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LITTLER M E N D E L S O N 650 California Slreet 20th Flool San Francisco. CA 94108.2693 415.433.19*0
MICHELLE R. BARRETT, Bar No. 197280 PAUL S. COWIE, Bar No. 250131 LITTLER MENDELSON A Professional Corporation 650 California Street, 20th Floor San Francisco, CA 94108.2693 Telephone: 415.433.1940 Facsimile: 415.399.8490 Email: [email protected] Email: [email protected] Attorneys for Defendants BROOKD ALE PROVIDENT MANAGEMENT,
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA TAMMY MARSHALL Plaintiff,
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Case No. \KC^riCE 19 (p)ERAL COlMr jig ff A REMOVAL OF CIVIL ACTION FROM STATE COURT (DIVERSITY) 28 U.S.C. §§ 1332, 1441, 1446 San Mateo County Superior Court Case No. CIV 471 555
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BROOKD ALE PROVIDENT MANAGEMENT, LLC., and DOES 1-25, inclusive, Defendants.
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NOTICE TO FEDERAL COURT OF REMOVAL CASE NO.
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TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF TAMMY MARSHALL AND HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE THAT Defendant BROOKDALE PROVIDENT MANAGEMENT, LLC ("Brookdale" or "Defendant") hereby removes the above-titled action from the Superior Court of the State of California for the County of San Mateo to the United States District Court, pursuant to 28 U.S.C. §§ 1441 and 1446. I. JURISDICTION AND VENUE 1. This action is a civil action over which this Court has original jurisdiction
based upon the complete diversity of citizenship of the parties pursuant to section 1332(a) and is one which may be removed to this Court by Defendant pursuant to 28 U.S.C. § 1441 because it is a civil action between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs, as set forth below. 2. Venue is proper in this Court pursuant to 28 U.S.C. §§ 84(a), 1391, 1441(a)
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LITTLER MENDELSON A PROFESSIONAL CORPORATE 650 California Strttt 20th Floor San Francisco, CA 941062693 415.433.1940
and 1446, in that this Court is the court for the district and division embracing the place where the action is pending in state court. II. STATUS OF THE PLEADINGS 3. On March 27, 2008, Plaintiff Tammy Marshall ("Plaintiff) commenced this
action by filing a Summons, Civil Cover Sheet, Affidavit of Personal Delivery of Deputy Court Clerk and a Complaint in the Superior Court of the State of California, County of San Mateo, entitled Tammy Marshall, Plaintiff v. Brookdale Provident Management, LLC., and Does 1 through 25, inclusive, Defendants, designated Superior Court Case No. CIV471555 ("Complaint"). True and correct copies of the Civil Action Sheet, Summons, Affidavit of Personal Delivery of Deputy Court Clerk and Complaint are attached hereto as Exhibit A. The Complaint alleged the following causes of action: (1) Retaliation - Government Code § 12940; (2) Sexual Harassment - Government Code § 12940(j); (3) Failure to Prevent Discrimination and Harassment- Government Code § 12940(k); and (4) Tortious Constructive Discharge In Violation Of Public Policy. 4. On March 27, 2008, the Court issued a Notice of Case Management
Conference and Order, a copy of which is attached as Exhibit B.
NOTICE TO FEDERAL COURT OF REMOVAL
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On April 25, 2008, Defendant Brookdale filed an answer to Plaintiffs
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LITTLER MENDELSON A PROFESSIONAL CORPORATM 650 California Street 20th Floor San Francisco, CA 94106 2693 415.433.1940
Complaint with the Superior Court, a copy of which is attached as Exhibit C. 6. A true and correct copy of the San Mateo Superior Court's Register of
Actions for the case is attached hereto as Exhibit D. 7. Defendant Brookdale is informed and believes that personal service on
Defendant Brookdale was completed on March 31, 2008. 8. Defendant Brookdale is informed and believes, and on that basis asserts, that
as of the date of this Notice of Removal, no other individual or entity has been served with the Complaint. 9. This Notice to Federal Court of Removal of Civil Action from State Court is
timely filed pursuant to 28 U.S.C. § 1446(b) because Defendant has filed this Notice within 30 days after Defendant Brookdale was served with the Complaint and within one year after commencement of this action. 10. Pursuant to 28 U.S.C. § 1446(d), written notice of this Notice of Removal to
Federal Court shall be filed contemporaneously with the Clerk of the Court for the Superior Court of the County of San Mateo California and a copy shall be served on Plaintiffs counsel of record. A copy of said Notice and Proof of Service is attached hereto as Exhibit E. 11. of San Mateo. III. DEFENDANTS 12. IV. The only named defendant to this action is Brookdale. No further proceedings have been conducted in this case in the Superior Court
DOE DEFENDANTS 13. Defendant is informed and believes that none of the Doe Defendants in this
case have been identified or served. Doe Defendants designated 1 to 25 are fictitious, are not parties to this action, have not been served, and are to be disregarded for the purpose of this removal. 28 U.S.C. § 1441(a). For this reason, the Doe Defendants need not be joined in this removal. Emrichv. louche Ross & Co., 846 F.2d 1190, 1193, n. 1 (9th Cir. 1988) (general rule that all defendants in a state action must join in removal applies only to defendants served in the action);
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Republic Western Ins. v. International Ins., 765 F. Supp. 628, 629 (N.D. Cal. 1991) ("The law of this circuit [] is that defendants upon whom service has not been effected at the time the notice is filed, need not join in the notice of removal"). V. DIVERSITY OF CITIZENSHIP 14. This action is a civil action over which this Court has original jurisdiction
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under 28 U.S.C. § 1332 and which may be removed to this Court by Defendant pursuant to 28 U.S.C. § 1441(a) based on the existence of diversity of citizenship between the real parties to this action and on the fact that the amount in controversy exceeds $75,000. 15. The parties to this action have complete diversity of citizenship in that
Defendant was at the time the action was filed and remains now a citizen of Delaware and Wisconsin, being a corporation formed under the laws of Delaware and having its principal place of business in Wisconsin.1 28 U.S.C. § 1332(c)(l). Defendant is informed and believes and on that basis alleges that Plaintiff was at the time of filing this action, and is now at the time of this removal, a citizen of California.2 16. Diversity of citizenship exists so long as no plaintiff is a citizen of the same
state as any defendant at the time the action was filed and at the time of removal. See Strawbridge v. Curtiss, 1 U.S. (3 Branch) 267 (1806); see also United Food Local 919 v. Centermarie Properties, 30 F.2d 298, 301 (2nd Cir. 1994). For purposes of removal, the citizenship of Doe Defendants are disregarded and only named defendants are considered. 28 U.S.C. § 1441(a); see Newcombe v. Adolf Coors Co., 157 F.3d 690 (9th Cir. 1998). 17. Complete diversity of citizenship exists by and between the parties because
Plaintiff and Defendant, are citizens of different states. Complete diversity between Plaintiff and Defendant existed both at the tune the action was filed and exists now at the time of this removal. Consequently, this matter may properly be removed to this Court.
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LITTLER MENDELSON 650 California Street 20th Flooi San Francisco. CA 94108.269; 415.433.1940
Defendant has its corporate headquarters in Milwaukee, Wisconsin and that is where its corporate officers are located. Plaintiff has pleaded that she resides in the County of San Mateo, California (Complaint f 1). However, Defendant has received information to suggest that Plaintiff is actually a citizen of New York and was at the time this action was commenced. Regardless, diversity between the parties exists.
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LITTLER MENDELSON 650 California Street 20th Floor Ssn Francisco, CA 94108.2693 415 433 1940
VI.
AMOUNT IN CONTROVERSY 18. It is clear on the face of the Complaint that the amount in controversy exceeds
this Court's jurisdictional minimum of $75,000.3 To establish this, Defendant need only show by a preponderance of the evidence (that it is more probable than not) that Plaintiffs claimed damages exceed the jurisdictional minimum. See Sanchez v. Monumental Life Ins. Co., 95 F.3d 856, 862 (9th Cir. 1996) (amended 102 F.3d 398,404). 19. Plaintiff has pleaded four separate causes of action and has alleged damages
including: "loss of salary, benefits, and additional amounts of money" (Complaint 127, p. 9:19-20; 134, p. 11:2-3; 140, p. 12:5-6; and 147, p. 13:8-9). Plaintiffs last salary was approximately
$102,000 per annum and it is how eight months since her employment ended. It will undoubtedly be over one year from when Plaintiffs employment ended until the trial in this matter. Therefore, based on past loss of earnings alone the amount in controversy exceeds $75,000. In addition, Plaintiff claims lost past and future benefits, future loss of wages. These alleged damages easily meet the jurisdictional minimum. 20. Plaintiff has also alleged that she has suffered "humiliation, anguish, and
emotional and physical distress," (See Complaint 1 28, p. 9:24-25; 1 35, p. 11:8-9; f 41, p. 12:10-11; and 148, p. 13:13-14). In addition, Plaintiff asserted that she "developed extreme anxiety"
(Complaint 113, p. 5:26), was "hospitalized" (Complaint 121, p. 8:8) and "placed on antidepressants" (Complaint 121, p. 8:9). Awards for emotional distress, particularly where the symptoms are alleged to be "extreme", medication was prescribed and that hospitalization resulted, may well exceed $75,000. Therefore, again, on this basis alone, the amount of damages claimed by Plaintiff is more probable than hot to exceed the jurisdictional minimum. 21. Further; Plaintiff has asserted claims to punitive damages with respect to all of
her claims for damages (Complaint H 29, 36, 42 and 49). Although Defendant denies that it could or should be liable for punitive damages, for purposes of assessing whether the amount in
See White v. FCI USA, Inc., 319 F.3d 672 at 675 (2003)--lengthy list of compensatory arid punitive damages including loss of pay, fringe benefits, impaired earning capacity, harm to credit, emotional distress, combined with a claim for attorney fees sufficient to meet burden that it was more likely than not that amount in controversy would exceed jurisdictional minimum. NOTICE TO FEDERAL COURT OF REMOVAL CASE NO.
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controversy element has been satisfied in order to invoke diversity jurisdiction, the Ninth Circuit Court of Appeals has specifically held that such damages claimed by Plaintiff are properly included in computing the jurisdictional amount. Gibson v. Chrysler Corp., 261 F.3d 927, 945 (9th Cir. 2001). Punitive damages on any one of Plaintiff s claims could meet the jurisdictional requirement. See White v. FCI USA, Inc., 319 F.3d 672 at 675 (punitive damages alone was more likely than not to exceed the jurisdictional amount). 22. Further j Plaintiff also seeks an award of her attorney's fees with respect to her
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claims, which should also be considered when calculating the amount in controversy. Goldberg v. C.P.C. Int'l, Inc., 678 F. 2d 1365, 1367 (9th Cir. 1982) (attorneys' fees included in considering jurisdictional amount). Representation of Plaintiff through trial would almost certainly exceed the $75,000 threshold. 23. Thus, the preponderance of the evidence demonstrates an amount in
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LITTLER MENDELSON 650 Calirorni* 5lra«l 201h Floor Sen Francisco, CA 94108 2693 415.433.1940
controversy clearly in excess of $75,000. VII. CONCLUSION 24. Defendant, having shown that diversity exists and that the amount in
controversy exceeds the jurisdiction minimal, is entitled to remove this matter to this Court. 25. Pursuant to 28 U.S.C. § 1441(a), Defendant removes this case from the
Superior Court of the State of California in and for the County of San Mateo to this Court. Dated: April 28, 2008
MICHELLE R. BARRETT PAUL S. COWIE LITTLER MENDELSON A Professional Corporation Attorneys for Defendants BROOKDALE PROVIDENT MANAGEMENT, LLC
Firmwide:84993030.1 051918.1024
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EXHIBIT A
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ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Barmuntw, and addiess):
FOR COURT USe ONLY
"ROBERT M. LUBIN 055863 LAW OFFICES OF ROBERT M. LUBIN 177 Bovet Road, Suite 600 San Mateo, CA 94402-3191 TELEPHONE NO.: 650-638-2331 STREET ADDRESS: 4 00 County Center FAXNO.: 650-638-1005
RECEIVED
MAR fc ^ 2«8
ATTORNEY FOR (Name): Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
MAILING ADDRESS:
crtY AND ZIP CODE: Redwood City, CA 94063 BRANCHNAME Southern CASE NAME: TAMMY MARSHALL vs BROOKDALE PROVIDENT MANAGEMENT, LLC and DOES 1 throuah 25, inclusive Complex Case Designation CIVIL CASE COVER SHEET ! Counter [~H Joinder Lxl Unlimited _Z1 Limited (Amount (Amount Fifed with first appearance by defendant demanded demanded is (Cal. Rules of Court, rule 3.402) exceeds $25,000) $25,000 or less)
Items 1-6 below must tie completed (see instructions 1. Check one box below for the case type that best describes this case: Auto Tort Contract LJ Auto (22) [""...] Breach of contrsctfwarranty (06) ; Uninsured motorist (46) LI.! Rule 3.740 collections (09) Other PI/PD/WD (Personal Injury/Property " . Other collections (09) Damage/Wrongful Death) Tort : I Insurance coverage (18) ! ZZ Asbestos (04) SHI] Other contract (37) r~,'Product liability (24) Real Property \ "i Medical malpractice (45) Eminent domain/Inverse condemnation (14) ;"~! Other PI/PD/WD (23) . T" ] Wrongful eviction (33) Non-PI/PD/WD (Other) Tort · Other real property (26) I J Business tort/unfair business practice (07) i
""assess?""
JUDGE: DEPT:
1
~TM"»»471SI5
on page 2). Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) r.~ 1 Antitrust/Trade regulation (03) I Construction defect (10) r_ Mass tort (40) , i Securities litigation (28) , Environmental/Toxic tort (30) [^ J Insurance coverage claims arising from the above listed provisionally complex case types (41)
Enforcement of Judgment [ j Enforcement of Judgment (20) II ] Civilrights(08) I' . Unlawful Detainer Miscellaneous Civil Complaint '. i Commercial (31) n_~l Defamation (13) [''"". RICO (27) | Residential (32) I7~l Fraud (16) i . i Other complaint (not specified above) (42) !' ' Intellectual property (19) L .! Drugs (38) I' Miscellaneous Civil Petition Judicial Review i Professional negligence (25) | Partnership and corporate governance (21) \_ . .. Asset forfeiture (05) r_ i Other non-PI/PD/WD tort (35) Other petition (not specified above) (43) Employment | j Petition re: arbitration award (11) l.x.l Wrongful termination (36) L j Writ of mandate (02) , I Other judicialreview(39) L_n Other employment (15) 2. This case ! _ I is Ck_ is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a. I Large number of separately represented parties d. ;. ' Large number of witnesses b. LI_i Extensive motion practice raising difficult or novel e, | | Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court c. i. '..! Substantial amount of documentary evidence f. '_ I Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a. I. x | monetary b. C^~". nonmonetary; declaratory or injunctive relief c. fl
ROBERT M. LUBIN
055863
(TYPE OR PRINT NAME)
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NOTICE · Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. · File this cover sheet in addition to any cover sheet required by local court rule. . If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. · Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only.
Form Adopted for Mandatory Use Judicial Council of California
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CIVIL vnoc wwvcn once i (^^^^ c* Ruteli rt Court- ""^ 23°- 322°- ».«o-s.«»,»M 3.10 CASE COVER SHEET Lesal 3.740; \,iwil_ si. Standards of Jutfctal AdrnMstolion,
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SUML JNS (CITACION JUDICIAL)
NOTICE TO DEFENDANT: (A VISO AL DEMANDADO): BROOKDALE PROVIDENT MANAGEMENT, LLC. and DOES THROUGH 25, INCLUSIVE
SUM-100
FOR COURT USE ONLY (SOLO PARA VSO DSIA CORTE)
-;AN wATcO COUNTY
YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): TAMMY MARSHALL
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You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www.courtinfo.ca.gpv/selflielp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhetpcalifomia.org), the California Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. TTene 30 DlAS DE CALENDARIO despues de quo le entreguen esta citation y papeles legates para presenter i/na respuesta por escrtto en esta corte y hacer que se entregue ana cop/a at demandants. Una carte o una llamada tetefdnica no to protegen. Su respuesta por escrito forte quo ester en formato legal coirecto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda i/sar para su respuesta. Puede encontrar estos formutarios de la corte y mas information en el Centre de Ayuda de las Cortes de California (www.courtinfo.ca.gov/selfhelp/espanol/), en la biblloteca de /eyes de so condado o en la corte que le quede mis cerca. SI no puede pagar la cuota de prasentacion, pida al secretario de la corte que le de un formulario de exencion de pago de cuotas. SI no presents su respuesta a tiempo, puede perder el caso por incumpttmiento y la corte le podri quitar su sue/do, dinoro y bienes sin mas advertencla. Hay otros requisites legates. Es recomendabte que flame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remtsion a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisites para obtener serviclos legates gratuitos de un programs de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www.lawhelpcallfbmla.org), en el Centro de Ayuda de las Cortes de California, (www.courtinfo.ca.gov/selfhelp/espanol/) o poniendose on contacto con la corte o el colegio do abogados lgsaljs.f ,,, ^ ,, _ . _ -- , _ , | rn*~& 7 TM *t «) «J V The name and address of the court is: CASE NUMBER. %<»W ·£ I (N£men> del Caso): (B nombre y direccidn de la corte es):
SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO 400 County Center Redwood City, CA 94063
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (B nombre, la direccidn y el numero de telefono del abogado del demandante, o del demandante que no tiene abogado, es):
ROBERT M. LUBIN 055863 LAW OFFICES OF ROBERT M. LUBIN 177 Bovet Road, Suite 600 San Mateo, CA 94402-3191 DATE: iinnoiyinno _ ··-UP
650-638-2331
650-638-1005
Clerk.bv
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.Deputy
(Adjunto)
(Fecha) MAR Z 7 ZUUO ,fffrti C. HI tV«< (Secretario) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prveba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served ISEALJ 1. | > as an individual defendant. 2. i i as the person sued under the fictitious name of (specify): 3. _ : °n behalf of (specify): under: L_ "j CCP 416.10 (corporation) I i CCP 416.20 (defunct corporation) CCP 416.40 (association or partnership) "_j olher (specify): j by personal delivery on (date): SUMMONS i CCP 416.60 (minor)
L-lI' CCP 416 70 (eonserwatee) CCP 416.90 (authorized person)
Plg»1of1 Code of Civil Procedure §5 412,20. 465
|
Form Adopted lor Mandatory Use Judicial Council of California SUM-100 [Rev January 1, 2004)
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LA W OFFICES OF ROBERT L UBIN ROBERT M. LUBIN, ESQ. (055863) JOSEPH CAMENZIND, IV (244154) 177 Bovet Road, Suite 600 San Mateo CA 94402 Telephone: 650.638-2331 Facsimile: 650.638-1005 Attorney for Plaintiff TAMMY MARSHALL
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AftiIN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
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24
TAMMY MARSHALL
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Plaintiff,
BROOKDALE PROVIDENT MANAGEMENT, LLC. and DOES 1 through 25, inclusive Defendants.
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CASE NO. CIV ^.a
W471555
COMPLAINT FOR: (1 ) RETALIATION; GOVT. CODE § 1 2940 (2) SEXUAL HARASSMENT; GOVT. CODE§12940(J) (3) FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT j GOVT. CODE §12940(K) (4) TORTIOUS CONSTRUCTIVE DISCHARGE IN VIOLATION OF PUBLIC POLICY
Plaintiff TAMMY MARSHALL alleges as follows: 1. Plaintiff TAMMY MARSHALL is an individual who resides in San Mateo
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County, California. At all times herein Plaintiff was an employee covered by the California Government Code §12940 prohibiting discrimination or retaliation in employment on the basis of
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MARSHALL v. BROOKDALE COMPLAINT
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sex.
2. Defendant BROOKDALE PROVIDENT MANAGEMENT, LLC.
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("BROOKDALE") is a Delaware Company, authorized to conduct business in the State of California, principle place of business 485 Woodside Road, Redwood City, CA 94061, in the County of San Mateo. Defendant is in the elderly care and housing industry. At all times herein alleged, Defendant was an employer within the meaning of California Government Code
8
§12926(d). 3. Plaintiff does not know the true names and capacities of those Defendants sued
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herein as DOES 1-25, inclusive; and therefore sues these Defendants by such fictitious names. Plaintiff will amend her Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes on that basis, alleges that each Defendant sued under such fictitious names is in some manner responsible for the wrongs and damages as alleged below, and in so acting was functioning as the agent, servant, partner and/or employee of the co-
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2!
Defendants, and in doing the actions mentioned below, were acting within the course and scope of his or her authority as such agent, servant, partner, and/or employee with the permission and consent of the co-Defendant. 4. Plaintiff MARSHALL is originally from New York State, and is a LPN. In 2006,
Defendant BROOKDALE recruited Plaintiff MARSHALL to manage its Redwood City facility at 485 Woodside Road, hereinafter referred to as ("Woodside Facility"). The Defendant's Woodside Facility had been under severe scrutiny by the State of California for its many
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deficiencies. The property was working on a restricted license and was at risk for closure. Plaintiff was hired in essence to "clean up" the Woodside Facility.
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Plaintiff MARSHALL excelled at her position, as under her management the
Woodside Facility obtained deficiency-free status and its reputation greatly improved. Plaintiff performed so well that she was awarded a $10,000 bonus.
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6.
In November 2006 John Garner, Plaintiffs supervisor, began a pattern of
inappropriate conduct, and unwanted sexual harassment toward Ms. MARSHALL. Mr. Garner's harassment started off with him initially telling Plaintiff how much he enjoyed working
O
with her, he would state this at least 3 times a day every day, and gradually increased to
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intolerable levels. For example: a) During a lunch meeting Mr. Garner revealed to Plaintiff that his father molested his sisters. Such a revelation was inappropriate considering the two did not have any relationship outside work, and had only known each other a few months. Mr. Garner told Plaintiff about a man who was terminated for tricking a female coworker into touching his genitals by placing an item in his pocket and encouraging her to retrieve it at a company Christmas party. Mr. Garner indicated he believed it was ridiculous, and that sexual harassment in the workplace has been taken way out of context. Mr. Garner, who is married, told Plaintiff about an affair he had with a co-worker at a previous job. He said it was a "great" experience and he would do it all over again. He then proceeded to smile and glare at Plaintiff. When Plaintiff left work early because she was sick on one occassion, Mr. Garner called her at home at 10:00 p.m. to ask how she was feeling. Plaintiff believes it was inappropriate to call her at such late an hour. Mr. Garner followed Plaintiff into the stairwell, came up close behind her and started massaging her shoulders with both hands. Mr. Garner stated, "You need a good massage." Plaintiff responded by quickly walking away.
b)
c)
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d)
e)
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Because of these incidents, and Mr. Garner's inappropriate conduct, Plaintiff developed
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MARSHALL v. BROOKDALE COMPLAINT
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significant anxiety, and feared confronting Mr. Garner. She actually spent many days crying. For the first time in her life Plaintiff began to suffer from high blood pressure, for which she was
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placed on medication. Plaintiff also began seeing a psychotherapist to help her with her job related stress and anxiety. Mr. Garner's conduct got worse, and began to significantly interfere with Plaintiffs ability to perform her job. 7. On January 29,2007, Plaintiff was assisting a 911 unit care for an elderly patient.
The unit included a policeman, paramedic and fireman. Plaintiff was the only woman present, aside from the patient. Mr. Gamer arrived and approached Plaintiff and started discussing an
8
email. He said the email was from a Hospice company who hired a prostitute to have sex with a dying patient. Plaintiff walked away and told Mr. Garner that she did not want to discuss the
9
10 11 12
email. Plaintiff walked towards the paramedics to answer their questions and Mr. Garner followed her. Plaintiff alleges that Mr. Garner knew she was uncomfortable, but continued discussing the email anyway. The entire scenario was extremely embarrassing for Plaintiff, and
13
14 inappropriate. 8.
16 17 18 19
20
Immediately after the incident Plaintiff went o the HR office and told Isaac Lopez.
Mr. Lopez dismissed Plaintiffs concerns, and Plaintiff returned to her office humiliated and began to cry. About 30 minutes later, Mr. Garner came into Plaintiffs office with a copy of the email. Plaintiff told him she did not want to discuss the email. Mr. Garner asked if he offended Plaintiff, and Plaintiff responded in the affirmative. Mr. Garner also discussed this email with Aleta Walker, who was also offended.
22 23
9.
During the first week of February 2007, Ms. MARSHALL and Ms. Walker
discussed the email with Mr. Garner's direct supervisor Kari Schmidt (Regional Director of
25 26 27 28
MARSHALL v. BROOKDALE COMPLAINT
Operations). In addition to the email Ms. MARSHALL discussed Mr. Garner's other inappropriate conduct. Ms. Schmidt promised that she would take care of the situation, but
-4-
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Plaintiff is informed and believes that she failed to do so. 10. Ms. MARSHALL never heard from Ms. Schmidt and Mr. Garner's conduct
continued. Approximately one month later Ms. MARSHALL filed a formal complaint with BROOKDALE's confidential Human Resource hotline. One to two days later Ms. MARSHALL received a phone call from Ms. Schmidt, who was angry. Ms. Schmidt asked Ms. MARSHALL why she filed a formal report when she stated she would handle it. Ms. Schmidt
o
was very defensive and made Ms. MARSHALL feel uncomfortable. 11. Approximately two weeks later, Ms. MARSHALL receive a call from Janet
9 10
Clavejo (Corporate Director of Human Resources for our region). Ms. MARSHALL explained
12 13 14
she did not feel comfortable being near Mr. Garner, and that she changed her routines to avoid Mr. Garner. Ms. Clavejo simply replied that she hoped Ms. MARSHALL would get past it and move forward. Ms. MARSHALL took this as Ms. Clavejo simply stating "get over it". Ms. MARSHALL continued to feel her job was in jeopardy and she was being labeled a
16 17
1
troublemaker. 12. In late March, Ms. MARSHALL was on the phone in her office when Mr.
19
Garner entered and closed the door. The two were scheduled to have a conference call with a
20 third party. Mr. Garner brought his lunch, and ate it on her desk while she was on the phone.
21
When he was finished eating, he placed his feet on her desk and his hands behind his head. After the call, Mr. Garner left his dishes, and the mess he made on Ms. MARSHALL'S desk.
22
23
Plaintiff reported the incident to Gail Cimini. Mr. MARSHALL alleges that Mr. Garner did 24 25 these acts to make her feel inferior, and in response to her complaints. 26
27 28
MARSHALL v. BROQKDALE COMPLAINT
13.
At this point, Ms. MARSHALL developed extreme anxiety and was in constant
-5-
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fear of losing her job, which was justifiable. She filed her initial complaint with Ms. Schmidt in early February 2007 for which no action was taken. After she contacted BROOKDALE's Human Resource Department, Ms. Schmidt demonstrated anger at her. Moreover, her complaints appeared to do nothing but cause Mr. Garner to take an antagonistic approach toward
her.
14. On April 17, 2007, Mr. Garner struck up a conversation with Ms. MARSHALL
about his vacations to Florida. Mr. Garner went on to describe an incident in Florida where he
9
fell asleep on the beach, and awoke to be surrounded by naked and bare-breasted women He was
10
laughing and stated, "he thought he died and went to heaven" Ms. MARSHALL notified Ms.
12
13
Schmidt, Ms, Cimini and Ms. Clavejo, about the incident and Mr. Gamer was removed from the property, and a memo was released indicating he resigned. 15. Ms. MARSHALL was then given the title of acting Executive Director, with her
14 15 16 17 18 19
RCFE license listed on the building, but was given none of the duties. BROOKDALE retained a temporary employee named Mike Meehan, from Texas, to perform the duties of Executive Director. Mr. Meehan did not have an RCFE license which was required. Ms. MARSHALL alleges that the fact she was not given the duties of Executive Director, was retaliation for her complaints regarding Mr. Garner, and the fact she was labeled acting Executive Director was because BROOKDALE needed her license.
20
22
16.
23
Ms. MARSHALL went on vacation from July 4, 2007 - July 16,2007. During
this period BROOKDALE hired a new Executive Director, Linda Clark .Waiker. From then on 25 26
27 28
MARSHALL v. BROOKDALE COMPLAINT
-6-
Ms. Clark began a pattern of constant abuse, and open hostility toward Plaintiff. Plaintiff alleges that this was done in retaliation for her complaints regarding Mr. Garner, and that Ms. Clark
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purposely wanted to push Ms. MARSHALL out of her position. 17. On July 11, 2007 Linda Clark Walker told Aleta Walker, in front of other
employees, "/ haven't even met Tammy and I know we are not going to get along. " On the evening of July 11,2007, Linda Clark Walker told Aleta Walkerr, "I do not like the way Tammy runs her department. " Linda Clerk Walker had been on the property two days, and had not even met Ms. MARSHALL. 18.
9
On July 12, 2007 Ms. Walker held a cabinet meeting, and publically stated to the
entire cabinet, "/ have not even met Tammy and I know we are going to butt heads ". During
10 11 12 13 14
Ms. MARSHALL'S vacation Ms. Walker continued to make numerous comments regarding her dislike for Ms. MARSHALL, and even interviewed at least two possible replacements for Ms. MARSHALL. 19. During Ms. MARSHALL'S vacation, Ms. Walker stated to one BROOKDALE
employee that, "Tammy is NOT in good standing with Kari (Ms. Schmidt) ".
16 17 18 19 20 21 22
23
20.
When Ms. MARSHALL returned to BROOKDALE after her vacation, Ms.
Walker continued her campaign to annoy, and harass Ms. MARSHALL. (1) Ms. Walker refused to authorize a computer for Ms. MARSHALL, even though her computer was inoperative. Ms. MARSHALL could not effectively perform her job without a computer. (2) Ms. Walker began assessing new admissions, which was Ms. MARSHALL'S job. (3) Ms. Walker told Ms. MARSHALL she could no longer use the Pathways Hospice agency, which Ms. MARSHALL had been using and for which she had developed a good working relationship with. (4) Ms.
25 26 27 28
Walker refused to allow Ms. MARSHALL to hire additional needed staff. (5) Ms. Walker terminated Issac Lopez, one of the witnesses who heard Ms. Walker publically stated she did not
MARSHALL v. BROOKDALE COMPLAINT
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1
like Ms. MARSHALL. (6) Ms. Walker's behavior forced Aleta Walker to quit (Aleta Walker and Ms. MARSHALL made the initial complaint regarding Mr. Garner to Ms, Schmidt). (6) At
2
3
an August 6, 2007 meeting with Plaintiff Ms. Walker in a hostile manner stated, "I know everyone thinks you are good at what you do, but I am NOT impressed. ", and "/ am watching you closely and I am not happy." 21. Because of Ms. Walker's abuse and harassment, Ms. MARSHALL was soon
hospitalized, and placed on medical leave, For the first time in her life, Ms. MARSHALL was
9
placed on antidepressants. On August 23, 2007, while on medical leave, Ms. MARSHALL
10
learned that the locks to her office had been changed, her voice-mail was changed, her name was
12 13
14
removed from the outgoing messages, and her belongings were packed. She could no longer access her email. 22. Based on Ms. Walker's actions and attitude toward Ms. MARSHALL, Ms.
Schmidit's past hostility and the fact she was locked out of her office, voice-mail and email, Ms.
16
MARSHALL reasonably concluded that her working conditions at BROOKDALE were
18 19
intolerable and would remain intolerable, and that she had been constructively discharged from her employment with BROOKDALE. 23. Within one year of the termination Plaintiff filed a complaint with the Department
20
of Fair Housing & Employment ("DFEH"). The DFEH issued to Plaintiff a notice of right to
22 23
bring a civil action based on the charge of discrimination. A copy of this notice of right of action is appended hereto, marked "Exhibit A," and is incorporated by this reference as though fully set
25 26 27 28
forth.
MARSHALL v. BROOKDALE COMPLAINT
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FIRST CAUSE OF ACTION (Retaliation - Govt. Code §12940)
3
24.
The allegations set forth in paragraphs 1 through 23 are alleged and incorporated
herein by reference. 25. Defendant BROOKD ALE has retaliated against Plaintiff in violation of
Government Code sections 12940(h), by engaging in a course or retaliatory conduct, including,
8
among other things, the conduct set forth in paragraphs 15 through 23 above, when she complained about sexual harassment and hostility. This retaliation was carried out by Ms.
10 *
12
Walker, acting within the course and scope of her employment. This conduct continued until Plaintiff was constructively discharged. 26. At all times mentioned herein, Plaintiff was willing and able to perform the duties
14 and functions of her position. Plaintiff did, in fact, perform those duties in an excellent fashion, 15 as under her supervision BROOKDALE's Woodside facility obtained deficiency-free status and 16 its reputation greatly improved. 17 18
27. As a proximate result of Defendant's discriminatory actions against Plaintiff as
19 alleged above, Plaintiff has been harmed in that Plaintiff has suffered the loss of salary, benefits, 20 and additional amounts of money she would have received if Defendant had not terminated her 21
employment. As a result of such discrimination and consequent harm, Plaintiff has suffered such
22 damages in an amount according to proof.
23 24
9S
rjf-
28.
As a further proximate result of Defendant's discriminatory actions against
Plaintiff as alleged above, Plaintiff has been harmed in that she has suffered humiliation, anguish, and emotional and physical distress. As a result of such discrimination and consequent harm, Plaintiff has suffered such damages in an amount according to proof.
27
28
MARSHALL v. BROOKDALE COMPLAINT
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1
2 3
29.
The above-recited actions of Defendant were done with malice, fraud or
oppression, and in reckless disregard of Plaintiff s rights entitling Plaintiff to an award of punitive damages.
4
WHEREFORE, Plaintiff prays judgment against Defendants as herein set forth.
7
30.
10 11 12 13
14
SECOND CAUSE OF ACTION Sexual Harassment - Govt. Code §12940(j) The allegations set forth in paragraphs 1 through 23 are alleged and
incorporated herein by reference. 31. At all times mentioned, Government Code sections 12940 et seq. were in full
force and effect and were binding on defendants. These sections require Defendants to refrain from discriminating against and harassing any employee on the basis of sex, among other things. 32. As alleged in paragraphs 6 through 14 above, Mr. Garner created and allowed
15
16 17
to exist a sexually hostile environment, and discriminated against and harassed Plaintiff on the basis of her sex. At all time mentioned Mr. Garner was an agent and supervisor for BROOKDALE under Cal. Govt. Code 12926( r). As such Defendant is liable for Mr. Garner's
18
actions. Moreover, Defendant allowed the sexually hostile environment, discrimination and
19
harassment by Mr. Garner to continue after Plaintiff complained. Defendant failed to conduct an
20 21 22 23 24 25 26 27 28
MARSHALL v. BROOKDALE COMPLAINT
investigation or to take all reasonable steps necessary to end the sexual harassment and sexual discrimination in a timely manner. 33. At all times mentioned herein, Plaintiff was willing and able to perform the duties
and functions of her position. Plaintiff did, in fact, perform those duties in an excellent fashion, as under her supervision BROOKDALE's Woodside facility obtained deficiency-free status and its reputation greatly improved.
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1
2
34,
As a proximate result of Defendant's discriminatory actions against Plaintiff as
alleged above, Plaintiff has been harmed in that Plaintiff has suffered the loss of salary, benefits, and additional amounts of money she would have received if Defendant had not terminated her
4
employment. As a result of such discrimination and consequent harm, Plaintiff has suffered such
6
7
damages in an amount according to proof. 35. As a further proximate result of Defendant's discriminatory actions against
Plaintiff as alleged above, Plaintiff has been harmed in that she has suffered humiliation, anguish, and emotional and physical distress. As a result of such discrimination and consequent
10 11 12
harm, Plaintiff has suffered such damages in an amount according to proof. 36. The above-recited actions of Defendant were done with malice, fraud or
oppression, and in reckless disregard of Plaintiff s rights entitling Plaintiff to an award of punitive damages. WHEREFORE, Plaintiff prays judgment against Defendants as herein set forth. THIRD CAUSE OF ACTION (Failure to Prevent Discrimination and Harassment - Govt. Code §12940(k))
13
14 15
17 " 18 19 20 21 22 23 24 25 26 27 28
MARSHALL v. BROOKDALE COMPLAINT
-11 -
37.
The allegations set forth in paragraphs 1 through 23 above are alleged and
incorporated herein by reference. 38. Defendant failed to take all reasonable steps to prevent discrimination and
harassment against Plaintiff from occurring, and to take immediate and appropriate corrective action to remedy the harassment, in violation of Cal. Gov. Code §12940(k) as alleged in paragraphs 1 through 23 of this Complaint. 39. At all times mentioned herein, Plaintiff was willing and able to perform the duties
and functions of her position. Plaintiff did, in fact, perform those duties in an excellent fashion,
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as under her supervision BROOKDALE's Woodside facility obtained deficiency-free status and its reputation greatly improved. 40. As a proximate result of Defendant's discriminatory actions against Plaintiff as
alleged above, Plaintiff has been harmed in that Plaintiff has suffered the loss of salary, benefits, and additional amounts of money she would have received if Defendant had not terminated her employment. As a result of such discrimination and consequent harm, Plaintiff has suffered such damages in an amount according to proof. 41. As a further proximate result of Defendant's discriminatory actions against
10
Plaintiff as alleged above, Plaintiff has been harmed in that she has suffered humiliation, anguish, and emotional and physical distress. As a result of such discrimination and consequent harm, Plaintiff has suffered such damages in an amount according to proof. 42. The above-recited actions of Defendant were done with malice, fraud or
11
12
14 15 16
oppression, and in reckless disregard of Plaintiffs rights entitling Plaintiff to an award of punitive damages. WHEREFORE, Plaintiff prays judgment against Defendant as herein set forth.
18
43.
20
FOURTH CAUSE OF ACTION (Tortious Constructive Discharge in Violation of Public Policy) The allegations set forth in paragraphs 1 through 23 above are re-alleged and
incorporated herein by reference. 44. At all times mentioned in this Complaint, California Constitution Article I,
21
Section 8 was in full force and effect and was binding on Defendants. This section requires
9
Defendants to refrain from discriminating against any employee on the basis of sex, and refrain from discriminating against an employee for reporting sexual harassment.
26 27 28
45.
As alleged above, Defendant violated this Section by harassing and discriminating
MARSHALL v. BROOKDALE COMPLAINT
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against Plaintiff. 46. At all times mentioned herein, Plaintiff was willing and able to perform the
duties and functions of her position. Plaintiff did, in fact, perform those duties in an excellent fashion, as under her supervision BROOKDALE's Woodside facility obtained deficiency-free status and its reputation greatly improved. 47. As a proximate result of Defendant's discriminatory actions against Plaintiff as
alleged above, Plaintiff has been harmed in that Plaintiff has suffered the loss of salary, benefits, and additional amounts of money she would have received if Defendant had not terminated her
10 employment. As a result of such discrimination and consequent harm, Plaintiff has suffered such
11
12
damages in an amount according to proof. 48. As a further proximate result of Defendant's discriminatory actions against
Plaintiff as alleged above, Plaintiff has been harmed in that she has suffered humiliation,
14 15 16
anguish, and emotional and physical distress. As a result of such discrimination and consequent harm, Plaintiff has suffered such damages in an amount according to proof. 49. The above-recited actions of Defendant were done with malice, fraud or
18 19 20 21 22 23 24 25 26 27 28
oppression, and in reckless disregard of Plaintiff s rights entitling Plaintiff to an award of punitive damages. WHEREFORE, Plaintiff prays for judgment against Defendant as herein set forth.
//
MARSHALL v. BROOKDALE COMPLAINT
,
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1
WHEREFORE, Plaintiff TAMMY MARSHALL prays for judgment against Defendants
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MARSHALL v. BRQQKDALE COMPLAINT
. 14-
as follows: (1) (2) (3) (4) (5) (6) For monetary damages in an amount proved at trial. For damages for mental pain and suffering in an amount to be proved at trial. For an award of interest, including prejudgment interest, at the legal rate. For attorney fees and costs of suit herein. For punitive damages. For an award to Plaintiff MARSHALL of such other and further relief as this
Court deems just and proper. Dated: March 26, 2008. LAW OFFICES OF ROBERT M. LUBIN
Robert M. Lubin, Attorney for Plaintiff TAMMY MARSHALL
1 .
s3
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EXHIBIT
I
EXHIBIT
AL
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STATE OF CAUTOKNH. STATE AMD CONSUMER SERVICE
jENCY
ARNOLD SCHWAKZENECCK. Gonna
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
2570 North Ut Street, Suite 480, San Jose, CA 95131 (408) 325-0344 TTY (800) 700-2320 Fax (408) 325^)339 www.dfeh.ca.9ov
November 26, 2007
Robert M. Lubin Attorney At Law LAW OFFICES OF ROBERT M. LUBIN 177 Bo vet Rd., Ste, 600 San Mateo, CA 94402-3191
RE:
E200708Q0572-00-SC MARSHALL/BROOKDALE PROVIDENT MANAGEMENT, LLC
Dear Robert M. Lubin: NOTICE OF CASE CLOSURE This letter informs that the above-referenced complaint that was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective November 26, 2007 because an immediate right-to-sue notice was requested. DFEH will take no further action on the complaint. This letter is also the Right-To-Sue Notice. According to Government Code section 12965, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter. If a federal notice of Right-To-Sue is wanted, the U.S. Equal Employment Opportunity Commission (EEOC) must be visited to file a compfaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier.
Case 3:08-cv-02172-MEJ
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Notice of Case Closure Page Two
DFEH does not retain case files beyond three years after a complaint is filed, unless the case is still open at the end of the three-year period. Sincerely,
^k^^e-
S/i*trtZ#x£r'
Martene Massetti District Administrator
cc:
Case File
HUMAN RESOURCES DIRECTOR BROOKDALE PROVIDENT MANAGEMENT, LLC 485 WOODSIDE ROAD REDWOOD CITY, CA 94061
DFEH-200-43 (06/06)
Case 3:08-cv-02172-MEJ
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* * * EMPLOYMENT * *
COMPLAINT OF DISCRIMINATION UNDER DFEH # E-20Q708-6-0572-00-8C THE PROVISIONS OF THE CALIFORNIA ~~ DFEH USE ONLY FAIR EMPLOYMENT AND HOUSING ACT CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
YOUR NAWIC (innicaia iw. or M«.) NAME (indicate Mr. or mt.) ,/ .
Ms. TaimrtM noLfsha.ll ADDRESS 6°I- b3-? 5Wf/£ £rrJe.
C.TY/STATE/ZIP /^^pj ^Of^ , CA
TELEPHONE NUM BER (INCLUDE AREA CODE)
,(,5~a- 3.36,- 3333.
S»^W&J:.ef3
COUNTY CODE
NAMED IS THE EMPLOYER. PERSON, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE. OR STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME: · .
ADDRESS
DrooK^x/e. irdtSt'eien-t Manage/Heiri , LLC, yt
. , . o , , ,
TELEPHONE NUMBER (Include Area Code)
&sTM-3&&'3jod
'. !
V3S~
UJtodside- Kd
KeduJGOQ
/ / ^
DFEH USE ONLY COUNTY CODE
CITY/STATE/Z1P 7)
Or)/,
(ft
NO. OF EMPLOYEeS/MEMBERS (if known) '
fv\f\re -£faan
inn
DATE MOST RECENT OR CONTINUING DISCRIMINATION TOOK PLACE (month, day, and year)
WLI
!>*n°w£V%o
RESPONDENT CODE
THE PARTICULARS ARE:
On T^n 01- Sgp-f.7-071 was --"JL,
^ dofltaf prowolort
,,tfirinl^opoffifnodBltefl _ tnpmnittibb noiHob-wMMd inquiry
_
SIh««d
bv Yo ^ A (3>o^r ^er, ^t' ^ rl
^gmMechmcWitlolMling Jg>CKftoquC
. (MM
CU
^
Name of Person
Job Title (supernisor/manager/personnat directorate.)
..ruHoralofitfnAncMiy
because of my:
.i-Hjion mxK&at
_««(u«lo((«rt»«on usociition
,><
'Se><:u&-l kio.^a^ss'^vne'^^ the reason given by_
Mama of Parson and Job Title
I wish to pursue this matter in court I hereby request that tha Department of Fair Employment and Housing provide 9 right-to-sue notice. I understand that if I want * federal notice of right-to-sue, I must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of the DFEH "Notice of Case Closure,- or within 300 days of the alleged discriminatory act, whichever Is earlier. I have not been coerced into making this request, nor do I make it based on fear of retaliation if I dp not do so. I understand It is the Department of Fair Employment and Housing's policy to not process or reopen a complaint once the complaint has been dosed on the basis of "Complainant Elected Court Action." I dacfare under penalty of perjury under 1h» laws of the State of California that the foregoing Is true and correct of my own Knowledge except as to matter* stated on my information and belief, and as to those matters I bolfove It to be true. Dated.
Was because ^_ (?OfY\T>ioain f r-i, n.V^nu/' 5
v J
^N
il-4-o~?.
CHy
DATE FILED:
Jrt/XMY/y
7
~fY)/i/)Afart//
COMPLAINANT'S SIGNATURE
At.
RECEIVED
OFEH-300-03 (01/05> DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING
NOV262007
DEPT. Oh r/iih SWPLOYMcNi AND HOUSING SAN JOSE
STATE OF CALIFORNIA
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On vacation I heard that the new Director did not like me, even though she had never met me. When I returned to work, the new Director was very hostile towards me. I subsequently left for medical reasons. While I was gone, I discovered that my employer had locked me out of my office, packed up my belongings, eliminated my voicemail message from my office phone and eliminated access to my email. For these reasons I assert that I was terminated. Q&'YvrvAS f f f ^cfJl <%sU
Q
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AFFIDAVIT OF PERSONAL DELIVERY|i | »_,, £, "j> 3ANto/u<:Cm.'-HTY ?y:e
vs
/?/^o/7 ^A"
CASE #
CW471555
^ ., -
DOCUMENTS Endorsed filed copies of the Complaint, Summons, Notice of Case Management Conference and ADR Packet information.
J declare under penalty of perjury that I delivered back to the customer, a true copy of the foregoing documents. Executed on the above filed date at the Hall of Justice & Records in Redwood City, CA 94063.
By:
G. JACKSON Deputy Court Clerk
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EXHIBIT B
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/
NOTICE OF CASE MANAGEMENT CONFERENCE
^Vs-//V/
vs.
tl
'
·sAffwArcofewm-.
'-'^
;;i
OV471555 r No. Case
Date: AUG
° 8 2Q08
//
/#/ry >fr. ·7/ > /
' '- '"
<
f
'>' ,"'..?}
Timc: 9:00 a.m. Dept. 3 - on Tuesday & Thursday -#£ptT28p on Wednesday & Friday <
^.'y^qj^-vw <>,yft
You are hereby given notice of your Case Management Conference. The date, time and department have been written above. 1. In accordance with applicable California Rules of Court and Local Rules 2.3(d)l-4 and 2.3(m), you are hereby ordered to: a. Serve all named defendants and file proofs of service oh those defendants with the court within 60 days of filing the complaint (CRC 201.7). b. Serve a copy of this notice, Case Management Statement and ADR Information Sheet on all named parties in this action. . c. File and serve a completed Case Management Statement at least 15 days before the Case Management Conference [CRC 212(g)J. Failure to do so may result in monetary sanctions. d. Meet and confer, in person or by telephone,.to consider each of the issues identified in CRC 212(f) no later than 30 days before the date set for the'Case Management Conference. 2. If you fail to follow the orders above, you are ordered to show cause why you should not be sanctioned. The Order To Show Ca'use hearing will be at the same time as the Case Management Conference hearing. Sanctions may include monetary, evidentiary or issue sanctions as well as striking pleadings and/or dismissal. . 3. Continuances of case management conferences are highly disfavored unless good cause is shown. 4. Parties may proceed to an appropriate dispute resolution process ("ADR") by filing a Stipulation To ADR and Proposed Order (see attached form.). If plaintiff files a Stipulation To ADR and Proposed Order electing to proceed to judicial arbitration, the Case Management Conference will be taken off the court calendar and the case will be referred to the Arbitration Administrator. If plaintiffs and defendants file a completed stipulation to another ADR process (e.g., mediation) 10 days prior to the first scheduled case management conference, the case management conference will be continued for 90 days to allow parties time to complete their ADR session. The court will notify parties of their new case management conference date. 5. If you have filed a default or a judgment has been entered, your case is not automatically taken off the Case Management Conference Calendar. If "Does", "Roes", etc. are named in your complaint, they must be dismissed in order to close the case. If any party is in bankruptcy, the case is stayed only as to that named party. 6. You are further ordered to appear in person* (or through your attorney of record) at the Case Management Conference noticed above. You must be thoroughly familiar with the case and fully authorized to proceed. 7. The Case Management judge will issue orders at the conclusion of the conference that may include: a. Referring parties to voluntary ADR and setting an ADR completion date; b. Dismissing or severing claims or parties; c. Setting a trial date. 8. The Case Management judge may be the trial judge in this case. For further information regarding case management policies and procedures, see the court website at wvw.satunateocoiirt.org. * Telephonic appearances at case management conferences are available by contacting CourtCall, LLC, an independent vendor, at least 5 business days prior to the scheduled conference (see attached CourtCall information).
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EXHIBIT C
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1 2 3 4 5
MICHELLE R, BARRETT, Bar No. 197280 PAUL S. COWIE, Bar No. 250131 LITTLER MENDELSON A Professional Corporation 650 California Street, 20th Floor San Francisco, CA 94108.2693 Telephone: 415.433.1940 Fax No.: 415.399.8490 Attorneys for Defendant
SAW MATED COUNTY
APR 2 5 2UU8
Clerk oi the Supaioi Coun
By.
DEPUTY CLERIC ~
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BROOKDALE PROVIDENT MANAGEMENT
LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 1
TAMMY MARSHALL, Plaintiff,
Case No. CIV 471555 DEFENDANT BROOKDALE PROVIDENT MANAGEMENT'S ANSWER TO COMPLAINT Complaint Filed: March 27,2008
v.
BROOKDALE PROVIDENT MANAGEMENT, LLC. and DOES 1 through 25, inclusive, Defendants.
COMES NOW Defendant BROOKDALE PROVIDENT MANAGEMENT LLC ("Defendant"), to answer the unverified Complaint filed by Plaintiff TAMMY MARSHALL ("Plaintiff") as follows: GENERAL DENIAL Pursuant to section 431.30(d) of the California Code of Civil Procedure, Defendant hereby answers the unverified Complaint filed by Plaintiff by generally denying each and every allegation contained therein, by denying that Plaintiff has been damaged or has sustained any damages as a result of the conduct alleged therein, and by asserting the following separate and distinct affirmative defenses.
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DEFENDANT BROOKDALE PROVIDENT MANAGEMENT'S ANSWER TO COMPLAINT
CASE NO. CIV 471555
Case 3:08-cv-02172-MEJ
Document 1
Filed 04/28/2008
Page 34 of 46
1
AFFIRMATIVE DEFENSES As separate and distinct affirmative defenses to Plaintiffs Complaint, Defendant alleges as follows: AS A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint and each and every cause of action contained therein fails to properly state claim upon which relief can be granted. AS A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that all or portions of Plaintiffs claims are barred by the applicable statute of limitations, including, but not limited to, Government Code section 12960. AS A THIRD, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs claims cannot be maintained against Defendant because if employees of Defendant took the actions alleged, such actions were committed outside the course and scope of such employees' employment, were not authorized, adopted or ratified by Defendant and/or Defendant did not know of nor should it have known of such conduct. AS A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Court lacks jurisdiction over the subject matter of some or all of Plaintiffs claims by reason of Plaintiff s failure to timely exhaust administrative remedies. AS A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff failed to adequately exhaust all of the internal remedies available to her, and that such failure bars this suit in whole or in part. AS A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff was treated fairly and in good faith, and that all actions taken by Defendant with regard to Plaintiff were for lawful, nondiscriminatory and nonretaliatory business reasons, were not motivated by Plaintiffs alleged protected status, whether on the grounds of sex or otherwise, and were otherwise justified, privileged and/or done in good faith and/or with Plaintiffs consent. AS A SEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff was an at-will employee within the meaning of California Labor Code section 2922.
DEFENDANT BROOKDALE PROVIDENT MANAGEMENT'S ANSWER TO COMPLAINT
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LITTLER MENDELSON
A PftOFElSIOHAL CORPORATION
2.
PAW NO rrvd7iw 4/1533
65D California Strut 20lh Flooi Jan Francisco. CA 94108,2693 41.5.433.1940
Case 3:08-cv-02172-MEJ
Document 1
Filed 04/28/2008
Page 35 of 46
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AS AN EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that any and all conduct of which Plaintiff complains and which is attributable to Defendant was a just and proper exercise of management's discretion on the part of Defendant, undertaken for fair and honest reasons under the circumstances then existing. AS A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that it exercised reasonable care to prevent and properly correct any harassing, discriminatory, retaliatory or otherwise unlawful behavior, and Plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by Defendant or to avoid harm otherwise. AS A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that it conducted a reasonable investigation of any complaint by Plaintiff of inappropriate conduct, assuming such complaints were made, and took all necessary and appropriate action based on that investigation. AS AN ELEVENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that at no time did it act purposefully, knowingly, deliberately, maliciously, oppressively, intentionally, willfully, wantonly or with any bad faith. AS A TWELFTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that at no time did it authorize, consent to or ratify any knowing, malicious, intentional, or willful conduct toward Plaintiff. AS A THIRTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiffs claims for punitive and emotional distress damages are barred by the United States and California constitutions. AS A FOURTEENTH, SEPARATE AND'DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that the Complaint is preempted to the extent that the exclusive right and remedy for the injuries Plaintiff claims to have suffered during her employment is to be found, if at all, in workers' compensation proceedings and this Court is without subject matter jurisdiction as to those claims covered by that exclusive right and remedy (Labor Code section 3600, et seq.); that Defendant has a program to provide such compensation in accordance with the California Labor Code and insofar as 3.
DEFENDANT BROOKDALE PROVIDENT MANAGEMENT'S ANSWER TO COMPLAINT CASE NO. CIV 471555
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LITTLER MENDELSON A PRMEJIIOHAL COA'OIUTIOM 650 Cililornip Sir«t 20lh Flooi >»n Funciico. CA 9*1082693 415.433 19*0
Case 3:08-cv-02172-MEJ
Document 1
Filed 04/28/2008
Page 36 of 46
1
Plaintiff's alleged injuries allegedly occurred when Plaintiff was performing services incidental to her employment and where the alleged injuries were proximately caused by her employment. Alternatively, to the extent that the claims are not barred by the Workers' Compensation Act, the Court is nonetheless without jurisdiction to award damages for Plaintiffs industrial injuries, if any. AS A FIFTEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that Plaintiff's cause of action for tortious constructive discharge in violation of public policy is repetitive and redundant. AS A SIXTEENTH, SEPARATE AND.DISTINCT AFFIRMATIVE DEFENSE, Defendant alleges that if Plaintif
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