RequestCal. Super. - 6th Dist.December 31, 2019KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O 1QCV361037 Smebm-GW Yosef Peretz (SBN 209288) yperetz@peretzlaw.com Shane Howarter (SBN 3 1 1970) showarter@peretzlaw.com PERETZ & ASSOCIATES 22 Battery Street, Suite 200 San Francisco, CA 941 11 Telephone: 415.732.3777 Facsimile: 415.732.3791 Attorneys for PlaintiffTRIEU PHAM Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/14/2020 5:33 PM Reviewed By: R. Nguyen Case #1 9CV361 037 Envelope: 5109622 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA TRIEU PHAM, Plaintiff, V. APPLE, INC., a California corporation and DOES 1 through 10, inclusive, Defendants. Plaintiff TRIEU PHAM respectfully requests the Court t0 take judicial notice of Case No. 19CV361037 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT APPLE, INC.’S DEMURRER TO THE FIRST AMENDED COMPLAINT Date: October 27, 2020 Time: 9:00 am. Dept: 20 Judge: Hon. Socrates P. Manoukian Complaint Filed: December 3 1, 2019 First Amended Complaint Filed: July 17, 2020 the following exhibits pursuant t0 California Evidence Code sections 452 and 453. EXHIBIT “1”: R.Ng The First Amended Complaint in this action, Santa Clara County Superior Court Case No. 19CV361037, filed 0n July 17, 2020; EXHIBIT “2”: The initial Complaint in this action, Santa Clara County Superior Court Case No. 19CV361037, filed on December 3 1 , 20 1 9; and EXHIBIT “3”: The Court’s order overruling in part and sustaining in part Defendant’s demurrer to the initial complaint in this action, Santa Clara County Superior Court Case No. 19CV361037, dated July 7, 2020. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT APPLE, INC.’S DEMURRER TO THE FIRST AMENDED COMPLAINT -1- uyen KOOONQUl-PUJNH NNNNNNNNNh-Ar-th-HHHHHHH OONONMAUJNHOKOOOQONMJ>UJNHO Dated: October 14, 2020 PERETZ & ASSOCIATES By: VI Yosef Peretz Shane Howarter Attorneys for PlaintiffTRIEU PHAM REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT APPLE, INC.’S DEMURRER TO THE FIRST AMENDED COMPLAINT -2- EXHIBIT 1 KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O 1QCV361037 Santa Clara - Civil Yosef Peretz (SBN 209288) yperetz@peretzlaw.com Shane Howarter (SBN 3 1 1970) showarter@peretzlaw.com PERETZ & ASSOCIATES 22 Battery Street, Suite 200 San Francisco, CA 941 11 Telephone: 415.732.3777 Facsimile: 415.732.3791 Attorneys for PlaintiffTRIEU PHAM SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA TRIEU PHAM, Case No. 19-CV-361037 Plaintiff, FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL V. 1. Discrimination Based on Political APPLE, INC., a California corporation and DOES 1 through 10, inclusive, Defendants. /// /// FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 1 _ . Harassment Based on ofNational Origin . Wrongful Termination in Violation 0f Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/1 7/2020 11:29 AM Reviewed By: L. Quach-Marcell. Case #1 9CV361 037 Envelope: 4616728 Affiliation in Violation of Labor Code §§ 98.6, 1101, and 1102; Retaliation Based on Political Affiliation in Violation 0f Labor Code §§ 98.6, 1101, and 1 102; Discrimination Based on National Origin in Violation 0fFEHA: Disparate Treatment; Discrimination Based on Medical Condition in Violation 0fFEHA; and Medical Condition in Violation of FEHA; Retaliation in Violation ofFEHA; Failure to Prevent Harassment, Discrimination, or Retaliation in Violation ofFEHA; Public Policy; and Unlawful, Unfair, and/or Fraudulent Business Practices in Violation of Business and Professions Code §§ 17200, et seq. aha KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O PlaintiffTRIEU PHAM (“Pham”) alleges as follows: I. INTRODUCTION 1. This is an action brought by Pham against Defendant APPLE, INC. (“Apple”) and DOES 1-10 (collectively, “Defendants”) in connection With claims arising from Pham’s employment With Apple, including wrongful termination. 2. Defendants discriminated and retaliated against, harassed, and finally wrongfully terminated Pham for political reasons, his national origin, and medical condition. 3. Pham therefore seeks compensatory damages, general damages, punitive damages, and the cost 0f suit, including attorneys’ fees, for the harm caused t0 him by the wrongful conduct 0f Defendants. II. PARTIES 4. Pham is an American man of Vietnamese national origin and ancestry. Pham is a resident of the County 0f Santa Clara, California. Pham worked for Apple as an iOS App Reviewer in Cupertino, California from October 13, 2014 until he was wrongfully terminated 0n March 18, 2019. 5. Apple is a California corporation headquartered in Cupertino, California, which is authorized to and has conducted business in the State of California at all times relevant to this action. Apple was and still is an employer within the meaning of the California Fair Employment and Housing Act (“FEHA”), California Government Code (“Gov’t Code”) § 12926, et seq. 6. Defendants DOES 1 through 10 are sued herein under fictitious names pursuant t0 Code 0f Civil Procedure (“CCP”) § 474. Pham is informed, believes, and thereon alleges that each 0f the Defendants designated as a Doe is responsible in some manner for the events and happenings herein, and that his injuries and damages as hereinafter set forth were proximately caused by said Defendants. Pham does not at this time know the true names or capacities of said unnamed Defendants, but he prays that the same may be inserted herein when ascertained. These said defendants are in some way liable for the damages sustained by Pham. 7. Upon information and belief, Defendants DOES 1 through 10 acted with and 0n behalf of named Defendants in the alleged Violations. Pham is informed, believes, and thereon alleges that at all times herein mentioned, each ofthe Defendants sued herein was the agent and/or employee of each of the remaining Defendants, and each 0f them, was at all times acting within the purpose and scope of such agency and/or employment. FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 2 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O III. JURISDICTION AND VENUE 8. Jurisdiction and venue are proper because Pham’s claims and causes 0f action arose in the County 0f Santa Clara where Pham was employed by Apple, because the alleged conduct took place in Santa Clara County, because records relating t0 the claims made in this action are located in Santa Clara County, because numerous percipient Witnesses and employees 0f Apple live in Santa Clara County, and because Apple is headquartered in and regularly does business in Santa Clara County. 9. In response t0 Defendants” unlawful conduct, Pham filed a Complaint of Discrimination against Defendants with the California Department 0f Fair Employment and Housing (“DFEH”) on December 31, 2019. That same day, the DFEH issued a Right-To-Sue Notice under Gov’t Code § 12965(b), permitting Pham to file a civil action under FEHA. A true and correct copy 0f said Complaint and Notice 0f Right-to-Sue is attached hereto as Exhibit 1. IV. FACTUAL ALLEGATIONS A. Pham’s Success and the Pace 0fWork at Apple 10. On September 23, 2014, Apple offered Pham the position of iOS App Reviewer (“App Reviewer”). Pham accepted the position and began work for Apple 0n October 13, 2014. 11. Upon beginning work for Apple, Pham earned a wage of $31.25 per hour, plus additional benefits and compensation that were provided t0 him as part of his compensation including medical and dental insurance, vacation and holiday pay, retirement benefits, and the option of participating in Apple’s Employee Stock Purchase Program. 12. The App Reviewers at Apple work with Apple’s Marketing Department. As an App Reviewer, Pham was responsible for determining whether software applications (“Apps”) were reliable, performed as expected, and were free 0f offensive material. Pham reviewed Apps based on a pre-set 0f technical, content, and design criteria provided by Apple; and he determined whether to accept, reject, or hold each App. 13. Developers who disagree with an App Reviewer’s decision to reject their App can appeal that decision t0 Apple’s App Review Board, which has the authority to overrule the decision of the lower-level App Reviewer. If a rejected App is subject to continued appeals, it may end up before Apple’s Executive Review Board, which has final say on all App decisions. 14. The Executive Review Board is also responsible for handling Apps that fall into the “gray area” within Apple’s policies, such as Apps that are publicly sensitive, those that could result in negative publicity for Apple, 0r those that may impact the company’s business FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 3 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O relationships. 15. Apple imposes daily quotas 0n App Reviewers to accept, reject, or hold between 50 and 100 Apps each day. A daily quota of 80 App reviews was imposed upon Pham, Which equates t0 approximately one App review every 6 minutes over the course 0f an 8-hour shift. Apple tracks each App Reviewer’s rate of review using software called “Watchtower,” and publishes the names of the top performing App Reviewers weekly based 0n the volume and quality 0f their work. 16. T0 track the performance of the App Review Department as a Whole, Apple monitors a statistic called Service-Level Agreement (“SLA”). SLA represents the proportion 0f Apps reviewed Within 24 t0 48 hours. Apple aims for an SLA of about 50%; however, at certain times of the year, like right before the release of a new version ofiOS-Apple’s operating system for mobile devices-an App Reviewer’s SLA can fall t0 as 10W as 6%. 17. In response to such scenarios, Apple increases the working hours of its App Reviewers t0 12-hour shifts and encourages them t0 conduct more rapid review of Apps. 18. In addition t0 these quotas, Pham was also pressured by his managers t0 process Apps even more quickly than usual using a “speedy” process. Pham was encouraged to utilize the “speedy” process 0n and off over the course of his employment at Apple. 19. Pham was consistently a top performer, typically ranking among the top three App Reviewers each week. Due t0 the pressures ofApple’s quota system and the additional pressures imposed by his managers, Pham regularly reviewed between 120 and 180 Apps each day in order to maintain his performance ranking, which resulted in him spending approximately 3-4 minutes per each App review. 20. In addition to his status as a top performer, Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved 0r exceeded expectations. As an example, his 2015 annual review commended his “production above expected target levels/team average” and his status “towards the top” of performers. It also indicated that Pham was “a huge part of the success 0f app review.” Later reviews also lauded his “feedback for improvement 0f the App Review tools and processes,” as well as his “willing[ness] to help the team in many different ways when needed” and his “good attitude towards his team.” /// FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 4 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O B. Pham’s Complaint and the Resulting Discrimination, Retaliation, and Harassment 21. In 2017, Apple reshuffled its App Review Department, resulting in Pham joining a team led by another manager, Richard Chipman (“Chipman”), 0n September 7, 2017. 22. That same day, Chipman reprimanded Pham for his performance, claiming that Pham’s pace was too rapid, and told Pham to review Apps more slowly. As a new member of the team, Pham complied with Chipman’s directive. 23. Toward the end of Pham’s shift on September 7, 2017, after Chipman had left the office, Pham was approached at his desk by Terry Barwegen (“Barwegen”), a manager of a different App Review team. Observing Pham working at the pace that Chipman had requested, Barwegen confronted Pham in front of his new team, singling him out and telling him that he “need[ed] to be working like everyone else,” meaning that Pham must work faster than the pace mandated by Chipman. Pham had already easily exceeded his daily quota at that point in time so there was n0 ground for that request. Barwegen, nevertheless, berated Pham and tried to shame him in front of the entire team, despite the fact that Pham had already discussed this issue with his own manager and was following their directions. 24. In the weeks following this incident, Apple’s App Review management team continued to harass Pham about his performance, singling him out during “talks” about issues that affected the entire team. Only Pham was subjected t0 reprimands for these issues despite their prevalence among other employees 0n the team. In particular, Chipman and other Apple supervisors did not single out 0r reprimand Pham’s Caucasian co-workers for the same alleged issues. 25. Around this time, Chipman also began taking more harassing and intimidating actions against Pham and singling him out among his co-workers. For example, Chipman would stand directly behind Pham’ s chair While Pham was working and stare at Pham’s computer screen without speaking. This occurred 0n essentially a daily basis. Other team members observed Chipman’s unusual behavior and asked Pham What was going 0n, as Chipman did not stand and stare at their computer screens. Chipman’s constant lurking and singling Pham out for criticism in front of his team members was designed t0 intimidate and harass Pham. 26. Discouraged by this harassment and concerned that he was the subject 0f efforts t0 tarnish his reputation as an Apple employee, Pham filed a formal complaint With Brandon Wied (“Wied”), a Human Resources (“HR”) Business Partner at Apple, 0n September 19, 2017. Pham FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 5 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O told Wied that he felt discriminated against by the management team, Which was comprised entirely of older Caucasian males, and offered to provide Wied with his work data and examples 0f the discriminatory treatment he was facing. 27. At all relevant times, Chipman and the other managers Who harassed and discriminated against Pham were managing agents 0f Apple and/or acting With Apple’s knowledge and consent, inter alia, because Pham raised his issues to Apple HR. However, t0 Pham’s knowledge, n0 action was taken by neither Wied nor Apple HR after Pham’s complaint. 28. Instead, following the filing of his discrimination complaint, Apple’s App Review management team only increased its harassing conduct towards Pham. Pham was then continually confronted about the quality 0f his work and his error rate by a series 0f managers, including Chipman, Barwegen, Justin Morgan (“Morgan”), Dan Martinez, and Steve Rea (“Rea”). Prior t0 the filing of the formal complaint, Pham had never been confronted about any issues With his work quality or error rate by these managers or anyone else at Apple. Notably, other App Review Department employees” performance was on par with 0r below Pham’s performance level, in terms of quality of work 0r error rate; yet these employees were not subjected to the same treatment. 29. Chipman, Barwegen, Morgan, Dan Martinez, Rea scrutinized Pham’s work in retaliation for the complaints he made against Apple for discrimination and harassment, and because they wanted t0 further harass and discriminate against Pham. A11 these Apple managers were managing agents of Apple, and they also acted with Apple’s knowledge and consent to the discriminatory, harassing and retaliatory conduct against Pham. 30. In particular, Pham’s concerns about Chipman’s motives was confirmed by his colleagues. When Pham discussed Chipman’s harassing and intimidating behavior with others team members, they told him that Rea explicitly told them that Chipman and the other managers were trying to get rid of Pham, and therefore they would be scrutinizing his work. 31. On June 20, 2018, Pham was called into Chipman’s office and chastised by Chipman for approving a game called “Puzzle 0f Love,” which Chipman said was a “valid rejection” that “should not have [been] approved,” as the game was found to be objectively offensive due to pornographic material in the game. However, the game in fact contained n0 pornographic material, was not a valid rejection, and remains available in Apple’s App Store to date. 32. Between July and September 2018, Apple management conducted an audit 0f a FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 6 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O sample of Pham’s App reviews and 0n September 19, 2018 provided him With a Documented Coaching Plan (“DCP”) that identified reviews by Pham that were purportedly erroneous. 33. Upon reviewing his purported errors at Apple’s request t0 offer a rebuttal, Pham was unable to determine any decisions that were accurately classified as errors on his part, and pointed this out to Apple. Following Pham’s rebuttal, Apple’s Quality team reversed their inaccurate classification 0f several 0f Pham’s purported errors. 34. Pham’s DCP identified his most serious error was his approval 0f a Guo Media App, Which was forbidden from Apple’s China App Store. However, the same App was approved by a series of other Apple employees, including three Chinese App Reviewers; yet none of them were disciplined for approval 0f this App as Pham was. 35. Notably, all Apps identified by Apple’s management team as being “erroneously approved” by Pham in the DCP remained 0n Apple’s App Store following the audit, and remain there t0 date. 36. Upon information and belief, Guo Media was established by Guo Wengui (“Guo”), a Chinese billionaire Who goes by the name “Miles Kwok” in the United States. Guo is believed to have fled China to seek asylum in the United States in 2014 and remains wanted by the Chinese government for a series of alleged crimes. Guo publicly disputes the allegations made against him by the Chinese government and claims that he is subjected t0 political persecution. Guo regularly uses Guo Media to publicize claims of corruption against Chinese government officials and members of the Chinese Communist Party. 37. Upon information and belief, after Pham approved the Guo Media App, the Chinese government contacted Apple and demanded that the Guo Media App be removed from Apple’s App Store. Apple then performed an internal investigation and identified Pham as the reviewer who approved it. 38. Shortly after Apple provided Pham with the DCP, he was called to a meeting t0 discuss the Guo Media App with multiple Apple supervisors and managers, including Rea and Apple senior manager Morgan. Pham immediately recognized that this meeting was highly unusual, because Morgan had called Pham into his own office, even though App Reviewers and other associates were normally never called in there. 39. At this meeting that took place in 0r around late September 2018, Apple supervisors stated that the Guo Media App is critical 0f the Chinese government, and therefore should be removed from the App Store. Pham responded that the Guo Media App publishes valid FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 7 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O claims 0f corruption against the Chinese government and the Chinese Communist Party, and therefore, it should not be taken down. 40. Pham further told his supervisors at that meeting that there is no content on the Guo Media App that is Violent or liable t0 incite Violence, that this App does not Violate any 0f Apple’s policies and procedures in regards to Apps, and therefore it should remain on the App Store as a matter 0f free speech. 41. Finally, Pham also noted in this meeting that removing the Guo Media App under pressure from the Chinese government would be caving to censorship. Pham repeatedly asked What technical or content criteria could justify removing the Guo Media App based 0n Apple’s stated policies and procedures, his supervisors and managers could identify any such basis. 42. A few days later, Pham’s then immediate supervisor, Chipman, returned from vacation and called Pham t0 a meeting t0 discuss the DCP, and the Guo Media App in particular. Pham reiterated the same points to Chipman, including that there is no objectionable content 0n the Guo Media App, that it merely publishes valid claims of corruption against the Chinese government, and that it should not be taken down because Guo was entitled t0 publish his opinions. 43. In the following weeks, Pham discussed the Guo Media App with other App Reviewers and colleagues. Pham related What had occurred at these meetings With Apple managers, including that Apple was taking steps to censor a Chinese dissident under pressure from the Chinese government even though the App met all technical criteria to be approved. 44. Upon information and belief, Apple became aware of Pham’s criticism, including Chipman and his other managers, and they responded by retaliating against Pham and ultimately terminating him. 45. Pham therefore believes and alleges that the DCP was created by Apple based 0n an ulterior motive to appease the Chinese government-the DCP was meant to be Apple’s message to China that it in fact did not approve an App created by Guo, a well-known Chinese political dissident, known for his fierce opposition to the Chinese government. 46. In creating the DCP, Apple was enforcing its policy and or practice of appeasing and accepting the censorship of the Chinese government by removing Apps they did not approve from the Apple stores, and instead punishing and retaliating against employees who spoke out against such censorship both internally at Apple and outside the workplace, or employees who FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 8 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O complained and refused t0 remove Apps that the Chinese government objected t0 0n political ground from Apple’s stores. 47. Because Apple maintains a lucrative business relationship With the Chinese Government, Pham became concerned that this audit 0f his work and the resulting DCP was nothing more than a pretext t0 justify Apple’s escalation of harassing treatment towards Pham and his eventual termination, all done with the purpose of appeasing the Chinese government and because he refused and complained both internally and outside 0f Apple of Apple’s conduct and Apple” s attempt t0 quash his own criticism against the company that Apple is censoring dissidents 0f the Chinese government. 48. Accordingly, Pham asked that an Apple HR representative participate in a meeting reviewing the audit of his work because he feared that he will be subjected t0 further retaliation and harassment by his managers and supervisors. 49. However, following the audit, there was never any corrective action process, issuance 0f the DCP, nor any other follow-up by Apple. 50. On September 20, 2018, the day after the DCP was issued, Pham requested a meeting With a representative from Apple’s HR Department t0 discuss the erroneous conclusions in the DCP, as well as the harassment Pham had experienced from the App Review team’s managers. 5 1. On October 10, 2018, Pham met with Mike Gillaspie (“Gillaspie”), an Employee Relations Business Partner in Apple’s HR Department, t0 discuss these concerns and explained that the audit felt arbitrary 0n the grounds that none of the errors listed in his DCP required any follow-up correction and that all “erroneous” Apps were still listed on the App Store, as they always should have been. 52. Pham and Gillaspie discussed the Guo Media App, and Pham reiterated what he had discussed with multiple Apple managers-namely, that the App had no obj ectionable content and that it appeared that Apple was caving to censorship by the Chinese government of a well- known political dissident. Pham also told Gillapsie that he had discussed the Guo Media App with other Apple employees, and that his managers were now retaliating against him in part because 0f Pham’s criticism of Apple’s approach. 53. However, even after expressing the above concerns with Apple’s HR Department, no corrective action process followed the DCP, nor any other follow-up by Apple. Again, all Apps identified by Apple’s management team as being erroneously approved by Pham remain on FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 9 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O Apple’s App Store t0 date. 54. The impact of the discrimination, harassment and retaliation that Pham had been experiencing began to take a toll 0n Pham’s mental and physical health. Concerned about his medical health, 0n October 12, 2018, Pham sought the advice 0f a medical professional. Upon recommendation from his doctor, Pham requested and took a medical leave 0f absence from Apple, beginning 0n October 21, 2018. 55. On December 14, 2018, during his medical leave of absence, Pham received a text message from a colleague at Apple indicating that Department Administrator, Courtney Horn (“Horn”), and the management team were planning 0n terminating Pham’s employment With Apple upon his return from medical leave. 56. On February 15, 2019, Pham returned t0 Apple from medical leave and immediately returned t0 providing the high quality and quantity 0f work that had consistently made him a top performing App Reviewer for Apple. 57. On March 15, 2019, exactly 30 days after his return from medical leave, Pham received a memorandum from Chipman terminating Pham’ s employment with Apple as ofMarch 18, 2019. The memorandum stated that Pham’s termination was due to his purported failure t0 “successfully meet the objectives and expectations” 0f the position he had successfully held for approximately four and a half years, as well as his purported failure to “meet other Apple standards.” 58. Following his termination, on March 15, 2019, Pham requested a review of the decision to terminate his employment Via Apple’s Decision Review Policy because he believes that his termination was discriminatory and retaliatory and was motivated by his national origin, as well as Pham’s vocal support for the Guo Media App because of its claims of corruption by a Chinese political dissent, and Pham’s stated opposition to Apple’s willingness to accept censorship 0f its Apps by the Chinese government and Chinese Community Party. 59. Pham further believes that his termination was retaliatory as it was a direct result of his discrimination, harassment and retaliation complaints to HR 0n account of his national origin as well as his political activity at Apple and outside the workplace. 60. On information and belief, each of these acts was either personally carried out, authorized, or ratified by Chipman, Barwegen and other supervisor and managers at Apple as well as Wied and the other Apple HR representatives, who exercised substantial independent judgment such that their decisions and actions toward Pham ultimately determined Apple’s FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 10 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O corporate policy. Thus, all these individuals acted at all times as managing agents oprple and/or With the authorization 0r ratification 0f Apple’s officers, directors, 0r other managing agents. 61. Three months later, 0n June 18, 2019, following an investigation and five interviews With Victor Cousins (“Cousins”), Apple’s Employee Relations Business Partner responsible for conducting the Decision Review, Cousins determined that Pham’s termination was “an appropriate management step,” and confirmed that “Apple will not be changing the decision t0 terminate [Pham’s] employment.” 62. Although Pham has avidly attempted t0 find alternative employment since his termination from Apple, he remains unemployed t0 date. 63. Notably, another co-worker of Vietnamese origin and ancestry 0n Pham’s team was terminated approximately one t0 two months prior t0 Pham’s termination by Apple. Upon information and belief, the termination of this employee was not based 0n job performance, but rather 0n a personal vendetta and discriminatory animus on the part of Chipman and other Apple supervisors in the App Review Department. FIRST CAUSE OF ACTION Discrimination Based 0n Political Affiliation in Violation of Labor Code §§ 98.6, 1101, and 1102 (Alleged against All Defendants) 64. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 65. California’s Labor Code offers protections t0 employees against the unlawful practices of employers by discharging, discriminating, retaliating, or taking any adverse action against an employee or applicant for employment due to political affiliation, or by controlling or directing the political activities or affiliations of employees. Labor Code §§ 98.6, 1101, 1102. 66. As set forth above, Pham was harassed, punished, discriminated against, and eventually terminated based upon his approval of, and vocal support for, the Guo Media App, which publicizes claims of corruption against Chinese government officials and members of the Chinese Communist Party, and is backed by a well-known Chinese political dissident. 67. Based on the facts above, Pham reasonably believes that the unlawful discrimination he faced was based upon Apple’s desire t0 appease the Chinese government, in order t0 maintain Apple’s lucrative business in China. In discriminating against Pham, Apple was enforcing its unwritten policy of appeasing and accepting the censorship 0f the Chinese government, and punishing and retaliating against employees who speak out against such FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 1 1 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O censorship 0r complained and opposed Apple’s practices and policies 0f appeasing the Chinese government and quashing any of its political dissidents. 68. By terminating Pham and taking other adverse employment actions against him based upon his approval of the Guo Media App, Defendants violated California Labor Code §§ 98.6, 1101, and 1102. 69. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses of income and work opportunities and have caused him t0 suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 70. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 71. In doing the acts herein alleged, Defendants acted with oppression, fraud 0r malice, and in reckless 0r in willful disregard 0f Pham’s rights, and Pham is therefore entitled to punitive damages in an amount according t0 proof at the time of trial. SECOND CAUSE OF ACTION Retaliation Based 0n Political Affiliation in Violation 0f Labor Code §§ 98.6, 1101, and 1102 (Alleged Against All Defendants) 72. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 73. California’s Labor Code makes it unlawful for an employer to discharge, threaten to discharge, demote, suspend, retaliate against, or take any adverse action against an employee due t0 political affiliation, or by controlling or directing the political activities 0r affiliations of employees. Labor Code §§ 98.6, 1101, 1102. 74. As set forth above, Pham was harassed and eventually terminated based upon his approval of, and vocal support for, the Guo Media App, which publicizes claims of corruption against Chinese government officials and members of the Chinese Communist Party, and is backed by a well-known Chinese political dissident. 75. Based 0n the facts above, Pham reasonably believes that he was terminated in retaliation because 0f his approval of the Guo Media App and his related complaints t0 HR about harassment and discrimination, including his formal complaint with Wied, an HR Business Partner at Apple, on September 19, 2017, and his meeting with Gillaspie, an Employee Relations Business Partner in Apple’s HR Department, 0n October 10, 2018. In discriminating against Pham, Apple was enforcing its unwritten policy 0f appeasing and accepting the censorship of the FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 12 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O Chinese government, and punishing and retaliating against employees who speak out against such censorship 0r complained and opposed Apple’s practices and policies 0f appeasing the Chinese government and quashing any of its political dissidents. 76. By terminating Pham and taking other adverse employment actions against him based upon his approval of the Guo Media App, Defendants violated California Labor Code §§ 98.6, 1101, and 1102. 77. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses of income and work opportunities and have caused him t0 suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 78. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 79. In doing the acts herein alleged, Defendants acted with oppression, fraud or malice, and in reckless or in willful disregard of Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according t0 proof at the time 0f trial. THIRD CAUSE OF ACTION Discrimination Based on National Origin in Violation of FEHA: Disparate Treatment (Alleged Against All Defendants) 80. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 8 1. FEHA offers protections t0 employees against the unlawful practices 0femployers by broadly prohibiting employment discrimination in discharges, or terms and conditions of employment, and particularly based on age or national origin. Gov’t Code § 12900, et seq. 82. As set forth above, Pham was treated differently, and discriminated against, based upon his national origin, Which is a protected class under FEHA. 83. By terminating Pham and taking other adverse employment actions against him based upon his national origin, Defendants violated FEHA. 84. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses of income and work opportunities and have caused him t0 suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 85. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 86. In doing the acts herein alleged, Defendants acted with oppression, fraud 0r FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 13 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O malice, and in reckless 0r in willful disregard 0f Pham’s rights, and Pham is therefore entitled to punitive damages in an amount according t0 proof at the time 0f trial. FOURTH CAUSE OF ACTION Discrimination Based 0n Medical Condition in Violation 0fFEHA (Alleged Against All Defendants) 87. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 88. FEHA offers protections t0 employees against the unlawful practices 0femployers by broadly prohibiting employment discrimination in discharges, 0r terms and conditions 0f employment based 0n medical condition and/or disability. Gov’t Code § 12900, et seq. 89. As set forth above, Pham was treated differently, and discriminated against, based upon his actual and perceived medical condition 0r disabilities, including but not limited to the extreme stress and anxiety brought upon by working under the aforementioned conditions at Apple, Which are protected classes under FEHA. 90. Further, by terminating Pham and taking other adverse employment actions against him based upon his actual and perceived medical condition 0r disabilities, Defendants violated FEHA. 91. Defendants’ actions, as described above, directly and proximately have caused, and continue to cause, Pham t0 suffer losses 0f income and work opportunities and have caused him t0 suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 92. Accordingly, Plaintiff is entitled to damages according to proof at trial. 93. In doing the acts herein alleged, Defendants acted With oppression, fraud, malice, and in reckless or in willful disregard of Plaintiff’s rights and Plaintiff is therefore entitled t0 punitive damages in an amount according t0 proof at the time 0f trial. FIFTH CAUSE OF ACTION Harassment Based 0n National Origin in Violation 0fFEHA (Alleged Against All Defendants) 94. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-63 herein by reference. 95. Pham was subjected to harassment, discrimination, and retaliation in the course of his employment with Apple by his supervisors and other employees at the company related t0 work, despite exceeding his quota of App reviews, and 0f the Apps Which he approved, despite FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 14 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O these Apps being still available in the Apple App stores both in the United States and/or in China. 96. Pham’s supervisors and other employees at the company created and allowed a hostile work environment and harassed Pham on the basis of his national origin in Violation of FEHA. 97. Pham’s supervisors and other employees at the company engaged in an ongoing pattern and practice 0f severe 0r pervasive and unlawful harassment by subjecting Pham t0 a hostile work environment because of his national origin. 98. The above-described unwelcome harassment was severe and/or pervasive and created an intimidating, oppressive, hostile and offensive work environment Which interfered with Pham’s emotional and physical well-being and Pham’s ability t0 perform his job. 99. Apple is responsible for Pham’s harassment by his supervisors and other employees at the company based on the theory of respondeat superior. 100. As a result 0f the hostile and offensive work environment perpetrated and maintained by Pham’s supervisors and other employees at the company, Pham has suffered and Will continue t0 suffer pain and suffering, severe mental anguish and emotional and physical distress and injury, expenses, humiliation, anxiety, loss of earnings, past and future, and other employment benefits and job opportunities. 101. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 102. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled to punitive damages in an amount according to proof at the time of trial. SIXTH CAUSE OF ACTION Retaliation in Violation 0fFEHA (Alleged Against All Defendants) 103. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-63 herein by reference. 104. Under FEHA, Defendants are forbidden from retaliating against any person for opposing any practices forbidden by FEHA. 105. In Violation of this provision of FEHA, Defendants acted in a retaliatory manner towards Pham because he asserted his rights under FEHA, including, but not limited t0, his right t0 an environment free of discrimination or retaliation and his right to be accommodated as a result 0f his medical condition. FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 15 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O 106. The termination of Pham occurred in retaliation t0 Pham’s opposition t0 Defendants’ discrimination against him, as well as in retaliation for Pham’s assertion of his rights under FEHA by taking medical leave due to the undue stress caused by Defendants’ workplace demands and harassment. 107. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses of income and work opportunities and have caused his to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 108. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 109. In doing the acts herein alleged, Defendants acted with oppression, fraud 0r malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled t0 punitive damages in an amount according t0 proof at the time 0f trial. SEVENTH CAUSE OF ACTION Failure t0 Prevent Harassment, Discrimination, 0r Retaliation in Violation ofFEHA (Alleged Against All Defendants) 110. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 111. Pursuant t0 Gov’t Code § 12940(k), Defendants have a duty t0 take all reasonable steps necessary to prevent discrimination from occurring in their place of employment. 112. Pham was an employee 0f Apple when the alleged events occurred. 113. Pham was subjected t0 harassment, discrimination, and retaliation in the course 0f his employment with Apple by his supervisors and other employees at the company related to work, despite exceeding his quota 0f app reviews, and of the Apps which he approved, despite these Apps being still available in the app store. 114. Apple failed to take all reasonable steps to prevent the harassment, discrimination, and retaliation that Pham faced from his supervisors and other Apple employees, including the complaints and requests which Pham made t0 HR. 115. Pham was seriously harmed by Defendants’ negligence. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses ofincome and work opportunities and have caused severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 16 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O 116. Defendants’ failure to take all reasonable steps to prevent harassment, discrimination, and retaliation was a substantial factor in causing Pham’s harm. 117. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 118. In doing the acts herein alleged, Defendants acted With oppression, fraud, or malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled to punitive damages in an amount according t0 proof at the time 0f trial. EIGHTH CAUSE OF ACTION Wrongful Termination in Violation 0f Public Policy (Alleged Against All Defendants) 119. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 herein by reference. 120. An employer commits tortious termination in Violation ofpublic policy When there is an applicable public policy protecting an employee With a certain status and the employer terminates the employee because of his protected status. Tameny v. Atlantic Richfield C0. (1980) 27 Cal.3d 167. A duty is implied by law 0n the part 0f the employer to conduct its affairs in compliance With public policy, expressed judicially 0r by statute. 121. The public policy expressed in California Labor Code §§ 98.6, 1101, and 1102, as well as FEHA, protects Pham from discrimination based on political affiliation. Defendants committed wrongful termination in Violation of public policy because it terminated Pham for discriminatory motives as set forth above. 122. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses 0f income and work opportunities and have caused severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 123. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 124. In doing the acts herein alleged, Defendants acted With oppression, fraud, or malice, and in reckless or in willful disregard of Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according t0 proof at the time 0f trial. NINTH CAUSE OF ACTION Unlawful, Unfair, and/or Fraudulent Business Practices in Violation 0f Business and Professions Code §§ 17200, et seq. (Alleged Against All Defendants) 125. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-63 FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 17 _ KOOONONUILUJNr-t NNNNNNNNNh-Hh-r-Hh-r-Ah-r-AH OONONM-PUJNF-‘OKOOONONMLWNF-‘O herein by reference. 126. The California Business and Professions Code (“B&P Code”) § 17200, et seq. (the “Unfair Business Practices Act”) prohibits unfair competition in the form 0f any unlawful, unfair 0r fraudulent business act 0r practice. 127. B&P Code § 17202 provides that “[n]otwithstanding Section 3369 0f the Civil Code, specific or preventative reliefmay be granted to enforce a penalty, forfeiture, 0r penal law in a case of unfair competition.” 128. B&P Code § 17203 provides that the Court may restore t0 any person in interest any money 0r property Which may have been acquired by means of such unfair competition. 129. B&P Code § 17204 allows any “person Who has suffered injury in fact and has lost money or property as a result of such unfair competition” to prosecute a civil action for Violation 0f this code. 130. B&P Code § 17204 further allows any person acting for the interest 0f itself, its members 0r the general public t0 prosecute a civil action for Violation of the Unfair Business Practices Act. 131. Defendants have engaged in acts of unfair competition as defined by the Unfair Business Practices Act, by engaging in the unlawful, unfair and fraudulent practices and acts described above, which were done for the purpose 0f harassing and terminating Pham t0 appease the Chinese government and maintain Apple’s business relationship with China, to the detriment of Pham’s economic, physical, mental, and emotional interest. 132. The acts and practices described above constitute unfair, unlawful and fraudulent business practices, and unfair competition, within the meaning of the Unfair Business Practices Act. 133. The acts and practices described above have allowed and will allow Defendants t0 gain an unfair competitive advantage over law-abiding competitors. 134. As a direct and proximate result of the aforementioned acts and practices, Defendants, received and continues to receive, ill-gotten gains at the expense oprple employees. 135. Pham is entitled to restitution pursuant to B&P Code § 17203 for all employment benefits, salary, and/or severance taken from him during the period 0f his harassment and post- termination. 136. Injunctive relief is necessary and appropriate t0 prevent Defendants from repeating their unlawful, unfair, and fraudulent business acts and practices described herein. FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 18 _ \OOOQQUl-PUJNH NNNNNNNNNh-Ar-th-HHHHHHH OONONMAUJNHOKOOOQONMJ>UJNHO 137. Pursuant t0 the B&P Code § 17203 and/or any other applicable law, Pham seeks an order preventing Defendants from engaging in an unlawful, unfair, and fraudulent conduct, and preventing Defendants from profiting and benefiting from illegal and wrongful acts. 138. Pursuant to the B&P Code § 17202, Pham’s success in this action will enforce important rights affecting the public interest. 139. Pham takes upon himself for the enforcement of these laws and prosecution of these lawful claims. There is a financial burden involved in pursuing this action. Because this action is seeking t0 vindicate an important public right, it would be against the interests ofjustice t0 penalize Pham by forcing him t0 pay attorneys’ fees from any amount recovered from this action. 140. An award of attorneys’ fees is appropriate for this cause of action, inter alia, pursuant t0 CCP § 1021.5 and other applicable laws, because: (a) this action Will confer a significant benefit upon the general public; (b) there is a financial burden involved in pursuing this action; and (c) it would be against the interest ofjustice to force Pham to pay attorney’s fees from any amount recovered in this action. JURY DEMAND 141. Pham hereby demands a trial by jury in this action. PRAYER FOR RELIEF Wherefore, Pham prays for the following relief: 1. Actual damages and/or restitution; 2. General damages; 3. Punitive damages; 4. Statutory damages and penalties; 5. Reasonable attorneys’ fees as permitted by law; 6. Costs 0f the suit incurred herein as permitted by law; and 7. A11 other further relief as this Court deems just and proper. Dated: July 17, 2020 PERETZ & ASSOCIATES By: b. \ Yosef Peretz Shane Howarter Attorneys for PlaintiffTRIEU PHAM FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL _ 19 _ EXHIBIT 1 nw GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 Ruth Israely 22 Battery Street, Suite 200 San Francisco, California 941 11 RE: Notice to Complainant’s Attorney DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. Dear Ruth Israely: Attached is a copy of your complaint of discrimination filed with the Department of Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and Housing Act, Government Code section 12900 et seq. Also attached is a copy of your Notice of Case Closure and Right to Sue. Pursuant to Government Code section 12962, DFEH will not serve these documents on the employer. You must serve the complaint separately, to all named respondents. Please refer to the attached Notice of Case Closure and Right to Sue for information regarding filing a private lawsuit in the State of California. A courtesy "Notice of Filing of Discrimination Complaint" is attached for your convenience. Be advised that the DFEH does not review or edit the complaint form to ensure that it meets procedural or statutory requirements. Sincerely, Department of Fair Employment and Housing §TATE QF QALIFQRNIA nginggg anggmgr §§Ni§§ gng Hggging Aggncv GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. 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 rm‘gh TATE F ALIF RNIA B in n m r rvi n H in A ncv GAVIN NEWSOM GOVERNOR V‘Q KEVIN KI H DIRE T R “v’ DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING S ' ° ° yy 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 957584 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 Trieu Pham 1673 West Campbell Avenue Campbell, California 95008 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. Dear Trieu Pham, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective December 31, 2019 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 Opportunity Commission (EEOC) to file a complaint within 3O days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier. Sincerely, Department of Fair Employment and Housing OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) In the Matter of the Complaint of Trieu Pham DFEH No. 201912-08735631 Complainant, vs. Apple, Inc. Respondents 1. Respondent Apple, Inc. is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 2. Complainant Trieu Pham, resides in the City of Campbell State of California. 3. Complainant alleges that on or about March 18, 2019, respondent took the following adverse actions: Complainant was harassed because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), other, association with a member of a protected class. Complainant was discriminated against because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), other, association with a member of a protected class and as a result of the discrimination was terminated, reprimanded, denied any employment benefit or privilege, denied reasonable accommodation for a disability, other. Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment, requested or used a disability-related accommodation, participated as a witness in a discrimination or harassment complaint and as a result was terminated, reprimanded, denied any employment benefit or privilege, other. -1- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Additional Complaint Details: This is an action brought by Trieu Pham (“Pham”) against Defendant APPLE, INC. (“Apple”) and DOES 1-10 (collectively, “Defendants”) in connection with claims arising from Pham’s employment with Apple, including wrongful termination. Defendants discriminated and retaliated against, harassed, and finally wrongfully terminated Pham for political reasons, his national origin, and medical condition. Pham therefore seeks compensatory damages, general damages, punitive damages, and the cost of suit, including attorneys’ fees, for the harm caused to him by the wrongful conduct of Defendants. Pham is an American man of Vietnamese national origin and ancestry. Pham is a resident of the County of Santa Clara, California. Pham worked for Apple as an iOS App Reviewer in Cupertino, California from October 13, 2014 until he was wrongfully terminated on March 18, 2019. On September 23, 2014, Apple offered Pham the position of iOS App Reviewer (“App Reviewer”). Pham accepted the position and began work for Apple on October 13, 2014. Upon beginning work for Apple, Pham earned a wage of $31 .25 per hour, plus additional benefits and compensation that were provided to him as part of his compensation including medical and dental insurance, vacation and holiday pay, retirement benefits, and the option of participating in Apple’s Employee Stock Purchase Program. The App Reviewers at Apple work with Apple’s Marketing Department. As an App Reviewer, Pham was responsible for determining whether software applications (“Apps”) were reliable, performed as expected, and were free of offensive material. Pham reviewed Apps based on a pre-set of technical, content, and design criteria provided by Apple; and he determined whether to accept, reject, or hold each App. Developers who disagree with an App Reviewer’s decision to reject their App can appeal that decision to Apple’s App Review Board, which has the authority to overrule the decision of the lower-Ievel App Reviewer. If a rejected App is subject to continued appeals, it may end up before Apple’s Executive Review Board, which has final say on all App decisions. The Executive Review Board is also responsible for handling Apps that fall into the “gray area” within Apple’s policies, such as Apps that are publicly sensitive, those that could result in negative publicity for Apple, or those that may impact the company’s business relationships. Apple imposes daily quotas on App Reviewers to accept, reject, or hold between 5O and 100 Apps each day. A daily quota of 80 App reviews was imposed upon Pham, which equates to approximately one App review every 6 minutes over the course of an 8-hour shift. Apple tracks each App Reviewer’s rate of review using software called “Watchtower,” and publishes the names of the top performing App Reviewers weekly based on the volume and quality of their work. To track the performance of the App Review Department as a whole, Apple monitors a statistic called Service- -2- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Level Agreement (“SLA”). SLA represents the proportion of Apps reviewed within 24 to 48 hours. Apple aims for an SLA of about 50%; however, at certain times of the year, like right before the release of a new version of iOS-Apple’s operating system for mobile devices - an App Reviewer’s SLA can fall to as low as 6%. In response to such scenarios, Apple increases the working hours of its App Reviewers to 12- hour shifts and encourages them to conduct more rapid review of Apps. In addition to these quotas, Pham was also pressured by his managers to process Apps even more quickly than usual using a “speedy” process. Pham was encouraged to utilize the “speedy” process on and off over the course of his employment at Apple. Pham was consistently a top performer, typically ranking among the top three App Reviewers each week. Due to the pressures of Apple’s quota system and the additional pressures imposed by his managers, Pham regularly reviewed between 120 and 180 Apps each day in order to maintain his performance ranking, which resulted in him spending approximately 3-4 minutes per each App review. In addition to his status as a top performer, Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved or exceeded expectations. As an example, his 2015 annual review commended his “production above expected target levels/team average” and his status “towards the top” of performers. It also indicated that Pham was “a huge part of the success of app review.” Later reviews also lauded his “feedback for improvement of the App Review tools and processes,” as well as his “willing[ness] to help the team in many different ways when needed” and his “good attitude towards his team.” In 2017, Apple reshuffled its App Review Department, resulting in Pham joining a team led by another manager, Richard Chipman (“Chipman”), on September 7, 2017. That same day, Chipman reprimanded Pham for his performance, claiming that Pham’s pace was too rapid, and told Pham to review Apps more slowly. As a new member of the team, Pham complied with Chipman’s directive. Toward the end of Pham’s shift on September 7, 2017, after Chipman had left the office, Pham was approached at his desk by Terry Barwegen (“Barwegen”), a manager of a different App Review team. Observing Pham working at the pace that Chipman had requested, Barwegen confronted Pham in front of his new team, singling him out and telling him that he “need[ed] to be working like everyone else,” meaning that Pham must work faster than the pace mandated by Chipman. Pham had already easily exceeded his daily quota at that point in time. In the weeks following this incident, Apple’s App Review management team continued to harass Pham about his performance, singling him out during “talks” about issues that affected the entire team. Only Pham was subjected to reprimands for these issues despite their prevalence among other employees on the team. In particular, Chipman and other Apple supervisors did not single out or reprimand Pham’s Caucasian co-workers for the same alleged issues. Around this time, -3- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Chipman also began taking more harassing and intimidating actions against Pham and singling him out among his co-workers. For example, Chipman would stand directly behind Pham’s chair while Pham was working and stare at Pham’s computer screen without speaking. Other team members observed Chipman’s unusual behavior and asked Pham what was going on, as Chipman did not stand and stare at their computer screens. Discouraged by this harassment and concerned that he was the subject of efforts to tarnish his reputation as an Apple employee, Pham filed a formal complaint with Brandon Wied (“Wied”), a Human Resources (“HR”) Business Partner at Apple, on September 19, 2017. Pham told Wied that he felt discriminated against by the management team, which was comprised entirely of older Caucasian males, and offered to provide Wied with his work data and examples of the discriminatory treatment he was facing. However, to Pham’s knowledge, no action was taken by neither Wied nor Apple HR after Pham’s complaint. Instead, following the filing of his discrimination complaint, Apple’s App Review management team only increased its harassing conduct towards Pham. Pham was then continually confronted about the quality of his work and his error rate by a series of managers, including Chipman, Barwegen, Justin Morgan, Dan Martinez, and Steve Rea. Prior to the filing of the formal complaint, Pham had never been confronted about any issues with his work quality or error rate by these managers or anyone else at Apple. Notably, other App Review Department employees’ performance was on par with or below Pham’s performance level, in terms of quality of work or error rate; yet these employees were not subjected to the same treatment. On June 20, 2018, Pham was called into Chipman’s office and chastised by Chipman for approving a game called “Puzzle of Love,” which Chipman said was a “valid rejection” that “should not have [been] approved,” as the game was found to be objectively offensive due to pornographic material in the game. However, the game in fact contained no pornographic material, was not a valid rejection, and remains available in Apple’s App Store to date. Between July 17, 2018 and August 14, 2018, Apple management conducted an audit of a sample of Pham’s App reviews and provided him with a Documented Coaching Plan (“DCP”) that identified reviews by Pham that were purportedly erroneous. Upon reviewing his purported errors at Apple’s request t0 offer a rebuttal, Pham was unable to determine any decisions that were accurately classified as errors on his part, and pointed this out to Apple. Following Pham’s rebuttal, Apple’s Quality team reversed their inaccurate classification of several of Pham’s purported errors. Pham’s DCP identified his most serious error was his approval of a Guo Media App, which was forbidden from Apple’s China App Store. However, the same App was approved by a series of other Apple employees, including three Chinese App Reviewers; yet none of them were disciplined for approval of this App as Pham was. -4- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Notably, all Apps identified by Apple’s management team as being “erroneously approved” by Pham in the DCP remained on Apple’s App Store following the audit, and remain there to date. Upon information and belief, Guo Media was established by Guo Wengui (“Guo”), a Chinese billionaire who goes by the name “Miles Kwok” in the United States. Guo is believed to have fled China to seek asylum in the United States in 2014 and remains wanted by the Chinese government for a series of alleged crimes. Guo publicly disputes the allegations made against him by the Chinese government and claims that he is subjected to political persecution. Guo regularly uses Guo Media to publicize claims of corruption against Chinese government officials and members of the Chinese Communist Party. Pham therefore believes and alleges that the DCP was created by Apple based on an ulterior motive to appease the Chinese government: the DCP was meant to be Apple’s message to China that it in fact did not approve an App created by Guo, a welI-known Chinese political dissident, known for his fierce opposition to the Chinese government. Because Apple maintains a lucrative business relationship with the Chinese Government, Pham became concerned that this audit of his work and the resulting DCP was nothing more than a pretext to justify Apple’s escalation of harassing treatment towards Pham and his eventual termination, all done with the purpose of appeasing the Chinese government. Accordingly, Pham asked that an Apple HR representative participate in a meeting reviewing the audit of his work. However, following the audit, there was never any corrective action process, issuance of the DCP, nor any other follow-up by Apple. On September 20, 2018, Pham requested a meeting with a representative from Apple’s HR Department to discuss the erroneous conclusions in the DCP, as well as the harassment Pham had experienced from the App Review team’s managers. On October 10, 2018, Pham met with Mike Gillaspie (“Gillespie”), an Employee Relations Business Partner in Apple’s HR Department, to discuss these concerns and explained that the audit felt arbitrary on the grounds that none of the errors listed in his DCP required any follow-up correction and that all “erroneous” Apps were still listed on the App Store, as they always should have been. However, even after expressing these concerns with Apple’s HR Department, no corrective action process followed the DCP, nor any other follow-up by Apple. Again, all Apps identified by Apple’s management team as being erroneously approved by Pham remain on Apple’s App Store to date. The impact of the harassment that Pham had been experiencing began to take a toll on Pham’s mental and physical health. Concerned, on October 12, 2018, Pham sought the advice of a medical professional. Upon recommendation from his doctor, Pham requested and took a medical leave of absence from Apple, beginning on -5- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA October 21, 2018. On December 14, 2018, during his medical leave of absence, Pham received a text message from a colleague at Apple indicating that Department Administrator, Courtney Horn (“Horn”), and the management team were planning on terminating Pham’s employment with Apple upon his return from medical leave. On February 15, 2019, Pham returned to Apple from medical leave and immediately returned to providing the high quality and quantity of work that had consistently made him a top performing App Reviewer for Apple. On March 15, 2019, exactly 3O days after his return from medical leave, Pham received a memorandum from Chipman terminating Pham’s employment with Apple as of March 18, 2019. The memorandum stated that Pham’s termination was due to his purported failure to “successfully meet the objectives and expectations” of the position he had successfully held for approximately four and a half years, as well as his purported failure to “meet other Apple standards.” Following his termination, on March 15, 2019, Pham requested a review of the decision to terminate his employment via Apple’s Decision Review Policy because he believes that his termination was discriminatory and motivated by his national origin. He further believes that his termination was retaliatory as it was a direct result of his discrimination and retaliation complaints to HR, as well as his implicit support of a Chinese political dissident. Three months later, on June 18, 2019, following an investigation and five interviews with Victor Cousins (“Cousins”), Apple’s Employee Relations Business Partner responsible for conducting the Decision Review, Cousins determined that Pham’s termination was “an appropriate management step,” and confirmed that “Apple will not be changing the decision to terminate [Pham’s] employment.” Although Pham has avidly attempted to find alternative employment since his termination from Apple, he remains unemployed to date. Notably, another co-worker of Vietnamese origin and ancestry on Pham’s team was terminated approximately one to two months prior to Pham’s termination by Apple. Upon information and belief, the termination of this employee was not based on job performance, but rather on a personal vendetta and discriminatory animus on the part of Chipman and other Apple supervisors in the App Review Department. -5- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA VERIFICATION I, Ruth Israely, am the Attorney in the above-entitled complaint. | have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which | believe to be true. On December 31, 2019, | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. San Francisco, California -7- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 EXHIBIT 2 \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO Yosef Peretz (SBN 209288) yperetz@peretzlaw.com Shane Howarter (SBN 3 1 1970) showarter@peretzlaw.com PERETZ & ASSOCIATES 22 Battery Street, Suite 200 San Francisco, CA 941 11 Telephone: 415.732.3777 Facsimile: 415.732.3791 Attorneys for Plaintiff TRIEU PHAM E-FILED 12/31/2019 3:21 PM Clerk of Court Superior Court of CA, County of Santa Clara 1QCV361 037 Reviewed By: Yuet Lai SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA TRIEU PHAM, Plaintiff, V. APPLE, INC., a California corporation and DOES 1 through 10, inclusive, Defendants. 1. 9° 10. 11. Case No, 19CV361 037 COMPLAINT AND DEMAND FOR JURY TRIAL Discrimination Based on Political Affiliation in Violation of Labor Code §§ 98.6, 1101, and 1102; Retaliation Based 0n Political Affiliation in Violation of Labor Code §§ 98.6, 1101, and 1102; Discrimination and Retaliation Based on Political Affiliation in Violation 0f Violation of the Unruh Civil Rights Act; Discrimination Based on National Origin in Violation 0fFEHA: Disparate Treatment; . Discrimination Based on National Origin in Violation 0fFEHA: Disparate Impact; Discrimination Based 0n Medical Condition in Violation 0fFEHA; Harassment Based 0n of National Origin and Medical Condition in Violation 0f FEHA; Retaliation in Violation 0fFEHA; Failure to Prevent Harassment, Discrimination, or Retaliation in Violation ofFEHA; Wrongful Termination in Violation of Public Policy; and Unlawful, Unfair, and/or Fraudulent Business Practices in Violation 0f Business and Professions Code §§ 17200, et seq. COMPLAINT AND DEMAND FOR IURY TRIAL _ 1 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO PlaintiffTRIEU PHAM (“Pham”) alleges as follows: I. INTRODUCTION 1. This is an action brought by Pham against Defendant APPLE, INC. (“Apple”) and DOES 1-10 (collectively, “‘Defendants”) in connection with claims arising from Pham’s employment With Apple, including wrongfiJI termination. 2. Defendants discriminated and retaliated against, harassed, and finally wrongfully terminated Pham for political reasons, his national origin, and medical condition. 3. Pham therefore seeks compensatory damages, general damages, punitive damages, and the cost of suit, including attorneys” fees, for the harm caused t0 him by the wrongful conduct 0f Defendants. II. PARTIES 4. Pham is an American man ofVietnamese national origin and ancestry. Pham is a resident of the County of Santa Clara, California. Pham worked for Apple as an iOS App Reviewer in Cupertino, California from October 13, 2014 until he was wrongfully terminated on March 18, 2019. 5. Apple is a California corporation headquartered in Cupertino, California, which is authorized t0 and has conducted business in the State of California at all times relevant to this action. Apple was and still is an employer within the meaning of the California Fair Employment and Housing Act (“FEHA”), California Government Code (“Gov’t Code”) § 12926, et seq. 6. Defendants DOES 1 through 10 are sued herein under fictitious names pursuant to Code of Civil Procedure (“CCP”) § 474. Pham is informed, believes, and thereon alleges that each 0f the Defendants designated as a Doe is responsible in some manner for the events and happenings herein, and that his injuries and damages as hereinafter set forth were proximately caused by said Defendants. Pham does not at this time know the true names or capacities 0f said unnamed Defendants, but he prays that the same may be inserted herein When ascertained. These said defendants are in some way liable for the damages sustained by Pham. 7. Upon information and belief, Defendants DOES 1 through 10 acted With and on behalf 0f named Defendants in the alleged Violations. Pham is informed, believes, and thereon alleges that at all times herein mentioned, each ofthe Defendants sued herein was the agent and/or employee of each of the remaining Defendants, and each 0f them, was at all times acting within the purpose and scope 0f such agency and/or employment. COMPLAINT AND DEMAND FOR IURY TRIAL _ 2 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO III. JURISDICTION AND VENUE 8. Jurisdiction and venue are proper because Pham’s claims and causes of action arose in the County of Santa Clara where Pham was employed by Apple, because the alleged conduct took place in Santa Clara County, because records relating to the claims made in this action are located in Santa Clara County, because numerous percipient witnesses and employees of Apple live in Santa Clara County, and because Apple is headquartered in and regularly does business in Santa Clara County. 9. In response t0 Defendants’ unlawful conduct, Pham filed a Complaint of Discrimination against Defendants with the California Department 0f Fair Employment and Housing (“DFEH”) on December 31, 2019. That same day, the DFEH issued a Right-To-Sue Notice under Gov’t Code § 12965(b), permitting Pham to file a civil action under FEHA. A true and correct copy of said Complaint and Notice 0f Right-to-Sue is attached hereto as Exhibit 1. IV. FACTUAL ALLEGATIONS A. Pham’s Success and the Pace 0fWork at Apple 10. On September 23, 2014, Apple offered Pham the position of iOS App Reviewer (“App Reviewer”). Pham accepted the position and began work for Apple 0n October 13, 2014. 11. Upon beginning work for Apple, Pham earned a wage 0f $31.25 per hour, plus additional benefits and compensation that were provided t0 him as part 0f his compensation including medical and dental insurance, vacation and holiday pay, retirement benefits, and the option of participating in Apple’s Employee Stock Purchase Program. 12. The App Reviewers at Apple work with Apple’s Marketing Department. As an App Reviewer, Pham was responsible for determining Whether software applications (“Apps”) were reliable, performed as expected, and were free of offensive material. Pham reviewed Apps based on a pre-set 0f technical, content, and design criteria provided by Apple; and he determined whether to accept, rej ect, or hold each App. 13. Developers Who disagree With an App Reviewer’s decision t0 rej ect their App can appeal that decision t0 Apple’s App Review Board, which has the authority to overrule the decision of the lower-level App Reviewer. If a rejected App is subject t0 continued appeals, it may end up before Apple’s Executive Review Board, which has final say on all App decisions. 14. The Executive Review Board is also responsible for handling Apps that fall into the “gray area” within Apple’s policies, such as Apps that are publicly sensitive, those that could result in negative publicity for Apple, or those that may impact the company’s business COMPLAINT AND DEMAND FOR IURY TRIAL _ 3 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO relationships. 15. Apple imposes daily quotas 0n App Reviewers to accept, reject, or hold between 50 and 100 Apps each day. A daily quota of 80 App reviews was imposed upon Pham, which equates t0 approximately one App review every 6 minutes over the course of an 8-hour shift. Apple tracks each App Reviewer’s rate of review using software called “Watchtower,” and publishes the names 0f the top performing App Reviewers weekly based 0n the volume and quality 0f their work. 16. To track the performance 0f the App Review Department as a Whole, Apple monitors a statistic called Service-Level Agreement (“SLA”). SLA represents the proportion of Apps reviewed within 24 to 48 hours. Apple aims for an SLA of about 50%; however, at certain times of the year, like right before the release of a new version 0fiOS-Apple’s operating system for mobile devices- an App Reviewer’s SLA can fall to as 10W as 6%. 17. In response t0 such scenarios, Apple increases the working hours of its App Reviewers to 12-hour shifts and encourages them t0 conduct more rapid review ofApps. 18. In addition to these quotas, Pham was also pressured by his managers to process Apps even more quickly than usual using a “speedy” process. Pham was encouraged to utilize the “speedy” process on and off over the course 0f his employment at Apple. 19. Pham was consistently a top performer, typically ranking among the top three App Reviewers each week. Due to the pressures of Apple’s quota system and the additional pressures imposed by his managers, Pham regularly reviewed between 120 and 180 Apps each day in order to maintain his performance ranking, which resulted in him spending approximately 3-4 minutes per each App review. 20. In addition to his status as a top performer, Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved or exceeded expectations. As an example, his 2015 annual review commended his “production above expected target levels/team average” and his status “towards the top” of performers. It also indicated that Pham was “a huge part of the success of app review.” Later reviews also lauded his “feedback for improvement 0f the App Review tools and processes,” as well as his “willing[ness] to help the team in many different ways when needed” and his “good attitude towards his team.” /// COMPLAINT AND DEMAND FOR IURY TRIAL _ 4 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO B. Pham’s Complaint and the Resulting Discrimination, Retaliation, and Harassment 21. In 2017, Apple reshuffled its App Review Department, resulting in Pham joining a team led by another manager, Richard Chipman (“Chipman”), 0n September 7, 2017. 22. That same day, Chipman reprimanded Pham for his performance, claiming that Pham’s pace was too rapid, and told Pham to review Apps more slowly. As a new member 0f the team, Pham complied with Chipman’s directive. 23. Toward the end 0f Pham’s shift 0n September 7, 2017, after Chipman had left the office, Pham was approached at his desk by Terry Barwegen (“Barwegen”), a manager 0f a different App Review team. Observing Pham working at the pace that Chipman had requested, Barwegen confronted Pham in front 0f his new team, singling him out and telling him that he “need[ed] to be working like everyone else,” meaning that Pham must work faster than the pace mandated by Chipman. Pham had already easily exceeded his daily quota at that point in time. 24. In the weeks following this incident, Apple’s App Review management team continued to harass Pham about his performance, singling him out during “talks” about issues that affected the entire team. Only Pham was subjected t0 reprimands for these issues despite their prevalence among other employees on the team. In particular, Chipman and other Apple supervisors did not single out or reprimand Pham’s Caucasian co-workers for the same alleged issues. 25. Around this time, Chipman also began taking more harassing and intimidating actions against Pham and singling him out among his co-workers. For example, Chipman would stand directly behind Pham’s chair while Pham was working and stare at Pham’s computer screen Without speaking. Other team members observed Chipman’s unusual behavior and asked Pham What was going on, as Chipman did not stand and stare at their computer screens. 26. Discouraged by this harassment and concerned that he was the subject 0f efforts t0 tarnish his reputation as an Apple employee, Pham filed a formal complaint with Brandon Wied (“Wied”), a Human Resources (“HR”) Business Partner at Apple, 0n September 19, 2017. Pham told Wied that he felt discriminated against by the management team, Which was comprised entirely of older Caucasian males, and offered to provide Wied With his work data and examples 0f the discriminatory treatment he was facing. However, t0 Pham’s knowledge, no action was taken by neither Wied nor Apple HR after Pham’s complaint. COMPLAINT AND DEMAND FOR IURY TRIAL _ 5 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO 27. Instead, following the filing ofhis discrimination complaint, Apple’s App Review management team only increased its harassing conduct towards Pham. Pham was then continually confronted about the quality 0f his work and his error rate by a series of managers, including Chipman, Barwegen, Justin Morgan, Dan Martinez, and Steve Rea. Prior t0 the filing 0f the formal complaint, Pham had never been confronted about any issues with his work quality or error rate by these managers 0r anyone else at Apple. Notably, other App Review Department employees’ performance was on par with 0r below Pham’s performance level, in terms of quality ofwork 0r error rate; yet these employees were not subjected t0 the same treatment. 28. On June 20, 2018, Pham was called into Chipman’s office and chastised by Chipman for approving a game called “Puzzle 0f Love,” Which Chipman said was a “valid rejection” that “should not have [been] approved,” as the game was found to be objectively offensive due t0 pornographic material in the game. However, the game in fact contained no pornographic material, was not a valid rejection, and remains available in Apple’s App Store to date. 29. Between July 17, 2018 and August 14, 2018, Apple management conducted an audit 0f a sample of Pham’s App reviews and provided him With a Documented Coaching Plan (“DCP”) that identified reviews by Pham that were purportedly erroneous. 30. Upon reviewing his purported errors at Apple’s request t0 offer a rebuttal, Pham was unable t0 determine any decisions that were accurately classified as errors 0n his part, and pointed this out to Apple. Following Pham’s rebuttal, Apple’s Quality team reversed their inaccurate classification of several 0f Pham’s purported errors. 31. Pham’s DCP identified his most serious error was his approval of a Guo Media App, which was forbidden from Apple’s China App Store. However, the same App was approved by a series 0f other Apple employees, including three Chinese App Reviewers; yet none of them were disciplined for approval of this App as Pham was. 32. Notably, all Apps identified by Apple’s management team as being “erroneously approved” by Pham in the DCP remained on Apple’s App Store following the audit, and remain there to date. 33. Upon information and belief, Guo Media was established by Guo Wengui (“Guo”), a Chinese billionaire Who goes by the name “Miles Kwok” in the United States. Guo is believed to have fled China to seek asylum in the United States in 2014 and remains wanted by the Chinese government for a series 0f alleged crimes. Guo publicly disputes the allegations COMPLAINT AND DEMAND FOR IURY TRIAL _ 6 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO made against him by the Chinese government and claims that he is subjected t0 political persecution. Guo regularly uses Guo Media t0 publicize claims 0f corruption against Chinese government officials and members 0f the Chinese Communist Party. 34. Pham therefore believes and alleges that the DCP was created by Apple based on an ulterior motive to appease the Chinese government: the DCP was meant to be Apple’s message to China that it in fact did not approve an App created by Guo, a well-known Chinese political dissident, known for his fierce opposition t0 the Chinese government. 35. Because Apple maintains a lucrative business relationship With the Chinese Government, Pham became concerned that this audit of his work and the resulting DCP was nothing more than a pretext to justify Apple’s escalation of harassing treatment towards Pham and his eventual termination, all done with the purpose of appeasing the Chinese government. Accordingly, Pham asked that an Apple HR representative participate in a meeting reviewing the audit 0f his work. 36. However, following the audit, there was never any corrective action process, issuance 0f the DCP, nor any other follow-up by Apple. 37. On September 20, 2018, Pham requested a meeting with a representative from Apple’s HR Department to discuss the erroneous conclusions in the DCP, as well as the harassment Pham had experienced from the App Review team’s managers. On October 10, 2018, Pham met with Mike Gillaspie (“Gillaspie”), an Employee Relations Business Partner in Apple’s HR Department, t0 discuss these concerns and explained that the audit felt arbitrary on the grounds that none 0f the errors listed in his DCP required any follow-up correction and that all “erroneous” Apps were still listed on the App Store, as they always should have been. 38. However, even after expressing these concerns with Apple’s HR Department, no corrective action process followed the DCP, nor any other follow-up by Apple. Again, all Apps identified by Apple’s management team as being erroneously approved by Pham remain on Apple’s App Store t0 date. 39. The impact of the harassment that Pham had been experiencing began t0 take a toll on Pham’s mental and physical health. Concerned, 0n October 12, 2018, Pham sought the advice 0f a medical professional. Upon recommendation from his doctor, Pham requested and took a medical leave of absence from Apple, beginning on October 21, 2018. 40. On December 14, 2018, during his medical leave 0f absence, Pham received a text message from a colleague at Apple indicating that Department Administrator, Courtney Horn COMPLAINT AND DEMAND FOR IURY TRIAL _ 7 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO (“Horn”), and the management team were planning on terminating Pham’s employment with Apple upon his return from medical leave. 41. On February 15, 2019, Pham returned to Apple from medical leave and immediately returned to providing the high quality and quantity 0f work that had consistently made him a top performing App Reviewer for Apple. 42. On March 15, 2019, exactly 30 days after his return from medical leave, Pham received a memorandum from Chipman terminating Pham’s employment with Apple as ofMarch 18, 2019. The memorandum stated that Pham’s termination was due to his purported failure t0 “successfully meet the objectives and expectations” of the position he had successfully held for approximately four and a half years, as well as his purported failure t0 “meet other Apple standards.” 43. Following his termination, on March 15, 2019, Pham requested a review 0f the decision to terminate his employment Via Apple’s Decision Review Policy because he believes that his termination was discriminatory and motivated by his national origin. He further believes that his termination was retaliatory as it was a direct result of his discrimination and retaliation complaints to HR, as well as his implicit support 0f a Chinese political dissident. 44. Three months later, on June 18, 2019, following an investigation and five interviews With Victor Cousins (“Cousins”), Apple’s Employee Relations Business Partner responsible for conducting the Decision Review, Cousins determined that Pham’s termination was “an appropriate management step,” and confirmed that “Apple will not be changing the decision to terminate [Pham’s] employment.” 45. Although Pham has avidly attempted t0 find alternative employment since his termination from Apple, he remains unemployed to date. 46. Notably, another co-W0rker 0f Vietnamese origin and ancestry on Pham’s team was terminated approximately one t0 two months prior t0 Pham’s termination by Apple. Upon information and belief, the termination of this employee was not based 0n job performance, but rather on a personal vendetta and discriminatory animus on the part 0f Chipman and other Apple supervisors in the App Review Department. /// /// /// /// COMPLAINT AND DEMAND FOR IURY TRIAL _ 8 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO FIRST CAUSE OF ACTION Discrimination Based 0n Political Affiliation in Violation of Labor Code §§ 98.6, 1101, and 1102 (Alleged against All Defendants) 47. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 48. California’s Labor Code offers protections to employees against the unlawful practices 0f employers by discharging, discriminating, retaliating, 0r taking any adverse action against an employee or applicant for employment due to political affiliation, or by controlling or directing the political activities or affiliations of employees. Labor Code §§ 98.6, 1101, 1102. 49. As set forth above, Pham was harassed, punished, discriminated against, and eventually terminated based upon his approval 0f the Guo Media App, Which publicizes claims 0f corruption against Chinese government officials and members of the Chinese Communist Party, and is backed by a well-known Chinese political dissident. 50. Based on the facts above, Pham reasonably believes that the unlawful discrimination he faced was based upon Apple’s desire t0 appease the Chinese government, in order to maintain Apple’s lucrative business in China. 51. By terminating Pham and taking other adverse employment actions against him based upon his approval of the Guo Media App, Defendants violated California Labor Code §§ 98.6, 1101, and 1102. 52. Defendants’ actions, as described above, directly and proximately have caused, and continue to cause, Pham t0 suffer losses 0f income and work opportunities and have caused him to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. 53. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 54. In doing the acts herein alleged, Defendants acted With oppression, fraud 0r malice, and in reckless or in willful disregard of Pham’s rights, and Pham is therefore entitled to punitive damages in an amount according to proof at the time of trial. /// /// /// /// /// COMPLAINT AND DEMAND FOR IURY TRIAL _ 9 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO SECOND CAUSE OF ACTION Retaliation Based 0n Political Affiliation in Violation 0f Labor Code §§ 98.6, 1101, and 1102 (Alleged Against All Defendants) 55. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 56. California’s Labor Code makes it unlawful for an employer to discharge, threaten t0 discharge, demote, suspend, retaliate against, 0r take any adverse action against an employee due to political affiliation, 0r by controlling or directing the political activities 0r affiliations of employees. Labor Code §§ 98.6, 1101, 1102. 57. As set forth above, Pham was harassed and eventually terminated based upon his approval 0f the Guo Media App, Which publicizes claims 0f corruption against Chinese government officials and members of the Chinese Communist Party, and is backed by a well- known Chinese political dissident. 58. Based on the facts above, Pham reasonably believes that he was terminated in retaliation because of his approval 0f the Guo Media App and his related complaints t0 HR about harassment and discrimination, including his formal complaint with Wied, an HR Business Partner at Apple, 0n September 19, 2017, and his meeting With Gillaspie, an Employee Relations Business Partner in Apple’s HR Department, 0n October 10, 2018. 59. By terminating Pham and taking other adverse employment actions against him based upon his approval of the Guo Media App, Defendants violated California Labor Code §§ 98.6, 1101, and 1102. 60. Defendants’ actions, as described above, directly and proximately have caused, and continue to cause, Pham t0 suffer losses 0f income and work opportunities and have caused him to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. 61. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 62. In doing the acts herein alleged, Defendants acted With oppression, fraud 0r malice, and in reckless or in willful disregard 0f Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according to proof at the time of trial. /// /// /// COMPLAINT AND DEMAND FOR IURY TRIAL _ 10 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO THIRD CAUSE OF ACTION Discrimination and Retaliation Based 0n Political Affiliation in Violation 0f the Unruh Civil Rights Act (Alleged Against All Defendants) 63. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 64. California’s Unruh Civil Rights Act makes it unlawful for a business to discriminate based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. Civil Code § 5 1. The California Supreme Court has interpreted this statute Widely to protect additional classes other than those listed in the statute. See Stoumen v. Reilly (1 95 1) 37 Cal. 2d 713 [superseded by statute, see Harris v. Capital Growth Investors XIV(1991) 52 Cal. 3d 1142]. 65. Defendants discriminated against, harassed, and ultimately terminated Pham based on his political affiliation because ofhis approval 0fthe Guo Media App, Which publicizes claims 0f corruption against Chinese government officials and members of the Chinese Communist Party, and is backed by a well-known Chinese political dissident. 66. Defendants’ perception ofPham’s political affiliation was a substantial motivating reason for Defendants’ conduct in discriminating against and terminating Pham, as Pham has reason to believe his termination was based upon Apple’s desire to appease the Chinese government, in order t0 maintain Apple’s lucrative business in China. 67. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses 0f income and work opportunities and have caused severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. 68. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 69. In doing the acts herein alleged, Defendants acted With oppression, fraud 0r malice, and in reckless or in willful disregard 0f Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according to proof at the time of trial. FORTH CAUSE OF ACTION Discrimination Based 0n National Origin in Violation of FEHA: Disparate Treatment (Alleged Against All Defendants) 70. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. COMPLAINT AND DEMAND FOR IURY TRIAL _ 1 1 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO 71. FEHA offers protections to employees against the unlawful practices ofemployers by broadly prohibiting employment discrimination in discharges, 0r terms and conditions 0f employment, and particularly based on age 0r national origin. Gov’t Code § 12900, et seq. 72. As set forth above, Pham was treated differently, and discriminated against, based upon his national origin, which is a protected class under FEHA. 73. By terminating Pham and taking other adverse employment actions against him based upon his national origin, Defendants violated FEHA. 74. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses of income and work opportunities and have caused him t0 suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 75. Accordingly, Pham is entitled to damages according to proof at trial. 76. In doing the acts herein alleged, Defendants acted with oppression, fraud or malice, and in reckless 0r in willful disregard 0f Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according to proof at the time of trial. FIFTH CAUSE OF ACTION Discrimination Based on National Origin in Violation 0f FEHA: Disparate Impact (Alleged Against All Defendants) 77. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 78. FEHA offers protections to employees against the unlawful practices ofemployers by broadly prohibiting employment discrimination in discharges, or terms and conditions of employment, and particularly based on national origin. Gov’t Code § 12900, et seq. 79. Under Gov’t Code § 12941, claims of national origin discrimination may be proven based on a disparate impact theory. 80. Defendants’ implementation of facially neutral policies and practices in the termination of employees had the result of disparately impacting Pham because of his national origin, and as such he was unlawfully discriminated against because of his national origin. 81. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses of income and work opportunities and have caused him to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation COMPLAINT AND DEMAND FOR IURY TRIAL _ 12 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO 82. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 83. In doing the acts herein alleged, Defendants acted With oppression, fraud 0r malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled to punitive damages in an amount according to proof at the time of trial. SIXTH CAUSE OF ACTION Discrimination Based on Medical Condition in Violation 0fFEHA (Alleged Against All Defendants) 84. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 85. FEHA offers protections t0 employees against the unlawful practices ofemployers by broadly prohibiting employment discrimination in discharges, or terms and conditions of employment based 0n medical condition and/or disability. Gov’t Code § 12900, et seq. 86. As set forth above, Pham was treated differently, and discriminated against, based upon his actual and perceived medical condition or disabilities, including but not limited t0 the extreme stress and anxiety brought upon by working under the aforementioned conditions at Apple, Which are protected classes under FEHA. 87. Further, by terminating Pham and taking other adverse employment actions against him based upon his actual and perceived medical condition 0r disabilities, Defendants violated FEHA. 88. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham to suffer losses of income and work opportunities and have caused him to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 89. Accordingly, Plaintiff is entitled t0 damages according t0 proof at trial. 90. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and in reckless or in willful disregard of Plaintiff’s rights and Plaintiff is therefore entitled t0 punitive damages in an amount according to proof at the time of trial. SEVENTH CAUSE OF ACTION Harassment Based 0n National Origin in Violation 0fFEHA (Alleged Against All Defendants) 91. Pham repeats and re-alleges all 0f the previous allegations in paragraphs 1-46 herein by reference. 92. Pham was subjected t0 harassment, discrimination, and retaliation in the course of COMPLAINT AND DEMAND FOR IURY TRIAL _ 13 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO his employment with Apple by his supervisors and other employees at the company related to work, despite exceeding his quota 0f App reviews, and 0f the Apps Which he approved, despite these Apps being still available in the Apple App stores both in the United States and/or in China. 93. Pham’s supervisors and other employees at the company created and allowed a hostile work environment and harassed Pham on the basis of his national origin in Violation of FEHA. 94. Pham’s supervisors and other employees at the company engaged in an ongoing pattern and practice of severe 0r pervasive and unlawful harassment by subjecting Pham to a hostile work environment because of his national origin. 95. The above-described unwelcome harassment was severe and/or pervasive and created an intimidating, oppressive, hostile and offensive work environment which interfered with Pham’s emotional and physical well-being and Pham’s ability t0 perform his job. 96. Apple is responsible for Pham’s harassment by his supervisors and other employees at the company based on the theory of respondeat superior. 97. As a result of the hostile and offensive work environment perpetrated and maintained by Pham’s supervisors and other employees at the company, Pham has suffered and will continue to suffer pain and suffering, severe mental anguish and emotional and physical distress and injury, expenses, humiliation, anxiety, loss 0f earnings, past and future, and other employment benefits and job opportunities. 98. Accordingly, Pham is entitled to damages according to proof at trial. 99. In doing the acts herein alleged, Defendants acted with oppression, fraud, malice, and in reckless 0r in willful disregard 0f Pham’s rights and Pham is therefore entitled t0 punitive damages in an amount according to proof at the time 0f trial. EIGHTH CAUSE OF ACTION Retaliation in Violation 0fFEHA (Alleged Against All Defendants) 100. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 101. Under FEHA, Defendants are forbidden from retaliating against any person for opposing any practices forbidden by FEHA. 102. In Violation of this provision of FEHA, Defendants acted in a retaliatory manner towards Pham because he asserted his rights under FEHA, including, but not limited to, his right COMPLAINT AND DEMAND FOR IURY TRIAL _ 14 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO to an environment free of discrimination 0r retaliation and his right to be accommodated as a result 0f his medical condition. 103. The termination of Pham occurred in retaliation t0 Pham’s opposition t0 Defendants’ discrimination against him, as well as in retaliation for Pham’s assertion 0f his rights under FEHA by taking medical leave due to the undue stress caused by Defendants’ workplace demands and harassment. 104. Defendants’ actions, as described above, directly and proximately have caused, and continue to cause, Pham t0 suffer losses 0f income and work opportunities and have caused his to suffer severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. 105. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 106. In doing the acts herein alleged, Defendants acted With oppression, fraud or malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled to punitive damages in an amount according to proof at the time of trial. NINTH CAUSE OF ACTION Failure t0 Prevent Harassment, Discrimination, or Retaliation in Violation ofFEHA (Alleged Against All Defendants) 107. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 108. Pursuant t0 Gov’t Code § 12940(k), Defendants have a duty to take all reasonable steps necessary to prevent discrimination from occurring in their place of employment. 109. Pham was an employee ofApple when the alleged events occurred. 110. Pham was subjected t0 harassment, discrimination, and retaliation in the course of his employment with Apple by his supervisors and other employees at the company related to work, despite exceeding his quota 0f app reviews, and of the Apps Which he approved, despite these Apps being still available in the app store. 111. Apple failed to take all reasonable steps t0 prevent the harassment, discrimination, and retaliation that Pham faced from his supervisors and other Apple employees, including the complaints and requests Which Pham made to HR. 112. Pham was seriously harmed by Defendants’ negligence. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses ofincome and work opportunities and have caused severe emotional distress, anguish, pain COMPLAINT AND DEMAND FOR IURY TRIAL _ 15 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO and suffering, humiliation, indignity, personal embarrassment, and damage to his professional reputation. 113. Defendants’ failure t0 take all reasonable steps to prevent harassment, discrimination, and retaliation was a substantial factor in causing Pham’s harm. 114. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 115. In doing the acts herein alleged, Defendants acted With oppression, fraud, 0r malice, and in reckless or in willful disregard of Pham’s rights and Pham is therefore entitled to punitive damages in an amount according to proof at the time of trial. TENTH CAUSE OF ACTION Wrongful Termination in Violation 0f Public Policy (Alleged Against All Defendants) 116. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 1 17. An employer commits tortious termination in Violation ofpublic policy When there is an applicable public policy protecting an employee with a certain status and the employer terminates the employee because ofhis protected status. Tameny v. Atlantic Richfield C0. (1980) 27 Cal.3d 167. A duty is implied by law 0n the part of the employer to conduct its affairs in compliance with public policy, expressed judicially or by statute. 118. The public policy expressed in California Labor Code §§ 98.6, 1101, and 1102, as well as FEHA, protects Pham from discrimination based on political affiliation. Defendants committed wrongful termination in Violation 0f public policy because it terminated Pham for discriminatory motives as set forth above. 119. Defendants’ actions, as described above, directly and proximately have caused, and continue t0 cause, Pham t0 suffer losses of income and work opportunities and have caused severe emotional distress, anguish, pain and suffering, humiliation, indignity, personal embarrassment, and damage t0 his professional reputation. 120. Accordingly, Pham is entitled t0 damages according t0 proof at trial. 121. In doing the acts herein alleged, Defendants acted With oppression, fraud, or malice, and in reckless or in willful disregard 0f Pham’s rights, and Pham is therefore entitled t0 punitive damages in an amount according to proof at the time of trial. /// /// COMPLAINT AND DEMAND FOR IURY TRIAL _ 16 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO ELEVENTH CAUSE OF ACTION Unlawful, Unfair, and/or Fraudulent Business Practices in Violation 0f Business and Professions Code §§ 17200, et seq. (Alleged Against All Defendants) 122. Pham repeats and re-alleges all of the previous allegations in paragraphs 1-46 herein by reference. 123. The California Business and Professions Code (“B&P Code”) § 17200, et seq. (the “Unfair Business Practices Act”) prohibits unfair competition in the form of any unlawful, unfair 0r fraudulent business act 0r practice. 124. B&P Code § 17202 provides that “[n]otwithstanding Section 3369 of the Civil Code, specific or preventative reliefmay be granted to enforce a penalty, forfeiture, 0r penal law in a case 0f unfair competition.” 125. B&P Code § 17203 provides that the Court may restore t0 any person in interest any money 0r property Which may have been acquired by means of such unfair competition. 126. B&P Code § 17204 allows any “person who has suffered injury in fact and has lost money 0r property as a result of such unfair competition” to prosecute a civil action for Violation 0f this code. 127. B&P Code § 17204 further allows any person acting for the interest of itself, its members or the general public to prosecute a civil action for Violation of the Unfair Business Practices Act. 128. Defendants have engaged in acts of unfair competition as defined by the Unfair Business Practices Act, by engaging in the unlawful, unfair and fraudulent practices and acts described above, which were done for the purpose 0f harassing and terminating Pham t0 appease the Chinese government and maintain Apple’s business relationship with China, t0 the detriment of Pham’s economic, physical, mental, and emotional interest. 129. The acts and practices described above constitute unfair, unlawful and fraudulent business practices, and unfair competition, within the meaning of the Unfair Business Practices Act. 130. The acts and practices described above have allowed and will allow Defendants t0 gain an unfair competitive advantage over law-abiding competitors. 13 1. As a direct and proximate result of the aforementioned acts and practices, Defendants, received and continues t0 receive, ill-gotten gains at the expense oprple employees. COMPLAINT AND DEMAND FOR IURY TRIAL _ 17 _ \DOOQONUl-bUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQONUl-hUJNi-‘OKDOOQONUl-bWNHO 132. Pham is entitled to restitution pursuant t0 B&P Code § 17203 for all employment benefits, salary, and/or severance taken from him during the period of his harassment and post- termination. 133. Injunctive relief is necessary and appropriate to prevent Defendants from repeating their unlawful, unfair, and fraudulent business acts and practices described herein. 134. Pursuant t0 the B&P Code § 17203 and/or any other applicable law, Pham seeks an order preventing Defendants from engaging in an unlawful, unfair, and fraudulent conduct, and preventing Defendants from profiting and benefiting from illegal and wrongful acts. 135. Pursuant to the B&P Code § 17202, Pham’s success in this action will enforce important rights affecting the public interest. 136. Pham takes upon himself for the enforcement of these laws and prosecution of these lawful claims. There is a financial burden involved in pursuing this action. Because this action is seeking to vindicate an important public right, it would be against the interests ofjustice t0 penalize Pham by forcing him t0 pay attorneys’ fees from any amount recovered from this action. 137. An award 0f attorneys’ fees is appropriate for this cause 0f action, inter alia, pursuant to CCP § 1021.5 and other applicable laws, because: (a) this action will confer a significant benefit upon the general public; (b) there is a financial burden involved in pursuing this action; and (c) it would be against the interest ofjustice to force Pham to pay attorney’s fees from any amount recovered in this action. JURY DEMAND 138. Pham hereby demands a trial by jury in this action. PRAYER FOR RELIEF Wherefore, Pham prays for the following relief: 1. Actual damages and/or restitution; General damages; Punitive damages; Statutory damages and penalties; Reasonable attorneys’ fees as permitted by law; Costs 0f the suit incurred herein as permitted by law; and 8.09999!“ A11 other further relief as this Court deems just and proper. COMPLAINT AND DEMAND FOR IURY TRIAL _ 18 _ \OOOQONUI-PUJNH NNNNNNNNNr-‘r-Kr-‘r-Kr-tr-tr-tr-tr-tr-t OOQONUIAUJNHOKDOOQONUI¥WNHO Dated: December 3 1 , 20 1 9 PERETZ & ASSOCIATES By: Attorneys for Plaintiff TRIEU PHAM Yosef Peretz Shane Howarter COMPLAINT AND DEMAND FOR IURY TRIAL _ 19 _ EXHIBIT 1 nw GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 Ruth Israely 22 Battery Street, Suite 200 San Francisco, California 941 11 RE: Notice to Complainant’s Attorney DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. Dear Ruth Israely: Attached is a copy of your complaint of discrimination filed with the Department of Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and Housing Act, Government Code section 12900 et seq. Also attached is a copy of your Notice of Case Closure and Right to Sue. Pursuant to Government Code section 12962, DFEH will not serve these documents on the employer. You must serve the complaint separately, to all named respondents. Please refer to the attached Notice of Case Closure and Right to Sue for information regarding filing a private lawsuit in the State of California. A courtesy "Notice of Filing of Discrimination Complaint" is attached for your convenience. Be advised that the DFEH does not review or edit the complaint form to ensure that it meets procedural or statutory requirements. Sincerely, Department of Fair Employment and Housing §TATE QF QALIFQRNIA nginggg anggmgr §§Ni§§ gng Hggging Aggncv GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. 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 rm‘gh TATE F ALIF RNIA B in n m r rvi n H in A ncv GAVIN NEWSOM GOVERNOR V‘Q KEVIN KI H DIRE T R “v’ DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING S ' ° ° yy 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 957584 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov December 31, 2019 Trieu Pham 1673 West Campbell Avenue Campbell, California 95008 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 201912-08735631 Right to Sue: Pham /Apple, Inc. Dear Trieu Pham, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective December 31, 2019 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 Opportunity Commission (EEOC) to file a complaint within 3O days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier. Sincerely, Department of Fair Employment and Housing OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) In the Matter of the Complaint of Trieu Pham DFEH No. 201912-08735631 Complainant, vs. Apple, Inc. Respondents 1. Respondent Apple, Inc. is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 2. Complainant Trieu Pham, resides in the City of Campbell State of California. 3. Complainant alleges that on or about March 18, 2019, respondent took the following adverse actions: Complainant was harassed because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), other, association with a member of a protected class. Complainant was discriminated against because of complainant's race, ancestry, national origin (includes language restrictions), color, disability (physical or mental), other, association with a member of a protected class and as a result of the discrimination was terminated, reprimanded, denied any employment benefit or privilege, denied reasonable accommodation for a disability, other. Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment, requested or used a disability-related accommodation, participated as a witness in a discrimination or harassment complaint and as a result was terminated, reprimanded, denied any employment benefit or privilege, other. -1- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Additional Complaint Details: This is an action brought by Trieu Pham (“Pham”) against Defendant APPLE, INC. (“Apple”) and DOES 1-10 (collectively, “Defendants”) in connection with claims arising from Pham’s employment with Apple, including wrongful termination. Defendants discriminated and retaliated against, harassed, and finally wrongfully terminated Pham for political reasons, his national origin, and medical condition. Pham therefore seeks compensatory damages, general damages, punitive damages, and the cost of suit, including attorneys’ fees, for the harm caused to him by the wrongful conduct of Defendants. Pham is an American man of Vietnamese national origin and ancestry. Pham is a resident of the County of Santa Clara, California. Pham worked for Apple as an iOS App Reviewer in Cupertino, California from October 13, 2014 until he was wrongfully terminated on March 18, 2019. On September 23, 2014, Apple offered Pham the position of iOS App Reviewer (“App Reviewer”). Pham accepted the position and began work for Apple on October 13, 2014. Upon beginning work for Apple, Pham earned a wage of $31 .25 per hour, plus additional benefits and compensation that were provided to him as part of his compensation including medical and dental insurance, vacation and holiday pay, retirement benefits, and the option of participating in Apple’s Employee Stock Purchase Program. The App Reviewers at Apple work with Apple’s Marketing Department. As an App Reviewer, Pham was responsible for determining whether software applications (“Apps”) were reliable, performed as expected, and were free of offensive material. Pham reviewed Apps based on a pre-set of technical, content, and design criteria provided by Apple; and he determined whether to accept, reject, or hold each App. Developers who disagree with an App Reviewer’s decision to reject their App can appeal that decision to Apple’s App Review Board, which has the authority to overrule the decision of the lower-Ievel App Reviewer. If a rejected App is subject to continued appeals, it may end up before Apple’s Executive Review Board, which has final say on all App decisions. The Executive Review Board is also responsible for handling Apps that fall into the “gray area” within Apple’s policies, such as Apps that are publicly sensitive, those that could result in negative publicity for Apple, or those that may impact the company’s business relationships. Apple imposes daily quotas on App Reviewers to accept, reject, or hold between 5O and 100 Apps each day. A daily quota of 80 App reviews was imposed upon Pham, which equates to approximately one App review every 6 minutes over the course of an 8-hour shift. Apple tracks each App Reviewer’s rate of review using software called “Watchtower,” and publishes the names of the top performing App Reviewers weekly based on the volume and quality of their work. To track the performance of the App Review Department as a whole, Apple monitors a statistic called Service- -2- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Level Agreement (“SLA”). SLA represents the proportion of Apps reviewed within 24 to 48 hours. Apple aims for an SLA of about 50%; however, at certain times of the year, like right before the release of a new version of iOS-Apple’s operating system for mobile devices - an App Reviewer’s SLA can fall to as low as 6%. In response to such scenarios, Apple increases the working hours of its App Reviewers to 12- hour shifts and encourages them to conduct more rapid review of Apps. In addition to these quotas, Pham was also pressured by his managers to process Apps even more quickly than usual using a “speedy” process. Pham was encouraged to utilize the “speedy” process on and off over the course of his employment at Apple. Pham was consistently a top performer, typically ranking among the top three App Reviewers each week. Due to the pressures of Apple’s quota system and the additional pressures imposed by his managers, Pham regularly reviewed between 120 and 180 Apps each day in order to maintain his performance ranking, which resulted in him spending approximately 3-4 minutes per each App review. In addition to his status as a top performer, Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved or exceeded expectations. As an example, his 2015 annual review commended his “production above expected target levels/team average” and his status “towards the top” of performers. It also indicated that Pham was “a huge part of the success of app review.” Later reviews also lauded his “feedback for improvement of the App Review tools and processes,” as well as his “willing[ness] to help the team in many different ways when needed” and his “good attitude towards his team.” In 2017, Apple reshuffled its App Review Department, resulting in Pham joining a team led by another manager, Richard Chipman (“Chipman”), on September 7, 2017. That same day, Chipman reprimanded Pham for his performance, claiming that Pham’s pace was too rapid, and told Pham to review Apps more slowly. As a new member of the team, Pham complied with Chipman’s directive. Toward the end of Pham’s shift on September 7, 2017, after Chipman had left the office, Pham was approached at his desk by Terry Barwegen (“Barwegen”), a manager of a different App Review team. Observing Pham working at the pace that Chipman had requested, Barwegen confronted Pham in front of his new team, singling him out and telling him that he “need[ed] to be working like everyone else,” meaning that Pham must work faster than the pace mandated by Chipman. Pham had already easily exceeded his daily quota at that point in time. In the weeks following this incident, Apple’s App Review management team continued to harass Pham about his performance, singling him out during “talks” about issues that affected the entire team. Only Pham was subjected to reprimands for these issues despite their prevalence among other employees on the team. In particular, Chipman and other Apple supervisors did not single out or reprimand Pham’s Caucasian co-workers for the same alleged issues. Around this time, -3- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Chipman also began taking more harassing and intimidating actions against Pham and singling him out among his co-workers. For example, Chipman would stand directly behind Pham’s chair while Pham was working and stare at Pham’s computer screen without speaking. Other team members observed Chipman’s unusual behavior and asked Pham what was going on, as Chipman did not stand and stare at their computer screens. Discouraged by this harassment and concerned that he was the subject of efforts to tarnish his reputation as an Apple employee, Pham filed a formal complaint with Brandon Wied (“Wied”), a Human Resources (“HR”) Business Partner at Apple, on September 19, 2017. Pham told Wied that he felt discriminated against by the management team, which was comprised entirely of older Caucasian males, and offered to provide Wied with his work data and examples of the discriminatory treatment he was facing. However, to Pham’s knowledge, no action was taken by neither Wied nor Apple HR after Pham’s complaint. Instead, following the filing of his discrimination complaint, Apple’s App Review management team only increased its harassing conduct towards Pham. Pham was then continually confronted about the quality of his work and his error rate by a series of managers, including Chipman, Barwegen, Justin Morgan, Dan Martinez, and Steve Rea. Prior to the filing of the formal complaint, Pham had never been confronted about any issues with his work quality or error rate by these managers or anyone else at Apple. Notably, other App Review Department employees’ performance was on par with or below Pham’s performance level, in terms of quality of work or error rate; yet these employees were not subjected to the same treatment. On June 20, 2018, Pham was called into Chipman’s office and chastised by Chipman for approving a game called “Puzzle of Love,” which Chipman said was a “valid rejection” that “should not have [been] approved,” as the game was found to be objectively offensive due to pornographic material in the game. However, the game in fact contained no pornographic material, was not a valid rejection, and remains available in Apple’s App Store to date. Between July 17, 2018 and August 14, 2018, Apple management conducted an audit of a sample of Pham’s App reviews and provided him with a Documented Coaching Plan (“DCP”) that identified reviews by Pham that were purportedly erroneous. Upon reviewing his purported errors at Apple’s request t0 offer a rebuttal, Pham was unable to determine any decisions that were accurately classified as errors on his part, and pointed this out to Apple. Following Pham’s rebuttal, Apple’s Quality team reversed their inaccurate classification of several of Pham’s purported errors. Pham’s DCP identified his most serious error was his approval of a Guo Media App, which was forbidden from Apple’s China App Store. However, the same App was approved by a series of other Apple employees, including three Chinese App Reviewers; yet none of them were disciplined for approval of this App as Pham was. -4- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Notably, all Apps identified by Apple’s management team as being “erroneously approved” by Pham in the DCP remained on Apple’s App Store following the audit, and remain there to date. Upon information and belief, Guo Media was established by Guo Wengui (“Guo”), a Chinese billionaire who goes by the name “Miles Kwok” in the United States. Guo is believed to have fled China to seek asylum in the United States in 2014 and remains wanted by the Chinese government for a series of alleged crimes. Guo publicly disputes the allegations made against him by the Chinese government and claims that he is subjected to political persecution. Guo regularly uses Guo Media to publicize claims of corruption against Chinese government officials and members of the Chinese Communist Party. Pham therefore believes and alleges that the DCP was created by Apple based on an ulterior motive to appease the Chinese government: the DCP was meant to be Apple’s message to China that it in fact did not approve an App created by Guo, a welI-known Chinese political dissident, known for his fierce opposition to the Chinese government. Because Apple maintains a lucrative business relationship with the Chinese Government, Pham became concerned that this audit of his work and the resulting DCP was nothing more than a pretext to justify Apple’s escalation of harassing treatment towards Pham and his eventual termination, all done with the purpose of appeasing the Chinese government. Accordingly, Pham asked that an Apple HR representative participate in a meeting reviewing the audit of his work. However, following the audit, there was never any corrective action process, issuance of the DCP, nor any other follow-up by Apple. On September 20, 2018, Pham requested a meeting with a representative from Apple’s HR Department to discuss the erroneous conclusions in the DCP, as well as the harassment Pham had experienced from the App Review team’s managers. On October 10, 2018, Pham met with Mike Gillaspie (“Gillespie”), an Employee Relations Business Partner in Apple’s HR Department, to discuss these concerns and explained that the audit felt arbitrary on the grounds that none of the errors listed in his DCP required any follow-up correction and that all “erroneous” Apps were still listed on the App Store, as they always should have been. However, even after expressing these concerns with Apple’s HR Department, no corrective action process followed the DCP, nor any other follow-up by Apple. Again, all Apps identified by Apple’s management team as being erroneously approved by Pham remain on Apple’s App Store to date. The impact of the harassment that Pham had been experiencing began to take a toll on Pham’s mental and physical health. Concerned, on October 12, 2018, Pham sought the advice of a medical professional. Upon recommendation from his doctor, Pham requested and took a medical leave of absence from Apple, beginning on -5- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA October 21, 2018. On December 14, 2018, during his medical leave of absence, Pham received a text message from a colleague at Apple indicating that Department Administrator, Courtney Horn (“Horn”), and the management team were planning on terminating Pham’s employment with Apple upon his return from medical leave. On February 15, 2019, Pham returned to Apple from medical leave and immediately returned to providing the high quality and quantity of work that had consistently made him a top performing App Reviewer for Apple. On March 15, 2019, exactly 3O days after his return from medical leave, Pham received a memorandum from Chipman terminating Pham’s employment with Apple as of March 18, 2019. The memorandum stated that Pham’s termination was due to his purported failure to “successfully meet the objectives and expectations” of the position he had successfully held for approximately four and a half years, as well as his purported failure to “meet other Apple standards.” Following his termination, on March 15, 2019, Pham requested a review of the decision to terminate his employment via Apple’s Decision Review Policy because he believes that his termination was discriminatory and motivated by his national origin. He further believes that his termination was retaliatory as it was a direct result of his discrimination and retaliation complaints to HR, as well as his implicit support of a Chinese political dissident. Three months later, on June 18, 2019, following an investigation and five interviews with Victor Cousins (“Cousins”), Apple’s Employee Relations Business Partner responsible for conducting the Decision Review, Cousins determined that Pham’s termination was “an appropriate management step,” and confirmed that “Apple will not be changing the decision to terminate [Pham’s] employment.” Although Pham has avidly attempted to find alternative employment since his termination from Apple, he remains unemployed to date. Notably, another co-worker of Vietnamese origin and ancestry on Pham’s team was terminated approximately one to two months prior to Pham’s termination by Apple. Upon information and belief, the termination of this employee was not based on job performance, but rather on a personal vendetta and discriminatory animus on the part of Chipman and other Apple supervisors in the App Review Department. -5- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA VERIFICATION I, Ruth Israely, am the Attorney in the above-entitled complaint. | have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which | believe to be true. On December 31, 2019, | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. San Francisco, California -7- Complaint - DFEH No. 201912-08735631 Date Filed: December 31, 2019 EXHIBIT 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Trieu Pham vs APPLE, INC. Hearing Start Time: 9:00 AM 19CV361037 Hearing Type: Hearing: Demurrer Date 0f Hearing: 07/07/2020 Comments: 2 Heard By: Manoukian, Socrates P Location: Department 20 Courtroom Reporter: - N0 Court Reporter Courtroom Clerk: Shantel Hernandez Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - N0 Appearance. Tentative Ruling Not Contested. Adopted. See Below: Defendant Apple s demurrer t0 the first, second, fifth, and seventh causes 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave t0 amend. Defendant Apple s demurrer t0 the fourth, ninth, and eleventh causes of action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is OVERRULED. Defendant Apple s demurrer t0 plaintiff Pham s complaint 0n the ground that the pleading is uncertain [Code Civ. Proc., 430.10, subd. (1‘)] is OVERRULED. Defendant Apple s motion to strike plaintiff Pham s request for punitive damages is GRANTED with 10 days leave t0 amend. Defendant Apple s motion t0 strike is otherwise DENIED. Complete Tentative is as follows: ORDERS ON (1) DEFENDANT APPLE, INC. S DEMURRER; AND (2) DEFENDANT APPLE, INC. S MOTION TO STRIKE I. Statement 0f Facts. Plaintiff Trieu Pham ( Pham ), an American man 0f Vietnamese national origin and ancestry, worked for defendant Apple, Inc. ( Apple ) as an iOS App Reviewer ( App Reviewer ) from 13 October 2014 until his wrongful termination 0n 18 March 2019. (Complaint, 4 and 10.) As an App Reviewer, plaintiff Pham was responsible for determining whether software applications ( Apps ) were reliable, performed as expected, and were free 0f offensive material. (Complaint, 12.) Plaintiff Pham reviewed Apps based 0n a pre-set 0f technical, content, and design criteria provided by defendant Apple; and plaintiff Pham determined whether Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 1 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER t0 accept, reject, 0r hold each App. (|d.) Defendant Apple imposes daily quotas 0n App Reviewers t0 accept, reject, 0r hold between 50 and 100 Apps per clay. (Complaint, 15.) A daily quota 0f 80 App reviews was imposed upon plaintiff Pham, which equates to approximately one App review every 6 minutes over the course 0f an 8-hour shift. (|d.) Plaintiff Pham was consistently a top performer, typically ranking among the top three App Reviewers each week, regularly reviewing between 120 and 180 apps each clay. (Complaint, 19.) In addition to his status as a top performer, plaintiff Pham also garnered praise for his accomplishments in his annual reviews, as his performance regularly achieved 0r exceeded expectations. (Complaint, 20.) In 2017, defendant Apple reshuffled its App Review Department resulting in plaintiff Pham joining a team lead by another manager, Richard Chipman (Chipman ), 0n 7 September 2017. (Complaint, 21.) That same day, Chipman reprimanded plaintiff Pham claiming plaintiff Pham s pace was too fast and told plaintiff Pham t0 review Apps more slowly. (Complaint, 22.) As a new member 0f the team, plaintiff Pham complied with Chipman s directive. (|d.) Toward the end of plaintiff Pham s shift that day, a manager from a different App Review team confronted plaintiff Pham in front 0f his new team and told plaintiff Pham he must work faster than the pace mandated by Chipman. (Complaint, 23.) In the weeks following, defendant Apple s App Review management team continued t0 harass plaintiff Pham about his performance singling plaintiff Pham out for issues that affected the entire team. (Complaint, 24.) Only plaintiff Pham was singled out and reprimanded and not plaintiff Pham s Caucasian co-workers. (|d.) Chipman also began taking more harassing and intimidating actions by singling out plaintiff Pham. (Complaint, 25.) For example, Chipman would stand directly behind plaintiff Pham s chair while plaintiff Pham was working and stare at plaintiff Pham s computer screen without speaking which he did not d0 t0 other team members. (|d.) On 19 September 2017, plaintiff Pham filed a formal complaint with Brandon Wied (Wied ), a Human Resources Business Partner at defendant Apple. (Complaint, 26.) Plaintiff Pham told Wied that he felt discriminated against by the management team and offered t0 provide work data and examples 0f the discriminatory treatment he faced. (|d.) However, n0 action was taken by Wied 0r defendant Apple s Human Resources. (|d.) Instead, after filing the complaint, defendant Apple s App Review management team increased its harassing conduct towards plaintiff Pham. (Complaint, 27.) A series 0f managers continually confronted plaintiff Pham about the quality 0f his work and his error rate despite plaintiff Pham s performance being on par with or better than other employees in the App Review Department who were not subjected t0 the same treatment. (|d.) On 20 June 2018, Chipman chastised plaintiff Pham for approving a gaming App called, Game 0f Love, which Chipman said should not have been approved because it contained pornographic material. (Complaint, 28.) The game App, in fact, does not contain pornographic material and remains available in defendant Apple s App store. (|d.) Between 17 July 2018 and 14 August 2018, defendant Apple conducted an audit 0f plaintiff Pham s App Reviews, identified reviews by plaintiff Pham that were purportedly erroneous, and issued plaintiff Pham a Documented Coaching Plan ( DCP ). (Complaint, 29.) Upon reviewing his purported errors at defendant Apple s request t0 offer a rebuttal, plaintiff Pham was unable t0 determine any decisions that were accurately classified as errors 0n his part and pointed this out t0 defendant Apple. (Complaint, 30.) Following plaintiff Pham s rebuttal, defendant Apple reversed their classification of several of plaintiff Pham s purported errors. (|d.) The most serious error identified in plaintiff Pham s DCP was plaintiff Pham s approval 0f a Guo Media App which was forbidden from defendant Apple s China App store. (Complaint, 31.) The same App was reviewed and approved by a series 0f other Apple employees, including three Chinese App Reviewers, yet none of them were disciplined for approval 0f the App as plaintiff Pham was. (|d.) All 0f the Apps identified by defendant Apple s management team as being erroneously approved by plaintiff Pham in the DCP remained 0n defendant Apple s App store following the audit and remain there to date. (Complaint, 32.) Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 2 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Guo Media was established by Guo Wengui (Guo ), a Chinese dissident who fled China in 2014 t0 seek asylum in the United States. (Complaint, 33.) Guo remains wanted by the Chinese government for a series 0f alleged crimes. (|d.) Plaintiff Pham believes the DCP was pretextual and created by defendant Apple to appease the Chinese government which maintains a lucrative business relationship with defendant Apple. (Complaint, 34 35.) The DCP was intended t0 be defendant Apple s message t0 China that it, in fact, did not approve an App created by Guo. (|d.) On 10 October 2018, plaintiff Pham met with Mike Gillaspie from defendant Apple s Human Resources Department t0 discuss the erroneous conclusions 0f the DCP and explained the audit felt arbitrary because none 0f the errors listed in the DCP required any follow-up correction and all the erroneous Apps were still listed 0n the App store. (Complaint, 37.) Despite expressing these concerns, n0 corrective action process followed the DCP and all Apps identified by defendant Apple s management team as being erroneously approved by plaintiff Pham remain 0n defendant Apple s App store t0 date. (Complaint, 38.) The harassment impacted plaintiff Pham s physical and mental health and based 0n the recommendation 0f his doctor, plaintiff Pham requested and took a medical leave 0f absence from defendant Apple commencing 21 October 2018. (Complaint, 39.) On 14 December 2018, plaintiff Pham received a text message from a colleague indicating defendant Apple s management team and Department Administrator intended t0 terminate plaintiff Pham s employment upon his return from medical leave. (Complaint, 40.) On 15 February 2019, plaintiff Pham returned from medical leave and immediately resumed providing the high quality and quantity 0f work that had consistently made him a top performing App Reviewer. (Complaint, 41.) On 15 March 2019, plaintiff Pham received a memorandum from Chipman terminating plaintiff Pham s employment with defendant Apple as of 18 March 2019. (Complaint, 42.) The stated reasons for termination were plaintiff Pham s purported failure t0 successfully meet the objectives and expectations 0f the position he successfully held for approximately four and a half years and plaintiff Pham s purported failure t0 meet other Apple standards. (|d.) Following his termination, 0n 15 March 2019, plaintiff Pham requested a review 0fthe decision t0 terminate his employment 0n the grounds that it was discriminatory and retaliatory. (Complaint, 43.) On 18 June 2019, following an investigation and multiple interviews, defendant Apple upheld its decision t0 terminate plaintiff Pham s employment. (Complaint, 44.) On 31 December 2019 , plaintiff Pham filed a complaint against defendant Apple asserting causes 0f action for: 1 Discrimination Based 0n Political Affiliation in Violation 0f Labor Code 98.6, 1101 and 1102 2 Retaliation Based 0n Political Affiliation in Violation 0f Labor Code 98.6, 1101 and 1102 3 Discrimination and Retaliation Based 0n Political Affiliation in Violation 0fthe Unruh Civil Rights Act 4 Discrimination Based 0n National Origin in Violation 0f FEHA: Disparate Treatment 7 Harassment Based 0n National Origin in Violation 0f FEHA 8 ) ) ) ) 5) Discrimination Based 0n National Origin in Violation 0f FEHA: Disparate Impact ) ) ) Retaliation in Violation 0f FEHA ) 9 Failure t0 Prevent Harassment, Discrimination, 0r Retaliation in Violation 0f FEHA ( ( ( ( ( (6 Discrimination Based 0n Medical Condition in Violation 0f FEHA ( ( ( (10) Wrongful Termination in Violation 0f Public Policy ( 11) Unlawful, Unfair, and/or Fraudulent Business Practices in Violation 0f Business and Professions Code 17200, et seq. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 3 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On 25 February 2020, defendant Apple filed the first 0f two motions now before the court, a demurrer t0 the first, second, fourth, fifth, seventh, ninth, and eleventh causes 0f action in plaintiff Pham s complaint. On 26 February 2020, plaintiff Pham filed a request for dismissal 0f his third cause 0f action. On 27 February 2020, defendant Apple filed the second motion now before the court, a motion t0 strike portions of plaintiff Pham s complaint. ||. Analysis. A. Demurrer. 1. First and second causes of action. Plaintiff Pham s first and second causes 0f action are premised upon alleged violations of Labor Code sections 1101 and 1102. Labor Code section 1101 states: N0 employer shall make, adopt, 0r enforce any rule, regulation, 0r policy: (a) Forbidding 0r preventing employees from engaging 0r participating in politics 0r from becoming candidates for public office. (b) Controlling 0r directing, 0r tending t0 control 0r direct the political activities 0r affiliations 0f employees. Labor Code section 1102 states, N0 employer shall coerce 0r influence 0r attempt t0 coerce 0r influence his employees through 0r by means of threat 0f discharge 0r loss of employment to adopt 0r follow 0r refrain from adopting 0r following any particular course 0r line 0f political action 0r political activity. a. Combining two causes 0f action. Defendant Apple demurs, initially, t0 the first two causes 0f action by arguing that each improperly combines two separate causes 0f action. Defendant Apple relies, in part, upon Zumbrun v. University 0f Southern California (1972) 25 Cal.App.3d 1, 9 (Zumbrun), where the court wrote, plaintiff should set forth her separate theories in separate counts t0 facilitate the adjudication 0f their validity. This statement appears t0 be more 0f a suggestion and did not form the basis for sustaining a demurrer. The Zumbrun court analyzed both 0f the separate theories and found them to be defective. Defendant Apple also cites Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235, where the court wrote, A further consideration is that the special demurrer was properly sustained because the complaint was defective in that two purported causes 0f action were not separately stated. In other words, defendant Apple asserts a special demurrer based on uncertainty. A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond i.e., he 0r she cannot reasonably determine what issues must be admitted 0r denied, 0r what counts 0r claims are directed against him 0r her. (Weil & Brown et a|., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) 7:85, p. 7(I)-42 citing Khoury v. Maly s 0f Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the complaint is not so uncertain that defendant Apple cannot discern that the claims are being premised 0n two separate Labor Code sections and that the first cause 0f action is for discrimination while the second cause 0f action is for retaliation. b. Discriminatory/ Retaliatory Intent Next, defendant Apple contends the first two causes 0f action fail because there are no facts to support a claim for discrimination 0r retaliation based upon violations 0f Labor Code sections 1101 0r 1102. A prima facie case for employment discrimination requires the following showing: Generally, the plaintiff must provide evidence that (1) [s]he was a member 0f a protected class, (2) [s]he was qualified for the position [s]he sought 0r was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, 0r denial 0f an available job, and (4) some other circumstance suggests a discriminatory motive. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 4 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Slatkin v. University 0f Redlands (2001) 88 Cal.App.4th 1147, 1158 (Slatkin).) T0 establish a prima facie case 0f retaliation, the plaintiff must show (1) he 0r she engaged in a protected activity; (2) the employer subjected the employee t0 an adverse employment action; and (3) a causal link between the protected activity and the employer s action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.) For both discrimination and retaliation, a plaintiff must demonstrate some discriminatory/ retaliatory intent. In other words, the alleged discrimination and retaliation (adverse action) must be because 0f 0r linked t0 plaintiff s engagement in some protected activity; here, plaintiff Pham s engagement 0r participation in political activity or affiliation. In the complaint, plaintiff Pham alleges defendant Apple harassed, punished, discriminated against, and eventually terminated [plaintiff Pham] based upon his approval 0fthe Guo Media App, which publicizes claims 0f corruption against Chinese government officials and members 0f the Chinese Communist Party, and is backed by a weII-known Chinese political dissident. (Complaint, 49; see also 57 58.) Also worth noting is plaintiff Pham s allegation that his approval 0f the Guo Media App represents his implicit support 0f a Chinese political dissident. (Complaint, 43; emphasis added.) The argument the court understands defendant Apple t0 be making is that these conclusory allegations are insufficient to allege a discriminatory/ retaliatory intent 0r motive by defendant Apple because there are no facts t0 suggest that defendant Apple knew that plaintiff Pham was engaging in political activity 0r affiliation when he approved the Guo Media app. The court is persuaded by this argument. The court finds relevant authority from other discrimination cases. The ADA prohibits discrimination because of a disability. (42 U.S.C. 12112(a).) An adverse employment decision cannot be made because 0f a disability, when the disability is not known t0 the employer. Thus, in order t0 prove an ADA claim, a plaintiff must prove the employer had knowledge 0f the employee's disability when the adverse employment decision was made. [Citations omitted] While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed t0 the employer when the fact 0f disability is the only reasonable interpretation 0f the known facts. Vague 0r conclusory statements revealing an unspecified incapacity are not sufficient t0 put an employer on notice of its obligations under the ADA. [Citations omitted] (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 237; see also Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248 (Avila) t0 show that [defendant employer] acted with discriminatory intent, plaintiff was required to produce evidence that the [defendant employer s] employees who decided t0 discharge him knew 0f his disability.) Here, plaintiff Pham has made n0 allegations that defendant Apple had actual knowledge that plaintiff Pham was engaging in political activity when he approved the Guo Media app nor are there any allegations from which defendant Apple s knowledge can be inferred. To the contrary, plaintiff Pham alleges only that his approval 0f the Guo Media app represented his implicit support 0f a Chinese political dissident. (Complaint, 43; emphasis added.) There are n0 allegations from which this court could infer that defendant Apple could or should distinguish plaintiff Pham s approval 0f the Guo Media app as being political activity rather than an error in judgment by an App Reviewer in applying the pre-set 0f technical, content, and design criteria provided by defendant Apple. (Complaint, 12.) Absent any facts t0 show defendant Apple s knew 0r should have known that plaintiff Pham was making a political statement by approving an app by a Chinese dissident, plaintiff Pham cannot properly and conclusorily allege defendant Apple had some discriminatory/retaliatory motive 0r some other causal link between plaintiff Pham s protected activity and defendant Apple s employment acti0n(s). Accordingly, defendant Apple s demurrer t0 the first and second causes 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 5 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Civ. Proc., 430.10, subd. (e)] for discrimination and retaliation, respectively, is SUSTAINED with 10 days leave t0 amend. 2. Fourth and fifth causes of action. Plaintiff Pham s fourth and fifth causes of action allege discrimination based 0n national origin. They are distinguishable in that the fourth cause 0f action alleges discrimination based upon disparate treatment while the fifth cause 0f action alleges discrimination based upon disparate impact. FEHA provides, in relevant part, that [i]t shall be an unlawful employment practice [ ] (a) For an employer, because 0f the [national origin] 0f any person, to refuse t0 hire or employ the person or to bar or to discharge the person from employment ( 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Ca|.4th 920, 925 926, 70 Ca|.Rptr.3d 382, 174 P.3d 200.) FEHA prescribes two types 0f [national origin] discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because 0f his 0r her [national origin] (referred t0 as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice 0r policy that has a disproportionate effect on employees [of a particular national origin] (referred to as disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128 129, 33 Ca|.Rptr.3d 287.) (Avila, supra, 165 Cal.App.4th at p. 1246.) As noted above, a prima facie claim for discrimination requires some other circumstance suggests a discriminatory motive. (Slatkin, supra, 88 Cal.App.4th at p. 1158.) Defendant Apple demurs t0 the fourth cause of action on the ground that plaintiff Pham has not sufficiently alleged facts which would suggest a discriminatory motive. Defendant Apple identifies only a few relevant allegations. At paragraph 24 0f the complaint, plaintiff Pham alleges, Chipman and other Apple supervisors did not single out 0r reprimand Pham s Caucasian co-workers for the same alleged issues. Pham told [defendant Apple] that he felt discriminated against by the management team, which was comprised entirely 0f older Caucasian males. (Complaint, 26.) Notably, another co-worker 0f Vietnamese origin and ancestry 0n Pham s team was terminated approximately one to two months prior t0 Pham s termination by Apple. (Complaint, 46.) Defendant Apple contends these minimal facts d0 not support plaintiff Pham s conclusory allegation that his termination was based upon his national origin. In discrimination cases, proof 0f the employer s reasons for an adverse action often depends 0n inferences rather than 0n direct evidence. An inference is a deduction 0f fact that may logically and reasonably be drawn from another fact 0r group 0f facts found 0r otherwise established in the action. [Citation omitted] (Cucuzza v. City 0f Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) Plaintiff Pham s allegation that he was singled out when other Caucasian workers were not is sufficient t0 raise an inference 0f discrimination. A demurrer tests only the legal sufficiency 0f the pleading. It admits the truth 0f all material factual allegations in the complaint; the question 0f plaintiff s ability t0 prove these allegations, 0r the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Ca|.3d 197, 213 214.) Accordingly, defendant Apple s demurrer t0 the fourth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for discrimination is OVERRULED. The premise of a disparate impact discrimination claim is that a facially neutral employment policy adversely affects the members 0f a protected group. Unlike disparate treatment cases, plaintiffs claiming disparate impact need not prove an employer s discriminatory motive. The disparate impact theory focuses 0n the consequences, not the purpose, 0f an employment practice. (Chin, et a|., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2010) 8:245, p. 8-36 citing Griggs v. Duke Power C0. (1971) 401 U.S. 424, 430 432.) Under the disparate impact theory, employees must prove that a facially neutral employment practice had a discriminatory impact 0n older workers. The mere fact that each person affected by a practice or policy is also a member 0f a protected group is not enough t0 establish a disparate impact. (Id. at 8:250, p. 8-37 Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 5 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER citing Katz v. Regents 0f Univ. 0f Calif. (9th Cir. 2000) 229 F.3d 831, 836.) In demurring t0 the fifth cause 0f action, defendant Apple contends there are n0 allegations that defendant Apple applied some facially neutral employment policy which resulted in a disparate impact upon Vietnamese workers. Instead, plaintiff Pham alleges only that another Vietnamese co-worker 0n his team was terminated prior t0 Pham. In opposition, plaintiff Pham seems t0 suggest that this other Vietnamese worker suffered from the same disparate discriminatory treatment that plaintiff Pham suffered. However, disparate impact is different from disparate treatment. For there t0 be disparate impact, plaintiff Pham would have t0 allege that defendant Apple audited all 0f its App Reviewers and the audit resulted in the termination 0f a disproportionate number 0f Vietnamese employees. This does not appear to be the theory being advanced based 0n either the allegations 0f the complaint 0r plaintiff s argument in opposition. Accordingly, defendant Apple s demurrer t0 the fifth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for discrimination is SUSTAINED with 10 days leave t0 amend. 3. Seventh cause of action. The elements of the cause of action [for harassment] are: (1) plaintiff belongs t0 a protected group; (2) plaintiff was subject t0 unwelcome [] harassment; (3) the harassment complained 0f was based 0n [national origin]; (4) the harassment complained 0f was sufficiently pervasive so as t0 alter the conditions 0f employment and create an abusive working environment; and (5) respondeat superior. [Citation omitted] To be sufficiently pervasive harassment, the acts complained 0f cannot be isolated 0r trivial. Rather, there must be a pattern 0f harassment 0f a routine 0r generalized nature. (Guthrey v. State 0f California (1998) 63 Cal.App.4th 1108, 1122 1123.) Defendant Apple contends the allegations by plaintiff Pham are not sufficiently severe 0r pervasive enough t0 constitute harassment. Defendant Apple identifies plaintiff Pham s allegations concerning harassment as the one incident where Chipman stood directly behind Pham s chair while Pham was working and stare[d] at Pham s computer screen without speaking and plaintiff Pham s allegation that the management team singled him out for unspecified issues even though those issues affected the entire team. (Complaint, 23 25.) As to the latter, defendant Apple contends being singled out for criticism by management cannot constitute harassment. Harassment is not conduct 0f a type necessary for management 0f the employer's business 0r performance 0fthe supervisory employee'sjob. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63.) Thus, according t0 defendant Apple, plaintiff Pham s harassment claim is supported only by the single incident where Chipman stood behind plaintiff Pham and stared at his computer screen in silence. [T]he required showing 0f severity . . .of the harassing conduct varies inversely with the pervasiveness 0r frequency 0fthe conduct. (Davis v. Team Elec. C0. (9th Cir. 2008) 520 F.3d 1080, 1096.) If a single incident can ever suffice t0 support a hostile work environment claim, the incident must be extremely severe. (Herberg v. California Institute 0f the Arts (2002) 101 Cal.App.4th 142, 150 (Herberg).) [A] single incident must be severe in the extreme and generally must include either physical violence or the threat thereof. (Herberg, supra, 101 Cal.App.4th at p. 151.) Herberg, however, discusses hostile work environment in the context 0f sexual harassment. Here, plaintiff Pham has alleged national origin harassment. The working environment must be evaluated in light 0f the totality 0f the circumstances: [W]hether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency 0f the discriminatory conduct; its severity; whether it is physically threatening 0r humiliating, 0r a mere offensive utterance; and whether it unreasonably interferes with an employee s work performance. [Citation] [T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation] . [T]hat inquiry requires careful consideration 0f the social context in which particular behavior occurs and is experienced by its target. The real social impact 0f workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation 0f the Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 7 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER words used 0r the physical acts performed. Common sense, and an appropriate sensibility t0 social context, will enable courts and juries t0 distinguish between simple teasing or roughhousing and conduct which a reasonable person in the plaintiff's position would find severely hostile 0r abusive. (Miller v. Department 0f Corrections (2005) 36 Ca|.4th 446, 462.) Still, courts have decided, as a matter 0f law, that conduct was not sufficiently severe 0r pervasive t0 create a hostile work environment. (See Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 369.) Here, the court is asked t0 consider this issue at the pleading stage. Based solely 0n the allegation that Chipman stood directly behind Pham s chair while Pham was working and stare[d] at Pham s computer screen without speaking, the court finds, as a matter 0f law, that such conduct is not sufficiently severe t0 constitute harassment. Accordingly, defendant Apple s demurrer t0 the seventh cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for harassment is SUSTAINED with 10 clays leave to amend. 4. Ninth cause of action. Under FEHA, an employer has an obligation t0 take all reasonable steps necessary to prevent discrimination and harassment from occurring. (See Gov. Code 12940, subd. (k).) A prerequisite t0 a finding 0f liability for the failure t0 take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 283; see also Scotch v. Art Institute 0f California (2009) 173 Cal.App.4th 986, 1021.) Defendant Apple demurs t0 plaintiff Pham s ninth cause 0f action for failure t0 prevent harassment, discrimination, 0r retaliation under FEHA 0n the ground that it is dependent upon plaintiff being able t0 assert a valid claim for harassment, discrimination, 0r retaliation. In light of this court s ruling on the fourth cause 0f action, plaintiff Pham has at least stated a claim for discrimination upon which t0 ground this ninth cause 0f action. Accordingly, defendant Apple s demurrer t0 the ninth cause 0f action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for failure t0 prevent discrimination is OVERRULED. 5. Eleventh cause 0f action. Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range 0f conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Ca|.4th 1134, 1143 (K0rea).) The UCLcovers a wide range 0f conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law. (Korea, supra, 29 Ca|.4th at p. 1143.) Section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices. In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law. (|d.) By prescribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair 0r deceptive even if not proscribed by some other law. Thus, there are three varieties 0f unfair competition: practices which are unlawful, 0r unfair, 0r fraudulent. (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.) Standing under the UCL is now limited to those who have suffered injury in fact and [have] lost money or property as a result 0f unfair competition. (Bus. & Prof. Code, 17204.) Accordingly, t0 bring a UCL action, a private plaintiff must be able t0 show economic injury caused by unfair competition. [Citation] (Zhang v. Superior Court (2013) 57 Ca|.4th 364, 372.) Defendant Apple incorporates its earlier arguments t0 argue that since plaintiff Pham cannot state a valid claim for discrimination, retaliation, 0r harassment, then plaintiff cannot make out a claim under the UCL. In light 0f the court s ruling above with regard t0 the fourth cause 0f Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 3 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER action, plaintiff Pham has at least stated a claim for discrimination. Additionally, defendant Apple contends plaintiff Pham is not entitled t0 the restitutionary 0r injunctive relief available under the UCL as a former employee. However, in Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 789 (Herr), the court wrote, It follows that injunctive relief under the UCL is an appropriate remedy where a business has engaged in an unlawful practice 0f discriminating against older workers. Further, an action for injunctive relief under the UCL may be brought by any person acting for the interests 0f itself, its members 0r the general public. (Bus. & Prof.Code, 17204.) The courts in California have consistently upheld the right 0f both individual persons and organizations under the unfair competition statute t0 sue 0n behalf 0f the public for injunctive relief as private attorney[s] general, even if they have not themselves been personally harmed 0r aggrieved. (Perdue v. Crocker National Bank (1985) 38 Ca|.3d 913, 929 [216 Ca|.Rptr. 345, 702 P.2d 503]; Hernandez v. Atlantic Finance C0. (1980) 105 Cal.App.3d 65, 70 73 [164 Ca|.Rptr. 279].) (Consumers Union 0f United States, Inc. v. Fisher Development, Inc. (1989) 208 Cal.App3d 1433, 1439, 257 CaI.Rptr. 151 [action against developer 0f adult community t0 enjoin discrimination in h0using].) A fortiori, Herr, who was personally aggrieved by the age discrimination practiced at Nestl , had the right under Business and Professions Code section 17204 t0 sue as a private attorney general t0 enjoin Nestl from engaging in unlawful employment discrimination. (Herr, supra, 109 Cal.App.4th at pp. 789 790.) Accordingly, defendant Apple s demurrer t0 the eleventh cause of action in plaintiff Pham s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] for violation 0f Business and Professions Code section 17200, et seq., is OVERRULED. B. Motion t0 Strike. Under general rules 0f civil procedure, a motion t0 strike may be brought 0n the following two grounds: a. Strike out any irrelevant, false, 0r improper matter inserted in any pleading. b. Strike out all 0r any part 0f any pleading not drawn 0r filed in conformity with the laws 0f this state, a court rule, 0r an order of the court. (Code Civ. Proc., 436.) Irrelevant matter includes immaterial allegations. (Code Civ. Proc., 431.10, subd. (c).) An immaterial allegation in a pleading is any 0f the following: (1) An allegation that is not essential t0 the statement 0f a claim 0r defense; (2) An allegation that is neither pertinent t0 nor supported by an otherwise sufficient claim or defense; (3) A demand forjudgment requesting relief not supported by the allegations 0f the complaint 0r cross-complaint. (Code Civ. Proc., 431.10, subd. (b).) As with demurrers, the grounds for a motion t0 strike must appear 0n the face 0f the pleading under attack, 0r from matter which the court mayjudicially notice. (Weil & Brown, et a|., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) 7:168, p. 7(I)-73 citing Code Civ. Proc., 437.) Thus, for example, defendant cannot base a motion t0 strike the complaint 0n affidavits 0r declarations containing extrinsic evidence showing that the allegations are false 0r sham. Such challenges lie only if these defects appear 0n the face of the complaint, 0r from matters judicially noticeable. (Id. at 7:169, p. 7(|)-73.) In passing 0n the correctness 0f a ruling 0n a motion t0 strike, judges read allegations 0f a pleading subject t0 the motion t0 strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) In ruling on a motion to strike, courts do not read allegations in isolation. (Clauson, supra, 67 Cal.App.4th at p. 1255.) Defendant Apple first moves t0 strike portions 0f plaintiff Pham s complaint( 33 35, 49, 50, 57, 58, and 128) which reference the political affiliation and alleged political commentary 0f Guo Wengui and allege that defendant Apple took actions t0 appease the Chinese government. Defendant Apple contends these allegations are irrelevant. In light 0f the court s ruling 0n the demurrer above, plaintiff Pham has not stated Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 9 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER facts sufficient t0 constitute causes 0f action for discrimination and retaliation based upon political affiliation, but the court has granted plaintiff Pham leave t0 amend. The court does not find such allegations t0 be entirely irrelevant. T0 the extent plaintiff Pham can assert valid claims, he may include such allegations which give context t0 his claims for discrimination and retaliation. Next, defendant Apple moves t0 strike portions 0f plaintiff Pham s complaint( 133 and 134) in which plaintiff Pham requests injunctive relief. Essentially, defendant Apple repeats its earlier arguments from its demurrer 0n this point. For the same reason discussed above with regard t0 defendant Apple s demurrer t0 the eleventh cause 0f action, the motion t0 strike plaintiff Pham s request for injunctive relief is denied. Finally, defendant Apple moves t0 strike portions 0f plaintiff Pham s complaint( 54, 62, 69, 76, 83, 90, 99, 106, 115, and 121 and 3 from the prayer for relief) in which plaintiff Pham requests punitive damages. The FEHA does not itself authorize punitive damages. It is, however, settled that California's punitive damages statute, Civil Code section 3294, applies t0 actions brought under the FEHA. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1147 1148.) Defendant Apple moves t0 strike plaintiff Pham s request for punitive damages 0n the ground that plaintiff Pham has merely alleged, in conclusory terms, that defendant Apple acted with oppression, fraud 0r malice, and in reckless 0r willful disregard 0f [plaintiff s] rights, but has not provided any factual allegations to support such a conclusory allegation. In opposition, plaintiff Pham points to allegations that he was singled out and reprimanded based 0n, among other things, his national origin. Plaintiff contends this is sufficient t0 support a claim 0f punitive damages. Plaintiff s argument omits the allegations that such actions were taken against him by his managers at defendant Apple. Under California law, an agent's or employee's acts in the course and scope 0f employment are attributed t0 the employer for purposes 0f tort liability under the doctrine 0f respondeat superior. (See Perez v. Van Groningen & Sons (1986) 41 Ca|.3d 962, 967; see also CACI, N0. 3700.) However, that an agent 0r employee acted with oppression, fraud 0r malice toward plaintiff is not alone enough t0 render the employer liable for punitive damages. (See Civ. Code, 3294, subd. (b) .) Since plaintiff Pham is seeking punitive damages against defendant Apple, Civil Code section 3294, subdivision (b) requires more. Accordingly, defendant Apple s motion t0 strike plaintiff Pham s request for punitive damages is GRANTED with 10 clays leave to amend. |||. Conclusion and Order. Defendant Apple s demurrer t0 the first, second, fifth, and seventh causes of action in plaintiff Pham s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code Civ. Proc., 430.10, subd. (e)] is SUSTAINED with 10 days leave t0 amend. Defendant Apple s demurrer t0 the fourth, ninth, and eleventh causes 0f action in plaintiff Pham s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause of action [Code Civ. Proc., 430.10, subd. (e)] is OVERRULED. Defendant Apple s demurrer t0 plaintiff Pham s complaint 0n the ground that the pleading is uncertain [Code Civ. Proc., 430.10, subd. (1‘)] is OVERRULED. Defendant Apple s motion t0 strike plaintiff Pham s request for punitive damages is GRANTED with 10 days leave t0 amend. Defendant Apple s motion t0 strike is otherwise DENIED. Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 10 0f 11 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 7/7/2020 07/07/2020 Hearing: Demurrer r 19CV361037 Page 11 0f 11
