Motion to Amend in Tharp, Dylan vs. John L. Sullivan Dodge Chrysler, Inc| Trellis.Law

On May 24, 2020 a Complaint,Petition was filed involving a dispute between Dylan Tharp, and John L. Sullivan Dodge Chrysler, Inc, for Civil-Roseville in the District Court of Placer County.

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11/10/2020
1 Michael M. Astanehe, SBN 312965
ASTANEHE LAW
2 201 Mission Street, 12th Floor
3 San Francisco, California 94105
Phone: (415) 226-7170 | Fax: (415) 462-1732
4 Email: mastanehe@astanehelaw.com
5
6 Attorney for Plaintiff
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF PLACER
10 UNLIMITED JURISDICTION
201 Mission Street, 12th Floor, San Francisco, California 94105

11
12 DYLAN THARP, Case No.: S-CV-0044959
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13 Plaintiff,
14 FIRST AMENDED COMPLAINT FOR:
v. 1. NEGLIGENCE;
15 2. FAILURE TO TAKE REASONABLE
JOHN L. SULLIVAN DODGE CHRYSLER, STEPS TO PREVENT HARASSMENT &
16 INC., and RETALIATION;
17 DOES 1 to 20, inclusive, 3. DISCRIMINATION IN VIOLATION OF THE
FAIR EMPLOYMENT & HOUSING ACT;
18 Defendants. 4. HARASSMENT IN VIOLATION OF THE
FAIR EMPLOYMENT & HOUSING ACT;
19
5. WRONGFUL TERMINATION IN
20 VIOLATION OF THE FAIR EMPLOYMENT
& HOUSING ACT;
21 6. DISCRIMINATION IN VIOLATION OF THE
22 CALIFORNIA FAMILY RIGHTS ACT;
7. HARASSMENT & RETALIATION IN
23 VIOLATION OF THE CALIFORNIA
FAMILY RIGHTS ACT;
24 8. WRONGFUL TERMINATION IN
25 VIOLATION OF THE CALIFORNIA
FAMILY RIGHTS ACT;
26 9. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY;
27 10. RETALIATION FOR EXERCISE OF
28 PROTECTED RIGHTS;

FIRST AMENDED COMPLAINT - 1
1 11. ITEMIZED WAGE STATEMENT
VIOLATIONS;
2 12. FAILURE TO PRODUCE EMPLOYEE
3 RECORDS TIMELY;
13. VIOLATION OF CALIFORNIA UNFAIR
4 COMPETITION LAW;
14. INTENTIONAL INFLICTION OF
5 EMOTIONAL DISTRESS;
6 15. PAGA; AND,
16. DECLARATORY & INJUNCTIVE RELIEF.
7
DEMAND FOR JURY TRIAL
8
9
Plaintiff DYLAN THARP (“Plaintiff”), on behalf of himself and on behalf of the people of
10
the State of California and as an “aggrieved employee” acting as a private attorney
201 Mission Street, 12th Floor, San Francisco, California 94105

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general under the Labor Code Private Attorneys General Act of 2004, section 2699, et
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seq. (“PAGA”), based upon personal knowledge as to himself and his acts, and as to all
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other matters upon information and belief, and based upon, inter alia, the investigations
14
of counsel and the facts that are a matter of public record:
15
INTRODUCTION
16
1. Plaintiff DYLAN THARP brings this action on behalf of himself and as an
17
aggrieved employee acting as a private attorney general under PAGA, and on behalf of
18
the people of the State of California against Defendant for: (1) their failure to adhere to
19
California Labor Code sections 226, 1198.5, 201, 202, and 203; and, (2) PAGA and
20
other damages based on the foregoing. As a result of the foregoing, Defendant has
21
violated California statutory laws as described below. Persons who have worked for
22
Defendant in the last four years are sometimes referred to as “aggrieved employees,” or
23
“others similarly situated.”
24
PARTIES
25
2. Plaintiff DYLAN THARP is an individual residing in the County of Sutter,
26
California. Plaintiff THARP worked as a direct sales manager at Defendant’s Roseville,
27
California facility. Plaintiff THARP is an aggrieved employee.
28

FIRST AMENDED COMPLAINT - 2
1 3. Defendant JOHN L. SULLIVAN DODGE CHRYSLER (“JLS”) is, and at all times

2 herein mentioned was, a company operating in Northern California, engaging in the sale

3 of new and used automobiles.

4 4. Plaintiff THARP and all of the other aggrieved employees are, and at all times

5 pertinent, have been classified as employees by Defendant JLS. Defendant JLS hires

6 employees to work in California. Defendant JLS employs more than 50 employees at

7 numerous jobsites throughout the State of California.

8 5. Plaintiff THARP represents the State of California as well as a group of aggrieved

9 employees defined as: all individuals who were or are currently employed by Defendant

10 JLS in California in non-exempt positions from June 2016 to the present.
201 Mission Street, 12th Floor, San Francisco, California 94105

11 6. Defendant JLS, and DOES 1 through 20 are sometimes collectively referred to

12 herein as “Defendants.”
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7. Plaintiff is ignorant of the true names and capacities of defendants named in this
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14 First Amended Complaint as DOES 1 through 20, inclusive, and therefore sues these

15 defendants by such fictitious names. Plaintiff will amend this First Amended Complaint

16 to allege their true names and capacities when ascertained. Plaintiff is further informed

17 and believe, and allege, that each of these fictitiously named defendants, at all relevant

18 times, is negligently responsible in some manner for the occurrences alleged in this

19 First Amended Complaint, and that Plaintiffs’ injuries as alleged were proximately

20 caused by such carelessness and negligence.

21 8. Plaintiff is informed and believes and alleges that the defendants sued herein,

22 including those fictitious defendants sued as DOES 1 through 20, are the agents,

23 servants, and/or employees of each of the other defendants and in doing the things

24 hereinafter alleged, were acting in the course and scope of said agency and/or

25 employment.

26 9. All Defendants compelled, coerced, aided, and/or abetted the discrimination,

27 retaliation, and harassment alleged in this First Amended Complaint, which conduct is

28 prohibited under California Government Code section 12940(i). All Defendants were

FIRST AMENDED COMPLAINT - 3
1 responsible for the events and damages alleged in this First Amended Complaint,

2 including by: (a) Committing the alleged acts; (b) Being the agent or employee, and/or

3 acting under the control or supervision, of one or more of the remaining Defendants

4 and, in committing the acts alleged, acted within the course and scope of such agency

5 and employment and/or is or otherwise liable for Plaintiff’s damages; (c) Possessing a

6 unity of ownership and interest between or among two or more of the Defendants such

7 that any individually and separateness between or among those Defendants has

8 ceased, and being the alter egos of one another. Defendants exercised domination and

9 control over one another to such an extent that any individuality or separateness does

10 not, and at all times herein mentioned did not exist. Adherence to the fiction of the
201 Mission Street, 12th Floor, San Francisco, California 94105

11 separate existence of Defendants would permit abuse of the corporate privilege and

12 would sanction fraud and promote injustice. All Defendants’ actions were taken by
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employees, supervisors, executives, officers, and directors during employment with
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14 Defendants were taken on behalf of Defendants were engaged in, authorized, ratified,

15 and approved by all other Defendants.

16 10. Defendant JLS directly and indirectly employed Plaintiff as defined in the Fair

17 Employment & Housing Act (“FEHA”). GOVERNMENT CODE § 12926(d).

18 11. Defendant JLS compelled, coerced, aided, and abetted the discrimination, which

19 is prohibited under FEHA. GOVERNMENT CODE §§ 12940(i) & 12945.2.

20 12. At all pertinent times, all Defendants acted as agents of all other Defendants in

21 committing the alleged acts.

22 JURISDICTION & VENUE

23 13. Jurisdiction and venue in this Court are proper because the unlawful practices

24 occurred in Placer County, California.

25 14. Damages sought are within the Court’s jurisdiction. Venue is proper in Placer

26 County, California under California Government Code section 12965(b) and California

27 Code of Civil Procedure section 395 because the unlawful practices occurred in Placer

28 County. Further, Defendant JLS does business in Placer County.

FIRST AMENDED COMPLAINT - 4
1 FACTUAL ALLEGATIONS

2 15. In 2018, Plaintiff THARP commenced employment as an entry-level floor sales

3 associate for Defendant JLS.

4 16. Throughout his employment, Plaintiff THARP exceeded expectations, was

5 beloved by colleagues, recognized as an outstanding employee, and excelled in his

6 position. By mid-2019, Defendant promoted Plaintiff THARP to a Direct to Sales

7 Manager.

8
DEFENDANT UNLAWFULLY TERMINATED PLAINTIFF THARP IN VIOLATION OF
9 THE CALIFORNIA FAMILY RIGHTS ACT

10 17. In late-July 2020, Plaintiff THARP’S sixty-five-year-old mother – who lives 164
201 Mission Street, 12th Floor, San Francisco, California 94105

11 miles away from Plaintiff THARP in Santa Cruz, California – suffered a stroke. Plaintiff
12 THARP learned of the medical emergency on a work night. Although he informed his
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13 manager, Joshua Joseph, about the unfortunate development the next day, Defendant
14 JLS never provided Plaintiff THARP with information regarding his right to family leave.
15 18. Following his mother’s severe medical emergency, Plaintiff THARP found it
16 impossible to focus at work. He was in shambles and constantly worrying about his
17 mom. Although Plaintiff THARP visited his mom at a Santa Cruz hospital, he initially
18 refrained from taking leave from work, avoiding the risk of running afoul of Defendant
19 JLS during its busy summer sales season.
20 19. Plaintiff THARP, who is disabled, found it increasingly difficult to care for his
21 children, tend to his ailing mother, manage his disability, and work simultaneously. He
22 feared trying to balance the responsibilities would aggravate his disability and ultimately
23 jeopardize his health. Recognizing the need to care for his family, Plaintiff THARP
24 obtained a medical letter for leave on August 29, 2019. Plaintiff THARP provided
25 Defendant JLS with the letter, who approved the request on October 7, 2019.
26 20. While taking care of his mom, Plaintiff THARP learned that her recovery timeline
27 elongated from a couple of months to over a year. Plaintiff THARP discovered that his
28

FIRST AMENDED COMPLAINT - 5
1 mom was at risk of serious re-injury, possibly even death, if she were left to recover

2 alone.

3 21. Determined to assist his mom with recovery while maintaining his personal

4 health, Plaintiff obtained a second letter from his doctor, which extended his leave of

5 absence until April 26, 2020. Plaintiff THARP furnished the letter to Defendant JLS on

6 approximately September 25, 2020.

7 22. Defendant JLS ostensibly honored Plaintiff THARP’S leave. In response to the

8 second letter, Kim, a human resources employee, assured Plaintiff THARP his leave

9 was protected, stating, “Don’t worry about your FMLA. Take all of the time you need.

10 We’ll roll you over [into something else] and keep you protected.” Although it was
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11 unclear which benefit Kim referenced, Plaintiff THARP trusted his employer would

12 accommodate him as Plaintiff THARP continued caring for his mom and managing his
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disability.
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14 23. By December 2019, Defendant JLS’ succor dimmed into the company fervently

15 badgering Plaintiff THARP to return. That month, Jordan Rogers, a manager who

16 happened to be a son of one of the owners, started regularly contacting Plaintiff THARP

17 and demanding Plaintiff THARP prematurely return. Throughout December 2019, Mr.

18 Rogers and Plaintiff THARP exchanged numerous texts and spoke on the phone at

19 least once. Mr. Rogers knew that Plaintiff THARP was on leave to care for his

20 recovering mom and due to disability. Each time they talked, Plaintiff THARP reiterated

21 that he was continuing to provide essential healthcare to his mom, and that managing

22 his disability was integral to providing care.

23 24. By January 2020, Plaintiff THARP’S mother’s condition has worsened and she

24 was diagnosed with generative disk disease. Plaintiff THARP continued providing care

25 to his mom, who was unable to walk without assistance.

26 25. During a brief January 2020 conversation, Cozzet Lambert, a payroll

27 administrator, inquired when Plaintiff THARP planned to return to work. Plaintiff

28 answered that his mom was able to live independently, and he had to be mindful of his

FIRST AMENDED COMPLAINT - 6
1 disability. Plaintiff THARP alluded to permanently relocating to Roseville with his mom,

2 which would make simultaneously balancing his disability, family obligations, and his

3 mom’s recovery manageable. However, Plaintiff indicated that the plan was not

4 presently feasible. His mom could not handle such a drastic move. Plaintiff THARP

5 planned to discuss the move with his mom soon and closed the call by informing Ms.

6 Lambert that he planned to relocate back to Roseville by April 2020.

7 26. Within days of the phone call, Defendant JLS precipitously unlawfully terminated

8 Plaintiff THARP, claiming that it did not have an obligation to reinstate him to, “any

9 position,” and that his employment was separated as of January 16, 2020. Defendant

10 JLS also falsely stated that Plaintiff THARP had voluntarily quit from his position
201 Mission Street, 12th Floor, San Francisco, California 94105

11 because he was, “unable to return from leave.” This statement belies the fact that

12 Plaintiff THARP was still entitle to exercise his right to leave until April 2020 and had not
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indicated that he was unable to return to work then. In sum, Defendant JLS unlawfully
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14 terminated Plaintiff THARP in retaliation for exercising his right to FEHA & CFRA leave

15 to manage his disability and care for his ailing mother.

16 DEFENDANT JLS FAILED TO PROVIDE LAWFUL ITEMIZED WAGE STATEMENTS

17 27. Throughout Plaintiff THARP’S employment Defendant JLS did not provide wage

18 statements stating the company’s legal name and address, and the applicable hourly

19 rates in effect during the pay period, and the corresponding number of hours Plaintiff

20 THARP worked at each hourly rate. Further, Defendant JLS’ paystubs did not show the

21 total hours Plaintiff THARP worked during that pay period, in violation of California law.

22 28. Defendant JLS engages in a pattern of not adhering to California’s itemized wage

23 statement laws. The aggrieved employees similarly do not receive adequate wage

24 statements that comply with California law.

25 DEFENDANT JLS IGNORED PLAINTIFF THARP’S EMPLOYEE RECORD REQUEST

26 29. On March 27, 2020, Plaintiff THARP orally requested that Defendant JLS provide

27 his employment records. Although Defendant JLS provided a partial production in early

28 April-2020, several items were missing, including Plaintiff THARP’S complete wage

FIRST AMENDED COMPLAINT - 7
1 statements. More than thirty days have elapsed since Plaintiff THARP’S records

2 request and Defendant JLS has not provided a complete production.

3 30. Defendant JLS engages in a pattern of not adhering to California’s final pay laws.

4 The aggrieved employees similarly do not receive their earned pay at separation,

5 according to California law.

6 PLAINTIFF THARP EXHAUSTED HIS ADMINISTRATIVE REMEDIES

7 31. Prior to filing this action, Plaintiff THARP exhausted his administrative remedies

8 by filing a timely administrative charge with DFEH, and receiving a DFEH right-to-sue

9 letter.

10 32. On or around May 21, 2020, Plaintiff THARP filed a charge with DFEH for family
201 Mission Street, 12th Floor, San Francisco, California 94105

11 discrimination and California Family Rights Act violations, and disability discrimination in

12 violation of FEHA against Defendant JLS. DFEH issued a Notice to Complainant and
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Respondent and Right to Sue on or around May 21, 2020.
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14 33. Prior to filing this action, Plaintiff THARP exhausted his administrative remedies

15 by filing and timely providing written notice by certified mail to the LWDA and Defendant

16 JLS of the legal claims and theories of this case, including the allegations contained in

17 ¶¶ 1-25 and 30-36 of this First Amended Complaint.

18 34. Plaintiff THARP submitted notice to the LWDA on August 17, 2020. Since more

19 than sixty-five days have elapsed since Plaintiff THARP submitted his notice to the

20 LWDA without receiving a response, Plaintiff THARP has exhausted his administrative

21 remedies as required under California Labor Code section 2699.3.

22 PLAINTIFF THARP SUFFERED SERIOUS EMOTIONAL DISTRESS

23 35. Plaintiff THARP suffered serious emotional distress due to Defendant JLS’

24 conduct. Being harassed and hounded to prematurely return – abandoning his sixty-

25 five-year old mother in her moment of need – caused Plaintiff THARP anxiety, worry,

26 and shock. He was stunned that Defendant JLS demanded his return to work under

27 these circumstances.

FIRST AMENDED COMPLAINT - 8
1 36. Further, Defendant JLS’s increasingly strong-arm tactics – including having the

2 owner’s son urge Plaintiff THARP to return – were designed to coerce a premature

3 return. This conduct caused Plaintiff THARP confusion, depression, and panic attacks.

4 By January 2020, Plaintiff THARP feared that Defendant JLS would retaliate against

5 him for taking protected leave. Plaintiff THARP felt powerless as Defendant JLS

6 continued browbeating him into abandoning his mom.

7 37. Plaintiff THARP felt he was unfairly forced to choose between his job and his

8 mom.

9 38. Falling victim to retaliation caused Plaintiff THARP to feel confusion, shock,

10 worry, fear, and hopelessness. Plaintiff THARP also suffered humiliation,
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11 embarrassment, and degradation as a result of the unlawful termination. Plaintiff

12 THARP was devastated by the unexpected job loss, mainly because Defendant
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untruthfully claimed that he had voluntarily quit.
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14 39. For weeks, Plaintiff THARP suffered depression and anxiety due to Defendant

15 JLS’ retaliatory and unlawful termination. Plaintiff THARP’S mom and children noticed a

16 change in his demeanor. As Plaintiff THARP now faces the prospect of extended

17 unemployment, he constantly worries about his finances. Since suffering the unlawful

18 termination, Plaintiff THARP has spent hours crying, feeling frustrated, angry, hopeless,

19 and battling crippling anxiety.

20 40. Further, Plaintiff THARP fears that he suffered harm to his professional

21 reputation as a result of the unlawful and retaliatory termination, and worries that he will

22 not be able to find a comparable replacement position.

23 PLAINTIFF THARP SUFFERED BODILY INJURY

24 41. Plaintiff THARP suffers immense bodily injury. Plaintiff THARP regularly suffered

25 headaches, anxiety attacks, and shortness of breath while employed at Defendant JLS.

26 These conditions have compounded as a result of the unlawful termination. Plaintiff

27 THARP also suffers from acute muscle aches.

FIRST AMENDED COMPLAINT - 9
1 42. Defendants could have refrained from engaging in harassing, retaliatory, and

2 discriminatory conduct against Plaintiff but did not do so.

3 43. Plaintiff has incurred substantial damages as a result of Defendants’ actions,

4 including but not limited to the failure to prevent harassment, discrimination, and

5 retaliation, harassment, discrimination, and retaliation, and several adverse employment

6 actions, including wrongful termination.

7 44. Although the full extent and amounts of such damages are not yet ascertainable,

8 Plaintiff is informed and believes, and upon such information and belief allege, that the

9 aggregate amount of such damages is in excess of the minimum jurisdiction of this

10 Court.
201 Mission Street, 12th Floor, San Francisco, California 94105

11 45. Defendant’s conduct warrants an award of punitive damages because

12 Defendant’s actions were willful, malicious, and oppressive. Defendant JLS’
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misconduct was committed intentionally, in a malicious, oppressive, fraudulent manner,
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14 with reckless disregard of the Plaintiff’s Labor Code, CFRA, & FEHA rights.

15 Specifically, Defendant harassed, discriminated, and retaliated against Plaintiff THARP

16 after he took medical and family leave to care for his ill mother, by interfering with his

17 CFRA leave, demanding that he abandon his mom to force a premature return to work.

18 When Plaintiff THARP asserted his right to reasonable accommodation, Defendant CLS

19 unlawfully terminated in retaliation for exerting his statutory rights. As a result of

20 Defendant JLS’ blatant disregard for numerous laws, forcing Plaintiff THARP to suffer a

21 deprivation of his rights, and that such conduct was committed in response to Plaintiff

22 THARP suspending work to care for his recovering elderly mother, Plaintiff THARP is

23 entitled to a substantial punitive damage award.

24 FIRST CAUSE OF ACTION FOR NEGLIGENCE

25 (AGAINST ALL DEFENDANTS)

26 46. Plaintiff incorporates by reference the preceding paragraphs of the First

27 Amended Complaint as though fully set forth herein.

FIRST AMENDED COMPLAINT - 10
1 47. On information and belief, prior to and after Plaintiff THARP suffered

2 discrimination, harassment, and retaliation, Defendant JLS knew or should have known

3 that its employees were capable of violating the law and Plaintiff’s rights.

4 48. Defendant JLS has an affirmative and mandatory duty to protect its employees,

5 including Plaintiff THARP, from discrimination, harassment, and retaliation. Nazir v.

6 United Airlines, Inc., 178 Cal. App. 4th 243, 288 (2009). Defendant JLS also has a duty

7 to provide reasonable accommodation. Gelfo v. Lockheed Martin Corp., 140 Cal. App.

8 4th 34, 61 (2006). Under Government Code As such, Defendant JLS owed Plaintiff

9 THARP a duty of care. This duty of care arose from Plaintiff and Defendant’s

10 employer/employee relationship.
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11 49. Defendant breached its duties of care to Plaintiff THARP by: (a) By failing to

12 honor Plaintiff THARP’S request for accommodation related to his disability and medical
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condition; (b) By failing to take reasonable steps to prevent discrimination, harassment,
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14 and retaliation; (c) By failing to adequately hire, supervise, and/or retain employees who

15 would abstain from discriminatory, harassing, and/or retaliatory conduct; (d) By

16 retaliating against Plaintiff THARP for taking leave to care for his disabled and

17 recovering mom; (e) By retaliating against Plaintiff THARP for taking leave due to his

18 disability; (f) By harassing and retaliating against Plaintiff THARP for associating with a

19 person with a disability; and, (g) By allowing its employees engage in a campaign of

20 adverse employment actions, including wrongful termination, based on Plaintiff

21 THARP’S disability, need for accommodation, and for taking family leave.

22 50. Defendant JLS knew or should have known that its employees were engaging in

23 a campaign of discrimination, harassment, and/or retaliation against Plaintiff THARP

24 based on his disability, accommodation request, and family leave.

25 51. Defendant JLS knew or should have known that its employees were harassing,

26 discriminating, and retaliating against Plaintiff THARP for his lawful accommodation

27 request to care for his disabled and recovering mom, including by interfering with

28 Plaintiff THARP’S family leave, demanding that Plaintiff THARP abandon his mom in

FIRST AMENDED COMPLAINT - 11
1 her time of need to prematurely return to work, and by wrongfully terminating Plaintiff

2 THARP from his employment at Defendant JLS in retaliation for taking family leave,

3 requesting accommodation, and due to his disability.

4 52. Defendant JLS knew or should have known that its employees were harassing,

5 discriminating, and retaliating against Plaintiff THARP because of his disability,

6 including by interfering with Plaintiff THARP’S medical leave, failing to provide Plaintiff

7 THARP with a reasonable accommodation, demanding that Plaintiff THARP abruptly

8 terminate leave to prematurely return to work, and by wrongfully terminating Plaintiff

9 THARP from his employment at Defendant JLS in retaliation for requesting

10 accommodation and due to his disability.
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11 53. Defendant JLS knew or should have known that its employees were unlawfully

12 harassing, discriminating, and retaliating against Plaintiff THARP for exerting protected
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rights, including by interfering with Plaintiff THARP’S medical leave, failing to provide
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14 Plaintiff THARP with a reasonable accommodation, demanding that Plaintiff THARP

15 abruptly terminate leave and family leave to prematurely return to work, and by

16 wrongfully terminating Plaintiff THARP from his employment at Defendant JLS in

17 retaliation for exerting his protected rights.

18 54. By failing to provide a work environment free from discrimination, harassment,

19 and retaliation, Defendant JLS created a risk of harm, as contemplated by California

20 law, and as a result, unreasonably and wrongfully exposed Plaintiff THARP to

21 discrimination, harassment, retaliation, and injury.

22 55. But for Defendant JLS’ breach, Plaintiff THARP’S injuries would have been

23 avoided. Thus, Defendant JLS’ carelessness and negligence was a substantial factor in

24 causing Plaintiff THARP’S harm.

25 56. As a direct and proximate result of Defendant JLS’ breaches, Plaintiff THARP

26 suffered extreme hardship and emotional distress, including depriving Plaintiff of his

27 income & livelihood, and disrupted his family leave.

FIRST AMENDED COMPLAINT - 12
1 57. As a direct and proximate result of Defendant JLS’ breaches conduct, Plaintiff

2 THARP suffered and continues suffering serious emotional distress. Plaintiff THARP

3 has sustained and continues sustaining substantial lost earnings and other employment

4 benefits due to the infliction of emotional distress.

5 58. As a direct and proximate result of Defendant JLS’ breaches, Plaintiff THARP

6 has suffered and continues to suffer humiliation, emotional distress, bodily injury, and

7 mental and physical pain and anguish, to his damage according to proof.

8 SECOND CAUSE OF ACTION FOR

9 VIOLATION OF THE FAIR EMPLOYMENT & HOUSING ACT

10 FAILURE TO TAKE REASONABLE STEPS TO PREVENT
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11 HARASSMENT & DISCRIMINATION

12 (AGAINST ALL DEFENDANTS)
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(GOVERNMENT CODE § 12940(K))
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14 59. Plaintiff incorporates by reference the preceding paragraphs of the First

15 Amended Complaint as though fully set forth herein.

16 60. At all pertinent times, FEHA, Government Code section 12940(k) was in full force

17 and effect and was binding on Defendant JLS. The statute states that it is an unlawful

18 employment practice for an employer, “to fail to take all reasonable steps necessary to

19 prevent discrimination and harassment from occurring.”

20 61. Defendant JLS failed to take all reasonable steps necessary to prevent the

21 aforementioned harassment and retaliation to which Plaintiff was subjected in violation

22 of California Government Code section 12940(k). During Plaintiff THARP’S

23 employment, Defendant JLS failed to prevent their employees from engaging in

24 intentional acts that resulted in Plaintiff THARP being treated less favorably because of

25 his disability and medical condition, and mom’s disability and medical condition.

26 Defendant JLS failed to prevent a pattern and practice by its employees of

27 discrimination and harassment based on disability, accommodation request, and family

28 status.

FIRST AMENDED COMPLAINT - 13
1 62. Plaintiff believes and alleges that his disability, accommodation request, and

2 family obligations were substantial motivating factors in Defendant’s employees’

3 discrimination against and harassment of him.

4 63. Prior to filing this First Amended Complaint, Plaintiff THARP filed a timely

5 administrative charge with DFEH, and received a right-to-sue letter.

6 64. As a direct and proximate result of Defendant’s conduct, Plaintiff THARP has

7 suffered special damages in the form of lost earnings, benefits, and/or out-of-pocket

8 expenses in an amount to be proven at trial. Plaintiff will suffer additional special

9 damages in the form of lost future earnings, benefits, and/or other prospective damages

10 in an amount according to proof at trial.
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11 65. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered

12 mental and emotional pain, bodily injury, distress, and discomfort, to his detriment and
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damage in amounts. Not fully ascertained but within the jurisdiction of this Court and
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14 subject to proof at trial.

15 66. Defendant JLS acted oppressively, maliciously, fraudulently, and/or outrageously

16 towards Plaintiff, with consciousness disregard for his rights and with the intent of

17 causing, and/or willfully disregarding the probability of causing, unjust and cruel

18 hardship to Plaintiff. In so acting, Defendant JLS intended to and did injure and annoy

19 Plaintiff. Thus, punitive damages should be rendered against Defendant JLS in an

20 amount sufficient to punish them and to prevent them from willfully engaging in future

21 discriminatory and/or retaliatory conduct.

22 67. Plaintiff THARP has incurred and continues incurring legal expenses and

23 attorney fees. Pursuant to California Government Code section 12965(b), Plaintiff

24 THARP is entitled to recover attorney fees and costs (including expert costs) in an

25 amount according to proof.

26 //

27 //

FIRST AMENDED COMPLAINT - 14
1 THIRD CAUSE OF ACTION FOR DISCRIMINATION IN

2 VIOLATION OF THE FAIR EMPLOYMENT & HOUSING ACT

3 (AGAINST ALL DEFENDANTS)

4 (GOVERNMENT CODE § 12900, ET SEQ.)

5 68. Plaintiff incorporates by reference the preceding paragraphs of the First

6 Amended Complaint as though fully set forth herein.

7 69. Plaintiff is disabled.

8 70. Defendant’s conduct, as alleged, violated the Fair Employment & Housing Act

9 (“FEHA”), which is codified at Government Code section 12900, et seq., and

10 Defendants committed unlawful employment practices, including the following:
201 Mission Street, 12th Floor, San Francisco, California 94105

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

12 and/or otherwise discriminating against Plaintiff THARP, in whole or part
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based on Plaintiff THARP’S disability;
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14 b. Defendant JLS denied Plaintiff THARP’S request for reasonable

15 accommodation to remain on leave until April 2020;

16 c. Defendant JLS, and its employees, did not meaningfully engage in the

17 interactive process, as required by FEHA;

18 d. Defendant JLS discriminated against Plaintiff THARP based on his disability

19 by refusing to honor his lawful request for reasonable accommodation;

20 e. Defendant JLS prevented Plaintiff THARP from completing his essential job

21 functions;

22 f. Defendant JLS denied Plaintiff THARP full and equal employment

23 accommodations;

24 g. Failing to take all reasonable steps to prevent discrimination and harassment

25 based on disability;

26 h. Harassing and discriminating against Plaintiff THARP for his association with

27 a disabled individual;

28 i. Interfering with Plaintiff THARP while on family leave;

FIRST AMENDED COMPLAINT - 15
1 j. Harassing and discriminating against Plaintiff THARP for taking protected

2 family leave;

3 k. Retaliating against Plaintiff THARP for taking family leave;

4 l. Retaliating against Plaintiff THARP for seeking to exercise rights guaranteed

5 under FEHA and/or opposing Defendant JLS’ failure to provide such rights;

6 m. Refusing to affirmatively accommodate Plaintiff THARP by, inter alia, refusing

7 to assist Plaintiff THARP in finding a different position, suitable position and/or

8 allow him to return in April 2020; and,

9 n. Defendant JLS, and its employees, wrongfully terminated Plaintiff THARP

10 from his position as a direct sales manager, a position for which Plaintiff
201 Mission Street, 12th Floor, San Francisco, California 94105

11 THARP is fully qualified.

12 71. Defendant’s discriminatory actions against Plaintiff, as stated above, constituted
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unlawful employment discrimination on account of physical or medical disability or
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13
14 medical condition, in violation of Government Code section 12940(a).

15 72. As a direct and proximate result of Defendant’s discriminatory actions against

16 Plaintiff, Plaintiff has sustained, and continues to sustain, substantial loss of earnings,

17 and other employment benefits, Plaintiff would have earned if Plaintiff had not been

18 wrongfully terminated from his employment with Defendant. As a result, Plaintiff has

19 suffered damages in an amount according to proof.

20 73. As a direct and proximate result of Defendant’s discriminatory actions against

21 Plaintiff, Plaintiff has suffered, and continues to suffer, the intangible loss of such

22 employment-related opportunities such as experience, career-advancement, and

23 industry recognition. As a result, Plaintiff has suffered damages in an amount according

24 to proof.

25 74. As a direct and proximate result of Defendant’s discriminatory actions against

26 Plaintiff, Plaintiff has suffered, and continues to suffer, humiliation, emotional distress,

27 bodily injury, annoyance & discomfort, physical and mental pain and anguish, all to his

28 damage in an amount according to proof.

FIRST AMENDED COMPLAINT - 16
1 75. Plaintiff has incurred, and continues incurring, legal expenses and attorney fees,

2 which Plaintiff can recover in an amount according to proof.

3 76. Defendant’s misconduct was committed intentionally, in a malicious, oppressive,

4 fraudulent manner, with reckless disregard of the Plaintiff’s FEHA rights. Specifically,

5 Defendant ignored Plaintiff’s extensive medical documentation, family obligations, and

6 multiple requests for leave until April 2020 entitling him to reasonable accommodation

7 and unlawfully terminated Plaintiff from his position, which has caused Plaintiff great

8 financial harm. As a result, Plaintiff is entitled to recover punitive damages against

9 Defendant.

10 FOURTH CAUSE OF ACTION FOR HARASSMENT IN
201 Mission Street, 12th Floor, San Francisco, California 94105

11 VIOLATION OF THE FAIR EMPLOYMENT & HOUSING ACT

12 (AGAINST ALL DEFENDANTS)
asta

Case Info

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Document Filed Date

November 10, 2020

Case Filing Date

May 24, 2020

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Complaint,Petition: Tharp, Dylan vs. John L. Sullivan Dodge Chrysler, Inc

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