLUSION

Accordingly, for the above reasons, the Court GRANTS Plaintiff's motion to remand.

IT IS SO ORDERED