NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0759n.06
No. 08-3413
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Dec 03, 2009
LEONARD GREEN, Clerk
NOVELLA LOCKETT, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE NORTHERN DISTRICT OF
) OHIO
MARSH USA, INC., et al., )
)
Defendants-Appellees, )
BEFORE: COLE, GIBBONS, Circuit Judges; and BELL, District Judge.*
ROBERT HOLMES BELL, District Judge. Plaintiff Novella Lockett appeals the district
court’s entry of summary judgment for Defendants Marsh U.S.A., Inc., Marsh & McLennan
Companies, Inc. (collectively “Marsh”), and Charles Becker, on her employment discrimination
claims. Lockett contends that she was demoted and terminated on the basis of her race, gender and
age, and in retaliation for protected activity. She also contends that the district court lacked subject
matter jurisdiction over this removed action because she only alleged state law claims. For the
following reasons, we AFFIRM.
I. BACKGROUND
We adopt the background facts from the district judge’s well-written opinion as our own.
*
The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
Lockett v. Marsh
No. 08-3413
Plaintiff Novella Lockett (“Lockett”) is an African-American female born on
March 2, 1953. She was hired at Johnson & Higgins (“J & H”) in March 1975 as an
accounting clerk. Lockett earned multiple promotions throughout her time with J &
H, and had attained the title Chief Administrative Officer in 1997, when Marsh USA,
Inc. (“Marsh”) acquired J & H. In 1999, her job responsibilities continued to include
elements of human resources, technology, finance, and management services
organization. Marsh’s structure throughout its other regions did not contain a “Chief
Administrative Officer” position. Beginning in October 1999 and continuing through
January 2003, Lockett became known as the Regional Human Resources Manager,
even though Jim Meathe (“Meathe”), the manager for whom she consistently worked,
and some Marsh documents still referred to her as the Chief Administrative Officer.
Regardless of her title, her responsibilities remained spread through finance,
information technology and management services organization.
In 2001, Marsh’s Great Lakes and East Central Regions merged to create a
Midwest Region. This brought more responsibility for Lockett. In May 2001, Marsh
hired Christopher Long (“Long”) as the Regional Human Resources Manager in
Chicago. Long had a Masters Degree in Labor and Industrial Relations and at least
12 years of human resources experience. Lockett, who was based in Cleveland,
continued her varying duties, including human resources.
In November 2002, Meathe left Marsh and Arlene Corsetti became the
Regional Leader for the Midwest Region. Corsetti assessed the region and did not
understand Lockett’s multi-duty responsibilities because Corsetti had no experience
with a Chief Administrative Officer-type function, and Marsh did not have a chief
administrative officer role in its organizational structure. Corsetti had previously
worked with Long in Chicago, and saw Long as the Midwest Region HR manager.
Therefore, she decided to move Lockett to Office Administrator in Cleveland. Prior
to informing Lockett of the reassignment, Corsetti asked Becker his opinion and he
responded with approval, proclaiming, “That would be great. The people in
Cleveland like her.” In her Office Administrator position, Lockett had two financial
analysts who reported to her, Jeff Miles (“Miles”) and Sheryl Evans (“Evans”).
While Lockett received no cut in salary, her responsibilities were reduced in the new
position.
Lockett contacted Barbara Silvan, Managing Director of Employee Relations,
about her confusion concerning her reassignment. Silvan investigated Lockett's
concerns and found no evidence of unfair treatment. She determined, however, that
the Company could have done a better job of communicating to Lockett the
responsibilities assumed by Long when he was hired in 2001. Thereafter, in
2
Lockett v. Marsh
No. 08-3413
December 29, 2003, Lockett filed a charge of discrimination with the Ohio Civil
Rights Commission (“OCRC”) and Equal Employment Opportunity Commission
(“EEOC”) claiming she was demoted because of her race. The EEOC issued a right
to sue letter on April 13, 2004, after finding it was unable to conclude that the
evidence established a violation of the relevant statutes.
Approximately six months later, in October 2004, the New York Attorney
General filed a civil complaint against Marsh which ultimately resulted in a
settlement causing the company to pay approximately $850,000,000. Several Marsh
executives, including Corsetti, resigned, and approximately 3,000 Marsh employees
lost their jobs in the resulting cost-saving reduction in force (“RIF”). Lockett was
among those terminated as part of the RIF on November 19, 2004. Evans, a 49-year-
old white female, and Miles, a 46-year-old white male, Lockett’s two subordinates
who performed financial support functions in Cleveland with her, were also
terminated in the RIF. No employees were hired to replace Lockett, Miles and
Evans, and no financial management services organization support functions were
performed in Cleveland after the RIF.
Lockett then filed a second charge with the OCRC alleging race
discrimination and retaliation in her termination. The EEOC again disagreed with
Lockett’s allegations, finding that the evidence did not show Marsh retaliated against
her or discriminated against her on account of her race. A right to sue letter was
issued and Lockett then filed this lawsuit against Marsh and Becker, claiming (1)
wrongful demotion on the basis of age, race and gender; (2) wrongful discharge on
the basis of age, race and gender; (3) retaliatory demotion; (4) retaliatory discharge;
(5) wrongful discharge in violation of Ohio public policy, and (6) intentional
infliction of emotional distress.
Lockett v. Marsh USA, Case No. 1:06CV00035, 2007 U.S. Dist. Lexis 73939, at *2-7, (N.D. Ohio
Oct. 3, 2007) (Dkt. No. 55, Mem. Op. & Order) (Lioi, J.) (citations and footnotes omitted).
The district court, in two separate opinions, entered summary judgment in favor of Marsh
and Becker on all of Lockett’s claims against them and denied Lockett’s cross-motion for summary
judgment on Count VII. Lockett filed this appeal.
3
Lockett v. Marsh
No. 08-3413
II.
On appeal, Lockett challenges the district court’s exercise of subject matter jurisdiction as
well as its entry of summary judgment in favor of Defendants.
A. JURISDICTION
The threshold issue raised by this appeal is subject matter jurisdiction. Lockett filed her
complaint in the Court of Common Pleas for Cuyahoga County, Ohio, alleging state law claims of
wrongful demotion and termination based on race, age and gender, and wrongful denial of severance
payments. Defendants removed the action to federal court on the basis of federal question and
diversity jurisdiction.1 Lockett did not move to remand. However, the district court sua sponte
requested briefing from the parties on the issue of its subject matter jurisdiction. See Klepsky v.
United Parcel Serv., Inc., 489 F.3d 264, 268 (6th Cir. 2007) (“<[S]ubject matter jurisdiction may be
raised sua sponte at any juncture because a federal court lacks authority to hear a case without
subject matter jurisdiction,’” (quoting Thornton v. S.W. Detroit Hosp., 895 F.2d 1131, 1133 (6th Cir.
1990)). The district court ultimately determined that Count VII of Lockett’s complaint, which
purported to assert a claim under Ohio Revised Code § 4112 based on the terms and conditions of
employment, was completely preempted by § 502(a)(1)(B) of ERISA, 29 U.S.C. § 1132(a)(1)(B),
and was removable based on the court’s original federal question jurisdiction.
1
Although Defendants have acknowledged that both Lockett and Becker were citizens of the
State of Ohio, Defendants contend that the district court had diversity jurisdiction in addition to
federal question jurisdiction because Plaintiff joined Defendant Becker solely for the purpose of
defeating the diversity jurisdiction of the court. In light of our determination that there was federal
question jurisdiction, there is no need for us to consider this alternative basis for jurisdiction.
4
Lockett v. Marsh
No. 08-3413
Lockett contends that the district court lacked subject matter jurisdiction because all eleven
counts in her complaint were based upon either Ohio common law or Ohio statutory requirements,
and no federal claims were intended, alleged, or referenced. We review “