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1 Kevin G. Little, SBN 149818 E-FILED
Michelle L. Tostenrude, SBN 290121 7/5/2022 7:58 PM
2 LAW OFFICE OF KEVIN G. LITTLE Superior Court of California
Post Office Box 8656 County of Fresno
3 Fresno, California 93747 By: Sergio Lopez, Deputy
Telephone: (559) 342-5800
4 Facsimile: (559) 242-2400
E-Mail: kevin@kevinglittle.com
5
Attorneys for Plaintiff Felipe Mercado
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF FRESNO, CIVIL DIVISION
10
11 FELIPE MERCADO, Case No.: 21CECG01671
12 Plaintiff, FIRST AMENDED COMPLAINT FOR
DAMAGES AND DECLARATORY
13 v. RELIEF
14 WASHINGTON UNIFIED SCHOOL 1. Disparate Treatment Based on Race, Color,
DISTRICT; and DOES 1-10, inclusive, National Origin, and Ancestry
15 2. Hostile Work Environment Harassment
Defendants. Directed at Plaintiff Based on Race, Color,
16 National Origin, and Ancestry
3. Retaliation
17 4. Failure to Prevent Harassment,
Discrimination, and Retaliation
18 5. Retaliation in Violation of Labor Code §
1102.5
19 6. Declaratory Relief and Reinstatement
20 Jury Trial Demanded
21
22 TO THE HONORABLE COURT:
23 Plaintiff Felipe Mercado, through his undersigned counsel, hereby makes the following
24 allegations against the defendants.
25 JURISDICTION AND VENUE
26 1. This Court has jurisdiction because this action arises under the laws of the State of
27 California.
28
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
1 2. Venue is proper under Code of Civil Procedure section 395, subdivision (a),
2 because one or more of the defendants reside in this county at the commencement of this action.
3 3. The amount in controversy in this matter exceeds the sun of $25,000 exclusive of
4 interest and costs.
5 EXHAUSTION OF ADMINISTRATIVE REMEDIES
6 4. On June 12, 2020, Plaintiff Felipe Mercado obtained a “Right to Sue” letter from
7 the Department of Fair Employment and Housing (DFEH), pursuant to Government Code
8 Section 12960, et seq.
9 PARTIES
10 5. Plaintiff Felipe Mercado (“Felipe”) brings this action in an individual capacity.
11 Felipe resides in the County of Fresno, State of California.
12 6. Defendant Washington Unified School District (“WUSD”) is a “school district,”
13 as that term is defined in California Education Code section 41302.5 and as such, operates in the
14 County of Fresno, State of California. At all times herein, Defendant was an “employer” under
15 the definition set forth in Government Code Section 12926(d).
16 7. At all times mentioned herein, the defendant named in the caption and each DOE
17 defendant was an agent, employee and/or partner of the remaining defendants, including the
18 DOE defendants, and, in doing these things herein alleged, was acting within the scope of such
19 agency, employment and/or partnership with the permission, authority and/or consent of her or
20 her co-defendants. Plaintiff is ignorant of the true names and capacities of defendants sued herein
21 as DOES 1 through 10, inclusive, and therefore sue these defendants by such fictious names.
22 Plaintiff will amend this complaint to allege the true names and capacities of said defendants
23 when the same has been ascertained. Each of the fictitiously named defendants is responsible in
24 some manner for the acts complained of herein. Unless otherwise stated, all references to named
25 defendants shall include DOE defendants as well.
26 FACTUAL ALLEGATIONS
27 8. At all relevant times, Felipe was employed by WUSD. Felipe was originally
28 hired as the Principal of West Fresno Elementary School.
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 2
1 9. Felipe was incredibly successful in his role as Principal at West Fresno
2 Elementary School. In his first year, the school saw lower rates of student suspensions,
3 increased student attendance, and increased literacy rates among students. Felipe was also
4 highly effective in empowering and encouraging the Learning Directors at his school to
5 further improve their students’ performance.
6 10. Through his position, Felipe quickly began to learn about the discrepancies
7 between the treatment of Hispanic and non-Hispanic staff, and about the lack of WUSD’s
8 response to the bullying of Hispanic students by both fellow students and teachers.
9 11. After his first year with WUSD, Felipe began to personally experience
10 harassment and discrimination, as well as demeaning and undermining behavior, from
11 other employees at West Fresno Elementary.
12 12. On or about January 29, 2019, at the adamant request of a parent, Felipe
13 was forced to remove a student from a classroom where he was being incessantly bullied.
14 The teacher of this classroom responded by attempting to have an investigation of Felipe
15 conducted, and defamed Felipe in multiple emails to his supervisors.
16 13. On or about March 8, 2019, a teacher left a note on a Hispanic student’s
17 independent study agreement, stating they “will not be handling [this student’s]
18 independent study,” and that Felipe needed to “find someone else.” This is just one
19 example of the disrespect and misconduct that has been directed at Felipe over the course
20 of his time as Principal of West Fresno Elementary.
21 14. Felipe was also informed that, at a Black History Assembly in February of
22 2020, at least one teacher made highly inappropriate marks directed at the assembly, to the
23 effect of, “This is a waste of time, we’re missing math for this?” Felipe is further informed
24 and believes these teachers made their inappropriate and insensitive comments loud
25 enough for the students to hear them.
26 15. On at least one occasion, Felipe was cornered in his office by a West Fresno
27 Elementary teacher and forced to endure verbal abuse, demeaning accusations, and threats
28 in retaliation against his reports and decisions as principal.
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 3
1 16. Felipe reported all of these events to his supervisors. In response, WUSD had
2 a representative sit in on a meeting between Felipe and another teacher, who had already
3 sent him numerous aggressive and insubordinate emails. The WUSD representative simply
4 stated that the two should do their best to avoid each other. No further action was taken to
5 correct the harassment being directed at Felipe.
6 17. As the harassment and bullying Felipe was experiencing saw no
7 improvement, Felipe was forced to agree to take on the position of Vice Principal at West
8 Fresno Middle School.
9 18. WUSD indicated to Felipe that this change in his position
10 would not affect his career development or pathway, and that the decision was being made
11 with his mental health in mind. Felipe was instructed to email the teachers and staff of
12 West Fresno Elementary that he would not be returning for the following school year.
13 19. However, Felipe quickly realized that the new position was meant to
14 demoralizing to him. West Fresno Middle School had not had a Vice Principal position for
15 several years, and it became clear to Felipe that WUSD had not actually prepared a Vice
16 Principal position for him prior to his transition.
17 20. Felipe was forced to take on menial tasks, such as handing out tablets and
18 collecting papers, and had no real role in leadership or administrative authority.
19 21. As a result of this switch in positions, Felipe was no longer eligible to receive
20 the yearly raise that WUSD promised to its principals, causing Felipe to miss out on
21 significant future earning potential.
22 22. Also as a result of having to take a Vice Principal Position, Felipe will no
23 longer be able to promote to his desired position of superintendent within his originally
24 predicted timeline. This action by WUSD has essentially halted Felipe’s potential for
25 growth in his field.
26 23. At all relevant times, Felipe was unjustly disciplined and then demoted for
27 complaining about preferential treatment for non-Hispanic staff and the lack of response to
28 teacher and student bullying of Hispanic students.
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 4
1 24. The above-described demeaning treatment was directed at Felipe because he is
2 Hispanic.
3 25. Due to the above-described unlawful harassment and disparate treatment, and due
4 to WUSD’s refusal to prevent the same, Felipe was forced to resign and accept lower-paying
5 employment elsewhere.
6 FIRST CAUSE OF ACTION
7 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
8 FOR DISPARATE TREATMENT BASED ON RACE, COLOR, NATIONAL ORIGIN,
9 AND/OR ANCESTRY
10 (Government Code section 12940, subdivision (a))
11 26. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
12 through 25 as if fully stated herein.
13 27. Government Code section 12940, subdivision (a), provides: “It is an unlawful
14 employment practice… [f]or an employer, because of the race… color, national origin, ancestry,
15 physical disability, mental disability, [or] medical condition… of any person… to discharge the
16 person from employment… or to discriminate against the person in compensation or in terms,
17 conditions, or privileges of employment.”
18 28. At all relevant times, WUSD was an employer and Felipe was an employee of
19 WUSD when WUSD discriminated against Felipe in compensation and in terms, conditions, and
20 privileges of employment.
21 29. Felipe exhibited excellent performance during his time as Principal of West
22 Fresno Elementary School and was not the subject of any disciplinary action prior to his
23 demotion to Vice Principal of West Fresno Middle School.
24 30. Felipe’s protected status as Hispanic was a substantial motivating reason for
25 Defendants’ adverse employment actions against Felipe.
26 31. As a result of the foregoing, Felipe has suffered and continues to suffer, damages,
27 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment
28 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 5
1 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional
2 limits of this Court.
3 SECOND CAUSE OF ACTION
4 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
5 FOR HOSTILE WORK ENVIRONMENT HARASSMENT DIRECTED AT PLAINTIFF
6 BASED ON RACE, COLOR, NATIONAL ORIGIN, AND/OR ANCESTRY
7 (Government Code section 12940, subdivision (j))
8 32. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
9 through 31 as if fully stated herein.
10 33. Government Code section 12940, subdivision (j) provides: “It is an unlawful
11 employment practice… [f]or an employer… or any other person, because of race… color,
12 national origin, ancestry, physical disability, mental disability, [or] medical condition… to harass
13 an employee… or a person providing services pursuant to a contract.”
14 34. At all relevant times, WUSD was an employer and Felipe was an employee of
15 WUSD when WUSD subjected Felipe to harassing conduct because of Felipe’s protected status
16 as Hispanic.
17 35. The harassing conduct was severe and pervasive.
18 36. Felipe considered the work environment to be hostile, intimidating, offensive,
19 oppressive, and abusive; and, a reasonable person in Felipe’s circumstances would have
20 considered the work environment to be hostile, intimidating, offensive, oppressive, and abusive.
21 37. As a result of the foregoing, Felipe has suffered and continues to suffer, damages,
22 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment
23 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been
24 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional
25 limits of this Court.
26 //
27 //
28 //
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 6
1 THIRD CAUSE OF ACTION
2 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
3 FOR RETALIATION
4 (Government Code section 12940, subdivision (h))
5 38. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
6 through 37 as if fully stated herein.
7 39. Government Code section 12940, subdivision (h) provides: “It is an unlawful
8 employment practice… [f]or any employer, labor organization, employment agency, or person to
9 discharge, expel, or otherwise discriminate against any person because the person has opposed
10 any practices forbidden under this part…”
11 40. Felipe engaged in protected activity when he complaining about preferential
12 treatment for non-Hispanic staff and the lack of response to teacher and student bullying of
13 Hispanic students.
14 41. Felipe’s complaints were substantial motivating reasons for Defendants’ adverse
15 employment actions against Felipe, when they demoted him to Vice Principal, rather than
16 address the issues in Felipe’s complaints.
17 42. As a result of the foregoing, Felipe has suffered and continues to suffer, damages,
18 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment
19 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been
20 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional
21 limits of this Court.
22 FOURTH CAUSE OF ACTION
23 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
24 FOR FAILURE TO PREVENT HARASSMENT, DISCRIMINATION, AND
25 RETALIATION
26 (Government Code section 12940, subdivision (k))
27 43. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
28 through 42 as if fully stated herein.
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 7
1 44. Government Code section 12940, subdivision (k), provides that it is an unlawful
2 employment practice for “an employer… to fail to take all reasonable steps to prevent
3 discrimination and harassment from occurring.”
4 45. At all relevant times, WUSD was an employer and Felipe was an employee of
5 WUSD when WUSD subjected Felipe and other Hispanic employees to harassment,
6 discrimination, and retaliation as described above.
7 46. WUSD failed to take all reasonable steps to prevent the harassment,
8 discrimination, and retaliation.
9 47. As a result of the foregoing, Felipe has suffered and continues to suffer, damages,
10 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment
11 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been
12 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional
13 limits of this Court.
14 FIFTH CAUSE OF ACTION
15 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
16 FOR RETALIATION AGAINST WHISTLEBLOWER RE LEGAL COMPLIANCE
17 (Labor Code section 1102.5)
18 48. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
19 through 47 as if fully stated herein.
20 49. At all relevant times, Felipe was an employee of WUSD.
21 50. During his employment with WUSD, Felipe disclosed to persons with authority
22 over plaintiff and persons with authority to investigate, discover, or correct legal violations and
23 noncompliance in connection with preferential treatment for non-Hispanic staff and the lack of
24 response to teacher and student bullying of Hispanic students.
25 51. Felipe had reasonable cause to believe that the information disclosed violations of
26 federal, state, and local statutes, rules, and regulations.
27 52. At all relevant times, WUSD was acting as an employer and Felipe as an
28 employee, under the definitions set forth in Government Code Section 12926(d). Felipe
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 8
1 further initiated his complaints to WUSD as an employee, rather than a member of the
2 general public. Therefore, WUSD and its actions are under the supervision and scrutiny of
3 the Department of Fair Employment and Housing, and Felipe is not required to present a
4 claim under the Government Claims Act. Felipe has exhausted his administrative remedies
5 by filing a DFEH complaint and obtaining his “Right to Sue” letter.
6 53. The defendants engaged in the above-described adverse employment actions
7 against Felipe, when they demoted him to Vice Principal, rather than address the issues in
8 Felipe’s complaints.
9 54. As a result of the foregoing, Plaintiffs have suffered and continue to suffer,
10 damages, in the form of lost wages and other employment benefits and mental suffering, loss of
11 enjoyment of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Plaintiffs
12 have been damaged by the foregoing conduct in an amount subject to proof and within the
13 jurisdictional limits of this Court.
14 SIXTH CAUSE OF ACTION
15 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10
16 FOR DECLARATORY RELIEF AND REINSTATEMENT
17 55. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1
18 through 54 as if fully stated herein.
19 56. An actual controversy has arisen between Felipe and WUSD on the following
20 matters:
21 a. Whether WUSD violated the provisions of FEHA preventing discrimination
22 based on ethnicity when it terminated Felipe’s employment as alleged herein;
23 b. Whether WUSD violated the provisions of FEHA preventing ethnicity-based
24 harassment directed at Felipe when it took adverse employment actions against
25 Felipe as alleged herein;
26 c. Whether WUSD violated the provisions of FEHA preventing retaliation for
27 opposing FEHA violations as alleged herein when it took adverse employment
28 actions against Felipe as alleged herein;
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 9
1 d. Whether WUSD violated the provisions of FEHA requiring employers to take all
2 reasonable steps to prevent discrimination, harassment, and retaliation as alleged
3 herein;
4 57. Felipe seeks a declaration with respect to his legal rights and WUSD’s legal
5 duties in the above-described controversy, pursuant to Code of Civil Procedure section 1060.
6 58. Felipe seeks entry of a declaratory judgment against WUSD and in Plaintiff’s
7 favor, seeking to reaffirm Plaintiff’s equal standing among his coworkers and the community,
8 and to condemn discriminatory employment policies or practices.
9 59. Felipe also seeks an order requiring full reinstatement to his position, and any
10 applicable civil penalties that may be in effect at the time of trial.
11 PRAYER FOR RELIEF
12 WHEREFORE, PLAINTIFF prays for a judgment as follows:
13 1. For special damages according to proof;
14 2. For general damages according to proof;
15 3. Any applicable civil penalties under FEHA, the Labor Code, and the Civil Code;
16 4. For interest as state law allows;
17 5. For Plaintiffs’ attorneys’ fees and costs as state law allows;
18 6. For such other and further relief as the court may deem proper.
19
20
21 Dated: July 5, 2022 LAW OFFICE OF KEVIN G. LITTLE
22
23 /s/ Kevin G. Little
Kevin G. Little
24 Attorneys for Plaintiff Felipe Mercado
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 10
1 PROOF OF SERVICE
2 My business address is 1225 E. Divisadero Street, Fresno, CA 93721. I am employed in
Fresno County, California. I am over the age of 18 years and am not a party to this case.
3
On the date indicated below, I served the foregoing document(s) described as FIRST
4 AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF to all
interested parties in this action as indicated in the attached service list and in the manner as
5 described below:
6
(BY MAIL) I am readily familiar with the business’ practice for collection and processing
7 of correspondence for mailing, and that correspondence, with postage thereon fully prepaid,
will be deposited with the United States Postal Service on the date noted below in the ordinary
8 course of business at Fresno, California.
9 (BY PERSONAL SERVICE) I caused delivery of such envelope(s) by hand, to the
office(s) of the address(es) on the proceeding page.
10
BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF format and
11 sent via electronic mail to the electronic mail address(es) of the address(es) designated on the
proceeding page.
12
(BY FACSIMILE) I caused the above-referenced document to be delivered by facsimile to
13 the facsimile number(s) of the address(es) on the proceeding page.
14 (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be delivered
to an overnight courier service for delivery to the address(es) on the proceeding page.
15
16 EXECUTED ON July 5, 2022 at Fresno, California.
17 (STATE) I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
18
(FEDERAL) I declare that I am employed in this office of a member of the bar of this court
19 at whose direction this service was made.
20
21
/s/ Tyler Durnell
22 TYLER DURNELL
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 11
1 PROOF OF SERVICE – SERVICE LIST
2 Laura A. Wolfe, Esq.
MCCORMICK, BARSTOW, SHEPPARD,
3 WAYTE & CARRUTH, LLP
7647 North Fresno Street
4 Fresno, California 93720
E-Mails: Laura.Wolfe@mccormickbarstow.com
5 Dora.Dong@mccormickbarstow.com
Michelle.Gagnon@mccormickbarstow.com
6 Attorney for defendant Washington Unified School District
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FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 12
Preview
1 Kevin G. Little, SBN 149818 E-FILED Michelle L. Tostenrude, SBN 290121 7/5/2022 7:58 PM 2 LAW OFFICE OF KEVIN G. LITTLE Superior Court of California Post Office Box 8656 County of Fresno 3 Fresno, California 93747 By: Sergio Lopez, Deputy Telephone: (559) 342-5800 4 Facsimile: (559) 242-2400 E-Mail: kevin@kevinglittle.com 5 Attorneys for Plaintiff Felipe Mercado 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF FRESNO, CIVIL DIVISION 10 11 FELIPE MERCADO, Case No.: 21CECG01671 12 Plaintiff, FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY 13 v. RELIEF 14 WASHINGTON UNIFIED SCHOOL 1. Disparate Treatment Based on Race, Color, DISTRICT; and DOES 1-10, inclusive, National Origin, and Ancestry 15 2. Hostile Work Environment Harassment Defendants. Directed at Plaintiff Based on Race, Color, 16 National Origin, and Ancestry 3. Retaliation 17 4. Failure to Prevent Harassment, Discrimination, and Retaliation 18 5. Retaliation in Violation of Labor Code § 1102.5 19 6. Declaratory Relief and Reinstatement 20 Jury Trial Demanded 21 22 TO THE HONORABLE COURT: 23 Plaintiff Felipe Mercado, through his undersigned counsel, hereby makes the following 24 allegations against the defendants. 25 JURISDICTION AND VENUE 26 1. This Court has jurisdiction because this action arises under the laws of the State of 27 California. 28 FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 1 2. Venue is proper under Code of Civil Procedure section 395, subdivision (a), 2 because one or more of the defendants reside in this county at the commencement of this action. 3 3. The amount in controversy in this matter exceeds the sun of $25,000 exclusive of 4 interest and costs. 5 EXHAUSTION OF ADMINISTRATIVE REMEDIES 6 4. On June 12, 2020, Plaintiff Felipe Mercado obtained a “Right to Sue” letter from 7 the Department of Fair Employment and Housing (DFEH), pursuant to Government Code 8 Section 12960, et seq. 9 PARTIES 10 5. Plaintiff Felipe Mercado (“Felipe”) brings this action in an individual capacity. 11 Felipe resides in the County of Fresno, State of California. 12 6. Defendant Washington Unified School District (“WUSD”) is a “school district,” 13 as that term is defined in California Education Code section 41302.5 and as such, operates in the 14 County of Fresno, State of California. At all times herein, Defendant was an “employer” under 15 the definition set forth in Government Code Section 12926(d). 16 7. At all times mentioned herein, the defendant named in the caption and each DOE 17 defendant was an agent, employee and/or partner of the remaining defendants, including the 18 DOE defendants, and, in doing these things herein alleged, was acting within the scope of such 19 agency, employment and/or partnership with the permission, authority and/or consent of her or 20 her co-defendants. Plaintiff is ignorant of the true names and capacities of defendants sued herein 21 as DOES 1 through 10, inclusive, and therefore sue these defendants by such fictious names. 22 Plaintiff will amend this complaint to allege the true names and capacities of said defendants 23 when the same has been ascertained. Each of the fictitiously named defendants is responsible in 24 some manner for the acts complained of herein. Unless otherwise stated, all references to named 25 defendants shall include DOE defendants as well. 26 FACTUAL ALLEGATIONS 27 8. At all relevant times, Felipe was employed by WUSD. Felipe was originally 28 hired as the Principal of West Fresno Elementary School. FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 2 1 9. Felipe was incredibly successful in his role as Principal at West Fresno 2 Elementary School. In his first year, the school saw lower rates of student suspensions, 3 increased student attendance, and increased literacy rates among students. Felipe was also 4 highly effective in empowering and encouraging the Learning Directors at his school to 5 further improve their students’ performance. 6 10. Through his position, Felipe quickly began to learn about the discrepancies 7 between the treatment of Hispanic and non-Hispanic staff, and about the lack of WUSD’s 8 response to the bullying of Hispanic students by both fellow students and teachers. 9 11. After his first year with WUSD, Felipe began to personally experience 10 harassment and discrimination, as well as demeaning and undermining behavior, from 11 other employees at West Fresno Elementary. 12 12. On or about January 29, 2019, at the adamant request of a parent, Felipe 13 was forced to remove a student from a classroom where he was being incessantly bullied. 14 The teacher of this classroom responded by attempting to have an investigation of Felipe 15 conducted, and defamed Felipe in multiple emails to his supervisors. 16 13. On or about March 8, 2019, a teacher left a note on a Hispanic student’s 17 independent study agreement, stating they “will not be handling [this student’s] 18 independent study,” and that Felipe needed to “find someone else.” This is just one 19 example of the disrespect and misconduct that has been directed at Felipe over the course 20 of his time as Principal of West Fresno Elementary. 21 14. Felipe was also informed that, at a Black History Assembly in February of 22 2020, at least one teacher made highly inappropriate marks directed at the assembly, to the 23 effect of, “This is a waste of time, we’re missing math for this?” Felipe is further informed 24 and believes these teachers made their inappropriate and insensitive comments loud 25 enough for the students to hear them. 26 15. On at least one occasion, Felipe was cornered in his office by a West Fresno 27 Elementary teacher and forced to endure verbal abuse, demeaning accusations, and threats 28 in retaliation against his reports and decisions as principal. FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 3 1 16. Felipe reported all of these events to his supervisors. In response, WUSD had 2 a representative sit in on a meeting between Felipe and another teacher, who had already 3 sent him numerous aggressive and insubordinate emails. The WUSD representative simply 4 stated that the two should do their best to avoid each other. No further action was taken to 5 correct the harassment being directed at Felipe. 6 17. As the harassment and bullying Felipe was experiencing saw no 7 improvement, Felipe was forced to agree to take on the position of Vice Principal at West 8 Fresno Middle School. 9 18. WUSD indicated to Felipe that this change in his position 10 would not affect his career development or pathway, and that the decision was being made 11 with his mental health in mind. Felipe was instructed to email the teachers and staff of 12 West Fresno Elementary that he would not be returning for the following school year. 13 19. However, Felipe quickly realized that the new position was meant to 14 demoralizing to him. West Fresno Middle School had not had a Vice Principal position for 15 several years, and it became clear to Felipe that WUSD had not actually prepared a Vice 16 Principal position for him prior to his transition. 17 20. Felipe was forced to take on menial tasks, such as handing out tablets and 18 collecting papers, and had no real role in leadership or administrative authority. 19 21. As a result of this switch in positions, Felipe was no longer eligible to receive 20 the yearly raise that WUSD promised to its principals, causing Felipe to miss out on 21 significant future earning potential. 22 22. Also as a result of having to take a Vice Principal Position, Felipe will no 23 longer be able to promote to his desired position of superintendent within his originally 24 predicted timeline. This action by WUSD has essentially halted Felipe’s potential for 25 growth in his field. 26 23. At all relevant times, Felipe was unjustly disciplined and then demoted for 27 complaining about preferential treatment for non-Hispanic staff and the lack of response to 28 teacher and student bullying of Hispanic students. FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 4 1 24. The above-described demeaning treatment was directed at Felipe because he is 2 Hispanic. 3 25. Due to the above-described unlawful harassment and disparate treatment, and due 4 to WUSD’s refusal to prevent the same, Felipe was forced to resign and accept lower-paying 5 employment elsewhere. 6 FIRST CAUSE OF ACTION 7 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 8 FOR DISPARATE TREATMENT BASED ON RACE, COLOR, NATIONAL ORIGIN, 9 AND/OR ANCESTRY 10 (Government Code section 12940, subdivision (a)) 11 26. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 12 through 25 as if fully stated herein. 13 27. Government Code section 12940, subdivision (a), provides: “It is an unlawful 14 employment practice… [f]or an employer, because of the race… color, national origin, ancestry, 15 physical disability, mental disability, [or] medical condition… of any person… to discharge the 16 person from employment… or to discriminate against the person in compensation or in terms, 17 conditions, or privileges of employment.” 18 28. At all relevant times, WUSD was an employer and Felipe was an employee of 19 WUSD when WUSD discriminated against Felipe in compensation and in terms, conditions, and 20 privileges of employment. 21 29. Felipe exhibited excellent performance during his time as Principal of West 22 Fresno Elementary School and was not the subject of any disciplinary action prior to his 23 demotion to Vice Principal of West Fresno Middle School. 24 30. Felipe’s protected status as Hispanic was a substantial motivating reason for 25 Defendants’ adverse employment actions against Felipe. 26 31. As a result of the foregoing, Felipe has suffered and continues to suffer, damages, 27 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment 28 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 5 1 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional 2 limits of this Court. 3 SECOND CAUSE OF ACTION 4 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 5 FOR HOSTILE WORK ENVIRONMENT HARASSMENT DIRECTED AT PLAINTIFF 6 BASED ON RACE, COLOR, NATIONAL ORIGIN, AND/OR ANCESTRY 7 (Government Code section 12940, subdivision (j)) 8 32. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 9 through 31 as if fully stated herein. 10 33. Government Code section 12940, subdivision (j) provides: “It is an unlawful 11 employment practice… [f]or an employer… or any other person, because of race… color, 12 national origin, ancestry, physical disability, mental disability, [or] medical condition… to harass 13 an employee… or a person providing services pursuant to a contract.” 14 34. At all relevant times, WUSD was an employer and Felipe was an employee of 15 WUSD when WUSD subjected Felipe to harassing conduct because of Felipe’s protected status 16 as Hispanic. 17 35. The harassing conduct was severe and pervasive. 18 36. Felipe considered the work environment to be hostile, intimidating, offensive, 19 oppressive, and abusive; and, a reasonable person in Felipe’s circumstances would have 20 considered the work environment to be hostile, intimidating, offensive, oppressive, and abusive. 21 37. As a result of the foregoing, Felipe has suffered and continues to suffer, damages, 22 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment 23 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been 24 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional 25 limits of this Court. 26 // 27 // 28 // FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 6 1 THIRD CAUSE OF ACTION 2 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 3 FOR RETALIATION 4 (Government Code section 12940, subdivision (h)) 5 38. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 6 through 37 as if fully stated herein. 7 39. Government Code section 12940, subdivision (h) provides: “It is an unlawful 8 employment practice… [f]or any employer, labor organization, employment agency, or person to 9 discharge, expel, or otherwise discriminate against any person because the person has opposed 10 any practices forbidden under this part…” 11 40. Felipe engaged in protected activity when he complaining about preferential 12 treatment for non-Hispanic staff and the lack of response to teacher and student bullying of 13 Hispanic students. 14 41. Felipe’s complaints were substantial motivating reasons for Defendants’ adverse 15 employment actions against Felipe, when they demoted him to Vice Principal, rather than 16 address the issues in Felipe’s complaints. 17 42. As a result of the foregoing, Felipe has suffered and continues to suffer, damages, 18 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment 19 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been 20 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional 21 limits of this Court. 22 FOURTH CAUSE OF ACTION 23 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 24 FOR FAILURE TO PREVENT HARASSMENT, DISCRIMINATION, AND 25 RETALIATION 26 (Government Code section 12940, subdivision (k)) 27 43. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 28 through 42 as if fully stated herein. FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 7 1 44. Government Code section 12940, subdivision (k), provides that it is an unlawful 2 employment practice for “an employer… to fail to take all reasonable steps to prevent 3 discrimination and harassment from occurring.” 4 45. At all relevant times, WUSD was an employer and Felipe was an employee of 5 WUSD when WUSD subjected Felipe and other Hispanic employees to harassment, 6 discrimination, and retaliation as described above. 7 46. WUSD failed to take all reasonable steps to prevent the harassment, 8 discrimination, and retaliation. 9 47. As a result of the foregoing, Felipe has suffered and continues to suffer, damages, 10 in the form of lost wages and other employment benefits and mental suffering, loss of enjoyment 11 of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Felipe has been 12 damaged by the foregoing conduct in an amount subject to proof and within the jurisdictional 13 limits of this Court. 14 FIFTH CAUSE OF ACTION 15 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 16 FOR RETALIATION AGAINST WHISTLEBLOWER RE LEGAL COMPLIANCE 17 (Labor Code section 1102.5) 18 48. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 19 through 47 as if fully stated herein. 20 49. At all relevant times, Felipe was an employee of WUSD. 21 50. During his employment with WUSD, Felipe disclosed to persons with authority 22 over plaintiff and persons with authority to investigate, discover, or correct legal violations and 23 noncompliance in connection with preferential treatment for non-Hispanic staff and the lack of 24 response to teacher and student bullying of Hispanic students. 25 51. Felipe had reasonable cause to believe that the information disclosed violations of 26 federal, state, and local statutes, rules, and regulations. 27 52. At all relevant times, WUSD was acting as an employer and Felipe as an 28 employee, under the definitions set forth in Government Code Section 12926(d). Felipe FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 8 1 further initiated his complaints to WUSD as an employee, rather than a member of the 2 general public. Therefore, WUSD and its actions are under the supervision and scrutiny of 3 the Department of Fair Employment and Housing, and Felipe is not required to present a 4 claim under the Government Claims Act. Felipe has exhausted his administrative remedies 5 by filing a DFEH complaint and obtaining his “Right to Sue” letter. 6 53. The defendants engaged in the above-described adverse employment actions 7 against Felipe, when they demoted him to Vice Principal, rather than address the issues in 8 Felipe’s complaints. 9 54. As a result of the foregoing, Plaintiffs have suffered and continue to suffer, 10 damages, in the form of lost wages and other employment benefits and mental suffering, loss of 11 enjoyment of life, inconvenience, grief, anxiety, humiliation, and emotional distress. Plaintiffs 12 have been damaged by the foregoing conduct in an amount subject to proof and within the 13 jurisdictional limits of this Court. 14 SIXTH CAUSE OF ACTION 15 BY PLAINTIFF AGAINST DEFENDANT AND DOES 1 THROUGH 10 16 FOR DECLARATORY RELIEF AND REINSTATEMENT 17 55. Plaintiff re-alleges and incorporates by reference the allegations of paragraphs 1 18 through 54 as if fully stated herein. 19 56. An actual controversy has arisen between Felipe and WUSD on the following 20 matters: 21 a. Whether WUSD violated the provisions of FEHA preventing discrimination 22 based on ethnicity when it terminated Felipe’s employment as alleged herein; 23 b. Whether WUSD violated the provisions of FEHA preventing ethnicity-based 24 harassment directed at Felipe when it took adverse employment actions against 25 Felipe as alleged herein; 26 c. Whether WUSD violated the provisions of FEHA preventing retaliation for 27 opposing FEHA violations as alleged herein when it took adverse employment 28 actions against Felipe as alleged herein; FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 9 1 d. Whether WUSD violated the provisions of FEHA requiring employers to take all 2 reasonable steps to prevent discrimination, harassment, and retaliation as alleged 3 herein; 4 57. Felipe seeks a declaration with respect to his legal rights and WUSD’s legal 5 duties in the above-described controversy, pursuant to Code of Civil Procedure section 1060. 6 58. Felipe seeks entry of a declaratory judgment against WUSD and in Plaintiff’s 7 favor, seeking to reaffirm Plaintiff’s equal standing among his coworkers and the community, 8 and to condemn discriminatory employment policies or practices. 9 59. Felipe also seeks an order requiring full reinstatement to his position, and any 10 applicable civil penalties that may be in effect at the time of trial. 11 PRAYER FOR RELIEF 12 WHEREFORE, PLAINTIFF prays for a judgment as follows: 13 1. For special damages according to proof; 14 2. For general damages according to proof; 15 3. Any applicable civil penalties under FEHA, the Labor Code, and the Civil Code; 16 4. For interest as state law allows; 17 5. For Plaintiffs’ attorneys’ fees and costs as state law allows; 18 6. For such other and further relief as the court may deem proper. 19 20 21 Dated: July 5, 2022 LAW OFFICE OF KEVIN G. LITTLE 22 23 /s/ Kevin G. Little Kevin G. Little 24 Attorneys for Plaintiff Felipe Mercado 25 26 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 10 1 PROOF OF SERVICE 2 My business address is 1225 E. Divisadero Street, Fresno, CA 93721. I am employed in Fresno County, California. I am over the age of 18 years and am not a party to this case. 3 On the date indicated below, I served the foregoing document(s) described as FIRST 4 AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF to all interested parties in this action as indicated in the attached service list and in the manner as 5 described below: 6 (BY MAIL) I am readily familiar with the business’ practice for collection and processing 7 of correspondence for mailing, and that correspondence, with postage thereon fully prepaid, will be deposited with the United States Postal Service on the date noted below in the ordinary 8 course of business at Fresno, California. 9 (BY PERSONAL SERVICE) I caused delivery of such envelope(s) by hand, to the office(s) of the address(es) on the proceeding page. 10 BY ELECTRONIC MAIL) I caused such documents to be scanned into PDF format and 11 sent via electronic mail to the electronic mail address(es) of the address(es) designated on the proceeding page. 12 (BY FACSIMILE) I caused the above-referenced document to be delivered by facsimile to 13 the facsimile number(s) of the address(es) on the proceeding page. 14 (BY OVERNIGHT COURIER) I caused the above-referenced envelope(s) to be delivered to an overnight courier service for delivery to the address(es) on the proceeding page. 15 16 EXECUTED ON July 5, 2022 at Fresno, California. 17 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 18 (FEDERAL) I declare that I am employed in this office of a member of the bar of this court 19 at whose direction this service was made. 20 21 /s/ Tyler Durnell 22 TYLER DURNELL 23 24 25 26 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 11 1 PROOF OF SERVICE – SERVICE LIST 2 Laura A. Wolfe, Esq. MCCORMICK, BARSTOW, SHEPPARD, 3 WAYTE & CARRUTH, LLP 7647 North Fresno Street 4 Fresno, California 93720 E-Mails: Laura.Wolfe@mccormickbarstow.com 5 Dora.Dong@mccormickbarstow.com Michelle.Gagnon@mccormickbarstow.com 6 Attorney for defendant Washington Unified School District 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF 12