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PHILLIP A. JARET, ESQ. [SBN 092212]
ROBERT S. JARET, ESQ. [SBN 124876]
JARET & JARET
1016 Lincoln Avenue
San Rafael, California 94901
Telephone: (415) 455-1010
Facsimile: (415) 455-1050
Attorneys for Plaintiff EUGENE BOWERS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
CIVIL UNLIMITED JURISDICTION
EUGENE BOWERS, an individual, No.
Plaintiff, COMPLAINT FOR DAMAGES:
Vv. 1) Discrimination Based on Disability,
Sex/Gender, Age, and Race in Violation of
SANTA CLARA UNIVERSITY, a FEHA (Govt. Code §12900, et seq.)
private college/university; JEFF 2) Failure to Accommodate Disabilities in
CHARLES, an individual; and DOES Violation of FEHA (Govt. Code § 12900, et
1 through 50, inclusive, seq.)
3) Harassment Based on Disability, Sex/Gender,
Defendants. and Race in Violation of FEHA (Govt. Code
§ 12900, et seq.)
4) Retaliation in Violation of FEHA (Govt. Code
§ 12900, et seq.)
5) Failure to Engage in a Good Faith Interactive
Process in Violation of FEHA (Govt. Code
§ 12900, et seq.)
6) Failure to Take Reasonable Steps to Prevent
Discrimination From Occurring in Violation of
FEHA (Govt. Code § 12900, et seq.)
7) Unlawful Medical Inquiry in Violation
FEHA(Govt. Code § 12900, et seq.)
8) Wrongful Termination in Violation of Public
Policy
9) Declaratory Relief
JURY TRIAL DEMANDED
COMES NOW, Plaintiff EUGENE BOWERS, who hereby files this Complaint and does
further allege as follows:
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PARTIES
1. Plaintiff EUGENE BOWERS (hereinafter “Plaintiff? or “BOWERS’) is an adult
natural person.
2. Defendant SANTA CLARA UNIVERSITY (hereinafter “Defendant” or “SCU’), is a
private college/university with offices in Santa Clara County (hereinafter “SCU”), and/or DOES
1-25 were at all times relevant to this Complaint the employer of Plaintiff and Defendants
DOES 26-50 and was doing business in the County of San Francisco, State of California.
3. Defendant JEFF CHARLES (hereinafter “Defendant” or “Charles”) is an adult
natural person who was at all times relevant to this Complaint, a resident of the State of
California.
4. Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their
true names and capacities are unknown to Plaintiff. Plaintiff is informed and believes, and
thereon alleges, that each of the fictitiously-named defendants is responsible in some manner
for the occurrences herein alleged, and that the damages sustained by Plaintiff herein alleged
were proximately caused by such Doe Defendants. Plaintiff will seek leave of court to amend
the Complaint to allege the true names and capacities of such defendants when ascertained.
5. Plaintiff is informed, believes, and thereon alleges that at all times mentioned in
this Complaint, Defendants were the agents and employees of their co-Defendants, and in
doing the things alleged in this Complaint were acting within the course and scope of their
agency and employment and acted in such a manner as to ratify the conduct of their co-
Defendants.
VENUE AND JURISDICTION
6. Venue is proper because Defendants were doing business in and liability arose in
Santa Clara County.
7. Subject matter in this action is properly heard in this Court as the action
incorporates an amount in controversy as set forth in this Complaint which exceeds
$25,000.00.
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COMPLAINT8. At all times mentioned herein, California Government Code Section 12900, et
seq. was in full force and effect, and were binding upon Defendants.
9. Defendants are employers subject to suit under the FEHA in that Defendants are
business organizations with 5 or more employees doing business in the State of California.
10. Within the time provided by law, Plaintiff filed verified charges of discrimination
with the California Department of Fair Employment and Housing ("DFEH") and the Equal
Opportunity Employment Commission (EEOC) and against the named Defendants. The
Plaintiff has received Right to Sue Notices from the EEOC, and the DFEH on April 29, 2020
and timely files this Complaint. The Plaintiff will amend this pleading when he receives his final
Right to Sue Notices from the EEOC. In addition, all of the Plaintiff's claims are “tolled”
pending resolution of his workers’ compensation claim.
GENERAL ALLEGATIONS
11. Plaintiff BOWERS is pursuing discrimination claims against his employer.
12. Plaintiff is 57 years old at the time of filing of this Complaint.
13. Plaintiff is pursuing claims for discrimination under the California Government
Code. This includes discrimination based on disability, perceived disability, age, sex/gender,
and race; requiring a medical examination or making a medical inquiry or making an inquiry
regarding the nature or severity of a physical disability; retaliation; harassment; failing to
prevent discrimination and harassment from occurring; failing to take all reasonable steps
necessary to prevent discrimination, harassment, and retaliation from occurring; failing to
make reasonable accommodation for the known physical disability of Plaintiff; and failing to
engage in a timely, good faith, interactive process with Plaintiff to determine effective
reasonable accommodations.
14. This Complaint of Discrimination relates to but is not limited to DFEH No. 202004-
10046429; and EEOC/DFEH Nos. 556-2019-00784C; 556-2019-00784, 556-2020-00159, 556-
2020-00159C, 556-2020-00074, and 556-2020-00074C. Plaintiff is pursuing discrimination
claims on theories of disparate treatment and disparate impact.
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15. Plaintiff communicated to his former employer at an April 22, 2019 "interactive"
meeting that his physical restrictions listed in an April 1, 2019 "Physician's Return-to-Work &
Voucher Report" released Plaintiff to work full-time with modest restrictions including having
micro-breaks and being able to change positions as needed with the ability to lift 30 pounds.
Plaintiff was able to return to work at that time with only modest accommodations but Indu
Ahluwalia, Senior Leave Specialist, incorrectly concluded in her "ADA Interactive Process
Meeting Follow-Up" letter of April 24, 2019 that no reasonable accommodation had been
identified and she provided no other reasonable or practical alternatives other than terminating
his employment. Plaintiff also explained at the meeting that Plaintiff was waiting to have a
Work Tolerance Test that was requested by Defendant SCU to be performed which had been
delayed until May 8, 2019, through no fault of his own. Plaintiff requested that Ms. Ahluwalia
continue the interactive process and wait until she received a new report as Plaintiff did not
believe Plaintiff would have any physical limitations. Ms. Ahluwalia did not say that she would
not wait to decide before his upcoming appointment. The interactive meeting was hostile and
attended by eight (8) of Plaintiffs managers instead of just his direct manager, and also
included the Director, Defendant JEFF CHARLES, who made it clear he did not want Plaintiff
to return to work. After the meeting and without any advance notice, Plaintiff was then
terminated on April 29, 2019. The termination letter incorrectly stated that there were no
reasonable accommodations and that Plaintiff could not perform the essential functions of his
job. Ms. Ahluwalia failed to discuss the true nature of his job assignment and the fact that most
of the strenuous activities are performed with two or more employees in a teamwork approach
according to University policy. Instead, Ms. Ahluwalia focused on the most strenuous task
listed in the job description, of being able to lift and move up to 65 pounds. However, this item
is no longer part of his actual job description as policy prohibits such heavy lifting when
assistance is readily available.
16. On May 8, 2019, Plaintiff participated in a Work Tolerance Test conducted by
Steve Moon of Bay Area FCE at the request of Dr. Harpreet Singh. Plaintiff was able to
demonstrate a safe and dependable ability to perform heavy physical demands of work in
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terms of lifting and carrying 65 pounds. Employees of the University, including Plaintiff, were
specifically trained on “back safety" and instructed to not lift weights such as 65 pounds alone
when it can be done with the assistance of another employee. An outside consultant was
retained by the Facilities Department and Plaintiff attended a mandatory meeting where he
was instructed not to lift heavy weights alone to avoid suffering back injuries. They use a
teamwork approach. Nonetheless, Plaintiff was cleared to not only "move" but "lift" 65 pounds.
Dr. Singh reported in a Work Status Form dated May 14, 2019 that Plaintiff can lift, carry,
push, and pull up to 65 pounds. Plaintiff was released to work full-time "as according to job
description."
17. Plaintiff notified Ms. Ahluwalia in person on May 16, 2019, that Plaintiff had been
cleared by the Functional Capacity Evaluator to return to work without any limitations. Plaintiff
requested to be reinstated immediately. Plaintiff also filed an official complaint of discrimination
with Defendant SCU for the termination of his employment on April 29, 2019, based on
disability discrimination and a breakdown of the interactive process caused by the University.
By way of an email of May 20, 2019, Ms. Ahluwalia confirmed receipt of his discrimination
complaint, which included the notice of his ability to return to work without restrictions, and his
request for reinstatement. Ms. Ahluwalia also stated that his discrimination complaint would be
forwarded to the department that handles such complaints. However, the University did not
conduct an internal investigation into his discrimination complaints.
18. According to the April 29, 2019 termination letter, Plaintiff was terminated solely
because the collective bargaining agreement stated that Plaintiff could be out on leave for 24
months due to an industrial injury. However, a definitive and unyielding duration of a medical
leave of absence as a form of reasonable accommodation without using a case-by-case
analysis, is unlawful. Further, the collective bargaining agreement states that after 24 months
"the Employer may terminate the worker if necessary in accordance with the need to perform
the function of the worker's position." In contrast, Plaintiff demonstrated that Plaintiff could
return to work with the limitations that were in place as of the April 22, 2019, interactive
meeting. Plaintiff further indicated that Plaintiff anticipated receiving a complete release to
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COMPLAINTreturn to work without any restrictions once the Work Capacity Evaluation was conducted
within the next several weeks. The University did not establish that it was an "undue hardship"
to extend his medical leave until his evaluation could be conducted. It was not "necessary" to
terminate his employment. The University utilizes the services of an outside vendor named
FlagShip Facility Services to temporarily fill in positions such as Plaintiffs when someone is on
leave. There is no reason the Defendant could not have done this for several weeks.
19. The Defendant's interpretation of the collective bargaining agreement is also
discriminatory based on gender. A female employee who exhausted her leave according to the
collective bargaining agreement was given additional full-time leave as an accommodation.
She was not terminated based on a finite amount of leave time as Plaintiff was terminated.
Further, Plaintiff is Latino and Caucasian employees were given preference in working
conditions and accommodations.
20. The University violated its own Human Resources Policy #701 "Injury on the Job"
which indicates that an employee "may" be terminated upon the attainment of permanent and
stationary status. The policy states that reasonable accommodation to enable the injured
worker to return to work will be considered when appropriate. Since Plaintiff had not attained a
permanent and stationary status as of the April 22, 2019, interactive meeting, his employment
should not have been terminated.
21. The University has an improper "100% healed" policy where the Director of
Facilities, Defendant CHARLES, would not permit the Plaintiff, wno works in University
Operations/Facilities to return to work if he need any accommodations. Defendant CHARLES
is a 30 year veteran of the Air Force and prides himself on running University Operations in a
military fashion. Plaintiffs direct supervisor, Greg Davis, communicated to Plaintiff that
Defendant CHARLES has a policy of not permitting employees to return to work unless they
are back to 100% full capacity. This policy in conjunction with Ms. Ahluwalia's refusal to
acknowledge that Plaintiff could perform the essential functions of his job, with or without
accommodations, as of the interactive meeting on April 22, 2019, directly led to the wrongful
termination of his employment. The University’s official written policy included a "Transitional
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Return to Work (Light Duty)" program but the University refused to engage in an interactive
dialogue regarding a transitional light-duty return to work agreement. Also, if the University
would have waited 2 weeks until the Work Tolerance Testing was conducted, which his
employer requested, which confirmed as Plaintiff indicated on April 22, 2019, that Plaintiff had
no current work restrictions, Plaintiff would not have even needed a transitional return to work
with light duty.
22. The University Senior Leave Specialist, Ms. Ahluwalia, has intentionally interfered
with his ability to return to work. She also incorrectly believes that the University has fulfilled its
obligations because Plaintiff received disability benefits. Even after Plaintiff provided Ms.
Ahluwalia with Dr. Singh's report confirming Plaintiff had no work limitations, she stated in an
August 6, 2019 letter that his statement was not true, and that Plaintiff had a restriction of 65
pounds. The physician's note reflected that Plaintiff was able to lift/carry/push/pull up to 65
pounds according to his job description which was the number of pounds set forth. The fact
that Ms. Ahluwalia falsely claimed that his medical provider's note included restrictions is
evidence of discrimination and a breakdown of the interactive process. Also, the fact that
Plaintiff continued to receive disability benefits is wholly separate from his request to be
returned to work. Had Plaintiff not been terminated he would have returned to work and would
no longer have been collecting disability benefits.
23. The Defendant did not assist Plaintiff in locating a reassignment if it determined
that Plaintiff was disabled and not able to perform the essential functions of his job. Plaintiff did
not have any interactive meetings to discuss potential alternate employment and
reassignments. All SCU did was to send Plaintiff a link to its career site.
FIRST CAUSE OF ACTION
Discrimination Based on Disability, Sex/Gender, Age, and Race, in Violation of FEHA
(Govt. Code §12900, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
24. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
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25. Pursuant to California Government Code § 12900 et seq., Plaintiff had a legal
right to be free from discrimination.
26. Plaintiff is informed and believes and thereon alleges that he was discriminated
against under the terms and conditions of his employment, as outlined above, on the basis of
his disability, perceived disability, sex/gender, age, and race. That is, during the course of his
employment, Plaintiff, as alleged above, was subjected to unlawful and discriminatory
employment practices.
27. Plaintiff is informed and believes and thereon alleges that Defendants and/or
DOES 1-50, and each of them, willfully and/or with reckless indifference violated California
Government Code Sections 12900, et seq., by discriminating against Plaintiff, as outlined
above. Such discrimination has resulted in damage and injury to Plaintiff as alleged herein.
28. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
29. Asa direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress,
and other damages to be proven at the time of trial.
30. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said
agents and employees under the Doctrine of Strict Liability.
31. In addition, Defendants acted despicably, willfully, knowingly, intentionally,
maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of
Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the
improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code §
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3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance
knowledge of the unfitness of their employees who acted on their behalf in committing the
wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of
others, including Plaintiff, and also authorized or ratified the wrongful conduct for which the
damages are sought, as well as being personally guilty of oppression, fraud or malice. Said
advance knowledge is alleged to be on the part of an officer, director, or managing agent of
Defendants. Further, the acts were committed with the knowledge of the Defendants and/or
DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the
Defendants and/or DOES 1-25.
32. As a result of the conduct of Defendants and/or Does 1-50, and each of them,
Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an
amount according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
SECOND CAUSE OF ACTION
Failure to Accommodate Disabilities in Violation of FEHA
(Govt. Code § 12900, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
33. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
34. Plaintiff is an individual with a disability or perceived disability who could perform
the essential functions of multiple positions with or without reasonable accommodations.
35. Plaintiff has a record of a disability, and was perceived by the Defendants as
having a disability and/or medical condition.
36. Defendants and/or Does 1-25, and each of them, were required to undertake a
reasonable investigation of Plaintiffs request for an accommodation for his disability, and to
continue to provide a reasonable accommodation for the known physical limitations of Plaintiff.
Defendants failed to do so.
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37. Defendants and/or Does 1-25, and each of them, were required to engage in a
good faith interactive process to determine if Plaintiffs disability could be accommodated
without undue hardship. Defendants failed to do so.
38. At all times herein mentioned, Plaintiff was willing and able to perform the duties
and functions of multiple positions. At no such time would the performance of the employment
position(s), with or without a reasonable accommodation for Plaintiffs disability, have been a
danger to the health and safety of any person.
39. As a direct and proximate result of the unlawful conduct of Defendants and/or
Does 1-25, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
40. As a direct and proximate result of the unlawful conduct of Defendants and/or
Does 1-25, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
41. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or Does 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25, and each of them, are therefore liable for the
conduct of said agents and employees under the Doctrine of Strict Liability.
42. Defendants and/or Does 1-25, and each of them, committed the acts herein
alleged maliciously, fraudulently, and oppressively in conscious disregard for Plaintiffs rights.
The acts were committed by and/or ratified by officers, directors, and/or managing agents of
Defendants and/or Does 1-25. The acts were committed with knowledge of employee's lack of
fitness in the workplace and were allowed to proceed by officers, directors, and/or managing
agents of Defendants and/or Does 1-25. Plaintiff is, therefore, entitled to recover punitive
damages from Defendants in an amount determined by the proof given at trial.
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COMPLAINT43. As a result of the conduct of Defendants and/or Does 1-25, and each of them,
Plaintiff was forced to retain an attorney in order to protect his rights. Accordingly, Plaintiff
seeks the reasonable attorney's fees and costs incurred in this litigation in an amount
according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
THIRD CAUSE OF ACTION
Harassment Based on Disability, Sex/Gender, Age, and Race, in Violation of FEHA
(Govt. Code § 12900, et seq.)
Against All Defendants
44. By this reference, Plaintiff hereby incorporates each and every paragraph set
forth in this pleading.
45. Pursuant to California Government Code, § 12900 et seq., Plaintiff had a legal
right to be free from harassment based on his age, disability, perceived disability, sex/gender,
and race.
46. Plaintiff is informed and believes and thereon alleges that he was the subject of
harassment as outlined above. That is, during the course of his employment, Plaintiff was
subjected to unlawful and unwelcome harassment and related discriminatory employment
practices. He was similarly discriminated against by the creation of a hostile work environment,
as set forth herein, in violation of the FEHA.
47. Plaintiff is informed and believes and thereon alleges that Defendants and/or
DOES 1-50, and each of them, willfully and/or with reckless indifference violated California
Government Code Sections 12900 et seq. by harassing and discriminating against Plaintiff, as
outlined above, as a result of his disability and perceived disability, age, color, and race,
ancestry and national origin. Such harassment has resulted in damage and injury to Plaintiff as
alleged herein.
48. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited
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to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
49. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
50. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said
agents and employees under the Doctrine of Strict Liability.
51. In addition, Defendants acted despicably, willfully, knowingly, intentionally,
maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of
Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for their
improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code §
3294.
52. Plaintiff is informed and believes and thereon alleges that Defendants had
advance knowledge of the unfitness of their employees who acted on their behalf in
committing the wrongs alleged herein, and employed them with a conscious disregard of the
tights or safety of others including Plaintiff, and also authorized or ratified the wrongful conduct
for which the damages are sought, as well as being personally guilty of oppression, fraud or
malice. Said advance knowledge is alleged to be on the part of an officer, director, or
managing agent of the corporate Defendants. Further the acts were committed with the
knowledge of Defendants and/or DOES 1-25 and were allowed to proceed by officers,
directors, and/or managing agents of Defendants and/or DOES 1-25.
53. As a result of the conduct of Defendants and/or Does 1-50, and each of them,
Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an
amount according to proof at trial.
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WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
FOURTH CAUSE OF ACTION
Retaliation in Violation of FEHA (Govt. Code § 12900, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
54. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
55. As alleged above, Defendants have retaliated against Plaintiff based on his
complaints and reports of discrimination and requesting reasonable accommodations.
56. Pursuant to the California Government Code, § 12900 et seq., Plaintiff had a
legal right to be free from discrimination, including disability discrimination and had a right to a
good faith interactive process to determine what accommodations could be made so that he
could perform the essential functions of multiple positions. As an employer with more than five
employees, Defendants and/or DOES 1-50, are liable.
57. As a result of Plaintiffs protesting discrimination and requesting reasonable
accommodations and being placed on medical leave, Defendants knew and was aware of
Plaintiffs disability. Further, as a result of Plaintiffs requesting to be free of disability
discrimination he was subjected to retaliation. Accordingly, Plaintiff has been subjected to
unlawful retaliation in violation of California Government Code §12940.
58. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
59. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
60. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who
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were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said
agents and employees under the Doctrine of Strict Liability.
61. In addition, Defendants acted despicably, willfully, knowingly, intentionally,
maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of
Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the
improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code §
3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance
knowledge of the unfitness of their employees who acted on their behalf in committing the
wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of
others including Plaintiff, and also authorized or ratified the wrongful conduct for which the
damages are sought, as well as being personally guilty of oppression, fraud or malice. Said
advance knowledge is alleged to be on the part of an officer, director, or managing agent of
the corporate Defendants. Further the acts were committed with the knowledge of the
Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or
managing agents of the Defendants and/or DOES 1-25.
62. As a result of the conduct of Defendants and/or Does 1-50, and each of them,
Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an
amount according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
FIFTH CAUSE OF ACTION
Failure to Engage in a Good Faith Interactive Process in Violation of FEHA
(Govt. Code § 12900, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
63. By this reference, Plaintiff hereby incorporates each and every paragraph set
forth in this pleading.
64. Plaintiff is an individual with a disability or perceived disability who with or without
reasonable accommodations could perform the essential functions of multiple positions.
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Plaintiff has a record of a disability, and was perceived by the Defendants as having a
disability.
65. Defendants and/or Does 1-25, and each of them, were required to engage in a
good faith interactive process to determine if Plaintiff's disability could be accommodated
without undue hardship. Defendants failed to do so.
66. At all times herein mentioned, Plaintiff was willing and able to perform the duties
and functions of multiple positions. At no time would the performance of the employment
position, with a reasonable accommodation for Plaintiff's disability, have been a danger to the
health and safety of any person.
67. As a direct and proximate result of the unlawful conduct of Defendants and/or
Does 1-25, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
68. As a direct and proximate result of the unlawful conduct of Defendants and/or
Does 1-25, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
69. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or Does 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or Does 1-25, and each of them, are therefore liable for the
conduct of said agents and employees under the Doctrine of Strict Liability.
70. Defendants and/or Does 1-25, and each of them, committed the acts herein
alleged maliciously, fraudulently, and oppressively in conscious disregard for Plaintiffs rights.
Such acts were committed by and/or ratified by, and or were committed with the knowledge of
employee's lack of fitness in the workplace but were allowed to proceed, by officers, directors,
and/or managing agents of Defendants and/or Does 1-25. Plaintiff is, therefore, entitled to
recover punitive damages from Defendants in an amount according to proof at trial.
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71. As a result of the conduct of Defendants and/or Does 1-25, and each of them,
Plaintiff was forced to retain an attorney in order to protect his rights. Accordingly, Plaintiff
seeks the reasonable attorney's fees and costs incurred in this litigation in an amount
according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
SIXTH CAUSE OF ACTION
Failure to Take Reasonable Steps to Prevent Discrimination From
Occurring in Violation of FEHA (Govt. Code § 12900, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
72. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
73. Plaintiff is informed, believes, and thereon alleges that Defendant and/or DOES
1-50, and each of them, failed to take all reasonable steps to prevent and/or stop
discrimination, harassment, and retaliation from occurring in the workplace, in violation of
section 12940(k) of the Government Code.
74. Plaintiff is informed, believes, and thereon alleges that discrimination against him
resulted from the Defendant's failure to have in place a prophylactic anti-discrimination policy
and/or reporting mechanism and failed to take all reasonable steps to prevent discrimination
and harassment from occurring in the workplace.
75. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
76. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
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77. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said
agents and employees under the Doctrine of Strict Liability.
78. In addition, Defendants acted despicably, willfully, knowingly, intentionally,
maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of
Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the
improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code §
3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance
knowledge of the unfitness of their employees who acted on their behalf in committing the
wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of
others, including Plaintiff, and also authorized or ratified the wrongful conduct for which the
damages are sought, as well as being personally guilty of oppression, fraud or malice. Said
advance knowledge is alleged to be on the part of an officer, director, or managing agent of
the Defendants. Further the acts were committed with the knowledge of the Defendants and/or
DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the
Defendants and/or DOES 1-25.
79. As a result of the conduct of Defendants and/or Does 1-50, and each of them,
Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an
amount according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
SEVENTH CAUSE OF ACTION
Unlawful Medical Inquiry in Violation of FEHA (Government Code §12940, et seq.)
Against Defendant SANTA CLARA UNIVERSITY
80. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
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81. Plaintiff alleges that Defendants made unlawful inquiries regarding his disabilities
and medical status prior to offering employment in new positions, and unlawful medical
inquiries related to its 100% healed policy.
82. Pursuant to the California Government Code, § 12900 et seq., Plaintiff had a
legal right to be free from discrimination, including disability discrimination and had a right to a
good faith interactive process to determine what accommodations could be made so that he
could perform the essential functions of multiple positions. As an employer with more than five
employees, Defendants and/or DOES 1-50, are liable.
83. As a result of Plaintiffs requesting reasonable accommodations and being
placed on medical leave, Defendants knew and was aware of Plaintiff's disability. Further, as a
result of Plaintiffs requesting to be free of disability discrimination he was subjected to
retaliation. Accordingly, Plaintiff has been subjected to unlawful retaliation in violation of
California Government Code §12940.
84. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited
to past and future loss of income, benefits, medical expenses, and other damages to be
proven at time of trial.
85. As a direct and proximate result of the unlawful conduct of Defendants and/or
DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited
to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress
and other damages to be proven at the time of trial.
86. The unlawful conduct alleged above was engaged in by the officers, directors,
supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who
were acting at all times relevant to this Complaint within the scope and course of their
employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said
agents and employees under the Doctrine of Strict Liability.
87. In addition, Defendants acted despicably, willfully, knowingly, intentionally,
maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of
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Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the
improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code §
3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance
knowledge of the unfitness of their employees who acted on their behalf in committing the
wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of
others including Plaintiff, and also authorized or ratified the wrongful conduct for which the
damages are sought, as well as being personally guilty of oppression, fraud or malice. Said
advance knowledge is alleged to be on the part of an officer, director, or managing agent of
the corporate Defendants. Further, the acts were committed with the knowledge of the
Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or
managing agents of the Defendants and/or DOES 1-25.
88. As a result of the conduct of Defendants and/or Does 1-50, and each of them,
Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an
amount according to proof at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.
EIGHTH CAUSE OF ACTION
Wrongful Termination in Violation of Public Policy
Against Defendant SANTA CLARA UNIVERSITY
89. By this reference, Plaintiff hereby incorporates each and every paragraph set forth
in this pleading.
90. At all times relevant there was an employer/employee relationship between
Plaintiff and Defendant.
91. It is the public policy of the State of California to prohibit employers from
terminating or retaliating against employees who have complained about discrimination on the
basis of a protected category or who have requested reasonable accommodations.
92. Defendant wrongfully terminated Plaintiff's employment rather than providing him a
reasonable accommodation and in violation of California Government Code, §12900 et seq.
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93. Plaintiffs employment was terminated as a result of Defendant's violation of
fundamental public policies, including California Government Code, §12900 et seq. It is
against fundamental California public policy to terminate an employee in violation of
California's anti-discrimination laws.
94. A tortious termination subjects the employer to “liability for compensatory and
punitive damages under normal tort principles.” Gantt v. Sentry Insurance (1992) 1 Cal.4th
1083, 1101.
95. As a direct, foreseeable and proximate result of Defendants’ conduct, Plaintiff
suffered harm, including mental distress, and other general and special damages, all to
Plaintiffs damage in an amount to be proven at trial.
96. As a proximate result of Defendant's treatment of Plaintiff, Plaintiff has suffered
and continues to suffer substantial losses in earnings, and other employment benefits and has
suffered and continues to suffer embarrassment, humiliation, emotional distress, mental
anguish, and anxiety all to her damage in an amount to be proven at trial.
97. The actions alleged herein were done with malice, fraud, and oppression, and in
reckless disregard for Plaintiffs rights. Accordingly, Defendants are liable to Plaintiff for
punitive damages in an amount to be proven at trial.
WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth.
NINTH CAUSE OF ACTION
Declaratory Relief
Against Defendant SANTA CLARA UNIVERSITY
98. By this reference, Plaintiff hereby incorporates each and every paragraph set
forth in this pleading.
99. Government Code § 12920 sets forth the public policy of the State of California
as follows:
It is hereby declared as the public policy of this state that it is
necessary to protect and safeguard the right and opportunity of all
persons to seek, obtain, and hold employment without
discrimination or abridgment on account of race, religious creed,
color, national origin, ancestry, physical disability, mental disability,
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states:
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102.
Defendants concerning their respective rights and duties as it is believed that Defendants may
allege that Plaintiff was not discriminated, harassed and/or retaliated against on account of his
disability, but was subjected to legitimate, non-discriminatory personnel actions. Plaintiff
contends that he was discriminated, harassed and/or retaliated against on account of his
disability. Plaintiff also contends that Defendants failed to take all steps reasonably necessary
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation.
It is recognized that the practice of denying employment opportunity
and discriminating in the terms of employment for these reasons
foments domestic strife and unrest, deprives the state of the fullest
utilization of its capacities for development and advancement, and
substantially and adversely affects the interests of employees,
employers, and the public in general. Further, the practice of
discrimination because of race, color, religion, sex, gender, gender
identity, gender expression, sexual orientation, marital status,
national origin, ancestry, familial status, source of income,
disability, or genetic information in housing accommodations is
declared to be against public policy.
It is the purpose of this part to provide effective remedies that will
eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the
state for the protection of the welfare, health, and peace of the
people of this state.
Government Code §12920.5 embodies the intent of the California legislature and
In order to eliminate discrimination, it is necessary to provide
effective remedies that will both prevent and deter unlawful
employment practices and redress the adverse effects of those
practices on aggrieved persons. To that end, this part shall be
deemed an exercise of the Legislature's authority pursuant to
Section 1 of Article XIV of the California Constitution.
Moreover, Government Code §12921, subdivision (a) says in pertinent part:
The opportunity to seek, obtain, and hold employment without
discrimination because of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, or sexual orientation is hereby
recognized as and declared to be a civil right.
An actual controversy has arisen and now exists between Plaintiff and
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to prevent the discrimination, harassment and retaliation from occurring. Plaintiff is informed
and believes, and on that basis alleges, that Defendants dispute Plaintiff's contention.
103. Pursuant to Code of Civil Procedure §1060, Plaintiff desires a determination of
his rights and duties, and a declaration that the discrimination, harassment and/or retaliation
he was subjected to was on account of his disability and matters related to his disability.
104. A declaration is necessary and appropriate at this time under the circumstances
in order that Plaintiff, for himself and on behalf of employees of the State of California and in
conformity with the public policy of the State, obtain a declaration of the wrongdoing of
Defendants and to condemn such discriminatory and/or harassing and/or retaliatory conduct in
employment policies or practices. Harris v. City of Santa Monica (2013) 56 Cal. 4th 203.
105. A declaration is necessary and appropriate at this time such that Defendants
and/or their owners, managers and supervisors may also be aware of their obligations under
the law to not engage in discriminatory and/or harassing and/or retaliatory practices or violate
the law and that Defendants have an obligation under the law to take all steps reasonably
necessary to prevent discrimination, harassment and/or retaliation from occurring in the work
place.
106. Government Code §12965(b) provides that an aggrieved party, such as the
Plaintiff herein, may be awarded reasonable attorney's fees and costs. “In civil actions brought
under this section, the court, in its discretion, may award to the prevailing party, including the
department, reasonable attorney's fees and costs, including expert witness fees.” Such fees
and costs expended by an aggrieved party may be awarded for the purpose redressing,
preventing, or deterring discrimination.
WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth.
PRAYER
WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
1. For monetary relief in a sum according to proof, including, but not limited
to, lost wages, promotions, benefits, and retirement benefits;
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2. For an Order that Plaintiff be reinstated and made whole and afforded all
benefits attendant thereto that would have been afforded Plaintiff but for said discrimination,
harassment, and retaliation;
3. For special damages according to proof,
4. For general damages according to proof;
5. For an injunction restraining the Defendants from continuing or maintaining
any policy, practice, custom or usage which is retaliatory in nature against any employee
making a request for reasonable accommodations;
6. For an order requiring Defendants to undergo disability discrimination
training;
7. For punitive damages according to proof,
8. For interest on the damages awarded, including prejudgment interest;
9. For reasonable attorney's fees and costs, including costs of expert
witnesses, pursuant to statute, including but not li
Preview
o ON DH BF WN | Nw N BY N YN NN N Se Be Be Be Be ew ew Be ew oN DH BF BW NHN FF SO we IN DH RDN FS PHILLIP A. JARET, ESQ. [SBN 092212] ROBERT S. JARET, ESQ. [SBN 124876] JARET & JARET 1016 Lincoln Avenue San Rafael, California 94901 Telephone: (415) 455-1010 Facsimile: (415) 455-1050 Attorneys for Plaintiff EUGENE BOWERS SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA CIVIL UNLIMITED JURISDICTION EUGENE BOWERS, an individual, No. Plaintiff, COMPLAINT FOR DAMAGES: Vv. 1) Discrimination Based on Disability, Sex/Gender, Age, and Race in Violation of SANTA CLARA UNIVERSITY, a FEHA (Govt. Code §12900, et seq.) private college/university; JEFF 2) Failure to Accommodate Disabilities in CHARLES, an individual; and DOES Violation of FEHA (Govt. Code § 12900, et 1 through 50, inclusive, seq.) 3) Harassment Based on Disability, Sex/Gender, Defendants. and Race in Violation of FEHA (Govt. Code § 12900, et seq.) 4) Retaliation in Violation of FEHA (Govt. Code § 12900, et seq.) 5) Failure to Engage in a Good Faith Interactive Process in Violation of FEHA (Govt. Code § 12900, et seq.) 6) Failure to Take Reasonable Steps to Prevent Discrimination From Occurring in Violation of FEHA (Govt. Code § 12900, et seq.) 7) Unlawful Medical Inquiry in Violation FEHA(Govt. Code § 12900, et seq.) 8) Wrongful Termination in Violation of Public Policy 9) Declaratory Relief JURY TRIAL DEMANDED COMES NOW, Plaintiff EUGENE BOWERS, who hereby files this Complaint and does further allege as follows: 1 COMPLAINTw Co Oe ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PARTIES 1. Plaintiff EUGENE BOWERS (hereinafter “Plaintiff? or “BOWERS’) is an adult natural person. 2. Defendant SANTA CLARA UNIVERSITY (hereinafter “Defendant” or “SCU’), is a private college/university with offices in Santa Clara County (hereinafter “SCU”), and/or DOES 1-25 were at all times relevant to this Complaint the employer of Plaintiff and Defendants DOES 26-50 and was doing business in the County of San Francisco, State of California. 3. Defendant JEFF CHARLES (hereinafter “Defendant” or “Charles”) is an adult natural person who was at all times relevant to this Complaint, a resident of the State of California. 4. Defendants Does 1-50, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Plaintiff. Plaintiff is informed and believes, and thereon alleges, that each of the fictitiously-named defendants is responsible in some manner for the occurrences herein alleged, and that the damages sustained by Plaintiff herein alleged were proximately caused by such Doe Defendants. Plaintiff will seek leave of court to amend the Complaint to allege the true names and capacities of such defendants when ascertained. 5. Plaintiff is informed, believes, and thereon alleges that at all times mentioned in this Complaint, Defendants were the agents and employees of their co-Defendants, and in doing the things alleged in this Complaint were acting within the course and scope of their agency and employment and acted in such a manner as to ratify the conduct of their co- Defendants. VENUE AND JURISDICTION 6. Venue is proper because Defendants were doing business in and liability arose in Santa Clara County. 7. Subject matter in this action is properly heard in this Court as the action incorporates an amount in controversy as set forth in this Complaint which exceeds $25,000.00. Wt 2 COMPLAINT8. At all times mentioned herein, California Government Code Section 12900, et seq. was in full force and effect, and were binding upon Defendants. 9. Defendants are employers subject to suit under the FEHA in that Defendants are business organizations with 5 or more employees doing business in the State of California. 10. Within the time provided by law, Plaintiff filed verified charges of discrimination with the California Department of Fair Employment and Housing ("DFEH") and the Equal Opportunity Employment Commission (EEOC) and against the named Defendants. The Plaintiff has received Right to Sue Notices from the EEOC, and the DFEH on April 29, 2020 and timely files this Complaint. The Plaintiff will amend this pleading when he receives his final Right to Sue Notices from the EEOC. In addition, all of the Plaintiff's claims are “tolled” pending resolution of his workers’ compensation claim. GENERAL ALLEGATIONS 11. Plaintiff BOWERS is pursuing discrimination claims against his employer. 12. Plaintiff is 57 years old at the time of filing of this Complaint. 13. Plaintiff is pursuing claims for discrimination under the California Government Code. This includes discrimination based on disability, perceived disability, age, sex/gender, and race; requiring a medical examination or making a medical inquiry or making an inquiry regarding the nature or severity of a physical disability; retaliation; harassment; failing to prevent discrimination and harassment from occurring; failing to take all reasonable steps necessary to prevent discrimination, harassment, and retaliation from occurring; failing to make reasonable accommodation for the known physical disability of Plaintiff; and failing to engage in a timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations. 14. This Complaint of Discrimination relates to but is not limited to DFEH No. 202004- 10046429; and EEOC/DFEH Nos. 556-2019-00784C; 556-2019-00784, 556-2020-00159, 556- 2020-00159C, 556-2020-00074, and 556-2020-00074C. Plaintiff is pursuing discrimination claims on theories of disparate treatment and disparate impact. Ml 3 COMPLAINTeo ON DH F WN | Yb oN NY NY YN NR KN NY B&B ewe Be Be eB ee ei oY A UWP BN FF SSO HM RHA AREBH ABS 15. Plaintiff communicated to his former employer at an April 22, 2019 "interactive" meeting that his physical restrictions listed in an April 1, 2019 "Physician's Return-to-Work & Voucher Report" released Plaintiff to work full-time with modest restrictions including having micro-breaks and being able to change positions as needed with the ability to lift 30 pounds. Plaintiff was able to return to work at that time with only modest accommodations but Indu Ahluwalia, Senior Leave Specialist, incorrectly concluded in her "ADA Interactive Process Meeting Follow-Up" letter of April 24, 2019 that no reasonable accommodation had been identified and she provided no other reasonable or practical alternatives other than terminating his employment. Plaintiff also explained at the meeting that Plaintiff was waiting to have a Work Tolerance Test that was requested by Defendant SCU to be performed which had been delayed until May 8, 2019, through no fault of his own. Plaintiff requested that Ms. Ahluwalia continue the interactive process and wait until she received a new report as Plaintiff did not believe Plaintiff would have any physical limitations. Ms. Ahluwalia did not say that she would not wait to decide before his upcoming appointment. The interactive meeting was hostile and attended by eight (8) of Plaintiffs managers instead of just his direct manager, and also included the Director, Defendant JEFF CHARLES, who made it clear he did not want Plaintiff to return to work. After the meeting and without any advance notice, Plaintiff was then terminated on April 29, 2019. The termination letter incorrectly stated that there were no reasonable accommodations and that Plaintiff could not perform the essential functions of his job. Ms. Ahluwalia failed to discuss the true nature of his job assignment and the fact that most of the strenuous activities are performed with two or more employees in a teamwork approach according to University policy. Instead, Ms. Ahluwalia focused on the most strenuous task listed in the job description, of being able to lift and move up to 65 pounds. However, this item is no longer part of his actual job description as policy prohibits such heavy lifting when assistance is readily available. 16. On May 8, 2019, Plaintiff participated in a Work Tolerance Test conducted by Steve Moon of Bay Area FCE at the request of Dr. Harpreet Singh. Plaintiff was able to demonstrate a safe and dependable ability to perform heavy physical demands of work in 4 COMPLAINTCoO IN DH BF WN NY N NY N NY NY NN NY Be Be Be Be we ewe we we eK oy Dn A BF YW NH FF SO we KX AA BRB BH BS terms of lifting and carrying 65 pounds. Employees of the University, including Plaintiff, were specifically trained on “back safety" and instructed to not lift weights such as 65 pounds alone when it can be done with the assistance of another employee. An outside consultant was retained by the Facilities Department and Plaintiff attended a mandatory meeting where he was instructed not to lift heavy weights alone to avoid suffering back injuries. They use a teamwork approach. Nonetheless, Plaintiff was cleared to not only "move" but "lift" 65 pounds. Dr. Singh reported in a Work Status Form dated May 14, 2019 that Plaintiff can lift, carry, push, and pull up to 65 pounds. Plaintiff was released to work full-time "as according to job description." 17. Plaintiff notified Ms. Ahluwalia in person on May 16, 2019, that Plaintiff had been cleared by the Functional Capacity Evaluator to return to work without any limitations. Plaintiff requested to be reinstated immediately. Plaintiff also filed an official complaint of discrimination with Defendant SCU for the termination of his employment on April 29, 2019, based on disability discrimination and a breakdown of the interactive process caused by the University. By way of an email of May 20, 2019, Ms. Ahluwalia confirmed receipt of his discrimination complaint, which included the notice of his ability to return to work without restrictions, and his request for reinstatement. Ms. Ahluwalia also stated that his discrimination complaint would be forwarded to the department that handles such complaints. However, the University did not conduct an internal investigation into his discrimination complaints. 18. According to the April 29, 2019 termination letter, Plaintiff was terminated solely because the collective bargaining agreement stated that Plaintiff could be out on leave for 24 months due to an industrial injury. However, a definitive and unyielding duration of a medical leave of absence as a form of reasonable accommodation without using a case-by-case analysis, is unlawful. Further, the collective bargaining agreement states that after 24 months "the Employer may terminate the worker if necessary in accordance with the need to perform the function of the worker's position." In contrast, Plaintiff demonstrated that Plaintiff could return to work with the limitations that were in place as of the April 22, 2019, interactive meeting. Plaintiff further indicated that Plaintiff anticipated receiving a complete release to 5 COMPLAINTreturn to work without any restrictions once the Work Capacity Evaluation was conducted within the next several weeks. The University did not establish that it was an "undue hardship" to extend his medical leave until his evaluation could be conducted. It was not "necessary" to terminate his employment. The University utilizes the services of an outside vendor named FlagShip Facility Services to temporarily fill in positions such as Plaintiffs when someone is on leave. There is no reason the Defendant could not have done this for several weeks. 19. The Defendant's interpretation of the collective bargaining agreement is also discriminatory based on gender. A female employee who exhausted her leave according to the collective bargaining agreement was given additional full-time leave as an accommodation. She was not terminated based on a finite amount of leave time as Plaintiff was terminated. Further, Plaintiff is Latino and Caucasian employees were given preference in working conditions and accommodations. 20. The University violated its own Human Resources Policy #701 "Injury on the Job" which indicates that an employee "may" be terminated upon the attainment of permanent and stationary status. The policy states that reasonable accommodation to enable the injured worker to return to work will be considered when appropriate. Since Plaintiff had not attained a permanent and stationary status as of the April 22, 2019, interactive meeting, his employment should not have been terminated. 21. The University has an improper "100% healed" policy where the Director of Facilities, Defendant CHARLES, would not permit the Plaintiff, wno works in University Operations/Facilities to return to work if he need any accommodations. Defendant CHARLES is a 30 year veteran of the Air Force and prides himself on running University Operations in a military fashion. Plaintiffs direct supervisor, Greg Davis, communicated to Plaintiff that Defendant CHARLES has a policy of not permitting employees to return to work unless they are back to 100% full capacity. This policy in conjunction with Ms. Ahluwalia's refusal to acknowledge that Plaintiff could perform the essential functions of his job, with or without accommodations, as of the interactive meeting on April 22, 2019, directly led to the wrongful termination of his employment. The University’s official written policy included a "Transitional 6 COMPLAINTCom XQ DH BF wBWwN & Se oe Be eB Fe Bw N KF S&S Return to Work (Light Duty)" program but the University refused to engage in an interactive dialogue regarding a transitional light-duty return to work agreement. Also, if the University would have waited 2 weeks until the Work Tolerance Testing was conducted, which his employer requested, which confirmed as Plaintiff indicated on April 22, 2019, that Plaintiff had no current work restrictions, Plaintiff would not have even needed a transitional return to work with light duty. 22. The University Senior Leave Specialist, Ms. Ahluwalia, has intentionally interfered with his ability to return to work. She also incorrectly believes that the University has fulfilled its obligations because Plaintiff received disability benefits. Even after Plaintiff provided Ms. Ahluwalia with Dr. Singh's report confirming Plaintiff had no work limitations, she stated in an August 6, 2019 letter that his statement was not true, and that Plaintiff had a restriction of 65 pounds. The physician's note reflected that Plaintiff was able to lift/carry/push/pull up to 65 pounds according to his job description which was the number of pounds set forth. The fact that Ms. Ahluwalia falsely claimed that his medical provider's note included restrictions is evidence of discrimination and a breakdown of the interactive process. Also, the fact that Plaintiff continued to receive disability benefits is wholly separate from his request to be returned to work. Had Plaintiff not been terminated he would have returned to work and would no longer have been collecting disability benefits. 23. The Defendant did not assist Plaintiff in locating a reassignment if it determined that Plaintiff was disabled and not able to perform the essential functions of his job. Plaintiff did not have any interactive meetings to discuss potential alternate employment and reassignments. All SCU did was to send Plaintiff a link to its career site. FIRST CAUSE OF ACTION Discrimination Based on Disability, Sex/Gender, Age, and Race, in Violation of FEHA (Govt. Code §12900, et seq.) Against Defendant SANTA CLARA UNIVERSITY 24. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 7 COMPLAINTCo em QD HW BF BN NN Ye N YN NN N SF Be Be Be Be Be ewe ewe Be ony nn fF wWwNH KF SOD we I DH BR wD NH BS 25. Pursuant to California Government Code § 12900 et seq., Plaintiff had a legal right to be free from discrimination. 26. Plaintiff is informed and believes and thereon alleges that he was discriminated against under the terms and conditions of his employment, as outlined above, on the basis of his disability, perceived disability, sex/gender, age, and race. That is, during the course of his employment, Plaintiff, as alleged above, was subjected to unlawful and discriminatory employment practices. 27. Plaintiff is informed and believes and thereon alleges that Defendants and/or DOES 1-50, and each of them, willfully and/or with reckless indifference violated California Government Code Sections 12900, et seq., by discriminating against Plaintiff, as outlined above. Such discrimination has resulted in damage and injury to Plaintiff as alleged herein. 28. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 29. Asa direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress, and other damages to be proven at the time of trial. 30. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 31. In addition, Defendants acted despicably, willfully, knowingly, intentionally, maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code § 8 COMPLAINT0 ON DH MH BF WHY | NY N NY N NN NN NY Be Be Be Be ewe ewe ewe ewe Ee oN DA BF YW NY = SO we KR AAR YH BS 3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance knowledge of the unfitness of their employees who acted on their behalf in committing the wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of others, including Plaintiff, and also authorized or ratified the wrongful conduct for which the damages are sought, as well as being personally guilty of oppression, fraud or malice. Said advance knowledge is alleged to be on the part of an officer, director, or managing agent of Defendants. Further, the acts were committed with the knowledge of the Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the Defendants and/or DOES 1-25. 32. As a result of the conduct of Defendants and/or Does 1-50, and each of them, Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. SECOND CAUSE OF ACTION Failure to Accommodate Disabilities in Violation of FEHA (Govt. Code § 12900, et seq.) Against Defendant SANTA CLARA UNIVERSITY 33. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 34. Plaintiff is an individual with a disability or perceived disability who could perform the essential functions of multiple positions with or without reasonable accommodations. 35. Plaintiff has a record of a disability, and was perceived by the Defendants as having a disability and/or medical condition. 36. Defendants and/or Does 1-25, and each of them, were required to undertake a reasonable investigation of Plaintiffs request for an accommodation for his disability, and to continue to provide a reasonable accommodation for the known physical limitations of Plaintiff. Defendants failed to do so. Mt 9 COMPLAINTCe ND HW BF WW 10 37. Defendants and/or Does 1-25, and each of them, were required to engage in a good faith interactive process to determine if Plaintiffs disability could be accommodated without undue hardship. Defendants failed to do so. 38. At all times herein mentioned, Plaintiff was willing and able to perform the duties and functions of multiple positions. At no such time would the performance of the employment position(s), with or without a reasonable accommodation for Plaintiffs disability, have been a danger to the health and safety of any person. 39. As a direct and proximate result of the unlawful conduct of Defendants and/or Does 1-25, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 40. As a direct and proximate result of the unlawful conduct of Defendants and/or Does 1-25, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. 41. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or Does 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25, and each of them, are therefore liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 42. Defendants and/or Does 1-25, and each of them, committed the acts herein alleged maliciously, fraudulently, and oppressively in conscious disregard for Plaintiffs rights. The acts were committed by and/or ratified by officers, directors, and/or managing agents of Defendants and/or Does 1-25. The acts were committed with knowledge of employee's lack of fitness in the workplace and were allowed to proceed by officers, directors, and/or managing agents of Defendants and/or Does 1-25. Plaintiff is, therefore, entitled to recover punitive damages from Defendants in an amount determined by the proof given at trial. Mt 10 COMPLAINT43. As a result of the conduct of Defendants and/or Does 1-25, and each of them, Plaintiff was forced to retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. THIRD CAUSE OF ACTION Harassment Based on Disability, Sex/Gender, Age, and Race, in Violation of FEHA (Govt. Code § 12900, et seq.) Against All Defendants 44. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 45. Pursuant to California Government Code, § 12900 et seq., Plaintiff had a legal right to be free from harassment based on his age, disability, perceived disability, sex/gender, and race. 46. Plaintiff is informed and believes and thereon alleges that he was the subject of harassment as outlined above. That is, during the course of his employment, Plaintiff was subjected to unlawful and unwelcome harassment and related discriminatory employment practices. He was similarly discriminated against by the creation of a hostile work environment, as set forth herein, in violation of the FEHA. 47. Plaintiff is informed and believes and thereon alleges that Defendants and/or DOES 1-50, and each of them, willfully and/or with reckless indifference violated California Government Code Sections 12900 et seq. by harassing and discriminating against Plaintiff, as outlined above, as a result of his disability and perceived disability, age, color, and race, ancestry and national origin. Such harassment has resulted in damage and injury to Plaintiff as alleged herein. 48. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited Ml 11 COMPLAINTCo Om DN DH BF BY & NN NY N NY NN N NY Be Be Be Be ewe ewe eH ew ew oN DW KR Bw NHN = DBO we A AA Rw NH BS to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 49. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. 50. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 51. In addition, Defendants acted despicably, willfully, knowingly, intentionally, maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for their improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code § 3294. 52. Plaintiff is informed and believes and thereon alleges that Defendants had advance knowledge of the unfitness of their employees who acted on their behalf in committing the wrongs alleged herein, and employed them with a conscious disregard of the tights or safety of others including Plaintiff, and also authorized or ratified the wrongful conduct for which the damages are sought, as well as being personally guilty of oppression, fraud or malice. Said advance knowledge is alleged to be on the part of an officer, director, or managing agent of the corporate Defendants. Further the acts were committed with the knowledge of Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of Defendants and/or DOES 1-25. 53. As a result of the conduct of Defendants and/or Does 1-50, and each of them, Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. 12 COMPLAINTC0 2 XQY DH RB WwW HY Hw NY N NY N NY NR NR NY YH eB eee ea a ae ee eo nryrynun FB YN KF STO we A AHWR wD NH FS WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. FOURTH CAUSE OF ACTION Retaliation in Violation of FEHA (Govt. Code § 12900, et seq.) Against Defendant SANTA CLARA UNIVERSITY 54. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 55. As alleged above, Defendants have retaliated against Plaintiff based on his complaints and reports of discrimination and requesting reasonable accommodations. 56. Pursuant to the California Government Code, § 12900 et seq., Plaintiff had a legal right to be free from discrimination, including disability discrimination and had a right to a good faith interactive process to determine what accommodations could be made so that he could perform the essential functions of multiple positions. As an employer with more than five employees, Defendants and/or DOES 1-50, are liable. 57. As a result of Plaintiffs protesting discrimination and requesting reasonable accommodations and being placed on medical leave, Defendants knew and was aware of Plaintiffs disability. Further, as a result of Plaintiffs requesting to be free of disability discrimination he was subjected to retaliation. Accordingly, Plaintiff has been subjected to unlawful retaliation in violation of California Government Code §12940. 58. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 59. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. 60. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who 13 COMPLAINToO YN DH HM RF WHY He NY N NY RY BY N NN Nee ee Oe Re ue Oe ony A HA BF YWwNH KF SOCOM KR AA BR DDH BS were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 61. In addition, Defendants acted despicably, willfully, knowingly, intentionally, maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code § 3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance knowledge of the unfitness of their employees who acted on their behalf in committing the wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of others including Plaintiff, and also authorized or ratified the wrongful conduct for which the damages are sought, as well as being personally guilty of oppression, fraud or malice. Said advance knowledge is alleged to be on the part of an officer, director, or managing agent of the corporate Defendants. Further the acts were committed with the knowledge of the Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the Defendants and/or DOES 1-25. 62. As a result of the conduct of Defendants and/or Does 1-50, and each of them, Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. FIFTH CAUSE OF ACTION Failure to Engage in a Good Faith Interactive Process in Violation of FEHA (Govt. Code § 12900, et seq.) Against Defendant SANTA CLARA UNIVERSITY 63. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 64. Plaintiff is an individual with a disability or perceived disability who with or without reasonable accommodations could perform the essential functions of multiple positions. 14 COMPLAINTco 0D mem IN DW BR YW NY Plaintiff has a record of a disability, and was perceived by the Defendants as having a disability. 65. Defendants and/or Does 1-25, and each of them, were required to engage in a good faith interactive process to determine if Plaintiff's disability could be accommodated without undue hardship. Defendants failed to do so. 66. At all times herein mentioned, Plaintiff was willing and able to perform the duties and functions of multiple positions. At no time would the performance of the employment position, with a reasonable accommodation for Plaintiff's disability, have been a danger to the health and safety of any person. 67. As a direct and proximate result of the unlawful conduct of Defendants and/or Does 1-25, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 68. As a direct and proximate result of the unlawful conduct of Defendants and/or Does 1-25, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. 69. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or Does 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or Does 1-25, and each of them, are therefore liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 70. Defendants and/or Does 1-25, and each of them, committed the acts herein alleged maliciously, fraudulently, and oppressively in conscious disregard for Plaintiffs rights. Such acts were committed by and/or ratified by, and or were committed with the knowledge of employee's lack of fitness in the workplace but were allowed to proceed, by officers, directors, and/or managing agents of Defendants and/or Does 1-25. Plaintiff is, therefore, entitled to recover punitive damages from Defendants in an amount according to proof at trial. 15 COMPLAINTSo OB NY DH BF WN = NbN NY NY YN NR NR HY BS eB ew Be Be we we ee oy A UB HN = FS OwHM KA AAREAH BS 71. As a result of the conduct of Defendants and/or Does 1-25, and each of them, Plaintiff was forced to retain an attorney in order to protect his rights. Accordingly, Plaintiff seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. SIXTH CAUSE OF ACTION Failure to Take Reasonable Steps to Prevent Discrimination From Occurring in Violation of FEHA (Govt. Code § 12900, et seq.) Against Defendant SANTA CLARA UNIVERSITY 72. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 73. Plaintiff is informed, believes, and thereon alleges that Defendant and/or DOES 1-50, and each of them, failed to take all reasonable steps to prevent and/or stop discrimination, harassment, and retaliation from occurring in the workplace, in violation of section 12940(k) of the Government Code. 74. Plaintiff is informed, believes, and thereon alleges that discrimination against him resulted from the Defendant's failure to have in place a prophylactic anti-discrimination policy and/or reporting mechanism and failed to take all reasonable steps to prevent discrimination and harassment from occurring in the workplace. 75. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 76. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. MW 16 COMPLAINTom nr Aw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 77. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 78. In addition, Defendants acted despicably, willfully, knowingly, intentionally, maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code § 3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance knowledge of the unfitness of their employees who acted on their behalf in committing the wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of others, including Plaintiff, and also authorized or ratified the wrongful conduct for which the damages are sought, as well as being personally guilty of oppression, fraud or malice. Said advance knowledge is alleged to be on the part of an officer, director, or managing agent of the Defendants. Further the acts were committed with the knowledge of the Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the Defendants and/or DOES 1-25. 79. As a result of the conduct of Defendants and/or Does 1-50, and each of them, Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. SEVENTH CAUSE OF ACTION Unlawful Medical Inquiry in Violation of FEHA (Government Code §12940, et seq.) Against Defendant SANTA CLARA UNIVERSITY 80. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. Ml 17 COMPLAINToOo Oe DN DH FF BW NY = N N NY NY NY NY NN NY Fe Be Be Be Be ewe ew we De on DUM BF YWNH KF SOD we RQ AA BR wD NH BS 81. Plaintiff alleges that Defendants made unlawful inquiries regarding his disabilities and medical status prior to offering employment in new positions, and unlawful medical inquiries related to its 100% healed policy. 82. Pursuant to the California Government Code, § 12900 et seq., Plaintiff had a legal right to be free from discrimination, including disability discrimination and had a right to a good faith interactive process to determine what accommodations could be made so that he could perform the essential functions of multiple positions. As an employer with more than five employees, Defendants and/or DOES 1-50, are liable. 83. As a result of Plaintiffs requesting reasonable accommodations and being placed on medical leave, Defendants knew and was aware of Plaintiff's disability. Further, as a result of Plaintiffs requesting to be free of disability discrimination he was subjected to retaliation. Accordingly, Plaintiff has been subjected to unlawful retaliation in violation of California Government Code §12940. 84. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered special damages including but not limited to past and future loss of income, benefits, medical expenses, and other damages to be proven at time of trial. 85. As a direct and proximate result of the unlawful conduct of Defendants and/or DOES 1-50, and each of them, Plaintiff has suffered general damages including but not limited to shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress and other damages to be proven at the time of trial. 86. The unlawful conduct alleged above was engaged in by the officers, directors, supervisors and/or managing agents of Defendants and/or DOES 1-25, and each of them, who were acting at all times relevant to this Complaint within the scope and course of their employment. Defendants and/or DOES 1-25 are, therefore, liable for the conduct of said agents and employees under the Doctrine of Strict Liability. 87. In addition, Defendants acted despicably, willfully, knowingly, intentionally, maliciously, oppressively, or with conscious or wanton or reckless disregard for the rights of 18 COMPLAINToem ND HA BF WN =| NY N NY NY NY N NN N ee Be Be Be eB eB ew ew EL oN DA UM FF BY NF SDD we RA DAA BR wD NH BS Plaintiff, who is therefore entitled to an award of punitive damages against Defendants for the improper conduct, as well as all appropriate exemplary damages pursuant to Civil Code § 3294. Plaintiff is informed and believes and thereon alleges that the Defendants had advance knowledge of the unfitness of their employees who acted on their behalf in committing the wrongs alleged herein, and employed them with a conscious disregard of the rights or safety of others including Plaintiff, and also authorized or ratified the wrongful conduct for which the damages are sought, as well as being personally guilty of oppression, fraud or malice. Said advance knowledge is alleged to be on the part of an officer, director, or managing agent of the corporate Defendants. Further, the acts were committed with the knowledge of the Defendants and/or DOES 1-25 and were allowed to proceed by officers, directors, and/or managing agents of the Defendants and/or DOES 1-25. 88. As a result of the conduct of Defendants and/or Does 1-50, and each of them, Plaintiff further seeks the reasonable attorney's fees and costs incurred in this litigation in an amount according to proof at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below. EIGHTH CAUSE OF ACTION Wrongful Termination in Violation of Public Policy Against Defendant SANTA CLARA UNIVERSITY 89. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 90. At all times relevant there was an employer/employee relationship between Plaintiff and Defendant. 91. It is the public policy of the State of California to prohibit employers from terminating or retaliating against employees who have complained about discrimination on the basis of a protected category or who have requested reasonable accommodations. 92. Defendant wrongfully terminated Plaintiff's employment rather than providing him a reasonable accommodation and in violation of California Government Code, §12900 et seq. Ml 19 COMPLAINTCo em NY DH BF Www Ke _ oS 11 93. Plaintiffs employment was terminated as a result of Defendant's violation of fundamental public policies, including California Government Code, §12900 et seq. It is against fundamental California public policy to terminate an employee in violation of California's anti-discrimination laws. 94. A tortious termination subjects the employer to “liability for compensatory and punitive damages under normal tort principles.” Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101. 95. As a direct, foreseeable and proximate result of Defendants’ conduct, Plaintiff suffered harm, including mental distress, and other general and special damages, all to Plaintiffs damage in an amount to be proven at trial. 96. As a proximate result of Defendant's treatment of Plaintiff, Plaintiff has suffered and continues to suffer substantial losses in earnings, and other employment benefits and has suffered and continues to suffer embarrassment, humiliation, emotional distress, mental anguish, and anxiety all to her damage in an amount to be proven at trial. 97. The actions alleged herein were done with malice, fraud, and oppression, and in reckless disregard for Plaintiffs rights. Accordingly, Defendants are liable to Plaintiff for punitive damages in an amount to be proven at trial. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. NINTH CAUSE OF ACTION Declaratory Relief Against Defendant SANTA CLARA UNIVERSITY 98. By this reference, Plaintiff hereby incorporates each and every paragraph set forth in this pleading. 99. Government Code § 12920 sets forth the public policy of the State of California as follows: It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, 20 COMPLAINToe YN DA HW PF WN YH NN NY N NN NR KY NY HB Be ewe ewe ewe we eB ew ew iL ao ya Dn nA FF YW NH KF DODO we IQ DH BF wWwNH SF S 100. states: 101. 102. Defendants concerning their respective rights and duties as it is believed that Defendants may allege that Plaintiff was not discriminated, harassed and/or retaliated against on account of his disability, but was subjected to legitimate, non-discriminatory personnel actions. Plaintiff contends that he was discriminated, harassed and/or retaliated against on account of his disability. Plaintiff also contends that Defendants failed to take all steps reasonably necessary medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general. Further, the practice of discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations is declared to be against public policy. It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices. This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the people of this state. Government Code §12920.5 embodies the intent of the California legislature and In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful employment practices and redress the adverse effects of those practices on aggrieved persons. To that end, this part shall be deemed an exercise of the Legislature's authority pursuant to Section 1 of Article XIV of the California Constitution. Moreover, Government Code §12921, subdivision (a) says in pertinent part: The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation is hereby recognized as and declared to be a civil right. An actual controversy has arisen and now exists between Plaintiff and 21 COMPLAINTC0 Oe IQ DH BF BN & N N YN N NN KY KY BH Be ee ewe ewe ewe ew ew iL ony nn fF WN FE SO we RA AA KR wDW NH BS to prevent the discrimination, harassment and retaliation from occurring. Plaintiff is informed and believes, and on that basis alleges, that Defendants dispute Plaintiff's contention. 103. Pursuant to Code of Civil Procedure §1060, Plaintiff desires a determination of his rights and duties, and a declaration that the discrimination, harassment and/or retaliation he was subjected to was on account of his disability and matters related to his disability. 104. A declaration is necessary and appropriate at this time under the circumstances in order that Plaintiff, for himself and on behalf of employees of the State of California and in conformity with the public policy of the State, obtain a declaration of the wrongdoing of Defendants and to condemn such discriminatory and/or harassing and/or retaliatory conduct in employment policies or practices. Harris v. City of Santa Monica (2013) 56 Cal. 4th 203. 105. A declaration is necessary and appropriate at this time such that Defendants and/or their owners, managers and supervisors may also be aware of their obligations under the law to not engage in discriminatory and/or harassing and/or retaliatory practices or violate the law and that Defendants have an obligation under the law to take all steps reasonably necessary to prevent discrimination, harassment and/or retaliation from occurring in the work place. 106. Government Code §12965(b) provides that an aggrieved party, such as the Plaintiff herein, may be awarded reasonable attorney's fees and costs. “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's fees and costs, including expert witness fees.” Such fees and costs expended by an aggrieved party may be awarded for the purpose redressing, preventing, or deterring discrimination. WHEREFORE, Plaintiff prays for judgment against Defendants as hereinafter set forth. PRAYER WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 1. For monetary relief in a sum according to proof, including, but not limited to, lost wages, promotions, benefits, and retirement benefits; Ml 22 COMPLAINToO DYN DH BF WHY =| NbN Ye NY NY N NN NY Be Be Be Be we we ew ewe me eS XY DA BH NH = SO we AA WR DN F|Y) 2. For an Order that Plaintiff be reinstated and made whole and afforded all benefits attendant thereto that would have been afforded Plaintiff but for said discrimination, harassment, and retaliation; 3. For special damages according to proof, 4. For general damages according to proof; 5. For an injunction restraining the Defendants from continuing or maintaining any policy, practice, custom or usage which is retaliatory in nature against any employee making a request for reasonable accommodations; 6. For an order requiring Defendants to undergo disability discrimination training; 7. For punitive damages according to proof, 8. For interest on the damages awarded, including prejudgment interest; 9. For reasonable attorney's fees and costs, including costs of expert witnesses, pursuant to statute, including but not li