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KYLE TODD, P.C.
1 Kyle Todd (State Bar No. 286370) E-FILED
kyle@kyletodd.com 3/24/2021 5:14 PM
2 Troy Candiotti (State Bar No. 327501) Superior Court of California
tcandiotti@kyletodd.com County of Fresno
3 611 Wilshire Boulevard, Suite 315 By: A. Rodriguez, Deputy
Los Angeles, CA 90017-2906
4 Telephone: (323) 208-9171
Facsimile: (323) 693-0822
5
LIM LAW GROUP, P.C.
6 Preston H. Lim (SBN 275249)
phl@limlawgroup.com
7 1504 W. Artesia Sq., Suite B
Gardena, California 90248
8 Telephone: (213) 900-3000
Facsimile: (213) 204-3000
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Attorneys for Plaintiff
10 LEAH TURNER
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF FRESNO
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LEAH TURNER, an individual, CASE NO. 21CECG00837
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Plaintiff, COMPLAINT FOR:
16 vs.
1. DISCRIMINATION ON THE
17 FEDEX GROUND PKG SYSTEM INC., a BASIS OF MEDICAL
Delaware corporation; JARED CONDITION AND/OR
18 MCCAULEY, an individual, and DOES DISABILITY IN VIOLATION
1-20, OF FEHA;
19
Defendants. 2. RETALIATION FOR
20 COMPLAINING OF
DISCRIMINATION ON THE
21 BASIS OF MEDICAL
CONDITION AND/OR
22 DISABILITY IN VIOLATION
OF FEHA;
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3. FAILURE TO
24 ACCOMMODATE;
25 4. FAILURE TO ENGAGE IN THE
INTERACTIVE PROCESS;
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5. VIOLATION OF CALIFORNIA
27 LABOR CODE SECTIONS 226.7
(UNPAID REST PERIOD
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COMPLAINT
PREMIUMS)
1
2 DEMAND FOR JURY TRIAL
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4
Plaintiff LEAH TURNER hereby complains as follows against Defendant FedEx
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Corporation, doing business as FedEx Ground (collectively, “Defendant”):
6 PARTIES
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1. Leah Turner is, and at all times relevant to this action, was a resident of
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Fresno County, in the City of Fresno, California, and employed in a non-exempt position
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by Defendant during the liability period as a package handler.
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2. Defendants FedEx Corporation, does business as FedEx Ground, employed
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Plaintiff, who was an hourly non-exempt employee in Fresno County.
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3. Defendant Jared McCauley is a managing agent of FedEx Corporation and
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was Plaintiff’s manager during Plaintiff’s employment.
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4. Plaintiff is unaware of the true names of Defendants Does 1 through 20.
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Plaintiff sues said Defendants by said fictitious names, and will amend this Complaint
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when the true names and capacities are ascertained or when such facts pertaining to
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liability are ascertained, or as permitted by law or by the Court. Plaintiff is informed and
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believes that each of the fictitiously named Defendants is in some manner responsible for
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the events and allegations set forth in this Complaint. As used in this Complaint,
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“Defendant” means “Defendants and each of them,” and refers to the Defendants named in
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the particular cause of action in which the word appears and includes Defendant and Does
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1 through 20.
23 JURISDICTION AND VENUE
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5. Subject matter jurisdiction is appropriate in this Court because the amount in
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controversy exceeds the Court’s jurisdictional minimum.
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6. Venue for this action properly lies in the Fresno Superior Court because the
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related misconduct occurred in Fresno, California.
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2
COMPLAINT
1 FACTUAL BACKGROUND
2 7. On or around September 20, 2020, Plaintiff started working for Defendant at
3 its Fresno, California location.
4 8. Upon working at the Fresno location, Plaintiff immediately told her manager
5 that she had an ongoing workers’ compensation claim. She informed him that she had
6 some limitations and needed accommodations due to her injury. These accommodations
7 included limiting her bending, reaching, and pulling until December 2020.
8 9. As a result, rather than having an interactive exchange, Defendant instructed
9 Plaintiff to unload small packages that weighed approximately 10 to 15 pounds. Generally,
10 this included unloading and sorting smaller packages into a big chute to be transferred onto
11 a conveyor belt. The chutes comprised of numerous smaller packages and weighed
12 approximately 40 to 50 pounds. Once the chutes were full of small packages, employees
13 manually lifted the chutes onto a conveyor belt. This process was repeated throughout the
14 shift. Since then, Plaintiff continued to work in small packages.
15 10. On or around October 19, 2020, Plaintiff reported to work and began to
16 unload the small packages into the chutes. However, there was no one in her department
17 to assist her that day. and the managers were nowhere to be seen. As such, Plaintiff had no
18 other choice but to lift the chutes herself, as she would have been reprimanded for not
19 clearing the small packages. As such, Plaintiff attempted to lift the heavy chutes to the
20 conveyor belt.
21 11. When Plaintiff was lifting the chute, she blew out her hip and fell to the
22 floor. She limped to her car to get some ibuprofen hoping that the pain would subside.
23 However, once she got into her car, she could not move and could not get out of her car.
24 She called her manager Daryl and told him that she injured herself lifting the chute and had
25 to go to the emergency room due to the pain.
26 12. Thereafter, Plaintiff informed her manager Daryl that she needed to receive
27 an MRI and gave him a note from her doctor who had excused her from work until
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3
COMPLAINT
1 October 21, 2020.
2 13. On October 21, 2020, Plaintiff returned to work. Because the injury was
3 work-related, she was informed by her doctor that she needed to go through Defendant’s
4 workers compensation policy. Plaintiff requested information regarding Defendant’s
5 workers compensation policy and requested information to see a doctor to receive the
6 MRI. The manager Daryl, however, told Plaintiff that she needed to return to the floor and
7 continue working in small packages because that was where she was assigned to work. As
8 such, Plaintiff returned to the floor and continued to work, even though her hip was still in
9 pain.
10 14. Halfway into Plaintiff’s shift, Plaintiff could not withstand the pain in her
11 hip. Plaintiff reported to another manager that her hip was injured and that she was in
12 pain. That manager, who had recently returned from paternity leave, did not care and
13 instructed Plaintiff to unload the truck. Plaintiff informed that manager that she had been
14 assigned to work on small packages and could not unload the truck. Plaintiff also
15 informed her manager Daryl about being told to unload the truck. Daryl confirmed with
16 the manager that she had been assigned to small packages only.
17 15. Plaintiff worked in small packages for the few hours but the pain became too
18 severe for her to continue. As a result, Plaintiff again requested that Defendant provide her
19 with the worker’s compensation policy so that she could receive treatment. Plaintiff was
20 told that Defendant would call her with the information and to rest at home until she was
21 able to work again.
22 16. After waiting several weeks, Plaintiff still had not heard from Defendant.
23 And despite making numerous attempts to follow up regarding her status and Defendant’s
24 workers compensation policy, Defendant did not respond.
25 17. On or around November 21, 2020, Plaintiff was informed that Defendant had
26 her final paycheck ready for pick up and that she needed to sign for it. When Plaintiff
27 picked up her final paycheck, Plaintiff was informed that she was terminated. Plaintiff
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4
COMPLAINT
1 followed up about Defendant’s workers compensation policy, but Defendant refused to
2 provide her the information.
3 18. Plaintiff believes that Defendant discriminated and terminated her
4 employment due to her disability. Moreover, as a result of Plaintiff’s request for
5 accommodations, Defendant began to retaliate against Plaintiff by decreasing her hourly
6 rate. Plaintiff started her position receiving approximately $20.50 per hour. However,
7 upon informing Defendant of her disability and need for accommodations, Plaintiff’s
8 hourly rate was decreased to $18.75 per hour, and decreased again to $14.00 per hour
9 when she informed Defendant of her hip injury.
10 19. Plaintiff believes that her termination was the result of requesting
11 accommodations for her disability and reporting her workplace injury to Defendant, who
12 then discriminated and retaliated against her by terminating her employment.
FIRST CAUSE OF ACTION
13
14 (Disability and/or Medical Condition Discrimination in Violation of FEHA,
15 Government Code §§ 12900, et seq. Against Defendant FedEx Corporation, and
16 DOES 1-20, Inclusive.)
17 20. Plaintiff repeats and realleges paragraphs 1 through 19 of this Complaint and
18 incorporates the same by reference as if set forth fully herein.
19 21. Plaintiff’s actual, perceived, and/or history of disability and/or other
20 characteristics, which are protected by FEHA, Government Code section 12900, et seq.,
21 were motivating factors in Defendant’s decision to terminate Plaintiff’s employment, to
22 not retain, hire, or otherwise employ Plaintiff in any position, to refuse to accommodate
23 Plaintiff, to refuse to engage in the interactive process, and/or to take other adverse
24 employment actions against Plaintiff.
25 22. Defendant’s conduct, as alleged, violated FEHA, Government Code section
26 12900, et seq. Defendant committed unlawful employment practices, including, without
27 limitation, discharging, barring, refusing to retain or hire, and/or otherwise discriminating
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5
COMPLAINT
1 against Plaintiff, in whole or in part on the basis of Plaintiff’s actual, perceived, and/or
2 history of disability and/or other protected characteristics, in violation of Government
3 Code section 12940(a).
4 23. As a proximate result of Defendant’s willful, knowing, and intentional
5 discrimination against Plaintiff, Plaintiff has sustained and continues to sustain substantial
6 losses of earnings and other employment benefits.
7 24. As a proximate result of Defendant’s willful, knowing, and intentional
8 discrimination against Plaintiff, Plaintiff has suffered and continues to suffer humiliation,
9 emotional distress, and physical and mental pain and anguish, all to her damage in a sum
10 according to proof.
11 25. Plaintiff has incurred and continues to incur legal expenses and attorneys’
12 fees. Pursuant to Government Code section 12965(b), Plaintiff is entitled to recover
13 reasonable attorneys’ fees and costs (including expert costs) in an amount according to
14 proof.
15 26. Defendant’s misconduct was committed intentionally, in a malicious,
16 despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant.
SECOND CAUSE OF ACTION
17
18 (Retaliation in Violation of FEHA, Government Code § 12900, et seq. Against
19 Defendant FedEx Corporation, and DOES 1-20, Inclusive.)
20 27. Plaintiff repeats and realleges paragraphs 1 through 26 of this Complaint and
21 incorporates the same by reference as if set forth fully herein.
22 28. Plaintiff’s medical condition and disability, which are protected by FEHA,
23 Government Code section 12900, et seq., were motivating factors in Defendant’s decision
24 to terminate Plaintiff’s employment, not to retain, hire or otherwise employ Plaintiff in any
25 position, and/or to take other adverse job actions against Plaintiff.
26 29. Defendant’s conduct, as alleged, violated FEHA, Government Code section
27 12900, et seq. Defendant committed unlawful employment practices, including (1)
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6
COMPLAINT
1 discharging, barring, refusing to retain, and/or employ, and/or otherwise discriminating
2 against Plaintiff, in whole or in part on the basis of her medical condition and/or disability,
3 in violation of Government Code section 12940(a); (2) failing to take all reasonable steps
4 to prevent discrimination, and retaliation based on medical condition and disability in
5 violation of Government Code section 12940(k); and (3) retaliating against Plaintiff for
6 seeking to exercise rights guaranteed under FEHA and/or opposing Defendant’s failure to
7 provide such rights, including rights of reasonable accommodation, rights of interactive
8 process, leave rights, and/or the right to be free of discrimination, in violation of
9 Government Code section 12940(h).
10 30. As a proximate result of Defendant’s willful, knowing, and intentional
11 retaliation against Plaintiff, Plaintiff has sustained and continues to sustain substantial
12 losses of earnings and other employment benefits.
13 31. As a proximate result of Defendant’s willful, knowing, and intentional
14 retaliation against Plaintiff, Plaintiff has suffered and continues to suffer humiliation,
15 emotional distress, and physical and mental pain and anguish, all to her damage in a sum
16 according to proof.
17 32. Plaintiff has incurred and continues to incur legal expenses and attorneys’
18 fees. Pursuant to Government Code section 12965(b), Plaintiff is entitled to recover
19 reasonable attorneys’ fees and costs (including expert costs) in an amount according to
20 proof.
21 33. Defendant’s misconduct was committed intentionally, in a malicious,
22 despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant.
THIRD CAUSE OF ACTION
23
24 (Failure to Accommodate in Violation of FEHA, Government Code § 12940(a), (i),
25 (m), (n), et seq. Against Defendant FedEx Corporation, and DOES 1-20, Inclusive.)
26 34. Plaintiff repeats and realleges paragraphs 1 through 33 of this Complaint and
27 incorporates the same by reference as if set forth fully herein.
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7
COMPLAINT
1 35. At all times herein mentioned, FEHA, Government Code section 12940(a),
2 (i), (m), and (n) was in full force and effect and was binding on Defendant. This statute
3 requires Defendant to provide reasonable accommodations to known disabled employees.
4 36. Defendant wholly failed to attempt to make any reasonable accommodation
5 of Plaintiff’s known disability, despite it being open and apparent. Plaintiff believes and,
6 on that basis, alleges that her disability and/or medical condition was a substantial
7 motivating factor in Defendant’s termination of her employment.
8 37. As a proximate result of Defendant’s willful, knowing, and intentional
9 misconduct, Plaintiff has sustained and continues to sustain substantial losses of earnings
10 and other employment benefits.
11 38. As a proximate result of Defendant’s willful, knowing, and intentional
12 misconduct, Plaintiff has suffered and continues to suffer humiliation, emotional distress,
13 and physical and mental pain and anguish, all to her damage in a sum according to proof.
14 Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is
15 at present unaware of the precise amounts of these expenses and fees and will seek leave of
16 court to amend this Complaint when the amounts are fully known.
17 39. Defendant’s misconduct was done intentionally, in a malicious, despicable,
18 oppressive manner, entitling Plaintiff to punitive damages against Defendant.
FOURTH CAUSE OF ACTION
19
20 (Failure to Engage in the Interactive Process in Violation of FEHA, Government
21 Code § 12940 (a), (i), (m), (n), et seq. Against Defendant FedEx Corporation, and
22 DOES 1-20, Inclusive.)
23 40. Plaintiff repeats and realleges paragraphs 1 through 47 of this Complaint and
24 incorporates the same by reference as if set forth fully herein.
25 41. At all times herein mentioned, FEHA, Government Code section 12940(a),
26 (i), (m), and (n) was in full force and effect and was binding on Defendant. This statute
27 requires Defendant to provide reasonable accommodations to known disabled employees.
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8
COMPLAINT
1 42. Defendant wholly failed to engage in a timely, good faith interactive process
2 with Plaintiff to accommodate her known disability. Instead, Defendant terminated
3 Plaintiff’s employment because of her disability and her need to take medical leave.
4 Plaintiff believes and, on that basis, alleges that her disability was a motivating factor in
5 Defendant’s termination of her employment.
6 43. As a proximate result of Defendant’s willful, knowing, and intentional
7 misconduct, Plaintiff has sustained and continues to sustain substantial losses of earnings
8 and other employment benefits.
9 44. As a proximate result of Defendant’s willful, knowing, and intentional
10 misconduct, Plaintiff has suffered and continues to suffer humiliation, emotional distress,
11 and physical and mental pain and anguish, all to her damage in a sum according to proof.
12 Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is
13 at present unaware of the precise amounts of these expenses and fees and will seek leave of
14 court to amend this Complaint when the amounts are fully known.
15 45. Defendant’s misconduct was done intentionally, in a malicious, despicable,
16 oppressive manner, entitling Plaintiff to punitive damages against Defendant.
FIFTH CAUSE OF ACTION
17
18 (Failure To Provide Rest Periods (Labor Code § 226.7 and IWC Wage Order 9-2001)
19 Against Defendants FedEx Corporation and Jared McCauley, and DOES 1-20,
20 Inclusive.)
21 46. Plaintiff repeats and realleges paragraphs 1 through 45 of this Complaint and
22 incorporates the same by reference as if set forth fully herein.
23 47. With respect to rest periods, IWC Order 9-2001 provides: 12 (A) Every
24 employer shall authorize and permit all employees to take rest periods, which insofar as
25 practicable shall be in the middle of each work period. The authorized rest period time
26 shall be based on the total hours worked daily at the rate often (10) minutes net rest time
27 per four (4) hours or major fraction thereof. However, a rest period need not be authorized
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9
COMPLAINT
1 for employees whose total daily work time is less than three and one-half (3½) hours.
2 Authorized rest period time shall be counted as hours worked for which there shall be no
3 deduction from wages. (B) If an employer fails to provide an employee a rest period in
4 accordance with the applicable provisions of this order, the employer shall pay the
5 employee one (1) hour of pay at the employee’s regular rate of compensation for each
6 workday that the rest period is not provided.
7 48. California Labor Code § 226.7 provides:
8 a. No employer shall require any employee to work during any meal or
9 rest period mandated by an applicable order of the Industrial Welfare Commission.
10 b. If an employer fails to provide an employee a meal period or rest
11 period in accordance with an applicable order of the Industrial Welfare Commission, the
12 employer shall pay the employee one additional hour of pay at the employee’s regular rate
13 of compensation for each work day that the meal or rest period is not provided.
14 49. Defendants have failed to provide Plaintiff with any statutorily-required rest
15 periods in compliance with IWC Order 9-2001 and Labor Code §§ 226.7. Individual
16 Defendant Jared McCauley (“Individual Defendant”) is also personally and individually
17 liable pursuant to provisions of California Labor Code section 558.1 which permits
18 liability of an owner, director, officer, or managing agent of the employer who fails to
19 provide meal breaks under Wage Order 9. Individual Defendant is individually liable
20 because he exercised economic and operational control over Plaintiff’s employment
21 relationship including failing to provide rest breaks. Furthermore, Individual Defendant as
22 the district manager, exercised substantial discretionary authority over implementing and
23 enforcing Defendant’s employment policies, practices and procedure, including California
24 wage and hour laws and should have known that failing to provide rest breaks violated the
25 state wage and hour laws.
26 50. As a result of Defendants’ failure, Plaintiff is entitled to recover an amount
27 to be proven at trial, of not less than one additional hour of pay at the regular rate of
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10
COMPLAINT
1 compensation for each workday that one or more rest periods were not provided, and any
2 and all penalties provided by law.
PRAYER FOR RELIEF
3
4 WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
5 A. For compensatory, general, and punitive damages according to proof at trial;
6 B. All civil penalties provided under California law;
7 C. For all costs of suit incurred herein, including reasonable attorneys’ fees;
8 D. Interest as provided by law; and
9 E. For such other and further relief as the Court deems just and proper.
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DATED: February 19, 2021 KYLE TODD, P.C.
11 LIM LAW GROUP, P.C.
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By:
14 Kyle Todd
15 Troy Candiotti
Preston Lim
16 Attorneys for Plaintiff
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COMPLAINT
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KYLE TODD, P.C. 1 Kyle Todd (State Bar No. 286370) E-FILED kyle@kyletodd.com 3/24/2021 5:14 PM 2 Troy Candiotti (State Bar No. 327501) Superior Court of California tcandiotti@kyletodd.com County of Fresno 3 611 Wilshire Boulevard, Suite 315 By: A. Rodriguez, Deputy Los Angeles, CA 90017-2906 4 Telephone: (323) 208-9171 Facsimile: (323) 693-0822 5 LIM LAW GROUP, P.C. 6 Preston H. Lim (SBN 275249) phl@limlawgroup.com 7 1504 W. Artesia Sq., Suite B Gardena, California 90248 8 Telephone: (213) 900-3000 Facsimile: (213) 204-3000 9 Attorneys for Plaintiff 10 LEAH TURNER 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF FRESNO 13 14 LEAH TURNER, an individual, CASE NO. 21CECG00837 15 Plaintiff, COMPLAINT FOR: 16 vs. 1. DISCRIMINATION ON THE 17 FEDEX GROUND PKG SYSTEM INC., a BASIS OF MEDICAL Delaware corporation; JARED CONDITION AND/OR 18 MCCAULEY, an individual, and DOES DISABILITY IN VIOLATION 1-20, OF FEHA; 19 Defendants. 2. RETALIATION FOR 20 COMPLAINING OF DISCRIMINATION ON THE 21 BASIS OF MEDICAL CONDITION AND/OR 22 DISABILITY IN VIOLATION OF FEHA; 23 3. FAILURE TO 24 ACCOMMODATE; 25 4. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS; 26 5. VIOLATION OF CALIFORNIA 27 LABOR CODE SECTIONS 226.7 (UNPAID REST PERIOD 28 COMPLAINT PREMIUMS) 1 2 DEMAND FOR JURY TRIAL 3 4 Plaintiff LEAH TURNER hereby complains as follows against Defendant FedEx 5 Corporation, doing business as FedEx Ground (collectively, “Defendant”): 6 PARTIES 7 1. Leah Turner is, and at all times relevant to this action, was a resident of 8 Fresno County, in the City of Fresno, California, and employed in a non-exempt position 9 by Defendant during the liability period as a package handler. 10 2. Defendants FedEx Corporation, does business as FedEx Ground, employed 11 Plaintiff, who was an hourly non-exempt employee in Fresno County. 12 3. Defendant Jared McCauley is a managing agent of FedEx Corporation and 13 was Plaintiff’s manager during Plaintiff’s employment. 14 4. Plaintiff is unaware of the true names of Defendants Does 1 through 20. 15 Plaintiff sues said Defendants by said fictitious names, and will amend this Complaint 16 when the true names and capacities are ascertained or when such facts pertaining to 17 liability are ascertained, or as permitted by law or by the Court. Plaintiff is informed and 18 believes that each of the fictitiously named Defendants is in some manner responsible for 19 the events and allegations set forth in this Complaint. As used in this Complaint, 20 “Defendant” means “Defendants and each of them,” and refers to the Defendants named in 21 the particular cause of action in which the word appears and includes Defendant and Does 22 1 through 20. 23 JURISDICTION AND VENUE 24 5. Subject matter jurisdiction is appropriate in this Court because the amount in 25 controversy exceeds the Court’s jurisdictional minimum. 26 6. Venue for this action properly lies in the Fresno Superior Court because the 27 related misconduct occurred in Fresno, California. 28 2 COMPLAINT 1 FACTUAL BACKGROUND 2 7. On or around September 20, 2020, Plaintiff started working for Defendant at 3 its Fresno, California location. 4 8. Upon working at the Fresno location, Plaintiff immediately told her manager 5 that she had an ongoing workers’ compensation claim. She informed him that she had 6 some limitations and needed accommodations due to her injury. These accommodations 7 included limiting her bending, reaching, and pulling until December 2020. 8 9. As a result, rather than having an interactive exchange, Defendant instructed 9 Plaintiff to unload small packages that weighed approximately 10 to 15 pounds. Generally, 10 this included unloading and sorting smaller packages into a big chute to be transferred onto 11 a conveyor belt. The chutes comprised of numerous smaller packages and weighed 12 approximately 40 to 50 pounds. Once the chutes were full of small packages, employees 13 manually lifted the chutes onto a conveyor belt. This process was repeated throughout the 14 shift. Since then, Plaintiff continued to work in small packages. 15 10. On or around October 19, 2020, Plaintiff reported to work and began to 16 unload the small packages into the chutes. However, there was no one in her department 17 to assist her that day. and the managers were nowhere to be seen. As such, Plaintiff had no 18 other choice but to lift the chutes herself, as she would have been reprimanded for not 19 clearing the small packages. As such, Plaintiff attempted to lift the heavy chutes to the 20 conveyor belt. 21 11. When Plaintiff was lifting the chute, she blew out her hip and fell to the 22 floor. She limped to her car to get some ibuprofen hoping that the pain would subside. 23 However, once she got into her car, she could not move and could not get out of her car. 24 She called her manager Daryl and told him that she injured herself lifting the chute and had 25 to go to the emergency room due to the pain. 26 12. Thereafter, Plaintiff informed her manager Daryl that she needed to receive 27 an MRI and gave him a note from her doctor who had excused her from work until 28 3 COMPLAINT 1 October 21, 2020. 2 13. On October 21, 2020, Plaintiff returned to work. Because the injury was 3 work-related, she was informed by her doctor that she needed to go through Defendant’s 4 workers compensation policy. Plaintiff requested information regarding Defendant’s 5 workers compensation policy and requested information to see a doctor to receive the 6 MRI. The manager Daryl, however, told Plaintiff that she needed to return to the floor and 7 continue working in small packages because that was where she was assigned to work. As 8 such, Plaintiff returned to the floor and continued to work, even though her hip was still in 9 pain. 10 14. Halfway into Plaintiff’s shift, Plaintiff could not withstand the pain in her 11 hip. Plaintiff reported to another manager that her hip was injured and that she was in 12 pain. That manager, who had recently returned from paternity leave, did not care and 13 instructed Plaintiff to unload the truck. Plaintiff informed that manager that she had been 14 assigned to work on small packages and could not unload the truck. Plaintiff also 15 informed her manager Daryl about being told to unload the truck. Daryl confirmed with 16 the manager that she had been assigned to small packages only. 17 15. Plaintiff worked in small packages for the few hours but the pain became too 18 severe for her to continue. As a result, Plaintiff again requested that Defendant provide her 19 with the worker’s compensation policy so that she could receive treatment. Plaintiff was 20 told that Defendant would call her with the information and to rest at home until she was 21 able to work again. 22 16. After waiting several weeks, Plaintiff still had not heard from Defendant. 23 And despite making numerous attempts to follow up regarding her status and Defendant’s 24 workers compensation policy, Defendant did not respond. 25 17. On or around November 21, 2020, Plaintiff was informed that Defendant had 26 her final paycheck ready for pick up and that she needed to sign for it. When Plaintiff 27 picked up her final paycheck, Plaintiff was informed that she was terminated. Plaintiff 28 4 COMPLAINT 1 followed up about Defendant’s workers compensation policy, but Defendant refused to 2 provide her the information. 3 18. Plaintiff believes that Defendant discriminated and terminated her 4 employment due to her disability. Moreover, as a result of Plaintiff’s request for 5 accommodations, Defendant began to retaliate against Plaintiff by decreasing her hourly 6 rate. Plaintiff started her position receiving approximately $20.50 per hour. However, 7 upon informing Defendant of her disability and need for accommodations, Plaintiff’s 8 hourly rate was decreased to $18.75 per hour, and decreased again to $14.00 per hour 9 when she informed Defendant of her hip injury. 10 19. Plaintiff believes that her termination was the result of requesting 11 accommodations for her disability and reporting her workplace injury to Defendant, who 12 then discriminated and retaliated against her by terminating her employment. FIRST CAUSE OF ACTION 13 14 (Disability and/or Medical Condition Discrimination in Violation of FEHA, 15 Government Code §§ 12900, et seq. Against Defendant FedEx Corporation, and 16 DOES 1-20, Inclusive.) 17 20. Plaintiff repeats and realleges paragraphs 1 through 19 of this Complaint and 18 incorporates the same by reference as if set forth fully herein. 19 21. Plaintiff’s actual, perceived, and/or history of disability and/or other 20 characteristics, which are protected by FEHA, Government Code section 12900, et seq., 21 were motivating factors in Defendant’s decision to terminate Plaintiff’s employment, to 22 not retain, hire, or otherwise employ Plaintiff in any position, to refuse to accommodate 23 Plaintiff, to refuse to engage in the interactive process, and/or to take other adverse 24 employment actions against Plaintiff. 25 22. Defendant’s conduct, as alleged, violated FEHA, Government Code section 26 12900, et seq. Defendant committed unlawful employment practices, including, without 27 limitation, discharging, barring, refusing to retain or hire, and/or otherwise discriminating 28 5 COMPLAINT 1 against Plaintiff, in whole or in part on the basis of Plaintiff’s actual, perceived, and/or 2 history of disability and/or other protected characteristics, in violation of Government 3 Code section 12940(a). 4 23. As a proximate result of Defendant’s willful, knowing, and intentional 5 discrimination against Plaintiff, Plaintiff has sustained and continues to sustain substantial 6 losses of earnings and other employment benefits. 7 24. As a proximate result of Defendant’s willful, knowing, and intentional 8 discrimination against Plaintiff, Plaintiff has suffered and continues to suffer humiliation, 9 emotional distress, and physical and mental pain and anguish, all to her damage in a sum 10 according to proof. 11 25. Plaintiff has incurred and continues to incur legal expenses and attorneys’ 12 fees. Pursuant to Government Code section 12965(b), Plaintiff is entitled to recover 13 reasonable attorneys’ fees and costs (including expert costs) in an amount according to 14 proof. 15 26. Defendant’s misconduct was committed intentionally, in a malicious, 16 despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant. SECOND CAUSE OF ACTION 17 18 (Retaliation in Violation of FEHA, Government Code § 12900, et seq. Against 19 Defendant FedEx Corporation, and DOES 1-20, Inclusive.) 20 27. Plaintiff repeats and realleges paragraphs 1 through 26 of this Complaint and 21 incorporates the same by reference as if set forth fully herein. 22 28. Plaintiff’s medical condition and disability, which are protected by FEHA, 23 Government Code section 12900, et seq., were motivating factors in Defendant’s decision 24 to terminate Plaintiff’s employment, not to retain, hire or otherwise employ Plaintiff in any 25 position, and/or to take other adverse job actions against Plaintiff. 26 29. Defendant’s conduct, as alleged, violated FEHA, Government Code section 27 12900, et seq. Defendant committed unlawful employment practices, including (1) 28 6 COMPLAINT 1 discharging, barring, refusing to retain, and/or employ, and/or otherwise discriminating 2 against Plaintiff, in whole or in part on the basis of her medical condition and/or disability, 3 in violation of Government Code section 12940(a); (2) failing to take all reasonable steps 4 to prevent discrimination, and retaliation based on medical condition and disability in 5 violation of Government Code section 12940(k); and (3) retaliating against Plaintiff for 6 seeking to exercise rights guaranteed under FEHA and/or opposing Defendant’s failure to 7 provide such rights, including rights of reasonable accommodation, rights of interactive 8 process, leave rights, and/or the right to be free of discrimination, in violation of 9 Government Code section 12940(h). 10 30. As a proximate result of Defendant’s willful, knowing, and intentional 11 retaliation against Plaintiff, Plaintiff has sustained and continues to sustain substantial 12 losses of earnings and other employment benefits. 13 31. As a proximate result of Defendant’s willful, knowing, and intentional 14 retaliation against Plaintiff, Plaintiff has suffered and continues to suffer humiliation, 15 emotional distress, and physical and mental pain and anguish, all to her damage in a sum 16 according to proof. 17 32. Plaintiff has incurred and continues to incur legal expenses and attorneys’ 18 fees. Pursuant to Government Code section 12965(b), Plaintiff is entitled to recover 19 reasonable attorneys’ fees and costs (including expert costs) in an amount according to 20 proof. 21 33. Defendant’s misconduct was committed intentionally, in a malicious, 22 despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant. THIRD CAUSE OF ACTION 23 24 (Failure to Accommodate in Violation of FEHA, Government Code § 12940(a), (i), 25 (m), (n), et seq. Against Defendant FedEx Corporation, and DOES 1-20, Inclusive.) 26 34. Plaintiff repeats and realleges paragraphs 1 through 33 of this Complaint and 27 incorporates the same by reference as if set forth fully herein. 28 7 COMPLAINT 1 35. At all times herein mentioned, FEHA, Government Code section 12940(a), 2 (i), (m), and (n) was in full force and effect and was binding on Defendant. This statute 3 requires Defendant to provide reasonable accommodations to known disabled employees. 4 36. Defendant wholly failed to attempt to make any reasonable accommodation 5 of Plaintiff’s known disability, despite it being open and apparent. Plaintiff believes and, 6 on that basis, alleges that her disability and/or medical condition was a substantial 7 motivating factor in Defendant’s termination of her employment. 8 37. As a proximate result of Defendant’s willful, knowing, and intentional 9 misconduct, Plaintiff has sustained and continues to sustain substantial losses of earnings 10 and other employment benefits. 11 38. As a proximate result of Defendant’s willful, knowing, and intentional 12 misconduct, Plaintiff has suffered and continues to suffer humiliation, emotional distress, 13 and physical and mental pain and anguish, all to her damage in a sum according to proof. 14 Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is 15 at present unaware of the precise amounts of these expenses and fees and will seek leave of 16 court to amend this Complaint when the amounts are fully known. 17 39. Defendant’s misconduct was done intentionally, in a malicious, despicable, 18 oppressive manner, entitling Plaintiff to punitive damages against Defendant. FOURTH CAUSE OF ACTION 19 20 (Failure to Engage in the Interactive Process in Violation of FEHA, Government 21 Code § 12940 (a), (i), (m), (n), et seq. Against Defendant FedEx Corporation, and 22 DOES 1-20, Inclusive.) 23 40. Plaintiff repeats and realleges paragraphs 1 through 47 of this Complaint and 24 incorporates the same by reference as if set forth fully herein. 25 41. At all times herein mentioned, FEHA, Government Code section 12940(a), 26 (i), (m), and (n) was in full force and effect and was binding on Defendant. This statute 27 requires Defendant to provide reasonable accommodations to known disabled employees. 28 8 COMPLAINT 1 42. Defendant wholly failed to engage in a timely, good faith interactive process 2 with Plaintiff to accommodate her known disability. Instead, Defendant terminated 3 Plaintiff’s employment because of her disability and her need to take medical leave. 4 Plaintiff believes and, on that basis, alleges that her disability was a motivating factor in 5 Defendant’s termination of her employment. 6 43. As a proximate result of Defendant’s willful, knowing, and intentional 7 misconduct, Plaintiff has sustained and continues to sustain substantial losses of earnings 8 and other employment benefits. 9 44. As a proximate result of Defendant’s willful, knowing, and intentional 10 misconduct, Plaintiff has suffered and continues to suffer humiliation, emotional distress, 11 and physical and mental pain and anguish, all to her damage in a sum according to proof. 12 Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Plaintiff is 13 at present unaware of the precise amounts of these expenses and fees and will seek leave of 14 court to amend this Complaint when the amounts are fully known. 15 45. Defendant’s misconduct was done intentionally, in a malicious, despicable, 16 oppressive manner, entitling Plaintiff to punitive damages against Defendant. FIFTH CAUSE OF ACTION 17 18 (Failure To Provide Rest Periods (Labor Code § 226.7 and IWC Wage Order 9-2001) 19 Against Defendants FedEx Corporation and Jared McCauley, and DOES 1-20, 20 Inclusive.) 21 46. Plaintiff repeats and realleges paragraphs 1 through 45 of this Complaint and 22 incorporates the same by reference as if set forth fully herein. 23 47. With respect to rest periods, IWC Order 9-2001 provides: 12 (A) Every 24 employer shall authorize and permit all employees to take rest periods, which insofar as 25 practicable shall be in the middle of each work period. The authorized rest period time 26 shall be based on the total hours worked daily at the rate often (10) minutes net rest time 27 per four (4) hours or major fraction thereof. However, a rest period need not be authorized 28 9 COMPLAINT 1 for employees whose total daily work time is less than three and one-half (3½) hours. 2 Authorized rest period time shall be counted as hours worked for which there shall be no 3 deduction from wages. (B) If an employer fails to provide an employee a rest period in 4 accordance with the applicable provisions of this order, the employer shall pay the 5 employee one (1) hour of pay at the employee’s regular rate of compensation for each 6 workday that the rest period is not provided. 7 48. California Labor Code § 226.7 provides: 8 a. No employer shall require any employee to work during any meal or 9 rest period mandated by an applicable order of the Industrial Welfare Commission. 10 b. If an employer fails to provide an employee a meal period or rest 11 period in accordance with an applicable order of the Industrial Welfare Commission, the 12 employer shall pay the employee one additional hour of pay at the employee’s regular rate 13 of compensation for each work day that the meal or rest period is not provided. 14 49. Defendants have failed to provide Plaintiff with any statutorily-required rest 15 periods in compliance with IWC Order 9-2001 and Labor Code §§ 226.7. Individual 16 Defendant Jared McCauley (“Individual Defendant”) is also personally and individually 17 liable pursuant to provisions of California Labor Code section 558.1 which permits 18 liability of an owner, director, officer, or managing agent of the employer who fails to 19 provide meal breaks under Wage Order 9. Individual Defendant is individually liable 20 because he exercised economic and operational control over Plaintiff’s employment 21 relationship including failing to provide rest breaks. Furthermore, Individual Defendant as 22 the district manager, exercised substantial discretionary authority over implementing and 23 enforcing Defendant’s employment policies, practices and procedure, including California 24 wage and hour laws and should have known that failing to provide rest breaks violated the 25 state wage and hour laws. 26 50. As a result of Defendants’ failure, Plaintiff is entitled to recover an amount 27 to be proven at trial, of not less than one additional hour of pay at the regular rate of 28 10 COMPLAINT 1 compensation for each workday that one or more rest periods were not provided, and any 2 and all penalties provided by law. PRAYER FOR RELIEF 3 4 WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 5 A. For compensatory, general, and punitive damages according to proof at trial; 6 B. All civil penalties provided under California law; 7 C. For all costs of suit incurred herein, including reasonable attorneys’ fees; 8 D. Interest as provided by law; and 9 E. For such other and further relief as the Court deems just and proper. 10 DATED: February 19, 2021 KYLE TODD, P.C. 11 LIM LAW GROUP, P.C. 12 13 By: 14 Kyle Todd 15 Troy Candiotti Preston Lim 16 Attorneys for Plaintiff 17 18 19 20 21 22 23 24 25 26 27 28 11 COMPLAINT