By Kyla Asbury | Sep 18, 2017


CLARKSBURG – A lawsuit against Ruby Tuesday alleging gender discrimination and a hostile work environment has been remanded back to Harrison Circuit Court by U.S. District Judge Irene Keeley.

Keeley, in her Aug. 8 memorandum opinion and order, wrote that the court granted the plaintiff’s motion and remanded the civil action against Ruby Tuesday and Joe Montgomery to Harrison Circuit Court.

The defendants had previously alleged that Montgomery, a West Virginia citizen, was fraudulently joined for the sole purpose of destroying diversity.

Valerie Whitman contends that she did not fraudulently join Montgomery and argued that, because he is a non-diverse defendant, the court lacks diversity jurisdiction.

“In response, the defendants assert that the Court should dismiss Montgomery from this case because he was fraudulently joined, and also because he was not served at the time of removal,” Keeley wrote. “Neither of the defendants’ arguments has merit.”

The defendants contend that Whitman failed to allege sufficient facts to establish a cause of action against Montgomery that would be actionable in state court. During the scheduling conference conducted on June 30, the court heard argument from the parties on this issue and noted that Whitman had sufficiently alleged that Montgomery not only had knowledge of the harassment, discrimination and hostile work environment, but also had failed to do anything about it and was personally responsible for many of the wrongful actions directed at Whitman.

The defendants also urged the court to deny Whitman’s motion to remand because Montgomery had not been properly served at the time of removal.

“Although the forum defendant rule confines or limits removal in those cases with forum defendants, it does not extinguish the requirement of 28 U.S.C. § 1332 that the parties must be diverse from one another,” Keeley wrote. “Here, they are not. Accordingly, the fact that Montgomery was not served prior to removal does not permit the Court to exercise jurisdiction in this case.”

On March 13, Whitman filed her lawsuit against the defendants in Harrison Circuit Court. It was removed to federal court on April 18.

Whitman claimed she was an assistant manager at Ruby Tuesday and completed her training last October. She claimed she performed all of her work duties in a satisfactory or above satisfactory manner and never committed any separate dischargeable offenses.

Shortly after Whitman began employment at the Clarksburg location, she began suffering gender discrimination, harassment and a hostile work environment created largely by Montgomery, according to the suit.

Whitman claimed Montgomery did not permit her to speak directly to him, rather, if she had a question, she had to have another employee relay the message.

Montgomery also made several derogatory or degrading comments about Whitman’s sexuality, including that “your kind aren’t welcome here,” and that he would “never work with a gay person again,” according to the suit.

Whitman claims her employment was wrongfully terminated on Dec. 21.

Whitman is being represented by Erika Klie Kolenich and Karl Kolenich of Klie Law Offices.

The defendants are represented by Charles K. Grant of Baker Donelson Bearman Caldwell & Berkowitz.

U.S. District Court for the Northern District of West Virginia case number: 1:17-cv-00058

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Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Klie Law Offices PLLC U.S. District Court for the Northern District of West Virginia Clarksburg Division

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