The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
This state law employment discrimination action was removed from state court on the basis of diversity of citizenship. Plaintiff obviously is unhappy with the fact of the removal and has undertaken repeated and fruitless efforts to return to state court. The matter is before the Court on the Court's order of April 1, 2008 [docket item 26], which among other things directed plaintiff to show cause why the twelfth cause of action in the amended complaint should not be dismissed for legal insufficiency and plaintiff's recent motion for relief from the order of April 1, 2008 [docket item 29].
Plaintiff initially moved to remand [docket item 7], claiming that the complaint asserted a claim under the New York Workers' Compensation Law. That motion was denied as frivolous on February 21, 2008 on the ground that the complaint did not assert a claim under the Worker's Compensation Law -- indeed, it did not even contain the word "worker." [Docket item 9]
Plaintiff then moved for leave to amend the complaint, evidently to attempt to allege a claim under the Workers' Compensation Law.*fn1 [Docket item 18] That motion was denied on the ground that the proposed amended complaint attached to the motion consisted exclusively of a caption, without any text, and thus failed to state any workers' compensation claim.*fn2 In the course of denying that motion, the Court expressed skepticism that an amendment sufficiently asserting a claim under the Workers' Compensation Law would require remand. [Docket item 21]
Then plaintiff filed a so-called amended motion and notice of motion to remand to the state court. [Docket item 23] The order of April 1, 2008 now at issue denied so much of the motion as sought leave to amend on the ground that leave to amend was unnecessary, directed plaintiff to show cause why the twelfth cause of action -- which purported to allege a claim under the Workers' Compensation Law -- should not be dismissed, and denied the motion to remand without prejudice to renewal in the event the sufficiency of the twelfth cause of action were sustained.
The Twelfth Cause of Action
The amended complaint, like its predecessor, alleges facts which, if true, perhaps make out a claim that defendant discriminated against plaintiff on the basis of her race. The twelfth cause of action adds a claim that alleges in material part only this: "Defendant knowingly or recklessly violated plaintiff's New York State Workers' Compensation Rights by subjecting plaintiff to treatment that no Caucasian employee of the defendants' [sic] has been subjected to." Am. Cpt. ¶ 265.
In response to the Court's order to show cause and in support of her own motion for relief from the April 1, 2008 order, plaintiff argues that "New York Workers' Compensation Law Bars Discrimination on the Basis of Race." Pl. Mem. [docket item 30], at 3. She relies on Section 120 of the Workers' Compensation Law The statute in question provides in relevant part as follows:
"§ 120. Discrimination against employees who bring proceedings It shall be unlawful for any employer . . . to discharge or in any other manner discriminate against an employee as to his or her employment because such employee has claimed or attempted to claim compensation from such employer, or because he or she has testified or is about to testify in a proceeding under this chapter and no other valid reason is shown to exist for such action by the employer." (Emphasis added)
After quoting Section 120, plaintiff argues that "[i]t is simply irrefutable that § 120 pronounces that it is unlawful to discriminate in any manner." Pl. Mem. [docket item 30], at 4 ...