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Eileen Lutizetti v. New Albertson's Inc.

January 30, 2012


The opinion of the court was delivered by: The Honorable Gary Allen Feess

LINKS: 9, 19, 20


Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None

Proceedings: (In Chambers)



Plaintiff Eileen Lutizetti brings this action against her former employer and manager, Defendants New Albertson's Inc. ("Albertson's") and Daniel Dempsey ("Dempsey"), alleging that she was discriminated against and harassed in connection with her wrongful termination. (Docket No. 18, First Am. Compl. ("FAC") ¶ 8.) Plaintiff filed her initial complaint in state court, which Defendants subsequently removed to this Court pursuant to 28 U.S.C. § 1332. (Docket No 1., Not.) Defendants argued that Dempsey, who is a California citizen, was a "sham defendant" joined purely for purposes of destroying diversity jurisdiction, and later moved to have him dismissed from the action. (Docket No. 5.) Plaintiff simultaneously filed a motion to remand the case back to state court, in which she averred that a pending, amended complaint contained allegations sufficient to show that Dempsey was properly joined. (Docket No. 9, Mem. at 6.) The Court construed that motion as a request for leave to amend, and denied Defendants' motion to dismiss as moot. (Docket No. 13, 12/14/11 Order at 1.) Plaintiff has now filed an amended complaint, and Defendants again move to have Dempsey dismissed from the action. Because it concludes that, on the basis of the amended pleadings, Plaintiff has now properly joined Dempsey, the Court REMANDS the case back to state court and DENIES the motion to dismiss as moot.


Plaintiff alleges in her FAC that she has been an Albertson's employee for nearly twenty-nine years, most recently at the company's store in Oxnard, California. (FAC ¶ 7.) As a result of her long-time work as a cashier, Plaintiff developed carpal tunnel syndrome in or about July 2010. (Id. ¶¶ 7-8.) Following an appointment with her doctor, Plaintiff contacted her immediate supervisor, Daniel Dempsey, to inform him of her condition. (Id.) Plaintiff showed Dempsey a note from her doctor, and explained that due to the problems she was having with her hands, including numbness, she could not perform routine tasks such as dressing herself, doing laundry, or even gripping things. (Id. ¶ 8.) One week later, Dempsey told Plaintiff that he needed to speak with her in his office, and then told her that she should speak with human resources. (Id. ¶ 9.) Plaintiff alleges that after she told Dempsey about her medical condition, he brought up her "past history of tardiness," and suspended her. (Id. ¶¶ 9-10.) Ten days after her suspension had gone into effect, Plaintiff was informed by her union representative that she had been terminated. ¶ 10.) Plaintiff alleges that other employees with "significantly more tardiness issues" have not been terminated. (Id. ¶ 15.)

Plaintiff alleges that "it [was] understood that Mr. Dempsey told other employees that he believed Plaintiff was being coached for purposes of filing a workers' compensation claim"; that "Mr. Dempsey is known to dislike workers' compensation claims and [that] his personal animus towards workers' compensation claims and work-related injuries was well-known amongst his employees"; and that "Dempsey was known to terminate, transfer or demote employees with medical conditions," especially those that were work-related. (Id. ¶ 9.) Plaintiff further alleges that it is known among all employees that Dempsey's dislike of workers' compensation claims stems from the fact that his bonus is predicated on a lack of work-related injuries from stores under his management. (Id. ¶ 14.) Plaintiff claims that Oxnard employees Heidi Cuevas and Celia, and Ventura employee Lori Thayer were also terminated because of disabilities or work-related medical conditions. (Id. ¶¶ 11-12.) Finally, Plaintiff alleges that, two weeks following her own termination, Dempsey also terminated Monica Guerra for tardiness. (Id. ¶13.) However, Plaintiff believes that Dempsey informed Guerra that he would reinstate her once Plaintiff's union grievance process was complete, and that Guerra has, in fact, been reinstated.

On the basis of these facts, Plaintiff asserts four state law causes of action, for (1) wrongful termination in violation of public policy; (2) disability and medical condition discrimination; (3) disability and ...

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