Notice FiledCal. Super. - 5th Dist.September 16, 2021 DEFENDANT’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. Case No. 21CECG02785 DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Assigned for All Purposes to Judge Kristi Culver Kapetan TO PLAINTIFF AND TO PLAINTIFF’S COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on October 20, 2021, Defendant RANDSTAD GENERAL PARTNER (US), LLC (“Defendant”), filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, in the United States District Court for the Eastern District of California. A true and correct copy of Defendant’s Notice of Removal is attached hereto as Exhibit A. Dated: October 20, 2021 LITTLER MENDELSON P.C. RYAN L. EDDINGS Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC E-FILED 10/20/2021 3:29 PM Superior Court of California County of Fresno By: I. Herrera, Deputy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON F C mo harm Pm- Avenue Sun: m r rrrrrr 1:»: 937m 2225 559,244,15vv PROOF 0F SERVICE BY ELECTRONIC TRANSMISSION I am employed in Fresno County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 5200 North Palm Avenue, Suite 302, Fresno, California 937042225 On this 20th day of October, 2021, I served a copy of the within document(s): DEFENDANTRANDSTAD GENERAL PARTNER (US), LLC’S NOTICE T0 PLAINTIFF 0F REMOVAL 0F CIVILACTION T0 FEDERAL COURT Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list 0n the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is lhammond@littler.com: Amanda B. Whitten BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 Tel: (559) 494-4910 Email: amanda@bwlaw.com Courtesy copy: carrie@bwlaw.com I declare under penalty of perjury under the laws of the State 0f California that the above is true and correct. Executed 0n this 20th day 0f October, 2021, at Fresno, California. /s/ Camile Manning Camile Manning 4825-7835-51962 / 053141-1037 2 DEFENDANT’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION T0 FEDERAL COURT Exhibit A Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendant. Case No. NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Action Filed in State Court: 9/20/2021 FAC Filed in State Court: 10/18/21 Fresno County Superior Court Case No. 21CECG02785 TO THE CLERK OF COURT, TO THE PARTIES, AND TO THE PARTIES’ COUNSEL OF RECORD, PLEASE TAKE NOTICE THAT Defendant RANDSTAD GENERAL PARTNER (US), LLC, (“Defendant”), by and through the undersigned counsel, and pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, hereby gives notice of removal of this lawsuit from the Superior Court of the State of California, County of Fresno, to the United States District Court for the Eastern District of California (the “Notice of Removal”). In support of its Notice of Removal, Defendant respectfully submits to this Honorable Court the following information: STATEMENT OF JURISDICTION (DIVERSITY) 1. Removal jurisdiction exists because this Court has original jurisdiction over Plaintiff KIMBERLY SMITH’S (“Plaintiff”) operative First Amended Complaint (“FAC”) Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 1 of 85 2 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 pursuant to 28 U.S.C. § 1332, and which may be removed to this Court pursuant to 28 U.S.C. § 1441, as it is a civil action in which neither Plaintiff nor any Defendant are citizens of the same state and in which the amount in controversy exceeds $75,000, exclusive of interest and costs (Diversity Jurisdiction). Here, Plaintiff was a citizen of California at the time the FAC was filed in the Fresno County Superior Court and is not currently a citizen of either Delaware or Georgia. At the time Plaintiff’s FAC was filed, and also as of the time of this Removal, Defendant is a Delaware limited liability company and its sole member is Randstad North America, Inc., which is a Delaware corporation with its principal place of business in Atlanta, Georgia. As set forth herein, this case meets all of the requirements for removal, is timely, and is properly removed by the filing of this Notice. STATE COURT ACTION 2. On or about September 20, 2021, Plaintiff filed this action in the Fresno County Superior Court, titled Kimberly Smith v. Randstad General Partner (US), LLC, a Delaware Limited Liability Company, and DOES 1-20, inclusive, Case Number 21CECG02785 (the “Complaint”), which is attached hereto as Exhibit A, and which was served on Defendant on September 21, 2021. See concurrently-filed Declaration of Ryan L. Eddings (“Eddings Decl.”), at ¶ 2. On or about October 18, 2021, Plaintiff filed the operative First Amended Complaint (the “FAC”) in Fresno County Superior Court Case Number 21CECG02785, which pleading is attached hereto as Exhibit B. Plaintiff served the FAC on Defendant’s counsel on October 18, 2021. Eddings Decl., at ¶ 3. 3. Plaintiff’s FAC purports to assert nine causes of action against Defendant for: (i) discrimination and harassment based on medical condition, disability, and/or perceived disability in violation of California Government Code section 12940; (ii) failure to accommodate disability in violation of California Government Code section 12940(m); (iii) failure to engage in a good faith interactive process to determine effective reasonable accommodation in violation of California Government Code section 12940(n); (iv) retaliation for requesting accommodation in violation of California Government Code section 12940(m)(2); (v) failure to prevent discrimination, harassment and retaliation in violation of Government Code section 12940(k); (vi) retaliation for exercising rights under California Family Rights Act in violation of 2 Cal. Code Regs. section 11094; (vii) retaliation Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 2 of 85 3 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 in violation of California Labor Code section 233; (viii) wrongful discharge in violation of public policy; and, (ix) defamation. 4. Defendant filed a General Denial and Affirmative Defenses to Plaintiff’s original Complaint on or about October 18, 2021. A true and correct copy of the General Denial and Affirmative Defenses to Plaintiff’s original Complaint is attached hereto as Exhibit C. Defendant filed a General Denial and Affirmative Defenses to Plaintiff’s FAC on or about October 19, 2021. A true and correct copy of the General Denial and Affirmative Defenses to Plaintiff’s FAC is attached hereto as Exhibit D. TIMELINESS OF NOTICE OF REMOVAL 5. An action may be removed from state court by filing a notice of removal, together with a copy of all process, pleadings, and orders served on the defendant, within 30 days of Defendant receiving an “initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). Here, Plaintiff served her original Complaint on September 21, 2021. Eddings Decl., at ¶ 2. Therefore, Defendant can remove this action up to October 21, 2021. See FED. R. CIV. P. 6(a) (explaining that “the last day of the period shall be included, “but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.”). VENUE 6. Pursuant to 28 U.S.C. § 1391(a) and 28 U.S.C. § 1441, venue is proper in the United States District Court for the Eastern District of California insofar as Defendant conducts business within Fresno County, California, which is where Plaintiff was employed, where the instant action was originally filed, and which is within this Court’s jurisdiction. NOTICE TO PLAINTIFF 7. As required by 28 U.S.C. § 1446(d), Defendant provided written notice of the filing of this Notice of Removal to Plaintiff. See Defendant’s Notice to Plaintiff of Removal to Federal Court, attached hereto as Exhibit E. / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 3 of 85 4 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 NOTICE TO THE SUPERIOR COURT 8. Defendant also filed this Notice of Removal with the Clerk of the Fresno County Superior Court. See Defendant’s Notice to State Court of Removal of Civil Action to Federal Court, attached hereto as Exhibit F. FACTS AND LAW SUPPORTING DIVERSITY JURISDICTION 9. This action is a civil action of which this Court has original jurisdiction under 28 U.S.C. § 1332 and is one which may be removed to this Court by Defendant pursuant to the provisions of 28 U.S.C. § 1441(b). Specifically, this is a civil action between citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs, because Plaintiff claims that she is entitled to an award in excess of $75,000 as result of Defendant’s alleged conduct. A. Citizenship of Parties 10. Defendant is informed and believes that Plaintiff is a citizen and resident of the State of California. See FAC, ¶ 1 (“Plaintiff… is an adult residing in Fresno County, California...”). 11. “[T]he citizenship of an LLC for purposes of the diversity jurisdiction is the citizenship of its members.” Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir. 1998); Johnson v. Columbia Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). Defendant is a limited liability company duly organized and existing under the laws of the State of Delaware, and it maintains its principal place of business in Atlanta, Georgia. See concurrently-filed Declaration of Twaneesa Mallory in Support of Defendant’s Notice of Removal of Civil Action to Federal Court (“Mallory Decl.”), at ¶¶ 2-3. Defendant’s sole member is Randstad North America, Inc., which is a Delaware corporation with its principal place of business in Atlanta, Georgia. Mallory Decl., at ¶¶ 2-3. A corporation “shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” 28 U.S.C. § 1332(c)(1). Because the citizenship of a limited liability company is determined by the citizenship of its members, Defendant is a citizen of Delaware and Georgia. Therefore, for purposes of diversity jurisdiction, Defendant is a citizen of Delaware and Georgia. Defendant is not a citizen of California. Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 4 of 85 5 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 B. Amount in Controversy 12. Where a complaint leaves the amount in controversy unclear or ambiguous, the defendant has the burden of proving by a preponderance of evidence that the amount in controversy exceeds $75,000. See Singer v. State Farm Mutual Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997). This framework requires the removing defendant to establish that the plaintiff’s total damages “more likely than not” exceed the jurisdictional amount. Sanchez v. Monumental Life Ins. Co., 102 F.3d 399 (9th Cir. 1996). In measuring the amount in controversy, the Court must assume that the allegations of the FAC are true and that a jury will return a verdict in favor of Plaintiff on all claims asserted in the FAC. Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 1001 (C.D. Cal. 2002). Economic damages, non-economic damages, general damages, attorneys’ fees and costs, and punitive damages all are included in determining the amount in controversy. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-1156 (9th Cir. 1998) (prayer for attorneys’ fees included in determining the amount in controversy where potentially recoverable by statute); Gonzales v. CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 2016) (stating that compensatory and punitive damages are included in determining the amount in controversy). 13. Here, Defendant reasonably and in good faith believes that the amount put in controversy herein exceeds the jurisdictional requirement of 28 U.S.C. § 1332(a). Should Plaintiff prevail on her claims for violations of the California Fair Employment and Housing Act, the California Labor Code, wrongful termination in violation of public policy, and defamation, she would be entitled to recover the amount she would have earned up to the present date, including benefits or pay increases. See Wise v. Southern Pac. Co., 1 Cal.3d 600, 607 (1970). Defendant employed Plaintiff as a Regional Vice President at the time of the resignation of her employment on May 17, 2021. See FAC, ¶¶ 11-19. At the time of her resignation, Plaintiff’s annual base salary was $157,090.20 (or approximately $3,020.96 per week). Mallory Decl., ¶ 4. Plaintiff was also eligible for various incentive-based compensation, payments for which could amount to thousands of dollars. Mallory Decl., ¶ 4. Plaintiff seeks lost income from the date of her resignation on May 17, 2021, through to the present and into the future. See FAC, ¶¶ 22, 24, 29, 34, 39, and 45 (“As a direct and proximate result of the Defendant's acts of discrimination and retaliation, Plaintiff has suffered and continues to Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 5 of 85 6 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received.”) As of the date of this Notice of Removal, it has been approximately twenty-three weeks since Plaintiff was separated from employment. Given Plaintiff’s rate of pay, Plaintiff alleges to have suffered at least $69,482.08 ($3,020.96 x 23 weeks) in damages from lost income alone as of the date of this filing, with damages continuing into the future through trial continuing at the rate of approximately $3,020.96 per week. 14. Additionally, Plaintiff seeks an award of attorneys’ fees in connection with her claims for violation of the California Fair Employment and Housing Act and for violation of the California Labor Code. FAC, ¶¶ 24, 25, 30, 31, 36, 37, 42, 43, 48, 49, 55, 56, 61, 62, 67, 68, 75, 77, 87. Attorney’s fees are also included in the amount in controversy calculation when the underlying claims permit recovery of attorneys’ fees. Galt G/S, 142 F.3d at 1156. One relatively recent Eastern District case involving similar allegations of discrimination, retaliation and whistleblowing resulted in fees exceeding half a million dollars. Jadwin v. County of Kern, 767 F. Supp. 2d 1069, 1141 (E.D. Cal. 2011) (approving award of $535,700 in attorneys’ fees in employment case involving discrimination, retaliation and whistleblowing claims); see also Rivera v. Costco Wholesale Corp., 2008 U.S. Dist. LEXIS 58610, *12-13 (N.D. Cal. 2008), citing Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1035 (N.D. Cal. 2002) (“attorneys’ fees in individual discrimination cases often exceed the damages”). Accordingly, attorneys’ fees alone are likely to be greater than $75,000. 15. Plaintiff also seeks damages for emotional distress she alleges she suffered. See FAC, ¶¶ 22, 28, 34, 40, 46 (“She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof.”) Plaintiff’s claim for emotional distress damages further augments the foregoing amounts and demonstrates that the jurisdictional prerequisite for removal of this action is met. See Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999) (claims for pain, suffering and humiliation properly may be factored into the jurisdictional analysis for purposes of removal). Although Defendant disputes that Plaintiff is entitled to any such award, plaintiffs in employment cases have been awarded substantial sums for emotional distress. See, e.g., Swinton v. Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 6 of 85 7 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Potomac Corp., 270 F.3d 794 (9th Cir. 2001), cert. denied, 535 U.S. 1018 (2002) (award of $30,000); Dotson v. United States, 87 F.3d 682 (5th Cir. 1996) (award of $25,000). In Kroske v. U.S. Bank Corp., 432 F.3d 976 (9th Cir. 2005), cert denied, 127 S.Ct. 157 (2006), the Ninth Circuit upheld the lower court’s finding that the amount in controversy had been established. In reaching its holding, the Ninth Circuit reasoned that the plaintiff’s “emotional distress damages would add at least an additional $25,000 to her claim” where she had only $55,000 in lost wages, thus satisfying the amount in controversy requirement “even without including a potential award of attorney’s fees.” Id. at 980. A similar result is compelled here, as Plaintiff expressly seeks damages for emotional distress and lost wages is at issue. Thus, based on Kroske and other analogous cases, the emotional distress component of Plaintiff’s claims is likely to add at least $25,000 to the amount in controversy, if not more. The foregoing, when taken together with Plaintiff’s claims for back pay, front pay, and attorney’s fees, easily places the amount of controversy in excess of $75,000. 16. The amount in controversy includes punitive damages unless (1) punitive damages are not recoverable as a matter of state law, and (2) it is a legal certainty that plaintiff would not be entitled to recover the jurisdictional amount. See Anthony v. Security Pac. Fin. Servs., 75 F.3d 311, 315 (7th Cir. 1996); St. Paul Reinsurance Co., Ltd. v. Greenberg (5th Cir. 1998) 134 F.3d 1250, 1253-1254. Here, Plaintiff alleges that she is entitled to punitive damages for Defendant’s alleged misconduct but does not provide a total amount of the alleged punitive damages sought. See FAC, ¶¶ 23, 29, 35, 41, 47, 54, 60, 61, 66, 74, 76, 85 and 86. With respect to punitive damages, California law does not provide any specific monetary limit on the amount of punitive damages which may be awarded under Civil Code section 3294, and the proper amount of punitive damages under California law is based on the reprehensibility of a defendant’s misdeeds, the ratio between compensatory and punitive damages, and ratio between damages and a defendant’s net worth. Boyle v. Lorimar Productions, Inc., 13 F.3d 1357 (9th Cir. 1994). Jury verdicts in disability discrimination cases in California reflect the likelihood that if Plaintiff prevails at trial, her damages would clearly exceed the $75,000 amount in controversy threshold. See e.g., Rivera, 2008 U.S. Dist. LEXIS 58610 at *10-11, citing Kolas v. Access Business Group LLC, 2008 WL 496470 (Los Angeles Super. Ct.) (jury awarded Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 7 of 85 8 Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 the plaintiff $200,000 in emotional distress damages for wrongful termination due to his age and an injury he incurred on the job); Lopez v. Bimbo Bakeries USA Inc., 2007 WL 4339112 (San Francisco Super. Ct.) (jury awarded the plaintiff $122,000 in emotional distress damages and $2,000,000 in punitive damages for wrongful termination, failure to prevent discrimination and failure to accommodate a pregnant employee who requested fifteen minute breaks every two hour); Wysinger v. Automobile Club of Southern California, 2006 WL 397031 (Santa Barbara Super. Ct.) (awarding $1,000,000 in punitive damages to an employee terminated due to his age and disability). Although Defendant vigorously denies Plaintiff’s allegations, if Plaintiff were to prevail on her claims, the punitive damages alone could exceed the jurisdictional minimum. 17. Thus, while Defendant’s position is that Plaintiff is not entitled to damages in any amount, the total amount in controversy appears to be, at a minimum, well over $75,000 as of the date of this Notice of Removal. This sum is reflective of the alleged sum of $69,482.08 in lost income to date, $25,000 in emotional distress damages, a possible award of punitive damages, and Plaintiff’s request for attorney’s fees. Taken together with the addition of any prejudgment and post-judgment interest, it is more likely than not that the total amount in controversy exceeds the jurisdictional amount of $75,000. WHEREFORE, pursuant to 28 U.S.C. §1332, 1441, and 1446, Defendant removes this case from the Superior Court of the State of California, County of Fresno, to the United States Court for the Eastern District of California. Dated: October 20, 2021 LITTLER MENDELSON P.C. Ryan L. Eddings Vanessa M. Cohn Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC 4823-6169-3692.3 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 8 of 85 Exhibit A Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 9 of 85 Notice of Service of Process JWG / ALL Transmittal Number: 23802922 Date Processed: 09/22/2021 Primary Contact: Karen Lubrano Randstad US - Spherion Corporation 2050 Spectrum Blvd Fort Lauderdale, FL 33309-3008 Electronic copy provided to: Jenna Debs Rob Calabro Entity: Randstad General Partner (US) LLC Entity ID Number 1922170 Entity Served: Randstad General Partner (US), LLC Title of Action: Kimberly Smith vs. Randstad General Partner (US), LLC Matter Name/ID: Smith, Kimberly v. Randstad General Partner (Us), LLC (11500030) Document(s) Type: Summons/Complaint Nature of Action: Discrimination Court/Agency: Fresno County Superior Court, CA Case/Reference No: 21CECG02785 Jurisdiction Served: California Date Served on CSC: 09/21/2021 Answer or Appearance Due: 30 Days Originally Served On: CSC How Served: Personal Service Sender Information: Amanda B. Whitten 559-494-4910 Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action. To avoid potential delay, please do not send your response to CSC 251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 10 of 85 S U M M O N S FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE) (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): E-FILED RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited 9/20/2021 liability company, and Does 1 through 20, inclusive, Superior Court of California County of Fresno YOU ARE BEING SUED BY PLAINTIFF: By: C. York, Deputy (LO ESTA DEMANDANDO EL DEMANDANTE): KIMBERLY SMITH NOTICE! You have been sued. The court may decide against you without your being heard un!ess you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call wi[[ not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-He[p Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not fi!e your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other [ega[ requirements. You may want to ca[I an attorney right away. If you do not know an attorney, you may want to ca[I an attorney referral service. If you cannot afford an attorney, you may be eligib!e for free legal services from a nonprofit legal services program. You can [ocate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the Ca[ifornia Courts On[ine Se[f-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your [oca[ court or county bar association. NOTE: The court has a statutory [ien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's [ien must be paid before the court wi[[ dismiss the case. iAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidiren su contra sin escucharsu versi6n. Lea la informaci6n a continuaci6n. Tiene 30 DIAS DE CALENDARIO despu6s de que le entreguen esta citaci6n y pape/es legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telef6nica no /o protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usarpara su respuesta. Puede encontrar estos formularios de la corte y mas informaci6n en el Centro de Ayuda de /as Cortes de California (www.sucorte.ca.gov), en la biblioteca de /eyes de su condado o en /a corte que le quede m3s cerca. Si no puede pagar la cuota de presentaci6n, pida a/ secretario de la corte que le d6 un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tfempo, puede perder el caso por incumplimiento y la corte le podrb quitar su sueldo, dinero y bienes sin mbs advertencia. Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con /os requisitos para obtener servicios Iegales gratuitos de un programa de servicios /ega/es sin fines de lucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services, (www.[awhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poni6ndose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un grravamen sobre cualquierrecuperaci6n de $10,000 6 mas de valorrecibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar e/ caso. The name and address of the court is: CASE NUMSER: 21 CECG02785 (EI nombre y direcci6n de la corte es): Fresno County Superior Court (Numero del Caso): 1130 "O" Street Fresno, California 93721 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (EI nombre, la direcci6n y el n(imero de telefono del abogado del demandante, o del demandante que no tiene abogado, es): Amanda B. Whitten - 8050 North Palm Avenue, Suite 210, Fresno, California 93711 - 559.494.4910 DATE: (Fecha) 9/20/2021 Clerk, by (Secretario) C. York Deputy (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED Y d . ou are serve 1. as an individual defendant. 2. 0 as the person sued under the fictitious name of (specify): 3. = on behalfof (specify): RANDSTAD GENERAL PARTNER (US),LLC, a Delaware limited liability company under: 0 CCP 416.10 (corporation) Q CCP 416.60 (minor) ~ CCP 416.20 (defunct corporation) Q CCP 416.70 (conservatee) ~ CCP 416.40 (association or partnership) Q CCP 416.90 (authorized person) ~ other (specify): LLC 4. = by personal delivery on (date): Paae 1 of 1 SUMMONS Code of Civil Procedure §§ 412.20, 465 www.courtinfo.ca.gov Form Adopted for Mandatory Use Judicfal Council of Califomia SUM-100 [Rev. July 1, 2009] Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 11 of 85 SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO Civil Unlimited Department, Central Division FOR COUR7 USE ONLY 1130 "O" Street 9/20/2021 Fresno, California 93724-0002 (559) 457-1900 Filed by Court TITLE OF CASE: Kimberly Smith vs. Randstad General Partner (US), LLC NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF CASE NUMBER: JUDGE FOR ALL PURPOSES 1 210ECG02785 Amanda B. Whitten To AII Parties and their Aftorneys of Record: Bryant Whitten LLP 8050 North Palm Avenue Suite 210 Fresno CA 93711 This case has been assigned to Kristi Culver Kapetan, Judge for all purposes. AII future hearings will be scheduled before this assigned judge, in Department 403 You are required to appear at a Case Management Conference on 01/19/2022 at 3:30 PM in Department 402 of the Court located at 1130 "O" Street, Fresno, California. You must comply with the requirements set forth in the Superior Court of Fresno County, Local Rules, Chapter 2. Failure to appear at the conference may result in imposition of sanctions, waiver of jury trial, or other adverse consequences. Defendants: Appearance at the Case Management Conference does not excuse you from having to file your response in proper legal form within 30 days after the summons is served on you. Failure to file a response in a timely manner may result in adverse consequences, including a default judgment being entered against you. If you do not have an attorney and wish to retain one, there are attorney referral services, legal aid offices, and private practice attorneys in the Fresno area (most may be found on the internet or the local phone book). DECLARATION I declare under penalty of perjury under the laws of the State of California that I gave a copy of the Notice of Case Management and Assignment of Judge for AII Purposes to the person who presented this case for filing. Date: 9/20/2021 Clerk, by Chelsey York , Deputy CV-48 R07-21 NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF JUDGE FOR ALL PURPOSES OPTIONAL Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 12 of 85 ATTORNEY OR PARTY VWITHOUT ATTORNEY (Name, State Bar number, and address): - Amanad B. Whitten - #251160 BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, California 93711 TELEPHONE NO.: 559.494.4910 FAx NO.: 559.421.0369 ATTORNEY FOR (Name): Plalntlff, Kunberly Smith iUPERIOR COURT OF CALIFORNIA, COUNTY OF Fresno STREETADDRESS: 1130 " 0 " Street MAILING ADDRESS: CITY AND zIP CODE: Fresno, Calif ~ o ~~ rn .7,~ ia 93721 BRANCHNAME: B.F. S1skCoUlLilouse CASE NAME: Smith v. Randstad General Partner SA , LLC CIVIL CASE COVER SHEET Complex Case Designation M Unlimited Q Limited (Amount (Amount ~ Counter Q Joinder demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) FOR COURT USE ONLY E-FILED 9/16/2021 4:13 PM Superior Court of California County of Fresno By: C. York, Deputy CASE NUMBER: 21 CECG02785 JUDGE: DEPT: Ifp.rY1.4 1-Fi hAlOw R71/.St hp. Cr1rr)nlp.tp.ft /SBB InSfrllCllnnS On nadE Ll_ Check one box below for the case type that best describes this case: Auto Tort ~ Contract 0 Breach of contract/warranty (06) Auto (22) 0 Uninsured motorist (46) Rule 3.740 collections (09) Other PIIPD/VI/D (Personal Injury/Property 0 Other collections (09) Damage/Wrongful Death) Tort ~ 0 Insurance coverage (18) Asbestos (04) 0 Product liability Q Other contract (37) (24) 0 Real Property Medical malpractice (45) Q Eminent domain/Inverse 0 Other PI/PD/WD (23) ~ condemnation (14) Non-PI/PD/WD (Other) Tort Wrongful eviction (33) = Business tort/unfair business practice (07) 0 Other real property (26) 0 Civil rights (08) ~ Defamation (13) 0 Fraud (16) ~ Intellectual property (19) ~ Professional negligence (25) 0 Other non-PI/PDM/D tort (35) Em loyment Wrongful termination (36) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) 0 Antitrust/Trade regu[ation (03) Q Construction defect (10) 0 Mass tort (40) ~ Securities litigation (28) ~ Environmentallroxic tort (30) 0 Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment Q Enforcement ofjudgment (20) Miscellaneous Civil Complaint ~ RICO (27) 0 Other complaint (not specified above) (42) Miscellaneous Civil Petition 0 Partnership and corporate governance (21) Q Other petition (not specified above) (43) Unlawful Detainer ~ Commercial (31) ~ Residential (32) 0 Drugs (38) Judicial Review Q Asset forfeiture (05) ~ Petition re: arbitration award (11) ~ Writ of mandate (02) U Other emp[oyment (15) U Other'udicial review 39 2. This case is is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the d.Q Large number of witnesses e.0 Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court f. = Substantial postjudgmentjudicial supervision b.M nonmonetary; declaratory or injunctive relief C. ✓Opunitive 4. Number of causes of action (specify): Nine (9) 5. This case 0 is ✓~ is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You Date: September 16, 2021 ~ AMANDA B. WHITTEN (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failur.e to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. __ Fonn Adopted for Mandatory Use CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.740; Judicial Council of Califomia Cal. Standards of Judicial Administration, std. 3.10 CM-010 [Rev. July 1, 2007] www.courtinto.ca.gov factors requiring exceptional judicial management: a. Q Large number of separately represented parties b. Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve C. Substantial amount of documentary evidence 3. Remedies sought (check all that apply): a.© monetary ~ for~M-095.) -~.~~___ Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 13 of 85 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A"collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintifPs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)-Personal Injury/Property Breach of ContractlWarranty (06) Rules of Court Rules 3.400-3.403) DamageNVrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) motorist claim subject to Contract/VVarranty Breach-Seller Securities Litigation (28) arbitration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead ofAuto) Negligent Breach of ContracU Insurance Coverage Claims Other PIIPD/WD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breach of Contract/Warranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Collection Case-Seller Plaintiff Abstract of Judgment (Out of Asbestos Personal Injury/ Other Promissory Note/Collections County) Wrongful Death Case Confession of Judgment (non- Product Liability (not asbestos or Insurance Coverage (not provisionally domestic relations) toxic%nvironmental) (24) complex) (18) Sister State Judgment Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice- Other Coverage (not unpaid taxes) Physicians & Surgeons Other Contract (37) Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Other PI/PDMlD (23) Real Property Case Premises Liability (e.g., slip Eminent Domain/Inverse Miscellaneous Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily Injury/PDNVD Wrongful Eviction (33) Other Complaint (not specified (e.g., assault, vandalism) Other Real Property (e.g., quiet tit[e) (26) above) (42) Intentional Infliction of Writ of Possession of Real Property Declaratory Relief Only Emotional Distress Mortgage Foreclosure Injunctive Relief Only (non- Negligent Infliction of Quiet Title harassment) Emotional Distress Other Real Property (not eminent Mechanics Lien Other PI/PD/WD domain, landlord/tenant, or Other Commercial Complaint Non-PIIPD/WD (Other) Tort foreclosure) Case (non-tort/non-complex) Business Tort/Unfair Business Unlawful Detainer Other Civil Complaint Practice (07) Commercial (31) (non-tort/non-complex) Miscellaneous Civil Petition Civil Rights (e.g., discrimination, Residential (32) Partnership and Corporate false arrest) (not civil Drugs (38) (if the case involves illegal Governance (21) harassment) (08) drugs, check this item; otherwise, Other Petition (not specified Defamation (e.g., s[ander, libel) report as Commercial or Residential) above) (43) (13) Judicial Review Civil Harassment Fraud (16) Asset Forfeiture (05) Workplace Violence Intellectual Property (19) Petition Re: Arbitration Award (11) Elder/Dependent Adult Professional Negligence (25) Writ of Mandate (02) Abuse Legal Malpractice Writ-Administrative Mandamus Election Contest Other Professional Malpractice Writ-Mandamus on Limited Court Petition for Name Change (notmedical orlegal) Case Matter Petition for Relief From Late Other Non-PI/PDNdD Tort (35) Writ-Other Limited Court Case Claim Employment Review Other Civil Petition Wrongful Termination (36) Other Judicial Review (39) Other Employment (15) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CM-010 [Rev. July 1, 2007] CIVIL CASE COVER SHEET Pa9e 2 or z Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 14 of 85 1 AMANDA B. WHITTEN - #251160 BRYANT WHITTEN, LLP 2 8050 North Palm Avenue, Suite 210 Fresno, California 93711 3 (559) 494-4910 Telephone (559) 421-0369 Facsimile 4 5 6 I Attorneys for Plaintiff, KIMBERLY SMITH 7 8 E-FILED 9/16/2021 4:13 PM Superior Court of California County of Fresno By: C. York, Deputy SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 9 10 KIMBERLY SMITH, Case No. 21 CECG02785 11 Plaintiff, C O M P L A I N T F O R DISCRIMINATION BASED ON 12 DISABILITY AND/OR PERCEIVED DISABILITY, FAILURE TO 13 RANDSTAD GENERAL PARTNER (US), PREVENT DISCRIMINATION, LLC, a Delaware limited liability company, and FAILURE TO ENGAGE IN THE 14 Does 1 through 20, inclusive, INTERACTIVE PROCESS, FAILURE TO ACCOMMODATE, AND 15 Defendants. RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND 16 HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE 17 LAWS, VIOLATION OF LABOR CODE §233, WRONGFUL 18 CONSTRUCTIVE DISCHARGE, DEFAMATION, PUNITIVE 19 DAMAGES AND ATTORNEYS' FEES 20 DEMAND FOR JURY TRIAL 21 COMES NOW, Plaintiff, Kimberly Smith, and alleges as follows: 22 GENERAL ALLEGATIONS 23 1. Plaintiff, Kimberly Smith (hereinafter referred to as "Plaintiff'), is an adult residing 24 in Fresno County, California, and was an employee of Defendant, Randstad General Partner (US), 25 LLC, commencing employment on or about June 9, 1998, until on or about May 17, 2021, when she 26 ' was wrongfully discharged. 27 I 2. Defendant, Randstad General Partner (US), LLC, (hereinafter referred to as 28 "Randstad"), is a Delaware limited liability company doing business in Fresno County, California. I PLAINTIFF'S COMPLAINT Page 1 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 15 of 85 1 3. The true names and capacities of the defendants named herein as Does 1 through 20, 2 inclusive, whether individual, corporate, associate or otherwise, are unknown to the Plaintiff who, 3 therefore, sues such defendants by fictitious names pursuant to California Code of Civil Procedure 4 §474. Plaintiff is informed and believes, and on that basis alleges that each defendant sued under such 5 fictitious name is in some manner responsible for the wrongs and the damages as alleged below, and 6 in so acting was functioning as the owner, shareholder, agent, servant, partner, joint venturer, alter- 7 ego, employee, proxy, managing agent, and principal of the co-defendants, and in doing the actions 8 mentioned below was acting, at least in part, within the course and scope of their authority as such 9 agent, servant, proxy, partner, joint venturer, employee, alter-ego, managing agent, and principal with 10 the permission and consent of the co-defendants. 11 4. Plaintiff is informed and believes, and thereupon alleges, that each of the defendants 12 sued herein was, at all times relevant hereto, the employer, owner, shareholder, principal, joint 13 venturer, proxy, agent, employee, supervisor, representative, manager, managing agent, joint employer 14 and/or alter-ego of the remaining defendants, and was acting, at least in part, within the course and 15 scope of such employment and agency, with the express and implied permission, consent and 16 knowledge, approval and/or ratification of the other defendants. The above co-defendants and 17 managing agents and supervisors aided, abetted, condoned, permitted, wilfully ignored, approved, 18 authorized and/or ratified the unlawful acts described herein. 19 5. Venue is proper in this county because the employment relationship between Plaintiff 20 I and Defendant, Employer, arose and was performed in Fresno County, California, and Defendant 21 Smith is a resident of Fresno County, California. This court is the proper court because the amount 22 at issue exceeds the jurisdictional minimum of this court. 23 6. At all times herein, Plaintiff was duly qualified and performed her employment duties 24 I in a satisfactory manner. Plaintiff performed and was willing to continue to perform all duties and 25 I responsibilities on her part to be performed, which duties and responsibilities were part of the 26 employment relationship between Defendant, Employer, and Plaintiff. 27 7. Plaintiff was at all times an employee covered by Government Code §§ 12940 et seq. 28 I prohibiting discrimination in employment on the basis of inedical condition, disability and/or PLAINTIFF'S COMPLAINT Page 2 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 16 of 85 1 perceived disability and was therefore a member of the group sought to be protected by this statute. 2 8. Defendant, Employer, was an employer within the meaning of California Government 3 I Code § 12926(d) and, as such, was and is barred from unlawfully discriminating in employment 4 I decisions on the bases set forth in Govecnment Code §§ 12940 et seq.. 5 9. As an employee of Defendant, Employer, Plaintiff was entitled to all of the benefits 6 I provided by Employer's personnel policies, procedures and practices, as well as those confirmed in 7 ~ the by-laws governing said organization. 8 10. This action is brought to remedy discrimination against Plaintiff in the terms, 9 conditions and privileges of employment and to remedy retaliation against Plaintiff. 10 11. Plaintiff began working for Defendant, Employer, in or about June of 1998 as a 11 recruiter in its Madera office. Throughout her employment with Defendant, Employer, Plaintiff was 12 promoted multiple times. At the time of her termination, Plaintiff held the position of Regional Vice 13 President. As Regional Vice President, Plaintiff was responsible for overseeing various Randstad 14 locations throughout the Central Valley. 15 12. On or about Apri121, 2021, Plaintiff suffered an anxiety attack. Plaintiff continued 16 having anxiety attacks over the course of the next few days. Plaintiff called her supervisor, Joel Smith, 17 and told him about him her medical condition. Supervisor Smith, responded by telling Plaintiffto take 18 I time off and to delegate one of the accounts she was responsible for to someone else. 19 13. Following her conversation with Supervisor Smith, andper the advice ofherphysician, 20 I Plaintiff requested and took medical leave. 21 14. Upon her return on or about April 27, 2021, Supervisor Smith, set up a call with 22 Plaintiff. Supervisor Smith, asked Plaintiff how she was doing and Plaintiff answered honestly, telling 23 Supervisor Smith that she was still struggling with her mental health. Supervisor Smith, responded 24 by telling Plaintiff that he was under the impression that as a result of her mental health issues, 25 Plaintiff was going to resign. Plaintiff was shocked at Supervisor Smith's comment as she had never 26 indicated she was going to resign. Plaintiff was extremely distressed that after revealing her disability 27 to Supervisor Smith, and requesting and taking medical leave, Supervisor Smith, considered her unfit 28 and unable to do her job. PLAINTIFF'S COMPLAINT Page 3 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 17 of 85 1 15. During that same phone call, Supervisor Smith, again told Plaintiff to delegate one of 2 her accounts to someone else. Supervisor Smith, also told Plaintiff that he was taking away the entire 3 Bakersfield region from Plaintiff which included numerous accounts and instead delegating it to 4 someone else as well. Plaintiff was completely shocked. She had never once agreed to giving up more 5 than one, let alone numerous accounts. Not only would this substantially reduce Plaintiff's 6 responsibilities but it would also reduce her ability to receive bonuses and other benefits. This 7 constituted a demotion. Plaintiff complained to Supervisor Smith, about his decision but despite her 8 complaints, Supervisor Smith, took the accounts from Plaintiff anyway. Supervisor Smith, continued 9 by telling Plaintiff that there were issues with her performance. Plaintiff was confused as she had 10 never once been told there were any problems with her performance. In fact, just a couple of weeks 11 before she disclosed her disability, she had received a raise. Plaintiff was extremely distressed by 12 Supervisor Smith's conduct. 13 16. The following day, on or about Apri128, 2021, Plaintiff submitted a survey response 14 I to the human resources department. In her response, Plaintiff explained that she was struggling with 15 her mental health and felt that she had been treated unfairly ever since disclosing that information to 16 Defendant, Employer. To her knowledge, no action was taken. 17 17. On or about May 5, 2021, Plaintiff contacted the human resources representative 18 reiterating her complaints that ever since she had disclosed her disability, she had been treated 19 unfairly. Plaintiff complained about Supervisor Smith's conduct and his decision to strip Plaintiff of 20 multiple accounts after she told him she had a disability. Instead of offering Plaintiff some support, 21 the human resources representative told Plaintiff that "business decisions were business decisions." 22 Plaintiff was extremely distressed that no one, not even human resources, was willing to help her or 23 put an end to the discriminatory conduct. Plaintiff felt like she had no one at Defendant, Employer, 24 who she could turn to for help. 25 18. Following her return from medical leave in late April of 2021, Supervisor Smith's 26 conducttowards Plaintiff changed. Supervisor Smith, continuously subjected Plaintiffto unwarranted 27 and unjustified criticism regarding her j ob performance. In addition, Defendant. Smith, was often rude 28 to Plaintiff, cutting her offwhen she attempted to ask questions or raise concerns about the Bakersfield PLAINTIFF'S COMPLAINT Page 4 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 18 of 85 region. Supervisor Smith, began requiring that human resources and Doug Hammond, Supervisor 2 Smith's superior, sit in on his communications with Plaintiff. Plaintiff was confused as nobody had 3 ever been required to sit in on her calls with Supervisor Smith, until now. During one of these calls, 4 Plaintiff voiced her concerns that she had a disability and felt she had been treated unfairly ever since 5 telling Supervisor Smith, about it. Again, to her knowledge, no action was taken. Plaintiff was 6 extremely distressed that Defendants Smith and Employer treated her like she suddenly did not know 7 how to do her job ever since she disclosed her disability and requested and took medical leave. 8 19. On or about May 17, 2021, Plaintiff was forced to resign from her job with Defendant, r Employer. Defendant's failure to do anything about the discriminatory conduct towards Plaintiff and 10 Defendant, and Smith's behavior towards Plaintiff, made the work environment so intolerable that 11 Plaintiff could not continue to work there. Additionally, Plaintiff knew that without the Bakersfield 12 region, she was being set up for continued claims of poor performance and imminent termination. 13 She was forced to resign from her job. 14 20. Plaintiff is informed and believes that the reason Defendant, Employer, demoted her 15 and forced her to resign is pretextual. The true reasons for Plaintiff's demotion and forced resignation 16 are that Defendant, Employer, believed that she was disabled and unable to perform any job duties, 17 the she needed accommodation, that she requested accommodation and that she requested and took 18 medical leave to care for her own serious medical condition. This conduct by Defendant, Employer, 19 violated the California Fair Employment and Housing Act, the California Family Rights Act and 20 California Labor Code §233. 21 21. Plaintiff filed a charge of discrimination with the Department of Fair Employment and 22 Housing ("DFEH") against Defendant, Employer, complaining of the acts of discrimination and 23 retaliation as alleged therein. Plaintiff received a"Right to Sue Letter" from the DFEH dated August 24 13, 2021, a true and correct copy of which is attached hereto as Exhibit "A." On or about August 13, 25 2021, Plaintiff notified the California Labor and Workforce Development Agency ("LWDA") 26 regarding Defendant, Employer's violation of the Labor Code. As of the date of filing this Complaint, 27 LWDA had not responded. Therefore, Plaintiff has exhausted her administrative remedies. 28 PLAINTIFF'S COMPLAINT Page 5 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 19 of 85 1 22. As a direct and proximate result of the Defendant's acts of discrimination and 2 1 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 3 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 4 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 5' humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 6 23. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 7 in an action for which they are specifically provided by statute. Califoi-nia Government Code § 12965 8 and Labor Code §2699 provide that reasonable attorneys' fees and costs are recoverable herein by the 9 prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the 10 prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys' fees and costs 11 I herein incurred. 12' 13 14 15 i 16 II 17 18 li 19 20 21 FIRST CAUSE OF ACTION Discrimination and Harassment Based on Medical Condition, Disability and/or Perceived Disability in Violation of Government Code §12940 24. The allegations of paragraphs 1 through 23 are re-alleged and incorporated herein by I reference. 25. The California Government Code provides at Section 12940, in pertinent part: "It shall be an unlawful employment practice ...(a) For an employer, because of the... physical disability, mental disability... [or] medical condition of anyperson ... to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges or employment.... "(j)(1) For an employer .. Because of ... physical disability, mental disability ... to harass an employee ... 22 In addition, Government Code § 12926 (o) states, in part: 23 "` [P]hysical disability [and] inedical condition' ... includes a perception that the person has any those characteristics ...." 24 I 25 26. Defendant, Employer, demoted Plaintiff and forced her to resign because it perceived 26 I her as disabled and unable to perform any job duties, because it did not want to accommodate her 27 I medical condition, because she requested accommodation and because she requested and took time 28 I off work to care for her own medical condition. PLAINTIFF'S COMPLAINT Page 6 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 20 of 85 1 24. As a direct and proximate result of the Defendant's acts of discrimination and 2 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 3, thereon, in earnings and other einployment benefits which Plaintiff would have received. She has 4 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 5 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 6 25. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 7 in an action for which they are specifically provided by statute. California Government Code § 12965 8 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 9 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 10 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 11 SECOND CAUSE OF ACTION Failure to Accommodate Disability 12 in Violation of Government Code §12940(m) 13 26. The allegations of paragraphs 1 through 25 are re-alleged and incorporated herein by 14 I reference. 15 27. The California Government Code provides at Section 12940, in pertinent part: 16 "It shall be an unlawful employment practice ...(m) For an employer ... to fail to make reasonable accommodation for the known ...physical 17 disability of ... an employee." 18 28. Defendant, Employer, knew ofPlaintiff s medical condition and/or disability and failed 19 to make reasonable accommodation for her disability. Plaintiff requested accommodation of her 20 medical condition which consisted of taking medical leave. Defendant, Employer, refused to 21 accommodate her, instead punishing her by taking an entire region of accounts from Plaintiff, 22 effectively demoting her and forcing Plaintiff to resign shortly after her return from medical leave. 23 Plaintiff's request for accommodation would not have caused Defendant, Employer, any undue 24 burden. 25 29. As a direct and proximate result of the Defendant's acts of discrimination and 26 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 27 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 28 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, PLAINTIFF'S COMPLAINT Page 7 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 21 of 85 1 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 2 30. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 3 in an action for which they are specifically provided by statute. California Government Code § 12965 4 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 5 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 6 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 7 THIRD CAUSE OF ACTION Failure to Engage in a Timely, Good Faith, Interactive Process 8 To Determine Effective Reasonable Accommodation in Violation of Government Code §12940(n) 9 10 31. The allegations of paragraphs 1 through 30 are re-alleged and incorporated herein by 11 I reference. 12 32. The California Government Code provides at Section 12940, in pertinent part: 13 "It shall be an unlawful employment practice ...(n) For an employer ... to fail engage in timely, good faith, interactive process with the 14 employee ... to determine effective reasonable accommodations ..." 15 33. Plaintiffrequested medical leave as an accommodation. Defendant, Employer, stripped 16 Plaintiff from numerous accounts in response to her request for time off, thereby impacting her ability 17 to receive her full compensation and other employment benefits. Defendant, Employer, refused to 18 explore any options to accommodate Plaintiff but, instead, subjected her to unjust discipline and 19 demoted her employment for, among other things, taking time off work to care for her own serious 20 health condition. Accommodation of Plaintiff would not have caused Defendant, Employer, any 21 undue hardship, significant difficulty or expense. 22 34. As a direct and proximate result of the Defendant's acts of discrimination and 23 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 24 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 25 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 26 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 27 35. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 28 in an action for which they are specifically provided by statute. California Government Code § 12965 PLAINTIFF'S COMPLAINT Page 8 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 22 of 85 1 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 2 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 3 I a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 4 FOURTH CAUSE OF ACTION Retaliation for Requesting Accommodation 5 in Violation of Government Code §12940(m)(2) 6 36. The allegations of paragraphs 1 through 35 are re-alleged and incorporated herein by 7 I reference. 8 37. The California Government Code provides at Section 12940, in pertinent part: 9 "It shall be an unlawful employment practice ...(m)(2) For an employer...to ... retaliate or otherwise discriminate against a person for 10 requesting accommodation...." 11 38. Plaintiff requested that Defendant, Employer, accommodate her medical condition. 12' However, Defendant, Employer, refused to accommodate Plaintiff and, instead, demoted and 13 I constructively discharged from her employment in retaliation for, among other things, requesting 14 'I accommodation. Plaintiff's request for accommodation was a substantial motivating reason for her 15 I demotion and constructive discharge. 16' 39. As a direct and proximate result of the Defendant's acts of discrimination and 17 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 18 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 19 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 20 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 21 40. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 22 in an action for which they are specifically provided by statute. California Government Code § 12965 23 ' provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 24 I the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 25 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 26 27 28 I PLAINTIFF'S COMPLAINT Page 9 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 23 of 85 1 FIFTH CAUSE OF ACTION Failure to Prevent Discrimination, Harassment and Retaliation 2 3 41. The allegations of paragraphs 1 through 40 are re-alleged and incorporated herein by 4 I reference. 5 42. The California Government Code provides at Section 12940, in pertinent part: 6 "It shall be an unlawful employment practice ...(k) For an employer ... to fail to take all reasonable steps necessary to prevent 7 discrimination ... from occurring." 8 43. The behavior, conduct and comments by Defendant, Employer, and its agents, 9 representatives and employees, created a work environment that was intimidating, hostile, oppressive 10 and offensive to Plaintiff such that she was deprived of the benefit of a discrimination-free work 11 environment, all in violation of California Government Code §§ 12900, et seq. Such conduct included, 12 but was not limited to, subjecting her to unwarranted criticism and discriminatory comments, 13 demoting Plaintiff by removing various accounts from her responsibilities and and creating a work 14 environment that was so intolerable Plaintiff was forced to resign. 15 44. Defendant, Employer, failed to prevent discrimination, harassment and retaliation, 16 failed to halt the offending conduct and failed to engage in a prompt and meaningful investigation of 17 Plaintiff's complaints of discrimination, harassment and retaliation. 18 i 45. As a direct and proximate result of the Defendant's acts of discrimination, harassment 19 and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 20 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 21 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 22 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 23 46. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 24 in an action for which they are specifically provided by statute. California Government Code § 12965 25 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 26 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 27 I a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 28 I /// I PLAINTIFF'S COMPLAINT Page 10 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 24 of 85 1 SIXTH CAUSE OF ACTION Retaliation for Exercising Rights Under California Family Rights Act 2 in Violation of 2 C.C.R. §11094 3 47. The allegations of paragraphs 1 through 46 are re-alleged and incorporated herein by 4 I reference. 5 48. The California Family Rights Act provides that it is an unlawful employment practice 6 for an employer to retaliate against an employee for requesting and taking leave to care for his or her 71 own medical condition. 49. California Administrative Code, Title 2, § 11094 states, in pertinent part: 9 "In addition to the retaliation prohibited by Government Code section 12940 ... it shall be an unlawful employment practice for any person 10 to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual ... because that individual has .. 11 .(a) exercised his or her right to CFRA leave ...." 12 50. Defendant, Employer, discharged Plaintiff from her employment because she exercised 13 her right to request medical leave to care for her own medical condition. 14 51. As a direct and proximate result of the Defendant's conduct, Plaintiff has suffered and 15 ~ continues to suffer damages. Plaintiff is entitled to punitive damages and her reasonable attorneys' 16 I fees and costs herein incurred. 17 SEVENTH CAUSE OF ACTION Retaliation in Violation of Labor Code §233 18 19 52. The allegations of paragraphs 1 through 51 are re-alleged and incorporated herein by 20 I reference. 21 53. Labor Code §233 prohibits employers such as Defendant, Employer, from discharging, 22 discriminating against or retaliating against an employee for using sick leave to attend to his or her 23 illness. Plaintiff asked for and took time off work to care for her own medical condition. 24 54. Defendant, Employer, retaliated against Plaintiff for requesting and taking time off 25 I work to care for own medical condition by, among other things, demoting her and constructively 26 discharging her from employment. 27 55. Plaintiff suffered physical, emotional and economic harm, which was proximately 28 I caused by Defendant's wrongful conduct. I PLAINTIFF'S COMPLAINT Page 11 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 25 of 85 56. Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable in an 2 action for which they are specificallyprovided by statute. Labor Code §2699 provides that, in addition 3 to penalties, reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 4 the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this action. As 5 a result, Plaintiff is entitled to her reasonable attomeys' fees and costs herein incurred. 6 EIGHTH CAUSE OF ACTION Wrongful Constructive Discharge 7 in Violation of Public Policy 8 57. The allegations set forth in paragraphs 1 through 56 are re-alleged and incorporated 9 herein by reference. 10 58. At all times mentioned in this Complaint, California Constitution Article I, §8, and 11 Government Code § 12940 were in full force and effect, and were binding on Defendant, Employer. 12 These sections required Defendant, Employer, to provide employees with a work environment free 13 of gender discrimination and to refrain from discriminating or retaliating against an employee. 14 59. Plaintiff was subjected to disability discrimination, harassment and retaliation by 15 Defendant, Employer, which caused Plaintiff distress. Plaintiff complained to Defendant, Employer, 16 about disability discrimination, harassment and retaliation but Defendant refused to take action to 17 protect her from further discrimination. 18 60. Defendant's failure to do anything about the discriminatory conduct towards Plaintiff 19 and Supervisor Smith's behavior towards Plaintiff, coupled with Defendant, Employer's, demotion 20 of Plaintiff and efforts to force Plaintiff out by telling Plaintiffthat they believed she would resign and 21 removing multiple accounts from Plaintiff's responsibility, made the work environment so intolerable 22 that Plaintiff could not continue to work there. She was forced to resign from her job. 23 61. As a direct and proximate result of Defendant, Employer's, wilful, knowing and 24 I intentional discrimination, harassment, and retaliation against Plaintiff, she has sustained, and 25 continues to sustain, substantial losses of earnings, and other employment benefits. 26 62. As a direct and proximate result of Defendant's wilful, knowing, and intentional 27 I discrimination and retaliation against Plaintiff, she has suffered, and continues to suffer, humiliation, 28 emotional distress, mental and physical pain and anguish, and the manifestations thereof, all to her PLAINTIFF'S COMPLAINT Page 12 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 26 of 85 1 I damage in an amount to be proven at trial. 2 63. Plaintiff has incurred, and continues to incur, legal expenses and attorneys' fees. 3 I Plaintiff is presently unaware of the precise amount of these expenses and fees and prays leave of 4 I Court to amend this Complaint when the amounts are more fully known. 5 64. Defendant's wilful, knowing, and intentional discrimination and retaliation against 6 I Plaintiff made her worlcing conditions intolerable and forced her to resign. Plaintiff, therefore, seeks 7 I an award of punitive and exemplaty damages in an amount to be proven at trial. 8 NINTH CAUSE OF ACTION Defamation 9 10 65. The allegations of paragraphs 1 through 64 are re-alleged and incorporated herein by 11 I reference. 12 66. Within the year last past, without excuse, justification or privilege, Plaintiff's 13' supervisor, an agent of Defendant, Employer, published false and defamatory statements orally and 14, in writing to third persons, including agents of Defendant, Employer, and other persons who are not 15 parties to this action, about Plaintiff, stating as matters of fact that, among other things: Plaintiff 16 violated company policies; and Plaintiff deserved to be demoted and/or constructively discharged. 17' 67. Within the year lastpast, without excuse, justification orprivilege, agents ofDefendant, 18 Employer, including but not limited to Supervisor Smith published and republished, orally and in 19 writing to third persons, including prospective employers of Plaintiff and other persons who are not 20 'I parties to this action, the false and defamatory statements about Plaintiff, stating as matters of fact that, 21' among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was 22 i incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 23 68. The statements made by Defendants and their agents were and are false and constitute 24 defamation on their face in that they communicate to third persons as matters of fact that Plaintiff was 25 a problematic and poorly performing employee who deserved to be demoted and/or constructively 26 terminated from her job. This constitutes defamation per se as false statements tending to injure 27 Plaintiff in her profession. 28 I PLAINTIFF'S COMPLAINT Page 13 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 27 of 85 1 69. As a result of the Defendants' defamatory statements, Plaintiff was demoted and 2 I constructively discharged from her job with Employer. 3 70. Defendants' defamatory statements have been, and continue to be, foreseeably 4 I republished by and to Defendants and to third persons who are not parties to this action, including but 5 not limited to employees of Defendant, Employer, and prospective employers of Plaintiff and, 6 therefore, all such re-publications are chargeable to Defendants and Defendants are liable for those 7 I foreseeable re-publications. 8 71. Plaintiff was forced to re-publish the false statements Defendants made about her when 9 she applied for jobs after she was constructively discharged. Plaintiff was forced to tell prospective 10 employers that she had been forced to resign because after returning from medical leave, Defendant, 11 Employer considered Plaintiff an unreliable, and incompetent employee who was unable to do her job 12 and therefore deserved to be demoted. Defendants knew, or should have known, that Plaintiff would 13 have to repeat the false statements that they made about her when she applied for work with 14 subsequent potential employers. 15 72. As a result of Defendants' defamatory statements and the foreseeable re-publications 16 of those defamatory statements, Plaintiff has suffered, and continues to suffer special and general 17 damages in an amount according to proof, but in excess of the minimum jurisdictional limits of this 18 Court, for, among other things, the loss of her employment and the income and benefits derived 19 therefrom, the damage to her theretofore good reputation as a competent, knowledgeable and 20 cooperative employee and for the embarrassment, annoyance and wony caused to her by the 21 defamation. 22 73. Defendants published and republished the defamatory statements knowing the 23 statements to be false, defamatory and untrue and made the defamatory statements with animus, 24 hatred, ill will and an intent to vex, harass annoy and injure Plaintiff and with the fraudulent and 25 malicious purpose and design of injuring the reputation and the professional and economic interests 26 of Plaintiff, thereby warranting the imposition of punitive damages against Defendants, and each of 27 them, in an amount sufficient to punish this conduct and to deter the occurrence of similar conduct 28 in the future. PLAINTIFF'S COMPLAINT Page 14 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 28 of 85 1 74. Alternatively, Defendants published the defamatory statements without regard for their 2 truth or falsity and without any reasonable investigation into their truth or falsity, and with a conscious 3 and deliberate disregard for the rights of Plaintiff, thereby warranting the imposition of punitive 4 damages against Defendants, and each of them, in an amount sufficient to punish this conduct and to 5 deter the occurrence of similar conduct in the future. 6 75. Plaintiff has incurred, and continues to incur, legal expenses and attorneys' fees.. 7 Plaintiff is presently unaware of the precise amount of these expenses and fees, and prays leave of 8 Court to amend this Complaint when the amounts are more fully known. 9 REQUEST FOR JURY TRIAL 10 Plaintiff, Kimberly Smith, hereby requests a trial by jury. 11 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff prays as follows: 13 1. For general damages in excess of the jurisdictional minimum of this Court, according 14 to proof; 15 2. For special damages according to proof; 16 3. For exemplary punitive damages, according to proof; 17 4. For interest on the amount of losses incurred in earnings, deferred compensation and 18 other employee benefits at the prevailing rate; 19 5. For reinstatement to her job with Defendant, Employer; 20 6. For costs of suit, including reasonable attorneys' fees; and 21 7. For such other and further relief as the Court may deem just and proper. 22 Dated: September 16, 2021 BRYANT WHITTEN, LLP 23 _---- 24 AMANDA B. WHITTEN, Attorneys for Plaintiff, 25 KIMBERLY SMITH 26 27 28 PLAINTIFF'S COMPLAINT Page 15 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 29 of 85 EXHIBIT "A" Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 30 of 85 I I “A” STATE OF CALIFORNIA I BucinAcc Consumer Services and Housina Acgencv GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT 8c HOUSING KEVIN KISH, DIRECTOR 2218 Kausen Drive, Suite 100 1 Elk Grove I CA 195758 (800) 884-1684 (Voice) 1(800) 700-2320 (TTY) I California's Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov August 13, 2021 Kimberly Smith 310 W PAU L AVE Clovis, California 93612 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202108-14460313 Right to Sue: Smith / Randstad North America, Inc. Dear Kimberly Smith: This letter informs you that the above-referenced complaint filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 13, 2021 because an immediate Right to Sue notice was requested. 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. This matter may qualify for DFEH's Small Employer Family Leave Mediation pilot program. Under this program, established under Government Code section 12945.21, a small employer with 5-19 employees, charged with violation of the California Family Rights Act, Government Code section 12945.2, has the right to participate in DFEH's free voluntary mediation service. Under this program both the employee requesting an immediate right to sue and the employer charged with the violation may request that all parties participate in DFEH's free voluntary mediation service. A request for mediation must be submitted to the DFEH within 30 days of receipt of the Notice of Case Closure and Right to Sue. If inediation is requested, the employee is prohibited from filing a civil action until mediation is complete. The employee's statute of limitations to file a civil action, including for all related claims not arising under section 12945.2, is tolled from DFEH's receipt of a mediation request under section 12945.21 until mediation is complete. To request DFEH Small Employer Family Leave Mediation, email DRDOnlinerequests@dfeh.ca.gov and include the DFEH matter number indicated on the Right to Sue notice. 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, Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 31 of 85 STATE OF CALIFORNIA I Business Consumer Services and Housino Acgencv GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING KEVIN KISH, DIRECTOR 2218 Kausen Drive, Suite 100 1 Elk Grove I CA 195758 (800) 884-1684 (Voice) 1(800) 700-2320 (TTY) I California's Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov Department of Fair Employment and Housing Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 32 of 85 Exhibit B Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 33 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMANDA B. WHITTEN - #251160 BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, California 93711 (559) 494-4910 Telephone (559) 421-0369 Facsimile Attorneys for Plaintiff, KIMBERLY SMITH SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, vs. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 21CECG02785KCK FIRST AMENDED COMPLAINT FOR DISCRIMINATION BASED ON DISABILITY AND/OR PERCEIVED D I S A B I L I T Y , FA I L U R E T O PREVENT DISCRIMINATION, FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS, FAILURE T O A C C O M M O D A T E , A N D RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE LAWS, VIOLATION OF LABOR C O D E § 2 3 3 , W R O N G F U L CONSTRUCTIVE DISCHARGE, D E F A M A T I O N , P U N I T I V E DAMAGES AND ATTORNEYS’ FEES DEMAND FOR JURY TRIAL COMES NOW, Plaintiff, Kimberly Smith, and alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff, Kimberly Smith (hereinafter referred to as “Plaintiff”), is an adult residing in Fresno County, California, and was an employee of Defendant, Randstad General Partner (US), LLC, commencing employment on or about June 9, 1998, until on or about May 17, 2021, when she was wrongfully discharged. 2. Defendant, Randstad General Partner (US), LLC, (hereinafter referred to as “Randstad”), is a Delaware limited liability company doing business in Fresno County, California. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 1 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 34 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The true names and capacities of the defendants named herein as Does 1 through 20, inclusive, whether individual, corporate, associate or otherwise, are unknown to the Plaintiff who, therefore, sues such defendants by fictitious names pursuant to California Code of Civil Procedure §474. Plaintiff is informed and believes, and on that basis alleges that each defendant sued under such fictitious name is in some manner responsible for the wrongs and the damages as alleged below, and in so acting was functioning as the owner, shareholder, agent, servant, partner, joint venturer, alter- ego, employee, proxy, managing agent, and principal of the co-defendants, and in doing the actions mentioned below was acting, at least in part, within the course and scope of their authority as such agent, servant, proxy, partner, joint venturer, employee, alter-ego, managing agent, and principal with the permission and consent of the co-defendants. 4. Plaintiff is informed and believes, and thereupon alleges, that each of the defendants sued herein was, at all times relevant hereto, the employer, owner, shareholder, principal, joint venturer, proxy, agent, employee, supervisor, representative, manager, managing agent, joint employer and/or alter-ego of the remaining defendants, and was acting, at least in part, within the course and scope of such employment and agency, with the express and implied permission, consent and knowledge, approval and/or ratification of the other defendants. The above co-defendants and managing agents and supervisors aided, abetted, condoned, permitted, wilfully ignored, approved, authorized and/or ratified the unlawful acts described herein. 5. Venue is proper in this county because the employment relationship between Plaintiff and Defendant, Employer, arose and was performed in Fresno County, California. This court is the proper court because the amount at issue exceeds the jurisdictional minimum of this court. 6. At all times herein, Plaintiff was duly qualified and performed her employment duties in a satisfactory manner. Plaintiff performed and was willing to continue to perform all duties and responsibilities on her part to be performed, which duties and responsibilities were part of the employment relationship between Defendant, Employer, and Plaintiff. 7. Plaintiff was at all times an employee covered by Government Code §§12940 et seq. prohibiting discrimination in employment on the basis of medical condition, disability and/or perceived disability and was therefore a member of the group sought to be protected by this statute. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 2 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 35 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Defendant, Employer, was an employer within the meaning of California Government Code §12926(d) and, as such, was and is barred from unlawfully discriminating in employment decisions on the bases set forth in Government Code §§12940 et seq.. 9. As an employee of Defendant, Employer, Plaintiff was entitled to all of the benefits provided by Employer’s personnel policies, procedures and practices, as well as those confirmed in the by-laws governing said organization. 10. This action is brought to remedy discrimination against Plaintiff in the terms, conditions and privileges of employment and to remedy retaliation against Plaintiff. 11. Plaintiff began working for Defendant, Employer, in or about June of 1998 as a recruiter in its Madera office. Throughout her employment with Defendant, Employer, Plaintiff was promoted multiple times. At the time of her termination, Plaintiff held the position of Regional Vice President. As Regional Vice President, Plaintiff was responsible for overseeing various Randstad locations throughout the Central Valley. 12. On or about April 21, 2021, Plaintiff suffered an anxiety attack. Plaintiff continued having anxiety attacks over the course of the next few days. Plaintiff called her supervisor, Joel Smith, and told him about him her medical condition. Supervisor Smith, responded by telling Plaintiff to take time off and to delegate one of the accounts she was responsible for to someone else. 13. Following her conversation with Supervisor Smith, and per the advice of her physician, Plaintiff requested and took medical leave. 14. Upon Plaintiff’s return to work on or about April 27, 2021, Supervisor Smith set up a call with Plaintiff. Supervisor Smith asked Plaintiff how she was doing and Plaintiff answered honestly, telling Supervisor Smith that she was still struggling with her mental health. Supervisor Smith responded by telling Plaintiff that he was under the impression that as a result of her mental health issues, Plaintiff was going to resign. Plaintiff was shocked at Supervisor Smith’s comment as she had never indicated she was going to resign. Plaintiff was extremely distressed that after revealing her disability to Supervisor Smith and requesting and taking medical leave, Supervisor Smith considered her unfit and unable to do her job. / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 3 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 36 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. During that same phone call, Supervisor Smith again told Plaintiff to delegate one of her accounts to someone else. Supervisor Smith also told Plaintiff that he was taking away the entire Bakersfield region from Plaintiff which included numerous accounts and instead delegating it to someone else as well. Plaintiff was completely shocked. She had never once agreed to giving up more than one, let alone numerous accounts. Not only would this substantially reduce Plaintiff’s responsibilities but it would also reduce her ability to receive bonuses and other benefits. This constituted a demotion. Plaintiff complained to Supervisor Smith about his decision but despite her complaints, Supervisor Smith took the accounts from Plaintiff anyway. Supervisor Smith continued by telling Plaintiff that there were issues with her performance. Plaintiff was confused as she had never once been told there were any problems with her performance. In fact, just a couple of weeks before she disclosed her disability, she had received a raise. Plaintiff was extremely distressed by Supervisor Smith’s conduct. 16. The following day, on or about April 28, 2021, Plaintiff submitted a survey response to the human resources department. In her response, Plaintiff explained that she was struggling with her mental health and felt that she had been treated unfairly ever since disclosing that information to Defendant, Employer. To her knowledge, no action was taken. 17. On or about May 5, 2021, Plaintiff contacted the human resources representative, reiterating her complaints that ever since she had disclosed her disability, she had been treated unfairly. Plaintiff complained about Supervisor Smith’s conduct and his decision to strip Plaintiff of multiple accounts after she told him she had a disability. Instead of offering Plaintiff some support, the human resources representative told Plaintiff that “business decisions were business decisions.” Plaintiff was extremely distressed that no one, not even human resources, was willing to help her or put an end to the discriminatory conduct. Plaintiff felt like she had no one at Defendant, Employer, who she could turn to for help. 18. Following her return from medical leave in late April of 2021, Supervisor Smith’s conduct towards Plaintiff changed. Supervisor Smith continuously subjected Plaintiff to unwarranted and unjustified criticism regarding her job performance. In addition, Supervisor Smith was often rude to Plaintiff, cutting her off when she attempted to ask questions or raise concerns about the Bakersfield PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 4 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 37 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 region. Supervisor Smith began requiring that human resources and Doug Hammond, Supervisor Smith’s superior, sit in on his communications with Plaintiff. Plaintiff was confused as nobody had ever been required to sit in on her calls with Supervisor Smith until now. During one of these calls, Plaintiff voiced her concerns that she had a disability and felt she had been treated unfairly ever since telling Supervisor Smith about it. Again, to her knowledge, no action was taken. Plaintiff was extremely distressed that Defendant, Employer, and Supervisor Smith treated her like she suddenly did not know how to do her job ever since she disclosed her disability and requested and took medical leave. 19. On or about May 17, 2021, Plaintiff was forced to resign from her job with Defendant, Employer. Defendant’s failure to do anything about the discriminatory conduct towards Plaintiff and Supervisor Smith’s behavior towards Plaintiff made the work environment so intolerable that Plaintiff could not continue to work there. Additionally, Plaintiff knew that without the Bakersfield region, she was being set up for continued claims of poor performance and imminent termination. She was forced to resign from her job. 20. Plaintiff is informed and believes that the reason Defendant, Employer, demoted her and forced her to resign is pretextual. The true reasons for Plaintiff’s demotion and forced resignation are that Defendant, Employer, believed that she was disabled and unable to perform any job duties, that she needed accommodation, that she requested accommodation and that she requested and took medical leave to care for her own serious medical condition. This conduct by Defendant, Employer, violated the California Fair Employment and Housing Act, the California Family Rights Act and California Labor Code §233. 21. Plaintiff filed a charge of discrimination with the Department of Fair Employment and Housing (“DFEH”) against Defendant, Employer, complaining of the acts of discrimination and retaliation as alleged therein. Plaintiff received a “Right to Sue Letter” from the DFEH dated August 13, 2021, a true and correct copy of which is attached hereto as Exhibit “A.” On or about August 13, 2021, Plaintiff notified the California Labor and Workforce Development Agency (“LWDA”) regarding Defendant, Employer’s violation of the Labor Code. As of the date of filing this Complaint, LWDA had not responded. Therefore, Plaintiff has exhausted her administrative remedies. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 5 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 38 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. As a direct and proximate result of the Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 23. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 24. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 and Labor Code §2699 provide that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FIRST CAUSE OF ACTION Discrimination and Harassment Based on Medical Condition, Disability and/or Perceived Disability in Violation of Government Code §12940 25. The allegations of paragraphs 1 through 24 are re-alleged and incorporated herein by reference. 26. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (a) For an employer, because of the... physical disability, mental disability... [or] medical condition of any person . . . to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges or employment. . . . “(j)(1) For an employer .. Because of ... physical disability, mental disability ... to harass an employee ... In addition, Government Code §12926 (o) states, in part: PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 6 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 39 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “‘[P]hysical disability [and] medical condition’ . . . includes a perception that the person has any those characteristics . . . .” 27. Defendant, Employer, demoted Plaintiff and forced her to resign because it perceived her as disabled and unable to perform any job duties, because it did not want to accommodate her medical condition, because she requested accommodation and because she requested and took time off work to care for her own medical condition. 28. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 29. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 30. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. SECOND CAUSE OF ACTION Failure to Accommodate Disability in Violation of Government Code §12940(m) 31. The allegations of paragraphs 1 through 30 are re-alleged and incorporated herein by reference. 32. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (m) For an employer PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 7 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 40 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ... to fail to make reasonable accommodation for the known ...physical disability of ... an employee.” 33. Defendant, Employer, knew of Plaintiff’s medical condition and/or disability and failed to make reasonable accommodation for her disability. Plaintiff requested accommodation of her medical condition which consisted of taking medical leave. Defendant, Employer, refused to accommodate her, instead punishing her by taking an entire region of accounts from Plaintiff, effectively demoting her and forcing Plaintiff to resign shortly after her return from medical leave. Plaintiff’s request for accommodation would not have caused Defendant, Employer, any undue burden. 34. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 35. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 36. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. / / / / / / / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 8 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 41 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION Failure to Engage in a Timely, Good Faith, Interactive Process To Determine Effective Reasonable Accommodation in Violation of Government Code §12940(n) 37. The allegations of paragraphs 1 through 36 are re-alleged and incorporated herein by reference. 38. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (n) For an employer . . . to fail engage in timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations . . .” 39. Plaintiff requested medical leave as an accommodation. Defendant, Employer, stripped numerous accounts from Plaintiff in response to her request for time off, thereby impacting her ability to receive her full compensation and other employment benefits. Defendant, Employer, refused to explore any options to accommodate Plaintiff but, instead, subjected her to unjust discipline and demoted her for, among other things, taking time off work to care for her own serious health condition. Accommodation of Plaintiff would not have caused Defendant, Employer, any undue hardship, significant difficulty or expense. 40. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 41. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 42. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 9 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 42 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FOURTH CAUSE OF ACTION Retaliation for Requesting Accommodation in Violation of Government Code §12940(m)(2) 43. The allegations of paragraphs 1 through 42 are re-alleged and incorporated herein by reference. 44. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (m)(2) For an employer...to...retaliate or otherwise discriminate against a person for requesting accommodation....” 45. Plaintiff requested that Defendant, Employer, accommodate her medical condition. However, Defendant, Employer, refused to accommodate Plaintiff and, instead, demoted and constructively discharged from her employment in retaliation for, among other things, requesting accommodation. Plaintiff’s request for accommodation was a substantial motivating reason for her demotion and constructive discharge. 46. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 47. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 48. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 10 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 43 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FIFTH CAUSE OF ACTION Failure to Prevent Discrimination, Harassment and Retaliation 49. The allegations of paragraphs 1 through 48 are re-alleged and incorporated herein by reference. 50. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (k) For an employer . . . to fail to take all reasonable steps necessary to prevent discrimination ... from occurring.” 51. The behavior, conduct and comments by Defendant, Employer, and its agents, representatives and employees, created a work environment that was intimidating, hostile, oppressive and offensive to Plaintiff such that she was deprived of the benefit of a discrimination-free work environment, all in violation of California Government Code §§12900, et seq. Such conduct included, but was not limited to, subjecting her to unwarranted criticism and discriminatory comments, demoting Plaintiff by removing various accounts from her responsibilities and creating a work environment that was so intolerable Plaintiff was forced to resign. 52. Defendant, Employer, failed to prevent discrimination and retaliation, failed to halt the offending conduct and failed to engage in a prompt and meaningful investigation of Plaintiff’s complaints of discrimination and retaliation. 53. As a direct and proximate result of Defendant’s acts of discrimination, harassment and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 54. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 11 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 44 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 55. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. SIXTH CAUSE OF ACTION Retaliation for Exercising Rights Under California Family Rights Act in Violation of 2 C.C.R. §11094 56. The allegations of paragraphs 1 through 55 are re-alleged and incorporated herein by reference. 57. The California Family Rights Act provides that it is an unlawful employment practice for an employer to retaliate against an employee for requesting and taking leave to care for his or her own medical condition. 58. California Administrative Code, Title 2, §11094 states, in pertinent part: “In addition to the retaliation prohibited by Government Code section 12940 . . . it shall be an unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual . . . because that individual has . . . (a) exercised his or her right to CFRA leave . . . .” 59. Defendant, Employer, constructively discharged Plaintiff from her employment because she exercised her right to request medical leave to care for her own medical condition. 60. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 12 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 45 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and continues to suffer damages. Plaintiff is entitled to punitive damages and her reasonable attorneys’ fees and costs herein incurred. SEVENTH CAUSE OF ACTION Retaliation in Violation of Labor Code §233 62. The allegations of paragraphs 1 through 61 are re-alleged and incorporated herein by reference. 63. Labor Code §233 prohibits employers such as Defendant, Employer, from discharging, discriminating against or retaliating against an employee for using sick leave to attend to his or her illness. Plaintiff asked for and took time off work to care for her own medical condition. 64. Defendant, Employer, retaliated against Plaintiff for requesting and taking time off work to care for own medical condition by, among other things, demoting her and constructively discharging her from employment. 65. Plaintiff suffered physical, emotional and economic harm, which was proximately caused by Defendant’s wrongful conduct. 66. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 67. Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. Labor Code §2699 provides that, in addition to penalties, reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. / / / / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 13 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 46 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION Wrongful Constructive Discharge in Violation of Public Policy 68. The allegations set forth in paragraphs 1 through 67 are re-alleged and incorporated herein by reference. 69. At all times mentioned in this Complaint, California Constitution Article I, §8, and Government Code §12940 were in full force and effect, and were binding on Defendant, Employer. These sections required Defendant, Employer, to provide employees with a work environment free of discrimination and to refrain from discriminating or retaliating against an employee. 70. Plaintiff was subjected to disability discrimination, harassment and retaliation by Defendant, Employer, which caused Plaintiff distress. Plaintiff complained to Defendant, Employer, about disability discrimination, harassment and retaliation but Defendant refused to take action to protect her from further discrimination. 71. Defendant’s failure to do anything about the discriminatory conduct towards Plaintiff and Supervisor Smith’s behavior towards Plaintiff, coupled with Defendant, Employer’s demotion of Plaintiff and efforts to force Plaintiff out by telling Plaintiff that they believed she would resign and removing multiple accounts from Plaintiff’s responsibility, made the work environment so intolerable that Plaintiff could not continue to work there. She was forced to resign from her job. 72. As a direct and proximate result of Defendant, Employer’s, wilful, knowing and intentional discrimination, harassment, and retaliation against Plaintiff, she has sustained, and continues to sustain, substantial losses of earnings, and other employment benefits. 73. As a direct and proximate result of Defendant’s wilful, knowing, and intentional discrimination and retaliation against Plaintiff, she has suffered, and continues to suffer, humiliation, emotional distress, mental and physical pain and anguish, and the manifestations thereof, all to her damage in an amount to be proven at trial. 74. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 14 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 47 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 75. Plaintiff has incurred, and continues to incur, legal expenses and attorneys’ fees. Plaintiff is presently unaware of the precise amount of these expenses and fees and prays leave of Court to amend this Complaint when the amounts are more fully known. 76. Defendant’s wilful, knowing, and intentional discrimination and retaliation against Plaintiff made her working conditions intolerable and forced her to resign. Plaintiff, therefore, seeks an award of punitive and exemplary damages in an amount to be proven at trial. NINTH CAUSE OF ACTION Defamation 77. The allegations of paragraphs 1 through 76 are re-alleged and incorporated herein by reference. 78. Within the year last past, without excuse, justification or privilege, Plaintiff’s supervisor, an agent of Defendant, Employer, published false and defamatory statements orally and in writing to third persons, including agents of Defendant, Employer, and other persons who are not parties to this action, about Plaintiff, stating as matters of fact that, among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 79. Within the year last past, without excuse, justification or privilege, agents of Defendant, Employer, including but not limited to Supervisor Smith, published and republished, orally and in writing to third persons, including prospective employers of Plaintiff and other persons who are not parties to this action, the false and defamatory statements about Plaintiff, stating as matters of fact that, among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 80. The statements made by Defendant and its agents were and are false and constitute defamation on their face in that they communicate to third persons as matters of fact that Plaintiff was a problematic and poorly performing employee who deserved to be demoted and/or constructively PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 15 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 48 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terminated from her job. This constitutes defamation per se as false statements tending to injure Plaintiff in her profession. 81. As a result of Defendant’s defamatory statements, Plaintiff was demoted and constructively discharged from her job with Employer. 82. Defendant’s defamatory statements have been, and continue to be, foreseeably republished by and to Defendant and to third persons who are not parties to this action, including but not limited to employees of Defendant, Employer, and prospective employers of Plaintiff and, therefore, all such re-publications are chargeable to Defendant and Defendant is liable for those foreseeable re-publications. 83. Plaintiff was forced to re-publish the false statements Defendant made about her when she applied for jobs after she was constructively discharged. Plaintiff was forced to tell prospective employers that she had been forced to resign because after returning from medical leave, Defendant, Employer considered Plaintiff an unreliable, and incompetent employee who was unable to do her job and therefore deserved to be demoted. Defendants knew, or should have known, that Plaintiff would have to repeat the false statements that they made about her when she applied for work with subsequent potential employers. 84. As a result of Defendant’s defamatory statements and the foreseeable re-publications of those defamatory statements, Plaintiff has suffered, and continues to suffer special and general damages in an amount according to proof, but in excess of the minimum jurisdictional limits of this Court, for, among other things, the loss of her employment and the income and benefits derived therefrom, the damage to her theretofore good reputation as a competent, knowledgeable and cooperative employee and for the embarrassment, annoyance and worry caused to her by the defamation. 85. Defendant published and republished the defamatory statements knowing the statements to be false, defamatory and untrue and made the defamatory statements with animus, hatred, ill will and an intent to vex, harass annoy and injure Plaintiff and with the fraudulent and malicious purpose and design of injuring the reputation and the professional and economic interests of Plaintiff, thereby warranting the imposition of punitive damages against Defendant in an amount PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 16 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 49 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient to punish this conduct and to deter the occurrence of similar conduct in the future. 86. Alternatively, Defendant published the defamatory statements without regard for their truth or falsity and without any reasonable investigation into their truth or falsity, and with a conscious and deliberate disregard for the rights of Plaintiff, thereby warranting the imposition of punitive damages against Defendant in an amount sufficient to punish this conduct and to deter the occurrence of similar conduct in the future. 87. Plaintiff has incurred, and continues to incur, legal expenses and attorneys’ fees. Plaintiff is presently unaware of the precise amount of these expenses and fees, and prays leave of Court to amend this Complaint when the amounts are more fully known. REQUEST FOR JURY TRIAL Plaintiff, Kimberly Smith, hereby requests a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays as follows: 1. For general damages in excess of the jurisdictional minimum of this Court, according to proof; 2. For special damages according to proof; 3. For exemplary punitive damages, according to proof; 4. For interest on the amount of losses incurred in earnings, deferred compensation and other employee benefits at the prevailing rate; 5. For costs of suit, including reasonable attorneys’ fees; and 6. For such other and further relief as the Court may deem just and proper. Dated: October 18, 2021 BRYANT WHITTEN, LLP AMANDA B. WHITTEN, Attorneys for Plaintiff, KIMBERLY SMITH PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 17 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 50 of 85 EXHIBIT “A” Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 51 of 85 STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency GAVIN NEWSOM, GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 (800) 884-1684 (Voice) I (800) 700-2320 (TTY) | California’s Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov KEVIN KISH, DIRECTOR August 13, 2021 Kimberly Smith 310 W PAUL AVE Clovis, California 93612 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202108-14460313 Right to Sue: Smith / Randstad North America, Inc. Dear Kimberly Smith: This letter informs you that the above-referenced complaint filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 13, 2021 because an immediate Right to Sue notice was requested. 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. This matter may qualify for DFEH’s Small Employer Family Leave Mediation pilot program. Under this program, established under Government Code section 12945.21, a small employer with 5 -19 employees, charged with violation of the California Family Rights Act, Government Code section 12945.2, has the right to participate in DFEH’s free voluntary mediation service. Under this program both the employee requesting an immediate right to sue and the employer charged with the violation may request that all parties participate in DFEH’s free voluntary mediation service. A request for mediation must be submitted to the DFEH within 30 days of receipt of the Notice of Case Closure and Right to Sue. If mediation is requested, the employee is prohibited from filing a civil action until mediation is complete. The employee’s statute of limitations to file a civil action, including for all related claims not arising under section 12945.2, is tolled from DFEH’s receipt of a mediation request under section 12945.21 until mediation is complete. To request DFEH Small Employer Family Leave Mediation, email DRDOnlinerequests@dfeh.ca.gov and include the DFEH matter number indicated on the Right to Sue notice. 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, Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 52 of 85 STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency GAVIN NEWSOM, GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 (800) 884-1684 (Voice) I (800) 700-2320 (TTY) | California’s Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov KEVIN KISH, DIRECTOR Department of Fair Employment and Housing Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 53 of 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RE: KIMBERLY SMITH v. RANDSTAD GENERAL PARTNER (US), LLC STATE OF CALIFORNIA, COUNTY OF FRESNO I am employed in the City of Fresno, County of Fresno, State of California. I am over the age of 18 years and not a party to the within action. My business address is 8050 North Palm Avenue, Suite 210, Fresno, California, 93711. On October 18, 2021, I served FIRST AMENDED COMPLAINT FOR DISCRIMINATION BASED ON DISABILITY AND/OR PERCEIVED DISABILITY, FAILURE TO PREVENT DISCRIMINATION, FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS, FAILURE TO ACCOMMODATE, AND RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE LAWS, VIOLATION OF LABOR CODE §233, WRONGFUL CONSTRUCTIVE DISCHARGE, DEFAMATION, PUNITIVE DAMAGES AND ATTORNEYS’ FEES and DEMAND FOR JURY TRIAL on the parties in this action as follows: Ryan L. Eddings reddings@littler.com Vanessa M. Cohn vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue, Suite 302 Fresno, California 93704.2225 lhammond@littler.com [ ] (BY PERSONAL SERVICE) By enclosing a true copy thereof in a sealed envelope addressed as shown above, I personally delivered to such person said document(s) at the address indicated. [ ] (BY UPS) I am readily familiar with the practice of Bryant Whitten, LLP for collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by UPS for overnight delivery. [X] (BY EMAIL) I caused to be transmitted the document(s) described herein via the email addresses listed above. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court, at whose direction this service was made. Executed on October 18, 2021, at Fresno, California. _________________________________ CARRIE J. COTA PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 18 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 54 of 85 Exhibit C Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 55 of 85 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. Case No. 21CECG02785 DEFENDANT’S GENERAL DENIAL AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S UNVERIFIED COMPLAINT Assigned for All Purposes to Judge Kristi Culver Kapetan Defendant RANDSTAD GENERAL PARTNER (US), LLC, (“Defendant”), answering the Complaint of Plaintiff KIMBERLY SMITH (“Plaintiff”) for itself alone and for no other Defendants, hereby answers Plaintiff’s unverified Complaint (the “Complaint”) as follows: GENERAL DENIAL Pursuant to the provisions of the California Code of Civil Procedure section 431.30(d), Defendant denies generally and specifically each and every allegation contained in the Complaint. In addition, Defendant denies that Plaintiff has sustained, or will sustain, any loss or damage in the manner or amount alleged, or otherwise, by reason of any act or omission, or any other conduct or absence thereof on the part of said Defendant. / / / / / / E-FILED 10/18/2021 9:23 AM Superior Court of California County of Fresno By: A. Ramos, Deputy Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 56 of 85 2 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 AFFIRMATIVE DEFENSES Without waiving or excusing the burden of proof of Plaintiff or admitting that Defendant has any burden of proof or persuasion and incorporating herein by reference each and every allegation made in the General Denial, Defendant asserts the following affirmative defenses. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal facts in support of the following: FIRST AFFIRMATIVE DEFENSE 1. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein fail to state facts sufficient to constitute a cause of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE 2. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE 3. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of waiver. FOURTH AFFIRMATIVE DEFENSE 4. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE 5. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of consent. SEVENTH AFFIRMATIVE DEFENSE 7. As a separate and distinct affirmative defense, Defendant alleges that, to the extent further investigation and discovery reveals any after-acquired evidence that bars any or certain Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 57 of 85 3 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 remedies in this action, the Complaint and each cause of action set forth therein cannot be maintained against Defendant. EIGHTH AFFIRMATIVE DEFENSE 8. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein cannot be maintained against Defendant because Plaintiff was an at-will employee at all relevant times, with no entitlement to continued employment pursuant to California Labor Code section 2922. NINTH AFFIRMATIVE DEFENSE 9. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff failed to take a reasonable affirmative action to mitigate her damages as they are alleged in the Complaint, and thus Plaintiff’s recovery from Defendant, if any, must be denied or reduced to the extent that Plaintiff has failed to mitigate her damages, if any, including but not limited to her failure to make reasonable efforts to seek and retain subsequent employment substantially similar to her employment with Defendant after the conclusion of her employment with Defendant. TENTH AFFIRMATIVE DEFENSE 10. As a separate and distinct affirmative defense, Defendant alleges that any recovery to which Plaintiff might other be entitled must be denied or reduced by reason of Plaintiff’s contributory or comparative negligence and/or intentional conduct, because Plaintiff failed to exercise reasonable and ordinary care, caution or prudence in order to avoid the alleged incidents, and the alleged injuries and damages, if any, were proximately caused and/or contributed to by Plaintiff’s own negligence and/or intentional conduct. ELEVENTH AFFIRMATIVE DEFENSE 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because the alleged damages or losses sustained by Plaintiff, if any, resulted from causes other than any act or omission on the part of Defendant, including but not limited to negligence and/or intentional conduct of third parties. / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 58 of 85 4 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 TWELFTH AFFIRMATIVE DEFENSE 12. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims for damages are barred, in whole or in part, by the doctrine of avoidable consequences. THIRTEENTH AFFIRMATIVE DEFENSE 13. As a separate and distinct affirmative defense, Defendant alleges that any accommodation suggested or requested by Plaintiff, if any, was unreasonable and/or amounted to an undue hardship to Defendant. FOURTEENTH AFFIRMATIVE DEFENSE 14. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claim for failure to accommodate is barred because, to the extent that Plaintiff actually had a disability that required accommodation, Plaintiff, even with reasonable accommodation, was unable to perform the essential duties of Plaintiff’s positions and/or to perform these duties in a manner that would not endanger Plaintiff’s health or safety or the health or safety of others. FIFTEENTH AFFIRMATIVE DEFENSE 15. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because, even if any discriminatory, retaliatory, or otherwise unlawful motive existed in connection with any actions taken with respect to Plaintiff (which Defendant denies), Defendant would have engaged in the same conduct absent any alleged discriminatory, retaliatory, or otherwise unlawful motive. SIXTEENTH AFFIRMATIVE DEFENSE 16. As a separate and distinct affirmative defense, Defendant alleges that any employment practice maintained by Defendant, to the extent such practice may have impacted Plaintiff with respect to any alleged protected status under the Fair Employment and Housing Act, is justified either as a bona fide occupational qualification, by business necessity (including undue hardship), by job relatedness, by security regulations, by non-discrimination or affirmative action plans and/or by requirement of law. SEVENTEENTH AFFIRMATIVE DEFENSE 17. As a separate and distinct affirmative defense, Defendant alleges, without Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 59 of 85 5 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 admitting that Defendant engaged in any of the acts or omissions alleged in the Complaint, that any such acts or omissions purportedly taken by or on behalf of Defendant were taken in good faith as a result of business necessity, for lawful, legitimate, non-discriminatory, and non-retaliatory reasons without malice, oppression, or fraud, and/or based on the relevant facts and circumstances known to Defendant at the time it acted. EIGHTEENTH AFFIRMATIVE DEFENSE 18. As a separate and distinct affirmative defense, Defendant alleges that any unlawful or wrongful acts, if any, taken by Defendant’s officers, directors, managing agents, and/or employees were outside the course and scope of their employment and authority, and such acts, if any, were not authorized, ratified, or condoned by Defendant, and Defendant did not know and/or should not have known of such conduct. NINETEENTH AFFIRMATIVE DEFENSE 19. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because at all relevant times, (a) Defendant acted in good faith and exercised reasonable care to prevent and promptly correct any discriminatory, retaliatory, or otherwise unlawful behavior (which Defendant denies occurred), including but not limited to promulgating and maintaining anti-discrimination, anti- retaliation and/or open-door policies with an internal grievance and/or complaint procedure, which were communicated to Plaintiff; (b) Plaintiff unreasonably failed to take advantage of the established internal grievance and/or complaint procedure and any preventive or corrective opportunities provided to Plaintiff by the employer or to otherwise avoid harm; and, (c) Plaintiff’s reasonable use of Defendant’s procedures as required by Defendant’s employment policies would have prevented at least some, if not all, of the purported harm that Plaintiff allegedly suffered. TWENTIETH AFFIRMATIVE DEFENSE 20. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein seeking recovery for the alleged physical, mental, and/or emotional distress injuries are preempted and barred by the exclusive remedy provisions of the California Workers’ Compensation Act, California Labor Code section 3600, et seq., and California Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 60 of 85 6 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 Labor Code section 132(a) to the extent that: (1) an employee/employer relationship existed subject to workers’ compensation coverage; (2) Defendant provided workers’ compensation insurance at no cost to Plaintiff; (3) Plaintiff’s conduct was within the course and scope of employment; and, (4) the alleged injuries, if any, were proximately caused by the employment, and accordingly, this Court lacks subject matter jurisdiction over said claims. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. As a separate and distinct affirmative defense, Defendant alleges that, if any mental or emotional distress was in fact suffered by Plaintiff, such mental or emotional distress was proximately caused by factors other than any act or omission of Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by Plaintiff’s failure to exhaust all internal grievance and/or complaint procedures. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein cannot be maintained against Defendant because Plaintiff’s claims are barred by the applicable statutes of limitations, including but not limited to those set forth in California Government Code sections 12960 and 12965 and California Code of Civil Procedure sections 335.1, 338(a) and 339(1), and 340(c). TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. As a separate and distinct affirmative defense, Defendant alleges that any recovery to which Plaintiff might otherwise allegedly be entitled must be offset, denied, or reduced by any benefits, monies, and/or compensations that Plaintiff had received or will receive from any other sources, including but not limited to unemployment insurance, private insurance, pension benefits, workers’ compensation, and any sums earned by Plaintiff in other employment. TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. As a separate and distinct affirmative defense, Defendant alleges that some or all of Plaintiff’s claims for damages are barred by the doctrine of set-off. Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 61 of 85 7 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff's Complaint cannot be maintained because purported cause of action contained therein, is barred in whole or in part by the de minimis doctrine. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by Plaintiff’s failure to exhaust administrative remedies. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, to the extent that they exceed the scope of the charges made by Plaintiff before the California Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission, if any. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were non-actionable statements of opinion. THIRTIETH AFFIRMATIVE DEFENSE 30. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were true or substantially true. THIRTY-FIRST AFFIRMATIVE DEFENSE 31. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were privileged under Civil Code section 47(b). / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 62 of 85 8 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 THIRTY-SECOND AFFIRMATIVE DEFENSE 32. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were privileged under Civil Code section 47(c). THIRTY-THIRD AFFIRMATIVE DEFENSE 33. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were made without malice. RESERVATION OF ADDITIONAL DEFENSES Defendant alleges that because the Complaint is couched in conclusory terms, all affirmative defenses that may be applicable cannot be fully anticipated. Accordingly, the right to assert additional affirmative defenses, if and to the extent that such affirmative defenses are applicable, is reserved. In addition, Defendant reserves the right to amend this answer should Defendant later discover facts demonstrating the existence of new and/or additional affirmative defenses, and/or should a change in the law support the inclusion of new and/or additional affirmative defenses. JURY DEMAND Defendant requests trial by jury on all causes of action triable to a jury. PRAYER WHEREFORE, DEFENDANT PRAYS FOR JUDGMENT AS FOLLOWS: 1. That Plaintiff takes nothing by the way of the Complaint on file herein; 2. That judgment be awarded in favor of Defendant; 3. That Plaintiff’s Complaint be dismissed in its entirety as to Defendant; 4. That Defendant be awarded all costs of suit incurred by it in this action; 5. That Defendant be awarded its reasonable attorneys’ fees; and, 6. For such other and further relief as the Court may deem just and proper. / / / / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 63 of 85 9 Defendant’s General Denial and Affirmative Defenses 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L ITTLER MENDELSON P.C. 5 2 0 0 No r th Pa lm Ave n u e Su i t e 3 02 F r e sn o , CA 9 3 70 4 . 22 2 5 5 5 9 . 24 4 . 75 0 0 Dated: October 18, 2021 LITTLER MENDELSON P.C. Ryan L. Eddings Vanessa M. Cohn Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC 4827-7987-8140.1 / 053141-1037 Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 64 of 85 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P C venue Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 65 of 85 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION I am employed in Fresno County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 5200 North Palm Avenue, Suite 302, Fresno, California 93704.2225. On this 18‘“ day of October, 2021, I served a copy 0f the Within document(s): DEFENDANT’S GENERAL DENIAL AND AFFIRMATIVE DEFENSES T0 PLAINTIFF’S UNVERIFIED COMPLAINT Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list on the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is 1hamrnond@littler.com: Amanda B. Whitten BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 Tel: (559) 494-4910 Email: amanda@bwlaw.c0m Courtesy copy: carrie@bwlaw.com I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. Executed on this 18”" day of October, 2021, at Fresno, California. /s/ Lisa Hammond Lisa Hammond Exhibit D Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 66 of 85 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue, Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Facsimile.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. Case No. 21CECG02785 DEFENDANT’S GENERAL DENIAL AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED UNVERIFIED COMPLAINT Assigned for All Purposes to Judge Kristi Culver Kapetan Defendant RANDSTAD GENERAL PARTNER (US), LLC, (“Defendant”), answering the First Amended Complaint of Plaintiff KIMBERLY SMITH (“Plaintiff”) for itself alone and for no other Defendants, hereby answers Plaintiff’s unverified First Amended Complaint (the “Complaint”) as follows: GENERAL DENIAL Pursuant to the provisions of the California Code of Civil Procedure section 431.30(d), Defendant denies generally and specifically each and every allegation contained in the Complaint. In addition, Defendant denies that Plaintiff has sustained, or will sustain, any loss or damage in the manner or amount alleged, or otherwise, by reason of any act or omission, or any other conduct or absence thereof on the part of said Defendant. / / / E-FILED 10/19/2021 4:21 PM Superior Court of California County of Fresno By: Sonia Nunez, Deputy Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 67 of 85 2 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 AFFIRMATIVE DEFENSES Without waiving or excusing the burden of proof of Plaintiff or admitting that Defendant has any burden of proof or persuasion and incorporating herein by reference each and every allegation made in the General Denial, Defendant asserts the following affirmative defenses. Defendant is informed and believes that a reasonable opportunity for investigation and discovery will reveal facts in support of the following: FIRST AFFIRMATIVE DEFENSE 1. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein fail to state facts sufficient to constitute a cause of action upon which relief can be granted, which includes, inter alia, recovery of costs of suit and attorneys’ fees, penalties, compensatory damages, punitive damages, and special and incidental damages. SECOND AFFIRMATIVE DEFENSE 2. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of unclean hands. THIRD AFFIRMATIVE DEFENSE 3. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of waiver. FOURTH AFFIRMATIVE DEFENSE 4. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of estoppel. FIFTH AFFIRMATIVE DEFENSE 5. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of laches. SIXTH AFFIRMATIVE DEFENSE 6. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by the doctrine of consent. / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 68 of 85 3 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 SEVENTH AFFIRMATIVE DEFENSE 7. As a separate and distinct affirmative defense, Defendant alleges that, to the extent further investigation and discovery reveals any after-acquired evidence that bars any or certain remedies in this action, the Complaint and each cause of action set forth therein cannot be maintained against Defendant. EIGHTH AFFIRMATIVE DEFENSE 8. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein cannot be maintained against Defendant because Plaintiff was an at-will employee at all relevant times, with no entitlement to continued employment pursuant to California Labor Code section 2922. NINTH AFFIRMATIVE DEFENSE 9. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff failed to take a reasonable affirmative action to mitigate her damages as they are alleged in the Complaint, and thus Plaintiff’s recovery from Defendant, if any, must be denied or reduced to the extent that Plaintiff has failed to mitigate her damages, if any, including but not limited to her failure to make reasonable efforts to seek and retain subsequent employment substantially similar to her employment with Defendant after the conclusion of her employment with Defendant. TENTH AFFIRMATIVE DEFENSE 10. As a separate and distinct affirmative defense, Defendant alleges that any recovery to which Plaintiff might other be entitled must be denied or reduced by reason of Plaintiff’s contributory or comparative negligence and/or intentional conduct, because Plaintiff failed to exercise reasonable and ordinary care, caution or prudence in order to avoid the alleged incidents, and the alleged injuries and damages, if any, were proximately caused and/or contributed to by Plaintiff’s own negligence and/or intentional conduct. ELEVENTH AFFIRMATIVE DEFENSE 11. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because the alleged damages or losses sustained by Plaintiff, if any, resulted from causes other than any act or omission Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 69 of 85 4 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 on the part of Defendant, including but not limited to negligence and/or intentional conduct of third parties. TWELFTH AFFIRMATIVE DEFENSE 12. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claims for damages are barred, in whole or in part, by the doctrine of avoidable consequences. THIRTEENTH AFFIRMATIVE DEFENSE 13. As a separate and distinct affirmative defense, Defendant alleges that any accommodation suggested or requested by Plaintiff, if any, was unreasonable and/or amounted to an undue hardship to Defendant. FOURTEENTH AFFIRMATIVE DEFENSE 14. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff’s claim for failure to accommodate is barred because, to the extent that Plaintiff actually had a disability that required accommodation, Plaintiff, even with reasonable accommodation, was unable to perform the essential duties of Plaintiff’s positions and/or to perform these duties in a manner that would not endanger Plaintiff’s health or safety or the health or safety of others. FIFTEENTH AFFIRMATIVE DEFENSE 15. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because, even if any discriminatory, retaliatory, or otherwise unlawful motive existed in connection with any actions taken with respect to Plaintiff (which Defendant denies), Defendant would have engaged in the same conduct absent any alleged discriminatory, retaliatory, or otherwise unlawful motive. SIXTEENTH AFFIRMATIVE DEFENSE 16. As a separate and distinct affirmative defense, Defendant alleges that any employment practice maintained by Defendant, to the extent such practice may have impacted Plaintiff with respect to any alleged protected status under the Fair Employment and Housing Act, is justified either as a bona fide occupational qualification, by business necessity (including undue hardship), by job relatedness, by security regulations, by non-discrimination or affirmative action plans and/or by requirement of law. Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 70 of 85 5 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 SEVENTEENTH AFFIRMATIVE DEFENSE 17. As a separate and distinct affirmative defense, Defendant alleges, without admitting that Defendant engaged in any of the acts or omissions alleged in the Complaint, that any such acts or omissions purportedly taken by or on behalf of Defendant were taken in good faith as a result of business necessity, for lawful, legitimate, non-discriminatory, and non-retaliatory reasons without malice, oppression, or fraud, and/or based on the relevant facts and circumstances known to Defendant at the time it acted. EIGHTEENTH AFFIRMATIVE DEFENSE 18. As a separate and distinct affirmative defense, Defendant alleges that any unlawful or wrongful acts, if any, taken by Defendant’s officers, directors, managing agents, and/or employees were outside the course and scope of their employment and authority, and such acts, if any, were not authorized, ratified, or condoned by Defendant, and Defendant did not know and/or should not have known of such conduct. NINETEENTH AFFIRMATIVE DEFENSE 19. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, because at all relevant times, (a) Defendant acted in good faith and exercised reasonable care to prevent and promptly correct any discriminatory, retaliatory, or otherwise unlawful behavior (which Defendant denies occurred), including but not limited to promulgating and maintaining anti-discrimination, anti- retaliation and/or open-door policies with an internal grievance and/or complaint procedure, which were communicated to Plaintiff; (b) Plaintiff unreasonably failed to take advantage of the established internal grievance and/or complaint procedure and any preventive or corrective opportunities provided to Plaintiff by the employer or to otherwise avoid harm; and, (c) Plaintiff’s reasonable use of Defendant’s procedures as required by Defendant’s employment policies would have prevented at least some, if not all, of the purported harm that Plaintiff allegedly suffered. TWENTIETH AFFIRMATIVE DEFENSE 20. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein seeking recovery for the alleged physical, mental, Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 71 of 85 6 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 and/or emotional distress injuries are preempted and barred by the exclusive remedy provisions of the California Workers’ Compensation Act, California Labor Code section 3600, et seq., and California Labor Code section 132(a) to the extent that: (1) an employee/employer relationship existed subject to workers’ compensation coverage; (2) Defendant provided workers’ compensation insurance at no cost to Plaintiff; (3) Plaintiff’s conduct was within the course and scope of employment; and, (4) the alleged injuries, if any, were proximately caused by the employment, and accordingly, this Court lacks subject matter jurisdiction over said claims. TWENTY-FIRST AFFIRMATIVE DEFENSE 21. As a separate and distinct affirmative defense, Defendant alleges that, if any mental or emotional distress was in fact suffered by Plaintiff, such mental or emotional distress was proximately caused by factors other than any act or omission of Defendant. TWENTY-SECOND AFFIRMATIVE DEFENSE 22. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by Plaintiff’s failure to exhaust all internal grievance and/or complaint procedures. TWENTY-THIRD AFFIRMATIVE DEFENSE 23. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein cannot be maintained against Defendant because Plaintiff’s claims are barred by the applicable statutes of limitations, including but not limited to those set forth in California Government Code sections 12960 and 12965 and California Code of Civil Procedure sections 335.1, 338(a) and 339(1), and 340(c). TWENTY-FOURTH AFFIRMATIVE DEFENSE 24. As a separate and distinct affirmative defense, Defendant alleges that any recovery to which Plaintiff might otherwise allegedly be entitled must be offset, denied, or reduced by any benefits, monies, and/or compensations that Plaintiff had received or will receive from any other sources, including but not limited to unemployment insurance, private insurance, pension benefits, workers’ compensation, and any sums earned by Plaintiff in other employment. / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 72 of 85 7 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 TWENTY-FIFTH AFFIRMATIVE DEFENSE 25. As a separate and distinct affirmative defense, Defendant alleges that some or all of Plaintiff’s claims for damages are barred by the doctrine of set-off. TWENTY-SIXTH AFFIRMATIVE DEFENSE 26. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff's Complaint cannot be maintained because purported cause of action contained therein, is barred in whole or in part by the de minimis doctrine. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 27. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred by Plaintiff’s failure to exhaust administrative remedies. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 28. As a separate and distinct affirmative defense, Defendant alleges that the Complaint and each cause of action set forth therein are barred, in whole or in part, to the extent that they exceed the scope of the charges made by Plaintiff before the California Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission, if any. TWENTY-NINTH AFFIRMATIVE DEFENSE 29. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were non-actionable statements of opinion. THIRTIETH AFFIRMATIVE DEFENSE 30. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were true or substantially true. THIRTY-FIRST AFFIRMATIVE DEFENSE 31. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 73 of 85 8 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 statements complained of, if made by Defendant, which is denied, were privileged under Civil Code section 47(b). THIRTY-SECOND AFFIRMATIVE DEFENSE 32. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were privileged under Civil Code section 47(c). THIRTY-THIRD AFFIRMATIVE DEFENSE 33. As a separate and affirmative defense, Defendant alleges that Plaintiff’s Complaint, and each and every cause of action contained therein, is barred because any or all of the statements complained of, if made by Defendant, which is denied, were made without malice. THIRTY-FOURTH AFFIRMATIVE DEFENSE 34. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff is precluded from recovering punitive damages from Defendant, because (a) any actions, conduct, statements, or omissions alleged in the Complaint were not taken with advance knowledge, conscious disregard, authorization, or ratification of malice, oppression, or fraud on the part of Defendant or any officer, director, or managing agent thereof; (b) Defendant’s good faith efforts to prevent discrimination, retaliation, and otherwise unlawful behavior bars any award of punitive damages; and, (c) the Complaint and each cause of action set forth therein fail to plead facts sufficient to support the recovery of punitive damages under the applicable provisions of California Civil Code section 3294, or such other statutes of similar effect that may be applicable. See Cal. Civ. Code § 3294(b). THIRTY-FIFTH AFFIRMATIVE DEFENSE 35. As a separate and distinct affirmative defense, Defendant alleges that Plaintiff is not entitled to recover punitive, exemplary, and/or emotional distress damages on the grounds that any award of punitive, exemplary, or emotional distress damages under California law in general, and/or as applied to the facts of this specific action, violates Defendant’s constitutional rights under provisions of the United States and California Constitutions, including but not limited to the equal protection and due process clauses of the Fifth and Fourteenth Amendments of the United States Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 74 of 85 9 Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Constitution, the excessive fines and cruel and unusual punishment clauses of the Eighth Amendment of the United States Constitution, and Article I, Sections 7 and 17 and Article IV, Section 16 of the California Constitution. RESERVATION OF ADDITIONAL DEFENSES Defendant alleges that because the Complaint is couched in conclusory terms, all affirmative defenses that may be applicable cannot be fully anticipated. Accordingly, the right to assert additional affirmative defenses, if and to the extent that such affirmative defenses are applicable, is reserved. In addition, Defendant reserves the right to amend this answer should Defendant later discover facts demonstrating the existence of new and/or additional affirmative defenses, and/or should a change in the law support the inclusion of new and/or additional affirmative defenses. JURY DEMAND Defendant requests trial by jury on all causes of action triable to a jury. PRAYER WHEREFORE, DEFENDANT PRAYS FOR JUDGMENT AS FOLLOWS: 1. That Plaintiff takes nothing by the way of the operative Complaint; 2. That judgment be awarded in favor of Defendant; 3. That Plaintiff’s Complaint be dismissed in its entirety as to Defendant; 4. That Defendant be awarded all costs of suit incurred by it in this action; 5. That Defendant be awarded its reasonable attorneys’ fees; and, 6. For such other and further relief as the Court may deem just and proper. Dated: October 19, 2021 LITTLER MENDELSON P.C. Ryan L. Eddings Vanessa M. Cohn Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 75 of 85 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON F C mo harm Pm- Avenue Sun: m Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 76 of 85 PROOF 0F SERVICE BY ELECTRONIC TRANSMISSION I am employed in Fresno County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 5200 North Palm Avenue, Suite 302, Fresno, California 937042225 On this 19th day of October, 2021, I served a copy of the within document(s): DEFENDANT’S GENERAL DENIAL AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED UNVERIFIED COMPLAINT Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list 0n the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is lhammond@littler.com: Amanda B. Whitten BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 Tel: (559) 494-4910 Email: amanda@bwlaw.com Courtesy copy: carrie@bw1aw.com I declare under penalty of perjury under the laws of the State 0f California that the above is true and correct. Executed 0n this 19th day 0f October, 2021, at Fresno, California. /s/ Camile Manning Camile Manning 4846-0339-37911 /053141-1037 10 r rrrrrr 1:»: 937m 2225 559,244,15vv Defendant’s General Denial and Affirmative Defenses to Plaintiff’s Unverified First Amended Complaint Exhibit E Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 77 of 85 DEFENDANT’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. Case No. 21CECG02785 DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Assigned for All Purposes to Judge Kristi Culver Kapetan TO PLAINTIFF AND TO PLAINTIFF’S COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on October 20, 2021, Defendant RANDSTAD GENERAL PARTNER (US), LLC (“Defendant”), filed a Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, in the United States District Court for the Eastern District of California. A true and correct copy of Defendant’s Notice of Removal is attached hereto as Exhibit A. Dated: October 20, 2021 LITTLER MENDELSON P.C. RYAN L. EDDINGS Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 78 of 85 EXHIBITS HERETO EXCERPTED TO AVOID FILING OF DUPLICATIVE PAPERS Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 79 of 85 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON F mo harm Pm- Avenue Sun: m r rrrrrr 1:»: 937m 2225 559,244,15vv Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 8O 0f 85 PROOF 0F SERVICE BY ELECTRONIC TRANSMISSION I am employed in Fresno County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 5200 North Palm Avenue, Suite 302, Fresno, California 937042225 On this 20th day of October, 2021, I served a copy of the within document(s): DEFENDANTRANDSTAD GENERAL PARTNER (US), LLC’S NOTICE T0 PLAINTIFF 0F REMOVAL 0F CIVILACTION T0 FEDERAL COURT Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list 0n the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is lhammond@littler.com: Amanda B. Whitten BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 Tel: (559) 494-4910 Email: amanda@bwlaw.com Courtesy copy: carrie@bwlaw.com I declare under penalty of perjury under the laws of the State 0f California that the above is true and correct. Executed 0n this 20th day 0f October, 2021, at Fresno, California. /s/ Camile Manning Camile Manning 4825-7835-51962 / 053141-1037 2 DEFENDANT’S NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION T0 FEDERAL COURT Exhibit F Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 81 of 85 Defendant’s Notice to State Court of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. Case No. 21CECG02785 DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S NOTICE TO STATE COURT OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Assigned for All Purposes to Judge Kristi Culver Kapetan TO THE CLERK OF THE ABOVE-TITLED COURT: PLEASE TAKE NOTICE that on October 20, 2021, the above-captioned matter was removed from the Superior Court of the State of California, County of Fresno, where it was previously pending, to the United States District Court for the Eastern District of California, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. A copy of the Notice of Removal filed by Defendant RANDSTAD GENERAL PARTNER (US), LLC, is attached hereto as Exhibit A. PLEASE TAKE FURTHER NOTICE that, pursuant to 28 U.S.C. § 1446(d), the filing of a Notice of Removal in the United States District Court, together with the filing of a copy of a Notice of Filing Notice of Removal with this Court, effects the removal of this action, and this Court may proceed no further unless and until the case is remanded. / / / Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 82 of 85 2 Defendant’s Notice to State Court of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Dated: October 20, 2021 LITTLER MENDELSON P.C. RYAN L. EDDINGS Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 83 of 85 EXHIBITS HERETO EXCERPTED TO AVOID FILING OF DUPLICATIVE PAPERS Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 84 of 85 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON F C mo harm Pm- Avenue Sun: m Case 1:21-at-00984 Document 1 Filed 10/20/21 Page 85 0f 85 PROOF 0F SERVICE BY ELECTRONIC TRANSMISSION I am employed in Fresno County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 5200 North Palm Avenue, Suite 302, Fresno, California 937042225 On this 20th day of October, 2021, I served a copy of the within document(s): DEFENDANTRANDSTAD GENERAL PARTNER (US), LLC’S NOTICE T0 STA TE COURTOFREMOVAL 0F CIVIL ACTION T0 FEDERAL COURT Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list 0n the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. The electronic notification address of the person making the service is lhammond@littler.com: Amanda B. Whitten BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 Tel: (559) 494-4910 Email: amanda@bwlaw.com Courtesy copy: carrie@bwlaw.com I declare under penalty of perjury under the laws of the State 0f California that the above is true and correct. Executed 0n this 20th day 0f October, 2021, at Fresno, California. /s/ Camile Manning Camile Manning 4832-2277-09401 /053141-1037 3 r rrrrrr 1:»: 937m 2225 559,244,15vv Defendant’s Notice to State Court of Removal 0f Civil Action to Federal Court IS 44 ‘1‘" W 999’st (6839?? W3Case 1: 21- at-00 c /20_/21 Page 1 of 2 The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service 0f pleadings or other papers as required by law except as provided by local rules 0f court This form, approved by the Judicial Conference 0fthc United States m September 1974 15 required tor the use 0fthc Clerk of Court for the purpose ofinitiating the civil docket sheet (SEE INSTRUCTIONS ONNEXTPAGE OF THIS FORM) I. (a) PLAINTIFFS KIMBERLY SMITII, (b) County of Residence ofFirst Listed Plaintiff (EYCEPTIN US. PLAINTIFF CASES) (C) Attomeys (Firm Name, Addrexs, and Telephone Number) Amanda B. Whilten, Bar No. 251 160 BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, CA 93711 TeleDhone: (559) 494-4910 DEFENDANTS RANDSTAD GENERAL PARTNER (US), LLC; and DOES l to 20. Cuunly 0f Residcncc 0f First Listed Defendant (1N U.S. PLAINTIFWCASES ONLY) 1N LAND CONDEMNATION CASES, USE THE LOCATION 0F THE TRACT 0F LAND INVOLVED. NOTE : Attorneys ([fKnown) Ryan L. Eddings, Bar No. 256519 LITTLER MENDELSON, P.C. 5200 Nonh Palm Avenue, Suite 302 Fresno, CA 93704 TeleDhone: (559) 244-7500 H. BASIS 0F JURISDICTION (Place an "X”in One Bax Only) HI. CITIZENSHIP 0F PRINCIPAL PARTIES (Place an “X"in UneBoxfbrPlainIifl (Far Diverxity Cams Only and One Haxjnr Dejendam) D 1 us. Government D 3 Federal Question PTF DEF PTF DEF Plamnff (US. Government Not a Party) Citizen of This State X 1 D 1 Incorporated or Principal Place D 4 D 4 ofBusiness In This State D 2 U.S. Government E4 Diversity Citizen of Another State D 2 D 2 Incorporated and Principal Place D 5 E 5 Defendant (Indicate Citizenship ofPartieS in Item III) of Business In Another State Citizen or Subject ofa D 3 D 1 Foreign Nation D 6 D 6 Foreign Country IV. NATURE OF SUIT (Place an 'X' in One Box Only Click here for: Nature of Suit Code Descrigtions. I CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUT D 110 Insurance PERSONAL INJURY PERSONAL INJURY D 625 Drug Related Seizure D 422 Appeal 28 USC 158 D 37S False Claims Act D 120 Marine D 310 A1rplane U 365 Personal Injury - 0f Property 21 USC XXI D 423 Withdrawal D 376 Qui Tam (31 USC D 130 Miller Ac! D 3 I 5 An'plane Product Product Liability D (790 Other 28 USC 157 3729(a)) D 140 Negotiable Instrument Liability D 367 Health Care/ D 400 State Reapportlonmem D 150 Recoverv uvaemavmem D 320 Assaull‘ Libel & Pharmaceutical PROPERTY RIGHTS D 410 Antitrust & Enforcement ofJudgment Slander Personal Injury D 820 Copyrighls D 430 Banks and Banking D 151 Mcdicarc Act D 330 chcml Employers‘ Product Liabilhy D 830 Patent D 450 Commerce D 152 Recovery ofDefaulted Liability D 368 Asbestos Personal D 840 Trademark D 460 Deponation Student Loans D 340 Marine Injury Product D 470 Racketeer Influenced and (Excludes Veterans) D 345 Marine Product Liabilitv LABOR SOCIAL SECURITY Corrupt Organizations D 153 Recoverv OfOVerDavmcnt Liability PERSONAL PROPERTY D 7] 0 Fair Labor Standards D 86] HlA (1395ffi D 480 Consumer Credit 0f Veteran‘s Benefits D 350 Motor Vehicle U 370 Other Fraud Act D 862 Black Lung (923) D 490 Cable/Sat TV D 160 Slockholders‘ Suits D 355 Motor Vehicle U 371 Truth in Lending D 720 Labor/Managemem D 863 DIWC/DIWW (405(g)) D 850 SecuriIies/Commodities/ D 190 Other Contract Product Liability U 380 Other Personal Relations D 864 SSID Title XVI Exchange D 360 Other Personal Injury D 362 Personal Injury 7 Medical Malpractice D I95 Contract Product Liability D 196 Franchise Propcny Damage D 385 Property Damage Product Liability D 740 Railway Labor Act D 751 Family and Medical Leave Act D 790 Other Labor Litigation D 865 RSI (405(3)) U 890 Other Statutory Actions D 891 Agricultural Acts D 893 Environmental Matters D X95 Freedom oflnformation D 79] Employee Retirement FEDERAL TAX SUITS Act I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS D 210 Land Condemnation D 440 Other Civil Rights Habeas Corpus: D 220 Foreclosure D 44] Voting D 463 Alien Deluinee D 230 Rent Lease & Ejectmcnt D 240 Torts Io Land E 442 Employment D 443 Housing/ D 510 Motions to Vacatc Sentence D 245 T011 Product Liability Accommodations D 530 General D 290 A11 Other Real Property D 445 Amer. w/Disabilities - D 535 Death Penalty Employment Other: D 446 Amer. WIDisahllities - D 540 Mandamus & Other Other D 550 Civil Rights D 448 Education D 555 Prison Condition D 560 Civil Detainee - Conditions of Confinement D x70 Taxes (us. Plaintiff 0r Defendant) D x71 IRsiThird Pany 26 usc 7609 D 896 Arbitration D 899 Administrative Procedure AcuRcvicw or Appeal 0f Agency Dccision D 950 Cunstitulionality 0f S‘ate Statutes Income Security Act IMMIGRATION D 462 Naturalization Application D 465 Other Immigmmm Actions V. ORIGIN (Place an X" in One Box Only) D 1 Original E2 Rcmovcd from Proceeding State Court Rcmandcd from Appellate Court D3 28 U.S‘C. §§ 1332, 1441, and 1446 Brief description 0f cause: VI. CAUSE 0F ACTION VH. REQUESTED IN D 4 Rcinstatcd or D 5 Transferred from Another District (Specify) D 6 Multidistrict Litigation 7 Transfer D 8 Multidistrict Litigation 7 Direct File Reopened Citc thc U‘SA Civil Statute under which you arc filing (Do not citejurisdittimml stature: unless diversity): Plaintiff alleges causes 0f action that she claims stem from her employment With Defendant. D CHECK IF THIS IS A CLASS ACTION DEMAND $ 75,000+ CHECK YES only if demanded in complaint: COMPLAINT: LNDER RULE 23, FrR-CV-P- JURY DEMAND: X Yes E No VHI. RELATED CASE(S) 1F ANY (see immom JUDGE DOCKET NUMBER DATE SIGNATURE 0F ATTORNEV 0F RECORD 10/20/2021 /s/ Ryan L. Eddings FOR OFFICE USE ONLY RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE JS 44 Reverse (Rev. 08/]6) Case 1:21-at-00984 Document 2 Filed 10/20/21 Page 2 of 2 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service 0f pleading or other papers as required by law, except as provided by local rules Ofcourt. This form, approved by the Judicial Conference 0fthe United States in September 1974, is required for the use 0fthe Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk 0f Coutt for each civil complaint filed. The attomey filing a case should complete the form as follows: I.(a) (b) (C) II. III. IV. VI. Vll. VIII. Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use County 0f Residence. For each civil case filed, except U.S. plaintiff cases, enter the name 0f the county where the first listed plaintiff resides a1 the Attorneys. Enter the firm name, address, telephone number, and attorney of record. 1f there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis ofjurisdiction is set forth under Rule 8(a), F.R.CV.P., Which requires that jurisdictions be shown in pleadings, Place an "X" United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United Slates, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 133 1, Where jurisdiction arises under the Constitution of the United States, an amendment Diversity of citizenship. (4) This refers lo suits under 28 U‘S‘C. 1332, where parties are citizens of different slams. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) 0f Principal Parties. This section of the JS 44 is to be completed if diversity 0f citizenship was indicated above. Mark this section for each principal patty. Nature 0f Suit. Place an "X” in the appropriate box. [f there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable‘ Click here for: Nature 0f Suit Code Descrigtions. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed t0 the district courts under Title 28 U.S.C., Section 1441. Remanded from Appellate Court, (3) Check this box for cases remanded to the district court for funher action. Use the date of remand as the filing Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C‘ Section 1404(3). Do not use this for within district transfers or mullidislrict litigation transfers. Multidistrict Litigation 7 Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S‘C. Multidistrict Litigation - Direct File, (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is n0 longer relevant due t0 changes in statue‘ Cause 0f Action. Report the civil statute directly related to the cause of action and give a brief description ofthe cause. D0 not cite jurisdictional statutes unless diversity. Example: U‘S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R‘CV.P. Demand. In this space enter the actual dollar amount being demanded 0r indicate other demand, such as a preliminary injunction Jury Demand. Check the appropriate box t0 indicate Whether 0r not a jury is being demanded. Related Cases. This section of the JS 44 is used t0 reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Dale and sign Ihc civil covcr sheet. Dec of Ryan L. Eddings ISO Def’s Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendant. Case No. DECLARATION OF RYAN L. EDDINGS IN SUPPORT OF DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Action Filed in State Court: 9/20/2021 FAC Filed: 10/18/2021 Fresno County Superior Court Case No. 21CECG0285 I, Ryan L. Eddings, hereby declare and state as follows: 1. I am an attorney with Littler Mendelson, P.C., and licensed to practice before all courts in the State of California and before the United States District Court for the Eastern District of California. I am one of the attorneys representing Defendant RANDSTAD GENERAL PARTNER (US), LLC (“Randstad” or “Defendant”) in the above-titled action. I have personal knowledge of the facts set forth in this declaration and could testify to the same if called as a witness in this matter. 2. On or about September 20, 2021, Plaintiff KIMBERLY SMITH (“Plaintiff”) filed this action in the Fresno County Superior Court, titled Kimberly Smith v. Randstad Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 1 of 48 2 Dec of Ryan L. Eddings ISO Def’s Notice of Removal of Civil Action to Federal Court 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 General Partner (US), LLC, a Delaware Limited Liability Company, and DOES 1-20, inclusive, Case Number 21CECG02785. A true and correct copy of Plaintiff’s original Complaint is attached hereto as Exhibit “A.” Plaintiff served her Complaint on Defendant’s agent for service of process on September 21, 2021. 3. On or about October 18, 2021, Plaintiff filed a First Amended Complaint (“FAC”) in Case Number 21CECG02785 in Fresno County Superior Court. A true and correct copy of Plaintiff’s FAC is attached hereto as Exhibit “B.” Plaintiff served her FAC on Defendant’s counsel on October 18, 2021. I certify and declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 20, 2021, at Fresno, California. Ryan L. Eddings Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 2 of 48 Exhibit A Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 3 of 48 Notice of Service of Process JWG / ALL Transmittal Number: 23802922 Date Processed: 09/22/2021 Primary Contact: Karen Lubrano Randstad US - Spherion Corporation 2050 Spectrum Blvd Fort Lauderdale, FL 33309-3008 Electronic copy provided to: Jenna Debs Rob Calabro Entity: Randstad General Partner (US) LLC Entity ID Number 1922170 Entity Served: Randstad General Partner (US), LLC Title of Action: Kimberly Smith vs. Randstad General Partner (US), LLC Matter Name/ID: Smith, Kimberly v. Randstad General Partner (Us), LLC (11500030) Document(s) Type: Summons/Complaint Nature of Action: Discrimination Court/Agency: Fresno County Superior Court, CA Case/Reference No: 21CECG02785 Jurisdiction Served: California Date Served on CSC: 09/21/2021 Answer or Appearance Due: 30 Days Originally Served On: CSC How Served: Personal Service Sender Information: Amanda B. Whitten 559-494-4910 Information contained on this transmittal form is for record keeping, notification and forwarding the attached document(s). It does not constitute a legal opinion. The recipient is responsible for interpreting the documents and taking appropriate action. To avoid potential delay, please do not send your response to CSC 251 Little Falls Drive, Wilmington, Delaware 19808-1674 (888) 690-2882 | sop@cscglobal.com Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 4 of 48 S U M M O N S FOR COURT USE ONLY (SOLO PARA USO DE LA CORTE) (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): E-FILED RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited 9/20/2021 liability company, and Does 1 through 20, inclusive, Superior Court of California County of Fresno YOU ARE BEING SUED BY PLAINTIFF: By: C. York, Deputy (LO ESTA DEMANDANDO EL DEMANDANTE): KIMBERLY SMITH NOTICE! You have been sued. The court may decide against you without your being heard un!ess you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call wi[[ not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-He[p Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not fi!e your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other [ega[ requirements. You may want to ca[I an attorney right away. If you do not know an attorney, you may want to ca[I an attorney referral service. If you cannot afford an attorney, you may be eligib!e for free legal services from a nonprofit legal services program. You can [ocate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the Ca[ifornia Courts On[ine Se[f-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your [oca[ court or county bar association. NOTE: The court has a statutory [ien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's [ien must be paid before the court wi[[ dismiss the case. iAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidiren su contra sin escucharsu versi6n. Lea la informaci6n a continuaci6n. Tiene 30 DIAS DE CALENDARIO despu6s de que le entreguen esta citaci6n y pape/es legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telef6nica no /o protegen. Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usarpara su respuesta. Puede encontrar estos formularios de la corte y mas informaci6n en el Centro de Ayuda de /as Cortes de California (www.sucorte.ca.gov), en la biblioteca de /eyes de su condado o en /a corte que le quede m3s cerca. Si no puede pagar la cuota de presentaci6n, pida a/ secretario de la corte que le d6 un formulario de exenci6n de pago de cuotas. Si no presenta su respuesta a tfempo, puede perder el caso por incumplimiento y la corte le podrb quitar su sueldo, dinero y bienes sin mbs advertencia. Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remisi6n a abogados. Si no puede pagar a un abogado, es posible que cumpla con /os requisitos para obtener servicios Iegales gratuitos de un programa de servicios /ega/es sin fines de lucro. Puede encontrar estos grupos sin fines de /ucro en el sitio web de California Legal Services, (www.[awhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poni6ndose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un grravamen sobre cualquierrecuperaci6n de $10,000 6 mas de valorrecibida mediante un acuerdo o una concesi6n de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar e/ caso. The name and address of the court is: CASE NUMSER: 21 CECG02785 (EI nombre y direcci6n de la corte es): Fresno County Superior Court (Numero del Caso): 1130 "O" Street Fresno, California 93721 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (EI nombre, la direcci6n y el n(imero de telefono del abogado del demandante, o del demandante que no tiene abogado, es): Amanda B. Whitten - 8050 North Palm Avenue, Suite 210, Fresno, California 93711 - 559.494.4910 DATE: (Fecha) 9/20/2021 Clerk, by (Secretario) C. York Deputy (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citati6n use el formulario Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED Y d . ou are serve 1. as an individual defendant. 2. 0 as the person sued under the fictitious name of (specify): 3. = on behalfof (specify): RANDSTAD GENERAL PARTNER (US),LLC, a Delaware limited liability company under: 0 CCP 416.10 (corporation) Q CCP 416.60 (minor) ~ CCP 416.20 (defunct corporation) Q CCP 416.70 (conservatee) ~ CCP 416.40 (association or partnership) Q CCP 416.90 (authorized person) ~ other (specify): LLC 4. = by personal delivery on (date): Paae 1 of 1 SUMMONS Code of Civil Procedure §§ 412.20, 465 www.courtinfo.ca.gov Form Adopted for Mandatory Use Judicfal Council of Califomia SUM-100 [Rev. July 1, 2009] Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 5 of 48 SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO Civil Unlimited Department, Central Division FOR COUR7 USE ONLY 1130 "O" Street 9/20/2021 Fresno, California 93724-0002 (559) 457-1900 Filed by Court TITLE OF CASE: Kimberly Smith vs. Randstad General Partner (US), LLC NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF CASE NUMBER: JUDGE FOR ALL PURPOSES 1 210ECG02785 Amanda B. Whitten To AII Parties and their Aftorneys of Record: Bryant Whitten LLP 8050 North Palm Avenue Suite 210 Fresno CA 93711 This case has been assigned to Kristi Culver Kapetan, Judge for all purposes. AII future hearings will be scheduled before this assigned judge, in Department 403 You are required to appear at a Case Management Conference on 01/19/2022 at 3:30 PM in Department 402 of the Court located at 1130 "O" Street, Fresno, California. You must comply with the requirements set forth in the Superior Court of Fresno County, Local Rules, Chapter 2. Failure to appear at the conference may result in imposition of sanctions, waiver of jury trial, or other adverse consequences. Defendants: Appearance at the Case Management Conference does not excuse you from having to file your response in proper legal form within 30 days after the summons is served on you. Failure to file a response in a timely manner may result in adverse consequences, including a default judgment being entered against you. If you do not have an attorney and wish to retain one, there are attorney referral services, legal aid offices, and private practice attorneys in the Fresno area (most may be found on the internet or the local phone book). DECLARATION I declare under penalty of perjury under the laws of the State of California that I gave a copy of the Notice of Case Management and Assignment of Judge for AII Purposes to the person who presented this case for filing. Date: 9/20/2021 Clerk, by Chelsey York , Deputy CV-48 R07-21 NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF JUDGE FOR ALL PURPOSES OPTIONAL Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 6 of 48 ATTORNEY OR PARTY VWITHOUT ATTORNEY (Name, State Bar number, and address): - Amanad B. Whitten - #251160 BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, California 93711 TELEPHONE NO.: 559.494.4910 FAx NO.: 559.421.0369 ATTORNEY FOR (Name): Plalntlff, Kunberly Smith iUPERIOR COURT OF CALIFORNIA, COUNTY OF Fresno STREETADDRESS: 1130 " 0 " Street MAILING ADDRESS: CITY AND zIP CODE: Fresno, Calif ~ o ~~ rn .7,~ ia 93721 BRANCHNAME: B.F. S1skCoUlLilouse CASE NAME: Smith v. Randstad General Partner SA , LLC CIVIL CASE COVER SHEET Complex Case Designation M Unlimited Q Limited (Amount (Amount ~ Counter Q Joinder demanded demanded is Filed with first appearance by defendant exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) FOR COURT USE ONLY E-FILED 9/16/2021 4:13 PM Superior Court of California County of Fresno By: C. York, Deputy CASE NUMBER: 21 CECG02785 JUDGE: DEPT: Ifp.rY1.4 1-Fi hAlOw R71/.St hp. Cr1rr)nlp.tp.ft /SBB InSfrllCllnnS On nadE Ll_ Check one box below for the case type that best describes this case: Auto Tort ~ Contract 0 Breach of contract/warranty (06) Auto (22) 0 Uninsured motorist (46) Rule 3.740 collections (09) Other PIIPD/VI/D (Personal Injury/Property 0 Other collections (09) Damage/Wrongful Death) Tort ~ 0 Insurance coverage (18) Asbestos (04) 0 Product liability Q Other contract (37) (24) 0 Real Property Medical malpractice (45) Q Eminent domain/Inverse 0 Other PI/PD/WD (23) ~ condemnation (14) Non-PI/PD/WD (Other) Tort Wrongful eviction (33) = Business tort/unfair business practice (07) 0 Other real property (26) 0 Civil rights (08) ~ Defamation (13) 0 Fraud (16) ~ Intellectual property (19) ~ Professional negligence (25) 0 Other non-PI/PDM/D tort (35) Em loyment Wrongful termination (36) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) 0 Antitrust/Trade regu[ation (03) Q Construction defect (10) 0 Mass tort (40) ~ Securities litigation (28) ~ Environmentallroxic tort (30) 0 Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment Q Enforcement ofjudgment (20) Miscellaneous Civil Complaint ~ RICO (27) 0 Other complaint (not specified above) (42) Miscellaneous Civil Petition 0 Partnership and corporate governance (21) Q Other petition (not specified above) (43) Unlawful Detainer ~ Commercial (31) ~ Residential (32) 0 Drugs (38) Judicial Review Q Asset forfeiture (05) ~ Petition re: arbitration award (11) ~ Writ of mandate (02) U Other emp[oyment (15) U Other'udicial review 39 2. This case is is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the d.Q Large number of witnesses e.0 Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court f. = Substantial postjudgmentjudicial supervision b.M nonmonetary; declaratory or injunctive relief C. ✓Opunitive 4. Number of causes of action (specify): Nine (9) 5. This case 0 is ✓~ is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You Date: September 16, 2021 ~ AMANDA B. WHITTEN (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failur.e to file may result in sanctions. • File this cover sheet in addition to any cover sheet required by local court rule. • If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. • Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. __ Fonn Adopted for Mandatory Use CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.740; Judicial Council of Califomia Cal. Standards of Judicial Administration, std. 3.10 CM-010 [Rev. July 1, 2007] www.courtinto.ca.gov factors requiring exceptional judicial management: a. Q Large number of separately represented parties b. Extensive motion practice raising difficult or novel issues that will be time-consuming to resolve C. Substantial amount of documentary evidence 3. Remedies sought (check all that apply): a.© monetary ~ for~M-095.) -~.~~___ Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 7 of 48 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET CM-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A"collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintifPs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. CASE TYPES AND EXAMPLES Auto Tort Contract Provisionally Complex Civil Litigation (Cal. Auto (22)-Personal Injury/Property Breach of ContractlWarranty (06) Rules of Court Rules 3.400-3.403) DamageNVrongful Death Breach of Rental/Lease Antitrust/Trade Regulation (03) Uninsured Motorist (46) (if the Contract (not unlawful detainer Construction Defect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) motorist claim subject to Contract/VVarranty Breach-Seller Securities Litigation (28) arbitration, check this item Plaintiff (not fraud or negligence) Environmental/Toxic Tort (30) instead ofAuto) Negligent Breach of ContracU Insurance Coverage Claims Other PIIPD/WD (Personal Injury/ Warranty (arising from provisionally complex Property Damage/Wrongful Death) Other Breach of Contract/Warranty case type listed above) (41) Tort Collections (e.g., money owed, open Enforcement of Judgment Asbestos (04) book accounts) (09) Enforcement of Judgment (20) Asbestos Property Damage Collection Case-Seller Plaintiff Abstract of Judgment (Out of Asbestos Personal Injury/ Other Promissory Note/Collections County) Wrongful Death Case Confession of Judgment (non- Product Liability (not asbestos or Insurance Coverage (not provisionally domestic relations) toxic%nvironmental) (24) complex) (18) Sister State Judgment Medical Malpractice (45) Auto Subrogation Administrative Agency Award Medical Malpractice- Other Coverage (not unpaid taxes) Physicians & Surgeons Other Contract (37) Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Malpractice Other Contract Dispute Other Enforcement of Judgment Other PI/PDMlD (23) Real Property Case Premises Liability (e.g., slip Eminent Domain/Inverse Miscellaneous Civil Complaint and fall) Condemnation (14) RICO (27) Intentional Bodily Injury/PDNVD Wrongful Eviction (33) Other Complaint (not specified (e.g., assault, vandalism) Other Real Property (e.g., quiet tit[e) (26) above) (42) Intentional Infliction of Writ of Possession of Real Property Declaratory Relief Only Emotional Distress Mortgage Foreclosure Injunctive Relief Only (non- Negligent Infliction of Quiet Title harassment) Emotional Distress Other Real Property (not eminent Mechanics Lien Other PI/PD/WD domain, landlord/tenant, or Other Commercial Complaint Non-PIIPD/WD (Other) Tort foreclosure) Case (non-tort/non-complex) Business Tort/Unfair Business Unlawful Detainer Other Civil Complaint Practice (07) Commercial (31) (non-tort/non-complex) Miscellaneous Civil Petition Civil Rights (e.g., discrimination, Residential (32) Partnership and Corporate false arrest) (not civil Drugs (38) (if the case involves illegal Governance (21) harassment) (08) drugs, check this item; otherwise, Other Petition (not specified Defamation (e.g., s[ander, libel) report as Commercial or Residential) above) (43) (13) Judicial Review Civil Harassment Fraud (16) Asset Forfeiture (05) Workplace Violence Intellectual Property (19) Petition Re: Arbitration Award (11) Elder/Dependent Adult Professional Negligence (25) Writ of Mandate (02) Abuse Legal Malpractice Writ-Administrative Mandamus Election Contest Other Professional Malpractice Writ-Mandamus on Limited Court Petition for Name Change (notmedical orlegal) Case Matter Petition for Relief From Late Other Non-PI/PDNdD Tort (35) Writ-Other Limited Court Case Claim Employment Review Other Civil Petition Wrongful Termination (36) Other Judicial Review (39) Other Employment (15) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals CM-010 [Rev. July 1, 2007] CIVIL CASE COVER SHEET Pa9e 2 or z Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 8 of 48 1 AMANDA B. WHITTEN - #251160 BRYANT WHITTEN, LLP 2 8050 North Palm Avenue, Suite 210 Fresno, California 93711 3 (559) 494-4910 Telephone (559) 421-0369 Facsimile 4 5 6 I Attorneys for Plaintiff, KIMBERLY SMITH 7 8 E-FILED 9/16/2021 4:13 PM Superior Court of California County of Fresno By: C. York, Deputy SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 9 10 KIMBERLY SMITH, Case No. 21 CECG02785 11 Plaintiff, C O M P L A I N T F O R DISCRIMINATION BASED ON 12 DISABILITY AND/OR PERCEIVED DISABILITY, FAILURE TO 13 RANDSTAD GENERAL PARTNER (US), PREVENT DISCRIMINATION, LLC, a Delaware limited liability company, and FAILURE TO ENGAGE IN THE 14 Does 1 through 20, inclusive, INTERACTIVE PROCESS, FAILURE TO ACCOMMODATE, AND 15 Defendants. RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND 16 HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE 17 LAWS, VIOLATION OF LABOR CODE §233, WRONGFUL 18 CONSTRUCTIVE DISCHARGE, DEFAMATION, PUNITIVE 19 DAMAGES AND ATTORNEYS' FEES 20 DEMAND FOR JURY TRIAL 21 COMES NOW, Plaintiff, Kimberly Smith, and alleges as follows: 22 GENERAL ALLEGATIONS 23 1. Plaintiff, Kimberly Smith (hereinafter referred to as "Plaintiff'), is an adult residing 24 in Fresno County, California, and was an employee of Defendant, Randstad General Partner (US), 25 LLC, commencing employment on or about June 9, 1998, until on or about May 17, 2021, when she 26 ' was wrongfully discharged. 27 I 2. Defendant, Randstad General Partner (US), LLC, (hereinafter referred to as 28 "Randstad"), is a Delaware limited liability company doing business in Fresno County, California. I PLAINTIFF'S COMPLAINT Page 1 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 9 of 48 1 3. The true names and capacities of the defendants named herein as Does 1 through 20, 2 inclusive, whether individual, corporate, associate or otherwise, are unknown to the Plaintiff who, 3 therefore, sues such defendants by fictitious names pursuant to California Code of Civil Procedure 4 §474. Plaintiff is informed and believes, and on that basis alleges that each defendant sued under such 5 fictitious name is in some manner responsible for the wrongs and the damages as alleged below, and 6 in so acting was functioning as the owner, shareholder, agent, servant, partner, joint venturer, alter- 7 ego, employee, proxy, managing agent, and principal of the co-defendants, and in doing the actions 8 mentioned below was acting, at least in part, within the course and scope of their authority as such 9 agent, servant, proxy, partner, joint venturer, employee, alter-ego, managing agent, and principal with 10 the permission and consent of the co-defendants. 11 4. Plaintiff is informed and believes, and thereupon alleges, that each of the defendants 12 sued herein was, at all times relevant hereto, the employer, owner, shareholder, principal, joint 13 venturer, proxy, agent, employee, supervisor, representative, manager, managing agent, joint employer 14 and/or alter-ego of the remaining defendants, and was acting, at least in part, within the course and 15 scope of such employment and agency, with the express and implied permission, consent and 16 knowledge, approval and/or ratification of the other defendants. The above co-defendants and 17 managing agents and supervisors aided, abetted, condoned, permitted, wilfully ignored, approved, 18 authorized and/or ratified the unlawful acts described herein. 19 5. Venue is proper in this county because the employment relationship between Plaintiff 20 I and Defendant, Employer, arose and was performed in Fresno County, California, and Defendant 21 Smith is a resident of Fresno County, California. This court is the proper court because the amount 22 at issue exceeds the jurisdictional minimum of this court. 23 6. At all times herein, Plaintiff was duly qualified and performed her employment duties 24 I in a satisfactory manner. Plaintiff performed and was willing to continue to perform all duties and 25 I responsibilities on her part to be performed, which duties and responsibilities were part of the 26 employment relationship between Defendant, Employer, and Plaintiff. 27 7. Plaintiff was at all times an employee covered by Government Code §§ 12940 et seq. 28 I prohibiting discrimination in employment on the basis of inedical condition, disability and/or PLAINTIFF'S COMPLAINT Page 2 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 10 of 48 1 perceived disability and was therefore a member of the group sought to be protected by this statute. 2 8. Defendant, Employer, was an employer within the meaning of California Government 3 I Code § 12926(d) and, as such, was and is barred from unlawfully discriminating in employment 4 I decisions on the bases set forth in Govecnment Code §§ 12940 et seq.. 5 9. As an employee of Defendant, Employer, Plaintiff was entitled to all of the benefits 6 I provided by Employer's personnel policies, procedures and practices, as well as those confirmed in 7 ~ the by-laws governing said organization. 8 10. This action is brought to remedy discrimination against Plaintiff in the terms, 9 conditions and privileges of employment and to remedy retaliation against Plaintiff. 10 11. Plaintiff began working for Defendant, Employer, in or about June of 1998 as a 11 recruiter in its Madera office. Throughout her employment with Defendant, Employer, Plaintiff was 12 promoted multiple times. At the time of her termination, Plaintiff held the position of Regional Vice 13 President. As Regional Vice President, Plaintiff was responsible for overseeing various Randstad 14 locations throughout the Central Valley. 15 12. On or about Apri121, 2021, Plaintiff suffered an anxiety attack. Plaintiff continued 16 having anxiety attacks over the course of the next few days. Plaintiff called her supervisor, Joel Smith, 17 and told him about him her medical condition. Supervisor Smith, responded by telling Plaintiffto take 18 I time off and to delegate one of the accounts she was responsible for to someone else. 19 13. Following her conversation with Supervisor Smith, andper the advice ofherphysician, 20 I Plaintiff requested and took medical leave. 21 14. Upon her return on or about April 27, 2021, Supervisor Smith, set up a call with 22 Plaintiff. Supervisor Smith, asked Plaintiff how she was doing and Plaintiff answered honestly, telling 23 Supervisor Smith that she was still struggling with her mental health. Supervisor Smith, responded 24 by telling Plaintiff that he was under the impression that as a result of her mental health issues, 25 Plaintiff was going to resign. Plaintiff was shocked at Supervisor Smith's comment as she had never 26 indicated she was going to resign. Plaintiff was extremely distressed that after revealing her disability 27 to Supervisor Smith, and requesting and taking medical leave, Supervisor Smith, considered her unfit 28 and unable to do her job. PLAINTIFF'S COMPLAINT Page 3 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 11 of 48 1 15. During that same phone call, Supervisor Smith, again told Plaintiff to delegate one of 2 her accounts to someone else. Supervisor Smith, also told Plaintiff that he was taking away the entire 3 Bakersfield region from Plaintiff which included numerous accounts and instead delegating it to 4 someone else as well. Plaintiff was completely shocked. She had never once agreed to giving up more 5 than one, let alone numerous accounts. Not only would this substantially reduce Plaintiff's 6 responsibilities but it would also reduce her ability to receive bonuses and other benefits. This 7 constituted a demotion. Plaintiff complained to Supervisor Smith, about his decision but despite her 8 complaints, Supervisor Smith, took the accounts from Plaintiff anyway. Supervisor Smith, continued 9 by telling Plaintiff that there were issues with her performance. Plaintiff was confused as she had 10 never once been told there were any problems with her performance. In fact, just a couple of weeks 11 before she disclosed her disability, she had received a raise. Plaintiff was extremely distressed by 12 Supervisor Smith's conduct. 13 16. The following day, on or about Apri128, 2021, Plaintiff submitted a survey response 14 I to the human resources department. In her response, Plaintiff explained that she was struggling with 15 her mental health and felt that she had been treated unfairly ever since disclosing that information to 16 Defendant, Employer. To her knowledge, no action was taken. 17 17. On or about May 5, 2021, Plaintiff contacted the human resources representative 18 reiterating her complaints that ever since she had disclosed her disability, she had been treated 19 unfairly. Plaintiff complained about Supervisor Smith's conduct and his decision to strip Plaintiff of 20 multiple accounts after she told him she had a disability. Instead of offering Plaintiff some support, 21 the human resources representative told Plaintiff that "business decisions were business decisions." 22 Plaintiff was extremely distressed that no one, not even human resources, was willing to help her or 23 put an end to the discriminatory conduct. Plaintiff felt like she had no one at Defendant, Employer, 24 who she could turn to for help. 25 18. Following her return from medical leave in late April of 2021, Supervisor Smith's 26 conducttowards Plaintiff changed. Supervisor Smith, continuously subjected Plaintiffto unwarranted 27 and unjustified criticism regarding her j ob performance. In addition, Defendant. Smith, was often rude 28 to Plaintiff, cutting her offwhen she attempted to ask questions or raise concerns about the Bakersfield PLAINTIFF'S COMPLAINT Page 4 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 12 of 48 region. Supervisor Smith, began requiring that human resources and Doug Hammond, Supervisor 2 Smith's superior, sit in on his communications with Plaintiff. Plaintiff was confused as nobody had 3 ever been required to sit in on her calls with Supervisor Smith, until now. During one of these calls, 4 Plaintiff voiced her concerns that she had a disability and felt she had been treated unfairly ever since 5 telling Supervisor Smith, about it. Again, to her knowledge, no action was taken. Plaintiff was 6 extremely distressed that Defendants Smith and Employer treated her like she suddenly did not know 7 how to do her job ever since she disclosed her disability and requested and took medical leave. 8 19. On or about May 17, 2021, Plaintiff was forced to resign from her job with Defendant, r Employer. Defendant's failure to do anything about the discriminatory conduct towards Plaintiff and 10 Defendant, and Smith's behavior towards Plaintiff, made the work environment so intolerable that 11 Plaintiff could not continue to work there. Additionally, Plaintiff knew that without the Bakersfield 12 region, she was being set up for continued claims of poor performance and imminent termination. 13 She was forced to resign from her job. 14 20. Plaintiff is informed and believes that the reason Defendant, Employer, demoted her 15 and forced her to resign is pretextual. The true reasons for Plaintiff's demotion and forced resignation 16 are that Defendant, Employer, believed that she was disabled and unable to perform any job duties, 17 the she needed accommodation, that she requested accommodation and that she requested and took 18 medical leave to care for her own serious medical condition. This conduct by Defendant, Employer, 19 violated the California Fair Employment and Housing Act, the California Family Rights Act and 20 California Labor Code §233. 21 21. Plaintiff filed a charge of discrimination with the Department of Fair Employment and 22 Housing ("DFEH") against Defendant, Employer, complaining of the acts of discrimination and 23 retaliation as alleged therein. Plaintiff received a"Right to Sue Letter" from the DFEH dated August 24 13, 2021, a true and correct copy of which is attached hereto as Exhibit "A." On or about August 13, 25 2021, Plaintiff notified the California Labor and Workforce Development Agency ("LWDA") 26 regarding Defendant, Employer's violation of the Labor Code. As of the date of filing this Complaint, 27 LWDA had not responded. Therefore, Plaintiff has exhausted her administrative remedies. 28 PLAINTIFF'S COMPLAINT Page 5 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 13 of 48 1 22. As a direct and proximate result of the Defendant's acts of discrimination and 2 1 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 3 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 4 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 5' humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 6 23. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 7 in an action for which they are specifically provided by statute. Califoi-nia Government Code § 12965 8 and Labor Code §2699 provide that reasonable attorneys' fees and costs are recoverable herein by the 9 prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the 10 prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys' fees and costs 11 I herein incurred. 12' 13 14 15 i 16 II 17 18 li 19 20 21 FIRST CAUSE OF ACTION Discrimination and Harassment Based on Medical Condition, Disability and/or Perceived Disability in Violation of Government Code §12940 24. The allegations of paragraphs 1 through 23 are re-alleged and incorporated herein by I reference. 25. The California Government Code provides at Section 12940, in pertinent part: "It shall be an unlawful employment practice ...(a) For an employer, because of the... physical disability, mental disability... [or] medical condition of anyperson ... to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges or employment.... "(j)(1) For an employer .. Because of ... physical disability, mental disability ... to harass an employee ... 22 In addition, Government Code § 12926 (o) states, in part: 23 "` [P]hysical disability [and] inedical condition' ... includes a perception that the person has any those characteristics ...." 24 I 25 26. Defendant, Employer, demoted Plaintiff and forced her to resign because it perceived 26 I her as disabled and unable to perform any job duties, because it did not want to accommodate her 27 I medical condition, because she requested accommodation and because she requested and took time 28 I off work to care for her own medical condition. PLAINTIFF'S COMPLAINT Page 6 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 14 of 48 1 24. As a direct and proximate result of the Defendant's acts of discrimination and 2 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 3, thereon, in earnings and other einployment benefits which Plaintiff would have received. She has 4 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 5 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 6 25. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 7 in an action for which they are specifically provided by statute. California Government Code § 12965 8 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 9 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 10 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 11 SECOND CAUSE OF ACTION Failure to Accommodate Disability 12 in Violation of Government Code §12940(m) 13 26. The allegations of paragraphs 1 through 25 are re-alleged and incorporated herein by 14 I reference. 15 27. The California Government Code provides at Section 12940, in pertinent part: 16 "It shall be an unlawful employment practice ...(m) For an employer ... to fail to make reasonable accommodation for the known ...physical 17 disability of ... an employee." 18 28. Defendant, Employer, knew ofPlaintiff s medical condition and/or disability and failed 19 to make reasonable accommodation for her disability. Plaintiff requested accommodation of her 20 medical condition which consisted of taking medical leave. Defendant, Employer, refused to 21 accommodate her, instead punishing her by taking an entire region of accounts from Plaintiff, 22 effectively demoting her and forcing Plaintiff to resign shortly after her return from medical leave. 23 Plaintiff's request for accommodation would not have caused Defendant, Employer, any undue 24 burden. 25 29. As a direct and proximate result of the Defendant's acts of discrimination and 26 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 27 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 28 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, PLAINTIFF'S COMPLAINT Page 7 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 15 of 48 1 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 2 30. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 3 in an action for which they are specifically provided by statute. California Government Code § 12965 4 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 5 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 6 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 7 THIRD CAUSE OF ACTION Failure to Engage in a Timely, Good Faith, Interactive Process 8 To Determine Effective Reasonable Accommodation in Violation of Government Code §12940(n) 9 10 31. The allegations of paragraphs 1 through 30 are re-alleged and incorporated herein by 11 I reference. 12 32. The California Government Code provides at Section 12940, in pertinent part: 13 "It shall be an unlawful employment practice ...(n) For an employer ... to fail engage in timely, good faith, interactive process with the 14 employee ... to determine effective reasonable accommodations ..." 15 33. Plaintiffrequested medical leave as an accommodation. Defendant, Employer, stripped 16 Plaintiff from numerous accounts in response to her request for time off, thereby impacting her ability 17 to receive her full compensation and other employment benefits. Defendant, Employer, refused to 18 explore any options to accommodate Plaintiff but, instead, subjected her to unjust discipline and 19 demoted her employment for, among other things, taking time off work to care for her own serious 20 health condition. Accommodation of Plaintiff would not have caused Defendant, Employer, any 21 undue hardship, significant difficulty or expense. 22 34. As a direct and proximate result of the Defendant's acts of discrimination and 23 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 24 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 25 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 26 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 27 35. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 28 in an action for which they are specifically provided by statute. California Government Code § 12965 PLAINTIFF'S COMPLAINT Page 8 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 16 of 48 1 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 2 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 3 I a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 4 FOURTH CAUSE OF ACTION Retaliation for Requesting Accommodation 5 in Violation of Government Code §12940(m)(2) 6 36. The allegations of paragraphs 1 through 35 are re-alleged and incorporated herein by 7 I reference. 8 37. The California Government Code provides at Section 12940, in pertinent part: 9 "It shall be an unlawful employment practice ...(m)(2) For an employer...to ... retaliate or otherwise discriminate against a person for 10 requesting accommodation...." 11 38. Plaintiff requested that Defendant, Employer, accommodate her medical condition. 12' However, Defendant, Employer, refused to accommodate Plaintiff and, instead, demoted and 13 I constructively discharged from her employment in retaliation for, among other things, requesting 14 'I accommodation. Plaintiff's request for accommodation was a substantial motivating reason for her 15 I demotion and constructive discharge. 16' 39. As a direct and proximate result of the Defendant's acts of discrimination and 17 retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 18 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 19 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 20 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 21 40. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 22 in an action for which they are specifically provided by statute. California Government Code § 12965 23 ' provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 24 I the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 25 a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 26 27 28 I PLAINTIFF'S COMPLAINT Page 9 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 17 of 48 1 FIFTH CAUSE OF ACTION Failure to Prevent Discrimination, Harassment and Retaliation 2 3 41. The allegations of paragraphs 1 through 40 are re-alleged and incorporated herein by 4 I reference. 5 42. The California Government Code provides at Section 12940, in pertinent part: 6 "It shall be an unlawful employment practice ...(k) For an employer ... to fail to take all reasonable steps necessary to prevent 7 discrimination ... from occurring." 8 43. The behavior, conduct and comments by Defendant, Employer, and its agents, 9 representatives and employees, created a work environment that was intimidating, hostile, oppressive 10 and offensive to Plaintiff such that she was deprived of the benefit of a discrimination-free work 11 environment, all in violation of California Government Code §§ 12900, et seq. Such conduct included, 12 but was not limited to, subjecting her to unwarranted criticism and discriminatory comments, 13 demoting Plaintiff by removing various accounts from her responsibilities and and creating a work 14 environment that was so intolerable Plaintiff was forced to resign. 15 44. Defendant, Employer, failed to prevent discrimination, harassment and retaliation, 16 failed to halt the offending conduct and failed to engage in a prompt and meaningful investigation of 17 Plaintiff's complaints of discrimination, harassment and retaliation. 18 i 45. As a direct and proximate result of the Defendant's acts of discrimination, harassment 19 and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest 20 thereon, in earnings and other employment benefits which Plaintiff would have received. She has 21 suffered and continues to suffer both physical and non-physical injuries, including emotional distress, 22 humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 23 46. California Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable 24 in an action for which they are specifically provided by statute. California Government Code § 12965 25 provides that reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 26 the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As 27 I a result, Plaintiff is entitled to her reasonable attorneys' fees and costs herein incurred. 28 I /// I PLAINTIFF'S COMPLAINT Page 10 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 18 of 48 1 SIXTH CAUSE OF ACTION Retaliation for Exercising Rights Under California Family Rights Act 2 in Violation of 2 C.C.R. §11094 3 47. The allegations of paragraphs 1 through 46 are re-alleged and incorporated herein by 4 I reference. 5 48. The California Family Rights Act provides that it is an unlawful employment practice 6 for an employer to retaliate against an employee for requesting and taking leave to care for his or her 71 own medical condition. 49. California Administrative Code, Title 2, § 11094 states, in pertinent part: 9 "In addition to the retaliation prohibited by Government Code section 12940 ... it shall be an unlawful employment practice for any person 10 to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual ... because that individual has .. 11 .(a) exercised his or her right to CFRA leave ...." 12 50. Defendant, Employer, discharged Plaintiff from her employment because she exercised 13 her right to request medical leave to care for her own medical condition. 14 51. As a direct and proximate result of the Defendant's conduct, Plaintiff has suffered and 15 ~ continues to suffer damages. Plaintiff is entitled to punitive damages and her reasonable attorneys' 16 I fees and costs herein incurred. 17 SEVENTH CAUSE OF ACTION Retaliation in Violation of Labor Code §233 18 19 52. The allegations of paragraphs 1 through 51 are re-alleged and incorporated herein by 20 I reference. 21 53. Labor Code §233 prohibits employers such as Defendant, Employer, from discharging, 22 discriminating against or retaliating against an employee for using sick leave to attend to his or her 23 illness. Plaintiff asked for and took time off work to care for her own medical condition. 24 54. Defendant, Employer, retaliated against Plaintiff for requesting and taking time off 25 I work to care for own medical condition by, among other things, demoting her and constructively 26 discharging her from employment. 27 55. Plaintiff suffered physical, emotional and economic harm, which was proximately 28 I caused by Defendant's wrongful conduct. I PLAINTIFF'S COMPLAINT Page 11 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 19 of 48 56. Code of Civil Procedure § 1021 provides that attorneys' fees are recoverable in an 2 action for which they are specificallyprovided by statute. Labor Code §2699 provides that, in addition 3 to penalties, reasonable attorneys' fees and costs are recoverable herein by the prevailing party, within 4 the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this action. As 5 a result, Plaintiff is entitled to her reasonable attomeys' fees and costs herein incurred. 6 EIGHTH CAUSE OF ACTION Wrongful Constructive Discharge 7 in Violation of Public Policy 8 57. The allegations set forth in paragraphs 1 through 56 are re-alleged and incorporated 9 herein by reference. 10 58. At all times mentioned in this Complaint, California Constitution Article I, §8, and 11 Government Code § 12940 were in full force and effect, and were binding on Defendant, Employer. 12 These sections required Defendant, Employer, to provide employees with a work environment free 13 of gender discrimination and to refrain from discriminating or retaliating against an employee. 14 59. Plaintiff was subjected to disability discrimination, harassment and retaliation by 15 Defendant, Employer, which caused Plaintiff distress. Plaintiff complained to Defendant, Employer, 16 about disability discrimination, harassment and retaliation but Defendant refused to take action to 17 protect her from further discrimination. 18 60. Defendant's failure to do anything about the discriminatory conduct towards Plaintiff 19 and Supervisor Smith's behavior towards Plaintiff, coupled with Defendant, Employer's, demotion 20 of Plaintiff and efforts to force Plaintiff out by telling Plaintiffthat they believed she would resign and 21 removing multiple accounts from Plaintiff's responsibility, made the work environment so intolerable 22 that Plaintiff could not continue to work there. She was forced to resign from her job. 23 61. As a direct and proximate result of Defendant, Employer's, wilful, knowing and 24 I intentional discrimination, harassment, and retaliation against Plaintiff, she has sustained, and 25 continues to sustain, substantial losses of earnings, and other employment benefits. 26 62. As a direct and proximate result of Defendant's wilful, knowing, and intentional 27 I discrimination and retaliation against Plaintiff, she has suffered, and continues to suffer, humiliation, 28 emotional distress, mental and physical pain and anguish, and the manifestations thereof, all to her PLAINTIFF'S COMPLAINT Page 12 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 20 of 48 1 I damage in an amount to be proven at trial. 2 63. Plaintiff has incurred, and continues to incur, legal expenses and attorneys' fees. 3 I Plaintiff is presently unaware of the precise amount of these expenses and fees and prays leave of 4 I Court to amend this Complaint when the amounts are more fully known. 5 64. Defendant's wilful, knowing, and intentional discrimination and retaliation against 6 I Plaintiff made her worlcing conditions intolerable and forced her to resign. Plaintiff, therefore, seeks 7 I an award of punitive and exemplaty damages in an amount to be proven at trial. 8 NINTH CAUSE OF ACTION Defamation 9 10 65. The allegations of paragraphs 1 through 64 are re-alleged and incorporated herein by 11 I reference. 12 66. Within the year last past, without excuse, justification or privilege, Plaintiff's 13' supervisor, an agent of Defendant, Employer, published false and defamatory statements orally and 14, in writing to third persons, including agents of Defendant, Employer, and other persons who are not 15 parties to this action, about Plaintiff, stating as matters of fact that, among other things: Plaintiff 16 violated company policies; and Plaintiff deserved to be demoted and/or constructively discharged. 17' 67. Within the year lastpast, without excuse, justification orprivilege, agents ofDefendant, 18 Employer, including but not limited to Supervisor Smith published and republished, orally and in 19 writing to third persons, including prospective employers of Plaintiff and other persons who are not 20 'I parties to this action, the false and defamatory statements about Plaintiff, stating as matters of fact that, 21' among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was 22 i incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 23 68. The statements made by Defendants and their agents were and are false and constitute 24 defamation on their face in that they communicate to third persons as matters of fact that Plaintiff was 25 a problematic and poorly performing employee who deserved to be demoted and/or constructively 26 terminated from her job. This constitutes defamation per se as false statements tending to injure 27 Plaintiff in her profession. 28 I PLAINTIFF'S COMPLAINT Page 13 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 21 of 48 1 69. As a result of the Defendants' defamatory statements, Plaintiff was demoted and 2 I constructively discharged from her job with Employer. 3 70. Defendants' defamatory statements have been, and continue to be, foreseeably 4 I republished by and to Defendants and to third persons who are not parties to this action, including but 5 not limited to employees of Defendant, Employer, and prospective employers of Plaintiff and, 6 therefore, all such re-publications are chargeable to Defendants and Defendants are liable for those 7 I foreseeable re-publications. 8 71. Plaintiff was forced to re-publish the false statements Defendants made about her when 9 she applied for jobs after she was constructively discharged. Plaintiff was forced to tell prospective 10 employers that she had been forced to resign because after returning from medical leave, Defendant, 11 Employer considered Plaintiff an unreliable, and incompetent employee who was unable to do her job 12 and therefore deserved to be demoted. Defendants knew, or should have known, that Plaintiff would 13 have to repeat the false statements that they made about her when she applied for work with 14 subsequent potential employers. 15 72. As a result of Defendants' defamatory statements and the foreseeable re-publications 16 of those defamatory statements, Plaintiff has suffered, and continues to suffer special and general 17 damages in an amount according to proof, but in excess of the minimum jurisdictional limits of this 18 Court, for, among other things, the loss of her employment and the income and benefits derived 19 therefrom, the damage to her theretofore good reputation as a competent, knowledgeable and 20 cooperative employee and for the embarrassment, annoyance and wony caused to her by the 21 defamation. 22 73. Defendants published and republished the defamatory statements knowing the 23 statements to be false, defamatory and untrue and made the defamatory statements with animus, 24 hatred, ill will and an intent to vex, harass annoy and injure Plaintiff and with the fraudulent and 25 malicious purpose and design of injuring the reputation and the professional and economic interests 26 of Plaintiff, thereby warranting the imposition of punitive damages against Defendants, and each of 27 them, in an amount sufficient to punish this conduct and to deter the occurrence of similar conduct 28 in the future. PLAINTIFF'S COMPLAINT Page 14 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 22 of 48 1 74. Alternatively, Defendants published the defamatory statements without regard for their 2 truth or falsity and without any reasonable investigation into their truth or falsity, and with a conscious 3 and deliberate disregard for the rights of Plaintiff, thereby warranting the imposition of punitive 4 damages against Defendants, and each of them, in an amount sufficient to punish this conduct and to 5 deter the occurrence of similar conduct in the future. 6 75. Plaintiff has incurred, and continues to incur, legal expenses and attorneys' fees.. 7 Plaintiff is presently unaware of the precise amount of these expenses and fees, and prays leave of 8 Court to amend this Complaint when the amounts are more fully known. 9 REQUEST FOR JURY TRIAL 10 Plaintiff, Kimberly Smith, hereby requests a trial by jury. 11 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff prays as follows: 13 1. For general damages in excess of the jurisdictional minimum of this Court, according 14 to proof; 15 2. For special damages according to proof; 16 3. For exemplary punitive damages, according to proof; 17 4. For interest on the amount of losses incurred in earnings, deferred compensation and 18 other employee benefits at the prevailing rate; 19 5. For reinstatement to her job with Defendant, Employer; 20 6. For costs of suit, including reasonable attorneys' fees; and 21 7. For such other and further relief as the Court may deem just and proper. 22 Dated: September 16, 2021 BRYANT WHITTEN, LLP 23 _---- 24 AMANDA B. WHITTEN, Attorneys for Plaintiff, 25 KIMBERLY SMITH 26 27 28 PLAINTIFF'S COMPLAINT Page 15 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 23 of 48 EXHIBIT "A" Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 24 of 48 I I “A” STATE OF CALIFORNIA I BucinAcc Consumer Services and Housina Acgencv GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT 8c HOUSING KEVIN KISH, DIRECTOR 2218 Kausen Drive, Suite 100 1 Elk Grove I CA 195758 (800) 884-1684 (Voice) 1(800) 700-2320 (TTY) I California's Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov August 13, 2021 Kimberly Smith 310 W PAU L AVE Clovis, California 93612 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202108-14460313 Right to Sue: Smith / Randstad North America, Inc. Dear Kimberly Smith: This letter informs you that the above-referenced complaint filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 13, 2021 because an immediate Right to Sue notice was requested. 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. This matter may qualify for DFEH's Small Employer Family Leave Mediation pilot program. Under this program, established under Government Code section 12945.21, a small employer with 5-19 employees, charged with violation of the California Family Rights Act, Government Code section 12945.2, has the right to participate in DFEH's free voluntary mediation service. Under this program both the employee requesting an immediate right to sue and the employer charged with the violation may request that all parties participate in DFEH's free voluntary mediation service. A request for mediation must be submitted to the DFEH within 30 days of receipt of the Notice of Case Closure and Right to Sue. If inediation is requested, the employee is prohibited from filing a civil action until mediation is complete. The employee's statute of limitations to file a civil action, including for all related claims not arising under section 12945.2, is tolled from DFEH's receipt of a mediation request under section 12945.21 until mediation is complete. To request DFEH Small Employer Family Leave Mediation, email DRDOnlinerequests@dfeh.ca.gov and include the DFEH matter number indicated on the Right to Sue notice. 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, Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 25 of 48 STATE OF CALIFORNIA I Business Consumer Services and Housino Acgencv GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING KEVIN KISH, DIRECTOR 2218 Kausen Drive, Suite 100 1 Elk Grove I CA 195758 (800) 884-1684 (Voice) 1(800) 700-2320 (TTY) I California's Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov Department of Fair Employment and Housing Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 26 of 48 Exhibit B Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 27 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AMANDA B. WHITTEN - #251160 BRYANT WHITTEN, LLP 8050 North Palm Avenue, Suite 210 Fresno, California 93711 (559) 494-4910 Telephone (559) 421-0369 Facsimile Attorneys for Plaintiff, KIMBERLY SMITH SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO KIMBERLY SMITH, Plaintiff, vs. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 21CECG02785KCK FIRST AMENDED COMPLAINT FOR DISCRIMINATION BASED ON DISABILITY AND/OR PERCEIVED D I S A B I L I T Y , FA I L U R E T O PREVENT DISCRIMINATION, FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS, FAILURE T O A C C O M M O D A T E , A N D RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE LAWS, VIOLATION OF LABOR C O D E § 2 3 3 , W R O N G F U L CONSTRUCTIVE DISCHARGE, D E F A M A T I O N , P U N I T I V E DAMAGES AND ATTORNEYS’ FEES DEMAND FOR JURY TRIAL COMES NOW, Plaintiff, Kimberly Smith, and alleges as follows: GENERAL ALLEGATIONS 1. Plaintiff, Kimberly Smith (hereinafter referred to as “Plaintiff”), is an adult residing in Fresno County, California, and was an employee of Defendant, Randstad General Partner (US), LLC, commencing employment on or about June 9, 1998, until on or about May 17, 2021, when she was wrongfully discharged. 2. Defendant, Randstad General Partner (US), LLC, (hereinafter referred to as “Randstad”), is a Delaware limited liability company doing business in Fresno County, California. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 1 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 28 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The true names and capacities of the defendants named herein as Does 1 through 20, inclusive, whether individual, corporate, associate or otherwise, are unknown to the Plaintiff who, therefore, sues such defendants by fictitious names pursuant to California Code of Civil Procedure §474. Plaintiff is informed and believes, and on that basis alleges that each defendant sued under such fictitious name is in some manner responsible for the wrongs and the damages as alleged below, and in so acting was functioning as the owner, shareholder, agent, servant, partner, joint venturer, alter- ego, employee, proxy, managing agent, and principal of the co-defendants, and in doing the actions mentioned below was acting, at least in part, within the course and scope of their authority as such agent, servant, proxy, partner, joint venturer, employee, alter-ego, managing agent, and principal with the permission and consent of the co-defendants. 4. Plaintiff is informed and believes, and thereupon alleges, that each of the defendants sued herein was, at all times relevant hereto, the employer, owner, shareholder, principal, joint venturer, proxy, agent, employee, supervisor, representative, manager, managing agent, joint employer and/or alter-ego of the remaining defendants, and was acting, at least in part, within the course and scope of such employment and agency, with the express and implied permission, consent and knowledge, approval and/or ratification of the other defendants. The above co-defendants and managing agents and supervisors aided, abetted, condoned, permitted, wilfully ignored, approved, authorized and/or ratified the unlawful acts described herein. 5. Venue is proper in this county because the employment relationship between Plaintiff and Defendant, Employer, arose and was performed in Fresno County, California. This court is the proper court because the amount at issue exceeds the jurisdictional minimum of this court. 6. At all times herein, Plaintiff was duly qualified and performed her employment duties in a satisfactory manner. Plaintiff performed and was willing to continue to perform all duties and responsibilities on her part to be performed, which duties and responsibilities were part of the employment relationship between Defendant, Employer, and Plaintiff. 7. Plaintiff was at all times an employee covered by Government Code §§12940 et seq. prohibiting discrimination in employment on the basis of medical condition, disability and/or perceived disability and was therefore a member of the group sought to be protected by this statute. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 2 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 29 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Defendant, Employer, was an employer within the meaning of California Government Code §12926(d) and, as such, was and is barred from unlawfully discriminating in employment decisions on the bases set forth in Government Code §§12940 et seq.. 9. As an employee of Defendant, Employer, Plaintiff was entitled to all of the benefits provided by Employer’s personnel policies, procedures and practices, as well as those confirmed in the by-laws governing said organization. 10. This action is brought to remedy discrimination against Plaintiff in the terms, conditions and privileges of employment and to remedy retaliation against Plaintiff. 11. Plaintiff began working for Defendant, Employer, in or about June of 1998 as a recruiter in its Madera office. Throughout her employment with Defendant, Employer, Plaintiff was promoted multiple times. At the time of her termination, Plaintiff held the position of Regional Vice President. As Regional Vice President, Plaintiff was responsible for overseeing various Randstad locations throughout the Central Valley. 12. On or about April 21, 2021, Plaintiff suffered an anxiety attack. Plaintiff continued having anxiety attacks over the course of the next few days. Plaintiff called her supervisor, Joel Smith, and told him about him her medical condition. Supervisor Smith, responded by telling Plaintiff to take time off and to delegate one of the accounts she was responsible for to someone else. 13. Following her conversation with Supervisor Smith, and per the advice of her physician, Plaintiff requested and took medical leave. 14. Upon Plaintiff’s return to work on or about April 27, 2021, Supervisor Smith set up a call with Plaintiff. Supervisor Smith asked Plaintiff how she was doing and Plaintiff answered honestly, telling Supervisor Smith that she was still struggling with her mental health. Supervisor Smith responded by telling Plaintiff that he was under the impression that as a result of her mental health issues, Plaintiff was going to resign. Plaintiff was shocked at Supervisor Smith’s comment as she had never indicated she was going to resign. Plaintiff was extremely distressed that after revealing her disability to Supervisor Smith and requesting and taking medical leave, Supervisor Smith considered her unfit and unable to do her job. / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 3 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 30 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. During that same phone call, Supervisor Smith again told Plaintiff to delegate one of her accounts to someone else. Supervisor Smith also told Plaintiff that he was taking away the entire Bakersfield region from Plaintiff which included numerous accounts and instead delegating it to someone else as well. Plaintiff was completely shocked. She had never once agreed to giving up more than one, let alone numerous accounts. Not only would this substantially reduce Plaintiff’s responsibilities but it would also reduce her ability to receive bonuses and other benefits. This constituted a demotion. Plaintiff complained to Supervisor Smith about his decision but despite her complaints, Supervisor Smith took the accounts from Plaintiff anyway. Supervisor Smith continued by telling Plaintiff that there were issues with her performance. Plaintiff was confused as she had never once been told there were any problems with her performance. In fact, just a couple of weeks before she disclosed her disability, she had received a raise. Plaintiff was extremely distressed by Supervisor Smith’s conduct. 16. The following day, on or about April 28, 2021, Plaintiff submitted a survey response to the human resources department. In her response, Plaintiff explained that she was struggling with her mental health and felt that she had been treated unfairly ever since disclosing that information to Defendant, Employer. To her knowledge, no action was taken. 17. On or about May 5, 2021, Plaintiff contacted the human resources representative, reiterating her complaints that ever since she had disclosed her disability, she had been treated unfairly. Plaintiff complained about Supervisor Smith’s conduct and his decision to strip Plaintiff of multiple accounts after she told him she had a disability. Instead of offering Plaintiff some support, the human resources representative told Plaintiff that “business decisions were business decisions.” Plaintiff was extremely distressed that no one, not even human resources, was willing to help her or put an end to the discriminatory conduct. Plaintiff felt like she had no one at Defendant, Employer, who she could turn to for help. 18. Following her return from medical leave in late April of 2021, Supervisor Smith’s conduct towards Plaintiff changed. Supervisor Smith continuously subjected Plaintiff to unwarranted and unjustified criticism regarding her job performance. In addition, Supervisor Smith was often rude to Plaintiff, cutting her off when she attempted to ask questions or raise concerns about the Bakersfield PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 4 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 31 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 region. Supervisor Smith began requiring that human resources and Doug Hammond, Supervisor Smith’s superior, sit in on his communications with Plaintiff. Plaintiff was confused as nobody had ever been required to sit in on her calls with Supervisor Smith until now. During one of these calls, Plaintiff voiced her concerns that she had a disability and felt she had been treated unfairly ever since telling Supervisor Smith about it. Again, to her knowledge, no action was taken. Plaintiff was extremely distressed that Defendant, Employer, and Supervisor Smith treated her like she suddenly did not know how to do her job ever since she disclosed her disability and requested and took medical leave. 19. On or about May 17, 2021, Plaintiff was forced to resign from her job with Defendant, Employer. Defendant’s failure to do anything about the discriminatory conduct towards Plaintiff and Supervisor Smith’s behavior towards Plaintiff made the work environment so intolerable that Plaintiff could not continue to work there. Additionally, Plaintiff knew that without the Bakersfield region, she was being set up for continued claims of poor performance and imminent termination. She was forced to resign from her job. 20. Plaintiff is informed and believes that the reason Defendant, Employer, demoted her and forced her to resign is pretextual. The true reasons for Plaintiff’s demotion and forced resignation are that Defendant, Employer, believed that she was disabled and unable to perform any job duties, that she needed accommodation, that she requested accommodation and that she requested and took medical leave to care for her own serious medical condition. This conduct by Defendant, Employer, violated the California Fair Employment and Housing Act, the California Family Rights Act and California Labor Code §233. 21. Plaintiff filed a charge of discrimination with the Department of Fair Employment and Housing (“DFEH”) against Defendant, Employer, complaining of the acts of discrimination and retaliation as alleged therein. Plaintiff received a “Right to Sue Letter” from the DFEH dated August 13, 2021, a true and correct copy of which is attached hereto as Exhibit “A.” On or about August 13, 2021, Plaintiff notified the California Labor and Workforce Development Agency (“LWDA”) regarding Defendant, Employer’s violation of the Labor Code. As of the date of filing this Complaint, LWDA had not responded. Therefore, Plaintiff has exhausted her administrative remedies. PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 5 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 32 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22. As a direct and proximate result of the Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 23. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 24. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 and Labor Code §2699 provide that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FIRST CAUSE OF ACTION Discrimination and Harassment Based on Medical Condition, Disability and/or Perceived Disability in Violation of Government Code §12940 25. The allegations of paragraphs 1 through 24 are re-alleged and incorporated herein by reference. 26. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (a) For an employer, because of the... physical disability, mental disability... [or] medical condition of any person . . . to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions or privileges or employment. . . . “(j)(1) For an employer .. Because of ... physical disability, mental disability ... to harass an employee ... In addition, Government Code §12926 (o) states, in part: PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 6 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 33 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “‘[P]hysical disability [and] medical condition’ . . . includes a perception that the person has any those characteristics . . . .” 27. Defendant, Employer, demoted Plaintiff and forced her to resign because it perceived her as disabled and unable to perform any job duties, because it did not want to accommodate her medical condition, because she requested accommodation and because she requested and took time off work to care for her own medical condition. 28. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 29. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 30. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. SECOND CAUSE OF ACTION Failure to Accommodate Disability in Violation of Government Code §12940(m) 31. The allegations of paragraphs 1 through 30 are re-alleged and incorporated herein by reference. 32. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (m) For an employer PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 7 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 34 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ... to fail to make reasonable accommodation for the known ...physical disability of ... an employee.” 33. Defendant, Employer, knew of Plaintiff’s medical condition and/or disability and failed to make reasonable accommodation for her disability. Plaintiff requested accommodation of her medical condition which consisted of taking medical leave. Defendant, Employer, refused to accommodate her, instead punishing her by taking an entire region of accounts from Plaintiff, effectively demoting her and forcing Plaintiff to resign shortly after her return from medical leave. Plaintiff’s request for accommodation would not have caused Defendant, Employer, any undue burden. 34. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 35. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 36. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. / / / / / / / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 8 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 35 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION Failure to Engage in a Timely, Good Faith, Interactive Process To Determine Effective Reasonable Accommodation in Violation of Government Code §12940(n) 37. The allegations of paragraphs 1 through 36 are re-alleged and incorporated herein by reference. 38. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (n) For an employer . . . to fail engage in timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations . . .” 39. Plaintiff requested medical leave as an accommodation. Defendant, Employer, stripped numerous accounts from Plaintiff in response to her request for time off, thereby impacting her ability to receive her full compensation and other employment benefits. Defendant, Employer, refused to explore any options to accommodate Plaintiff but, instead, subjected her to unjust discipline and demoted her for, among other things, taking time off work to care for her own serious health condition. Accommodation of Plaintiff would not have caused Defendant, Employer, any undue hardship, significant difficulty or expense. 40. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 41. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 42. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 9 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 36 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FOURTH CAUSE OF ACTION Retaliation for Requesting Accommodation in Violation of Government Code §12940(m)(2) 43. The allegations of paragraphs 1 through 42 are re-alleged and incorporated herein by reference. 44. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (m)(2) For an employer...to...retaliate or otherwise discriminate against a person for requesting accommodation....” 45. Plaintiff requested that Defendant, Employer, accommodate her medical condition. However, Defendant, Employer, refused to accommodate Plaintiff and, instead, demoted and constructively discharged from her employment in retaliation for, among other things, requesting accommodation. Plaintiff’s request for accommodation was a substantial motivating reason for her demotion and constructive discharge. 46. As a direct and proximate result of Defendant’s acts of discrimination and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 47. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 48. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 10 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 37 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. FIFTH CAUSE OF ACTION Failure to Prevent Discrimination, Harassment and Retaliation 49. The allegations of paragraphs 1 through 48 are re-alleged and incorporated herein by reference. 50. The California Government Code provides at Section 12940, in pertinent part: “It shall be an unlawful employment practice . . . (k) For an employer . . . to fail to take all reasonable steps necessary to prevent discrimination ... from occurring.” 51. The behavior, conduct and comments by Defendant, Employer, and its agents, representatives and employees, created a work environment that was intimidating, hostile, oppressive and offensive to Plaintiff such that she was deprived of the benefit of a discrimination-free work environment, all in violation of California Government Code §§12900, et seq. Such conduct included, but was not limited to, subjecting her to unwarranted criticism and discriminatory comments, demoting Plaintiff by removing various accounts from her responsibilities and creating a work environment that was so intolerable Plaintiff was forced to resign. 52. Defendant, Employer, failed to prevent discrimination and retaliation, failed to halt the offending conduct and failed to engage in a prompt and meaningful investigation of Plaintiff’s complaints of discrimination and retaliation. 53. As a direct and proximate result of Defendant’s acts of discrimination, harassment and retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest thereon, in earnings and other employment benefits which Plaintiff would have received. She has suffered and continues to suffer both physical and non-physical injuries, including emotional distress, humiliation, embarrassment and mental anguish all to her damage in an amount according to proof. 54. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 11 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 38 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 55. California Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. California Government Code §12965 provides that reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. SIXTH CAUSE OF ACTION Retaliation for Exercising Rights Under California Family Rights Act in Violation of 2 C.C.R. §11094 56. The allegations of paragraphs 1 through 55 are re-alleged and incorporated herein by reference. 57. The California Family Rights Act provides that it is an unlawful employment practice for an employer to retaliate against an employee for requesting and taking leave to care for his or her own medical condition. 58. California Administrative Code, Title 2, §11094 states, in pertinent part: “In addition to the retaliation prohibited by Government Code section 12940 . . . it shall be an unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual . . . because that individual has . . . (a) exercised his or her right to CFRA leave . . . .” 59. Defendant, Employer, constructively discharged Plaintiff from her employment because she exercised her right to request medical leave to care for her own medical condition. 60. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 12 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 39 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 61. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and continues to suffer damages. Plaintiff is entitled to punitive damages and her reasonable attorneys’ fees and costs herein incurred. SEVENTH CAUSE OF ACTION Retaliation in Violation of Labor Code §233 62. The allegations of paragraphs 1 through 61 are re-alleged and incorporated herein by reference. 63. Labor Code §233 prohibits employers such as Defendant, Employer, from discharging, discriminating against or retaliating against an employee for using sick leave to attend to his or her illness. Plaintiff asked for and took time off work to care for her own medical condition. 64. Defendant, Employer, retaliated against Plaintiff for requesting and taking time off work to care for own medical condition by, among other things, demoting her and constructively discharging her from employment. 65. Plaintiff suffered physical, emotional and economic harm, which was proximately caused by Defendant’s wrongful conduct. 66. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 67. Code of Civil Procedure §1021 provides that attorneys’ fees are recoverable in an action for which they are specifically provided by statute. Labor Code §2699 provides that, in addition to penalties, reasonable attorneys’ fees and costs are recoverable herein by the prevailing party, within the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys’ fees and costs herein incurred. / / / / / / PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 13 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 40 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EIGHTH CAUSE OF ACTION Wrongful Constructive Discharge in Violation of Public Policy 68. The allegations set forth in paragraphs 1 through 67 are re-alleged and incorporated herein by reference. 69. At all times mentioned in this Complaint, California Constitution Article I, §8, and Government Code §12940 were in full force and effect, and were binding on Defendant, Employer. These sections required Defendant, Employer, to provide employees with a work environment free of discrimination and to refrain from discriminating or retaliating against an employee. 70. Plaintiff was subjected to disability discrimination, harassment and retaliation by Defendant, Employer, which caused Plaintiff distress. Plaintiff complained to Defendant, Employer, about disability discrimination, harassment and retaliation but Defendant refused to take action to protect her from further discrimination. 71. Defendant’s failure to do anything about the discriminatory conduct towards Plaintiff and Supervisor Smith’s behavior towards Plaintiff, coupled with Defendant, Employer’s demotion of Plaintiff and efforts to force Plaintiff out by telling Plaintiff that they believed she would resign and removing multiple accounts from Plaintiff’s responsibility, made the work environment so intolerable that Plaintiff could not continue to work there. She was forced to resign from her job. 72. As a direct and proximate result of Defendant, Employer’s, wilful, knowing and intentional discrimination, harassment, and retaliation against Plaintiff, she has sustained, and continues to sustain, substantial losses of earnings, and other employment benefits. 73. As a direct and proximate result of Defendant’s wilful, knowing, and intentional discrimination and retaliation against Plaintiff, she has suffered, and continues to suffer, humiliation, emotional distress, mental and physical pain and anguish, and the manifestations thereof, all to her damage in an amount to be proven at trial. 74. In doing the acts and/or failing to do the acts alleged herein above, Defendant engaged in discriminatory acts and conduct with malice towards Plaintiff and/or a reckless indifference to her statutorily protected rights and in conscious disregard of the rights, both statutory and common law, guaranteed Plaintiff by the State of California. As such, Defendant PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 14 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 41 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 is guilty of oppression and malice for which Plaintiff is entitled to punitive damages, in an amount to be proven at trial. 75. Plaintiff has incurred, and continues to incur, legal expenses and attorneys’ fees. Plaintiff is presently unaware of the precise amount of these expenses and fees and prays leave of Court to amend this Complaint when the amounts are more fully known. 76. Defendant’s wilful, knowing, and intentional discrimination and retaliation against Plaintiff made her working conditions intolerable and forced her to resign. Plaintiff, therefore, seeks an award of punitive and exemplary damages in an amount to be proven at trial. NINTH CAUSE OF ACTION Defamation 77. The allegations of paragraphs 1 through 76 are re-alleged and incorporated herein by reference. 78. Within the year last past, without excuse, justification or privilege, Plaintiff’s supervisor, an agent of Defendant, Employer, published false and defamatory statements orally and in writing to third persons, including agents of Defendant, Employer, and other persons who are not parties to this action, about Plaintiff, stating as matters of fact that, among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 79. Within the year last past, without excuse, justification or privilege, agents of Defendant, Employer, including but not limited to Supervisor Smith, published and republished, orally and in writing to third persons, including prospective employers of Plaintiff and other persons who are not parties to this action, the false and defamatory statements about Plaintiff, stating as matters of fact that, among other things: Plaintiff was unable to do her job; Plaintiff was unreliable; Plaintiff was incompetent at her job; and Plaintiff deserved to be demoted and/or constructively discharged. 80. The statements made by Defendant and its agents were and are false and constitute defamation on their face in that they communicate to third persons as matters of fact that Plaintiff was a problematic and poorly performing employee who deserved to be demoted and/or constructively PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 15 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 42 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terminated from her job. This constitutes defamation per se as false statements tending to injure Plaintiff in her profession. 81. As a result of Defendant’s defamatory statements, Plaintiff was demoted and constructively discharged from her job with Employer. 82. Defendant’s defamatory statements have been, and continue to be, foreseeably republished by and to Defendant and to third persons who are not parties to this action, including but not limited to employees of Defendant, Employer, and prospective employers of Plaintiff and, therefore, all such re-publications are chargeable to Defendant and Defendant is liable for those foreseeable re-publications. 83. Plaintiff was forced to re-publish the false statements Defendant made about her when she applied for jobs after she was constructively discharged. Plaintiff was forced to tell prospective employers that she had been forced to resign because after returning from medical leave, Defendant, Employer considered Plaintiff an unreliable, and incompetent employee who was unable to do her job and therefore deserved to be demoted. Defendants knew, or should have known, that Plaintiff would have to repeat the false statements that they made about her when she applied for work with subsequent potential employers. 84. As a result of Defendant’s defamatory statements and the foreseeable re-publications of those defamatory statements, Plaintiff has suffered, and continues to suffer special and general damages in an amount according to proof, but in excess of the minimum jurisdictional limits of this Court, for, among other things, the loss of her employment and the income and benefits derived therefrom, the damage to her theretofore good reputation as a competent, knowledgeable and cooperative employee and for the embarrassment, annoyance and worry caused to her by the defamation. 85. Defendant published and republished the defamatory statements knowing the statements to be false, defamatory and untrue and made the defamatory statements with animus, hatred, ill will and an intent to vex, harass annoy and injure Plaintiff and with the fraudulent and malicious purpose and design of injuring the reputation and the professional and economic interests of Plaintiff, thereby warranting the imposition of punitive damages against Defendant in an amount PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 16 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 43 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sufficient to punish this conduct and to deter the occurrence of similar conduct in the future. 86. Alternatively, Defendant published the defamatory statements without regard for their truth or falsity and without any reasonable investigation into their truth or falsity, and with a conscious and deliberate disregard for the rights of Plaintiff, thereby warranting the imposition of punitive damages against Defendant in an amount sufficient to punish this conduct and to deter the occurrence of similar conduct in the future. 87. Plaintiff has incurred, and continues to incur, legal expenses and attorneys’ fees. Plaintiff is presently unaware of the precise amount of these expenses and fees, and prays leave of Court to amend this Complaint when the amounts are more fully known. REQUEST FOR JURY TRIAL Plaintiff, Kimberly Smith, hereby requests a trial by jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays as follows: 1. For general damages in excess of the jurisdictional minimum of this Court, according to proof; 2. For special damages according to proof; 3. For exemplary punitive damages, according to proof; 4. For interest on the amount of losses incurred in earnings, deferred compensation and other employee benefits at the prevailing rate; 5. For costs of suit, including reasonable attorneys’ fees; and 6. For such other and further relief as the Court may deem just and proper. Dated: October 18, 2021 BRYANT WHITTEN, LLP AMANDA B. WHITTEN, Attorneys for Plaintiff, KIMBERLY SMITH PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 17 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 44 of 48 EXHIBIT “A” Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 45 of 48 STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency GAVIN NEWSOM, GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 (800) 884-1684 (Voice) I (800) 700-2320 (TTY) | California’s Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov KEVIN KISH, DIRECTOR August 13, 2021 Kimberly Smith 310 W PAUL AVE Clovis, California 93612 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202108-14460313 Right to Sue: Smith / Randstad North America, Inc. Dear Kimberly Smith: This letter informs you that the above-referenced complaint filed with the Department of Fair Employment and Housing (DFEH) has been closed effective August 13, 2021 because an immediate Right to Sue notice was requested. 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. This matter may qualify for DFEH’s Small Employer Family Leave Mediation pilot program. Under this program, established under Government Code section 12945.21, a small employer with 5 -19 employees, charged with violation of the California Family Rights Act, Government Code section 12945.2, has the right to participate in DFEH’s free voluntary mediation service. Under this program both the employee requesting an immediate right to sue and the employer charged with the violation may request that all parties participate in DFEH’s free voluntary mediation service. A request for mediation must be submitted to the DFEH within 30 days of receipt of the Notice of Case Closure and Right to Sue. If mediation is requested, the employee is prohibited from filing a civil action until mediation is complete. The employee’s statute of limitations to file a civil action, including for all related claims not arising under section 12945.2, is tolled from DFEH’s receipt of a mediation request under section 12945.21 until mediation is complete. To request DFEH Small Employer Family Leave Mediation, email DRDOnlinerequests@dfeh.ca.gov and include the DFEH matter number indicated on the Right to Sue notice. 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, Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 46 of 48 STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency GAVIN NEWSOM, GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 (800) 884-1684 (Voice) I (800) 700-2320 (TTY) | California’s Relay Service at 711 http://www.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov KEVIN KISH, DIRECTOR Department of Fair Employment and Housing Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 47 of 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RE: KIMBERLY SMITH v. RANDSTAD GENERAL PARTNER (US), LLC STATE OF CALIFORNIA, COUNTY OF FRESNO I am employed in the City of Fresno, County of Fresno, State of California. I am over the age of 18 years and not a party to the within action. My business address is 8050 North Palm Avenue, Suite 210, Fresno, California, 93711. On October 18, 2021, I served FIRST AMENDED COMPLAINT FOR DISCRIMINATION BASED ON DISABILITY AND/OR PERCEIVED DISABILITY, FAILURE TO PREVENT DISCRIMINATION, FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS, FAILURE TO ACCOMMODATE, AND RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT, RETALIATION IN VIOLATION OF MEDICAL LEAVE LAWS, VIOLATION OF LABOR CODE §233, WRONGFUL CONSTRUCTIVE DISCHARGE, DEFAMATION, PUNITIVE DAMAGES AND ATTORNEYS’ FEES and DEMAND FOR JURY TRIAL on the parties in this action as follows: Ryan L. Eddings reddings@littler.com Vanessa M. Cohn vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue, Suite 302 Fresno, California 93704.2225 lhammond@littler.com [ ] (BY PERSONAL SERVICE) By enclosing a true copy thereof in a sealed envelope addressed as shown above, I personally delivered to such person said document(s) at the address indicated. [ ] (BY UPS) I am readily familiar with the practice of Bryant Whitten, LLP for collection and processing of correspondence for overnight delivery and know that the document(s) described herein will be deposited in a box or other facility regularly maintained by UPS for overnight delivery. [X] (BY EMAIL) I caused to be transmitted the document(s) described herein via the email addresses listed above. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [ ] (FEDERAL) I declare that I am employed in the office of a member of the bar of this court, at whose direction this service was made. Executed on October 18, 2021, at Fresno, California. _________________________________ CARRIE J. COTA PLAINTIFF’S FIRST AMENDED COMPLAINT - Case No. 21CECG02785KCK Page 18 Case 1:21-at-00984 Document 1-1 Filed 10/20/21 Page 48 of 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KIMBERLY SMITH, Case No. 12 Plaintiff, 13 v. 14 15 16 Defendant. 17 18 19 I, TWANEESA MALLORY, hereby declare and state as follows:20 1. I hold the position of HR Director for Defendant RANDSTAD GENERAL21 PARTNER (US), LLC (“Defendant”). As HR Director, I have access to information regarding22 Defendant’s organization structures, business operations, and the overall direction, control, and23 coordination of those operations. I also have access to personnel and payroll records for current and24 former employees of Defendant, including Plaintiff KIMBERLY SMITH (“Plaintiff”). This25 declaration is based on my personal knowledge or upon business records maintained by Defendant.26 If called upon to testify as to the facts set forth in this declaration, I could and would competently27 559.244.7500 559.244.7525 DECLARATION OF TWANEESA MALLORY IN SUPPORT OF DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT Declaration of Twaneesa Mallory iso Defendant’s Notice ofRemoval Action Filed in State Court: 9/20/2021 Fresno County Superior Court Case No. 21CECG02785 Ryan L. Eddings, Bar No. 256519 reddings@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: Fax No.: RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC 28 LITTLER MENDELSON F 5200 North Palm Avenue Suite 302 Fresno. CA 93704.2225 559.244.7500 testify to them. To the extent this declaration is based upon business records, those records are kept c. Case 1:21-at-00984 Document 1-2 Filed 10/20/21 Page 1 of 3 1 in the regular course of business, entries are made on those records in a timely manner by people 2 with knowledge of the information being entered, and it is the regular practice of Defendant to 3 maintain such records. 4 Defendant is a limited liability company organized under the laws of the State2. 5 of Delaware. Defendant maintains its corporate headquarters in Atlanta, Georgia, where it maintains 6 its corporate departments that operate and serve as the actual center of direction, management, 7 control and coordination of Defendant’s business operations. Defendant’s highest-level corporate 8 officers and management personnel, including the Chief Executive Officer, Secretary, and Chief 9 Financial Officer, work primarily out of its corporate headquarters in Atlanta, Georgia. 10 3. Defendant’s sole member is Randstad North America, Inc. Randstad North 11 America, Inc. is organized under the laws of the State of Delaware, and maintains its corporate 12 headquarters in Atlanta, Georgia. Its highest-level corporate officers and management personnel, 13 including the Chief Executive Officer, Secretary, and Chief Financial Officer work primarily out of 14 its corporate headquarters in Atlanta, Georgia. 15 At all times relevant, Defendant employed Plaintiff based in California,4. 16 through Plaintiff’s resignation on May 17, 2021. At the time Plaintiff ended her employment, 17 Defendant employed Plaintiff as a Sr. Regional Vice President and paid her a base annual salary of 18 also eligible for various incentive-based compensation, payments for 19 which could amount to thousands of dollars. 20 Pursuant to 28 U.S.C. § 1746 and the laws of the United States of America, and the 21 laws of the State of California. I declare under penalty of perjury that the foregoing is true and 22 correct. 23 Executed on October |^, 2021, at , >4^ 24 25 26 27 c 2 Declaration of Twaneesa Mallory iso Defendant’s Notice ofRemoval $157,090.02. Plaintiff was 28 LITTLER MENDELSON F 5200 North Palm Avenue Suite 302 Fresno. CA 93704.2225 559.244.7500 Case 1:21-at-00984 Document 1-2 Filed 10/20/21 Page 2 of 3 1 2 3 4 5 4822-5605-5548.2 / 053141-1037 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. 3 Declaration of Twaneesa Mallory iso Defendant’s Notice ofRemoval TWANEESA MALLORY* LITTLER MENDELSON F 5200 North Palm Avenue Suite 302 Fresno. CA 93704.2225 559.244 7500 Case 1:21-at-00984 Document 1-2 Filed 10/20/21 Page 3 of 3 Defendant’s Fed. R. Civ. P. Rule 7.1 Corporate Disclosure Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Ryan L. Eddings, Bar No. 256519 reddings@littler.com Vanessa M. Cohn, Bar No. 314619 vcohn@littler.com LITTLER MENDELSON P.C. 5200 North Palm Avenue Suite 302 Fresno, California 93704.2225 Telephone: 559.244.7500 Fax No.: 559.244.7525 Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KIMBERLY SMITH, Plaintiff, v. RANDSTAD GENERAL PARTNER (US), LLC, a Delaware limited liability company, and Does 1 through 20, inclusive, Defendant. Case No. DEFENDANT RANDSTAD GENERAL PARTNER (US), LLC’S FED. R. CIV. P. RULE 7.1 CORPORATE DISCLOSURE STATEMENT Action Filed in State Court: 9/20/2021 Fresno County Superior Court Case No. 21CECG02785 Pursuant to Federal Rule of Civil Procedure 7.1, the undersigned counsel of record for Defendant RANDSTAD GENERAL PARTNER (US), LLC (“Defendant”), certifies the following information: Defendant is a Delaware limited liability company. Defendant has one member, Randstad North America, Inc. Randstad North America, Inc. is a privately held corporation. No publicly traded company owns 10% or more of Defendant. / / / / / / / / / Case 1:21-at-00984 Document 3 Filed 10/20/21 Page 1 of 2 2 Defendant’s Fed. R. Civ. P. Rule 7.1 Corporate Disclosure Statement 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. 5 2 0 0 N o r t h P a l m A v e n u e S u i t e 3 0 2 F r e s n o , C A 9 3 7 0 4 . 2 2 2 5 5 5 9 . 2 4 4 . 7 5 00 Dated: October 20, 2021 LITTLER MENDELSON P.C. Ryan L. Eddings Attorneys for Defendant RANDSTAD GENERAL PARTNER (US), LLC 4834-0595-0204.2 / 053141-1037 Case 1:21-at-00984 Document 3 Filed 10/20/21 Page 2 of 2
