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This appeared in the March 8, 1998 issue of   Massachusetts Lawyers weekly. This was written by Philip R. Olenick. He is an attorney in Boston. He can be reached at his office, 101 Tremont Street; Boston, MA 02108; (617) 357-5660.

Motion to remandOpposition to remandDecision to remand


Practitioners should be aware that a little-noticed pair of provisions of the federal removal statute have the effect of barring the removal of cases that include claims arising under state Workers' Compensation laws unless those claims are separate enough from a removable claim to allow them to be severed and remanded:

These provisions do not prevent plaintiffs from bringing cases that include Workers' Compensation claims in federal court if they wish, but they do allow a plaintiff who has chosen to sue in state court--a increasingly-common preference of plaintiffs in employment cases--to make that choice stick.

On January 25, 1999, in Silverstein v. Microsystems Software, Inc., et al., U.S. District Court for Massachusetts C.A. No. 98-12219-RGS, U.S. District Judge Richard G. Stearns ordered a remand of the whole case--including the federal claim that had led to removal--back to Massachusetts' Middlesex Superior Court because of the presence of claims under the Massachusetts Workers' Compensation Act, General Laws chapter 152,  75A and  75B, of retaliation and refusal to rehire that were part of the same cause of action as his similar claims under the federal Family and Medical Leave Act, 29 U.S.C. 2601, et seq. (FMLA claims may be brought in state court under 29 U.S.C. 2617.)

The author has not found a reported case anywhere in the United States where the presence of a Workers' Compensation claim has caused the remand of a related federal claim to state court along with it. Given the substantial overlap between the personal medical treatment branch of the FMLA, state Workers' Compensation laws, and state and federal laws against handicap discrimination, Silverstein v. MSI represents a valuable new way for plaintiffs to keep cases that raise such clusters of issues in state court.

As alleged in Silverstein's complaint, the case grew out of his being fired from his job as a software engineer (computer programmer) with MSI--a company that sells adaptive software for the handicapped--for taking time off for treatment of a handicap, and the refusal to rehire him when he tried to return, even though there were vacant positions.

Silverstein was fired because he had taken an unpaid three-week leave of absence to get acupuncture in China, at his own expense, and on the recommendation of his doctor, for repetitive stress disorder aggravated by working at the computer keyboard. The leave was taken more than a month after he advised his employer about being told by his doctor--and provided a letter from the doctor--that he needed to take three weeks off from work while being treated, or else the treatment would do no good. (He had attempted treatment locally, with little success, over the course of the preceding year, to much griping by his employer over his taking breaks from the keyboard and partial days off for treatment.) The employer's Workers' Compensation insurer had him examined by its own doctor, who advised him either to change careers so as not to work at the keyboard or to learn to live in pain--which he also told his employer about before leaving for treatment.

Silverstein's employers told him that they wanted him to delay his departure until three weeks after the release of the program he had been working on--which was mostly finished but its release had been repeatedly postponed. When they protested a travel agency itinerary for an earlier departure, he postponed his departure until three weeks after the then-advertised release date, and gave them a revised itinerary. Shortly before he left, his supervisor met with him to obtain passwords for his version-control software so other members of the team could use it to work on the program in his absence, but did not warn him that he would be fired if he left.

As soon as Silverstein reached China (as the supervisor could see from the itinerary), he was sent an e-mail telling him that he would be out of a job if he was not back at work in Massachusetts the next day (an obvious impossibility, as could also be seen from the itinerary). The program he had been working on was released that next day, and he was fired shortly afterwards. All efforts on Silverstein's part to return to work after his treatment--including both asking for reinstatement and applying for advertised positions--were rejected, both by MSI and by The Learning Company, which bought MSI after Silverstein was fired.

Silverstein brought claims in Massachusetts' Middlesex Superior Court for retaliation and refusal of reinstatement under 75A and 75B of the Massachusetts Workers' Compensation law, General Laws chapter 152; handicap discrimination and retaliation under G.L. chapter 151B; violation of his right to take up to twelve weeks of unpaid leave with no more than a one-month wait to do so--and retaliation for his having asserted that right--under the federal Family and Medical Leave Act; and several Massachusetts common law counts.

Silverstein included--in the body of the FMLA count of the complaint--a notice to the defendants that, under 1445(c), the case was not removable, as that claim was part of the same cause of action as the nonremovable Workers' Compensation claims.

Nonetheless, the defendants, by their counsel, Foley, Hoag, and Eliot, removed the case on the basis of federal question jurisdiction under 28 U.S.C. 1441(a) due to the presence of the FMLA count, and asserted (agreeing with the plaintiff) that all of the counts were part of "the same case or controversy," relying upon that commonality as the basis for the federal court's supplemental jurisdiction over the state law counts under 28 U.S.C. 1367.

Silverstein promptly moved to remand the case to state court. In dealing with that motion, the parties, and the District Judge, had to deal with a paucity of reported case law directly on point, as remands are not appealable, although denials of remand may be reviewed in a normal appeal after judgment.

Silverstein pointed to the United States Supreme Court's decision in American Fire Casualty v. Finn, 342 U.S. 6 (1951) to establish that 1441(c) prohibits removal of an otherwise-removable claim that is not "separate and independent" from a non-removable claim. He cited Gonsalves v. Amoco Shipping Company, 733 F.2d 1020 (2nd Cir. 1984), which involved a federal Jones Act claim made similarly non-removable under 1445(a), to show the interaction of 1445 and 1441(c) in requiring remand of the whole case--and vacating a defendant's judgment in the process.

In addition, Silverstein cited New England Concrete Pipe Corporation v. D/C Systems of New England, Inc., et al., 658 F.2d 867 (1st Cir. 1981) to show that 1441(c) applies to cases removed on the basis of federal question jurisdiction as well as those removed under diversity jurisdiction. He cited Armistead v. C & M Transport, Inc., et al., 49 F.3d 43 (1st Cir. 1995), which had vacated a judgment for the defendants and ordered the remand to state court of a case seeking to enforce an award of Workers' Compensation benefits that had been removed on the basis of diversity of citizenship. The First Circuit distinguished that claim--brought under the explicit provisions of the Workers' Compensation statute--from the situation in Spearman v. EXXON Coal USA, Inc., 16 F.3d 722 (7th Cir. 1994). Spearman had dealt with a claim of retaliation that was a matter of common law, unlike the statutory provision against retaliation contained in Massachusetts's Workers' Compensation law. The Seventh Circuit had ruled in Spearman that a common law claim of retaliation for having asserted rights under that state's Workers' Compensation law was not a case "arising under" that state's Workers' Compensation Law.

Silverstein discussed the case of Joseph Lydon v. Boston Sand & Gravel Company, 15 F.Supp.2d 150 (D.Mass. 1998), which--after acknowledging that a chapter 152 retaliation claim could bar removal--had held that removal was allowable in that case because the chapter 152 claim was pre-empted by federal collective bargaining law since Lydon, a union member, was covered by a union contract that addressed the issue, and thus controlled it. Silverstein pointed out that his own workplace was not unionized, and that 29 U.S.C. 2651(a) and (b) of the FMLA carefully avoid any preemption of state anti-discrimination laws and state laws that provide greater family or medical leave rights. (Chapter 152 does not limit the period within which the worker has the right to return to work to 12 weeks and requires employers to pay compensation during the worker's disability, unlike the unpaid FMLA leave.)

The defendants did not, in their opposition to the motion for remand, attempt to argue for pre-emption. Instead, they argued that general federal question jurisdiction, together with supplemental jurisdiction, overrode the 1445(c) prohibition against removal of Workers' Compensation cases, suggesting that otherwise 1367 supplemental jurisdiction would be rendered "meaningless."

The defendants relied upon Moore's Federal Practice--and a decision of a federal district court in Texas--for the proposition that 1445(c)'s explicit prohibition against removal of Workers Compensation cases could be ignored.

The defendants did not help their argument, however, by quoting from 1367 that state law claims may be asserted along with federal claims "except . . . as expressly provided by federal statute," since 1445(c) and 1441(c) clearly are federal statutes. (In fact, 1441(a), which the defendants relied upon to remove the case due to the presence of a federal question, contains an equivalent qualifier, "Except as otherwise expressly provided by Act of Congress," which also defers to the more specific language of 1445(c) and 1441(c).)

Given the symmetrical outcomes in Gonsalves, in which a defendant's verdict was vacated and the case remanded, and in American Fire Casualty v. Finn, where a plaintiff's verdict was vacated for lack of removal jurisdiction on the motion of a removing defendant, the message is clear: in an invalidly-removed case, no federal court judgment for either side can be relied on. Thus, even a plaintiff satisfied with the choice of federal judge assigned to the case should move to remand if jurisdiction is improper.

In his decision remanding the case, U.S. District Judge Stearns quoted the statutory provisions referred to above and discussed the pre-emption issue raised by Lydon. He noted, in a footnote, the wisdom of 1441(c)'s handling of cases containing nonremovable claims on the basis of their relationship to the removable claims, so that a plaintiff could not bar removal by joining an unrelated claim.

The pleadings and the decision on remand in this case can be read on-line at the plaintiff's web site, The case raises other issues of interest to practitioners--including how to establish that a case is covered by the FMLA and the effect of the FMLA's requirements on other claims--that may be addressed in future articles as they are resolved by the courts.

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1. Copyright 1999 by Philip R. Olenick. The author, a Boston attorney, is a member of the Massachusetts and federal bars (including the U.S. District Court for Massachusetts, the First Circuit, and the U.S. Supreme Court) and represents William Silverstein in the case that is the focus of this article.