-WMC Corkill v. Preferred Employers Group, LLC et al, No. 3:2011cv00505 - Document 42 (S.D. Cal. 2011)

Court Description: ORDER granting in part and denying in part Defendant Preferred Employers Group, LLC's 17 Motion for Summary Judgment, or in the alternative, Partial Summary Judgment. Court denies Dft's motion for summary judgment of Pla's first five causes of action for failure to exhaust her administrative remedies. Court grants Dft's motion for summary judgment of Pla's claim for intentional infliction of emotional distress. Signed by Judge Irma E. Gonzalez on 11/28/2011. (jah)

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-WMC Corkill v. Preferred Employers Group, LLC et al Doc. 42 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 CHRYSTI CORKILL, an individual, CASE NO. 11cv505 - IEG (WMC) 10 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 vs. 13 14 15 16 [Doc. No. 17] PREFERRED EMPLOYERS GROUP, LLC, a limited liability company; PREFERRED EMPLOYERS INSURANCE COMPANY, a corporation; and DOES 1 through 25, inclusive, Defendants. 17 18 19 Presently before the Court is Defendant Preferred Employers Group, LLC (“PEG”)’s 20 motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. [Doc. No. 17.] For 21 the reasons stated below, the Court GRANTS IN PART and DENIES IN PART PEG’s motion 22 for summary judgment. BACKGROUND 23 24 I. Facts 25 This action arises out the termination of Plaintiff Chrysti Corkill (“Plaintiff”)’s employment 26 by Defendant PEG. The following facts are taken from the allegations in the complaint. During 27 Plaintiff’s employment with PEG, Plaintiff suffered from a mental disability requiring her to take 28 medical leave. [Doc. No. 1-1, Compl. ¶ 17.] Specifically, on February 17, 2010, Plaintiff’s physician -1- 11cv505 Dockets.Justia.com 1 placed her on medical leave for anxiety and depression. [Id.] Plaintiff provided Kim Urban, PEG’s 2 Benefits Analyst, with a note from her physician, and Plaintiff completed an application for 3 family/medical leave. [Id.] Shortly thereafter, Plaintiff received a notice from PEG approving her 4 leave. [Id.] On April 7, 2010, Plaintiff had a follow-up appointment with her physician, and her 5 physician informed her that she was unable to return to work full-time and extended Plaintiff’s 6 medical leave. [Id. ¶ 18.] 7 Around the beginning of April 2010, various PEG employees began questioning Plaintiff about 8 her remaining medical leave availability. [Id. ¶ 19.] On April 9, 2010, Plaintiff received a message 9 from Daryl Tilghman, PEG’s Assistant Vice President, Human Resources. [Id. ¶ 20.] This message 10 stated that PEG was unable to extend Plaintiff’s medical leave and that she needed to return to work 11 by April 12, 2010. [Id. ¶ 21.] Plaintiff spoke with Mr. Tilghman and informed him that she would 12 only be able to return to work if she was allowed to work part-time to accommodate her mental 13 disability. [Id.] Mr. Tilghman summarily stated that part-time work was not available. [Id.] On April 14 12, 2010, Plaintiff did not return to work, and PEG terminated her employment. [Id. ¶ 22.] 15 Plaintiff alleges that she was terminated even though she had not used her entire 12 weeks of 16 family/medical leave provided to her under California law. [Id. ¶ 21.] Plaintiff also alleges that PEG 17 has allowed other employees to work on a part-time basis. [Id.] 18 II. Administrative History 19 On June 30, 2010, Plaintiff filed an administrative charge1 with the California Department of 20 Fair Employment and Housing (“DFEH”) alleging that she was subjected to employment 21 discrimination. [Doc. No. 18-1, Ex. C.] The charge named Defendant Preferred Employers Insurance 22 Company (“PEIC”) in the caption of the charge and named Daryl Tilghman in the body of the charge. 23 [Id.] 24 On July 2, 2010, the DFEH sent Mr. Tilghman a notice informing him of Plaintiff’s June 30, 25 2010 charge. [Doc. No. 22-15, Ex. 15.] On August 6, 2010, the DFEH received a completed 26 “Notification of Respondent’s Address” form that was signed by Mr. Tilghman and named “Preferred 27 1 28 The parties and the case law also refer to “administrative charges” as “administrative complaints.” The Court will refer to Plaintiff’s administrative pleadings as “charges” to distinguish them from Plaintiff’s civil complaint. -2- 11cv505 1 Employers Group, LLC” as respondent’s legal name. [Doc. No. 22-16, Ex. 16.] On August 24, 2010, 2 PEG through counsel sent a letter to the DFEH responding to the allegations in Plaintiff’s June 30, 3 2010 charge. [Id.] The letter stated that PEG is the proper respondent and that Plaintiff improperly 4 named PEIC as her employer. [Id.] On January 7, 2011, the DFEH sent Plaintiff a notice of case 5 closure and notice of right-to-sue. [Doc. No. 18-1, Ex. D.] 6 On January 27, 2011, Plaintiff’s counsel mailed to the DFEH an amended charge that added 7 additional allegations. [Doc. No. 22-26, Ex. 26; Doc. No. 22-27, Ex. 27, Declaration of Julie A. 8 Cosner (“Cosner Decl.”) ¶ 2.]2 The January 27, 2011 charge does not show that it was ever filed by 9 the DFEH. [Doc. No. 22-26, Ex. 26.] On May 19, 2011, Plaintiff filed an amended charge with the 10 DFEH. [Doc. No. 18-1, Ex. E.] This amended charge contained the same allegations as the original 11 June 30, 2010 charge, but it named Defendant PEG in the caption of the charge. [Id.] An additional 12 notice of case closure was sent to Plaintiff on June 22, 2011. [Id. Ex. F.] 13 III. Procedural History 14 On January 31, 2011, Plaintiff filed a civil complaint against Defendants PEG, PEIC, and W.R. 15 Berkeley Corporation (“W.R. Berkley”) alleging causes of action for (1) wrongful termination in 16 violation of California Government Code § 12945.2; (2) wrongful termination in violation of 17 California Government Code § 12940(a); (3) discrimination on the basis of mental disability in 18 violation of California Government Code § 12940(a); (4) failure to accommodate in violation of 19 California Government Code § 12940(m); (5) failure to engage in the interactive process in violation 20 of California Government Code § 12940(n); and (6) intentional infliction of emotional distress. [Doc. 21 No. 1-1, Compl.] 22 On March 14, 2011, Plaintiff dismissed Defendant PEIC. [Doc. No. 37-3, Declaration of 23 Elizabeth Koumas (“Koumas Decl.”) Ex. A.] Shortly thereafter, Defendants PEG and W.R. Berkeley 24 removed the action to this Court pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction 25 under 28 U.S.C. § 1332. [Doc. No. 1, Notice of Removal.] On June 8, 2011, the Court granted the 26 27 28 2 PEG objects to and moves to strike exhibits 15, 16, 26, and 27 to Plaintiff’s notice of lodgment in support of her opposition to PEG’s motion for summary judgment, which are cited in the Court’s description of the administrative proceedings. [Doc. No. 30.] The Court addresses these objections below. See infra discussion section II. -3- 11cv505 1 parties’ joint motion and dismissed Defendant W.R. Berkeley leaving PEG as the sole remaining 2 Defendant. [Doc. No. 11.] By the present motion, PEG seeks summary adjudication of all six of 3 Plaintiff’s claims. [Doc. No. 17-1, Def.’s Mot.] 4 5 6 DISCUSSION I. Subject Matter Jurisdiction Upon reviewing the materials in this case, the Court became concerned about whether it 7 had subject matter jurisdiction over this action. Therefore, on October 27, 2011, the Court issued 8 an order to PEG to show cause why the action should not be remanded. [Doc. No. 33.] On 9 November 3, 2011, PEG filed its response to the order to show cause showing that this Court has 10 11 diversity jurisdiction over the action. [Doc. No. 37.] Federal courts are courts of limited jurisdiction, having subject matter jurisdiction only 12 over matters authorized by the Constitution and Congress. See Kokkonen v. Guardian Life Ins. 13 Co., 511 U.S. 375, 377 (1994). A defendant may remove a civil action from state court to federal 14 court if original jurisdiction would have existed at the time the complaint was filed. 28 U.S.C. § 15 1441(a). “Removal statutes are strictly construed against removal.” Luther v. Countrywide Home 16 Loans Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008). There is a “strong presumption” 17 against removal jurisdiction, and the party seeking removal always has the burden of establishing 18 that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). If there is any 19 doubt as to the propriety of removal, federal jurisdiction must be rejected. Id. at 567. If at any 20 time before the entry of final judgment it appears that the Court lacks subject matter jurisdiction 21 over a case removed from state court, it must remand the action to state court. See 28 U.S.C. § 22 1447(c); Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 87 (1991). 23 For a federal court to exercise diversity jurisdiction, there must be “complete” diversity 24 between the parties and the amount in controversy requirement must be met. See Strawbridge v. 25 Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806); 28 U.S.C. § 1332(a). “Complete diversity” means that 26 “each defendant must be a citizen of a different state from each plaintiff.” In re Digimarc Corp. 27 Derivative Litig., 549 F.3d 1223, 1234 (9th Cir. 2008). For the purposes of diversity jurisdiction, 28 a corporation is a citizen of any state where it is incorporated and of the state where it has its -4- 11cv505 1 principal place of business. 28 U.S.C. § 1332(c); see also Indus. Tectonics, Inc. v. Aero Alloy, 2 912 F.2d 1090, 1092 (9th Cir. 1990). “[A]n LLC is a citizen of every state of which its 3 owners/members are citizens.” Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 4 (9th Cir. 2006). 5 The notice of removal and the complaint both state that Plaintiff is a citizen of California. 6 [Compl. ¶ 1; Notice of Removal ¶ 4.] Accordingly, for the Court to have diversity jurisdiction 7 over this action, none of the Defendants can be a citizen of California. See Digimarc, 549 F.3d at 8 1234. 9 In its response to the order to show cause, PEG submitted a declaration explaining its 10 citizenship for diversity purposes. [See Doc. No. 37-1, Declaration of Josephine A. Raimondi 11 (“Raimondi Decl.”).] PEG is wholly owned by its sole member, Berkeley Alternative Markets 12 Insurance Services, LLC. [Id. ¶ 3.] Berkeley Alternative Markets Insurance Services, LLC is 13 wholly owned by its sole member Midwest Employers Casualty Company. [Id. ¶ 4.] Midwest 14 Employers Casualty Company is incorporated in Delaware and its principal place of business is in 15 Missouri. [Id. ¶ 5.] Therefore, Midwest Employers Casualty Company’s citizenship for diversity 16 purposes is Delaware and Missouri, see 28 U.S.C. § 1332(c), and thereby, PEG’s citizenship is 17 also Delaware and Missouri. See Johnson, 437 F.3d at 899. Because PEG is a citizen of Missouri 18 and Delaware and Plaintiff is a citizen of California, PEG has met its burden of establishing that 19 there is complete diversity of citizenship between the parties. See Digimarc, 549 F.3d at 1234. 20 Accordingly, the Court concludes that it has subject matter jurisdiction over this matter. 21 II. 22 PEG’s objections to Plaintiff’s Exhibits Plaintiff has submitted various exhibits in support of her opposition to PEG’s motion for 23 summary judgment. [See Doc. No. 22.] In deciding PEG’s motion for summary judgment, the 24 Court considers exhibit 10, a letter dated April 12, 2010 from Daryl Tilghman to Plaintiff on 25 company letterhead with the caption “Re: Notice of Termination”; exhibit 15, a notice of the filing 26 of Plaintiff’s June 30, 2010 charge dated July 2, 2010 sent from the DFEH to Daryl Tilghman; 27 exhibit 16, a letter dated August 5, 2010 from PEG’s counsel to the DFEH regarding Plaintiff’s 28 June 30, 2010 charge, a notification of Respondent’s address signed by Daryl Tilghman on August -5- 11cv505 1 5, 2010 and received by the DFEH on August 6, 2010, and a letter dated August 24, 2010 from 2 PEG’s counsel to the DFEH regarding Plaintiff’s June 30, 2010 charge that was received by the 3 DFEH on August 25, 2010; exhibit 26, a letter dated January 27, 2011 from Plaintiff’s counsel to 4 the DFEH attaching an amended charge signed by Plaintiff on January 25, 2011; and exhibit 27, 5 the declaration of Julie A. Cosner. [Doc. Nos. 22-10, 22-15, 22-16, 22-26, 22-27.] PEG objects to 6 and moves to strike these exhibits. [Doc. No. 30 at 7, 10-11, 14-16.] 7 First, PEG objects to all of these exhibits as irrelevant under Federal Rules of Evidence 401 8 and 402. [Id.] PEG is incorrect as these exhibits are clearly relevant to Plaintiff’s claims and to 9 the issue of whether Plaintiff exhausted her administrative remedies. Therefore, the Court 10 OVERRULES PEG’s objection for lack of relevance. 11 Second, PEG objects to all of these exhibits on the basis that Plaintiff may not offer 12 evidence that contradicts an admitted fact, citing Valerio v. Andrew Youngquist Construction, 103 13 Cal. App. 4th 1264, 1271 (2002). [Id.] However, PEG does not state what admitted facts Plaintiff 14 is attempting to contradict. In its reply, PEG mentions that Plaintiff may not dispute the fact that 15 PEG was not named in a DFEH charge until May 19, 2011, [Doc. No. 29, Def.’s Reply at 6-7], but 16 Plaintiff is not submitting these exhibits to dispute that fact. Plaintiff is submitting these exhibits 17 to dispute the legal consequences of that fact, i.e., whether despite the fact that PEG was not 18 named in a charge until May 19, 2011, she has still properly exhausted her administrative 19 remedies. Therefore, the Court OVERRULES this objection. 20 Third, PEG objects to exhibits 16, 26 and 27 as inadmissible under Federal Rule of 21 Evidence 602. [Doc. No. 30 at 11, 14-16.] Rule 602 provides: “A witness may not testify to a 22 matter unless evidence is introduced sufficient to support a finding that the witness has personal 23 knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the 24 witness’ own testimony. FED. R. EVID. 602. Exhibits 16 and 26 are documents, and therefore, 25 Rule 602 is inapplicable as it applies to witness testimony not documents. See id. Exhibit 27 is 26 witness testimony because it is a declaration. However, the statements in the declaration show that 27 they are based on personal knowledge as the declarant states that she is the person who prepared 28 the cover letter for the amended charge and mailed the amended charge with the cover letter to the -6- 11cv505 1 DFEH. [See Doc. No. 22-27, Cosner Decl. ¶ 2.] Therefore, the Court OVERRULES PEG’s 2 objection for failure to comply with Rule 602. 3 Finally, PEG objects to all of these exhibits for lack of foundation or authentication. [Doc. 4 No. 30 at 7, 10-11, 14-16.] Federal Rule of Evidence 901(a) requires “authentication or 5 identification as a condition precedent to admissibility.” Thus, before evidence may be admitted, a 6 foundation must be laid “by evidence sufficient to support a finding that the matter in question is 7 what its proponent claims.” Fed. R. Evid. 901(a). “[U]nauthenticated documents cannot be 8 considered in a motion for summary judgment.” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 9 2002). 10 Generally, on a motion for summary judgment, a document is authenticated through 11 personal knowledge by attaching it to an affidavit, where the affiant is a competent witness who 12 wrote the document, signed it, used it, or saw others do so. See Las Vegas Sands, LLC v. Nehme, 13 632 F.3d 526, 533 (9th Cir. 2011) (citing FED. R. EVID. 901(b)(1)). However, documents can also 14 be authenticated under Federal Rule of Evidence 901(b)(4) “‘by review of their contents if they 15 appear to be sufficiently genuine.’” Id. (quoting FED. R. EVID. 901(b)(4)). Rule 901(b)(4) 16 provides that authentication can be satisfied by the object’s “[a]ppearance, contents, substance, 17 internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” 18 Fed. R. Evid. 901(b)(4). For example, a letter can be authenticated by reviewing its date, who it is 19 from, who it is sent to, and what the letter is regarding. See Las Vegas Sands, 632 F.3d at 533-34. 20 Exhibit 27 is properly authenticated as the declaration states that the declarant, Ms. Cosner, 21 has personal knowledge of the statements set forth in the declaration. [See Doc. No. 22-27, 22 Cosner Decl. ¶ 1.] See FED. R. EVID. 901(b)(1). In addition, the documents in exhibit 26 are 23 authenticated because they are referenced in Ms. Cosner’s declaration, and Ms. Cosner states in 24 the declaration that she prepared the cover letter and mailed the cover letter along with the 25 amended charge to the DFEH. [See Doc. No. 22-27, Cosner Decl. ¶ 2.] See FED. R. EVID. 26 901(b)(1); Las Vegas Sands, 632 F.3d at 533. 27 28 Exhibits 10, 15, and 16 have not been attached to a declaration or affidavit. However, a review of the contents of these documents show that they appear to be what Plaintiff purports them -7- 11cv505 1 to be. These documents are all correspondence showing the date of the correspondence, who sent 2 the correspondence, to whom the correspondence was sent, and the subject matter of the 3 documents. [See Doc. Nos. 22-10, 22-15, 22-16.] Taken in conjunction with the circumstances, 4 these exhibits appear to be sufficiently genuine. See Brown v. Kyle, 2011 U.S. Dist. LEXIS 5 85343, at *8-9 (E.D. Cal. Aug. 3, 2011) (finding prison records authenticated under Rule 901(b)(4) 6 after reviewing their appearance and content); Las Vegas Sands, LLC v. Nehme, 2011 U.S. Dist. 7 LEXIS 80531, at *6-10 (D. Nev. Jul. 21, 2011) (finding letter authenticated under Rule 901(b)(4) 8 after reviewing its appearance and content). Moreover, it is not clear that exhibits 15 and 16 need 9 to be authenticated because the Court may take judicial notice of these two exhibits since they are 10 part of the DFEH administrative record. See Mack v. South Bay Beer Distribs., 798 F.2d 1279, 11 1282 (9th Cir. 1986). In addition, if PEG genuinely disputed the authenticity of these documents, 12 it should have “made specific objections as to those [documents]” rather than just a “bare 13 objection . . . for lack of proper authentication.” Brown, 2011 U.S. Dist. LEXIS 85343, at *9. 14 Therefore, the Court OVERRULES PEG’s objection for lack of foundation and authentication. 15 In sum, the Court OVERRULES all of PEG’s objections. Accordingly, the Court 16 DENIES PEG’s motion to strike exhibits 10, 15, 16, 26 and 27 of Plaintiff’s notice of lodgement 17 in support of her opposition to PEG’s motion for summary judgment. 18 III. PEG’s Motion for Summary Judgment 19 A. Legal Standard for a Motion for Summary Judgment 20 Summary judgment is proper where the pleadings and materials demonstrate “there is no 21 genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.” 22 Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact 23 is a question a trier of fact must answer to determine the rights of the parties under the applicable 24 substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine 25 “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. 26 The moving party bears “the initial responsibility of informing the district court of the basis 27 for its motion.” Celotex, 477 U.S. at 323. To satisfy this burden, the movant must demonstrate 28 that no genuine issue of material fact exists for trial. Id. at 322. Where the moving party does not -8- 11cv505 1 have the ultimate burden of persuasion at trial, it may carry its initial burden of production in one 2 of two ways: “The moving party may produce evidence negating an essential element of the 3 nonmoving party’s case, or, after suitable discovery, the moving party may show that the 4 nonmoving party does not have enough evidence of an essential element of its claim or defense to 5 carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., v. Fritz Cos., 210 6 F.3d 1099, 1106 (9th Cir. 2000). To withstand a motion for summary judgment, the non-movant 7 must then show that there are genuine factual issues which can only be resolved by the trier of 8 fact. Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 738 (9th Cir. 2000). The non-moving 9 party may not rely on the pleadings alone, but must present specific facts creating a genuine issue 10 of material fact through affidavits, depositions, or answers to interrogatories. Fed. R. Civ. P. 11 56(c); Celotex, 477 U.S. at 324. 12 The court must review the record as a whole and draw all reasonable inferences in favor of 13 the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). 14 However, unsupported conjecture or conclusory statements are insufficient to defeat summary 15 judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). Moreover, the 16 court is not required “‘to scour the record in search of a genuine issue of triable fact,’” Keenan v. 17 Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (citations omitted), but rather “may limit its review to 18 the documents submitted for purposes of summary judgment and those parts of the record 19 specifically referenced therein.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 20 (9th Cir. 2001). 21 22 B. Failure to Exhaust Administrative Remedies 1. Failure to Exhaust Administrative Remedies Against PEG 23 PEG argues that it is entitled to summary judgment on Plaintiff’s first five causes of action 24 because Plaintiff failed to timely exhaust her administrative remedies against it. [Def.’s Mot. at 3- 25 5.] PEG’s argument is two part. First, PEG argues that Plaintiff never filed a DFEH charge 26 naming PEG as a defendant prior to bringing the present lawsuit. [Id. at 3-4.] Second, PEG 27 argues that Plaintiff did not name it as a defendant in a charge until she filed an amended charge 28 on May 19, 2011 and that amended charge is barred by the applicable statute of limitations. [Id. at -9- 11cv505 1 2-4.] In response, Plaintiff argues that she did not have to specifically name PEG in her original 2 DFEH charge because PEG had notice of the charge and participated in the DFEH administrative 3 proceedings. [Doc. No. 20-1, Pl.’s Opp’n at 7-9.] 4 Plaintiff’s first five causes of action are brought pursuant to the California Fair 5 Employment and Housing Act (“FEHA”), California Government Code §§ 12900 et seq. [Compl. 6 ¶¶ 28-71.] “Under the FEHA, the employee must exhaust the administrative remedy provided by 7 the statute by filing a complaint with the [DFEH] and must obtain from the [DFEH] a notice of 8 right to sue in order to be entitled to file a civil action in court based on violations of the FEHA.” 9 Romano v. Rockwell Int’l, Inc., 14 Cal. 4th 479, 492 (1996) (citing CAL. GOV’T CODE §§ 12960, 10 11 12965(b)). California Government Code § 12960 delineates the procedures by which aggrieved 12 employees are to state their DFEH charges. Saavedra v. Orange County Consol. Transp. Serv. 13 Agency, 11 Cal. App. 4th 824, 826 (1992). It provides in part: 14 15 16 Any person claiming to be aggrieved by an alleged unlawful practice may file with the department a verified complaint in writing which shall state the name and address of the person, employer, labor organization or employment agency alleged to have committed the unlawful practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the department. 17 CAL. GOV’T CODE § 12960(b) (emphasis added). Based on this language, California courts have 18 held that “section 12960 clearly mandates that aggrieved persons set forth in their DFEH 19 complaint the names of persons alleged to have committed the unlawful discrimination.” Cole v. 20 Antelope Valley Union High Sch. Dist., 47 Cal. App. 4th 1505, 1515 (1996) (emphasis in 21 original). “In order to bring a civil lawsuit under the FEHA, the defendants must have been named 22 in the caption or body of the DFEH charge.” Id. 23 Section 12960 also provides the applicable statute of limitations for a plaintiff to bring a 24 DFEH charge under the FEHA. See Romano, 14 Cal. 4th at 492. It provides that no DFEH charge 25 for violations of the FEHA may be filed “after the expiration of one year from the date upon which 26 the alleged unlawful practice or refusal to cooperate occurred.” CAL. GOV’T CODE § 12960(d); see 27 Romano, 14 Cal. 4th at 492. 28 Plaintiff filed her first DFEH charge on June 30, 2010, and named Defendant Preferred - 10 - 11cv505 1 Employers Insurance Company (“PEIC”) in the caption of the charge, named Daryl Tilghman in 2 the body of the charge, and did not specifically name PEG in either the caption or body of the 3 charge. [Doc. No. 18-1, Ex. C.] PEG was not named in the caption or body of a DFEH charge 4 until Plaintiff filed her amended charge on May 19, 2011. [Id. Ex. E.] Both the June 30, 2010 5 charge and the May 19, 2011 amended charge allege that the unlawful conduct occurred on April 9 6 and 12, 2010. [Id. Exs. C, E.] Plaintiff filed the present action in state court on January 31, 2011. 7 [Compl.] Based on these facts, PEG argues that Plaintiff did not timely exhaust her administrative 8 remedies against it because PEG was not named in a DFEH charge as required by section 9 12960(b) until May 19, 2011, and that charge is time barred under section 12960(d) because it was 10 filed more than a year after the alleged unlawful conduct occurred, April 9 and 12, 2010. [Def.’s 11 Mot. at 3-5.] 12 In response, Plaintiff argues that she properly exhausted her administrative remedies 13 against PEG because PEG had notice of the June 30, 2010 charge and participated in the agency’s 14 investigation and conciliation efforts. [Pl.’s Opp’n at 7-9.] In making this argument, Plaintiff 15 relies on Sosa v. Hiroaka, 920 F.2d 1451 (9th Cir. 1990). [Pl.’s Opp’n at 7.] In Sosa, the Ninth 16 Circuit stated that the administrative exhaustion requirement is satisfied against an unnamed party 17 “if the unnamed party had notice of the EEOC conciliation efforts and participated in the EEOC 18 proceedings.” 920 F.2d at 1459. 19 PEG argues that Sosa is not persuasive authority and should not be applied to the present 20 case.3 First, PEG points out that Sosa is a case interpreting the exhaustion requirements of Title 21 VII discrimination claims under federal law, and Plaintiff’s claims are under the California 22 statutory scheme FEHA. [Def.’s Reply at 3.] However, because of the similarity between state 23 and federal employment discrimination laws, California courts have relied upon federal authority 24 interpreting Title VII in determining the meaning of analogous provisions of the FEHA. See Guz 25 3 26 27 28 PEG also argues that Sosa is distinguishable because in Sosa the additional defendants were named in the body of the charge. However, PEG appears to be incorrect. In Sosa, the court stated that the charge only alleged that “the District,” the named respondent in the charge, acted “‘through its Administrators.’” 920 F.2d at 1458. If the word “Administrators” was sufficient to name the additional defendants in Sosa, then the word “employer” in Plaintiff’s June 30, 2010 charge would also be sufficient to name PEG. Therefore, the Court rejects PEG’s argument that Sosa is distinguishable on this basis. - 11 - 11cv505 1 v. Bechtel National, Inc., 24 Cal. 4th 317, 354 (2000); Romano, 14 Cal. 4th at 498. PEG argues 2 that while California courts may rely on federal authority in interpreting the substantive provisions 3 of FEHA, they have not relied on federal authority in interpreting FEHA’s administrative 4 exhaustion requirement. PEG is incorrect. Not only do California courts rely on Title VII federal 5 precedent in interpreting FEHA’s administrative exhaustion requirement, but the California Court 6 of Appeal relied on federal precedent in interpreting section 12960(b) to require that defendants be 7 named in the DFEH charge. See Valdez v. City of Los Angeles, 231 Cal. App. 3d 1043, 1061 8 (1991) (relying on precedent from the Fourth Circuit and the Western District of Louisiana); see 9 also e.g., Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 266-67 (2009) (relying on Title VII 10 federal precedent in interpreting FEHA’s administrative exhaustion requirement); Holland v. 11 Union Pacific Railroad Co., 154 Cal. App. 4th 940, 946 & n.6 (2007) (same). 12 PEG also argues Sosa is not persuasive authority because California courts do not apply 13 equitable exceptions to FEHA’s exhaustion requirement since the requirement is jurisdictional, not 14 procedural unlike Title VII’s administrative exhaustion requirement. [Def.’s Reply at 3 (citing 15 Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1613 (1995); Miller v. 16 United Airlines, Inc., 174 Cal. App. 3d 878, 890 (1985).] PEG is incorrect on this point as well. 17 “Although California courts describe exhaustion as a jurisdictional prerequisite to suit under 18 FEHA, this label does not implicate the trial court’s fundamental subject matter jurisdiction.” 19 Rodriguez v. Airborne Express, 265 F.3d 890, 900 (9th Cir. 2001); accord. Holland, 154 Cal. App. 20 4th at 946. Therefore, the FEHA administrative exhaustion requirement like the Title VII 21 requirement is subject to equitable exceptions, such as waiver, estoppel, and tolling. See Holland, 22 154 Cal. App. 4th at 946; Rodriguez, 265 F.3d at 900; see also, e.g., Keiffer v. Bechtel Corp., 65 23 Cal. App. 4th 893, 896-900 (1998) (applying the equitable doctrine of waiver to FEHA’s 24 administrative exhaustion requirement). 25 Finally, PEG argues that the Sosa exception should not be applied to FEHA cases because 26 California courts have clearly interpreted the language in section 12960(b) to require that a 27 plaintiff must name the defendant either in the caption or the body of the DFEH charge. [Def.’s 28 Reply at 3-4.] PEG argues that this is a bright-line rule that does not allow for any exceptions. In - 12 - 11cv505 1 support of this contention, PEG argues that in fashioning this rule the California Court of Appeal 2 in Valdez v. City of Los Angeles recognized the general policy of liberally construing allegations 3 in FEHA charges but did not apply this policy to the requirement of naming defendants in the 4 charge. See 231 Cal. App. 3d at 1060-61. However, in fashioning this rule the Valdez court went 5 on to note that it is based on the policy that “[f]or a claimant to withhold naming of known or 6 reasonably obtainable defendants at the administrative complaint level is neither fair under 7 [FEHA] in its purpose of advancing speedy resolutions of claims nor fair to known, but unnamed 8 individuals, who at a later date are called upon to ‘personally’ account in a civil lawsuit without 9 having been afforded a right to participate at the administrative level.” Id. at 1061; see also Cole, 10 47 Cal. App. 4th at 1513-15 (explaining that the purpose of this requirement is to ensure that 11 potential defendants are brought within the scope of the administrative proceedings conducted by 12 the DFEH). Because Sosa creates an exception only where the unnamed party has both notice and 13 has participated in the administrative proceedings, the exception is consistent with this policy and 14 is fair to the unnamed defendant. In addition, in establishing the requirement that defendants must 15 be named in the charge, the court in Valdez stated that it was adopting the requirement as 16 expressed by the Fourth Circuit and a district court in the Fifth Circuit. See Valdez, 231 Cal. App. 17 3d at 1061 (citing Mickel v. S.C. State Emp’t Serv., 377 F.2d 239, 242 (4th Cir. 1967); White v. N. 18 La. Corp. 468 F.Supp. 1347, 1349 (W.D. La. 1979)). Both the Fourth Circuit and the Fifth Circuit 19 have recognized that the requirement of naming a defendant in the administrative charge is not an 20 absolute requirement and have applied the exception from Sosa where a defendant had notice of 21 the charge and participated in the administrative proceedings. See, e.g., Alvarado v. Bd. of 22 Trustees, 848 F.2d 457, 460 (4th Cir. 1988); Marks v. Prattco, Inc., 607 F.2d 1153, 1156 (5th Cir. 23 1979); Johnson v. Wal-Mart Stores East, L.P., 2011 U.S. Dist. LEXIS 60354, at *8 (W.D.N.C. 24 Jun. 6, 2011). Accordingly, the exception from Sosa should be applied to FEHA’s administrative 25 exhaustion requirement, specifically California Government Code § 12960(b). 26 On July 2, 2010, the DFEH sent Daryl Tilghman, notice of Plaintiff’s June 30, 2010 DFEH 27 charge. [Doc. No. 22-15, Ex. 15.] On August 6, 2010, the DFEH received a notification of 28 respondent’s address signed by Mr. Tilghman that listed PEG as respondent’s legal name. [Doc. - 13 - 11cv505 1 No. 22-16, Ex. 16.] On August 24, 2010, PEG’s counsel sent the DFEH an eight-page letter 2 responding to the allegations in Plaintiff’s June 30, 2010 DFEH charge. [Id.] The response states 3 that PEG is the proper respondent in Plaintiff’s matter and that Preferred Employer Insurance 4 Company was erroneously named in the complaint. [Id.] These documents clearly show that PEG 5 had notice of the June 30, 2010 DFEH charge and participated in the administrative proceedings 6 related to that charge.4 Therefore, Plaintiff properly exhausted her claims against PEG even 7 though PEG was not specifically named in the June 30, 2010 DFEH charge.5 See Sosa, 920 F.2d 8 at 1459. Furthermore, because the June 30, 2010 charge was filed only a few months after the 9 allegedly unlawful activity occurred, April 9 and 12, 2010, the June 30, 2010 charge was filed well 10 within the one year statute of limitations under section 12960(d). Accordingly, the Court DENIES 11 PEG’s motion for summary judgment of Plaintiff’s first five causes of action on the basis of failure 12 to timely exhaust her administrative remedies against PEG. 13 14 2. Failure to Exhaust Administrative Remedies As To All Claims PEG argues that it is entitled to summary judgment on Plaintiff’s first and fifth causes of 15 action–denial of family/medical leave and failure to engage in the interactive process–because 16 Plaintiff did not exhaust her administrative remedies with respect to these specific FEHA claims. 17 [Def.’s Mot. at 5-8.] Specifically, PEG argues that Plaintiff’s June 30, 2010 DFEH charge did not 18 contain allegations reasonably related to those two causes of action. [Id.] 19 As previously stated, prior to filing a civil action alleging FEHA violations, a plaintiff must 20 exhaust her administrative remedies by filing a DFEH charge. Romano, 14 Cal. 4th at 492. “To 21 exhaust his or her administrative remedies as to a particular act made unlawful by the [FEHA], the 22 claimant must specify that act in the administrative complaint, even if the complaint does specify 23 other cognizable wrongful acts.” Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 24 4 25 26 27 28 The Court notes that at the hearing on this motion, PEG conceded that it had notice of Plaintiff’s June 30, 2010 DFEH charge. 5 In addition, a finding that Plaintiff properly exhausted her administrative remedies against PEG is particularly compelling in this case because PEG had represented to Plaintiff that PEIC not PEG was her employer and that PEIC was responsible for terminating her employment. [See Doc. No. 22-10, Ex. 10 (April 12, 2010 letter from Mr. Tilghman to Plaintiff on PEIC letterhead stating: “Therefore, effective today, April 12, 2010, we must terminate your employment with Preferred Employers Insurance Company.”).] - 14 - 11cv505 1 1718, 1724 (1994). Therefore, the judicial complaint may encompass only discrimination claims 2 that are “like and reasonably related to” the allegations of the DFEH charge. Nazir v. United 3 Airlines, Inc., 178 Cal. App. 4th 243, 266 (2009) (quoting HON. MING W. CHIN ET AL., CAL. 4 PRACTICE GUIDE: EMPLOYMENT LITIGATION ¶ 16:195 (The Rutter Group 2008)). This means that 5 the administrative exhaustion requirement is satisfied if the allegations of the civil action are 6 within the scope of the DFEH charge, any DFEH investigation actually completed, or any 7 investigation that might reasonably have been expected to grow out of the charge. Id. In 8 determining whether a particular claim has been exhausted, “what is submitted to the DFEH must . 9 . . be construed liberally in favor of plaintiff.” Id. at 268; see also id. at 266-67 (“Administrative 10 charges are to be construed liberally because they are often drafted by claimants without the 11 assistance of counsel.”). It is sufficient that the DFEH be apprised, in general terms, of the alleged 12 discriminatory parties and the alleged discriminatory acts. Id. at 267. i. 13 Denial of Family/Medical Leave 14 Plaintiff’s first cause of action is for denial of family/medical leave and wrongful 15 termination in violation of California Government Code § 12945.2. [Compl. ¶¶ 28-35.] Plaintiff 16 alleges that her employer improperly counted 191 hours of prior leave against her medical leave 17 and refused to grant her further medical leave to which she was entitled. [Id. ¶¶ 20-21.] In 18 addition, Plaintiff alleges that the decision to terminate her was motivated by her use of medical 19 leave. [Id. ¶ 25.] 20 Section 12945.2(a) creates a general prohibition “for any employer . . . to refuse to grant a 21 request by any employee with more than 12 months of service with the employer, and who has at 22 least 1,250 hours of service with the employer during the previous 12-month period, to take up to a 23 total of 12 workweeks in any 12-month period for family care and medical leave.” CAL. GOV’T 24 CODE § 12945.2(a). Section 12945.2(l) also makes it unlawful “for an employer . . . to discharge, 25 fine, suspend, expel, or discriminate against, any individual because of . . . (1) [a]n individual’s 26 exercise of the right to family care and medical leave provided by subdivision (a).” Id. § 27 12945.2(l). 28 PEG argues that Plaintiff’s June 30, 2010 DFEH charge does not identify “denial of - 15 - 11cv505 1 family/medical leave” as one of the types of discrimination being claimed, even though the DFEH 2 form has a box for identifying this type of discrimination. [Def.’s Mot. at 6-7.] PEG further 3 argues that this situation is similar to the case Okoli v. Lockheed Technical Operations Co., where 4 the California Court of Appeal found that the plaintiff had not exhausted his retaliation claim when 5 the DFEH charge only contained a claim for racial discrimination. [Id. at 5.] 6 Although Plaintiff did not check the box for “denial of family/medical leave” on the June 7 30, 2010 DFEH charge, the charge alleges that Plaintiff “was out on approved CFRA/FMLA6 8 leave from February 18, 2010 to April 12, 2010.” [Doc. No. 18-1, Ex. C.] The charge further 9 alleges that Plaintiff requested an extension of her leave to June 15, 2010, but she was terminated 10 on April 12, 2010. [Id.] These allegation apprise the DFEH of the alleged discriminatory acts in 11 general terms: that she requested an extension of her family/medical leave and her employer 12 denied the extension and terminated her. In addition, this is different from the Okoli case where 13 the plaintiff added allegations in support of an unlawful retaliation claim that occurred after the 14 filing of the DFEH charge. See Okoli, 36 Cal. App. 4th at 1617. Here, the alleged improper 15 conduct is all related to the same events in April 2010 prior to the filing of the June 30, 2010 16 charge. See Baker v. Children’s Hosp. Medical Ctr., 209 Cal. App. 3d 1057, 1065 (finding 17 administrative exhaustion requirement satisfied where “allegations of harassment and differential 18 treatment,” although not specifically mentioned in the charge, “encompass[ed] the allegations of 19 discrimination in [the] DFEH complaint”). Therefore, Plaintiff’s claim for denial of 20 family/medical leave is within the scope of the investigation that might reasonably have been 21 expected to grow out of the June 30, 2010 charge. 22 Indeed, PEG’s August 24, 2010 response to the charge shows that the allegations related to 23 her claim for denial of family/medical leave were addressed during the DFEH’s investigation of 24 the charge.7 In the response, PEG stated that Plaintiff was terminated on April 12, 2010 due to her 25 6 26 This stands for California Family Rights Act/Family and Medical Leave Act. 7 27 28 In Wills v. Superior Court, the California Court of Appeal expressly declined to decide whether a plaintiff may exhaust its administrative remedies when information an employer provides to the DFEH suggests a potential claim. 195 Cal. App. 4th 143, 153-57 (2011). In that case, the court warned that “a rule permitting an employee to satisfy the exhaustion requirement based on information the employer voluntarily provided on an uncharged claim may discourage employers from providing - 16 - 11cv505 1 failure to return after the expiration of her approved leave. [Doc. No. 22-16, Ex. 16 at 2.] The 2 response also stated that PEG granted Plaintiff 12 workweeks of leave to care for her critically ill 3 sister and for her own overlapping medical needs. [Id.] The response further states that Plaintiff 4 requested an extension of her leave and that PEG was unable to grant the request and informed 5 Plaintiff that she must return to work or be terminated. [Id. at 2-3.] Because the allegations 6 related to Plaintiff’s claim for denial of family/medical leave were within the scope of the DFEH 7 investigation that was conducted and what would have been uncovered by a reasonable 8 investigation, Plaintiff exhausted her administrative remedies with respect to this cause of action. 9 See Nazir, 178 Cal. App. 4th at 266-69. 10 Although the Court concludes that Plaintiff exhausted her claim for denial of 11 family/medical leave through her June 30, 2010 charge, Plaintiff has also presented evidence 12 showing that she attempted to file an amended charge on January 27, 2011 that listed “use of 13 CFRA/FMLA leave” as a basis for her claims. [Doc. No. 22-26, Ex. 26; Doc. No. 22-27, Cosner 14 Decl. ¶ 2.] PEG argues that Plaintiff could not have exhausted her administrative remedies 15 through this document because there is no evidence that the DFEH or PEG ever received it. [Doc. 16 No. 17-1 at 8; Doc. No. 29 at 8.] 17 California Government Code § 12960(b) mandates that a plaintiff file a verified charge in 18 writing with the DFEH. Cole, 47 Cal. App. 4th at 1515. A charge is considered filed with the 19 DFEH when “it is date-stamped ‘received’ by the department.” 2 C.C.R. § 10001(n). Because the 20 January 27, 2011 charge does not have a date-stamp on it, [see Doc. No. 22-26, Ex. 26], it does not 21 22 23 24 25 26 27 28 a comprehensive response to DFEH’s investigation, thereby undermining DFEH’s ability to investigate unlawful employment practices.” Id. Although the Wills court declined to address the issue, the Court concludes that it is proper to consider PEG’s response in determining whether Plaintiff exhausted her administrative remedies. In Nazir, the California Court of Appeal stated that the “administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of . . . any [DFEH] investigation actually completed.” 178 Cal. App. 4th at 266 (emphasis in original). The response is part of the DFEH investigation. In addition, the court in Wills appeared to be cautious about relying on statements in the employer’s response because in that case, the court noted that the DFEH charge did not mention disability discrimination at all and it was only mentioned in the employer’s response to the DFEH. See Wills, 195 Cal. App. 4th at 153-54. Here, in addition to PEG’s response, the DFEH charge itself contains allegations stating that Plaintiff was on medical/family leave, requested an extension of her leave, and was terminated shortly thereafter. - 17 - 11cv505 1 appear to have been filed with the DFEH as required by section 12960(b). However, Plaintiff has 2 presented evidence showing that her counsel in this matter did mail this amended charge to the 3 DFEH on January 27, 2011. [Doc. No. 22-26, Ex. 26; Doc. No. 22-27, Ex. 27, Cosner Decl. ¶ 2.] 4 In a reasonable investigation, Plaintiff would expect the DFEH to file a charge that she sent to it. 5 Therefore, a reasonable investigation of the January 27, 2011 charge would have uncovered 6 Plaintiff’s claim for denial of family/medical leave, and Plaintiff exhausted her claim through the 7 January 27, 2011 charge as well as the June 30, 2011 charge. Accordingly, the Court DENIES 8 PEG’s motion for summary judgment of Plaintiff’s first cause of action for failure to exhaust her 9 administrative remedies for that specific claim. 10 ii. 11 Failure to Engage in the Interactive Process Plaintiff’s fifth cause of action is for failure to engage in the interactive process in violation 12 of California Government Code § 12940(n). [Compl. ¶¶ 63-71.] Plaintiff alleges that on April 9, 13 2010, she requested an accommodation from Mr. Tilghman of being able to work part-time for a 14 temporary period. [Id. ¶¶ 21, 65.] Plaintiff alleges that Mr. Tilghman failed to participate in a 15 timely good-faith interactive process with her and summarily rejected her suggested 16 accommodation. [Id. ¶¶ 21, 67.] 17 Section 12940(n) provides that it is unlawful “[f]or an employer . . . to fail to engage in a 18 timely, good faith, interactive process with the employee or applicant to determine effective 19 reasonable accommodations, if any, in response to a request for reasonable accommodation by an 20 employee or applicant with a known physical or mental disability or known medical condition.” 21 CAL. GOV’T CODE § 12940(n). “The ‘interactive process’ required by the FEHA is an informal 22 process with the employee or the employee’s representative, to attempt to identify a reasonable 23 accommodation that will enable the employee to perform the job effectively.” Wilson v. Cnty of 24 Orange, 169 Cal. App. 4th 1185, 1195 (2009). When engaging in the interactive process, “[b]oth 25 employer and employee have the obligation ‘to keep communications open’ and neither has ‘a 26 right to obstruct the process.’” Scotch v. Art Institute of Cal., 173 Cal. App. 4th 986, 1013 (2009). 27 28 PEG argues that Plaintiff’s June 30, 2010 charge does not contain any claim for failure to engage in the interactive process. [Doc. No. 17-1 at 7-8.] Although the June 30, 2010 charge does - 18 - 11cv505 1 not specifically use the phrase “failure to engage in the interactive process,” the charge alleges that 2 Plaintiff “was denied a reasonable accommodation and terminated” on April 9, 2010. [Doc. No. 3 18-1, Ex. C.] The charge further alleges that Plaintiff requested to return to work part-time, but 4 this request was refused by Mr. Tilghman and Plaintiff was terminated because her employer did 5 not want to reasonably accommodate her. [Id.] These allegations apprise the DFEH of the alleged 6 discriminatory acts: that she requested an accommodation and her employer denied the request and 7 terminated her. In addition, PEG’s August 24, 2010 response to the charge addressed these 8 allegations and stated that Plaintiff was not a qualified individual with a known disability, so “the 9 mutual obligation to explore accommodations never arose.”8 [Doc. No. 22-16, Ex. 16 at 5.] 10 Therefore, the allegations related to Plaintiff’s claim for failure to engage in the interactive process 11 were within the scope of the DFEH investigation that was conducted and what would have been 12 uncovered by a reasonable investigation, and Plaintiff exhausted her administrative remedies with 13 respect to this cause of action in the June 30, 2010 charge. See Nazir, 178 Cal. App. 4th at 266- 14 69; see also Baker, 209 Cal. App. 3d at 1065. 15 In addition to the June 30, 2010 charge, the January 27, 2011 charge that Plaintiff 16 attempted to file with the DFEH lists as a claim “failure to engage in the interactive process.” 17 [Doc. No. 22-26, Ex. 26.] Although it appears that this charge was never filed, in a reasonable 18 investigation, Plaintiff would expect the DFEH to file a charge that she sent to it. See supra 19 section II.B.i. Therefore, a reasonable investigation of the January 27, 2011 charge would have 20 uncovered Plaintiff’s claim for failure to engage in the interactive process, and Plaintiff exhausted 21 her claim through the January 27, 2011 charge as well as the June 30, 2011 charge. Accordingly, 22 the Court DENIES PEG’s motion for summary judgment of Plaintiff’s fifth cause of action for 23 failure to exhaust her administrative remedies for that specific claim. 24 /// 25 26 27 28 8 It is also proper to consider PEG’s response in determining whether Plaintiff exhausted her administrative remedies with respect to her claim for failure to engage in the interactive process. The response is part of the investigation that was actually conducted, and in addition to PEG’s response, the DFEH charge itself contains allegations stating that Plaintiff requested a reasonable accommodation of part-time work, which her employer refused, and she was terminated shortly thereafter. See supra note 4. - 19 - 11cv505 1 C. Intentional Infliction of Emotional Distress 2 PEG argues that it is entitled to summary judgment of Plaintiff’s claim for intentional 3 infliction of emotional distress because she has failed to show that PEG engaged in any extreme 4 and outrageous conduct, a required element of her claim. [Def.’s Mot. at 8-10.] Plaintiff argues 5 that PEG engaged in “outrageous conduct” when it discriminated against her on the basis of her 6 mental disability, failed to accommodate her, failed to engage in the interactive process with her 7 and wrongfully terminated her. [Pl.’s Opp’n at 12.] 8 9 The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by defendant; (2) intention to cause or reckless disregard of the 10 probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and 11 proximate causation of the emotional distress. Cole v. Fair Oaks Fire Protection Dist., 43 Cal. 3d 12 148, 155 n.7 (1970). For conduct to be extreme and outrageous it must be “so extreme as to 13 exceed all bounds of that usually tolerated in a civilized community.” Cervantez v. J.C. Penney 14 Co., 24 Cal. 3d 579, 593 (1979). “Liability ‘does not extend to mere insults, indignities, threats, 15 annoyances, petty oppressions, or other trivialities.’” Molko v. Holy Spirit Assn., 46 Cal. 3d 1092, 16 1122 (1988). 17 California courts have explained “that employment discrimination . . . can cause emotional 18 distress and that such distress is compensable under traditional theories of tort law.” See Murillo 19 v. Rite Stuff Foods, Inc., 65 Cal. App. 4th 833, 848 (1998). Generally, courts have found an 20 employer’s conduct to be outrageous when the employer “(1) abuses a relation or position which 21 gives him power to damage the [employee’s] interest; (2) knows the [employee] is susceptible to 22 injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that 23 the acts are likely to result in illness through mental distress.” Cole, 43 Cal. 3d at 155 n.7. 24 “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of 25 law that must initially be determined by the court; if reasonable persons may differ, it is for the 26 jury to determine whether the conduct was, in fact, outrageous.” Berkley v. Dowds, 152 Cal. App. 27 4th 518, 534 (2007). There is no bright line standard for judging outrageous conduct, and a 28 case-by-case appraisal of conduct is required. Cochran v. Cochran, 65 Cal. App. 4th 488, 494 - 20 - 11cv505 1 2 (1998). In opposing summary judgment, Plaintiff has only put forth a one-page declaration stating: 3 “Defendants’ outrageous conduct caused me to suffer substantial emotional distress including but 4 not limited to, anguish, fright, nervousness, grief, anxiety, worry, shock, humiliation.” [Doc. No. 5 22-28, Declaration of Chrysti Corkill (“Corkill Decl.”) ¶ 2.] This evidence is insufficient to 6 withstand a motion for summary judgment. The declaration only contains a conclusory statement 7 that she was injured due to “Defendants’ outrageous conduct.” [Id.] The declaration does not 8 state any facts showing that PEG engaged in outrageous conduct. A declaration is too conclusory 9 to be cognizable when it “state[s] only conclusions, and not ‘such facts as would be admissible in 10 evidence.’” United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir. 1999). 11 The only facts that Plaintiff points to in support of her claim that PEG engaged in 12 outrageous conduct are the allegations in her complaint and her notice of termination. [See Doc. 13 No 20, Plaintiff’s Statement of Material Facts and Evidentiary References at 46-48.] Plaintiff may 14 not rely on the pleadings in her complaint to create a genuine issue of material fact on a motion for 15 summary judgment. See FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 324. In addition, the notice of 16 termination at most shows a personnel management decision by PEG to terminate Plaintiff’s 17 employment after she failed to return to work on April 12, 2010. Personnel management activity 18 by itself is “insufficient to support a claim of intentional infliction of emotional distress, even if an 19 improper motivation is alleged.” Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 80 20 (1996); accord. Helgeson v. Am. Int’l Group, Inc., 44 F. Supp. 2d 1091, 1095-97 (S.D. Cal. 1999). 21 At the hearing, Plaintiff argued that where a plaintiff has proven a violation of the FEHA, 22 then there is necessarily intentional infliction of emotional distress. Plaintiff is incorrect. 23 Although California courts have stated that employment discrimination may cause intentional 24 infliction of emotional distress, Murillo, 65 Cal. App. 4th at 848, California courts have also stated 25 that personnel management activity even when an improper motivation is alleged is insufficient by 26 itself to support a claim for intentional infliction of emotional distress. Janken, 46 Cal. App. 4th at 27 80. Therefore, a claim of discrimination under the FEHA is not sufficient by itself to sustain a 28 claim for intentional infliction of emotional distress. See, e.g., id. (affirming demurrer of claim - 21 - 11cv505 1 for intentional infliction of emotional distress where plaintiff had properly alleged a claim for age 2 discrimination). To withstand a motion for summary judgment, Plaintiff was required to present 3 evidence showing that PEG engaged in outrageous conduct. Plaintiff failed to do so, and 4 therefore, summary judgment is appropriate. See Yurick, 209 Cal. App. 3d at 1129-30; Schneider 5 v. TRW, Inc., 938 F.2d 986, 992-93 (9th Cir. 1991). Accordingly, the Court GRANTS PEG’s 6 motion for summary judgment of Plaintiff’s claim for intentional infliction of emotional distress. 7 8 9 CONCLUSION For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART PEG’s motion for summary judgment. Specifically, the Court DENIES PEG’s motion for 10 summary judgment of Plaintiff’s first five causes of action for failure to exhaust her administrative 11 remedies, and the Court GRANTS PEG’s motion for summary judgment of Plaintiff’s claim for 12 intentional infliction of emotional distress. 13 IT IS SO ORDERED. 14 DATED: November 28, 2011 15 _________________________________ IRMA E. GONZALEZ, Chief Judge United States District Court 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 - 11cv505

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