Forrest v. Transit Management of Charlotte , 93 F. App'x 577 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GERALD D. FORREST, 
Plaintiff-Appellant,
v.  No. 03-2239
TRANSIT MANAGEMENT OF CHARLOTTE,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-03-347-3-MU)
Submitted: February 25, 2004
Decided: April 7, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Gerald D. Forrest, Appellant Pro Se. John Brem Smith, MCNAIR
LAW FIRM, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 FORREST v. TRANSIT MANAGEMENT OF CHARLOTTE
OPINION
PER CURIAM:
Gerald D. Forrest appeals from the order of the district court dis-
missing his complaint. Having concluded that the district court lacked
original jurisdiction to consider Forrest’s claims, we vacate the order
and remand for further proceedings consistent with this opinion.
In July 2003, Forrest filed suit in the Mecklenburg County Superior
Court of North Carolina alleging wrongful termination and unlawful
employment discrimination by his employer, Transit Management of
Charlotte, Inc. (hereinafter "Transit"). His complaint did not invoke
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e -
2000e-17 (2000). Transit thereafter filed a notice of removal in the
district court alleging federal question jurisdiction under 28 U.S.C.
§ 1331 (2000). The district court accepted the removal, and Transit,
reversing its position on the question of jurisdiction, moved to dismiss
on the basis that Forrest could not proceed under Title VII because
he had failed to obtain a right-to-sue letter. Accordingly, Transit
argued that the district court lacked jurisdiction to consider Forrest’s
claims. The district court accepted Transit’s argument and granted the
motion to dismiss, stating: "In the absence of a right-to-sue letter, this
court does not yet have jurisdiction over Plaintiff’s Title VII claims."
(R. 9). Forrest filed a timely notice of appeal.
In order to remove a matter from state court to federal court, the
moving party must allege that federal subject matter jurisdiction
obtains on account of diversity jurisdiction or because the complaint
implicates a federal question. 28 U.S.C. § 1441(a), (b) (2000) (refer-
encing the original jurisdiction of the district courts conferred under
28 U.S.C. §§ 1331 (federal question), & 1332 (diversity of citizen-
ship) (2000)). In other words, an action filed in state court may be
removed to federal court "only if it might have been brought in fed-
eral court originally." Darcangelo v. Verizon Comm., 292 F.3d 181,
186 (4th Cir. 2002) (quoting 14b Wright, Miller & Cooper, Federal
Practice and Procedure: Jurisdiction, § 3721, at 292 (3d ed. 1998)).
Thus, a claim that could not have originally been brought in federal
court cannot be removed to federal court. See Caterpillar Inc. v. Wil-
liams, 482 U.S. 386, 392 (1987).
FORREST v. TRANSIT MANAGEMENT OF CHARLOTTE 3
Likewise, a federal court may not assume jurisdiction over an
action arising under Title VII unless the claimant has (1) exhausted
his administrative remedies, and (2) attempted to seek redress under
any applicable state or local remedies. See Davis v. North Carolina
Dep’t of Corr., 48 F.3d 134, 137 (4th Cir. 1995). In Davis, we con-
cluded that a district court could not accept the removal of a state
complaint alleging employment discrimination under the guise of
Title VII, unless "the EEOC has investigated the claim, made a deter-
mination as to the claim’s merit, and issued a right-to-sue notice."
Davis, 48 F.3d at 138. Absent that determination or a similar finding
under state or local law, the district court lacks subject matter jurisdic-
tion over the claim, and thus, lacks jurisdiction to accept removal. Id.Because the district court lacked jurisdiction to consider Forrest’s
claims, Transit’s notice of removal was improper. Accordingly, we
vacate the order of the district court and remand with instructions to
remand Forrest’s complaint to the Superior Court of Mecklenburg
County. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
VACATED AND REMANDED