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Chrysti Corkill, An Individual v. Preferred Employers Group

November 28, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


Presently before the Court is Defendant Preferred Employers Group, LLC ("PEG")'s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. [Doc. No. 17.] For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART PEG's motion for summary judgment.


I. Facts

This action arises out the termination of Plaintiff Chrysti Corkill ("Plaintiff")'s employment by Defendant PEG. The following facts are taken from the allegations in the complaint. During Plaintiff's employment with PEG, Plaintiff suffered from a mental disability requiring her to take medical leave. [Doc. No. 1-1, Compl. ¶ 17.] Specifically, on February 17, 2010, Plaintiff's physician placed her on medical leave for anxiety and depression. [Id.] Plaintiff provided Kim Urban, PEG's Benefits Analyst, with a note from her physician, and Plaintiff completed an application for family/medical leave. [Id.] Shortly thereafter, Plaintiff received a notice from PEG approving her leave. [Id.] On April 7, 2010, Plaintiff had a follow-up appointment with her physician, and her physician informed her that she was unable to return to work full-time and extended Plaintiff's medical leave. [Id. ¶ 18.]

Around the beginning of April 2010, various PEG employees began questioning Plaintiff about her remaining medical leave availability. [Id. ¶ 19.] On April 9, 2010, Plaintiff received a message from Daryl Tilghman, PEG's Assistant Vice President, Human Resources. [Id. ¶ 20.] This message stated that PEG was unable to extend Plaintiff's medical leave and that she needed to return to work by April 12, 2010. [Id. ¶ 21.] Plaintiff spoke with Mr. Tilghman and informed him that she would only be able to return to work if she was allowed to work part-time to accommodate her mental disability. [Id.] Mr. Tilghman summarily stated that part-time work was not available. [Id.] On April 12, 2010, Plaintiff did not return to work, and PEG terminated her employment. [Id. ¶ 22.]

Plaintiff alleges that she was terminated even though she had not used her entire 12 weeks of family/medical leave provided to her under California law. [Id. ¶ 21.] Plaintiff also alleges that PEG has allowed other employees to work on a part-time basis. [Id.]

II. Administrative History

On June 30, 2010, Plaintiff filed an administrative charge*fn1 with the California Department of Fair Employment and Housing ("DFEH") alleging that she was subjected to employment discrimination. [Doc. No. 18-1, Ex. C.] The charge named Defendant Preferred Employers Insurance Company ("PEIC") in the caption of the charge and named Daryl Tilghman in the body of the charge. [Id.]

On July 2, 2010, the DFEH sent Mr. Tilghman a notice informing him of Plaintiff's June 30, 2010 charge. [Doc. No. 22-15, Ex. 15.] On August 6, 2010, the DFEH received a completed "Notification of Respondent's Address" form that was signed by Mr. Tilghman and named "Preferred Employers Group, LLC" as respondent's legal name. [Doc. No. 22-16, Ex. 16.] On August 24, 2010, PEG through counsel sent a letter to the DFEH responding to the allegations in Plaintiff's June 30, 2010 charge. [Id.] The letter stated that PEG is the proper respondent and that Plaintiff improperly named PEIC as her employer. [Id.] On January 7, 2011, the DFEH sent Plaintiff a notice of case closure and notice of right-to-sue. [Doc. No. 18-1, Ex. D.]

On January 27, 2011, Plaintiff's counsel mailed to the DFEH an amended charge that added additional allegations. [Doc. No. 22-26, Ex. 26; Doc. No. 22-27, Ex. 27, Declaration of Julie A. Cosner ("Cosner Decl.") ¶ 2.]*fn2 The January 27, 2011 charge does not show that it was ever filed by the DFEH. [Doc. No. 22-26, Ex. 26.] On May 19, 2011, Plaintiff filed an amended charge with the DFEH. [Doc. No. 18-1, Ex. E.] This amended charge contained the same allegations as the original June 30, 2010 charge, but it named Defendant PEG in the caption of the charge. [Id.] An additional notice of case closure was sent to Plaintiff on June 22, 2011. [Id. Ex. F.]

III. Procedural History

On January 31, 2011, Plaintiff filed a civil complaint against Defendants PEG, PEIC, and W.R. Berkeley Corporation ("W.R. Berkley") alleging causes of action for (1) wrongful termination in violation of California Government Code § 12945.2; (2) wrongful termination in violation of California Government Code § 12940(a); (3) discrimination on the basis of mental disability in violation of California Government Code § 12940(a); (4) failure to accommodate in violation of California Government Code § 12940(m); (5) failure to engage in the interactive process in violation of California Government Code § 12940(n); and (6) intentional infliction of emotional distress. [Doc. No. 1-1, Compl.]

On March 14, 2011, Plaintiff dismissed Defendant PEIC. [Doc. No. 37-3, Declaration of Elizabeth Koumas ("Koumas Decl.") Ex. A.] Shortly thereafter, Defendants PEG and W.R. Berkeley removed the action to this Court pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction under 28 U.S.C. § 1332. [Doc. No. 1, Notice of Removal.] On June 8, 2011, the Court granted theparties' joint motion and dismissed Defendant W.R. Berkeley leaving PEG as the sole remaining Defendant. [Doc. No. 11.] By the present motion, PEG seeks summary adjudication of all six of Plaintiff's claims. [Doc. No. 17-1, Def.'s Mot.]


I. Subject Matter Jurisdiction

Upon reviewing the materials in this case, the Court became concerned about whether it had subject matter jurisdiction over this action. Therefore, on October 27, 2011, the Court issued an order to PEG to show cause why the action should not be remanded. [Doc. No. 33.] On November 3, 2011, PEG filed its response to the order to show cause showing that this Court has diversity jurisdiction over the action. [Doc. No. 37.]

Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). A defendant may remove a civil action from state court to federal court if original jurisdiction would have existed at the time the complaint was filed. 28 U.S.C. § 1441(a). "Removal statutes are strictly construed against removal." Luther v. Countrywide Home Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). There is a "strong presumption" against removal jurisdiction, and the party seeking removal always has the burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If there is any doubt as to the propriety of removal, federal jurisdiction must be rejected. Id. at 567. If at any time before the entry of final judgment it appears that the Court lacks subject matter jurisdiction over a case removed from state court, it must remand the action to state court. See 28 U.S.C. § 1447(c); Int'l Primate Prot. League v. Adm'rs of Tulane Educ. Fund, 500 U.S. 72, 87 (1991).

For a federal court to exercise diversity jurisdiction, there must be "complete" diversity between the parties and the amount in controversy requirement must be met. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806); 28 U.S.C. § 1332(a). "Complete diversity" means that "each defendant must be a citizen of a different state from each plaintiff." In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008). For the purposes of diversity jurisdiction, a corporation is a citizen of any state where it is incorporated and of the state where it has its principal place of business. 28 U.S.C. § 1332(c); see also Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 1090, 1092 (9th Cir. 1990). "[A]n LLC is a citizen of every state of which its owners/members are citizens." Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006).

The notice of removal and the complaint both state that Plaintiff is a citizen of California. [Compl. ¶ 1; Notice of Removal ¶ 4.] Accordingly, for the Court to have diversity jurisdiction over this action, none of the Defendants can be a citizen of California. See Digimarc, 549 F.3d at 1234.

In its response to the order to show cause, PEG submitted a declaration explaining its citizenship for diversity purposes. [See Doc. No. 37-1, Declaration of Josephine A. Raimondi ("Raimondi Decl.").] PEG is wholly owned by its sole member, Berkeley Alternative Markets Insurance Services, LLC. [Id. ¶ 3.] Berkeley Alternative Markets Insurance Services, LLC is wholly owned by its sole member Midwest Employers Casualty Company. [Id. ¶ 4.] Midwest Employers Casualty Company is incorporated in Delaware and its principal place of business is in Missouri. [Id. ¶ 5.] Therefore, Midwest Employers Casualty Company's citizenship for diversity purposes is Delaware and Missouri, see 28 U.S.C. § 1332(c), and thereby, PEG's citizenship is also Delaware and Missouri. See Johnson, 437 F.3d at 899. Because PEG is a citizen of Missouri and Delaware and Plaintiff is a citizen of California, PEG has met its burden of establishing that there is complete diversity of citizenship between the parties. See Digimarc, 549 F.3d at 1234. Accordingly, the Court concludes that it has subject matter jurisdiction over this matter.

II. PEG's objections to Plaintiff's Exhibits

Plaintiff has submitted various exhibits in support of her opposition to PEG's motion for summary judgment. [See Doc. No. 22.] In deciding PEG's motion for summary judgment, the Court considers exhibit 10, a letter dated April 12, 2010 from Daryl Tilghman to Plaintiff on company letterhead with the caption "Re: Notice of Termination"; exhibit 15, a notice of the filing of Plaintiff's June 30, 2010 charge dated July 2, 2010 sent from the DFEH to Daryl Tilghman; exhibit 16, a letter dated August 5, 2010 from PEG's counsel to the DFEH regarding Plaintiff's June 30, 2010 charge, a notification of Respondent's address signed by Daryl Tilghman on August 5, 2010 and received by the DFEH on August 6, 2010, and a letter dated August 24, 2010 from PEG's counsel to the DFEH regarding Plaintiff's June 30, 2010 charge that was received by the DFEH on August 25, 2010; exhibit 26, a letter dated January 27, 2011 from Plaintiff's counsel to the DFEH attaching ...

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