Complaint,Petition: Shaun Medina vs United Parcel Service, Inc. et al.

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                                21135273

Camey R. Shegerian, Esa. State Bar No. 150461
CShegerian@: she erianlaw.com

Anthony N Sq., State Bar No. 259154 FILE,
ANguyen@’s She, atriat anlaw.com ALAMEDA ey
Beatriz Alfaro, $4. State Bar No. 312828 FEB 13

BA Ifero@shep erianlaw.com 2019
SHEGERIAN & ASSOCIATES, INC.

Bona

Telephone Number: {3103 860-0770

(2) HARASSMENT ON THE BASES O
AGE, RACE, NATIONAL ORIGIN,
ANCESTRY, AND DISABILITY IN”
VIOLATION OF FEHA:

(3) WRONGFUL TERMINATION OF
EMPLOYMENT IN VIOLATION
OF PUBLIC POLICY;

(4) FAILURE TO PROVIDE
“” REASONABLE

ACCOMMODATION IN

VIOLATION OF FEHA;

§ FAILURE TO ENGAGE IN THE
INTERACTIVE PROCESS IN
VIOLATION OF FEHA;

(6) FAILURE TO PREVENT
DISCRIMINATION, |
HARASSMENT.

RETALIATION IN VIOLATION OF

PERK T
225 Santa Monica Boulevard, Suite 760 "da Dac COURT
Santa Monica, California 90401

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Facsimile Number: (310) 860-0771 a
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Attorneys for Plaintiff, =:
SHAUN MEDINA a a:
# e043 $495 PiiZob F
SUPERIOR COURT OF THE STATE OF CALIFORNIA By
FOR THE COUNTY OF ALAMEDA 28 BS
‘ oS ‘od
ste-cv WNT -2019-1021 \ 2 Ze
SHAUN MEDINA, CaseNo.: AG 199067 764.° 35
Plaintiff, PLAINTIFF SHAUN MEDINA’S ES
COMPLAINT FOR DAMAGES FOR: 35
VS.
(1) DISCRIMINATION ON THE BAS
UNITED PARCEL SERVICE, INC., OF AGE, RACE, NATIONAL
VIVIAN DOE, and DOES [to 100, ORIGIN, ANCESTRY, AND r
inclusive, DISABILITY, IN VIOLATION OF ¢
Defendants. > 0

° e TACO

PLAINTIFF’S COMPLAINT FOR DAMAGESFEHA;

(7) RETALIATION FOR TAKING
CFRA LEAVE IN VIOLATION OF
i

(8) RETALIATION FOR ENGAGING
IN PROTECTED ACTIVITY IN
VIOLATION OF FEHA;

(9) BREACH OF EXPRESS ORAL
CONTRACT NOT TO TERMINATE
EMPLOYMENT WITHOUT GOOD

(10) BREACH OF IMPLIED-IN-FACT
CONTRACT NOT TO TERMINATE
EMPLOYMENT WITHOUT GOOD
CAUSE;

(11) NEGLIGENT HIRING
SUPERVISION, AND RETENTION;

(12) INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS;

(13) VIOLATION OF LABOR CODE
§ 1102.5;

(14) VIOLATION OF LABOR CODE
6310 (UNSAFE WORKING
ONDITIONS);

DEMAND FOR JURY TRIAL

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PLAINTIFF’S COMPLAINT FOR DAMAGES.TABLE OF CONTENTS
SUMMARY
PARTIES
VENUE
FACTS COMMON TO ALL CAUSES OF ACTION
FIRST CAUSE OF ACTION

(Violation of FEHA (Government Code § 12900, ef se Py Discrimination on
e Bases of Age, Race, National Origin, Ancestry, and isability)—A gainst
Defendant UPS and Does 1 to 100, Inclusive)
SECOND CAUSE OF ACTION a
Violation of FEHA (Government Code § 12900, et seg.) (Harassment on the
ases of Age, Race, National Origin, Ancestry, and Disability)—Against All
Defendants and Does 1 to 100, Inclusive)
THIRD CAUSE OF ACTION
‘Wrongful Termination of Employment in Violation of Public Policy (Labor
‘ode : 1102.5; FEHA, Government Code § 12900, et seq.}—Against
Defendant UPS and Does 1 to 100, Inclusive)
FOURTH CAUSE OF ACTION
(v: iolation of FEHA (Government Code g 12940(a), (i), (mn), (2) (Failure to
rovide Reasonable Accommodation)—Against Defendant and Does 1
to 100, Inclusive)
FIFTH CAUSE OF ACTION

Failure to Engage in Interactive Process (Government Code § 12940(a), (i),
m), (n))—Against Defendant UPS and Does 1 to 100, Inclusive)

SIXTH CAUSE OF ACTION
v iolation of FEHA (Government Code § 12940(k) (Failure to Prevent
iscrimination, Harassment, and Retaliation—Against Defendant UPS and
Does 1 to 100, inclusive)
SEVENTH CAUSE OF ACTION

Vv iolation of FEHA (Government Code § 12900, et seq.) (Retaliation for _
aking CFRA Leave}—Against Defendant UPS and Does 1 to 100, Inclusive)

EIGHTH CAUSE OF ACTION

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17(y iolation of FEHA (Government Code § 12900, et seq.) (Retaliation for

ngaging in Protected Activity)}—Against Defendant UPS and Does 1 to 100,
nclusive

NINTH CAUSE OF ACTION -

(Breach of Express Oral Contract Not to Terminate Employment Without
ood Cause)}— Against Defendant UPS and Does 1 to 100, Inclusive)

TENTH CAUSE OF ACTION
Breach of Implied-in-Fact Contract Not to Terminate Employment Without
ood Cause (Marketing West, Inc. v. Sanyo Bisher (1992) 6 Cal.App.4th 603;
Civil Code § 1622)—Against Defendant UPS and Does I to 100, Inclusive)
ELEVENTH CAUSE OF ACTION

(Negligent Hiring, Supervision, and Retention—Against Defendant UPS and
joes I to 100, Inclusive)

TWELFTH CAUSE OF ACTION

Intentional Infliction of Emotional Distress—Against All Defendants and
joes 1 to 100, Inclusive)

THIRTEENTH CAUSE OF ACTION

y iolations of Labor Code § 1102.5, et seq.—Against Defendant UPS and
joes 1 to 100, Inclusive)

FOURTEENTH CAUSE OF ACTION

Workplace Safety Complaints (Violations of Labor Code § 6310}—Against
apie UPS and Does 1 to 100, Inclusive) $ }As

PRAYER

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PLAINTIFF’S COMPLAINT FOR DAMAGESPlaintiff, Shaun Medina, alleges, on the basis of personal knowledge and/or

information and belief:

SUMMARY
This is an action by plaintiff, Shaun Medina (“plaintiff’ or “Medina”), whose
employment with defendant United Parcel Service, Inc. (“UPS”) was wrongfully
terminated. Plaintiff brings this action against defendants for economic, non-economic,
compensatory, and punitive damages, pursuant to Civil Code section 3294, pre-judgment
interest pursuant to Code of Civil Procedure section 3291, and costs and reasonable
attorneys’ fees pursuant to Government Code section 12965(b) and Code of Civil

Procedure section 1021.5. ~

PARTIES

1. Plaintiff: Plaintiff Medina is, and at all times mentioned in this Complaint was, |
a resident of the County of Alameda, California.

2. Defendants: Defendant UPS is, and at all times mentioned in this Complaint
was, authorized to operate by the State of California and the United States government
and authorized and qualified to do business in the County of Alameda. Defendants’
place of business, where the following causes of action took place, was and is in the
County of Alameda. Defendant Vivian Doe (“defendant” or “Vivian”) is, and at all
times mentioned in this Complaint was, a supervisor with defendants, Defendant Vivian
Doe is, and at all times mentioned in this Complaint was, a resident of Alameda County,
California.

3. Doe defendants: Defendants Does 1 to 100, inclusive, are sued under fictitious
names pursuant to Code of Civil Procedure section 474. Plaintiff is informed and be-
lieves, and on that basis alleges, that each of the defendants sued under fictitious names is
in some manner responsible for the wrongs and damages alleged below, in so acting was

functioning as the agent, servant, partner, and employee of the co-defendants, and in tak-ing the actions mentioned below was acting within the course and scope of his or her auth-
ority as such agent, servant, partner, and employee, with the permission and consent of the
co-defendants. The named defendants and Doe defendants are sometimes hereafter re-
ferred to, collectively and/or individually, as “defendants.”

4. Relationship of defendants: All defendants compelled, coerced, aided, and/or
abetted the discrimination, retaliation, and harassment alleged in this Complaint, which
conduct is prohibited under California Government Code section 12940(i). All defen-
dants were responsible for the events and damages alleged herein, including on the fol-
lowing bases: (a) defendants committed the acts alleged; (b) at all relevant times, one or
more of the defendants was the agent ér employee, and/or acted under the control ‘or
supervision, of one or more of the remaining defendants and, in committing the acts
alleged, acted within the course and scope of such agency and employment and/or is or
are otherwise liable for plaintiff's damages; (c) at all relevant times, there existed a unity
of ownership and interest between or among two or more of the defendants such that any
individuality and separateness between or among those defendants has ceased, and de-
fendants are the alter egos of one another. Defendants exercised domination and control
over one another to such an extent that any individuality or separateness of defendants
does not, and at all times herein mentioned did not, exist. Adherence to the fiction of the
separate existence of defendants would permit abuse of the corporate privilege and
would sanction fraud and promote injustice. All actions of all defendants were taken by
employees, supervisors, executives, officers, and directors during employment with all
defendants, were taken on behalf of all defendants, and were engaged in, authorized, rati-
fied, and approved of by all other defendants.

5. Defendant UPS both directly and indirectly employed plaintiff Medina, as
defined in the Fair Employment and Housing Act (“FEHA”) at Government Code
section 12926(d).

6. In addition, defendant UPS compelled, coerced, aided, and abetted the

discrimination, which is prohibited under California Government Code section 12940(i).

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PLAINTIFF'S COMPLAINT FOR DAMAGES7. Finally, at all relevant times mentioned herein, all defendants acted as agents of|
all other defendants in committing the acts alleged herein.

VENUE
8. The actions at issue in this case occurred in the State of California, in the
County of Alameda. Under the California Fair Employment and Housing Act, this case
can alternatively, at Plaintiff's choice, be filed:
{T]n any county in the state in which the unlawful practice is alleged
to have been committed, in the county in which the records relevant
to the practice are maintained ... or in the county in which the
aggrieved person would have worked or would have had access to
the public accommodation but for the alleged unlawful practice, but
if the defendant is not found within any of these countiés, an action
may be brought within the county of ‘the defendant’s residence or
principal office ...
(California Government Code § 12965(b).)
9. Here, the plaintiff worked primarily in California in the County of Alameda.
The location where plaintiff worked was located in Alameda County, California at 11800
Harlan Rd., Lathrop California 95330. The majority of the unlawful actions on the part
of the defendants occurred in the County of Alameda.

10. “[I]n the absence of an affirmative showing to the contrary, the presumption is
that the county in which the title of the actions shows that the case is brought is, prima
facie, the proper county for the commencement and trial of the action.” (Mission
Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928.) The FEHA venue statute —
section 12965(b) — thus affords a wide choice of venue to persons who bring actions
under FEHA. (Brown v. Superior Court (1984) 37 Cal.3d 477, 486.) “[T]he special
provisions of the FEHA venue statute control in cases involving FEHA claims joined

with non-FEHA claims arising from the same facts.” (Id. at 487.)

FACTS COMMON TO ALL CAUSES OF ACTION
11. Plaintiff's hiring: 1 or around September 2016, Plaintiff Shaun Medina

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PLAINTIFF’S COMPLAINT FOR DAMAGES(“Medina” or “Plaintiff’) was hired as a sorter, then was a loader/unloader at UPS,
which often required to engage in repetitive motions for hours, ie. unloading
voluminous and heavy packages without any assistance.

12. Plaintiff's job performance: Medina enjoyed his work and did not have a
history of negative performance reviews. ,

13. Plaintiff's protected status and activity:

a. Plaintiff is a Hispanic male.

b. Plaintiff is 46 years old.

c. Plaintiff suffers from disabilities, including bipolar disorder, anxiety, stress,
depression, a shoulder injury, of which he informed defendants and for which he sought
reasonable accommodation.

14, Defendants’ adverse employment actions and behavior:

a. When Medina was hired, he disclosed on his job application to UPS that he
was bipolar. Generally, bipolar disorder causes episodes of mood swings ranging from
depressive lows to manic highs. It is a stigmatized mental illness.

b, Around November 2016, wielding work was being conducted inside the
UPS facility which was releasing fumes making Medina ill, Medina was not allowed to
wear a safety mask when he asked a supervisor. In addition, Medina informed human
resources and requested time off since he began feeling ill.

c. Around January 2017, Medina injured his shoulder while unloading for
hours packages weighing over 80 pounds from a UPS truck. At times Medina dealt with
packages weighing close to 100 pounds without anyone’s help. Medina reported the
injury to supervisor Luis (last name unknown) (“Luis”) and Chauncy (last name
unknown) (“Chauncy”). Rather than engage in a discussion as to how to accommodate
his injury, Luis ordered Medina to clock out and sent Medina home.

d. Sometime after, Medina reported to Luis that he needed assistance with his
duties because he was still injured. In response, Luis responded angrily, “I have a lot of
work to do too, but I still do it. And you know what happens if you don’t do your work.”

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PLAINTIFF’S COMPLAINT FOR DAMAGESMedina understood Luis’s comment as a threat, and a refusal to provide an
accommodation. Medina was humiliated and ashamed on hearing his supervisor
insinuate that Medina was being a burden on UPS.

e. Around early January 2017, Medina went to safety supervisor Dorothy (last
name unknown) (“Dorothy”) to file an incident report. Dorothy did not want to
document Medina’s injury, so she passed him off to supervisor Vivian (last name
unknown) (“Vivian”). Vivian then refused to fill out an incident report for Medina by
stating dismissively that he could merely “drink tea” to get better and return to work
since it was costly on UPS to do anything else for him.

f. On or about January 9, 2017, once again Vivian was adamant about not
filling out an injury report for Medina thus preventing him from obtaining medical
treatment. Finally, after communicating again the severity of his pain and discomfort,
Vivian agreed to submit the request.

g. Soon after, Medina visited the UPS doctor, but he was not given any work
restrictions. The UPS doctor unfairly accused Medina of feigning his symptoms and
refused to treat him.

h. Around January 11, 2017, Medina was forced to return to work and
reported to Luis that his pain was ongoing and increasing. Once again, Luis avoided
engaging in a discussion to help alleviate his pain. In a dismissive tone, Luis stated, “go
home and rest,” without any clear information on how long he should remain at home or
any information as to his rights to any forms of medical leave.

i. Late January 2017, after a few weeks without any correspondence from
UPS, Medina decided to contact Vivian about his symptoms and constant pain. Medina
requested to visit a doctor again to asses him. When Medina attempted to schedule an
appointment to visit the doctor, he was unable to because Defendants had not authorized
the visit. Unable to see a doctor and distressed about work, Medina retumed home.

j. On or about February 7, 2017, Luis called Medina to come back to work.
Medina returned to perform his regular duties without any modifications to ensure his

Se
PLAINTIFF’S COMPLAINT FOR DAMAGESinjuries were not further aggravated.

k. About more than a month later, Medina was authorized to been seen by the
company doctor. The doctor provided restrictions of no lifting over twenty (20) pounds
and no lifting overhead. Upon getting the note, Medina provided the note to Dorothy.
Dorothy in return got upset when she learned about Medina’s restrictions and demanded
to know how much longer he would remain injured. /

1. In or around March 2017, Medina was overwhelmed with the large number
of boxes to sort and observed that employees were missing causing additional work on
him despite UPS’ knowledge about his work restrictions. As a result, Medina’s
restrictions were violated since he was expected to perform. Medina complained to
supervisor Denise (last name unknown) (“Denise”) about the excessive work violating
the work restrictions. Denise ignored his comments and refused to relieve Medina from
any work. Not knowing what to do, Medina went back to work and finished his shift.

15. Defendants’ termination of plaintiff's employment: Around March 2017, UPS
mailed Medina a letter stating to return to work within 72 hours or be terminated.
Medina could not go back to the same hostile environment and chose not to put his
health at risk any longer.

16. Economic damages: As a consequence of defendants’ conduct, plaintiff has
suffered and will suffer harm, including lost past and future income and employment
benefits, damage to his career, and lost wages, overtime, unpaid expenses, and penalties,
as well as interest on unpaid wages at the legal rate from and after each payday on which
those wages should have been paid, in a sum to be proven at trial.

17. Non-economic damages: As a consequence of defendants’ conduct, plaintiff
has suffered and will suffer psychological and emotional distress, humiliation, and men-
tal and physical pain and anguish, in a sum to be proven at trial.

18. Punitive damages: Defendants’ conduct constitutes oppression, fraud, and/or
malice under California Civil Code section 3294 and, thus, entitles plaintiff to an award

of exemplary and/or punitive damages.

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PLAINTIFF’S COMPLAINT FOR DAMAGESa. Malice: Defendants’ conduct was committed with malice within the mean-
ing of California Civil Code section 3294, including that (a) defendants acted with intent
to cause injury to plaintiff and/or acted with reckless disregard for plaintiff's injury, in-
cluding by terminating plaintiff's employment and/or taking other adverse job actions
against plaintiff because of his age, disability, medical leave, race, national origin,
ancestry, and/or good faith complaints, and/or (b) defendants’ conduct was despicable
and committed in willful and conscious disregard of plaintiff's rights, health, and safety,
including plaintiff's right to be free of discrimination, harassment, retaliation, abuse of
the requirements of accommodation and engaging in the interactive process, and
wrongful employment termination.

b. Oppression: In addition, and/or alternatively, defendants’ conduct was
committed with oppression within the meaning of California Civil Code section 3294;
including that defendants’ actions against plaintiff because of his age, disability, medical | -
leave, race, national origin, ancestry, and/or good faith complaints were “despicable” and
subjected plaintiff to cruel and unjust hardship, in knowing disregard of plaintiff's rights
to a work place free of discrimination, harassment, retaliation, abuse of the requirements
of accommodation and engaging in the interactive process, and wrongful employment
termination.

c. Fraud: In addition, and/or alternatively, defendants’ conduct, as alleged,
was fraudulent within the meaning of California Civil Code section 3294, including that
defendants asserted false (pretextual) grounds for terminating plaintiff's employment
and/or other adverse job actions, thereby to cause plaintiff hardship and deprive him of|
legal rights.

19. Attorneys’ fees: Plaintiff has incurred and continues to incur legal expenses and
attorneys’ fees.

20. Exhaustion of administrative remedies: Prior to filing this action, plaintiff ex-
hausted his administrative remedies by filing a timely administrative complaint with the
Department of Fair Employment and Housing (“DFEH”) and receiving a DFEH right-to-

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PLAINTIFF'S COMPLAINT FOR DAMAGESsue letter.

FIRST CAUSE OF ACTION
(Violation of FEHA (Government Code § 12900, et seq.)
(Discrimination on the Bases of Age, Race, National Origin,
Ancestry, and Disability)—Against Defendant UPS and
Does 1 to 100, Inclusive)

21. The allegations set forth in paragraphs 1 through 20 are re-alleged and incorpo-
rated herein by reference.

22. At all times herein mentioned, FEHA, Government Code section 12940, et seq.,
was in full force and effect and was binding on defendants. This statute requires defen-
dants to refrain from discriminating against any employee because he or she is more than
40 years old; because the employee has an actual, perceived, and/or history of disability;
because the employee takes protected leave under the California Family Rights Act
(“CFRA”); because of Plaintiff's race, ancestry, and/or national origin. Within the time
provided by law, plaintiff filed a complaint with the DFEH, in full compliance with
administrative requirements, and received a right-to-sue letter.

23. During plaintiff's employment with defendants, defendants, through their su-
pervisors, engaged in actions that had a negative impact on the treatment of employees
who were more than 40 years old. Specifically, defendants discharged older employees
with greater frequency than younger employees, hired fewer employees who were older
than 40, and gave better jobs and benefits to younger employees.

24. During plaintiff's employment with defendants, defendants intentionally en-
gaged in age discrimination by discharging employees over the age of 40 with greater
frequency than other employees. During plaintiff's employment with defendants, defen-
dants had a pattern and practice of discriminating against employees who were more
than 40 years old.

25. Plaintiff was a qualified employee at the time his employment was terminated,

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PLAINTIFF’S COMPLAINT FOR DAMAGEShe was more than 40 years old, and he was replaced by an employee younger than 40,
raising an inference of discrimination.

26. Defendants, through their managers and supervisors, made a number of com-
ments to and about plaintiff that exhibited ageist motivations, intentions, and conscious-
ness. Plaintiff believes and on that basis alleges that defendants’ real motivation was to
discharge him because of his disability, age, race, national origin, and/or ancestry.

27. Defendants’ conduct, as alleged, violated FEHA, and defendants committed
unlawful employment practices, including by the following, separate bases for liability:

a. Discharging, barring, refusing to transfer, retain, hire, select, and/or employ,
and/or otherwise discriminating against’ ‘plaintiff, in whole or in part on the basis of
plaintiff's age and/or other protected characteristics, in violation of Government Code
section 12940(a);

b. Harassing plaintiff and/or creating a hostile work environment, in whole or
in part on the basis of plaintiff's disability, age, race, national origin, and/or ancestry,
and/or other protected characteristics, in violation of Government Code section 12940(j);

c. Failing to take all reasonable steps to prevent discrimination and harassment
based on age and/or other protected characteristics, in violation of Government Code
section 12940(k);

d. Retaliating against plaintiff for seeking to exercise rights guaranteed under
FEHA and/or opposing defendants’ failure to provide such rights, in violation of Gov-
ernment Code section 12940(h).

28. On the basis of the above, plaintiff believes and alleges that his age, disability,
race, national origin, and/or ancestry were a substantial motivating factor in defendants’
termination of his employment.

29. Asa proximate result of defendants’ willful, knowing, and intentional discrimi-
nation against plaintiff, plaintiff has sustained and continues to sustain substantial losses
of earnings and other employment benefits.

30. As a proximate result of defendants’ willful, knowing, and intentional discrimi-

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PLAINTIFF'S COMPLAINT FOR DAMAGES27

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nation against plaintiff, plaintiff has suffered and continues to suffer humiliation, emo-

{|tional distress, and mental and physical pain and anguish, all to his damage in a sum

according to proof.

31. Defendants’ discrimination was done intentionally, in a malicious, fraudulent,
despicable, oppressive manner, entitling plaintiff to punitive damages.

32. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
Pursuant to Government Cade section 12965(b), plaintiff is entitled to recover reason-

able attorneys’ fees and costs (including expert costs) in an amount according to proof.

- SECOND CAUSE OF ACTION
(Violation-of FEHA (Government Code § 12900, et seq.) -
(Harassment.on the Bases of Age, Race, National Origin,
Ancestry, and Disability)—Against All Defendants and Does
1 to 100, Inclusive)

. © 33. The allegations set forth in paragraphs 1 through 32 are re-alleged and incorpo-

rated herein by reference.

34. Defendants’ conduct, as alleged, violated FEHA, Government Code section
12900, et seq., and defendants committed unlawful employment practices, including by
the following, separate bases for liability:

a. Harassing plaintiff and/or creating a hostile work environment, in whole or
in part on the basis of plaintiff's age, race, national origin, ancestry, disability, good faith] .
complaints, and/or other protected characteristics, in violation of Government Code
section 12940(j) and 12923;

b. Failing to take all reasonable steps to prevent discrimination, harassment,
and retaliation based on age, in violation of Government Code section 12940(k).

35. Pursuant to Government Code Section 12923(b), a single incident of harassing
conduct is sufficient to create a hostile work environment if the harassing conduct has

unreasonably interfered with the plaintiff's work performance or created an intimidating,

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PLAINTIFF’S COMPLAINT FOR DAMAGEShostile, or offensive working environment.

36. As a proximate result of defendants’ willful, knowing, and intentional harass-
ment of plaintiff, plaintiff has sustained and continues to sustain substantial losses of
earnings and other employment benefits.

37. Asa proximate result of defendants’ willful, knowing, and intentional harass-
ment of plaintiff, plaintiff has suffered and continues to suffer humiliation, emotional
distress, and physical and mental pain and anguish, all to his damage in a sum according
to proof. oT

38. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
Pursuant to Government Code section 12965(b), plaintiff is entitled to recover .reason-
able attorneys’ fees and costs (including expert costs) in an amount according to proof.

39. Defendants’ misconduct was committed intentionally, in a malicious, despica-

ble, fraudulent, oppressive manner, entitling plaintiff to punitive damages against |=-7”

defendants.

“THIRD CAUSE OF ACTION Stee

(Wrongful Termination of Employment in Violation of

. . Public Policy (Labor Code § 1102.5; FEHA, Government "~*~" - |: ~*
Code § 12900, et seq.}—Against Defendant UPS and Does 1” © ~~ =- -|--

to 100, Inclusive)

40. The allegations set forth in paragraphs 1 through 39 are re-alleged and incorpo-
rated herein by reference.

41. Defendants terminated plaintiff's employment in violation of various funda-
mental public policies underlying both state and federal laws. Specifically, plaintiff's
employment was terminated in part because of his protected status (i.e, age, disability,
medical leave, race, national origin, ancestry, and/or good faith complaints), and because
he reported and complained about unsafe working conditions. These actions were in

violation of FEHA, the Califomia Constitution, and California Labor Code sections,

“lle

PLAINTIFF’S COMPLAINT FOR DAMAGES98.6, 6310, 6311, and 1102.5.

42. As a proximate result of defendants’ wrongful termination of plaintiff's em-
ployment in violation of fundamental public policies, plaintiff has suffered and continues
to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to
his damage in a sum according to proof.

43. Asa result of defendants’ wrongful termination of his employment, plaintiff has
suffered general and special damages in sums according to proof.

44. Defendants’ wrongful termination of plaintiffs employment was done inten-
tionally, in a malicious, fraudulent, despicable, oppressive manner, entitling plaintiff to
punitive damages.

~ 45. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
Pursuant to Code of Civil Procedure sections 1021.5 and 1032, et seq., plaintiff is enti-

tled to recover reasonable attorneys’ fees and costs in an amount according to proof.

FOURTH CAUSE OF ACTION
(Violation of FEHA (Government Code § 12940(a), (i), (m),
(n)) (Failure to Provide Reasonable Accommodation)}—
Against Defendant UPS and Does 1 to 100, Inclusive)

46. The allegations set forth in paragraphs 1 through 45 are re-alleged and incorpo-
rated herein by reference.

47. At all times herein mentioned, FEHA, Government Code section 12940(a), (i),
(m), and (n), was in full force and effect and was binding on defendants. This statute
requires defendants to provide reasonable accommodations to known disabled employ-
ees. Within the time provided by law, plaintiff filed a complaint with the DFEH, in full
compliance with administrative requirements, and received a right-to-sue letter.

48. Defendants wholly failed to attempt any reasonable accommodation of plain-
tifP's known disability. Defendants used plaintiff's disability and his need to take medi-
cal leave as an excuse for terminating plaintiffs employment.

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PLAINTIFF’S COMPLAINT FOR DAMAGES-|| requires defendants to engage in a timely, good faith interactive process to accommodate

49. Plaintiff believes and on that basis alleges that his disability and the need to
accommodate his disability were substantial motivating factors in defendants’
termination of his employment.

50. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has sustained and continues to sustain substantial losses of earnings and
other employment benefits.

51. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has suffered and continues to suffer humiliation, emotional distress, and
physical and mental pain and anguish, all to his damage in a sum according to proof.

52. Plaintiff has incurred and contifiies to incur legal expenses and attorneys’ fees. |
Pursuant to Government-Code section 12965(b), plaintiff is entitled to recover reason-

able attorneys’ fees and costs (including expert costs) in an amount according to proof.

53. Defendants’ misconduct was committed intentionally, in a malicious, despica-|~ -

ble, oppressive manner, entitling plaintiff to punitive damages against defendants.

FIFTH CAUSE OF ACTION
(Failure to Engage in Interactive Process (Government
Code § 12940(a), (i), (m), (n))}—Against Defendant UPS and
Does 1 to 100, Inclusive)

354. The allegations set forth in paragraphs 1 through 53 are re-alleged and incorpo-
rated herein by reference.

55. At all times herein mentioned, FEHA, Government Code section 12940(a), (i),
(m), and (n), was in full force and effect and was binding on defendants. This statute

known disabled employees. Within the time provided by law, plaintiff filed a complaint
with the DFEH, in full compliance with administrative requirements, and received a
right-to-sue letter.

56. Defendants wholly failed to engage in a timely, good-faith interactive process

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PLAINTIFF’S COMPLAINT FOR DAMAGESwith plaintiff to accommodate his known disabilities. Instead, defendants terminated
plaintiff's employment in part because of his disabilities.

57. Plaintiff believes and on that basis alleges that his disability was a motivating
factor in defendants’ termination of his employment.

58. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has sustained and continues to sustain substantial losses of earnings and
other employment benefits.

59. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has suffered and continues to suffer humiliation, emotional distress, and
physical and mental pain and anguish, all’to his damage in a-sum according to proof. ~~

60. Plaintiff has incurred and continues to incur legal expenses and attoinéys’ fees.
Plaintiff is at present tinaware of the precise amounts of these expenses and-fees and will
seek leave of court to amend this Complaint when the amounts are fully known. ~

61. Defendants’ misconduct was committed intentionally, in ‘a~ malicious,
fraudulent, despicable, oppressive manner, entitling plaintiff to punitive damages against

defendants.

SIXTH CAUSE OF ACTION
(Violation of FEHA (Government Code § 12940(k) (Failure
to Prevent Discrimination, Harassment, and Retaliation)}—
Against Defendant UPS and Does 1 to 100, Inclusive)

62. The allegations set forth in paragraphs 1 through 61 are re-alleged and incorpo-|*
rated herein by reference.

63. At all times herein mentioned, FEHA, Goverment Code section 12940(k), was
in full force and effect and was binding on defendants. This statute states that it is an
unlawful employment practice in California for an employer “to fail to take all rea-
sonable steps necessary to prevent discrimination and harassment from occurring.” Prior

to filing the instant Complaint, plaintiff filed a timely administrative charge with the

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PLAINTIFF'S COMPLAINT FOR DAMAGESDFEH and received a right-to-sue letter.

64. During the course of plaintiff's employment, defendants failed to prevent their
employees from engaging in intentional actions that resulted in plaintiff's being treated
less favorably because of plaintiff's protected status (i¢., his age, disability, medical
leave, race, national origin, ancestry, and/or good faith complaints), During the course
of plaintiff's employment, defendants failed to prevent their employees from engaging in
unjustified employment practices against employees in such protected classes. During
the course of plaintiff's employment, defendants failed to prevent a pattern and practice
by their employees of intentional discrimination and harassment on the bases of age,
disability, medical leave, race, national origin, ancestry, and/or other protected statuses
or protected activities.

65. Plaintiff believes and on that basis alleges'that his age, disability, medical leave,
race, national origin, ancestry, and/or other protected status and/or protected activity
were substantial motivating factors in defendants’ employees’ discrimination and
retaliation against him.

66. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has sustained and continues to sustain substantial losses of earnings and
other employment benefits.

67. As a proximate result of defendants’ willful, knowing, and intentional miscon-
duct, plaintiff has suffered and continues to suffer humiliation, emotional distress, and
physical and mental pain and anguish, all to his damage in a sum according to proof.

68. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
Pursuant to Government Code section 12965(b), plaintiff is entitled to recover reason-
able attorneys’ fees and costs (including expert costs) in an amount according to proof.

69. Defendants’ misconduct was committed intentionally, in a malicious, despica-
ble, fraudulent, oppressive manner, entitling plaintiff to punitive damages against
defendants.

Wt

-15=
PLAINTIFF’S COMPLAINT FOR DAMAGESSEVENTH CAUSE OF ACTION
(Violation of FEHA (Government Code § 12900, et seq.)
(Retaliation for Taking CFRA Leave)—Against Defendant
UPS and Does 1 to 100, Inclusive)
70. The allegations set forth in paragraphs | through 69 are re-alleged and incorpo-
rated herein by reference.
71. Defendants’ conduct, as alleged, violated FEHA, Government Code section
12900, et seg., and defendants committed unlawful employment practices, including by
the following, separate bases for liability:

a. Discharging, barring, refusing to transfer, retain, hire, select,-and/or employ,

and/or otherwise discriminating against plaintiff, in whole or in part on the basis of|-

plaintiff's taking CFRA leave, in violation of Government Code section 12940(a);
b. Retaliating against plaintiff for seeking to exercise rights guaranteed under
FEHA and/or opposing defendants’ failure to provide such rights, including rights of
reasonable accommodation, rights of interactive process, leave rights, and/or the right to
be free of discrimination, in violation of Government Code section 12940(h).
72. As a proximate result of defendants’ willful, knowing, and intentional retalia-
tion against plaintiff, plaintiff has sustained and continues to sustain substantial losses-of|

earnings and other employment benefits.

73. As a proximate result of defendants’ willful, knowing, and intentional retalia- |-

tion against plaintiff, plaintiff has suffered and continues to suffer humiliation, emotional
distress, and physical and mental pain and anguish, all to his damage in a sum according
to proof.

74. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
Pursuant to Government Code section 12965(b), plaintiff is entitled to recover reason-
able attorneys’ fees and costs (including expert costs) in an amount according to proof.

75. Defendants’ misconduct was committed intentionally, in a malicious,

fraudulent, despicable, oppressive manner, entitling plaintiff to punitive damages against

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PLAINTIFF’S COMPLAINT FOR DAMAGESone.

defendants.

EIGHTH CAUSE OF ACTION
(Violation of FEHA (Government Code § 12900, ef seq.)
(Retaliation for Engaging in Protected Activity)—Against
Defendant UPS and Does 1 to 100, Inclusive)
76. The allegations set forth in paragraphs 1 through 75 are re-alleged and incorpo-
rated herein by reference. .
77. At all times herein mentioned, FEHA, Government Code section 12940(h); was

in full force and effect and was binding“on defendants. This statute states that it-is an

unlawful employment practice.in California for an employer to: oe

Discharge, expel, or otherwise discriminate against any person. © -*.
because the person has opposed any practices forbidden under this

part or because. the person has filed a complaint, testified, or assisted ~
m any proceeding under this part.

78. At all times herein mentioned, 2 California Code of Regulations section.11021

has provided as follows:

(a) Retaliation Generally. It is unlawful for an employer or *
other covered entity to demote, suspend, reduce, fail to hire or con-
sider for-hire, fail-to give equal consideration in making employment -:~. ~
decisions, fail to treat impartially in the context of any recommenda-
tions for subsequent emp e er
entity may make, adversely affect working conditions or otherwise
deny any employment benefit to an individual because that indi-
vidual has opposed practices prohibited by the Act or has filed a
complaint, testified, assisted or participated in any manner in an ~
investigation, proceeding, or hearing conducted by the Council or
Department or its staff.

. (1). Opposition to practices prohibited by the Act includes,
but is not limited to:

(A)Seeking the advice of the Department or Council,
whether or not a complaint is filed, and if a complaint is filed,
whether or not the complaint is ultimately sustained;

(B) Assisting or advising any Porson in seeking the ad-
vice of the Department or Council; whether or not a complaint is
filed, and if a complaint is filed, whether or not the complaint is ulti-
mately sustained;

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PLAINTIFF’S COMPLAINT FOR DAMAGES

oyment that the employer or other covered . - =. ~| ~27

28

{ Opposing employment practices that an individual
reasonably believes to exist and believes to be a violation of the Act;

(D) Participating in an activity that is perceived by the
employer or other covered entity as opposition to discrimination,
whether or not so intended by the individual expressing the opposi-
tion; or

(E) Contacting, communicating with or participating in
the proceeding of a local human rights or civil rights agency regard-
ing employment discrimination on a basis enumerated in the Act.

(2) Assistance with or participation in the Proceedings of the
Council or Department includes, but is not limited to:

.. (A) Contacting, communicating with or participating in
the proceedings of the Department or Council due to a good faith
belief that the Act has been violated;
or

. (B) Involvement as a potential witness, which an em-
Ployer or other covered entity perceives as.participation in an activity
of the Department or the Council.

_ (b) Exception for Reasonable Discipline. Nothing in these regu-
~ lations shall’ be construed to prevent an employer or other covered

- ‘entity from enforcing reasonable disciplinary policies and practices,

nor from demonstrating that the actions of an applicant or employee
. were either disruptive or otherwise detrimental to legitimate business
interests so as to justify the denial of an employment benefit.

79. Defendants’ conduct, as alleged, violated FEHA, Government Code section
12940(h), and defendants committed unlawful employment practices, including violating
the above statute and regulations by retaliating against plaintiff for exercising his rights,
raising complaints of illegality, refusing to engage in illegal behavior, complaining of
discrimination and/or harassment on the basis of age, disability, race, national origin,
ancestry, engaging in protected activity, and/or assisting and/or participating in an
investigation, opposing defendants’ failure to provide rights, including rights to
complain and to assist in a lawsuit, and/or the right to be free of retaliation, in violation
of Government Code section 12940(h).

80. Plaintiff's good faith complaints and/or other characteristics or activities pro-
tected by FEHA, Government Code section 12900, ef seg., were motivating factors in

=18-
PLAINTIFF’S COMPLAINT FOR DAMAGESdefendants’ decision to terminate plaintiff's employment, not to retain, hire, or otherwise
employ plaintiff in any position, to harass plaintiff, to retaliate against plaintiff, and/or to
take other adverse job actions against plaintiff.

81. During the course of plaintiffs employment, defendants failed to prevent their
employees from engaging in intentional actions that resulted in plaintiff's being treated
less favorably because of his protected status (i.e., his age, disability, medical leave,
race, national origin, ancestry, and/or good faith complaints). During the course of
plaintiff's employment, defendants failed to prevent their employees from engaging in
unjustified employment practices against employees in such protected classes. During
the course of plaintiff's employment, déféndants failed to prevent a pattern and practice
by their employees of intentional retaliation for engaging in protected activities.

82. Defendants, through their managers and supervisors, made a number éf com-
ments to and about plaintiff that exhibited discriminatory motivations, intentions, and
consciousness on the basis of plaintiff's his age, disability, medical leave, race, national
origin, ‘ancestry, good faith complaints and/or his whistleblowing activities. Plaintiff,
believes and on that basis alleges that defendants’ real motivation was to discharge him
because of his protected complaints about defendants’ illegal actions.

83. Defendants” conduct, as alleged, violated FEHA, and defendants committed
unlawful employment practices, including by the following, separate bases for liability:

a. Discharging, barring, refusing to transfer, retain, hire, select, and/or employ,
and/or otherwise discriminating against plaintiff, in whole or in part on the basis of
plaintiff's age, disability, race, national origin, ancestry, medical leave, his good faith
complaints, and/or other protected characteristics or activities, in violation of
Government Code section 12940(a);

b. Retaliating against plaintiff for seeking to exercise rights guaranteed under
FEHA and/or opposing defendants’ failure to provide such rights, including the right to
be free of discrimination, harassment, and retaliation, in violation of Government Code
section 12940(h);

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PLAINTIFF’S COMPLAINT FOR DAMAGESc. Harassing plaintiff and/or creating a hostile work environment, in whole or
in part on the basis of plaintiff's his age, disability, medical leave, race, national origin,
ancestry, good faith complaints and/or other protected characteristics or activities, in
violation of Government Code section 12940(j).

84. On the above, basis, plaintiff believes and alleges that his protected complaints
constituted a substantial motivating factor in defendants’ termination of his employment.

85. As a proximate result of defendants’ willful, knowing, and intentional retalia-
tion against plaintiff, plaintiff has sustained and continues to sustain substantial losses of|
earnings and other employment benefits.

86. As a proximate result of defendants’. willful, knowing, and: intentional retaliation
against plaintiff, plaintiff has suffered and continues to suffer humiliation, emotional distress, | --
and mental and physical pain and anguish, all to his damage in a sum according to proof.

, 87. Plaintiff has incurred and continues to incur legal expenses and attorneys” fees. |-
Pursnant to Government Code section 12965(b), plaintiff is entitled to recover reason-
able attorneys’ fees and costs (including expert costs) in an amount according to proof.- -

88. Defendants’ misconduct was committed intentionally, in a- malicious,
despicable, fraudulent, oppressive manner, entitling plaintiff to punitive damages against

defendants. . -|

NINTH CAUSE OF ACTION
(Breach of Express Oral Contract Not to Terminate
Employment Without Good Cause)— Against Defendant
UPS and Does 1 to 100, Inclusive)

89. The allegations set forth in paragraphs 1 through 88 are re-alleged and incorpo-
rated herein by reference.

90. Defendants, through their agents, entered an oral agreement not to terminate
plaintiffs employment except for good cause. Plaintiff and defendants, through their

supervisors, made mutual promises of consideration pursuant to this oral agreement.

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PLAINTIFF’S COMPLAINT FOR DAMAGESPlaintiff performed all duties required of him under the agreement by performing his job
in an exemplary manner.

91. Defendants and their managers and supervisors terminated plaintiffs employ-
ment without good cause, violating the express oral contract they had with him.

92. As a proximate result of defendants’ willful breach of the express oral contract
not to terminate employment without good cause, plaintiff has suffered and continues to

suffer damages, including losses of earnings and benefits, in a sum according to proof.

TENTH CAUSE OF ACTION

(Breach of Implied-in-Fact Contract Not to Terminate

_ . Employment Without Good Cause (Marketing West, Inc. v.

Sanyo Fisher (1992) 6 Cal.App.4th 603; Civil Code
. § 1622}—Against Defendant UPS and Does 1 to 100,
Inclusive)
. 93. The allegations set forth in paragraphs 1 through 92 are re-alleged and incorpo-
rated herein by reference.

94. On the basis of oral assurances of continued employment given to plaintiff by
defendants’ supervisors, the length of plaintiff's employment with defendants, defen-
dants’ actual practice of terminating employment only for cause, and the industry stan-
dard for the business defendants engaged in of terminating employment only for cause,
plaintiff and defendants shared the actual understanding that plaintiff's employment
could and would be terminated only for cause. This shared understanding resulted in an
implied contract requiring that defendants have good cause to terminate plaintiff's em-
ployment.

95. Defendants and their managers and supervisors terminated plaintiff's employ-
ment without good cause, violating the implied-in-fact contract they had with him.

96. As a proximate result of defendants’ willful breach of the implied-in-fact con-

tract not to terminate employment without good cause, plaintiff has suffered and con-

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PLAINTIFFS COMPLAINT FOR DAMAGEStinues to suffer damages, including losses of eamings and benefits, in a sum according to
proof.

97. Plaintiff seeks interest for lost wages under this cause of action under Labor
Code section 218.6.

ELEVENTH CAUSE OF ACTION
(Negligent Hiring, Supervision, and Retention—Against
Defendant UPS and Does 1 to 100, Inclusive)
98. The allegations set forth in paragraphs 1 through 97 are revalleged a and incorpo-
rated herein by reference. eh
- 99. Defendants owed a duty of care to plaintiff to appoint, hire, retain, and super-

vise persons who would riot engage:in retaliatory, harassing, or discriminatory conduct.

|Defendants owed a duty of care to plaintiff not to retain managers or employees who

would discriminate against, harass, or retaliate against employees for engaging in pro-

tected activities. Defendants owed a duty of care to plaintiff to supervise their managers

and employees closely to ensure that they would refrain from harassing and retaliating b

against plaintiff.
100. Defendants breached these duties. As a result, defendants caused damages to

plaintiff. As a proximate result of defendants’ negligent hiring, retention, and supérvi-

sion of their managers and employees, plaintiff has suffered and continues to suffer] ~-

damages, including losses of earnings and benefits, according to proof.

TWELFTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress—Against All —
Defendants and Does 1 to 100, Inclusive)
101. The allegations set forth in paragraphs | through 100 are re-alleged and incor-
porated herein by reference.
102. Defendants’ discriminatory, harassing, and retaliatory actions against plaintiff,

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PLAINTIFFS COMPLAINT FOR DAMAGESas well as their other illegal actions and requests for plaintiff to engage in illegal activity,
constituted severe and outrageous misconduct and caused plaintiff extreme emotional
distress.

103. Defendants were aware that treating plaintiff in the manner alleged above,
including depriving plaintiff of his livelihood, would devastate plaintiff and cause him
extreme hardship.

104. As a proximate result of defendants’ extreme and outrageous conduct, plaintiff;
has suffered and continues to suffer severe emotional distress. Plaintiff has sustained
and continues to sustain subst