Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.November 20, 2020E-FILED 11/20/2020 2:49 PM Clerk of Court Superior Court of CA, County of Santa Clara 20CV373869 Reviewed By: R. Tien 20CV37386910 H 12 13 14 15 16 17 18 I9 20 2] 22 23 24 25 26 27 28 TODD K. DAVIS State Bar Number 169654 FARLING, HECHT & DAVIS, LLP 96 North Third Street, Suite 660 San Jose, CA 95112 (408) 295~6100 Attorneys for Plaintiff, Kimberly'Doe SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA (Unlimited Jurisdiction) KIMBERLY DOE; Case NO. Plaintiff, COMPLAINT FOR DAMAGES: 2. Retaliation; 3. Wrongful Termination in Violation of Public Policy; 4. Breach of the Covenant of BBVA USA, an Alabama Corporation; MAHMOUD ALAEDDIN, ) ) ) ) v. ) l. Harassment Based Upon Sex; ) ) ) an individual; and DOES l to ) 30, inclusive; ) Good Faith and Fair Dealing; ) 5. Intentional Infliction of ) Emotional Distress; Defendants. ) 6. Battery; ) Plaintiff Alleges: GENERAL ALLEGATIONS l. Plaintiff, Kimberly Doe (Doe), is an individual currently residing in Santa Clara County‘California and at all times mentioned herein was employed by defendant BBVA USA. 2. Defendant, BBVA USA (BBVA) is an Alabama corporation lawfully doing business California as a foreign corporation with locations throughout the state including, Santa Clara County. BBVA is an entity subject to suit under the California Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA), in that l IO H 12 l3 l9 20 N 22 23 24 25 26 27 28 Staples is an employer that regularly'employed five or more persons during Plaintiff’s employment. 3. Defendant, Mahmoud Alaeddin, (Alaeddin) is an individual residing in Santa Clara County, California and is subject to suit as an individual for personally engaging in unwelcome acts of sexual harassment and battery in violation of California Government Code section 12940(j)(l) and various other statutes. Defendant Alaeddin was the Branch Manager of the BBVA Bank where the Plaintiff was employed in Sunnyvale, California and defendant Alaeddin following the Plaintiff’s hire became her direct supervisor and thereafter provided the Plaintiff with employee reviews, scheduling, assignments, work hours, raises and determined all other aspects of the Plaintiff’s work and work conditions at BBVA USA. 4. Plaintiff is ignorant of the true names and capacities of the defendants sued herein as Does l through 30 and identifies these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when the same has been ascertained. Plaintiff is informed, believes and alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein.alleged and that plaintiff’s damages as alleged were proximately caused by such defendants. 5. Plaintiff is informed and believes and thereon alleges that at all times mentioned herein, each of the defendants was the agent or employee of the others and was acting under their control and directiOn and that each of the defendants, in acting as alleged, was acting within the scope 0f such employment and agency. ?\J 15 16 17 22 23 2A 25 26 27 28 6. The unlawful employment practices complained.of herein‘occurred primarily in Santa Clara County, California. 7. On or about October 19, 2020, Plaintiff filed a Complaint of Sexual Harassment and Sexual and related wrongful termination against defendants BBVA and Alaeddin based on Alaeddin’s sexual harassment and battery of the Plaintiff, with the California Department of Fair Employment and Housing. The FEHA has issued a Notice of Right to Bring Civil Action. 8. On or about March 11, 2019, Plaintiff was hired by BBVA to work at the BBVA Bank in Sunnyvale, California as a Salés and Service Advisox. Plaintiff’s initial job duties included bank teller, customer assistance and banker. Plaintiff's starting compensation, which induced her to accept the position, included a salary of $21.80 per our, with a promise of timely increases, a bonus based.on.performance, medical benefits, dental benefits and flexible vacatidn and medical leave. Plaintiff accepted the offer of employment made by the defendants, and each of them, based on the represéntations made by defendants with regard, to compensation, benefits, advancement opportunity and working environment‘ The plaintiff relied on these representations in agreeing to accept employment with the defendants and each of them. 9. Thé Plaintiff met and exceeded BBVA'S expectations when they hired her and she received positive reviews throughout her employment history with defendants, except a single review by Defendant Alaeddin which was inaccurate designed by Defendant Alaeddin to assert control over the Plaintiff. N 20 2 22 23 24 25 26 27 28 10. Beginning in August 2019 and continuing throughout her employment at BBVA, Plaintiff was subjected to an unwanted and continuous pattern of sexual harassment from defendant Alaeddin. Plaintiff first became aware of defendant Alaeddin’s sexual interest in her when Alaeddin invited the Plaintiff to dinner and to other non~work related social events and thereafter began_to make sexually related comments to the Plaintiff and about the plaintiff. Alaeddin commented_to the Plaintiff about the Plaintiff’s appearance and made comments to other employees of BBVA.about the Plaintiff’s appearance that were demeaning to the plaintiff. From that time forward Alaeddin made numerous comments to Plaintiff about Plaintiff’s body, her appearance, her sexuality and began to tell the Plaintiff that he loved her. Defendant Alaeddin continually hugged the plaintiff, he invited her to social events, including vacations and made other sexual references. ll. On or about August 2019, while on the premises of BBVA and within the course and scope of employment and during work hours, defendant Alaeddin forcibly touched the Plaintiff’s shoulders and back without the Plaintiff's permission, while calling the Plaintiff ”beautiful”; "Princess"; ”Barbie Doll"; "Angel” and telling the Plaintiff ”I love you”.. The Plaintiff felt unable to report this incident or prior incidents of sexual harassment to any other employée of BBVA as defendant Alaeddin was the branch manager of the BBVA branch where the Plaintiff worked and there were no employees present that had authority over defendant Alaeddin. 12. From August 2019 through November 25, 2019, when the Plaintiff N TO H 12 13 17 18 19 2O fl 22 23 24 25 26 27 28 was forced to resign due to Defendant Alaeddin’s conduct, the Plaintiff was subjected to continuous propositions by the defendant Alaeddin to have dinner with him, to go on weekends away with him or otherwise engage in unwanted social activities with Alaeddin, which Alaeddin stated would be romantic in nature, despite the Plaintiff rejecting all of Defendant Alaeddin’s advances. In or about November 2019 the Plaintiff asked Defendant Alaeddin if she could have time off to go on vacation. When Defendant Alaeddin learned that the Plaintiff was planning on going on vacation with her boyfriend, he denied her request. 13. Following this series of acts of pervasive sexual harassment by Alaeddin and the hostile environment which was created at Plaintiff’s work place at BBVA, plaintiff resigned her employment on November 25, 2019. FIRST CAUSE OF ACTION (Harassment Based Upon Sex in Violation of the FEHA) 14. Plaintiff repeats and realleges each of allegations contained in paragraphs 1 through.13 and incorporates those allegations herein as though set forth in full. 15. Defendants’ conduct at all times statedAherein was governed by the Fair Employment and Housing Act (FEHA) and Government Code sections 12940(j)(1) et seq., prohibiting unlawful harassment on the basis of sex. l6. Plaintiff Doe was the recipient of a continual unwelcome pattern of sexual discrimination and harassment, including harassment and assault of a sexual nature by defendant Alaeddin. As a result of Defendant Alaeddin’s harassing conduct, Plaintiff’s 5 10 H 12 13 20 2] 22 23 2A 25 26 27 28 ability'to perform her duties at work were compromised. The conduct of defendant Alaeddin as described herein constituted a hostile work environment due to sexual harassment. 17. Defendant Alaeddin’s harassing actions in his capacity as the Branch Manager of defendant BBVA’S Sunnyvale Branch and as the direct supervisor of the Plaintiff are grounds for strict liability against BBVA.USA. Additionally, Alaeddin’s acts of sexual harassment and.sexua1 assault against Plaintiff were knownj or partially’known, by other employees and managers of BBVA as defendant Alaeddin discussed Plaintiff’s appearance and his intentions toward.Doe with other BBVA employees. BBVA, despite knowledge of the harassing conduct, failed to conduct an investigation and/or take remedial measures to prevent further harassment fronxoccurring. Such conduct constitutes unlawful harassment in employment on account of sex in violatibn of Government Code section 12940(j)(1) and (k). 18. The conduct of the defendants and each of them as described herein violated Civil Code section 51.9 et seq. and constitutes sexual harassment as defined therein, as well as all common law claims of sexual harassment. As a direct and proximate result of the conduct of the defendants, as alleged herein, the Plaintiff is entitled to the remedies allowed by Civil Code section 52 et seq. l9. AS a direct and proximate result of the harassing, violent and discriminatory'acts and omissions alleged herein, by the defendants and each of them, the plaintiff has suffered loss of wages, both past and future, earning capacity and benefits. As a further result of the conduct of the defendants and each of them, the Plaintiff has [\J 15 16 17 18 22 23 2A 25 26 27 28 suffered the intangible loss of such employment-related.benefits and opportunities as promotion, job satisfaction, job security'and other employment related benefits. As a further result of the conduct of the defendants and each of them, the plaintiff has suffered anguish, aggravation, emotional and physical distress. As a result of the harm incurred by the Plaintiff and caused by the defendants and each of them, the plaintiff has suffered damages in an amount to be determined according to proof at trial. 20. The above alleged conduct by‘the defendants and each of them was done with malice, fraud and oppression, in a reckless disregard of the plaintiff’s rights under California Government Code sections 12940, and 12926(j) et seq. Specifically, the discriminatory and maliciofis acts were carried out by managing employees of the defendants who knew that the Plaintiff had not herself engaged in any misconduct and terminated her anyway because she informed her employer that she had decided to make a claim. As a result of such malicious, fraudulent, and oppressive actions on the part of the defendants and each of them, Plaintiff is entitled to an award of punitive damages in an amount sufficient to punish defendants and each of them to set an example to those similarly situated to defendants and each of them. SECOND CAUSE OF ACTION (Retaliation for Opposition to Sex Harassment) 21. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1 through 2O and incorporates those allegations herein as though set forth in full. 22. The provisions of FEHA prohibit employers from engaging in 7 rx.‘ 13 14 15 16 17 18 2O 2 22 23 2A 25 26 27 28 sexual harassment and discrimination. The Plaintiff was subjected to sexual harassment and related discrimination by the defendants and each of them. Plaintiff was constructively terminated by defendant BBVA after she was unable to perform her job related duties while working directly under defendant Alaeddin. 23. The conduct of the defendants and each of them, as alleged herein, prohibited the Plaintiff from working and constituted constructive termination in that the Plaintiff was not capable of continuing'to work at BBVA do to the discriminatory and harassing behavior by the defendants and each of them. 24. The termination of the Plaintiff by BBVA was a direct response to the Plaintiff’s attempts to protect her employment rights entrusted to her by FEHA. The termination of the Plaintiff was retaliatory in nature and in violation of Government Code section 12940(h) and 2 Cal. Code Reg. 7297.7. 25. As a direct and proximate result of the retaliatory, harassing and discriminatory acts alleged herein, by the defendants and each of them, the Plaintiff has suffered loss of wages, both past and future, earning capacity; and benefits. The Plaintiff has suffered the intangible loss of such employment related benefits and opportunities as promotionj job satisfactionq job security‘and other employment related benefits. As a further result of the retaliatory and discriminatory actions of the defendants and each of them, the Plaintiff has suffered mental anguish, aggravation.and.emotional and physical distress. As a result of the above described injuries, incurred by the Plaintiff and caused by the defendants and each of 15 16 17 22 23 2A 25 26 27 28 them, the Plaintiff has suffered damages in an amount to be determined according to proof at trial. 26. The above described conduct of the defendants and each of them was done with.ma1ice, fraud and oppression and in reckless disregard of plaintiff’s rights under California Government Code section 12940(a) et seq. Specifically, the discriminatory andlnalicious acts were carried out by managing employees of the defendants who knew that the Plaintiff had not herself engaged in any misconduct and terminated her anyway because of her attempts to enforce her legal rights. As a result of this malicious, fraudulent and oppressive conductvon the part of the defendant and each of them, plaintiff is entitled to an award.of punitive damages in an amount sufficient to punish the defendants and each of them and set an example to those similarly situated.to the defendants. Said punitive damages should be awarded in an amount proven according to proof at trial. THIRD CAUSE OF ACTION (Wrongful Termination in Violation of Public Policy) 27. Plaintiff repeats and realleges each of the allegations contained in paragraphs l through 26 and incorporates those allegations herein as though set forth in full. 28. Plaintiff is informed and believes and based thereon alleges, that she was terminated and/or constructively terminated from her employment solely‘as a consequence of the sexual harassment she was subjected to by defendant Alaeddin, Plaintiff’s refusal to engage in a sexual relationship with Alaeddin and Plaintiff’s insistence on protecting her legal rights related to the harassing and discriminatory behavior of defendants Alaeddin and BBVA. 9 N 10 H 12 13 19 20 fl 22 23 2A 25 26 27 28 29. It is the public policy of California as expressed in FEHA and common law that employees may not be retaliated or discriminated against for enforcing or attempting to enforce the employment laws which are designed to protect employees from their employer. 30. As a direct and proximate result of the Plaintiff’s termination by the defendants and each of them, in violation of public policy, Plaintiff has suffered.and will continue to suffer economic damages related to the loss of her health insurance, loss of wages and earning capacity and‘job opportunity; pain and suffering and extreme mental anguish and emotional distress. The plaintiff is thereby entitled to general and compensatory damages in an amount to be determined according to proof at trial. 31. The Plaintiff is informed, believes and.thereon alleges that the outrageous conduct of the defendants and each of them, as alleged herein, was done with malice, fraud and oppression; with conscious disregard for her rights; and with the intent, design and purpose of injuring the Plaintiff. Defendants and each of them ratified the unlawful conduct of all the other defendants named in this action. By reason thereof, the Plaintiff is entitled to punitive damages from all defendants in an amount to be determined at trial. 32. The conduct of all defendants was malicious and oppressive and done with a conscious disregard.of the plaintiff's rights. The acts of the defendants and each of them were performed with knowledge of an employers economic power over its employees. Defendants and each of them, through its officers, managing agents and or supervisors, authorized condoned and ratified the unlawful conduct of all other 10 15 16 17 18 19 20 W 22 23 2A 25 26 27 28 defendants. Consequently the Plaintiff is entitled to punitive damages from all defendants. FOURTH CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing) 33. Plaintiff repeats and realleges each of the allegations contained in paragraphs l through 32 and incorporates those allegations herein, as though set forth in full. 34. On or about March 11, 2019, the defendants and each of them made oral and written representations to the Plaintiff as stated herein above, that among other things and in consideration for the Plaintiff accepting the job at BBVA Plaintiff could expect to enjoy a long and profitable employment with the defendants and each of them. Additional terms of the agreement provided that Plaintiff’s employment would be secure as long as her performance was satisfactory, that Plaintiff would not be impeded in.her performance or her career expectations, that Plaintiff would.not be terminated without good cause and that Plaintiff would earn agreed upon wages and employment benefits. 35. Plaintiff undertook and continued employment and duly performed all of the conditions of the employment agreement to be performed by her until prevented from further performance by defendants and each of them. Plaintiff had at all times been ready, willing and able to perform all of the conditions of the agreement t0 be performed by her. 36. Defendants and each of them breached the covenant of good faith and fair dealing by: allowing the plaintiff to be groped, harassed ll 22 23 2A 25 26 27 28 and assaulted by Alaeddin, by constructively terminating the Plaintiffi by subjecting her to a hostile work environment, by failing to properly train and supervise Alaeddin by failing to investigate Alaeddin and by failing to protect the Plaintiff and persons in the Plaintiff’s position. 37. Plaintiff performed all conditions precedent to defendant’s performance of their obligations under the contract. Plaintiff’s performance was at all times satisfactory or above satisfactory. 38. The law imposed duties on the defendants, in connection with the employment agreement, to act fairly and in good faith towards the Plaintiff. Defendants covenanted to give full cooperation to the Plaintiff in her performance under the employment agreement and to refrain from any act which would prevent or impede any of the conditions of the employment agreement from being performed, which would deny the employment agreement or which would prevent the plaintiff from receiving the benefits of the employment agreement. 39. In or about August 2019 and throughout Plaintiff’s employment with the defendants, the defendants and each of them, breached these duties imposed by law in connection with the employment agreement by subjecting the Plaintiff to sexual harassment, a hostile work environment and.then constructively terminating the plaintiff on or about November 2S, 2019. 40. At the time the parties entered into the covenant, as alleged herein above, it was known and understood, and within the reasonable contemplation of the parties, that in the event of a breach, the Plaintiff would suffer loss of earnings and economic damages. AS a 12 N 13 14 15 2O 21 22 23 24 25 26 27 28 direct and proximate result of the aforementioned conduct by all defendants, the Plaintiff has suffered damages in an amount to be determined according to proof at trial. FIFTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) 41. Plaintiff repeats and realleges the allegations contained in paragraphs l through 4O and incorporates those allegations herein as though set forth in full. 42. In failing to protect the plaintiff from sexual harassment, sexual assault and discrimination and other offensive conduct as described herein, defendants abused their special position as the plaintiff’s employer which'vested defendants with inherent power to control Plaintiff’s work environment, her interests and well being. 43. Through the outrageous conduct described above, defendants and each of them, acted with the intent to cause, or with the reckless disregard for the Plaintiff’s rights, and with the probability of causing plaintiff to suffer emotional distress. 44. As a direct and proximate result of the acts and omissions of the defendants and each of them, Plaintiff has suffered and will continue to severe mental anguish.and emotional distress and she has suffered and will continue to suffer a loss of earnings and other losses related.to her employment related benefits and.opportunities. Plaintiff is therefore entitled to general and compensatory'damages in an amount to be determined according to proof at trial. 45. The acts described above were performed with the knowledge of an employer’s economic power over its employee and was ratified by all defendants through their conduct. The aforementioned conduct of 13 22 23 24 25 26 27 28 the defendants and each Of them was malicious and oppressive in nature and subjected the Plaintiff to a cruel and unjust hardship in conscious disregard of Plaintiff’s rights so as to justify an award of exemplary and punitive damages. SIXTH CAUSE OF ACTION (Battery) 46. Plaintiff repeats and realleges the allegations contained in paragraphs l through 45 and incorporates those allegations herein as though set forth in full. 47. The acts of the defendant Alaeddin as alleged herein constitute Battery pursuant to Penal Code section 242/243. All physical contact between.p1aintiff Doe and the defendant Alaeddin, as alleged herein, was unwanted by the Plaintiff, offensive to her and the direct result of the use of force, duress, fear and/or deceit by the defendant Alaeddin. 48. The Plaintiff did.not consent to the physical contact described herein and objected_to all physical contact and sexual overtures to her from defendant Alaeddin. 49. The acts which constitute Battery and all other conduct as alleged herein, by defendant Alaeddin, occurred at the Sunnyvale BBVA.USA.bank, occurred during work hours and were within the course and scope of the employment of defendant Alaeddin for defendant BBVA making BBVA vicariously liable for Alaeddin’s conduct. 50. As a direct and proximate result of the acts of the defendants and each of them as alleged herein, the Plaintiff has suffered psychological trauma, deep sadness, mental anguish, humiliation and physical and emotional distress and has been injured in the mind and 14 N 22 23 2A 25 26 27 28 in body all to plaintiff’s detriment with special and general damages in excess of the jurisdictional minimum of this court. 51. The aforementioned conduct Of the defendants and each of them was despicable, willful, wanton, malicious and‘oppressive, thereby justifying an award of punitive and exemplary damages pursuant to Civil Code section 1708.5 and section 3294 in an amount to be determined according to proof. WHEREFORE, Plaintiff Kimberly Doe prays for judgment against defendants, and each of them, as follows: 1. General Damages in an amount to be determined; 2. Special Damages in an amount to be determined; 3. A Civil Penalty of $25,000.00 pursuant to Civil Code 52(b); 4. For Punitive Damages, in an amount sufficient to punish the defendants and to deter similar conduct; 5. For attorney’s fees pursuant to Government Code section 12965(b) and Civil Code section 52(b); 6. For costs Of suit incurred herein; 7. For pre-judgment interest; 8. Such further relief as the court deems just and proper. FARLING, EECHT & DAVIS, LLP LCM , y“ ¢>tiif:;"r61~hmuwflwaflumuuflmflhflugMWVNmuflmeMivwaxm” Dated: November 19, 2020 By: fig, “Na Todd K. Davis Attorney fOr plaintiff Kimberly Doe 15
