United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
Daniel Hawkins filed a complaint in the Circuit Court for
Baltimore City against PNC Bank, National Association,
containing two counts: (1) for discrimination and hostile
work environment under the Fair Employment Practices Act, Md.
Code Ann., State Gov't § 20-101 et seq.
(“FEPA”) and (2) for constructive discharge under
FEPA. As to each count, Plaintiff sought $75, 000 in damages.
(ECF No. 3). Defendant removed the action to this court,
asserting diversity jurisdiction. (ECF No. 1). Plaintiff has
now moved to remand. (ECF No. 10). For the following reasons,
the motion will be denied.
a gay male, worked as a banker at one of PNC's branches
for several years. (ECF No. 3 ¶ 8). He claims that he
was subjected to harassment based on sexual orientation, sex,
or both prior to and continuing through his constructive
discharge on or about June 10, 2017. (Id. ¶ 9).
He recounts instances of what he labels verbal harassment in
May and early June 2017, leading to his decision to terminate
his employment. (Id. ¶¶ 10, 13, & 17).
In Count One, brought under FEPA, for discrimination based on
sexual orientation, sex harassment, and hostile work
environment, Plaintiff seeks compensatory damages, back pay,
punitive damages, and attorneys' fees in the amount of
$75, 000. (Id. ¶¶ 24-33). Plaintiff
asserts he has suffered anxiety, pain, suffering, mental
anguish, embarrassment, humiliation, stress, and other
non-economic damages, as well as pecuniary and other economic
damages. (Id. ¶ 33). Count Two is for
discrimination via constructive discharge under FEPA, and
Plaintiff seeks compensatory damages, back pay, punitive
damages, and attorneys' fees in the amount of $75, 000.
(Id. ¶¶ 34-41).
moved to remand this case to state court, contending that the
complaint does not seek more than $75, 000 in damages, thus
negating the necessary amount in controversy to support
diversity subject matter jurisdiction. (ECF No. 10, at 2).
Defendant opposes remand, contending that the claims are
separate and distinct and claiming that the ad
damnum clauses in Plaintiff's complaint should be
aggregated for jurisdictional purposes. (ECF No. 11).
Plaintiff has filed a reply. (ECF No. 12).
removal statutes are to be construed strictly and all doubts
resolved against removal. Green v. H & R Block,
Inc., 981 F.Supp. 951, 953 (D.Md. 1997) (citing
Prevas v. Checkmate Investigative Servs., Inc., 951
F.Supp. 568, 569 (D.Md. 1996)). When a party seeks to invoke
diversity jurisdiction under 28 U.S.C. § 1332, he bears
the burden of demonstrating that the grounds for diversity
exist. See Barbour v. Int'l Union, 640 F.3d 599,
605 (4th Cir. 2011) (en banc), abrogated on
other grounds by 28 U.S.C. § 1446(b)(2)(B).
Generally, “if removal of a civil action is sought on
the basis of the jurisdiction conferred by section 1332(a),
the sum demanded in good faith in the initial pleading shall
be deemed to be the amount in controversy.” 28 U.S.C.
§ 1446(c)(2); see also Wiggins v. N. Am. Equitable
Life Assur. Co., 644 F.2d 1014, 1016-17 (4th
Cir. 1981) (citing McDonald v. Patton, 240 F.2d 424,
425-26 (4th Cir. 1957) (“It is the firmly
established general rule of the federal courts that the
plaintiff's claim is the measure of the amount in
controversy and determines the question of
question here is whether Count One and Count Two seek exactly
the same damages, operating as merely alternative means for
seeking the same relief - implicating the one harm one
recovery rule. The one harm one recovery rule bars a party
from recovering twice for the same injury. See Gen. Tel.
Co. of the Northwest, Inc. v. EEOC, 446 U.S.
318, 333 (1980); United States v. Rachel, 289
F.Supp.2d 688, 697 (D.Md. 2003). If the one harm one recovery
rule applies, then Plaintiff would be correct that the
jurisdictional threshold is not met because each count
requests only $75, 000 in monetary relief. See 28
U.S.C. § 1332(a). On the other hand, if the damages
sought are not congruent, but merely overlapping, then
aggregation is permitted. See Griffin v. Red Run Lodge,
Inc., 610 F.2d 1198, 1204 (4th Cir. 1979).
When aggregated, the ad damnum clauses for both
counts exceed the $75, 000 jurisdictional threshold under 28
U.S.C. § 1332(a).
parties debate whether Plaintiff's complaint outlines
alternate legal theories or states multiple, distinct claims.
Judge Xinis's recent analysis in Arcangel v.
Huntington Atlantic Hotels, LLC, No. 18-cv-2313-PX, 2018
WL 5885517 (D.Md. Nov. 9, 2018), is illustrative. In
Arcangel, Judge Xinis declined to extend the one
harm one recovery rule to a case where the plaintiffs'
hotel room was infested with bed bugs because the plaintiffs
pleaded “at least three distinct
offenses.” Id. at *3. Even though the claims
arose from the same nucleus of facts, Judge Xinis concluded
that the “claims are based on different conduct causing
different harms” and noted that if plaintiffs prevailed
on all three claims, they could recover full damages on each
count because the three counts offer three distinct theories
of recovery. Id. (citing Johnson v. Xerox Educ.
Sols. LLC, No. 14-cv-15422-GJH, 2014 WL 5361302, at *4
(D.Md. Oct. 20, 2014) (differentiating distinct legal
theories from alternate legal theories by analogizing
alternate legal theories to an attempt to recover money paid
for goods via breach of contract and fraud)).
Arcangel, although the allegations arise from the
same nucleus of facts, Plaintiff pleads multiple distinct
offenses. Plaintiff seeks damages in Count One to recover for
the harms associated with discrimination and harassment in
the workplace. (ECF No. 3, at 8-10). These harms include
“anxiety, pain, suffering, mental anguish,
embarrassment, humiliation, stress, and . . . [other]
non-economic damages.” (Id. ¶ 32).
Plaintiff seeks damages in Count Two for harms associated
with forced resignation due to discrimination and harassment
in the workplace. (Id. ¶¶ 34-41). The
harms in Count Two may be coextensive with the harms alleged
in Count One, but in Count Two Plaintiff could also seek lost
wages for the time after termination, whereas Count One would
not entitle Plaintiff to those wages. Under Count One,
Plaintiff could only recover lost income based, for instance,
on a denial of a promotion or a denial of a
bonus. Consequently, like the plaintiffs in
Arcangel, if Plaintiff proved he was discriminated
against by Defendant, he would not then be precluded from
recovering for the alleged constructive discharge because
there are additional harms associated with constructive
discharge. See Johnson, 2014 WL 5361302, at
*5. Accordingly, the two counts do not seek exactly the same
damages and assert slightly different harms. Thus, the
court's diversity jurisdiction is proper.
diversity jurisdiction is proper, it is not necessary to
evaluate Defendant's alternative arguments for satisfying
the jurisdictional threshold.
foregoing reasons, the motion to remand filed by Plaintiff
Daniel Hawkins will be ...