Miscellaneous: Barry Ross vs Walmart Labs et al

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BARRY D. ROSS
6343 PARK CREEK DRIVE DEC 0 1 2020
CHARLOTTE, NC 28262 cl
Tel: (310) 600-5719 superar gor Of the Court

: By, Santa Cig

Pro Se Plaintiff BARRY ROSS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SANTA CLARA

BARRY ROSS, an Individual; caseno. 20CV373671
Plaintife, COMPLAINT FOR:

v. 1, RACE DISCRIMINATION;

2. RACE HARASSMENT;

WALMART LABS, a California 3. GENDER-BASED

Corporation; WALMART, INC., an DISCRIMINATION;

Arkansas Corporation; RANDSTAD 4. GENDER-BASED HARASSMENT;

STAFFING, a California Corporation; 5. SEXUAL HARASSMENT; .

RANDSTAD NORTH AMERICA, INC., 6. FAILURE TO PREVENT

a Georgia Corporation; RANDSTAND DISCRIMINATION AND

SOURCERIGHT, a Georgia Corporation; HARASSMENT;

JASON CORBETT, an Individual; 7, FAILURE TO CORRECT AND

ASHLEY HOGAN, an Individual; and REMEDY DISCRIMINATION AND

DOES 1 through 25, Inclusive, HARASSMENT;

8. WHISTLEBLOWER

Defendants. RETALIATION IN VIOLATION OF
LABOR CODE § 1102.5;

9. RETALIATION FOR ENGAGING
IN A PROTECTED ACTIVITY;

10. RETALIATION FOR
COMPLAINTS OF
DISCRIMINATION AND
HARASSMENT;

11. WRONGFUL TERMINATION;

12, INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS; AND

13. NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS.

DEMAND FOR JURY TRIAL

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COMPLAINTcso eI ND Rh YN

TABLE OF CONTENTS

Page
SUMMARY 5
PARTIES 5
JURISDICTION AND VENUE
EXHAUSTION OF ADMINISTRATIVE REMEDIES
FACTUAL ALLEGATIONS 7
FIRST CAUSE OF ACTION ll

RACE DISCRIMINATION AGAINST DEFENDANT WALMART AND DOES | — 25
1]

SECOND CAUSE OF ACTION 12
RACIAL HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1 - 25

THIRD CAUSE OF ACTION 13
GENDER-BASED DISCRIMINATION AGAINST DEFENDANT WALMART AND
DOES 1 — 25 13)

FOURTH CAUSE OF ACTION 14]
GENDER-BASED HARASSMENT AGAINST ALL DEFENDANTS & DOES 1 - 251

FIFTH CAUSE OF ACTION 16

SEXUAL HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1 - 25
1

SIXTH CAUSE OF ACTION 1

FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT AGAINST
DEFENDANT WALMART AND DOES 1 - 25 1

SEVENTH CAUSE OF ACTION 1

FAILURE TO CORRECT AND REMEDY UNLAWFUL DISCRIMINATION AND
HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1 - 25 1

EIGHTH CAUSE OF ACTION 19

WHISTLEBLOWER RETALIATION IN VIOLATION OF LABOR CODE § 1102.5
AGAINST DEFENDANT WALMART AND DOES 1 — 25 19

NINTH CAUSE OF ACTION 20|

RETALIATION FOR ENGAGING IN A PROTECTED ACTIVITY AGAINST
DEFENDANT WALMART & DOES 1-25 2

TENTH CAUSE OF ACTION 21

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RETALIATION FOR COMPLAINTS OF DISCRIMINATION AND HARASSMENT

AGAINST DEFENDANT WALMART AND DOES | — 25 21
ELEVENTH CAUSE OF ACTION 21
WRONGFUL TERMINATION AGAINST DEFENDANT WALMART AND DOES | 4
25 21
TWELFTH CAUSE OF ACTION 22
INTENTIONAL INELICTION OF EMOTIONAL DISTRESS AGAINST ALL
DEFENDANTS 22)
THIRTEENTH CAUSE OF ACTION 23
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
DEFENDANTS 23
PRAYER FOR RELIEF 24
DEMAND FOR JURY TRIAL 24|

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TABLE OF AUTHORITIES

Civil Code § 3294

Code of Civil Procedure § 3291
Code of Civil Procedure § 395(a)
Government Code § 12940¢h)
Government Code § 12965(b)
Labor Code § 1102.5

Labor Code § 98.6

Statutes

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COMPLAINT

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Plaintiff BARRY ROSS, claims and alleges as follows:
SUMMARY

1. Plaintiff BARRY ROSS (hereinafter “Plaintiff’) is suing his former employer]
Defendant WALMART LABS (hereinafter “Defendant WALMART”), Defendant WALMART]
INC, (hereinafter “Defendant WALMART, INC.”), Defendant RANDSTAD STAFFING
(hereinafter “Defendant RANDSTAD”), Defendant RANDSTAD NORTH AMERICA|
(hereinafter “Defendant RANDSTAD NA”), Defendant RANDSTAND SOURCERIGHT|
(hereinafter “Defendant RANDSTAD SOURCERIGHT”), and their managerial and supervisory}
and managerial employees, including Defendant JASON CORBETT (hereinafter “Defendant
CORBETT”), Defendant ASHLEY HOGAN (hereinafter “Defendant HOGAN”) (collectively as
“Defendants”), for wrongful termination, race and gender-based discrimination, harassment
based on race and gender, sexual harassment, retaliation, and intentional infliction of emotional
distress, among others.

2. Throughout his employment at WALMART, et al. Plaintiff was subjected to
discriminatory and harassing behavior by reason of his race. Plaintiff was harassed, singled out]
and differentially treated by Defendants, and each of them, in comparison to similarly situated
non- African American employees.

3. Plaintiff brings this action against Defendants for economic, non-economic.
compensatory, and punitive damages pursuant to Civil Code § 3294, pre-judgment interest
pursuant to Code of Civil Procedure § 3291 and Code of Civil Procedure section 1021.5.

PARTIES

4, Plaintiff BARRY ROSS is an African-American individual, who, all times|
relevant to this action, resided in the County of Los Angeles, State of California,

5, Plaintiff is informed, believes and thereupon alleges that Defendant WALMART]
LABS is a California Corporation, lawfully doing substantial business in the County of Santal
Clara, State of California and was Plaintiff's employers at all times relevant herein.

6. Plaintiff is informed, believes and thereupon alleges that Defendant WALMART]

INC. is an Arkansas Corporation, lawfully doing substantial business in the County of Santa

COMPLAINTSoU Oe NH BR WH WN

Clara, State of California and was Plaintiff's employers at all times relevant herein.

7. Plaintiff is informed, believes and thereupon alleges that Defendant RANDSTAI
is a California Corporation, lawfully doing substantial business in the County of Los Angeles.
State of California and was Plaintiff's employers at all times relevant herein.

8. Plaintiff is informed, believes and thereupon alleges that Defendant RANDSTA
NA is a California Corporation, lawfully doing substantial business in the County of Lo
Angeles, State of California and was Plaintiff's employers at all times relevant herein.

9. Plaintiff is informed, believes and thereupon alleges that Defendant RANDSTAI
SOURCERIGHT is a California Corporation, lawfully doing substantial business in the Count:
of Los Angeles, State of California and was Plaintiffs employers at all times relevant herein.

10. Plaintiff is informed and believes, and thereupon alleges, that Defendant Corbet
is a Manager at Defendant WALMART LABS, and, based upon information and belief, is
resident of Santa Clara, State of California, at all times relevant herein,

ll. Plaintiff is informed and believes, and thereupon alleges, that Defendant Hogan i
a Director of Recruiting at Defendant WALMART LABS, and, based upon information ani
belief, is a resident of Santa Clara, State of California, at all times relevant herein.

12. Plaintiff is further informed, believes and thereupon alleges that DEFENDANT:
WALMART and RANDSTAD (hereinafter collectively referred to as “Defendan
Corporations”) were and are Plaintiff's joint employer within the meaning of Government Cod
§§12926 (d), 12940 (a)(h)(1), (h)(3)(A) (D, and 12950. At all times relevant hereto, Defendant
Corporations exercised, directly and indirectly, substantial control over significant aspects of th
compensation, terms, conditions, or privileges of Plaintiff's employment.

13. Plaintiff is ignorant of the true names and capacities, whether individual.
corporate, associate or otherwise, of the Defendants sued herein under fictitious names Does 1
through 25, inclusive, and for that reason sues said Defendants, and each of them, by sucl
fictitious names. Plaintiff is informed, believes, and thereupon alleges that each of the
Defendant Does 1 through 25, inclusive, is and was in some manner responsible for, participated|
in, or contributed to the matters and things of which Plaintiff complains herein, and in soma

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fashion, has legal responsibility therefore. When Plaintiff ascertains the names and capacities o|
the fictitiously named Defendant Does | through 25, inclusive, Plaintiff will seek leave to ament
this Complaint to set forth such facts.

14. Plaintiff is informed, believes, and there upon alleges that each Defendant is, and ai
all times relevant herein was, the agent of his, or its co-defendants, and in committing the act:
alleged herein, was acting within the scope of his, or its authority as such agent, and with th
knowledge, permission, and consent of his, or its co-defendants,

JURISDICTION AND VENUE

15. Venue is proper in this judicial district, pursuant to California Code of Civil]
Procedure § 395(a). Defendants reside and/or transact business in the County of Santa Clara, and|
are within the jurisdiction of this Court for purposes of service of process.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

16. Plaintiff timely filed a charge of discrimination with the California Department off
Fair Employment and Housing (“DFEH”). The DFEH issued a Right-to-Sue Notice]
Accordingly, Plaintiff has timely exhausted his administrative remedies, A true-and-correct cop
of Plaintiffs Right-to-Sue Notice is attached to this complaint as Exhibit A
17. Any and all other prerequisites to the filing of this suit have been met.
FACTUAL ALLEGATIONS

18. By this reference, Plaintiff alleges and incorporates herein each and every,

allegation set forth in all previous paragraphs of the Complaint.

19. In or around June 2015, Plaintiff began his employment with Defendant
RANDSTAD, Plaintiff would be periodically assigned to work locations, and he completed eac
of them successfully.

20. On or about May 4, 2019, Plaintiff received a call from Defendant Corbett to
discuss Plaintiffs most recent placement at Defendant WALMART. Upon Plaintiff's acceptance
of the placement offer, Defendant Corbett expressed excitement and said, “I can’t wait till yo
get here, so I can introduce you as my new boyfriend.” This statement made Plaintiff fee!
extremely uncomfortable and served as an indicator of Defendant Corbett’s sexual orientatio

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and his harassing nature.

21. On or about May 7, 2019, Plaintiff began working for Defendant WALMART as
a Senior Technical Recruiter. Shortly, Plaintiff noticed a differential of treatment between non+
White employees and White employees,

22. During Plaintiff's orientation, he learned that a colleague named Morgan Presley!
a Caucasian individual who attended the same orientation with him, was provided a room at a
Holiday Inn Express, while Plaintiff was sent to a rundown Motel 6.

23. Feeling discriminated against, Plaintiff filed an internal complaint about the
differential treatment, however, Plaintiff never received a response.

24. On or about May 8, 2019, Defendant Corbett exhibited racially discriminatory,
conduct in Plaintiffs presence. Defendant Corbett clearly indicated that he was not happy with!
the “racial composition” at Defendants’ Sunnyvale office. Notably, the Defendant Walmart Labs]
Sunnyvale location was comprised primarily of engineers, who were of Indian descent.
Defendant Corbett stated, “I think Facebook and Google are more White.”

25. Without any provocation, Defendant Corbett also shared recent pictures of his trip
to Mexico with Plaintiff and Ms. Presley. Defendant Corbett then bragged about taking pictures
of women’s posteriors without their knowledge, stating, “J’m a boy, and boys will be boys.”|
Plaintiff felt dismayed and shocked by Defendant Corbett’s blatant and unabashed display off
inappropriate conduct.

26. During one of the training sessions with Plaintiff and Ms. Presley, Defendant
Corbett expressed a strong animosity towards a female executive, Ms. Blair seme
Defendant’s VP of Talent Acquisition, by fervently stating “/ can’t stand that fucking bitch!”

27. On or about May 20, 2019, Plaintiff again witnessed Defendant Corbett display aj
discriminatory behavior. While working on closing an offer for a candidate, Deeksha Prabhakar]
an individual of Indian descent, Defendant Corbett became furious because Ms. Prabhakar would!
not accept their offer. Defendant Corbett then told Plaintiff, “Goddamnit!! These fucking Indian:
are so stupid and ignorant.” Plaintiff felt uncomfortable as Defendant Corbett continued ud
exhibit a strong discriminatory behavior against people of color and members of minority

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classes.
28. Later the same day, Plaintiff sent a text message to Ms. Presley, stating his
astonishment and frustration over Defendant Corbett’s racist statement. Exhibit B.
29. On or about May 22, 2019, during a video conference, Defendant Corbett made al
racist remark to Plaintiff by stating, “You're so dark, I can barely see you on the screen.” This
made Plaintiff feel embarrassed and humiliated.

30. At all times relevant, Defendant Corbett promoted a workplace culture in which]

non-White employees, including Plaintiff, were singled out and subjected to discrimination and|

differential treatment. Defendant Corbett was quick to terminate the employment of African:
American employees for “underpertormance” but failed to discipline and/or terminate similarl
situated White employees. A former Recruiter, Jona Jennings, an African-American individual,
was terminated shortly after Plaintiff began his employment, purportedly due to “budget cuts,”
however, there were no actual layoffs or reductions in staff.

31. Notwithstanding the discriminatory workplace culture, Plaintiff performed hi:
duties in a fully successful manner. Plaintiff introduced an innovative concept, entitled MV!
Folder, which allowed former candidates a second chance to be interviewed by Walmart Labs’
managers.

32. On or about July 22, 2019, Defendant Corbett assigned Plaintiff to lead up a ne
recruiting initiative for Defendant’s Director of Engineering, Pranam Kolari. As part of th
assignment, Defendant Corbett also assigned a Caucasian individual, Lori Harrell (“Ms.
Harrell”), to assist Plaintiff with sourcing for candidates. However, it soon became apparent t
Plaintiff that Ms. Harrell was not an asset to the project as she failed to provide the necess
assistance to Plaintiff.

33, On or about August 14, 2019, Plaintiff complained to Defendant Corbett abou!
Ms. Harrell’s underperformance. Plaintiff also expressed concerns about the unreasonabl
workload that he was forced to inherit from Defendant’s three former recruiters. From Plaintiff's
original 15 jobs, he was assigned to over 40.

34. To Plaintiffs dismay, Defendant Corbett mostly ignored his reported concerns,

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COMPLAINTand failed to remedy Plaintiff's workload complaint. Exhibit C.

35. Despite the unreasonable workload, Plaintiff continued to perform his dutie:
diligently and responsibly.

36. On or about August 16, 2019, during a staff meeting, Defendant Hogan mad
some complimentary remarks about Plaintiff's work performance. This clearly did not bode well
for Plaintiff as it undermined Defendant Corbett’s efforts to paint Plaintiff as incompetent.

37. Shortly, Defendant Corbett began to closely scrutinize Plaintiff's work, whic!
previously had been acceptable. Further, Defendant Corbett also blamed Plaintiff for issues that
were beyond his responsibility. Plaintiff reasonably believed that his days at WALMART wer
“already numbered” as Defendant Corbett intensified his campaign of harassment.

38. On or about August 26, 2019, Plaintiff sent message to a coworker, Latash
Norris, who was the only other African-American member of Plaintiffs team. (Exhibit D) In hi
message, Plaintiff informed Ms. Norris that he was having issues with Defendant Corbett, an
that he was afraid that Defendant Corbett, would terminate him for no reason. In response, Ms.
Norris advised Plaintiff to keep notes of the incidents with Defendant Corbett.

39. On or about August 28, 2019, Plaintiff received an email from Defendant Hogan,
asking him to provide anonymous feedback on Defendant Corbett, as part of a quarterly review.
Plaintiff then responded according to his accurate assessment.

40. Later the same day, Defendant Corbett accused Plaintiff of providing insufficient
data in the weekly report for his new recruiting project. Plaintiff was surprised that Defendan
Corbett was raising an issue about the weekly report, even though they had personally met thi
day before to overview the report. When Plaintiff inquired about the particularities of Defendan
Corbett’s concerns, he failed to provide any reasonable explanation. Instead, Defendant Corbett,
while on video conference, became visibly irate at Plaintiff.

4l. Subsequently, Plaintiff sent a follow up email to Defendant Hogan, requesting foy
a meeting to discuss Defendant Corbett’s behavior, including racially charged comments by,
Defendant Corbett, however, Hogan failed to reply. (Exhibit E)

42. On or about August 30, 2019, three months into Plaintiff’s assignment}

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Defendants proceeded to terminate Plaintiff's employment due to “budget cuts.”

43. Defendants’ proffered reason was nothing but a pretext to race discrimination and
retaliation for Plaintiff's complaints. In fact, no other employees were terminated and shortly,
after Plaintiff's termination Defendants advertised the opening for Plaintiff's vacated position.
(Exhibit F)

44, —_ Ultimately, Plaintiffs employment with Defendant WALMART LABS was
unlawfully terminated without real, substantial, and compelling reason.

45. In response to Plaintiff's complaint, Defendant WALMART LABS, indicated that

Plaintiff had been terminated for poor performance, instead of “budget cuts,” which infers al
shifting explanation with regard to Defendant’s true motive.

46. Due to Plaintiff’s sudden and wrongful termination, Plaintiff has suffered, ani
continues to suffer, severe emotional distress, including, but not limited to, emotional distress.
anxiety, and mental suffering.

FIRST CAUSE OF ACTION
RACE DISCRIMINATION AGAINST DEFENDANT WALMART AND DOES 1-25

47, Plaintiff re-alleges and incorporates herein by this reference each and evel
allegation set forth in all previous paragraphs of the Complaint.

48. Plaintiff was at all times hereto an “employee” as defined by Californi:
Government Code § 12926(c) and within the meaning of California Government Code
12940(a) and © which prohibit race discrimination and racial harassment in employment. Rac
discrimination within the meaning of those sections includes harassment and failure to take al
reasonable steps necessary to prevent discrimination or harassment on the basis of race.

49. Defendant WALMART was at all material times an “employer” as defined b
California Government Code § 12926(d) and within the meaning of California Government Code
§ 12940(a) and (c) and, as such, was barred from discriminating or retaliating in employment
decisions on the basis of race as set forth in California Government Code § 12940.

50. Defendant WALMART has discriminated against Plaintiff on the basis of race in|
violation of California Government Code § 12940(a) and (c), Article I of the California

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Constitution and related statutes, by engaging in the course of conduct more fully set forth in th
General Allegations stated above.

SI. Asa result of Defendant WALMART’s discrimination against Plaintiff, Plainti
has suffered and continues to suffer (a) substantial humiliation, serious mental anguish, an
emotional and physical distress; and (b) loss of past and future earnings, and employment
benefits and opportunities, all on account of which Plaintiff is entitled to compensatory damages
The exact amount and nature of such damages exceed the jurisdictional limits of this court, bu
are presently unknown to Plaintiff, who will either seek leave to amend this Complaint upo
ascertaining such information or will prove the same at the time of trial.

52. As more fully set forth above, the race discrimination by Defendant WALMART]
was done intentionally, maliciously, wantonly, oppressively, and fraudulently with a consciou.
disregard for Plaintiffs rights and with the intent to vex, injure, punish, and annoy Plaintiff so ‘
to cause the injuries sustained by Plaintiff, within the meaning of California Civil Code § 3294
Plaintiff is therefore entitled to punitive or exemplary damages in an amount sufficient to punis
and make an example out of Defendants.

33. Plaintiff was subjected to a work environment that rewards Caucasian employees,
with promotions and opportunities not available to African-American recruiters and managers.
Currently, WALMART LABS does not employ any African-American recruiters or managers,
and nearly all leadership positions within Defendant’s Talent Acquisition Department are filled
by Caucasians. Furthermore, Plaintiff was subjected to harassment and discrimination due to his
heterosexual orientation, all of Plaintiffs managers, identified as homosexual or exhibited
bisexual tendencies.

SECOND CAUSE OF ACTION

RACIAL HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1 — 25
54. Plaintiff re-alleges and incorporates herein by this reference each and every|
allegation set forth in all previous paragraphs of the Complaint.
55. Plaintiff was at all times hereto an “employee” within the meaning of California
Government Code § 12926(c) and California Government Code § 12940(a) and (c), which]

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prohibit race discrimination in employment.

56. Defendant WALMART was at all material times an “employer” as defined b:
California Government Code § 12926(d) and within the meaning of California Government Codi
§ 12940(a) and (c) and, as such, was barred from discriminating in employment decisions on th
basis of race, as set forth in California Government Code § 12940.

57. Individual Defendant Corbett was a supervisor of Defendant WALMART whi
owed a duty to Plaintiff to refrain from race discrimination and harassment and to take all
reasonable steps to prevent and correct unlawful race discrimination and harassment in th
workplace,

58. Defendants harassed Plaintiff on the basis of race, denying Plaintiff employment
in violation of Califormia Government Code § 12940(a) and (c), Article 1 of the Californi

Constitution and related statutes, by engaging in the course of conduct more fully set forth in th

General Allegations and all paragraphs stated above.

59. Asa direct and proximate result of Defendants” actions against Plaintiff, Plainti
suffered (a) humiliation, serious mental anguish, and emotional and physical distress; and (b
loss of past and future wages, and employment benefits and opportunities, on account of which]
Plaintiff is entitled to compensatory damages. The exact amount and nature of such damages
exceed the jurisdictional limits of this court, but are presently unknown to Plaintiff, who wil
either seek leave to amend this Complaint upon ascertaining such information or will prove the
same at the time of trial.

60. As more fully set forth above, the racial harassment by Defendants was
committed intentionally, maliciously, wantonly, oppressively, and fraudulently with a conscious
disregard for Plaintiff's rights and with the intent to vex, injure, punish, and annoy Plaintiff so ag
to cause the injuries sustained by Plaintiff, within the meaning of California Civil Code § 3294.
Plaintiff is therefore entitled to punitive or exemplary damages in an amount sufficient to punish!
and make an example out of Defendants.

THIRD CAUSE OF ACTION

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COMPLAINTGENDER-BASED DISCRIMINATION AGAINST DEFENDANT WALMART AND
DOES 1~25

61. Plaintiff alleges and incorporates herein by this reference each and every}
allegation set forth in all previous paragraphs of the Complaint.

62. Plaintiff was‘at ail times herein an “employee” within the meaning of California
Government Code § 12926(c) and California Government Code § 12940(a) and (c).

63. Defendant WALMART was at all material times an “employer” within the
meaning of California Government Code § 12926(d) and California Government Code §
12940(a) and (c) and, as such, was barred from discriminating in employment decisions on the
basis of sex (gender), as set forth in California Government Code § 12940.

64. Defendant WALMART has discriminated against Plaintiff on the basis of se:
(gender), in violation of California Government Code §§ 12940(a) and (j)(1), Article 1 of the
California Constitution and related statutes by engaging in the course of conduct more fully set
forth in the General Allegations stated above.

65. As a result of Defendant WALMART’s gender-based discrimination against

Plaintiff, Plaintiff has suffered (a) humiliation, serious mental anguish, and emotional an
physical distress; and (b) loss of past and future earnings and employment benefits an
opportunities; all on account of which Plaintiff is entitled to compensatory damages. The exac
amount and nature of such damages exceed the jurisdictional limit of this court, but are presentl:
unknown to Plaintiff, who will either seek leave to amend this Complaint upon ascertaining suc
information, or will prove the same at time of trial.

66. As more fully set forth above, the gender-based discrimination by Defendant
WALMART was done intentionally, maliciously, wantonly, oppressively, and fraudulently wit
a conscious disregard for Plaintiff's rights and with the intent to vex, injure, punish, and anno:
Plaintiff so as to cause the injuries sustained by Plaintiff, within the meaning of California Civil
Code § 3294. Plaintiff is therefore entitled to punitive or exemplary damages in an amount
sufficient to punish and make an example out of Defendant.

FOURTH CAUSE OF ACTION

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GENDER-BASED HARASSMENT AGAINST ALL DEFENDANTS & DOES 1 — 25

67. Plaintiff alleges and incorporates herein by this reference each and ever
allegation set forth in all previous paragraphs of the Complaint.

68. Plaintiff was at all times hereto an “employee” within the meaning of Californi
Government Code § 12926(c) and California Government Code § 12940(a) and (c), whic!
prohibit marital status harassment in employment.

69. Defendant WALMART was at all material times an “employer” within th
meaning of California Government Code § 12926(d) and California Government Code
12940(a) and (c) and, as such, was barred from harassing and discriminating in employmen
decisions on the basis of gender of an employee, as set forth in California Government Code
12940.20.

70. Individual Defendant Corbett and HOGAN were managerial and/or superviso1
employees of Defendant WALMART, and as such, owed a duty to the Plaintiff to refrain fro!
engaging in harassment and to take all reasonable steps to prevent and correct unlawful
nonsexual gender harassment in the workplace.

71. Defendants harassed Plaintiff on the basis of sex (gender), in violation o:
California Government Code § 12940(a) and (c), Article I of the California Constitution an
related statutes by engaging in the course of conduct more fully set forth in the General
Allegations stated above.

72. AS a proximate result of Defendants’ harassment of Plaintiff, Plaintiff ha:
suffered (a) humiliation, serious mental anguish, and emotional and physical distress; and (b:
loss of past and future earnings and employment benefits and opportunities; all on account o:
which Plaintiff is entitled to compensatory damages. The amount and nature of such damage:
exceed the jurisdictional limits of this court, but are presently unknown to Plaintiff, who will
either seek leave to amend this Complaint upon ascertaining such information, or will prove the
same at the time of trial.

73. As more fully set forth above, the gender-based harassment by Defendant wag
committed intentionally, maliciously, wantonly, oppressively, and fraudulently with a conscious

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disregard for Plaintiff's rights and with the intent to vex, injure, punish, and annoy Plaintiff so a:
to cause the injuries sustained by Plaintiff. Such acts amounted to oppression, fraud, and malice,
as described in California Civil Code § 3294. Plaintiff is therefore entitled to punitive o1
exemplary damages in an amount sufficient to punish and make an example out of Defendants.

FIFTH CAUSE OF ACTION

SEXUAL HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1 — 25
74. Plaintiff alleges and incorporates herein by this reference each and every,
allegation set forth in all previous paragraphs of the Complaint.
73. Plaintiff was at all times hereto an “employee” within the meaning of California
Government Code § 12926(c) and California Government Code § 12940(a) and (c), whic!
prohibit sexual harassment in employment. Sex discrimination within the meaning of those
sections includes harassment and failure to take all reasonable steps necessary to preven
harassment on the basis of sex.

76. Defendant WALMART was at all material times an “employer” as defined by|
California Government Code § 12926(d) and within the meaning of California Government Code
§ 12940(a) and (c) and, as such, was barred from sexually harassing employees, as set forth in]
California Government Code § 12940.

77. Individual Defendants JASON was a managerial or supervisory employee off
Defendant WALMART who owed a duty to the Plaintiff to refrain from engaging in sexual
harassment in the workplace.

78. Defendant Corbett, as an employee and/or supervisory agent of Defendant
WALMART, has harassed Plaintiff on the basis of sex, in violation of California Governmen
Code §§12940(a) and (c), Article I of the California Constitution and related statutes by|
engaging in the course of action more fully set forth in the General Allegations and all
paragraphs stated above. Defendant’s actions constitute both “quid pro quo” and “hostile worl
environment” sexual harassment. Defendant WALMART acquiesced in the sexually harassing,
conduct by knowing of such conduct and failing to prevent and remedy the harassing conduct.

79. Asa direct and proximate result of Defendants’ actions against Plaintiff, Plaintifi}

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suffered (a) humiliation, serious mental anguish, and emotional and physical distress; and (b)
loss of past and future wages, and employment benefits and opportunities, on account of which
Plaintiff is entitled to compensatory damages. The exact amount and nature of such damages are
presently unknown to Plaintiff, who will either seek leave to amend this Complaint upon
ascertaining such information, or will prove the same at the time of trial.

80. As more fully set forth above, the sexual harassment by Defendants werd

committed intentionally, maliciously, wantonly, oppressively, and fraudulently with a conscious

disregard for Plaintiff's rights and with the intent to vex, injure, punish, and annoy Plaintiff so ag

to cause the injuries sustained by Plaintiff, within the meaning of California Civil Code § 3294.
Plaintiff is therefore entitled to punitive or exemplary damages in an amount sufficient to punish]
and make an example out of Defendants,
SIXTH CAUSE OF ACTION
FAILURE TO PREVENT DISCRIMINATION AND HARASSMENT AGAINST
DEFENDANT WALMART AND DOES 1 — 25

81. Plaintiff alleges and incorporates herein by this reference each and every)

allegation set forth in all previous paragraphs of the Complaint.

82. Defendant WALMART failed to take all reasonable steps to prevent Plaintiff’
harassment from occurring, in violation of California Government Code § 12940(k), by engagin,
in the course of conduct set forth in the General Allegations and all paragraphs stated above.
amongst other things.

83. Specifically, Defendant WALMART failed to take any meaningful preventative
action against those managers, supervisors and employees who were harassing Plaintiff o
enabling others to discriminate against and harass Plaintiff. If Defendant WALMART has
written policy addressing the issue race, gender-based, sexual harassment, the policy is no!
enforced and is consistently disregarded.

84. As a result of Defendant WALMART’S failure to prevent the unlawfu
harassment of Plaintiff, Plaintiff has suffered and continues to suffer (a) substantial humiliation,

serious mental anguish, emotional and physical distress, (b) loss of past and future earnings, an

17
COMPLAINTemployment benefits and opportunities, which Plaintiff is entitled to as compensatory damages.
The exact amount and nature of such damages exceed the jurisdictional limits of this court, buy
are presently unknown to Plaintiff, who will either seek leave to amend this Complaint upon)
ascertaining such information or will prove the same at the time of trial.

85. As more fully set forth above, Defendant WALMART’S failure to prevent the
unlawful harassment was intentional, malicious, wanton, oppressive and fraudulent, with!
conscious disregard for Plaintiff's rights and with the intent to vex, injure, punish and annoy
Plaintiff so as to cause the injuries sustained by Plaintiff, within the meaning of California Civi
Code § 3294. Plaintiff is therefore entitled to punitive or exemplary damages in an amoun
sufficient to punish and make an example out of Defendant.

SEVENTH CAUSE OF ACTION
FAILURE TO CORRECT AND REMEDY UNLAWFUL DISCRIMINATION AND

HARASSMENT AGAINST DEFENDANT WALMART AND DOES 1-25

86. Plaintiff re-alleges and incorporates herein by this reference each and every
allegation set forth in all previous paragraphs of the Complaint as if fully set forth herein.

87. Defendant WALMART failed to take all reasonable steps to correct and remedy,
the harassment of Plaintiff, in violation of California Government Code § 12940(j), by engaging
in the course of conduct set forth in the General Allegations and all paragraphs stated above]
amongst other things.

88. Specifically, during the course of this misconduct, Defendant WALMART failed!
to take immediate and appropriate corrective action to remedy the discrimination of Plaintiff by}
employees who were harassing Plaintiff or enabling others to harass Plaintiff.

89. Asa result of Defendant WALMART’S failure to correct or remedy the unlawfu
discrimination and harassment of Plaintiff, Plaintiff has suffered and continues to suffer from (a)

substantial humiliation, serious mental anguish, emotional and physical distress, (b) loss of past

and future earnings, employment benefits and opportunities Plaintiff is entitled to

compensatory damages. The exact amount and nature of such damages exceed the jurisdictional

limits of this court, but are presently unknown to Plaintiff, who will either seek leave to amen

18
COMPLAINToD me NUN KN BY YD

this Complaint upon ascertaining such information or will prove the same at the time of trial.

90. As more fully set forth above, Defendant WALMART?’s failure to correct on
remedy the unlawful discrimination and harassment was intentional, malicious, wanton]
oppressive and fraudulent, with conscious disregard for Plaintiff's rights and with the intent to
vex, injure, punish and annoy Plaintiff so as to cause the injuries sustained by Plaintiff, withi
the meaning of California Civil Code § 3294. Plaintiff is therefore entitled to punitive o
exemplary damages in an amount sufficient to punish and make an example out of Defendant.

EIGHTH CAUSE OF ACTION
WHISTLEBLOWER RETALIATION IN VIOLATION OF LABOR CODE § 1102.5
AGAINST DEFENDANT WALMART AND DOES 1! - 25

91, Plaintiff alleges and incorporates herein by this reference each and every|
allegation set forth in all previous paragraphs of the Complaint.

92. On August 31, 2019, Plaintiff was wrongfully discharged for his whistle-blowing|
action, in violation of California Labor Code § 1102.5. Specifically, Plaintiff was retaliated)
against and terminated because he reported and refused to participate in Defendan
WALMART?’s unlawful and illegal practices.

93. By wrongfully discharging Plaintiff, without cause or justification, and for the
retaliatory reasons set forth above, Defendants acted willfully and with malice towards Plaintiff.

94. As a direct and proximate result of Defendants’ retaliatory actions against
Plaintiff, Plaintiff suffered (a) humiliation, serious mental anguish, and emotional and physical
distress to his damage in a sum yet to be ascertained and (b) loss of past and future wages, and
employment benefits and opportunities, on account of which Plaintiff is entitled to compensatory]
damages, the exact amount and nature of such loss which is presently unknown to Plaintiff, who,
will cither seek leave to amend this Complaint upon ascertaining such information, or will prove
same at the time of trial.

95. As more fully set forth above, the retaliation by Defendants was done
intentionally, maliciously, wantonly, oppressively, and fraudulently with a conscious disregard
for Plaintiff rights and with the intent to vex, injure, punish, and annoy Plaintiff so as to cause

19
COMPLAINTeo em YAH PF Bw YN

e

the injuries sustained by Plaintiff, within the meaning of California Civil Code § 3294. Plaintifif
is therefore entitled to punitive or exemplary damages in an amount sufficient to punish and
make an example out of Defendants.
NINTH CAUSE OF ACTION
RETALIATION FOR ENGAGING IN A PROTECTED ACTIVITY AGAINST

DEFENDANT WALMART & DOES 1-25

96. Plaintiff alleges and incorporates herein by this reference each and every)
allegation set forth in all previous paragraphs of the Complaint.
97. . California Labor Code § 98.6 prohibits an employer from retaliating against an|
employee for filing, a bona fide complaint, or a claim, or instituted any proceeding relating to hig
rights under the jurisdiction of the labor commission.
98. Plaintiff's aforementioned protected activity, as described hereinabove, was 4)
motivating factor in Defendant WALMART’s decisions that were adverse to Plaintiff, in regard

to compensation and terms, conditions and privileges of employment.

99. Defendants retaliated against Plaintiff as manifested by several acts depicted|
under the General Allegations above. Specifically, Defendants subjected Plaintiff to a hostil
work environment for his whistle-blowing actions, and for reasonably engaging in a lawful an
protected activity, as more fully set forth in the General Allegations and all paragraphs state
above, amongst other things. Ultimately, Defendants terminated Plaintiff's employment without
valid justification.

100. Clearly, the aforementioned acts are discriminative against Plaintiff, and a]
violation against California Labor Code § 98.6. As a result of the foregoing wrongful conduct,
Plaintiff is entitled to recover restitution damages in the form of payment of unlawfully withheld|
wages, overtime, and commissions. Plaintiff is also entitled to recover reasonable attorneys’ fee:
pursuant to Code of Civil Procedure Section 1021.5, the substantial benefit doctrine.

101. As a result, Plaintiff is entitled to recover all unpaid compensation against him]
prejudgment interest, and reasonable attorneys’ fees and costs of suit. The exact amounts of such!
damages are presently unknown to Plaintiff, who will either seek leave to amend this Complaint

20
COMPLAINTome IN A HY Fw NH

°

11

upon ascertaining such information, or will prove the same at the time of trial.

102. The unlawful practices toward Plaintiff, as alleged in the General Allegations se
forth above, were approved and ratified by Defendants by its failure to honor Plaintiff rights
under the aforementioned law to which he was entitled.

TENTH CAUSE OF ACTION
RETALIATION FOR COMPLAINTS OF DISCRIMINATION AND HARASSMENT
AGAINST DEFENDANT WALMART AND DOES 1 - 25

103. Plaintiff re-alleges and incorporates herein by this reference each and every,
allegation set forth in all previous paragraphs of the Complaint as if fully set forth herein.

104. In violation of California Government Code § 12940(h), Defendants retaliated]
against Plaintiff by terminating Plaintiff's employment after he reported the seemingly,
increasing events of discrimination and harassment against his, as more fully set forth in the
General Allegation and all paragraphs stated above, among other things.

105. As a direct and proximate result of Defendants’ retaliatory actions agains|

Plaintiff, Plaintiff suffered and continues to suffer substantial (a) humiliation, serious mental

anguish and emotional and physical distress; and (b) loss of past and future wages, an
employment benefits and opportunities, on account of which Plaintiff is entitled to compensato
damages, the exact amount and nature of which exceeds the jurisdictional limits of this court bu
is presently unknown to Plaintiff, who will either seek leave to amend this complaint upo
ascertaining such information, or will prove the same at the time of trial.

106. As more fully set forth above, Defendants’ retaliatory actions were willful.
wanton, malicious, and oppressive and committed with the intent to cause the injuries sustaine:
by Plaintiff, within the meaning of California Civil Code § 3294. Plaintiff is therefore entitled t
punitive or exemplary damages in an amount sufficient to punish and make an example o
Defendant.

ELEVENTH CAUSE OF ACTION
WRONGFUL TERMINATION AGAINST DEFENDANT WALMART AND DOES 1 —

25

21
COMPLAINTCoN Dw RW ND

107. Plaintiff re-alleges and incorporates herein by this reference each and every
allegation set forth in all previous paragraphs of the Complaint as if fully set forth herein.

108. Defendants violated the Fair Employment and Housing Act (FEHA), Californial
Government Code § 12940 et seq. by wrongfully terminating Plaintiffs employment because off
his race and gender.

109. The aforementioned acts of Defendants constitute wrongful termination in|
violation of public policy.

110. As aresult of Defendants’ wrongful conduct, Plaintiff has suffered and continues
to suffer from (a) substantial humiliation, serious mental anguish, emotional and physical]
distress, (b) loss of past and future earnings, employment benefits and opportunities, which]
Plaintiff is entitled to as compensatory damages. The exact amount and nature of such damages
exceed the jurisdictional limits of this court, but are presently unknown to Plaintiff, who wil
either seek leave to amend this Complaint upon ascertaining such information or will prove the
same at the time of trial.

lll. As more fully set forth above, the acts of Defendants were intentional, malicious,
wanton, oppressive and fraudulent, with conscious disregard for Plaintiff's rights and with th
intent to vex, injure, punish and annoy Plaintiff so as to cause the injuries sustained by Plaintiff]
within the meaning of California Civil Code § 3294. Plaintiff is therefore entitled to punitive o1

exemplary damages in an amount sufficient to punish and make an example out of Defendants.

TWELFTH CAUSE OF ACTION
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
DEFENDANTS
112. Plaintiff alleges and incorporates herein by this reference each and wel

allegation set forth in all previous paragraphs of the Complaint.

113. Defendants engaged in race, gender discrimination, harassment and retaliation}

against Plaintiff, and aided and abetted each other in engaging in illegal discrimination]

harassment, and retaliation thereby subjecting Plaintiff to the intentional infliction of emotional

distress caused by such discrimination and harassment in violation of California Government

22
COMPLAINToO ew NN HW BF YN =

YR YY HNN KH DY S& SB Be Se Be Be Be Be He ew
eI DWAR OHS F&F SO wDw NR A A BR DWN SG

Code § 12940.

114. Defendants failed to take immediate and appropriate remedial action to respond t
Plaintiff's complaints of discrimination and harassment. Instead, Defendant WALMAR’
ignored Plaintiff's request that the behavior be dealt with and allowed Plaintiff to be subjected t
retaliatory action.

115. The acts of Defendants as described herein were extreme and outrageous and a
abuse of the authority and position of Defendants, and each of them. Such conduct was intende
to cause severe emotional distress, or was done with conscious disregard for the probability off
causing such distress. Such conduct exceeded the inherent risks of employment and was not the
sort of conduct normally expected to occur in the workplace. Defendant WALMART and their
employees, the above-named individual Defendants, abused their positions of authority toward!
Plaintiff, and engaged in conduct intended to humiliate Plaintiff and convey the message that h
were powerless to defend his rights.

116. As a proximate result of the aforementioned acts, Plaintiff has suffered
embarrassment, anxiety, humiliation, serious mental anguish, and emotional and physica

distress. Plaintiff will continue to suffer damages in a sum that exceeds the jurisdictional limit

of this court, but is yet to be ascertained. Plaintiff will either seek leave to amend this Complaint

upon ascertaining such information, or will prove the same at the time of trial.

117. As more fully set forth above, the acts of Defendants were intentional, malicious
wanton, oppressive, and fraudulent, with conscious disregard for Plaintiff's rights and with th
intent to vex, injure, punish, and annoy Plaintiff so as to cause the injuries sustained by Plaintiff,
within the meaning of California Civil Code § 3294. Plaintiff is therefore entitled to punitive o1
exemplary damages in an amount sufficient to punish and make an example out of Defendants.

THIRTEENTH CAUSE OF ACTION
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
DEFENDANTS
118. Each of the above paragraphs contained in this Complaint is hereby incorporate

by reference at this point as if set forth herein full at length.

23wc Oo tN DA HW BRB wW DN

10

119. In carrying out the above conduct, Defendants, and their employees and agents.
breached the duty owed to Plaintiff to provide a workplace free from discrimination, harassment
and retaliation, and abused their positions of authority towards Plaintiff. Said conduct exceeded
the inherent risks of employment and was not the sort of conduct normally expected to occur in
the workplace. :

120. Defendants, and their employees and agents knew, or should have known that the
above conduct would cause Plaintiff serious emotional distress. As a proximate result o}
Defendants negligent conduct, Plaintiff suffered and will continue to suffer extreme humiliation]
embarrassment, anxiety, mental anguish, and emotional distress in an amount according to proof,

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as

follows:

L. Compensatory and actual damages in an amount to be proven at the time of trial;

2. For punitive and exemplary damages in an amount to be proven at the time of
trial;

3. A declaratory judgment that the practices complained of in this Complaint are
unlawful under California law;

4. An injunction against Defendants, their officers, agents, successors, employees,
representatives, and any and all person acting in concert with them from engage i
each of the practices complained of in this Complaint; and

5. For such other relief as the court may deem proper.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial for the causes of action set forth herein.

Dated: 11/11/2020 BARRY D. ROSS
PRO SE

m Bony ©.

COMPLAINT25
COMPLAINTExhibit A —DEPARTMENT OF Fain EMPLOYMENT & HOUSING KEVIN KISH, DIRECTOR
2218 Kausen Drive, Suite 100 1 Elk Grove [CA 195758

(800) 884-1684 (Voice) 1 (600) 700-2320 (TTY) t California's Relay Service at 711

http-fwww.dfeh.ca.gov | Emall: contact.center@dfeh.ca.gov

January 21, 2020

RE: Notice of Filing of Discrimination Complaint
DFEH Matter Number: 202001-08970421
Right to Sue: ROSS / WALMART LABS et al.

To All Respondent(s):

Enclosed is a copy of a complaint of discrimination that has been filed with the
Department of Fair Employment and Housing (DFEH) in accordance with Government _
Code section 12960. This constitutes service of the complaint pursuant to Government
Code section 12962. The. complainant has requested an authorization to file a lawsuit.
This case is not being investigated by DFEH and is being closed immediately. A copy of
the Notice of Case Closure and Right to Sue is enclosed for your records.

Please refer to the attached complaint for a list of all respondent(s) and their contact
information.

No response to DFEH is requested or required.

Sincerely,

Department of Fair Employment and Housing&
N

,

sla) DEPARTMENT OF FAIR EMPLOYMENT & HOUSING KEVIN KISH, DIRECTOR

y 2218 Kausen Drive, Suite 100 1 Elk Grove 1 CA 195758

a Stnene NEMO UNIVER

(800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California's Helay Service at 711

Se httpufww.dfeh.ca.gov | Email: contact.center@dieh.ca.gov

January 21, 2020

BARRY ROSS
c/o 10 Arizona Ave.
Santa Monica, California 90404

RE: Notice of Case Closure and Right to Sue
DFEH Matter Number: 202001-08970421
Right to Sue: ROSS / WALMART LABS et al.

Dear BARRY ROSS,

This letter informs you that the above-referenced complaint was filed with the
Department of Fair Employment and Housing (DFEH) has been closed effective
January 21, 2020 because an immediate Right to Sue notice was requested. DFEH will
take no further action on the complaint.

This letter is also your Right to Sue notice. According to Government Code section
12965, subdivision (b), a civil action may be brought under the provisions of the Fair
Employment and Housing Act against the person, employer, labor organization or
employment agency named in the above-referenced complaint. The civil action must be
filed within one year from the date of this letter.

To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment