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FERRARO v. BELL ATL. CO.

February 18, 1997

SUSAN FERRARO, Plaintiff,
v.
BELL ATLANTIC COMPANY, INC., et al., Defendants.



The opinion of the court was delivered by: FISHER

 FISHER, District Judge

 This matter comes before the court on plaintiff's motion to remand to the Superior Court of New Jersey, Monmouth County, Law Division. Plaintiff's complaint was filed on November 6, 1996, in the Superior Court, and contained six counts: (1) discrimination on the basis of gender in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq; (2) hostile work environment in violation of the NJLAD; (3) retaliation for filing a complaint in violation of the NJLAD; (4) intentional infliction of emotional distress against defendant Daniel Galbraith; (5) breach of an express and/or implied contract against defendant Bell Atlantic; (6) breach of the covenant of good faith & fair dealing against defendant Bell Atlantic. Defendant filed a notice of removal pursuant to 28 U.S.C. § 1441 on December 30, 1996. For the reasons set forth below, plaintiff's motion to remand will be denied.

 Plaintiff began her employment with Bell Atlantic Company, Inc. on or about December 30, 1974. As an employee, plaintiff is a member of the International Brotherhood of Electrical Workers, AFL-CIO, Local # 827 ("Union"). A collective bargaining agreement ("CBA") exists between Bell Atlantic - New Jersey and Local # 827. Plaintiff's position was as a "Systems Technician" in the radio/video department, specializing in mobile/temporary communications. Plaintiff was the only female in this department and she was the only female in this field of mobile/temporary communications. She had obtained a Federal Communications Compliance ("FCC") license and was Bellcore certified. Plaintiff alleges that she was the only employee that had obtained both accreditations.

 Plaintiff alleges that beginning sometime in or about October 1992, defendants began treating her in a hostile, demeaning and threatening manner. Plaintiff alleges that she attempted to speak to her male co-workers, yet the hostile work environment continued. Plaintiff alleges that she repeatedly told her supervisor, Bruce Pierson, about the environment, yet no resolution was reached. Plaintiff alleges that n or about November 10, 1994, when the hostile work environment had not improved she spoke with the Union representative, Diane McNamara, about the hostile work environment and the threatening behavior of certain co-workers. Plaintiff also contacted the Equal Employment Opportunity ("EEO") officer to inform him of the situation.

 Plaintiff alleges that after she was forced to leave her employment on a disability leave, Bell Atlantic never provided her with her accrued vacation time for 1994 or for any time for which she may be entitled. Plaintiff alleges that Bell Atlantic's failure to pay her for her accrued vacation time is in violation of Bell Atlantic's policies and practices.

 Additionally, plaintiff alleges that because of Bell Atlantic's failure to provide her with her accrued vacation time, her length of service with the company was affected, and thus Bell Atlantic paid plaintiff at half pay instead of extending her full-time payments to correspond with her actual length of service. Plaintiff alleges that this was in contradiction to Bell Atlantic's own policies regarding the length of time an employee may receive full-time salary.

 Plaintiff also alleges that she never received the contract raise negotiated by the Union which became effective on May 21, 1995.

 Plaintiff alleges that she was informed, just prior to the end of short-term disability ("STD") benefits that she would be considered retired and begin receiving long-term disability ("LTD") benefits. Less than a month later, plaintiff received a notice that she must apply for long-term disability benefits. Eventually, on or about July 9, 1996, plaintiff's request for long-term disability benefits was denied.

 The issue presently before the court is whether Counts Five and Six of plaintiff's complaint are preempted by either the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1144, or Section 301 of the Labor Management Relation Act ("LMRA"), 29 U.S.C. § 185.

 A defendant sued in state court can remove the case to federal district court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). The party seeking removal bears the burden of establishing its propriety. See Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert denied, 498 U.S. 1085, 112 L. Ed. 2d 1046, 111 S. Ct. 959 (1991). The Third Circuit instructs district courts to construe removal statutes strictly in favor of remand. Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1267 (3d Cir. 1994).

 Where there is no diversity between the parties, a defendant may remove a case if the plaintiff's claim arises under federal law within the meaning of 28 U.S.C. § 1331 La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 343-344 (3d Cir. 1974), cert. denied, 421 U.S. 937, 44 L. Ed. 2d 94, 95 S. Ct. 1666 (1975). Plaintiff argues that this case is not removable, because all counts are grounded in state law. Plaintiff argues that "whether an action arises under federal law is determined by an examination of the claims as set forth in the complaint rather than the pleaded facts underlying them." Box Tree South, Ltd. v. Bitterman, 873 F. Supp. 833, 837 (S.D.N.Y. 1995). "The well-pleaded complaint rule is the basic principle marking the boundaries of the federal question jurisdiction of the federal district courts." Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 95 L. Ed. 2d 55, 107 S. Ct. 1542 (1986).

 Defendant, Bell Atlantic-New Jersey, Inc. ("defendant"), argues that plaintiff's state law claim for breach of express and/or implied contracts to compensate her for accrued vacation time, and to provide her with collectively bargained-for wage increase, and her claim that defendant denied her certain STD and LTD benefits in violation of defendant's policies and practices are founded directly upon rights created by the applicable collective bargaining agreement, and can be resolved only by interpretation of that ...


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