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Jihad M. Smaili, Esq. [262219]
1
Stephen D. Counts, Esq. [231348]
2 SMAILI & ASSOCIATES, PC
2114 North Broadway, Suite 200
3 Santa Ana, California 92706
714-547-4700
4
714-547-4710 (facsimile)
5 jihad@smaililaw.com
stephen@smaililaw.com
6
7 Attorneys for Plaintiff
ALFREDO MANZO
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF LOS ANGELES
11
ALFREDO MANZO, an individual; ) Case No.:
12 ) Assigned for all purposes to the
Smaili & Associates, P.C.
13 Plaintiff, )
)
14 v. ) COMPLAINT:
) 1. Discrimination in Violation of Gov. Code
15 SONESTA REDONDO BEACH LLC, a ) §12940 et seq.
2. Failure to Accommodate in Violation of Gov.
16 corporate entity form unknown; and ) Code § 12940(m)
DOES 1-50, inclusive, ) 3. Failure to Engage in Interactive Process in
17 ) Violation of Gov. Code § 12940(n)
Defendants. ) 4. Age Discrimination in Violation of Gov.
18 Code §12940 et seq.
)
5. Failure to Prevent Discrimination in
19 ) Violation of Gov. Code § 12940(k)
) 6. Retaliation in Violation of Gov. Code
20 ) §12940(h)
) 7. Violation of Business & Professions Code
21 § 17200 et seq.
)
22 ) DEMAND FOR JURY TRIAL
) UNLIMITED JURISDICTION
23 )
24 )
)
25 )
)
26 )
27 )
)
28 )
COMPLAINT
1
1 Plaintiff Alfredo Manzo (hereinafter “Plaintiff”) alleges as follows:
2 THE PARTIES
3 1. At all times mentioned herein, and at the time the causes of action arose,
4 Plaintiff was and is an individual.
5 2. Plaintiff is informed and believes and thereon alleges that at all times
6 mentioned herein, Defendant Sonesta Redondo Beach LLC, (hereinafter “Sonesta”), is a
7 corporate entity, form unknown, regularly conducting business in the State of California,
8 and specifically, in the County of Los Angeles. Plaintiff is further informed and believes
9 and thereon alleges that Sonesta was transacting business in the County of Los Angeles,
10 State of California, at the time claims of Plaintiff arose. At all times relevant, Sonesta
11 was an employer within the meaning of Government Code §12926(d) and as such was
12 barred from, inter alia, harassing, discriminating or retaliating against Plaintiff in
Smaili & Associates, P.C.
13 personnel, scheduling, employment, promotion, advancement, retention, hiring,
14 terminating and other decisions relating to Plaintiff’s employment on the basis of age,
15 race, physical disability or medical condition, participation in protected activity, and
16 other immutable characteristics.
17 3. The true names and capacities, whether individual, corporate, associate, or
18 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff,
19 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to
20 amend this complaint to show their true names and capacities when ascertained. Plaintiff
21 is informed and believes and thereon alleges that each Defendant named herein as a DOE
22 was responsible in some manner for the occurrences and damages alleged herein.
23 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers
24 to Sonesta, and also refers to all Defendants sued under fictitious names, jointly and
25 severally.
26 5. Plaintiff is informed and believes and thereon alleges that Defendants, and
27 each of them, are now and/or at all times mentioned in this Complaint were in some
28 manner legally responsible for the events, happenings and circumstances alleged in this
COMPLAINT
2
1 Complaint. Plaintiff is further informed and believes and thereon alleges that
2 Defendants, and each of them, proximately subjected Plaintiff to the unlawful practices,
3 wrongs, complaints, injuries and/or damages alleged in this Complaint. Likewise,
4 Defendants, and each of them are now and/or at all times mentioned in this Complaint
5 were the agents, servants and/or employees of some or all other Defendants, and vice-
6 versa, and in doing the things alleged in this Complaint, Defendants are now and/or at all
7 times mentioned in this Complaint were acting within the course and scope of that
8 agency, servitude and/or employment.
9 6. Plaintiff is informed and believes and thereon alleges that Defendants, and
10 each of them, are now and/or at all times mentioned in this Complaint were members of
11 and/or engaged in a joint venture, partnership and common enterprise, and were acting
12 within the course and scope of, and in pursuance of said joint venture, partnership and
Smaili & Associates, P.C.
13 common enterprise.
14 7. Plaintiff is informed and believes and thereon alleges that Defendants, and
15 each of them, at all times mentioned in this Complaint, concurred and contributed to the
16 various acts and omissions of each and every one of the other Defendants in proximately
17 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is
18 further informed and believes and thereon alleges that Defendants, and each of them, at
19 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified
20 each and every one of the acts and/or omissions alleged in this Complaint. Likewise,
21 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted
22 the acts and omissions of each and every one of the other Defendants thereby proximately
23 causing the damages alleged in this Complaint.
24 8. Plaintiff is informed and believes and thereon alleges that at all actions
25 alleged herein committed by Defendants were committed by managing agents of
26 Defendants, or, such conduct was known by and/or ratified by managing agents of
27 Defendants.
28
COMPLAINT
3
1 VENUE AND JURISDICTION
2 9. Venue is proper in this county and this Court has jurisdiction over this
3 matter because Defendants operate out of Redondo Beach, California, and, all of the
4 claims and causes of action alleged herein occurred and accrued in the County of Los
5 Angeles, State of California.
6 FACTUAL BACKGROUND
7 10. On or about November 1995, Defendant hired Plaintiff as a banquet
8 bartender and waiter. Plaintiff remains employed by Defendant currently. His job duties
9 include, but are not limited to, catering to clients during events.
10 11. Plaintiff has provided over 28 years of competent and dedicated service to
11 Defendant. Nevertheless, he is inevitably aging. At 67 years of age, Plaintiff works hard
12 and earns an hourly wage of $19.50.
Smaili & Associates, P.C.
13 12. Plaintiff, a 67-year-old man, endures a hostile work environment where he
14 suffers harassment and discrimination at the hands of Defendant and its agents on the
15 basis of his age.
16 13. Defendant’s agent, Joe Drewry (“Joe”), told Plaintiff that he is too old.
17 When Plaintiff complained to his union representative, Joe made the same comment to
18 the union rep, saying that “Plaintiff is old and his mind is not well.”
19 14. In or around 2020, Plaintiff’s position was reduced from full time to part
20 time and his hours were given to a younger employee.
21 15. When Plaintiff complained about this to his manager, his manager replied,
22 “Why don’t you work somewhere else if you don’t like how it works here?”
23 16. Additionally, Plaintiff injured his lower back while performing tasks within
24 the course and scope of his employment with Defendant.
25 17. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code
26 §12926 because Plaintiff’s injury limited Plaintiff from performing major life activities,
27 including, without limitation, working.
28
COMPLAINT
4
1 18. Although Defendant knew or should have known about Plaintiff’s work-
2 related disability, Defendant failed to provide workers’ compensation paperwork, failed
3 to engage in a good faith interactive process, and failed to provide an accommodation.
4 19. Additionally, Plaintiff’s coworkers insult and belittle him. Plaintiff has
5 reported this, in addition to the age and disability discrimination, to HR but nothing has
6 been done and no accommodation or good faith interactive process has been provided.
7 20. In retaliation for Plaintiff’s complaints to HR, Joe further harassed Plaintiff
8 on multiple occasions.
9 21. Plaintiff suffered from harassment, discrimination, and retaliation, on the
10 basis of his disability, age, requesting accommodation, and engagement in protected
11 activity. Further, Defendant utterly failed to provide workers’ compensation paperwork,
12 failed to engage in a good faith interactive process, and failed to offer any reasonable
Smaili & Associates, P.C.
13 accommodation.
14 22. Before filing this lawsuit, Plaintiff exhausted his administrative remedies
15 by timely filing a complaint with the California Civil Rights Department (CCRD) and
16 receiving a right-to-sue notice, dated August 17, 2023.
17 FIRST CAUSE OF ACTION
18 DISCRIMINATION IN VIOLATION OF
19 CALIFORNIA GOVERNMENT CODE § 12940 et seq.
20 (Against All Defendants)
21 23. Plaintiff re-alleges and incorporates by reference all of the allegations
22 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
23 24. California law, and particularly the Fair Employment and Housing Act
24 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against
25 persons with a physical condition or disability, which is broadly defined therein, and
26 which includes even the perception that a person has a medical or mental condition
27 and/or physical condition or disability. FEHA further prohibits discrimination based
28 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and
COMPLAINT
5
1 other immutable characteristics.
2 25. Plaintiff has a disability as alleged above.
3 26. Defendant was aware of Plaintiff’s disability, as herein alleged, because
4 Plaintiff specifically reported said disability directly to Defendant via Defendant’s
5 supervisors and managing agents.
6 27. At all times herein alleged, Plaintiff was qualified for the position of
7 employment that he held with Defendant and was able to perform the essential functions
8 of that job.
9 28. Plaintiff is informed and believes and thereon alleges that as a direct and
10 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an
11 interactive process, refused to communicate with Plaintiff, refused to accommodate
12 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn
Smaili & Associates, P.C.
13 a living, and demoted Plaintiff.
14 29. Defendant’s discriminatory action against Plaintiff, as alleged above,
15 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in
16 violation of FEHA, and particularly Gov’t Code §12940(a).
17 30. As a direct, foreseeable, and proximate result of Defendant’s discriminatory
18 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
19 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
20 amounts of money Plaintiff would have received but for Defendants’ discriminatory
21 conduct, all in an amount subject to proof at the time of trial, but believed to be no less
22 than three hundred thousand dollars ($300,000) and no more than three million dollars
23 ($3,000,000).
24 31. As a direct, foreseeable, and proximate result of the wrongful conduct of
25 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
26 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
27 amount subject to proof at trial.
28 32. Plaintiff is informed and believes and thereon alleges that the above-alleged
COMPLAINT
6
1 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
2 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
3 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
4 enabled agents to believe that their conduct was appropriate.
5 33. Defendant, and each of them, failed to offer counseling or comfort to
6 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
7 workplace.
8 34. Plaintiff is informed and believes and thereon alleges that Defendant has a
9 systemic and wide-spread policy of discriminating against and retaliating against
10 employees with disabilities. By failing to stop the discrimination, harassment and
11 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
12 directly caused a vicious cycle of wrongful conduct with impunity.
Smaili & Associates, P.C.
13 35. Plaintiff is informed and believes and thereon alleges that his disability was
14 a motivating factor in the decision of Defendant to discriminate against him and demote
15 him.
16 36. The outrageous conduct of Defendant, and each of them, as alleged herein,
17 was done with oppression and malice by Defendant and its supervisors and managers,
18 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
19 individuals who were managing agents of Defendant.
20 37. The conduct of Defendant as alleged hereinabove was done with malice,
21 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
22 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
23 38. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
24 amount according to proof at the time of trial which fees and expenses are recoverable
25 pursuant to Gov’t Code §12900 et seq.
26
27
28
COMPLAINT
7
1 SECOND CAUSE OF ACTION
2 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF
3 CALIFORNIA GOVERNMENT CODE § 12940(m)
4 (Against All Defendants)
5 39. Plaintiff re-alleges and incorporates by reference all of the allegations
6 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
7 40. Plaintiff has a disability as alleged above.
8 41. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
9 42. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed
10 and refused to engage in an interactive process with Plaintiff, and, failed to address
11 Plaintiff’s needs in light of his disabilities.
12 43. At all times herein alleged, Plaintiff was qualified for the position of
Smaili & Associates, P.C.
13 employment that he held with Defendant and was able to perform the essential functions
14 of that job if such reasonable accommodation had been made by Defendant. At no time
15 would the performance of the functions of the employment position, with a reasonable
16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
17 person’s health or safety, nor would it have created an undue hardship to the operation of
18 Defendant’s business.
19 44. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes
20 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code
21 §12940.
22 45. As a direct, foreseeable, and proximate result of Defendant’s wrongful
23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
26 in an amount of at least three hundred thousand dollars ($300,000), and no more than
27 three million dollars ($3,000,000), all subject to proof at the time of trial.
28 46. As a direct, foreseeable, and proximate result of the wrongful conduct of
COMPLAINT
8
1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
2 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
3 amount subject to proof at trial.
4 47. Plaintiff is informed and believes and thereon alleges that the above-alleged
5 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
8 enabled agents to believe that their conduct was appropriate.
9 48. Defendant, and each of them, failed to offer counseling or comfort to
10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
11 workplace.
12 49. Plaintiff is informed and believes and thereon alleges that Defendant has a
Smaili & Associates, P.C.
13 systemic and wide-spread policy of discriminating against and retaliating against
14 employees with disabilities. By failing to stop the discrimination, harassment and
15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
16 directly caused a vicious cycle of wrongful conduct with impunity.
17 50. Plaintiff is informed and believes and thereon alleges that Defendant’s
18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
19 Defendant to discriminate against him and demote him.
20 51. The outrageous conduct of Defendant, and each of them, as alleged herein,
21 was done with oppression and malice by Defendant and its supervisors and managers,
22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
23 individuals who were managing agents of Defendant.
24 52. The conduct of Defendant as alleged hereinabove was done with malice,
25 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law.
26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
27 53. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
28 amount according to proof at the time of trial which fees and expenses are recoverable
COMPLAINT
9
1 pursuant to Gov’t Code §12900 et seq.
2 THIRD CAUSE OF ACTION
3 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN
4 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n)
5 (Against All Defendants)
6 54. Plaintiff re-alleges and incorporates by reference all of the allegations
7 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
8 55. Plaintiff has a disability as alleged above.
9 56. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
10 57. Defendant failed and refused to engage Plaintiff in an interactive process
11 designed to unite Plaintiff with his job.
12 58. At all times herein alleged, Plaintiff was qualified for the position of
Smaili & Associates, P.C.
13 employment that he held with Defendant and was able to perform the essential functions
14 of that job if such reasonable accommodation had been made by Defendant. At no time
15 would the performance of the functions of the employment position, with a reasonable
16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
17 person’s health or safety, nor would it have created an undue hardship to the operation of
18 Defendant’s business.
19 59. Defendant’s failure to engage with Plaintiff in an interactive process, as
20 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and
21 particularly Gov’t Code §12940.
22 60. As a direct, foreseeable, and proximate result of Defendant’s wrongful
23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
26 all in an amount no less than three hundred thousand dollars ($300,000), and no more
27 than three million dollars ($3,000,000), subject to proof at the time of trial.
28 61. As a direct, foreseeable, and proximate result of the wrongful conduct of
COMPLAINT
10
1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
2 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
3 amount subject to proof at trial.
4 62. Plaintiff is informed and believes and thereon alleges that the above-alleged
5 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
8 enabled agents to believe that their conduct was appropriate.
9 63. Defendant, and each of them, failed to offer counseling or comfort to
10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
11 workplace.
12 64. Plaintiff is informed and believes and thereon alleges that Defendant has a
Smaili & Associates, P.C.
13 systemic and wide-spread policy of discriminating against and retaliating against
14 employees with disabilities. By failing to stop the discrimination, harassment and
15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
16 directly caused a vicious cycle of wrongful conduct with impunity.
17 65. Plaintiff is informed and believes and thereon alleges that Defendant’s
18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
19 Defendant to discriminate against him and ultimately demote him.
20 66. The outrageous conduct of Defendant, and each of them, as alleged herein,
21 was done with oppression and malice by Defendant and its supervisors and managers,
22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
23 individuals who were managing agents of Defendant.
24 67. The conduct of Defendant as alleged hereinabove was done with malice,
25 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
27 68. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
28 amount according to proof at the time of trial which fees and expenses are recoverable
COMPLAINT
11
1 pursuant to Gov’t Code §12900 et seq.
2 FOURTH CAUSE OF ACTION
3 AGE DISCRIMINATION
4 IN VIOLATION OF GOV. CODE § 12940 et seq.
5 (Against all Defendants)
6 69. Plaintiff re-alleges and incorporates by reference all of the allegations
7 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
8 70. At all times herein mentioned, Gov’t Code §§12940(a) and 12941 were in
9 full force and effect and were binding on Defendant. These sections require Defendant to
10 refrain from discriminating against any employee over the age of 40 because of their age.
11 71. At the time of Plaintiff’s demotion and at all times that Defendant was
12 discriminating against Plaintiff as alleged herein, Plaintiff was over the age of 40.
Smaili & Associates, P.C.
13 Plaintiff is informed and believes and thereon alleges that after years of wholly
14 satisfactory, competent and diligent performance to the profit of Defendants, that
15 Plaintiff’s age, being over 40, was a motivating factor in Defendants’ decision to demote
16 Plaintiff. Said conduct by Defendants was intentional and willful.
17 72. Plaintiff is informed and believes and thereon alleges that Plaintiff was
18 replaced with an employee below the age of 40.
19 73. Defendant was aware of Plaintiff’s age, as herein alleged, because Plaintiff
20 maintained Plaintiff’s personnel file which specifically contained the date of Plaintiff’s
21 birth and his corresponding age.
22 74. At all times herein alleged, Plaintiff was qualified for the position of
23 employment that he held with Defendant and was able to perform the essential functions
24 of that job.
25 75. Plaintiff is informed and believes and thereon alleges that as a direct and
26 proximate result of Plaintiff’s age, Defendant decided to discriminate against him, and in
27 fact, discriminated against Plaintiff.
28 76. Defendants’ discriminatory action against Plaintiff, as alleged above,
COMPLAINT
12
1 constitutes unlawful discrimination in employment on account of Plaintiff’s age in
2 violation of FEHA, and particularly Gov’t Code §12940.
3 77. As a direct, foreseeable, and proximate result of Defendants’ discriminatory
4 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
5 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
6 amounts of money Plaintiff would have received but for Defendant’s discriminatory
7 conduct, all in an amount subject to proof at the time of trial.
8 78. As a direct, foreseeable, and proximate result of the wrongful conduct of
9 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
10 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
11 amount subject to proof at trial.
12 79. Plaintiff is informed and believes and thereon alleges that the above-alleged
Smaili & Associates, P.C.
13 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
14 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
15 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
16 enabled agents to believe that their conduct was appropriate.
17 80. Defendants, and each of them, failed to offer counseling or comfort to
18 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
19 workplace.
20 81. Plaintiff is informed and believes and thereon alleges that Defendant has a
21 systemic and wide-spread policy of discriminating against and retaliating against
22 employees over the age of 40. By failing to stop the discrimination, harassment and
23 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
24 directly caused a vicious cycle of wrongful conduct with impunity.
25 82. The outrageous conduct of Defendant, and each of them was done with
26 oppression and malice by Defendant and its supervisors and managers, along with
27 conscious disregard of Plaintiff’s rights, and were ratified by those other individuals who
28 were managing agents of Defendant.
COMPLAINT
13
1 83. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
2 amount according to proof at the time of trial which fees and expenses are recoverable
3 pursuant to Gov’t Code §12900 et seq.
4 FIFTH CAUSE OF ACTION
5 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION
6 OF CALIFORNIA GOVERNMENT CODE § 12940(k)
7 (Against All Defendants)
8 84. Plaintiff re-alleges and incorporates by reference all of the allegations
9 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
10 85. During the course of employment, Defendant, and each of them, failed to
11 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis
12 of his disability, age, and engagement in protected activity in violation of Government
Smaili & Associates, P.C.
13 Code §12940(k).
14 86. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered,
15 and continues to suffer, substantial losses in earnings and other benefits in an amount
16 according to proof at the time trial, including special and general damages.
17 87. As a direct, foreseeable, and proximate result of the wrongful conduct of
18 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish,
19 humiliation, substantial losses in salary, bonuses, job benefits, and other employment
20 benefits which he would have received all to his damage in a sum within the jurisdiction
21 of the Court to be ascertained according to proof.
22 88. Plaintiff is informed and believes and thereon alleges that the outrageous
23 conduct of Defendant, and each of them, as alleged herein, was done with oppression and
24 malice by Plaintiff’s supervisors and managers, along with conscious disregard of
25 Plaintiff’s rights, and were ratified by those other individuals who were managing agents
26 of Defendant.
27 89. As a proximate result of the wrongful conduct of Defendant, and each of
28 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and
COMPLAINT
14
1 mental and physical pain and anguish according to proof at the time of trial.
2 90. These unlawful acts were further encouraged by Defendant and done with a
3 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of
4 injuring Plaintiff. The conduct of Defendant alleged hereinabove was done with malice,
5 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
6 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
7 91. Plaintiff has also incurred and continues to incur attorneys’ fees and legal
8 expenses in an amount according to proof at the time of trial.
9 SIXTH CAUSE OF ACTION
10 RETALIATION IN VIOLATION OF
11 CALIFORNIA GOVERNMENT CODE §12940(h)
12 (Against All Defendants)
Smaili & Associates, P.C.
13 92. Plaintiff re-alleges and incorporates by reference all of the allegations
14 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
15 93. At all times herein mentioned, FEHA, Government Code §12940(h), was in
16 full force and effect and was binding on Defendant. This statute requires Defendant to
17 refrain from retaliating against Plaintiff.
18 94. Plaintiff is informed and believes and thereon alleges that as a consequence
19 of requesting disability accommodations and medical treatment, lodging complaints
20 about harassing and discriminatory acts being committed against Plaintiff, coupled with
21 Plaintiff’s disability and age, Defendant took retaliatory action against Plaintiff by failing
22 to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, denying
23 Plaintiff advancement and promotion, and demoting Plaintiff.
24 95. Defendant unlawfully retaliated against Plaintiff after he engaged in
25 protected activity including requesting disability accommodations, medical treatment,
26 and lodging workplace complaints related to harassment and discrimination that he was
27 facing, and other complaints of a hostile and unsafe working environment.
28 96. As a proximate result of Defendant’s willful, knowing, and intentional
COMPLAINT
15
1 conduct against Plaintiff, he has sustained and continues to sustain substantial losses in
2 Plaintiff’s earnings and other employment benefits and continues to suffer humiliation,
3 emotional distress, and mental and physical pain and anguish, and sleep dysfunction, all
4 to Plaintiff damage in a sum according to proof.
5 97. These unlawful acts were further encouraged by Defendant and done with a
6 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of
7 injuring Plaintiff. In light of Defendant’s w
Preview
Jihad M. Smaili, Esq. [262219] 1 Stephen D. Counts, Esq. [231348] 2 SMAILI & ASSOCIATES, PC 2114 North Broadway, Suite 200 3 Santa Ana, California 92706 714-547-4700 4 714-547-4710 (facsimile) 5 jihad@smaililaw.com stephen@smaililaw.com 6 7 Attorneys for Plaintiff ALFREDO MANZO 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11 ALFREDO MANZO, an individual; ) Case No.: 12 ) Assigned for all purposes to the Smaili & Associates, P.C. 13 Plaintiff, ) ) 14 v. ) COMPLAINT: ) 1. Discrimination in Violation of Gov. Code 15 SONESTA REDONDO BEACH LLC, a ) §12940 et seq. 2. Failure to Accommodate in Violation of Gov. 16 corporate entity form unknown; and ) Code § 12940(m) DOES 1-50, inclusive, ) 3. Failure to Engage in Interactive Process in 17 ) Violation of Gov. Code § 12940(n) Defendants. ) 4. Age Discrimination in Violation of Gov. 18 Code §12940 et seq. ) 5. Failure to Prevent Discrimination in 19 ) Violation of Gov. Code § 12940(k) ) 6. Retaliation in Violation of Gov. Code 20 ) §12940(h) ) 7. Violation of Business & Professions Code 21 § 17200 et seq. ) 22 ) DEMAND FOR JURY TRIAL ) UNLIMITED JURISDICTION 23 ) 24 ) ) 25 ) ) 26 ) 27 ) ) 28 ) COMPLAINT 1 1 Plaintiff Alfredo Manzo (hereinafter “Plaintiff”) alleges as follows: 2 THE PARTIES 3 1. At all times mentioned herein, and at the time the causes of action arose, 4 Plaintiff was and is an individual. 5 2. Plaintiff is informed and believes and thereon alleges that at all times 6 mentioned herein, Defendant Sonesta Redondo Beach LLC, (hereinafter “Sonesta”), is a 7 corporate entity, form unknown, regularly conducting business in the State of California, 8 and specifically, in the County of Los Angeles. Plaintiff is further informed and believes 9 and thereon alleges that Sonesta was transacting business in the County of Los Angeles, 10 State of California, at the time claims of Plaintiff arose. At all times relevant, Sonesta 11 was an employer within the meaning of Government Code §12926(d) and as such was 12 barred from, inter alia, harassing, discriminating or retaliating against Plaintiff in Smaili & Associates, P.C. 13 personnel, scheduling, employment, promotion, advancement, retention, hiring, 14 terminating and other decisions relating to Plaintiff’s employment on the basis of age, 15 race, physical disability or medical condition, participation in protected activity, and 16 other immutable characteristics. 17 3. The true names and capacities, whether individual, corporate, associate, or 18 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff, 19 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to 20 amend this complaint to show their true names and capacities when ascertained. Plaintiff 21 is informed and believes and thereon alleges that each Defendant named herein as a DOE 22 was responsible in some manner for the occurrences and damages alleged herein. 23 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers 24 to Sonesta, and also refers to all Defendants sued under fictitious names, jointly and 25 severally. 26 5. Plaintiff is informed and believes and thereon alleges that Defendants, and 27 each of them, are now and/or at all times mentioned in this Complaint were in some 28 manner legally responsible for the events, happenings and circumstances alleged in this COMPLAINT 2 1 Complaint. Plaintiff is further informed and believes and thereon alleges that 2 Defendants, and each of them, proximately subjected Plaintiff to the unlawful practices, 3 wrongs, complaints, injuries and/or damages alleged in this Complaint. Likewise, 4 Defendants, and each of them are now and/or at all times mentioned in this Complaint 5 were the agents, servants and/or employees of some or all other Defendants, and vice- 6 versa, and in doing the things alleged in this Complaint, Defendants are now and/or at all 7 times mentioned in this Complaint were acting within the course and scope of that 8 agency, servitude and/or employment. 9 6. Plaintiff is informed and believes and thereon alleges that Defendants, and 10 each of them, are now and/or at all times mentioned in this Complaint were members of 11 and/or engaged in a joint venture, partnership and common enterprise, and were acting 12 within the course and scope of, and in pursuance of said joint venture, partnership and Smaili & Associates, P.C. 13 common enterprise. 14 7. Plaintiff is informed and believes and thereon alleges that Defendants, and 15 each of them, at all times mentioned in this Complaint, concurred and contributed to the 16 various acts and omissions of each and every one of the other Defendants in proximately 17 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is 18 further informed and believes and thereon alleges that Defendants, and each of them, at 19 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified 20 each and every one of the acts and/or omissions alleged in this Complaint. Likewise, 21 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted 22 the acts and omissions of each and every one of the other Defendants thereby proximately 23 causing the damages alleged in this Complaint. 24 8. Plaintiff is informed and believes and thereon alleges that at all actions 25 alleged herein committed by Defendants were committed by managing agents of 26 Defendants, or, such conduct was known by and/or ratified by managing agents of 27 Defendants. 28 COMPLAINT 3 1 VENUE AND JURISDICTION 2 9. Venue is proper in this county and this Court has jurisdiction over this 3 matter because Defendants operate out of Redondo Beach, California, and, all of the 4 claims and causes of action alleged herein occurred and accrued in the County of Los 5 Angeles, State of California. 6 FACTUAL BACKGROUND 7 10. On or about November 1995, Defendant hired Plaintiff as a banquet 8 bartender and waiter. Plaintiff remains employed by Defendant currently. His job duties 9 include, but are not limited to, catering to clients during events. 10 11. Plaintiff has provided over 28 years of competent and dedicated service to 11 Defendant. Nevertheless, he is inevitably aging. At 67 years of age, Plaintiff works hard 12 and earns an hourly wage of $19.50. Smaili & Associates, P.C. 13 12. Plaintiff, a 67-year-old man, endures a hostile work environment where he 14 suffers harassment and discrimination at the hands of Defendant and its agents on the 15 basis of his age. 16 13. Defendant’s agent, Joe Drewry (“Joe”), told Plaintiff that he is too old. 17 When Plaintiff complained to his union representative, Joe made the same comment to 18 the union rep, saying that “Plaintiff is old and his mind is not well.” 19 14. In or around 2020, Plaintiff’s position was reduced from full time to part 20 time and his hours were given to a younger employee. 21 15. When Plaintiff complained about this to his manager, his manager replied, 22 “Why don’t you work somewhere else if you don’t like how it works here?” 23 16. Additionally, Plaintiff injured his lower back while performing tasks within 24 the course and scope of his employment with Defendant. 25 17. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code 26 §12926 because Plaintiff’s injury limited Plaintiff from performing major life activities, 27 including, without limitation, working. 28 COMPLAINT 4 1 18. Although Defendant knew or should have known about Plaintiff’s work- 2 related disability, Defendant failed to provide workers’ compensation paperwork, failed 3 to engage in a good faith interactive process, and failed to provide an accommodation. 4 19. Additionally, Plaintiff’s coworkers insult and belittle him. Plaintiff has 5 reported this, in addition to the age and disability discrimination, to HR but nothing has 6 been done and no accommodation or good faith interactive process has been provided. 7 20. In retaliation for Plaintiff’s complaints to HR, Joe further harassed Plaintiff 8 on multiple occasions. 9 21. Plaintiff suffered from harassment, discrimination, and retaliation, on the 10 basis of his disability, age, requesting accommodation, and engagement in protected 11 activity. Further, Defendant utterly failed to provide workers’ compensation paperwork, 12 failed to engage in a good faith interactive process, and failed to offer any reasonable Smaili & Associates, P.C. 13 accommodation. 14 22. Before filing this lawsuit, Plaintiff exhausted his administrative remedies 15 by timely filing a complaint with the California Civil Rights Department (CCRD) and 16 receiving a right-to-sue notice, dated August 17, 2023. 17 FIRST CAUSE OF ACTION 18 DISCRIMINATION IN VIOLATION OF 19 CALIFORNIA GOVERNMENT CODE § 12940 et seq. 20 (Against All Defendants) 21 23. Plaintiff re-alleges and incorporates by reference all of the allegations 22 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 23 24. California law, and particularly the Fair Employment and Housing Act 24 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against 25 persons with a physical condition or disability, which is broadly defined therein, and 26 which includes even the perception that a person has a medical or mental condition 27 and/or physical condition or disability. FEHA further prohibits discrimination based 28 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and COMPLAINT 5 1 other immutable characteristics. 2 25. Plaintiff has a disability as alleged above. 3 26. Defendant was aware of Plaintiff’s disability, as herein alleged, because 4 Plaintiff specifically reported said disability directly to Defendant via Defendant’s 5 supervisors and managing agents. 6 27. At all times herein alleged, Plaintiff was qualified for the position of 7 employment that he held with Defendant and was able to perform the essential functions 8 of that job. 9 28. Plaintiff is informed and believes and thereon alleges that as a direct and 10 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an 11 interactive process, refused to communicate with Plaintiff, refused to accommodate 12 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn Smaili & Associates, P.C. 13 a living, and demoted Plaintiff. 14 29. Defendant’s discriminatory action against Plaintiff, as alleged above, 15 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in 16 violation of FEHA, and particularly Gov’t Code §12940(a). 17 30. As a direct, foreseeable, and proximate result of Defendant’s discriminatory 18 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 19 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 20 amounts of money Plaintiff would have received but for Defendants’ discriminatory 21 conduct, all in an amount subject to proof at the time of trial, but believed to be no less 22 than three hundred thousand dollars ($300,000) and no more than three million dollars 23 ($3,000,000). 24 31. As a direct, foreseeable, and proximate result of the wrongful conduct of 25 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 26 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 27 amount subject to proof at trial. 28 32. Plaintiff is informed and believes and thereon alleges that the above-alleged COMPLAINT 6 1 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 2 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 3 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 4 enabled agents to believe that their conduct was appropriate. 5 33. Defendant, and each of them, failed to offer counseling or comfort to 6 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 7 workplace. 8 34. Plaintiff is informed and believes and thereon alleges that Defendant has a 9 systemic and wide-spread policy of discriminating against and retaliating against 10 employees with disabilities. By failing to stop the discrimination, harassment and 11 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 12 directly caused a vicious cycle of wrongful conduct with impunity. Smaili & Associates, P.C. 13 35. Plaintiff is informed and believes and thereon alleges that his disability was 14 a motivating factor in the decision of Defendant to discriminate against him and demote 15 him. 16 36. The outrageous conduct of Defendant, and each of them, as alleged herein, 17 was done with oppression and malice by Defendant and its supervisors and managers, 18 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 19 individuals who were managing agents of Defendant. 20 37. The conduct of Defendant as alleged hereinabove was done with malice, 21 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 22 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 23 38. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 24 amount according to proof at the time of trial which fees and expenses are recoverable 25 pursuant to Gov’t Code §12900 et seq. 26 27 28 COMPLAINT 7 1 SECOND CAUSE OF ACTION 2 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF 3 CALIFORNIA GOVERNMENT CODE § 12940(m) 4 (Against All Defendants) 5 39. Plaintiff re-alleges and incorporates by reference all of the allegations 6 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 7 40. Plaintiff has a disability as alleged above. 8 41. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 9 42. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed 10 and refused to engage in an interactive process with Plaintiff, and, failed to address 11 Plaintiff’s needs in light of his disabilities. 12 43. At all times herein alleged, Plaintiff was qualified for the position of Smaili & Associates, P.C. 13 employment that he held with Defendant and was able to perform the essential functions 14 of that job if such reasonable accommodation had been made by Defendant. At no time 15 would the performance of the functions of the employment position, with a reasonable 16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 17 person’s health or safety, nor would it have created an undue hardship to the operation of 18 Defendant’s business. 19 44. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes 20 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code 21 §12940. 22 45. As a direct, foreseeable, and proximate result of Defendant’s wrongful 23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 26 in an amount of at least three hundred thousand dollars ($300,000), and no more than 27 three million dollars ($3,000,000), all subject to proof at the time of trial. 28 46. As a direct, foreseeable, and proximate result of the wrongful conduct of COMPLAINT 8 1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 2 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 3 amount subject to proof at trial. 4 47. Plaintiff is informed and believes and thereon alleges that the above-alleged 5 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 8 enabled agents to believe that their conduct was appropriate. 9 48. Defendant, and each of them, failed to offer counseling or comfort to 10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 11 workplace. 12 49. Plaintiff is informed and believes and thereon alleges that Defendant has a Smaili & Associates, P.C. 13 systemic and wide-spread policy of discriminating against and retaliating against 14 employees with disabilities. By failing to stop the discrimination, harassment and 15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 16 directly caused a vicious cycle of wrongful conduct with impunity. 17 50. Plaintiff is informed and believes and thereon alleges that Defendant’s 18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of 19 Defendant to discriminate against him and demote him. 20 51. The outrageous conduct of Defendant, and each of them, as alleged herein, 21 was done with oppression and malice by Defendant and its supervisors and managers, 22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 23 individuals who were managing agents of Defendant. 24 52. The conduct of Defendant as alleged hereinabove was done with malice, 25 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law. 26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 27 53. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 28 amount according to proof at the time of trial which fees and expenses are recoverable COMPLAINT 9 1 pursuant to Gov’t Code §12900 et seq. 2 THIRD CAUSE OF ACTION 3 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN 4 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n) 5 (Against All Defendants) 6 54. Plaintiff re-alleges and incorporates by reference all of the allegations 7 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 8 55. Plaintiff has a disability as alleged above. 9 56. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 10 57. Defendant failed and refused to engage Plaintiff in an interactive process 11 designed to unite Plaintiff with his job. 12 58. At all times herein alleged, Plaintiff was qualified for the position of Smaili & Associates, P.C. 13 employment that he held with Defendant and was able to perform the essential functions 14 of that job if such reasonable accommodation had been made by Defendant. At no time 15 would the performance of the functions of the employment position, with a reasonable 16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 17 person’s health or safety, nor would it have created an undue hardship to the operation of 18 Defendant’s business. 19 59. Defendant’s failure to engage with Plaintiff in an interactive process, as 20 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and 21 particularly Gov’t Code §12940. 22 60. As a direct, foreseeable, and proximate result of Defendant’s wrongful 23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 26 all in an amount no less than three hundred thousand dollars ($300,000), and no more 27 than three million dollars ($3,000,000), subject to proof at the time of trial. 28 61. As a direct, foreseeable, and proximate result of the wrongful conduct of COMPLAINT 10 1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 2 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 3 amount subject to proof at trial. 4 62. Plaintiff is informed and believes and thereon alleges that the above-alleged 5 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 8 enabled agents to believe that their conduct was appropriate. 9 63. Defendant, and each of them, failed to offer counseling or comfort to 10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 11 workplace. 12 64. Plaintiff is informed and believes and thereon alleges that Defendant has a Smaili & Associates, P.C. 13 systemic and wide-spread policy of discriminating against and retaliating against 14 employees with disabilities. By failing to stop the discrimination, harassment and 15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 16 directly caused a vicious cycle of wrongful conduct with impunity. 17 65. Plaintiff is informed and believes and thereon alleges that Defendant’s 18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of 19 Defendant to discriminate against him and ultimately demote him. 20 66. The outrageous conduct of Defendant, and each of them, as alleged herein, 21 was done with oppression and malice by Defendant and its supervisors and managers, 22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 23 individuals who were managing agents of Defendant. 24 67. The conduct of Defendant as alleged hereinabove was done with malice, 25 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 27 68. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 28 amount according to proof at the time of trial which fees and expenses are recoverable COMPLAINT 11 1 pursuant to Gov’t Code §12900 et seq. 2 FOURTH CAUSE OF ACTION 3 AGE DISCRIMINATION 4 IN VIOLATION OF GOV. CODE § 12940 et seq. 5 (Against all Defendants) 6 69. Plaintiff re-alleges and incorporates by reference all of the allegations 7 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 8 70. At all times herein mentioned, Gov’t Code §§12940(a) and 12941 were in 9 full force and effect and were binding on Defendant. These sections require Defendant to 10 refrain from discriminating against any employee over the age of 40 because of their age. 11 71. At the time of Plaintiff’s demotion and at all times that Defendant was 12 discriminating against Plaintiff as alleged herein, Plaintiff was over the age of 40. Smaili & Associates, P.C. 13 Plaintiff is informed and believes and thereon alleges that after years of wholly 14 satisfactory, competent and diligent performance to the profit of Defendants, that 15 Plaintiff’s age, being over 40, was a motivating factor in Defendants’ decision to demote 16 Plaintiff. Said conduct by Defendants was intentional and willful. 17 72. Plaintiff is informed and believes and thereon alleges that Plaintiff was 18 replaced with an employee below the age of 40. 19 73. Defendant was aware of Plaintiff’s age, as herein alleged, because Plaintiff 20 maintained Plaintiff’s personnel file which specifically contained the date of Plaintiff’s 21 birth and his corresponding age. 22 74. At all times herein alleged, Plaintiff was qualified for the position of 23 employment that he held with Defendant and was able to perform the essential functions 24 of that job. 25 75. Plaintiff is informed and believes and thereon alleges that as a direct and 26 proximate result of Plaintiff’s age, Defendant decided to discriminate against him, and in 27 fact, discriminated against Plaintiff. 28 76. Defendants’ discriminatory action against Plaintiff, as alleged above, COMPLAINT 12 1 constitutes unlawful discrimination in employment on account of Plaintiff’s age in 2 violation of FEHA, and particularly Gov’t Code §12940. 3 77. As a direct, foreseeable, and proximate result of Defendants’ discriminatory 4 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 5 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 6 amounts of money Plaintiff would have received but for Defendant’s discriminatory 7 conduct, all in an amount subject to proof at the time of trial. 8 78. As a direct, foreseeable, and proximate result of the wrongful conduct of 9 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 10 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 11 amount subject to proof at trial. 12 79. Plaintiff is informed and believes and thereon alleges that the above-alleged Smaili & Associates, P.C. 13 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 14 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 15 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 16 enabled agents to believe that their conduct was appropriate. 17 80. Defendants, and each of them, failed to offer counseling or comfort to 18 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 19 workplace. 20 81. Plaintiff is informed and believes and thereon alleges that Defendant has a 21 systemic and wide-spread policy of discriminating against and retaliating against 22 employees over the age of 40. By failing to stop the discrimination, harassment and 23 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 24 directly caused a vicious cycle of wrongful conduct with impunity. 25 82. The outrageous conduct of Defendant, and each of them was done with 26 oppression and malice by Defendant and its supervisors and managers, along with 27 conscious disregard of Plaintiff’s rights, and were ratified by those other individuals who 28 were managing agents of Defendant. COMPLAINT 13 1 83. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 2 amount according to proof at the time of trial which fees and expenses are recoverable 3 pursuant to Gov’t Code §12900 et seq. 4 FIFTH CAUSE OF ACTION 5 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION 6 OF CALIFORNIA GOVERNMENT CODE § 12940(k) 7 (Against All Defendants) 8 84. Plaintiff re-alleges and incorporates by reference all of the allegations 9 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 10 85. During the course of employment, Defendant, and each of them, failed to 11 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis 12 of his disability, age, and engagement in protected activity in violation of Government Smaili & Associates, P.C. 13 Code §12940(k). 14 86. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered, 15 and continues to suffer, substantial losses in earnings and other benefits in an amount 16 according to proof at the time trial, including special and general damages. 17 87. As a direct, foreseeable, and proximate result of the wrongful conduct of 18 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish, 19 humiliation, substantial losses in salary, bonuses, job benefits, and other employment 20 benefits which he would have received all to his damage in a sum within the jurisdiction 21 of the Court to be ascertained according to proof. 22 88. Plaintiff is informed and believes and thereon alleges that the outrageous 23 conduct of Defendant, and each of them, as alleged herein, was done with oppression and 24 malice by Plaintiff’s supervisors and managers, along with conscious disregard of 25 Plaintiff’s rights, and were ratified by those other individuals who were managing agents 26 of Defendant. 27 89. As a proximate result of the wrongful conduct of Defendant, and each of 28 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and COMPLAINT 14 1 mental and physical pain and anguish according to proof at the time of trial. 2 90. These unlawful acts were further encouraged by Defendant and done with a 3 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of 4 injuring Plaintiff. The conduct of Defendant alleged hereinabove was done with malice, 5 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 6 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 7 91. Plaintiff has also incurred and continues to incur attorneys’ fees and legal 8 expenses in an amount according to proof at the time of trial. 9 SIXTH CAUSE OF ACTION 10 RETALIATION IN VIOLATION OF 11 CALIFORNIA GOVERNMENT CODE §12940(h) 12 (Against All Defendants) Smaili & Associates, P.C. 13 92. Plaintiff re-alleges and incorporates by reference all of the allegations 14 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 15 93. At all times herein mentioned, FEHA, Government Code §12940(h), was in 16 full force and effect and was binding on Defendant. This statute requires Defendant to 17 refrain from retaliating against Plaintiff. 18 94. Plaintiff is informed and believes and thereon alleges that as a consequence 19 of requesting disability accommodations and medical treatment, lodging complaints 20 about harassing and discriminatory acts being committed against Plaintiff, coupled with 21 Plaintiff’s disability and age, Defendant took retaliatory action against Plaintiff by failing 22 to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, denying 23 Plaintiff advancement and promotion, and demoting Plaintiff. 24 95. Defendant unlawfully retaliated against Plaintiff after he engaged in 25 protected activity including requesting disability accommodations, medical treatment, 26 and lodging workplace complaints related to harassment and discrimination that he was 27 facing, and other complaints of a hostile and unsafe working environment. 28 96. As a proximate result of Defendant’s willful, knowing, and intentional COMPLAINT 15 1 conduct against Plaintiff, he has sustained and continues to sustain substantial losses in 2 Plaintiff’s earnings and other employment benefits and continues to suffer humiliation, 3 emotional distress, and mental and physical pain and anguish, and sleep dysfunction, all 4 to Plaintiff damage in a sum according to proof. 5 97. These unlawful acts were further encouraged by Defendant and done with a 6 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of 7 injuring Plaintiff. In light of Defendant’s w