Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.January 9, 2020

PARVIZ DARABI - Bar No. 209021 DANIEL B. SWERDLIN - Bar No. 243452 LAW OFFICES OF PARVIZ DARABI 500 Airport Blvd., Suite 150 Burlingame, CA 94010 Telephone: (650) 343-5357 Facsimile: (650) 343-5391 Attorneys for Plaintiff 6 LUIS MUNOZ SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION 10 LUIS MUNOZ, an individual, 11 Plaintiff, vs. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. 13 CAGWIN & DORWARD, a California Corporation; and DOES 1-30, inclusive, Case No. COMPLAINT FOR DAMAGES: 1. Failure to Pay Overtime Wages: Violation of LCt'l! 510, 1194, 1198 and IWC Wage Order "Hours ant Days ofWork" Section; 2. Failure to Pay Minimum Wages and Secret Underpayment of Wages: Violation of LCIJII 223, 1197, 1198 and IWC Wage Order "Hours and Days of Work" and "Minimum Wage" Sections; 3. Failure to Indemnify for Expenses and Losses in Discharging Duties: Violation of LCD) 2802; 4. Failure to Provide Meal Periods: Violation of LCIIII 226.7, 512, and IWC Wage Order "Meal Periods" Section; 5. Failure to Provide Rest Periods: Violation of LC; 226.7 and IWC Wage Order "Rest Periods" Section; 6. Failure to Provide and Maintain Accurate Itemized Wage Statements: Violation ofLC$ Ik 226, 1174, 1198 and IWC Wage Order "Records" Section; 7. Failure to Pay Wages Due Upon Termination: Violation of LCIIt'l 201, 202, 203 and IWC Wage Order; 8. Unfair Business Practice: Violation of Business tie Professions Code fili 17200, et seq.; 9. Wrongful Termination [FEHA]; Violation of Gov. Code H12900 and 12940 et seq.; Plaintiffs Complaint for Damages E-FILED 1/9/2020 4:03 PM Clerk of Court Superior Court of CA, County of Santa Clara 20CV361564 Reviewed By: Yuet Lai 20CV361564 10. Disability Discrimination [FEHA]: Violation ofCal. Gov. Code [[) 12940(a) and Cal. Code Regs.,Title 2 [[11068; 11. Fagure to Provide Reasonable Accommodation [FEHA]/ Violation ofCal. Gov. Code Cal. Gov. Code [[$ 12940 (m), 12926(p) and CaL Code Regs., Title 2 [[11068. 12. Failure to Engage in the Interactive Process [FEHA]: Violation of Cal. Gov. Code $ 12940 (n); 13. Retaliation/ Discrimination/Wrongful Termination: Violation of Public Policy; 14. Failure to Pay Minimum Wages: Violation of Labor Code $ 1194.2; 10 PlaintiffDEMANDS JURY TRIAL Plaintiff LUIS MUNOZ, an individual, brings this action against Defendant CAGWIN & 12 DORWARD, a California Corporation, and DOES 1-30, inclusive and alleges as follows: 13 14 JURISDICTION AND VENUE This court has jurisdiction over this action and Defendant pursuant to California Code of 15 Civil Procedure I[ 410.10. This is a civil action wherein the matter in controversy, exclusive of interest and costs, exceeds the jurisdictional minimum of the Court. Defendant, during times relevant to this action, have conducted substantial, systematic and continuous commercial activities in California. 18 2. Venue is proper in this judicial district pursuant to California Code of Civil Procedure [i$ 19 395 (a) and 395.5 as at least some of the acts and omissions complained of in this action occurred in the 20 County of SANTA CLARA in the State of California. Defendant organized, existing and doing business under the laws of the State of California with its principal place ofbusiness in SANTA CLARA County. Each of the defendants either owns property, maintains an office, transacts business, engages in financial 23 operations, has an agent or agents within the County of SANTA CLARA and/or is otherwise found within the County of SANTA CLARA, and each of the defendants is within the jurisdiction of this Court for purposes of service ofprocess. 26 PARTIES 27 3. Plaintiff, LUIS MUNOZ, an individual (hereinaiter "Plaintiff') was employed by 28 Defendant to perform services for a wage. plaintifrs Complaint for Damages 7 8 9 10 11 4. Plaintiff is informed and believes, and on such information and belief alleges that at all times relevant hereto, CAGWIN & DORWARD, a California Corporation, (hereinafter "Defendant"), is and at all times relevant herein, organized and existing under the laws of the State of California. Defendant was duly authorized to do business throughout the State of California. Defendant employed Plaintiff during the relevant time period to work at its distribution business. At all times relevant herein, Defendant, by and through acts of its authorized agents, among others, employed and exercised control over the wages, hours, or working conditions ofPlaintiff. Plaintiff alleges, on information and belief, that at all relevant times herein, Defendant owns, controls, and/or manages the day-to-day operation and activities at its landscaping business, through its authorized agents, managers/ supervisors, Fernando Avila and Bill, among others. 5. Plaintiff is informed and believes, and on that basis alleges that at all times relevant hereto, Defendant placed Fernando Avila and Bill in positions as Defendant's supervisors/managers in charge 12 of the day-to-day operation of its business and work performances of its employees, including Plaintiff 13 and empowered Fernando Avila and Bill to take tangible employment actions against Plaintiff to effect 14 15 16 17 18 19 20 21 22 23 a significant change in PlaintiiTs employment status, such as hiring, firing, reassignment of schedules and shifts, or other employment related decisions resulting in significant changes in benefits to Plaintiff. In their roles as PlaintifF s supervisors/ managers and as authorized agents for Defendant, Fernando Avila and Bill exercised unique authority over Plaintiff. While Plaintiff lacks evidentiary support at the present time to support these allegations, he is informed and believes these alleged facts are likely to have evidentiary support atter a reasonable opportunity for further investigation or discovery. 6. At all material times herein, Fernando Avila and Bill engaged in the conducts, alleged hereinabove, and was acting within the scope ofhis employment and pursuant to authority given to them by Defendant -as Plaintiff s managers/ supervisors. 7. The true names, capacities, relationships and extent of participation in the conduct alleged herein of the defendants named as DOES I through 30, inclusive, are presently unknown to Plaintiff, but Plaintiff is informed and believes, and thereon alleges, that said defendants are legally 25 responsible for the wrongful conduct alleged herein and therefore sue these defendants by such fictitious 26 names. Plaintiff will amend this complaint when their true names and capabilities are ascertained. 27 8. Plaintiff is informed and believes, and thereon alleges, that each defendant - whether 28 Plaintiffs Complaint Eot Damages 10 named or fictitious, directly or indirectly, or through agents or other persons - engaged Plaintiff and exercised control over Plaintiffs wages, hours, and/or working conditions. 9. Plaintiff is informed and believes, and thereon alleges, that each defendant acted and/or ratified in all respects pertinent to this action as the agent of the other defendants; Plaintiff is informed and believes, and thereon alleges, that each defendant carried out a joint scheme, business plan or policy in all respects pertinent hereto, and the acts of each defendant are legally attributable to the other defendants. PRE-LITIGATION COMPLAINTS. CLAIM FILINGS. AND DISPOSITIONS 10. Plaintiff exhausted his administrative remedies under the California Fair Employment and Housing Act (FEHA). On or about January 9, 2020, Plaintiff filed the charges of hostile work environment, wrongful termination, discrimination and retaliation against Defendant. On January 9, 11 2020, the Department of Fair Housing and Employment issued the Notice of Case Closure/Right-to-Sue 12 Letter. A Copy of the Complaint and Notice of Right To Sue is attached hereto, as Exhibit "I". 13 14 15 16 17 18 19 20 21 22 23 24 25 FACTUAL ALLEGATIONS 11. On or about beginning of 2019, PlaintiA's employment with Defendant began and continued through and including September 25, 2019, when he was terminated by the Defendant. 12. At all times, relevant hereto, and during the entire period of Plaintiffs employment with Defendant, Plaintiff was employed as a full-time non-exempt employee, within the meaning of IWC Order, to perform services for the Defendant, subject to the laws of the State of California, for the payment ofwages as set-forth in the California Labor Code, and was covered under one or more statutes, regulations and Wage Orders of the Industrial Welfare Commission (IWC), and Division of Labor Standards Enforcement (DLSE). 13. The applicable Wage Order defines "employer" as any person "who directly or indirectly, or through an agent, for any other person, employs or exercises control over the wages, hours, or working conditions of any person." 14. Plaintiff is informed and believes, and on thereupon alleges, that at all times relevant herein, Defendant was either the employer or the joint employer of the Plaintiff in that Defendant 26 employed Plaintiff and exercised control over the wages, hours, and working conditions of Plaintif as 27 defined and regulated by the Labor Code, the IWC Wage Order, and California common law. 28 Plaintiffs Complamt for Damages 1 15. Plaintiff is informed and believes and thereupon alleges that at all times relevant herein, Defendant employed Plaintiff to provide services for a wage. Defendant set strict standards, policies, and procedures, which they applied uniformly and required and expected Plaintiff to carefully follow. Defendant routinely monitored the details of the work of Plaintiff to ensure strict adherence to Defendant's standards, policies, and procedures. 6 16. Defendant's uniform practices and treatments of Plaintiff required that Plaintiff to regularly work overtime; regularly work long hour shifts within a 24- hour work day, over eight (8) hours 7 per workday and/or (40) hours per workweek, without payment of proper wages including that of 8 "overtime" pay at required overtime rates, wages for "all hours worked" and for other "off-the-clock" 9 work which he was required to perform. Plaintiffdid not receive proper compensation in connection with 10 all hours worked, even though Defendant had the ability to monitor and did monitor the hours worked by 11 Plaintiff, and, therefore, knew or should have known that "off-the-clock" work and "all hours worked" 12 were going uncompensated, and that overtime hours were not being paid at the required overtime rate. 13 17. Plaintiff is informed and believes and thereupon alleges that at all times relevant herein, Defendant engaged in a business pattern and practice of time shaving by altering time cards to shortchange Plaintiff. Defendant would routinely fail to report all of the hours Plaintiff actually worked to its payroll system/ provider and would improperly round off/ reduce Plaintiff s hours to reflect a lower 17 number of hours. Defendant would then pay Plaintiff for the lower number of reported hours when it 18 knew Plaintiff had worked more than those reported hours. Plainflff did not receive compensation for 19 these discrepancies. 20 18. At all times relevant herein, Defendant directly and/or indirectly paid Plaintiff less than minimum wage for all times suffered or permitted to work for Defendant, secretly underpaid Plaintiff s wages, and secretly paid a lower wage while purporting to pay the wage designated by statute or by 23 contract when it failed to pay the Plaintiff for "all hours worked" and "off-the-clock" work performance of which were incidental to Plaintiff s daily duties and responsibilities and consequently underpaid 25 26 27 28 Plaintiff for the actual hours Plaintiff worked. 19. At all times relevant herein, Plaintiff regularly worked sufficient hours to require that Plaintiff be provided with meal breaks. However, Defendant lacked a policy requiring that Plaintiff be relieved of all duty for a timely uninterrupted 30-minute meal period. Rather, Defendant's uniformly Plaintiffs Complaint for Damages applied practice impeded Plaintiff right to take all meal breaks. As such, Plaintiff regularly was not relieved of duty for a timely uninterrupted 30-minute period. 20. At all times relevant herein, Plaintiff regularly worked sufficient hours to require that Plaintiff be provided with rest breaks. However, Defendant lacked a policy requiring that Plaintiff be authorized or permitted the amount of rest break time required by law. Rather, Defendant's uniformly applied practice impeded the Plaintiff right to take all required rest breaks. As such, Plaintiff was not authorized or permitted the amount of rest break time required by law and missed such breaks. 7 10 21. At all times relevant herein, Plaintiff was required to bear the expense of Plaintiff s use personal cell phone, as well as uniforms which consisted ofapparel and accessories of distinctive design or color / protective footwear (specific clothing, safety boots/shoes, etc.), which Plaintiffwas required to wear at all times, due to the nature of Plaintiffs job duties, in order to protect Plaintiff from workplace 11 hazards that could cause injury or illness and to further minimize exposure to a variety of hazards, while 12 performing Plaintiffs duties for the Defendant. Plaintiff did not receive adequate and proper 13 compensation from Defendant to reimburse Plaintiff for the above out of pocket expenses he incurred. Plaintiff was also required by Defendant to maintain and launder the items of clothing/ uniforms, for 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant's business purposes. Defendant did not indemnify Plaintiff in connection with these necessary expenditures. 22. At all times relevant herein, flowing from its failures with respect to the compensation and indemnification ofPlaintiff, as alleged above, Defendant has regularly failed to timely issue complete and accurate wage statements to the Plaintiff. Likewise, Defendant has consistently failed to make regular payment of wages to Plaintiff on a designated pay date and further failed to timely remit final payments in full to Plaintiff who no longer works for Defendant. 23. Plaintiff is informed and believes, and on such information and belief alleges that Defendant's violations of the Civil Code, Labor Code and the applicable Wage Order and their scheme to lower payroll costs as alleged herein constitute unlawful business practices because these actions were done in a systematic manner over a period of time to the detriment ofPlaintiff and other employees. The acts complained of herein occurred within the last four (4) years preceding the filing of this complaint and include, but are not limited to, failure to (i) pay proper wages including that of overtime wages, "all hours worked", "off-the-clock" hours, and payment of minimum wages at the rate designated by statute Plaintiffs Complaint Eot Damages 1 or by contract; (ii) indemnify and reimburse Plaintiff for expenses incurred in discharging duties; (iii) provide all required code-compliant meal and rest breaks; (iv) pay timely wages upon termination of 3 employment; (v) maintain accurate records and provide and maintain accurate itemized wage statements; and (vi) prevent adverse employment actions, including discrimination and retaliation against Plaintiff for engaging in protected activities, i.e., reporting and making complaints to the Defendant for work place safety and health. 24. At all times relevant hereto, and during the entire period of Plaintiff s employment with Defendant, Defendant routinely gave Plaintiff assignment that required additional hours - to complete. 8 10 Plaintiffroutinely worked additional overtime hours per day/week without any remuneration for all hours worked and at the designated rate, including no overtime pay and without proper breaks and reimbursements for business expenses, among other things. 25. Plaintiff is informed and believes and on that basis alleges that California law protects the 12 right of individuals to seek, obtain, and hold employment without discrimination and further prohibits 13 discrimination against a person in the terms, conditions, or privileges of employment on the basis of an employee's engaging in protected activities, among other things. 15 26. At all relevant times, Plaintiff suffered disparate treatment and was terminated because of the intolerable conditions created by Defendants. 17 27. Plaintiff is a member of several protected classes. Plaintiff suffers a medical 18 condition/physical disability and engaged in protected activities/complained about working conditions. 19 28. Plaintiff is informed and believes that Defendant engaged in a pattern and practice of 20 discrimination. The policies of Defendants which were neutral on its face resulted in a disparate impact on the class of employees with medical conditions/disabilities/need for accommodations and who engaged in protected activities/complained about working conditions, Plaintiff herein, who had medical conditions/physical disabilities and engaged in protective activities, amongst other reasons. Defendant's discrimination and pre-textual termination on the basis of engaging in protected activities/complaining about working conditions, medical conditions/physical disabilities and need for accommodations, 25 violated California's Fair Employment and Housing Act (FEHA) [Cal. Gov. Code ( 12940(a)]. 26 29. During the period ofhis employment with Defendant, Plaintiff sustained multiple injuries 27 to his left knee while performing his regular job duties. The first incident happened on or about May 13, 28 Plaintiffs Complaint for Damages 2019, when Plaintiff fell on a cement ground while carrying tree branches and debris injuring his left knee. He suffered extensive injury that required medical treatments and need for accommodation. The second incident happened on or about August 17, 2019, when Plaintifffell at work suffered another injury to the same knee, which worsened his condition. Due to each of the above injuries, Plaintiff was left with an impairment and physical disability which limited his ability to perform certain tasks and required 6 medical treatments and a reasonable accommodation. Immediately after each incident, Plaintiff duly informed Defendant through supervisors/ managers Fernando Avila and Bill and provided doctor's notes 7 regarding the above injuries and medical condition, and physical limitation. Plaintiff requested, each 8 time, per his doctor's instructions, that he be provided with reasonable accommodation. Defendant did 10 not provide Plaintiff with a reasonable accommodation, including modified work duties, modified schedule, personal protective equipment and additional helper, among other things, as requested. Rather 11 than providing Plaintiff with reasonable accommodation or modified work, Defendant required Plaintiff 12 to return to work, each time, and perform ahenuous tasks involving heavy lifting, standing on his feet for 13 long hours, continue to work without proper guidelines and right tools and equipment and without adequate personal protective equipment, working long hours without proper breaks despite his disability and need for modified work/ reasonable accommodation which further exacerbated Plaintiff s condition. 16 17 18 19 20 21 22 23 Furthermore, Defendant refused to allow Plaintiff to take time off to receive proper medical treatments for his injuries after each incident. Defendant discriminated against Plaintiff and treated him less favorably due to his medical condition, physical disability and for seeking a reasonable accommodation, amongst other reasons. Defendants perceived Plaintiff as disabled, retaliated against him and ultimately fired him on or about September 25, 2019. 30. Rather than engaging in a good faith interactive process with Plaintiff to explore the alternatives to accommodate Plaintiff s disability/ medical condition, Defendant and Fernando Avila and Bill discriminated against Plaintiff treated Plaintiff less favorably due to Plaintiff s work restrictions, disability and medical and health condition and for exercising Plaintiffs rights to use/request medical leave and for seeking modified work/ reasonable accommodation, among other things. Plaintiffs 25 26 27 28 employment with Defendant ultimately ended on or about September 25, 2019, when he was fired by Defendant. 31. At all times relevant hereto, and prior to PlaintifFs termination, Defendant, by and through Plaintiff's Complaint for Damages Plaintiff's supervisors/ managers, including Fernando Avila and Bill, directly or acting within the scope of employment and within authority given by Defendant - as PlaintifPs managers/ supervisors- 3 continuously and repeatedly harassed Plaintiffand/ or caused the harassment to continue against Plaintiff creating a hostile work environment on the basis of Plaintiff s medical condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions, among other things, provided by Defendant, including: Defendant's failure to pay all wages at the proper rate, including the required overtime rate, and at the legal rate of pay designated by the 7 statute/ contract; Defendant's failure to provide all required code-compliant meal and rest breaks but yet 8 deducting hours for the breaks which were not taken; Defendant's failure to reimburse Plaintiff for 9 business expenses, etc. 10 32. Plaintiff further alleges, on informafion and belief, that many of the actions committed by 11 Defendant, through its authorized agents, including Fernando Avila and Bill, as alleged herein, were 12 motivated by bias and for personal gratification or bigotry because of Plaintiff s medical 13 condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions, among other things. Such harassment and differential treatment included, but were not limited to: 16 17 18 20 21 22 23 24 25 26 27 ~ ignoring Plaintiffs complaints about his resulting physical disability and work resnictions caused by Plaintiff s medical condition/disability; ~ denying Plaintiff s requests for adequate medical treatments, work accommodations, modified schedule, additional helpers knowing that Plaintiff suffered fiom a medical condition/disability and the aggravating effect it had on Plaintiff s health and medical condition resulting in Plaintifps symptoms to get worse; ~ questioning the extent of Plaintiffs medical condition/disability and need for medical treatments and accommodation; ~ assigning Plaintiffmore loads ofwork without providing adequate number of staffing and manpower; ~ denying Plaintiff equal pay and other employment benefits that Defendant offered to other employees who were in same position but did not suffer a medical condition and/ or did not Plaintiffs Complaint fot Damages 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 use/ request to use disability related accommodation and treating Plaintiff differently and with hostility because ofPlaintiff s protected traits/characteristics; ~ ignoring Plaintifps complaint about the unsafe and hazardous work condition created by the Defendant and the fact that the work condition exposed Plaintiff and other einployees, to the high risk of injuries and that it was unsafe and unhealthy to work; ~ requiring Plaintiff to work excessive work load and extra overtime hours - on a daily basis- without adequate compensation for those additional hours; ~ depriving Plaintiff of adequate breaks by forcing Plaintiff to work through lunch and rest breaks, without given adequate time to take required breaks and yet deducting time from Plaintiffs daily hours for the breaks Plaintiffwas unable to take; ~ assigning Plaintiff with excessive tasks /workloads, knowing that Plaintiffneeded help and could not perform the amount of duties Plaintiffwas given; ~ threatening Plaintiffwith termination for invoking Plaintiffs rights to report/ oppose/ complain about the work condition and Defendant's unlawful discriminatory policies and practices in operation of its business and further Plaintiffs refusal to perform work which Plaintiff reasonably believed to be unlawful, and in violation of California laws and regulations pertaining to health and safety issues that affect the public and their safety, set forth within California Department of Health and Safety pertaining to Defendant's operation of its business facility regarding the health and safety of the injury prevention and the standard or practices that could expose the employees and public to an unhealthy and unsafe workplace condition; ~ persistent actions by Defendant, more specifically Fernando Avila and Bill, during the relevant time period, and intensifying in frequency, in shunning, demeaning and belittling Plaintiff, conveying hostile messages to Plaintiffbased on PlaintifF s medical condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions and contributed to the hostile working environment, when Plaintiffwas assigned excessive worldoads, underpaid, constantly taunted and ridiculed by the Defendant, more specifically, Fernando Avila and Bill doing things such as intennonally over working/"jam-packing" PlaintifF s schedule, refusing to allow Plaintiff time to take breaks, drink water/coffee, use the restroom, etc.„'ernando Avila and Bill would Plaintiff's Complaint for Damages laugh and make sarcastic comments to Plaintiff, telling Plaintiff that nHe (Plaintiff), complains too much", nyou bother us too much" and essentially ignoring his repeated requests and giving him the run around and dismissing Plaintiff's condition and need for modified work (that Plaintiff was not really injured and could perform the workload/tasks given to him by Defendant), as well as other rude/disrespectful remarks/comments/gestures, amongst other things . 33. Plaintiff alleges, on information and belief, that Fernando Avila and Bill articulated these comments aimed at Plaintiffbecause they were associated with Plaintiff s status who suffered a disability/ 8 limitation/ medical condition and used/ requested to use disability-related accommodation and related 10 medical treannents, as well as for engaging in protected activities/complaining about work conditions, among other things; Fernando Avila and Bill regularly taunted Plaintiff and made the above ridiculing 11 actions/comments on an ongoing basis, continually talked about Plaintiff, shunning Plaintiff and making 12 humiliating gestures and comments about and towards Plaintiff. Fernando Avila and Bill also persistently 13 refused to respond properly to Plaintiff s greetings, ignored Plaintiff; walked past Plaintiff, and failed to 14 15 16 17 18 19 20 21 22 25 acknowledge Plaintiff in a civilized manner; Defendant, more specifically Fernando Avila and Bill frequently made demeaning facial expressions and gestures toward Plaintiff, made demeaning and ridiculing comments to Plaintiff, belittling PlaintifTs job performance, and reprimanding Plaintiff conveying a hostile message and contributing to the hostile work environment. Defendant's chain of conduct occurring during the above period of time as described above, was so severe and pervasive that it amounted to a continuous pattern that altered the condition of Plaintiff's employment and created an abusive and hostile work environment, which was intolerable for Plaintiff to endure rendering the employment condition an abusive, intolerable and hostile work environment - and constituted harassment. The above work condition remained in effect up to and including PlaintifFs last date of employment with Defendant. PlainnA's employment with Defendant was ultimately terminated on or about September 25, 2019, when he was fired by Defendant. 34. Plaintiff is informed and believes, and on that basis alleges, that Defendant knew or should have known of the discrimination, harassment, unsafe and hostile work environment, alleged herein 26 27 above, that Plaintiff endured and was subjected to during the relevant times, because Plainnff repeatedly objected to and made numerous complaints to Defendant, directly and/ or through Defendant's authorized Plaintiffs Complaint for Damages 10 agents, and made requests for the Defendant to take corrective action, to no avail. 35. Plaintiff is informed and believes, and thereon alleges, Defendant Fernando Avila and Bill was engaged in conducts during the relevant time period, and intensifying in frequency, as alleged herein, for personal gratification or bigotry, and was motivated by bias because of PlaintiA" s medical condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions. Plaintiff is further informed and believes, and on that basis alleges that acts ofdiscrimination by Fernando Avila and Bill set forth herein provide evidentiary support for Plaintiff s harassment claim by establishing discriminatory animus on the part ofFernando Avila and Bill, thereby permitting the inference that rude comments or behavior by Fernando Avila and Bill was similarly motivated by discriminatory animus. 36. As a result of the foregoing, the social environment of the workplace became intolerable 11 and the harassment communicated an offensive message to Plaintiff. 12 37. Plaintiff opposed and reported the above unlawful practice and abusive misconducts to 13 the Defendant through supervisors / managers Fernando Avila and Bill and brought these concerns to the Defendant about the situation, which angered the Defendant. Plaintiff asked Defendant to look into this 15 16 17 18 19 20 21 22 23 matter and take corrective actions. Defendant ignored PlaintifPs complaints and failed to take any corrective actions -and instead retaliated against Plaintiff. Plaintiff alleges, on information and belief, that Plaintiffwas targeted for discrimination by Defendant despite the fact that Plaintiff had been a loyal and hardworking employee. 38. Plaintiff further alleges that Plaintiff was subject to discrimination and retaliation for refusing to engage in conducts that violated fundamental public policy, to wit, Defendant retaliated against Plaintiff and terminated Plaintiff and/ or caused the employment to be terminated, in part, due to: (i) PlaintiA's medical condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions; (ii) Plaintiff s actions in reporting Plaintiff s medical condition and resulting work restrictions to Defendant and requesting modified work,24 reasonable accommodation and adequate medical treatments [FEHA] and for engaging in protected 25 activities use/request medical leave under CFRA; (iii) opposing Defendant's employment practices that 26 Plaintiff reasonably suspected to be unlawful and discriminatory conduct at the workplace on the basis 27 of age, national origin, disability, medical condition or use and/ or request for medical leave and 28 Plaintiff s Complaint fos Damages 12 reasonable accommodation/ modified work for disability related limitation [violation of Labor Code sections/wage and hour law and FEHA] and for engaging in protected activities; (iv) Plaintiff s action in invoking Plaintiff's rights to make inquiries into Plaintiffs payroll records and seeking payment of unpaid earned wages for all hours worked including all overtime due to Defendant' unlawful method of meal and rest break policies, amongst other reasons [ violation of Labor Code Section/ wage and hour law]; (v) opposing Defendant's employment practices which requires their employees, such as Plaintiff, to work long hours, and overtime hours a day at a rate less than the rate designated by the Statute and/ or 7 by contract as promised and without enumeration for all overtime [ violation of Labor Code Section/ 8 wage and hour law]; (vi) PlaintifFs complaints about unsafe and unhealthy work conditions and expression of concerns to Defendant regarding risk of exposure to injuries due to unsafe and unhealthy 10 conditions at work and refusing to perform work under such conditions created by Defendant's violation 11 ofhealth and safety law [Title 8 of the California Code of Regulations, California Labor Code Ii6400, et 12 13 16 17 18 19 20 seq. and the standards set forth under California Occupational Safety and Health Administration (Cal/ OSHA)], in violation of California Labor Code CIIi232.5, 6310, 6311, 6399.7; and (vii) refusing to engage in conducts that violated fundamental public policy, to wit, a private business, herein, which is in effect provides goods and services to public to be healthy, safe and free from hazard as evidenced by, but not exclusive of, the regulations found in California Health and Safety Code, Cal/DOSHA. 39. The actions and continuing course of the aforesaid conduct amounted to a systematic policy of discrimination and harassment, thereby constituting a continuing violation actionable under, among other things, Fair Employment Housing Act (FEHA) which reflects a fundamental public policy against discrimination in employment on account of disability/ medical condition and protected traits. 21 22 23 24 25 FIRST CAUSE OF ACTION Failure to Pay Overtime Wages (Violation of Labor Code (j(j 510, 1194, 1198 and IWC Wage Order "Hours and Days of Work" Section) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 40. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and 27 every paragraph above, as though fully set forth herein. 28 41. At all relevant times hereto, Plaintiffwas a non-exempt employee ofDefendant under the 13 Plaintiffa Complaint for Damages laws of the State of California within the meaning of the Labor Code and Wage Order. 42. Labor Code g 510 provides in pertinent part: "Eight hours of labor constitutes a day' 3 work. Any work in excess of 8 hours in one workday and any work in excess of 40 hours in any one 4 workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. 6 Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day 7 of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an 8 employee." 43. Labor Code iI'1198 states: "The maximum hours of work and the standard conditions of 10 labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor 11 for employees. The employment ofany employee for longer hours than those fixed by the order or under 12 conditions of labor prohibited by the order is unlawful." 13 44. The "Hours and Days of Work" section of the applicable Wage Order provides as a standard of conditions of labor that employees be paid at least the applicable overtime wage overtime hours suffered or permitted to work respectively. 16 45. Labor Code f 1194 states "Notwithstanding any agreement to work for a lesser wage, any 17 employee receiving less than the legal minimum wage or the legal overtime compensation applicable to 18 the employee is entitled to recover in a civil action the unpaid balance of the full amount of his minimum 19 wage or overtime compensation, including interest thereon, reasonable attorney's fees and costs of suit." 20 46. Defendant's uniform practices and treatments of Plaintiff required that Plaintiff to regularly work overtime. At all times relevant herein, the tasks that Plaintiff was to perform on a daily basis, required additional hours -well beyond eight hours per day (8 hrs/day)/ forty hours per week (40 hrs/wk.) - to complete. Plaintiff routinely worked additional overtime hours per day/week without any remuneratiori for "all hours worked", including no compensation at overtime rate of pay in connection with all overtime hours worked. Defendant had the ability to monitor and did monitor the hours worked 25 by Plaintiff, and, therefore, knew or should have known that overtime hours were being worked and these 26 hours were going uncompensated. 27 47. Through Defendant's conduct during the applicable statutory period including, but not 28 PlaintifPs Complaint for Damages 14 10 limited to, the conduct set forth herein, including that alleged on information and belief, Defendant failed and refused to pay Plaintiffall overtime compensation for all overtime hours worked as and in the manner required by California law, all in violation of Labor Code tjtj 510 and 1198. 48. As a direct result of Defendant's violations alleged herein, Plaintiff has suffered and continues to suffer substantial losses including, but not limited, to the use and enjoyment of such wages, lost interest on such monies and expenses and attorney's fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to their respective damage in amounts according to proof at trial and within the jurisdictional limitations of this Court. 49. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those ll permitted pursuant to the Labor Code tjtj510, 1194, 1198 and Code of Civil Procedure tjtj 1021.5. The 12 13 14 15 16 17 18 exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the Court. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. SECOND CAUSE OF ACTION Failure to Pay Minimum Wages and Secret Underpayment of Wages (Violation ofLabor Code tj(223,1194.2, 1197, 1198 and IWC Wage Order "Hours and Days of Work" and "Minimum Wage" Sections) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 20 21 22 23 24 25 26 27 28 50. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 51. At all relevant times hereto, Plaintiffwas a non-exempt employee ofDefendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 52. Labor Code ) 223 provides that where any statute or contract requires an employer to maintain the designated wage scale, it shall be unlawful to secretly pay a lower wage while purporting to pay the wage designated by statute or by contract. 53. Labor Code ( 1197 states "The minimum wage for employees fixed by the commission is the minimum wage to be paid to employees, and the payment of a less wage than minimum wage so fixed is unlawful." plaintifps Complaint for Damages 54. Labor Code ) 1198 states: 'The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for etnployees. The employment ofany employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful." 55. The "Minimum Wages" section and the "Hours and Days of Work" section of the applicable Wage Order provides as a standard of conditions of labor that employees be paid at least the 6 applicable minimum wage and overtime wages for regular time and overtime time suffered or permitted 7 to work respectively. 56. Through Defendant's conduct during the applicable statutory period including, but not limited to, the conduct set forth herein, including that alleged on information and belief, Defendant 10 directly and/or indirectly paid Plaintiff less than ininimum wage for all times suffered or permitted to 11 work for Defendant, secretly underpaid wages, and required Plaintiff to pay for certain expenses and 12 employment-related costs, such as uniforms, among other things, that are the responsibility of Defendant 13 to pay. Defendant further failed to satisfy minimiun wage requirements and secretly paid a lower wage while purporting to pay the wage at the rate designated by statute or by contract when it failed to pay the Plaintiff for "all hours worked" and "off-the-clock" work which was incidental to Plaintiff s daily duties 16 17 19 20 21 22 and responsibilities and consequently underpaid Plaintifffor the actual hours Plaintiff worked in violation of Labor Code $ ) 223, 1197, 1198 and the applicable Wage Orders. 57. Labor Code I'l 1194 states "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of his minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees and costs of suit." 58. At all relevant times hereto, Defendant was/is Plaintiff s employer and/or person acting on behalf of Defendant within the meaning of Labor Code, who violated or caused to be violated the relevant sections of the Labor Code or any protdsion regulating hours and days of work in any Order of24 25 26 27 the Industrial Welfare Commission and, as such, is subject to payment of the underpaid wages and penalties to Plaintiffwho was affected by Defendant's violation of this section. 59. California Labor Code I'l 1194.2(a) provides: 28 In any action under Section 98, 1193.6, 1194, or 1197.1 to recover 16 Plaintiff s Complaint fot Damages wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. 10 12 60. As a result of Defendant's failure to pay Plaintiff minimum wages for all hours worked, Defendant owes Plaintiff all unpaid minimum wages due, plus liquidated damages in an amount equal to the minimum wages owed, plus interest thereon, pursuant to Labor Code ) 1194.2 61. As a direct result of Defendant's violations alleged herein, Plaintiff has suffered and continues to suffer, substantial losses including but not limited to the use and enjoyment of such monies, lost interest on such monies and expenses and attorney's fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to Plaintiff's damage in the amounts according to proof at trial and within the jurisdictional limitations of this Court. 62. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, 13 interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those 14 permitted pursuant to the Labor Code tati 223, 510, 1194, 1194.2, 1197, 1198 and Code ofCivil Procedure 15 16 17 18 19 20 21 22 23 24 26 $ 1021.5. The exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdicfional limits of the Court. WHEREFORE, Plaintiffprays for judgment as hereinatier set forth. /// /// THIRD CAUSE OF ACTION Failure to Indemnify for Expenses and Losses in Discharging Duties (Violation ofLabor Code tj g 2802) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 63. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 64. At all relevant times hereto, Plaintiff is/was a non-exempt employee of Defendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 27 28 65. Labor Code ti 2802(a) provides that "[a]n employer shall indemnify his or her employee plaintiffs Complaint for Damages 17 for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time ofobeying the directions, believed them to be unlawful." 66. Pursuant to Labor Code II 2804 any contract or agreement, express or implied, made by any employee to waive the benefits of Section 2802 or any part thereof, is null and void. 67. At all times relevant herein, Plaintiff was required to bear the expense of Plaintiffs use personal cell phone, as well as uniforms which consisted of apparel and accessories of distinctive design 7 or color / protecnve footwear (specific clothing, safety boots/shoes, etc.), which Plaintiffwas required to 8 wear at all times, due to the nature of Plaintiffs job duties, in order to protect Plaintiff from workplace 10 hazards that could cause injury or illness and to further minimize exposure to a variety of hazards, while performing Plaintiffs duties for the Defendant. Plaintiff did not receive adequate and proper 11 compensation from Defendant to reimburse Plaintiff for the above out of pocket expenses he incurred. 12 Plaintiff was also required by Defendant to maintain and launder the items of clothing/ uniforms, for 13 Defendant's business purposes. Defendant did not indemnify Plaintiff in connection with these necessary expenditures. 15 68. Through Defendant's conduct during the applicable statutory period including, but not limited to, the conduct set forth herein, including that alleged on information and belief, Defendant 17 required Plaintiff to pay for certain expenses and employment-related costs that are the responsibility of 18 Defendant to pay and failed to indemnify Plaintiff as required by Labor Code f 2802. 19 69. Any agreement or contract made by Plaintiff to waive the benefits of Labor Code I'l 2802 20 is null and void. 21 70. Labor Code II 2802(c) states that "[f]or purpose of [2802], the term 'necessary expenditures or losses'hall include all reasonable costs, including, but not limited to attorney's fees incurred by the employee enforcing the rights granted by [2802]." 71. As a direct result of Defendant's violations alleged herein, Plaintiff has suffered and continues to suffer, substantial losses related to failure to be indemnified for the expenses and losses, 25 including the use and enjoyment ofsuch monies, lost interest on such monies and expenses and attorney's 26 fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to their 27 respective damage in amounts according to proof at trial and within the jurisdictional limitations of this 28 plaintiffs Complaint for Damages lg Court. 2 72. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to unpaid balance of the indemnification from Defendant's violations, interest thereon permitted by Labor Code $ 2802(b), recovery ofpenalties, reasonable attorney's fees and costs of suit, injunctive relief, and any other permitted remedies including those permitted pursuant to the Labor Code $ Ii 2802, 2804 and Code ofCivil Procedure II 1021.5. The exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the 7 Court. 8 WHEREFORE, Plainfiff prays for judgment as hereinafter set forth. 9 10 12 FOURTH CAUSE OF ACTION Failure to Provide Meal Periods (Violation ofLabor Code (]II 226.7, 512, and IWC Wage Order "Meal Periods" Section) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 13 73. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and 14 every paragraph above, as though fully set forth herein. 15 74. At all relevant times hereto, Plaintiff is/was a non-exempt employee of Defendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 17 75. Labor Code I[ 512 provides "[a]n employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less 18 than 30 minutes, except that if the total work period per day of the employee is no more than six hours, 19 the meal period may be waived by mutual consent of both the employer and employee. An employer 20 may not employ an employee for a work period of more than 10 hours per day without providing the 21 22 employee with a second meal period ofnot less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and 23 the employee only if the first meal period was not waived." 24 76. The "Meal Period" section of the applicable Wage Order provides as a standard of 25 condition of labor that an employee working more than five hours be provided a meal period ofnot less than 30 minutes, except when a work period ofnot more than six hours will complete the day's work and the meal period is waived by mutual consent of the employee and employer. 28 77. Labor Code It 226.7 provides n[a]n employer shall not require an employee to work during i9 plaintifps Complaint for Damages a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health." 78. Pursuant to Labor Code I'l 226.7(c) and "Meal Period" section of the applicable Wage Order, if an employer fails to provide an employee a meal period in accordance with a state law, the 6 employer shall pay the employee one hour ofpay at the employee's regular rate ofcompensation for each workday that the meal period is not provided. 7 10 79. Through Defendant's conduct during the applicable statutory period including, but not limited to, the conduct set forth herein, including that alleged on information and belief, Defendant lacked a policy which directly and/or indirectly relieved Plaintiffofall duty for uninterrupted 30-minute periods at all times suffered or permitted to work for Defendant, and, in fact, had practices and procedures that 11 impeded Plaintiff from taking such meal breaks. At all times relevant hereto, Plaintiff has not been 12 allowed all meal breaks. 13 14 15 16 17 18 19 20 21 22 23 24 80. As a direct result of Defendant's violations alleged herein, Plaintiff has suffered and continue to suffer substantial losses including but not limited to the use and enjoyment of such wages, lost interest on such monies and expenses and attorney's fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to their respective damage in amounts according to proof at trial and within the jurisdictional limitations of this Court. 81. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those permitted pursuant to the Labor Code «I 226.7,510, 512 and Code of Civil Procedure Ci 1021.5. The exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the Court. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 25 26 27 FIFTH CAUSE OF ACTION Failure to Provide Rest Periods (Violation of Labor Code Ii 226.7 and IWC Wage Order "Rest Periods" Section) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 28 82. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and 20 Plaintiffa Complaint fot Damages 10 every paragraph above, as though fully set forth herein. 83. At all relevant times hereto, Plaintiff is/was a non-exempt employee of Defendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 84. The "Rest Period" section of the applicable Wage Order provides as a standard of condition of labor employers must authorize and permit nonexempt employees to take a rest period at the minimum rate of a net ten (10) consecutive minutes for each four (4) hour work period, or major I'taction thereof. 85. Labor Code $ 226.7 provides "[a]n employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health." 86. Through Defendant's conduct during the applicable statutory period including, but not 12 limited to, the conduct set forth herein, including that alleged on information and belief, Defendant lacked 13 a policy which directly and/or indirectly authorized and permitted Plaintiff to take rest periods at all times suffered or permitted to work for Defendant, and, in fact, had practices and procedures that impeded 15 16 Plaintiff from taking such rest breaks. At all times relevant hereto, latiff ha not been allowed all rest breaks. 17 18 19 20 21 22 23 24 25 26 27 28 87. Pursuant to Labor Code tj 226.7(c) and "Rest Period" section of the applicable Wage Order, if an employer fails to provide an employee a rest period in accordance with a state law, the employer shall pay the employee one hour ofpay at the employee' regular rate ofcompensation for each workday that the rest period that the employer failed to authorize or permit. 88. As a direct result of Defendant's violations alleged herein, Plaintiff has suffered and continues to suffer substantial losses including but not limited to the use and enjoyment of such wages, lost interest on such monies and expenses and attorney's fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to their respective damage in amounts according to proof at trial and within the jurisdictional limitations of this Court. 89. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those Plaintiffs Complaint for Damages 21 permitted pursuant Labor Code )II 226.7, 510 and Code of Civil Procedure ) 1021.5. The exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the Court. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. SIXTH CAUSE OF ACTION Failure to Provide and Maintain Accurate Itemized Wage Statements (Violation of Labor Code 8 226, 1174, 1198 and IWC Wage Order "Records" Section) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 10 ll 90. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 91. At all relevant times hereto, Plaintiff is/was a non-exempt employee of Defendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 12 13 14 15 16 92. Labor Code Ii 226(a) states in pertinent part "Every employer shall, semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee's wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing showing": Gross wages earned; 17 ii. Total hours worked by the employee, except for any employee whose compensation is 18 solely based on a salary and who is exempt Irom payment ofovertime under subdivision (a) of Section 19 515 or any applicable order of the Industrial Welfare Commission; 20 21 22 23 24 25 26 27 28 iii. the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; iv. All deductions; v. Net wages carne; vi. The inclusive dates of the period for which the employee is paid; vii. The name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, viii. The name and address of the legal entity that is the employer; Plainnffs Complaint for Damages 22 ix. All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee. The deductions made &om payment of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement and the record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California. 93. Labor Code ti 1174 requires employers to maintain records containing the information specified in $ 1174 including but not limited to employees'otal hours worked, an accurate hourly rate, accurate computation ofnet wages and when employees begin and end each work period. 94. Labor Code (i 1198 states: 'The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor 11 for employees. The employment ofany employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawfuh" 12 95. The "Records" section of the applicable Wage Order provides as a standard of condition 13 14 15 of labor that accurate records be maintained by the employer including but not limited to the total hours worked in the payroll period and applicable rates of pay. 96. Labor Code CI 226(e)(1) states "An employee suffering injury as a result ofa knowing and 16 intenfional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all 17 actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred 18 dollars ($ 100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's 20 21 fees." 97. Labor Code g 226(e)(2)(A) provides that an employee is deemed to suffer injury for 22 23 24 26 27 28 purposes of Section 226(e) of the Labor Code if the employer fails to provide a wage statement. Furthermore, pursuant to Labor Code (i 226(e)(2)(B), an employee is deemed to suffer injury for purposes of Section 226(e) of the Labor Code if the employer fails to provide accurate and complete information as required by any one or more items (1) to (9), inclusive, of subdivision (a) and the employee cannot promptly and easily determine from the wage statement alone one or more of the items specified in Labor Code (i 226(e)(2)(B)(i)-(iv). 98. Labor Code II 226(h) states "An employee may also bring an action for injunctive relief Plaintiffs Complaint for Damages 23 to ensure compliance with this section, and is entitled to an award of costs and reasonable attorney's fees." 3 99. Through Defendant's conduct during the applicable statutory period including, but not limited to, the conduct set forth herein, including that alleged on information and belief, Defendant knowingly and intentionally failed to provide accurate itemized wage statements reflecting, among other things, accurate number for "all hours worked", accurate gross wages earned, accurate hourly rate, accurate method ofcomputation for net wages paid to Plaintiff, and failed to maintain the records required 7 by Labor Code IiIi 226(a), 1174 and 1198. 8 100. Plaintiff suffered injuries as a result of Defendant's intentional and knowing failure to 10 provide to Plaintiff and maintain the writings required by Labor Code I'l 226(a), as set forth herein. Defendant's failure to provide and maintain accurate statements, as alleged herein, left Plaintiff, on 11 information and belief, without the ability to know, understand and question the hours worked and wage 12 earned and due. 13 101. As a direct result ofDefendant's violations as set forth hereinabove, Plaintiffhas suffered and continues to suffer, substantial losses related to the use and enjoyment of such wages, as the result ofDefendant's failure to maintain records in compliance with the Labor Code and Wage Order including but not limited to the expenses and attorney's fees and costs in seeking to compel Defendant to fully 17 perform its obligation under state law, all to Plaintiff's damage in the amount according to proof at trial 18 and within the jurisdictional limitations of this Court. 19 102, Plaintiff seeks to recover in a civil action to the fullest extent permissible all available 20 remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, injunctive relief, interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those permitted pursuant to the Labor Code «i ij226 et seq.,'174, 1197, 1198 and Code of Civil Procedure ) 1021.5. The exact amount of the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the Court. 25 26 27 28 WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. SEVENTH CAUSE OF ACTION Failure to Pay Wages Due Upon Termination (Violation of Labor Code 8 201, 202, 203 and IWC Wage Order) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) Plaintiffs Comphint for Damages 24 103. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 104. At all relevant times hereto, Plaintiff is/was a non-exempt employee of Defendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 105. Labor Code 4'l 201(a) states "If an employer discharges an employee, the wages earned 6 and unpaid at the time of discharge are due and payable immediately." 106. Labor Code $ 202(a) states "If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 8 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting. Notwithstanding any 10 other provision of law, an employee who quits without providing a 72-hour notice shall be entitled to 11 receive payment by mail ifhe or she so requests and designates a mailing address. The date of the mailing 12 shall constitute the date ofpayment for purposes of the requirement to provide payment within 72 hours 13 of the notice ofquitting." 14 15 16 17 18 19 20 21 22 107. At all times relevant herein, flowing from its failures with respect to the compensation and indemnification ofPlaintiff, as alleged above, Defendant has regularly failed to timely issue complete and accurate wage statements to the Plaintiff. Likewise, Defendant has consistently failed to timely remit final payments in full to Plaintiff who no longer works for Defendant. 108. Through Defendant's conduct during the applicable statutory period including, but not limited to, the conduct set forth herein, including that alleged on information and belief, Defendant willfully failed to provide Plaintiffwhose employment with Defendant ended on or about September 25, 2019, with all wages due and owing, including minimum wages, wages for "all hours worked", overtime wages, reimbursement ofmoney spent for necessary expenses and cost, within the time requirements set forth in Sections 201(a) and 202(a) of Labor Code. 109. Labor Code ti 203(a) states, in relevant part, "Ifan employer willfully fails to pay, without abatement or reduction, in accordance with sections 201, 201.3, 201.5, 202, and 205.5, any wages of an 25 employee who is discharged or who quits, the wages of the employee shall continue as a penalty Irom 26 27 28 the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days." Plaintiff's Complaint for Damages 25 110. As a direct result of Defendant's violations as set forth hereinabove, Plaintiffhas suffered and continues to suffer, substantial losses related to the use and enjoyment of such wages, as the result ofDefendant's failure to maintain records in compliance with the Labor Code and Wage Order including but not limited to the expenses and attorney's fees and costs in seeking to compel Defendant to fully perform its obligation under state law, all to their respective damage in amounts according to proof at trial and within the jurisdictional limitations of this Court. 111. Plaintiff seeks to recover in a civil action to the fullest extent permissible all available remedies including but not limited to all monies that Defendant should have lawfully paid, penalties, 8 interest, reasonable attorney's fees and costs of suit, and any other permitted remedies including those permitted pursuant to the Labor Code $203 and Code of Civil Procedure It 1021.5. The exact amount of 10 11 12 13 the applicable penalties is an amount to be shown according to proof at trial and within the jurisdictional limits of the Court. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 14 15 16 EIGHTH CAUSE OF ACTION Unfair Business Practice (Business & Professions Code f$ 17200, et seq.) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 17 18 19 20 21 22 23 24 112. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 113. Business & Professions Code 4i 17200 states: "As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, decepbve, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code." 114. Defendant has consistently failed to fully compensate and indemnify the expenses of the Plaintiff - in order to gain an unfair workforce advantage. Defendant knew or should have known that such policies and practices clearly violate the Labor Code and IWC Wage Orders and run adverse to 26 public policy. 27 28 115. At all times relevant hereto, and during the entire period of Plaintiffs employment with Defendant, Defendant routinely gave Plaintiff assignment that required additional hours - to complete. Plaintiff's Complaint got Damages 26 Plaintiffroutinely worked additional overtime hours per day/week without any remuneration for all hours worked, including no overtime pay and without proper breaks and reimbursements for business expenses, among other things. 116. Plainfiff is informed and believes, and on such information and belief alleges that Defendant's violations of the Civil Code, Labor Code and the applicable Wage Order and their scheme to lower payroll costs as alleged herein constitute unlawful business practices because these actions were done in a systematic manner over a period of time to the detriment ofPlaintiff and other employees. The 7 acts complained of herein occurred within the last four (4) years preceding the filing of this complaint 8 and include, but are not limited to, failure to (i) pay proper wages including that of overtime wages, "all 9 hours worked", "off-the-clock" hours, and payment ofminimum wages at the rate designated by statute 10 or by contract; (ii) indemnify and reimburse Plaintiff for expenses incurred in discharging duties; (iii) 11 provide all required code-compliant meal and rest breaks; (iv) pay timely wages upon termination of 12 employment; (v) maintain accurate records and provide and maintain accurate itemized wage statements; 13 and (vi) prevent adverse employment actions, including discrimination and retaliation against Plaintiff for engaging in protected activities, i.e., reporting and making complaints to the Defendant for work place safety and health. 16 117. Through Defendant's conduct during the applicable statutory period including, but not 17 limited to, the conduct alleged herein as set forth herein, including that alleged on information and belief 18 Defendant has engaged in business practices in California by practicing, employing, and utilizing, the 19 employment practices outlined in the preceding paragraphs all in violation of California law and the 20 applicable Industrial Welfare Commission Wage Orders. Defendant's use of such practices constitutes an unfair business practice, unfair competition, and provides as unfair advantage over Defendant's competitors doing business in the State of California that comply with their obligations to properly provide employment conditions in compliance with the law and pay employees for all earned wages and compensation as required by law. 25 118. Plaintiff is informed and believes, and on that basis alleges that, at all times herein mentioned, Defendant engaged in the above-mentioned acts ofunlawful, deceptive, and unfair business 26 practices prohibited by Business and Professions Code IlI'I 17200 et seq., including those set forth in the 27 preceding paragraph, thereby depriving Plaintiff the minimum working condition standards and 28 Plaintiff's Complaint for Damages 27 conditions due, including those under Labor Code and Wage Order. 2 119. As a result of Defendant's unfair competition and unlawful business practice, as alleged herein, Plaintiff ha suffered injury in fact and lost money or property. Plitiff ha been deprived of the rights to wages and benefits due including those as alleged herein. 120. Pursuant to Business k, Professions Code f 17203, Plaintiff is entitled to seek restitution 6 of all wages and other monies owed belonging to Plaintiff including interest thereon, which Defendant wrongfully withheld from them and retained for itself by means of its unlawful and unfair business 7 practices. 8 121. Plaintiff is entitled to an injunction and other declaratory and equitable reliefagainst such 9 practices to prevent future damage for which there is no adequate remedy at law, and to avoid a 10 multiplicity of lawsuits. 122. Plaintiff is informed and believes, and on that basis alleges, that the illegal conduct alleged 12 herein is continuing and there is no indication that Defendant will not continue such activity into the 13 future. Plaintiff further alleges that if Defendant is not enjoined from the conduct set forth in this Complaint, it will continue to fail to pay the wage and compensation required to be paid and will fail to comply with other requirements of the Labor Code and Wage Order. 16 123. As a direct and proximate result of Defendant's conduct, Defendant has received and will 17 continue to receive monies that rightfully belong to members of the general public who have been 18 adversely affected by Defendant's conduct as well as to Plaintiff by virtue of unpaid wages and other 19 monies. 20 124. Plaintiff is entitled and seeks any and all available remedies including but not limited to restitution and recovery of reasonable attorney's fees and costs pursuant to Code of Civil Procedure I't 1021.5, Business and Professions Code fj 17200 et seq., the substantial benefit doctrine, and/or the common fund doctrine. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 25 26 27 NINTH CAUSE OF ACTION Wrongful Termination [FEHA] (Violation of Gov. Code $ tj12900 and 12940 et seq.) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 28 Plaintiff's Complaint for Damages 125. Plainhff re-sieges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 126. At all times mentioned in this Complaint, the FEHA and California Government Codes (g 12900 et seq. and 12940 et seq., were in full force and effect and binding on the Defendants. These sections require Defendants to retrain from harassing, discriminating or retaliating against any employee on the basis ofrace, religious creed, color, national origin, ancestry, physical disability, mental disability, 7 medical condition, marital status, sex, age, or sexual orientation. The statements and conduct on the part of the Defendants complained of herein represent a violation of the FEHA and California Government Codes tj(j 12900 et seq. and 12940 et Seq., which states, in part: 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 27 28 "12940. It is an unlawful employment practice... (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or Irom a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment." 127. At all relevant times, Plaintiff suffered disparate treatment and was terminated because of the intolerable conditions created by Defendants. 128. Plaintiff is a member of several protected classes. Plaintiff suffers a medical condition/physical disability and engaged in protected activities/complained about working conditions. 129. Plaintiff is informed and believes that Defendant engaged in a pattern and practice of discrimination. The policies of Defendants which were neutral on its face resulted in a disparate impact on the class of employees with medical conditions/disabilities/need for accommodations and who engaged in protected activities/complained about working conditions, Plaintiffherein, who had medical conditions/physical disabilities and engaged in protective activities, amongst other reasons. Defendant's discrimination and pre-textual termination on the basis of engaging in protected activities/complaining about working conditions, medical conditions/physical disabilities and need for accommodations, violated California's Fair Employment and Housing Act (FEHA) [Cal. Gov. Code f 12940(a)]. 130. During the period ofhis employment with Defendant, Plaintiff sustained multiple injuries to his left knee while performing his regular job duties. The first incident happened on or about May 13, Plaintiffs Complaint fot Damages 29 2019, when Plaintiff fell on a cement ground while carrying tree branches and debris injuring his left knee. He suffered extensive injury that required medical treannents and need for accommodation. The second incident happened on or about August 17, 2019, when Plaintifffell at work suffered another injury to the same knee, which worsened his condition. Due to each of the above injuries, Plaintiff was lefi with an impairment and physical disability which limited his ability to perform certain tasks and required 6 medical treatments and a reasonable accommodation. Immediately after each incident, Plaintiff duly informed Defendant through supervisors/ managers Fernando Avila and Bill and provided doctor's notes 7 regarding the above injuries and medical condition, and physical limitation. Plaintiff requested, each 8 time, per his doctor's instructions, that he be provided with reasonable accommodation. Defendant did 10 not provide Plaintiff with a reasonable accommodation, including modified work duties, modified schedule, personal protective equipment and additional helper, among other things, as requested. Rather 11 than providing Plaintiff with reasonable accommodation or modified work, Defendant required Plaintiff 12 to return to work, each time, and perform strenuous tasks involving heavy lifting, standing on his feet for 13 long hours, continue to work without proper guidelines and right tools and equipment and without adequate personal protective equipment, working long hours without proper breaks despite his disability 15 16 17 18 19 20 21 22 25 26 27 28 and need for modified work/ reasonable accommodation which further exacerbated Plaintiffs condition. Furthermore, Defendant refused to allow Plaintiff to take time off to receive proper medical treatments for his injuries after each incident. Defendant discriminated against Plaintiff and treated him less favorably due to his medical condition, physical disability and for seeking a reasonable accommodation, amongst other reasons. Defendants perceived Plaintiff as disabled, retaliated against him and ultimately fired him on or about September 25, 2019. 131. Rather than engaging in a good faith interactive process with Plaintiff to explore the alternatives to accommodate Plaintifp s disability/ medical condition, Defendant and Fernando Avila and Bill discriminated against Plaintiff treated Plaintiff less favorably due to Plaintiff s work restrictions, disability and medical and health condition and for exercising Plaintiff s rights to use/request medical leave and for seeking modified work/ reasonable accommodation, among other things. Plaintiffs employment with Defendant ultimately ended on or about September 25, 2019, when he was fired by Defendant 132. Plaintiff is informed and thereon alleges that Defendant unlawfully discriminated against Plaintiffs Complaint for Damages 30 Plaintiff, treated him less favorably and perceived him as disabled because ofhis medical condition and disabilities and retaliated against Plaintiff for seeking a reasonable accommodation for his industrial related injuries. 133. Plaintiff believes, and thereupon alleges, that the reason for his termination was discrimination because ofhis medical condition, and disability and in retaliation for exercising his legal 6 right in seeking reasonable accommodation and/or modified work. Plaintiff further believes, and thereupon alleges that his position was not eliminated and he was replaced by another employee. 7 134. Plaintiff alleges, on information and belief, that he was targeted for termination by Defendant despite the fact that he had been loyal and hardworking employee for years. Throughout his employment, Plaintiff performed the duties of his work assignments in a competent and proficient 10 manner. He was at all times ready, willing and able to perform his tasks reliably and capably. Plaintiff s 11 hard work translated into positive performance reviews as he had never received a written warning and 12 had an essentially good record of employment since he started working for the Defendant. 13 135. At the time Plaintiff was subjected to Defendant's discrimination, retaliation and 14 termination, he suffered a disability as the result of work-related injury, requested accommodation and 15 16 17 20 21 22 23 24 25 26 27 28 access to medical treatments and the member of a protected class of workers under the California Government Code and the FEHA. 136. Defendant is a private employer in the State of California employing five or more employees, State of California and is therefore subject to the provisions of the California Fair Employment and Housing Act, Government Code Section 12940 et seq. 137. Plaintiff is informed and believes, and thereupon alleges that Defendant, and each of them, discriminated against him on the basis ofhis medical condition, disability, among other protected traits, by taking adverse employment actions against him and by terminating his employment. 138. Such reprehensible conduct by Defendant, and each of them, is in violation of the aforementioned Government Code sections and the FEHA. 139. As a proximate result of Defendant's conduct, Plaintiffhas lost wages, benefits, other out ofpocket losses and has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to his damage in a sum according to proof at time of triaL Plaintifi's Complaint for Damages 31 140. As a further proximate result of Defendant's conduct and the consequences proximately caused by it, Plaintiff has suffered medical and related expenses in an amount according to proof at time of trial. 141. The aforementioned acts ofDefendant, and each of them, were udllful, wanton, malicious, intentional, oppressive and despicable and were done in willful and conscious disregard of the rights, welfare and safety ofplaintiffs, and were done by managerial agents of Defendant, and with the express knowledge, consent, and ratification of managerial employees of Defendants, thereby justifying the awarding ofpunitive and exemplary damages in an amount to be determined at the time of trial. 142. The FEHA further provides that in actions brought under its provisions, that "the court, in 10 its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees...". Cal. Gov't Code $ 12965(b). 12 WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 13 14 15 TENTH CAUSE OF ACTION Disability Discrimination [FEHA] (Violation of Cal. Gov. Code 8 12940(a) and Cal. Code Regs., Title 2 4111068) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 16 143. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and 17 every paragraph above, as though fully set forth herein. 18 20 21 22 23 24 25 26 27 28 144. Effective on or about September 25, 2019, Defendant, by and through the acts of its authorized agents, terminated Plaintiff s employment. 145. At all relevant times, Plaintiff suffered disparate treatment and was terminated because of the intolerable conditions created by Defendants. 146. Plaintiff is a member of several protected classes. Plaintiff suffers a medical condition/physical disability and engaged in protected activities/complained about working conditions. 147. Plaintiff is informed and believes that Defendant engaged in a pattern and practice of discrimination. The policies of Defendants which were neutral on its face resulted in a disparate impact on the class of employees with medical conditions/disabilities/need for accommodations and who engaged in protected acnvities/complained about working conditions, Plaintiff herein, who had medical conditions/physical disabilities and engaged in protective activities, amongst other reasons. Defendant's Plaintiffs Complaint fot Damages 32 discrimination and pre-textual termination on the basis of engaging in protected activities/complaining about working conditions, medical conditions/physical disabilities and need for accommodations, violated California's Fair Employment and Housing Act (FEHA) [Cal. Gov. Code Il 12940(a)]. 148. During the period ofhis employment with Defendant, Plaintiff sustained multiple injuries to his left knee while performing his regular job duties. The first incident happened on or about May 13, 2019, when Plaintiff fell on a cement ground while carrying tree branches and debris injuring his left knee. He suffered extensive injury that required medical treatments and need for accommodation. The 7 second incident happened on or about August 17, 2019, when Plaintiff fell at work suffered another injury 8 to the same knee, which worsened his condition. Due to each of the above injuries, Plaintiff was left 10 with an impairment and physical disability which limited his ability to perform certain tasks and required medical treatments and a reasonable accommodation. Immediately after each incident, Plaintiff duly ll informed Defendant through supervisors/ managers Fernando Avila and Bill and provided doctor's notes 12 regarding the above injuries and medical condition, and physical limitation. Plaintiff requested, each 13 time, per his doctor's instructions, that he be provided with reasonable accommodation. Defendant did 14 15 16 17 18 19 not provide Plaintiff with a reasonable accommodation, including modified work duties, modified schedule, personal protective equipment and additional helper, among other things, as requested. Rather than providing Plaintiffwith reasonable accommodation or modified work, Defendant required Plaintiff to return to work, each time, and perform strenuous tasks involving heavy liNng, standing on his feet for long hours, continue to work without proper guidelines and right tools and equipment and without adequate personal protective equipment, working long hours without proper breaks despite his disability and need for modified work/ reasonable accommodation which further exacerbated Plaintiff s condition. 21 22 25 26 27 28 Furthermore, Defendant refused to allow Plaintiff to take time off to receive proper medical treatments for his injuries after each incident. Defendant discriminated against Plaintiff and treated him less favorably due to his medical condition, physical disability and for seeking a reasonable accommodation, amongst other reasons. Defendants perceived Plaintiff as disabled, retaliated against him and ultimately fired him on or about September 25, 2019. 149. Rather than engaging in a good faith interactive process with Plaintiff to explore the alternatives to accommodate Plaintiff s disability/ medical condition, Defendant and Fernando Avila and Bill discriminated against Plaintiff treated Plaintiff less favorably due to Plaintiff s work restrictions, Plaintiffs Complaint for Damages 33 disability and medical and health condition and for exercising PlaintifPs rights to use/request medical leave and for seeking modified work/ reasonable accommodation, among other things. Plaintiffs employment with Defendant ultimately ended on or about September 25, 2019, when he was fired by Defendant. 150. Plaintiff is informed and thereon alleges that Defendant unlawfully discriminated against Plaintiff, treated him less favorably and perceived him as disabled because ofhis medical condition and disabilities and retaliated against Plaintiff for seeking a reasonable accommodation for his indushial related injuries. 151. Plaintiff believes, and thereupon alleges, that the reason for his termination was discrimination because of his medical condition, and disability and in retaliation for exercising his legal 10 right in seeking reasonable accommodation and/or modified work. Plaintiff further believes, and 11 thereupon alleges that his position was not eliminated and he was replaced by another employee. 12 152. Plaintiff alleges, on information and belief, that he was targeted for termination by 13 Defendant despite the fact that he had been loyal and hardworking employee for years. Throughout his 14 employment, Plaintiff performed the duties of his work assignments in a competent and proficient 15 manner. He was at all times ready, willing and able to perform his tasks reliably and capably. Plaintifps 16 17 18 hard work uanslated into positive performance reviews as he had never received a written warning and had an essentially good record of employment since he started working for the Defendant. 153. At all material times herein, Plaintiffwas employed by Defendant as a full-time employee, 19 subject to the laws of the State ofCalifornia, as set-forth in the Government Code, and was covered under one or more statutes and Regulations of the Fair Employment and Housing Act (FEHA). 21 22 23 154. At all material times herein, the FEHA and California Government Codes 86 12900 ct ~se . and 12940 et seu., were in full force and effect and binding on the Defendant. These sections require Defendant to refrain from harassing, discriminating or retaliating against any employee on the basis of 24 race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical 25 condition, marital status, sex, age, or sexual orientation. The statements and conduct on the part of the 26 27 28 Plaintiff complained of herein represent a violation of the FEHA and California Government Codes + 12900 et seo. and 12940 et seo. Plaintiffs Complaint for Damages 34 155. At all material times herein, Plaintiff was an individual with disabilities within the meaning of Section 12926(i) & (m) of the Government Code. 156. At all material times herein, Defendant has continuously been an employer within the meaning ofFEHA [Government Code ti 12926(d)], regularly employing five or more employees. 157. At all material times herein, Defendant, and each of them, knew or should have known of the discriminatory and harassing conducts against Plaintiff and that each failed to take corrective measures within its control. 158. Defendant, and each of them, through their course ofconduct denied Plaintiff a benefit of employment, in whole or in part, because she is an individual with known disabilities in violation of 10 Government Code 12940(a) and 2 C.C.R. ti11068. 159. In addition to the adverse actions alleged above, Defendants, and each of them, 12 discriminated against Plaintiff, terminated him and refused to engage, in good faith, in an interactive 13 process because of his known injury/disabilities. 14 160. Defendants, and each of them, conducts, by and through its agents, would seriously affect 15 the emotional well-being of any reasonable employee and did in fact interfere with and create such 16 emotional harm to Plaintiff. 17 161. As a direct, foreseeable, and proximate result of Defendants'cts, and each of them, as 18 19 hereinabove alleged, Plaintiff suffered injuries and damages in an amount which will be proven at trial. 162. The aforementioned acts of Defendants, and each of them, were willful, wanton, 20 21 22 malicious, intentional, oppressive and despicable and were done in willful and conscious disregard of the rights, welfare and safety of plaintiffs, and were done by managerial agents of Defendant, and with the express knowledge, consent, and ratification ofmanagerial employees of Defendants, thereby justifying 23 the awarding of punitive and exemplary damages in an amount to be determined at the time of trial. 24 163. The FEHA further provides that in actions brought under its provisions, that "the court, in 25 26 its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees...". Cal. Gov't Code ) 12965(b). 27 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth. 28 Plaintiff's Complaint for Damages ELEVENTH CAUSE OF ACTION 35 1 2 3 4 5 6 7 8 9 10 11 12 16 17 18 19 20 21 22 23 24 25 26 27 28 Failure to Provide Reasonable Accommodation [FEHA] (Violation of Cal. Gov. Code II[l12940 (m), 12926(p); and Cal. Code Regs., Title 2 (]11068) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 164. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 165. Plaintiff is informed and believes, and thereupon alleges, that Pursuant to California Government Code Sections 12926 (p) and 12940(m), California Code of Regulations, Title 2, Section 11068 promulgated by the Fair Employment Housing Act [FEHA], employers must make reasonable accommodations for employees with disabilities. Examples of reasonable accommodations include restructuring jobs, including reassigning or transferring an employee, developing part-time or modified work schedules, acquisition or modification of equipment or devices, and other similar accommodations for individuals with disabilities. 166. Plaintiff is informed and believes and thereupon alleges that the Fair Employment and Housing Act (FEHA) requires employers reasonably to accommodate the medical condition and physical disabilities of any employee if work environment could have been modified if adjusted in manner that would have enabled employee to perform essential functions ofjob. 167. At all material times herein, Plaintiff was an individual with disabilities within the meaning of Section 12926(i) &, (k) of the Government Code. Plaintiff was able to perform the essential job duties for the position he held, with reasonable accommodation. 168. At all material times herein, Defendant has continuously been an employer within the meaning ofFEHA [Government Code II 12926(d)], regularly employing five or more employees. 169. Defendant, and each of them, failed to provide reasonable accommodation of Plaintiffs known disabilities in violation of Sections 12940(m) and 12926(p) of the Government Code and 2 C.C.R. $ 11068. 170. As a direct, foreseeable, and proximate result ofDefendant's acts, as hereinabove alleged, Plaintiff suffered injuries and damages in an amount which will be proven at trial. 171. The aforementioned acts of Defendants, and each of them, were willful, wanton, malicious, intentional, oppressive and despicable and were done in willful and conscious disregard of the rights, welfare and safety ofplaintiffs, and were done by managerial agents of Defendant, and with the Plaintiffs Complaint fot Damages 36 express knowledge, consent, and ratification of managerial employees of Defendants, thereby justifying the awarding ofpunitive and exemplary damages in an amount to be determined at the time of trial. 172. The FEHA further protddes that in actions brought under its provisions, that "the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees...". Cal. Gov't Code f 12965(b). WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 TWELFTH CAUSE OF ACTION Failure to Engage in the Interactive Process [FEHA] (Violation of Cal. Gov. Code $ 12940 (n)) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 173. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 174. At all material times herein, Plaintiffwas employed by Defendant as a full-time employee, subject to the laws of the State of California, as set-forth in the Government Code, and was covered under one or more statutes and Regulations of the Fair Employment and Housing Act (FEHA). 175. At all times herein mentioned, California's Fair Employment and Housing Act ("FEHA"), Cak Gov't Code t[$ 12900, et seq., was in full force and effect and was fully binding upon Defendant. Specifically, $ tj 12940(a) prohibits an employer from harassing an employee on the basis of Plaintiffs medical condition, disability, invoking his right to request/ use disability related accommodation and report/ oppose the discriminatory conducts at work place. 176. Cal. Gov. Code t]12940 (n) provides the following in pertinent part: "It shall be an unlawful employment practice ... (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interacfive process with the employee or applicant to determine effective reasonable accommodafions, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." 177. At all material times herein, Defendant has continuously been employer chin the meaning ofFEHA [Government Code $ 12926(d)], regularly employing five or more employees. 178. At all material times herein, Defendant's managerial agents, including Fernando Avila and Bill, among others, engaged in the conducts, alleged hereinabove, and were acting within the scope Plaintiff s Complaint for Damages of their employment and within authority given to them by the Defendant - as Plaintiffs supervisors/managers within the meaning of FEHA. 179. Plaintiff is informed and believes, and on that basis alleges that at all times relevant hereto, Defendant assigned Fernando Avila and Bill as Plaintiffs supervisors/ managers and empowered Fernando Avila and Bill to take tangible employment actions against Plaintiff to effect a significant change in Plaintiff s employment status, such as hiring, firing, reassignment of schedules and shifis, or other employment related decisions resulting in significant changes in benefits to Plaintiff. 180. At all times relevant herein, on information and belief, Fernando Atdla and Bill was under 10 the direct supervision, employment, agency and control of Defendant. In role as Plaintiff's supervisors/ managers and as authorized agents for Defendant, Fernando Avila and Bill exercised unique authority over Plaintiff. Defendant further authorized and empowered Fernando Avila and Bill to supervise 12 13 14 15 16 17 18 Plaintiffs daily activities, placed Fernando Avila and Bill in a position to interact with Plaintiffon a daily basis and further allowed Fernando Avila and Bill to make significant decisions affecting Plaintiff s employment status. 181. Defendant's conducts, as alleged herein, by and through their authorized agents constitutes failure to engage in the interactive process, in violation of FEHA. 182. As a direct result of the unlawful employment practices of Defendant, as alleged above, Plaintiff has been deprived of a discrimination-Iree work environment, lost income and benefits, and 19 20 suffered other damages to be determined at trial. 183. As a further and direct result of the unlawful employment practices of Defendant as 21 22 alleged hereinabove, Plaintiffhas suffered emotional distress, physical pain and suffering, and injuries in an amount to be proven at trial. 23 24 25 184. As a further result of Defendant's violation of FEHA, Plaintiff has been compelled to employ attorney's fees and is entitled to attorney's fees pursuant to Gov. Code I'1 12965 and CCP II 1 021.5. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 26 27 28 THIRTEENTH CAUSE OF ACTION Retaliation/ Discrimination /Wrongful Termination (Violation ofPublic Policy) 38 Plainsifgs Complaint for Damages (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 185. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 4 186. It is the policy of the State of California as expressed in the Labor Code and its enabling regulations that non-exempt employees, such as Plainnff herein, cannot be required to work in excess of 6 forty hours during a week, in excess of eight hours per day without any remuneration for all hours worked 7 and at the designated rate, including no overtime pay as mandated by California labor code sections. 8 Employees such as Plaintiff are also entitled to meal and rest periods, within the required time period, 9 reimbursement of expenses they incurred and all other rights and benefits under Labor Codes and 10 11 applicable wage order. Finally, employees cannot be terminated and/or harassed for complaining about 12 an employer's refusal to comply with the provisions of Labor Code sections and with their requirement to comply with labor law and various labor code sections. The public policy of the State of California 13 14 prohibits the employers from retaliating against their employees and discriminating against them for opposing Defendant's discriminatory policy and practice for having complained of Labor Code violations 15 and that Defendant is not in compliance with the California labor law, among other things, opposing 16 17 Defendant's policy and practice pertaining to payment of their wages, for making inquiries in to their 18 payroll records, seeking payment of their unpaid earned wages and making complaints about unsafe and unhealthy work condition and refusing to perform work under such conditions created by Defendant's 19 violation of labor code, health and safety law [Title 8 of the California Code of Regulations, California 20 Labor Code II6400, et seq. and the standards set forth under California Occupational Safety and Health 21 Administration (Cal/ OSHA)], in violation of California Labor Code lie[232.5, 6310, 6311, 6399.7. As a 22 23 matter of public policy, the California law recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment Iree from discrimination, harassment, and 24 retaliation. Additionally, the California Fair Employment and Housing Act (the "FEHA") [Gov. Code II25 26 12900, et seq.] prohibits discrimination and harassment against an employee based the person's protected characteristic such as age and disability/ medical condition. As a matter of public policy, the FEHA 27 28 recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold Plaintiff's Complaint for Damages 39 employment &ee from discrimination, harassment, and retaliation. [Gov. Code tt 12920.] The California state legislature has directed that the FEHA be construed liberally so as to accomplish its purposes. [Gov, Code ( 12993.] Moreover, the California Supreme Court has specifically held that one's right to be &ee &om discrimination and harassment in the workplace is "fundamental." (Brown v. Superior Court (1984) 37 Cal.3d 477, 485.] This public policy of the State of California is designed to protect all employees and to promote the welfare and well-being of the community at large. 187. At all material times herein, up through the date of Plaintiffs termination, Defendant's managing and supervisory employees, Fernando Avila and Bill, among others, was acting within the course and scope ofemployment with Defendant, were required to observe the public policy of this state 10 including those laws which prohibit discrimination and retaliation based upon age, nation origin, disability and medical condition and engaging in protected activities, California Government Code 12 $ 12940(a), ei12940(h) and $ 12941(a), as well as Government Code II12942, and for opposing unlawful 13 14 employment policies and practices and making complaints about the work condition and therefore violated those laws by adhering to a secret policy to exit employees, such as Plaintiff prior to the time 15 16 they actually wished to leave. 188. Plaintiff is informed and believes, and on that basis alleges, that PlaintifFs employment 17 18 was terminated on or about September 25, 2019 by Defendant in violation of fundamental public policies of the State of California, including, without limitation: encouraging employees to make complaints/ 19 raise concerns regarding Defendant's employment polies and practices that the employee, Plaintiff 20 herein, reasonably suspected to be unlawful and discriminatory conducts at workplace on the basis of 21 disability, medical condition, for seeking medical leave and reasonable accommodation and engaging in 22 protected activities without the fear of retaliation in violation of California's Fair Employment and 23 Housing Act (FEHA)/ CFRA [Cal. Gov. Code I't 12940(a)], and exercise Plaintiffs rights and privilege to a hostile &ee work environment and free from harassment for complaining about discrimination and 25 abusive hostile work environment under FEHA without fear of retaliation; encouraging employees to 26 27 28 refuse to engage in conducts and/or to perform work under conditions where employer's violation of health and safety law would create a real and apparent hazard to employees and the public without fear of retaliation and discrimination; encouraging employees who work in private establishments to report Plaintiffs Complaint for Damages 40 suspected conducts and/or conditions where employer's violation of law would create a real and apparent hazard to employees and public in general, without fear of retaliation and discrimination; encouraging employees to object and report employers'onducts and practice that creates an unsafe work condition with risk of exposure to injuries to the employees and public in violation of California Labor Code $ 6401.7, California Code of Regulations, Title 8, and the standards set forth under California Health 8tSafety Code enforced through the Division of Occupational Safety and Health Administration (0SHA) under the Injury and Illness Prevention Program (IIPP) standard when regularly having the employees, 10 12 13 14 15 16 17 18 Plaintiff herein, to perform work without adequate safety equipment, work long hours per day and off- the-clock through his lunch breaks and without adequate help, pay, proper breaks, and without providing proper and adequate safety gears while exposing Plaintiff and public to safety hazards on the job; encouraging a safe work condition to employees with access to medical treatments without fear for retaliation; encouraging the right to prohibit employers Irom discriminating and retaliating against employees, who make complaints about discrimination at work, make inquiries into their payroll records, hours worked requesting for payment of their unpaid earned wages, and further disclose information about employer's unsafe working conditions. These fundamental public policies inure to the benefit of the public, and not just the private interests of the employer and employees. Defendant knew or should have known that such policies and practices clearly run afoul of public policy. 189. Plaintiff opposed and reported the above unlawful practice and abusive misconducts to the Defendant through his supervisors / managers, and brought these concerns to the Defendant about the 20 situation, which angered the Defendant. Plaintiff asked Defendant to look into this matter and take 21 corrective actions. Defendant ignored Plaintiff's complaints and failed to take any corrective actions- 22 and instead retaliated against Plaintiff. 23 190. Plaintiff alleges, on information and belief, that the continuous run-around and failed 24 25 27 28 promises made by Defendant was a sham and a pretext to terminate Plaintiff in that Defendant's goal was to get rid of Plaintiff due to Plaintiffs medical condition/disability and need for reasonable accommodation, as well as for engaging in protected activities/complaining about work conditions. Plaintiff further alleges that Plaintiff was targeted for termination by Defendant despite the fact that Plaintiff had been loyal and hardworking employee for years. Throughout Plaintiffs employment, Plaintiffs Complaint for Damages 41 Plaintiff performed the duties of tasks(work assignments in a competent and proficient manner. Plaintiff was at all times ready, willing and able to perform Plaintiff s tasks reliably and capably. PlaintifFs hard work translated into positive performance reviews as Plaintiffhad never received a written warning and had an essentially good record of employment since the outset of working for the Defendant. Plaintiff s employment with Defendant was ultimately terminated on or about September 25, 2019, when he was fired by Defendant. 191. Plaintiff further alleges that Plaintiff was subject to discrimination and retaliation for refusing to engage in conducts that violated fundamental public policy, to wit, Defendant retaliated 10 against Plaintiff and terminated Plaintiff and/ or caused the employment to be terminated, in part, due to: (i) Plaintiff s medical condition/disability and need for reasonable accommodation, as well as for 12 13 14 15 engaging in protected activities/complaining about work conditions; (ii) Plaintiff s actions in reporting PlaintiiTs medical condition and resulting work restrictions to Defendant and requesting modified work, reasonable accommodation and adequate medical treatments [FEHA] and for engaging in protected activities use/request medical leave under CFRA; (iii) opposing Defendant's employment practices that Plaintiff reasonably suspected to be unlawful and discriminatory conduct at the workplace on the basis 16 17 of age, national origin, disability, medical condition or use and/ or request for medical leave and reasonable accommodation/ modified work for disability related limitation [violation of Labor Code 18 19 sections/wage and hour law and FEHA] and for engaging in protected activities; (iv) Plaintiff s action in invoking Plaintiff s rights to make inquiries into Plaintiff s payroll records and seeking payment of 20 21 22 23 unpaid earned wages for all hours worked including all overtime due to Defendant's unlawful method of meal and rest break policies, amongst other reasons [ violation of Labor Code Section/ wage and hour law]; (v) opposing Defendant's employment practices which requires their employees, such as Plaintiff, to work long hours, and overtime hours a day at a rate less than the rate designated by the Statute and/ or 24 25 26 27 28 by contract as promised and without enumeration for all overtime [ violation of Labor Code Section/ wage and hour law]; (vi) Plaintiffs complaints about unsafe and unhealthy work conditions and expression of concerns to Defendant regarding risk of exposure to injuries due to unsafe and unhealthy conditions at work and refusing to perform work under such conditions created by Defendant's violation of health and safety law [Title 8 of the California Code of Regulations, California Labor Code 56400, et Plaintiffs Complaint for Damages 42 seq. and the standards set forth under California Occupational Safety and Health Administration (CaV OSHA)], in violation of California Labor Code 8232.5, 6310, 6311, 6399.7; and (vii) refusing to engage in conducts that violated fundamental public policy, to wit, a private business, herein, which is in effect provides goods and services to public to be healthy, safe and free &om hazard as evidenced by, but not exclusive of, the regulations found in California Health and Safety Code, Cal/DOSHA. 192. The actions and continuing course of the aforesaid conduct amounted to a systematic policy of discrimination and harassment, thereby constituting a continuing violation actionable under, among other things, Fair Employment Housing Act (FEHA) which reflects a fundamental public policy against discrimination in employment on account of age and protected traits. 10 193. Instead of invesfigating the reports ofharassment, unhealthy and unsafe conditions at the work, Defendant ratified the conduct of said unlawful conducts by retaliating against Plaintiff through 12 13 termination of his employment. 194. Defendant's discrimination and retaliation and ultimate termination of Plaintiff was in 14 violation of the fundamental principles of the public policy of the state of California as reflected in its 15 laws, objectives and policies, alleged above. Defendant, by and through its agents and/or employees, 16 violated the public policy of California by retaliating against Plaintiff and tortuously discriminating and 17 18 discharging Plaintiff for engaging in protected activities described above. Said laws, which establish these fundamental public policies include, without limitation: Cal. Wage and hour law, Cal. Labor Code 19 20 21 Ik$ 232.5, 1102.5, 6410; Gov. Code Il 12920; Gov. Code I'112653; Gov. Code I'l12940 et seq.; Gov. Code $ 12900, et seq., the California Constitution; and The California Fair Employment and Housing Act (the "FEHA"), and California Family Rights Act ("CFRA") Division 4 of California Labor Code, worker's compensation and insurance, the Industrial Wage Commission promulgated by Division of Labor 23 Standard Enforcement. 24 195. PlaintifFs report of/ oppose/ complain about the work condition, Defendant's unlawful 25 employment practices and conducts at its business, including harassment, discrimination, unhealthy and 26 27 unsafe work conditions, as alleged herein above, was a substantial motivating reason for Plaintiff being discriminated/ retaliated against and ultimately discharged. 28 Plaintiff's Complaint for Damages 43 196. On information and belief, Defendant knowingly subjected its employees/ staff to actual and potential harm whereby terminating Plaintiff, which was done intentionally by Defendant to avoid negative publicity and economic harm. 197. Plaintiff alleges, on information and belief, that Plaintiff was targeted for termination by Defendant despite the fact that Plaintiff had been loyal and hardworking employee for years and at all times ready, willing and able to perform Plaintiff s tasks reliably and capably. 10 198. By the aforesaid acts and conduct of Defendant, and each of them, Plaintiff has been directly and legally caused to suffer actual damages pursuant to California Civil Code 8 3333 including, but not limited to, loss ofearnings and future earning capacity, medical and related expenses for care and procedures both now and in the future, attorney's fees, and other pecuniary loss not presently ascertained, for which Plaintiff will seek leave of court to amend when ascertained. 12 13 14 15 16 199. As a direct, foreseeable, and proximate result ofDefendant's conduct, Plaintiffwas caused to suffer and continues to suffer substantial losses in earnings, employment benefits, employment opportunities, and Plaintiff ha suffered from humiliation, anxiety, severe emotional distress, worry, fear, and special damages (to include lost wages) all to her special and general damage in an amount to be determined at time of trial and in excess of the jurisdictional minimum of this court. 17 200. Defendant's conduct was a substantial factor in causing Plaintiffharm. 18 201. Defendant, acting through its authorized agents, Fernando Avila and Bill did the things hereinabove alleged, intentionally, oppressively, and maliciously with an evil and malevolent motive to 20 21 22 23 24 25 26 27 28 injure Plaintiff. These acts, which resulted in Plaintiffs wrongful termination against public policy, were obnoxious, despicable, and ought not to be suffered by any member of the community. 202. In doing the things herein alleged, defendants were guilty of oppression, fraud and malice in that they, among other things, acted with a willful and conscious disregard for PlaintifF s rights, health and safety and, insofar as the things alleged were attributable to employees of defendants, said employees were employed by defendants with advance knowledge of the unfitness of the employees and/or they were employed with a conscious disregard for the rights ofothers and/or defendants authorized or ratified the wrongful conduct and/or there was advance knowledge, conscious disregard, authorization, ratification or act of oppression, Iraud or malice on the part of an officer, director or managing agent of Plainnffs Complaint for Damages 44 defendants all entitling Plaintiff to the recovery of exemplary and punitive damages in an amount to be determined at the time of trial. 203. Plaintiff is entitled to and seeks any and all available remedies including but not limited to economic damages (including back pay and trout pay and all benefits), general damages (including pain and suffering), punitive damages, and recovery of reasonable attorney's fees and costs pursuant to California Code of Civil Procedure I'l 1021.5, California Business and Professions Code «I 17200 er seq., the substantial benefit doctrine, and/or the common fund doctrine. WHEREFORE, Plaintiffprays for judgment as hereinafter set forth. 10 12 13 14 15 16 17 FOURTEENTH CAUSE OF ACTION Failure to Pay Minimum Wages (Violation of Labor Code I'l 1194.2) (Alleged by Plaintiff against Defendant and all applicable DOES 1-30) 204. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 205. At all relevant times hereto, Plaintiffwas a non-exempt employee ofDefendant under the laws of the State of California within the meaning of the Labor Code and Wage Order. 206. California Labor Code II 1194.2(a) provides: 18 19 20 21 22 In any action under Section 98, 1193.6, 1194, or 1197.1 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. 23 207. Through Defendant'onduct during the applicable statutory period including, but not 24 25 26 27 28 limited to the conducts set forth herein, including that alleged on information and belief, Defendant directly and/or indirectly paid Plaintiff less than minimum wage and the hourly rate promised and further failed to pay Plaintifffor all times/ hours suffered or permitted to work for Defendant, secretly underpaid wages, and required Plaintiff to pay for certain expenses and employment-related costs, among other things, that are the responsibility ofDefendant to pay. Defendant further failed to satisfy minimum wage Plaintiffs Complaint for Damages 45 requirements and secretly paid a lower wage while purporting to pay the wage designated by statute or by contract when they improperly round off/ reduce Plaintiffs hours to reflect a lower number of hours (when paid Plaintiff on an hourly basis), resulting in failure to compensate Plaintiff properly for "all hours worked" and consequently underpaid Plaintiff for the actual hours Plaintiff worked in violation of Labor Code tjI'l 223, 1197, 1198 and the applicable Wage Order. 208. As a result, Defendant failed to pay Plaintiff at least the required minimum wage, for all hours worked and overtime. Defendant's conduct violates California law. 209. Defendant has intentionally, improperly and in bad faith failed to make payment of minimum wages, overtime compensation and other benefits to Plaintiff in violation of the Labor Code, 10 applicable regulations, and the IWC Wage Orders. 210. As a result of Defendant's failure to pay Plaintiff minimum wages for all hours worked, Defendant owe Plaintiff all unpaid minimum wages due, plus liquidated damages in an amount equal to 13 14 the minimum wages owed, plus interest thereon, pursuant to Labor Code P 1194.2. 211. Accordingly, Plaintiff is entitled to all unpaid minimum wages due, plus a liquidated 15 16 damage equal to the amount of the minimum wage unpaid, plus interest thereon, pursuant to Labor Code P 1194.2, all to PlaintifF s damage in the amounts according to proof at trial and within the jurisdictional 17 limitations of this Court. 18 WHEREFORE, Plaintiffprays for judgment as hereinafler set forth. 19 20 21 22 23 24 25 26 PRAYER FOR RELIEF WHEREFORE, Plaintiffprays for relief as follows: a. For declaratory relief to the extent permitted by law; b. For injunctive relief to the extent permitted by law including, but not limited to, as provided by the Labor Code II 226(h), and Business and Professions Code fl 17200 et seq.; c. For restitution as provided by Business and Professions Code tj 17200 et seqd d. For an order requiring Defendants and all applicable DOES to restore and disgorge all funds to each affected person acquired by means of any act or practice declare by this Court to be 28 Plaintiffs Complaint fot Damages 46 10 12 13 14 15 16 17 18 19 20 21 22 23 unlawful, unfair or fraudulent and, therefore, constituting unfair competition under Business and Professions Code f 17200 et seq.; e. For an award of unpaid wages, including overtime wages, wages for "all hours worked" to the extent permissible by law; f. For an award of any and all monies required to be paid and/or reimbursed to Plaintiff including but not limited to monies required to be indemnified for; g. For penalties to the extent permitted pursuant to the Labor Code and Wage Order including, but not limited to, waiting time penalties under Labor Code $ I'l 203, 223, 226 et seq., 226 (e), 226.7, 510, 512; 1174, 1194, 1194.2, 1198, 2802; h. For an award ofdamages to the extent permissible by the Labor Code and Civil Code, including Labor Code )II 203, 223, 226 et seq., 226(e), 226.7, 510, 512, 1174, 1194, 1194.2, 1198, 2802, 6401, and Civil Code )111709, 1710, 3333; i. For an award of liquidated damages to the extent permissible by Labor Code Il 1194.2; j. For an award ofpunitive damages to the extent permissible by law; k. For a money judgment representing restitution damages together with interest on said amounts, according to proof; 1. For general and special damages according to proof; m. For lost wages, loss of earning capacity, loss of benefits and/or other economic damages, according to proof; n. For pre- and post-judgment interest to the extent permitted by law; o. For reasonable attorneys'ees and cost of suit and, to the extent permitted by law, including pursuant to Cal. Labor Code IlI'l 218.5, 226 (e)(h), 1194 (a), and 2802(c), Code of Civil Procedure 1'l 1021.5, and Cal. Gov't Code II 12965(b) [FEHA] p. An award of such other and further relief as this Court deems proper and just. 24 25 DEMAND FOR JURY TRIAL 26 27 Plaintiffhereby demands trial of this matter by jury to the extent authorized by law. 28 Plaintiff's Complaint for Damages 47 Dated: January 2020 1 LAW OFFICES OF PARVIZ DARABI Parvtz Darabl, Esq. Attorney for Plaintiff 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff's Complaint fot Damages 48 A NQUI 11 at : i, Pl i tiff’ omplaint r a age I BI i arabi, s . / t l i ti ~ 4C- iX.11 311.Exhibit “1” a nwATATFOFOAIIFORNIAIR * * C * 8 rvl aandnnlalnaAaanor DEPARTMENT OF FAIR EMPLOYMENT & HOUSING reed 1))IW( 2218Kauaen Dnve, Suite100IEIKGrovel CAI95758 (800) 884-1 684 (Voice) l (800) 700-2320 (T1V) i California'a Relay Service at 711 http ttwww dfehcagov I Email: contact center@dfehca gov RAVIN NEwnOM OOVERNOR KEVIN Kian, DIRECTOR January 9, 2020 Parviz Darabi 500 Airport Blvd.w 150 Burlingame, California 94010 RE: Notice to Complainant's Attorney DFEH Matter Number: 202001-08841309 Right to Sue: Munoz I CAGWIN 8, DORWARD, a California Corporation Dear Parviz Darabi: 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 RTATROFCALIFORNIAIR I' M CN I A *v V(ifaiTT.~V))j DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 221 8 Kauaen Drive, Suite' DD I Elk Grove I CA I 95758 (8DD) 884-1684 (Voice) 1 (800) 700-2320 (TTV) ( California'a Relay Service at 71 I hap:// .dfeh.m.gov I Emag; cont ct.cent Adfeh.m.gov GAVIN NEWRON c'OVFRNOR KEVIN KISN, DIRECTOR January 9, 2020 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 202001-08841309 Right to Sue: Munoz I CAGWIN & DORWARD, a California Corporation 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 r s RTATEOFtmLIFORNIA I a I Oo * aid .. dH ., Ao iv(fii~tggvtt'I DEPARTMENT oF FAIR EMPLoYMENT & HQUslNG 221 8 Kauaen Drive, Suite 100 I Elk Grove I CA I 05758 (800) 884-1 584 (Voice) I (800) 700-2320 (TTY) ) Cahfornia'a Relay Service at 711 http /Iwww dfeh.cagov I Emaih contact canter@dfahcagov GAVINNEWROM GOVERNOR KEVIN KIEH, DIRECTDR January 9, 2020 Luis Munoz 1153 E. Dover Street Glendora, California 91740 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202001-08841309 Right to Sue: Munoz / CAGWIN & DORWARD, a California Corporation Dear Luis Munoz, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective January 9, 2020 because an immediate Right to Sue notice'as 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 30 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 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, tt 12900 et seq.) In the Matter of the Complaint of Luis Munoz DFEH No. 202001-08841309 vs. Complainant, 10 CAGWIN & DORWARD, a California Corporation 1565 SOUTH NOVATO BLVD STE B NOVATO, California 94947 Respondents 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complainant was harassed because of complainant's disability (physical or mental), medical condition (cancer or genetic characteristic). Complainant was discriminated against because of complainant's disability (physical or mental), medical condition (cancer or genetic characteristic) and as a result of the discrimination was terminated, denied equal pay, denied any employment benefit or privilege, denied reasonable accommodation for a disability. Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment, requested or used a disability-related accommodation and as a result was terminated, denied equal pay, denied any employment benefit or privilege, denied reasonable accommodation for a disability. Additional Complaint Details: Date Filed: January 9, 2020 -1- Complaint - DFEH No. 202001-08841309 1. Respondent CAGWIN & DORWARD, a California Corporation is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, t3 12900 et seq.). 2. Complainant Luis Munoz, resides in the City of Glendora State of California. 3. Complainant alleges that on or about September 25, 2019, respondent took the following adverse actions: 1 VERIFICATION I, PARVIZ DARABI, am the Attorney in the above-entitled complaint. I have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which I believe to be true. On January 9, 2020, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. BURLINGAME, CA 10 12 13 14 15 16 17 18 20 21 22 23 24 25 27 28 Date Filed: January 9, 2020 -2- Complaint - DFEH No. 202001-08841309