Removal to Federal Court

Cal. Super. - 6th Dist.January 12, 2021

QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV3761 80 Santa Clara - Civil Dylan B. Carp (State Bar No. 196846) Elecmn'cany F'led Gonzalo Morales (State Bar No. 334944) by SUpenor court Of CA’ JACKSON LEWIS P_C_ County of Santa Clara, 50 California Street, 9th Floor 0n 3/30/2021 9:03 PM San Francisco, California 94111-4615 Reviewed By: L. Nguyen Telephone: (415) 394-9400 Case #21 CV3761 80 Facsimile: (415) 394-9401 Envelope: 6142979 E-mail: Dylan.Carp@iacksonlewis.com E-mail: Gonzalo.Morales@iacksonlewis.com Attorneys for Defendant CARDINAL HEALTH, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DINH CUONG NGUYEN, an individual; Case No. 21CV376 1 80 Plaintiff, NOTICE OF REMOVAL TO STATE COURT AND ADVERSE PARTIES VS. ALLEGIS GROUP, INC., a corporation; Complaint Filed: 01/12/2021 CARDINAL HEALTH, INC., a corporation; Trial Date: Not Set and DOES 1 through 50, Defendants. TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNM, COUNTY OF SANTA CLARA, PLAINTIFF DINH CUONG NGUYEN AND HIS ATTORNEYS 0F RECORD: PLEASE TAKE NOTICE THAT 011 March 24, 2021, Defendant CARDINAL HEALTH, INC. (“Defendant”) e-filed in the United States District Court for the Northern District 0f California, San Jose Division, Defendant’s Notice 0f Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a); Case No. 5:21-cv-02065-VKD assigned to Magistrate Judge Virginia K. DeMarchi. A true and correct conformed copy 0f the Notice 0f Removal is attached hereto as Exhibit 1. Pursuant to 28 U.S.C. Section 1446(d), the filing of the Notice of Removal in the federal district court, together with the filing of a copy of the Notice 0f Removal With this Court, effect 1 Notice 0fRemoval t0 State Court and Adverse Parties Case N0. 21CV376180 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the removal of this action, and this Court may proceed n0 further unless and until the case is remanded. Dated: March 30, 2021 JACKSON LEWIS P.C. /s/ Dylan B. Carp Dylan B. Carp Gonzalo Morales Attorneys for Defendant CARDINAL HEALTH, INC. Notice of Removal t0 State Court and Adverse Parties Case N0. 21CV376180 EXHIBIT 1 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 1 of 51 Dylan B. Carp (State Bar No. 196846) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 941 1 1-46 1 5 Telephone: (4 1 5) 394-9400 Facsimile: (415) 394-9401 E-mail: Dylan.Carp@iacksonlewis.com Attorneys for Defendant CARDINAL HEALTH, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DINH CUONG NGUYEN, an individual; Case No. Plaintiff, DEFENDANT CARDINAL HEALTH, INC.’S NOTICE OF REMOVAL OF vs. ACTION TO FEDERAL COURT UNDER 28 U.S.C. §§ 1332 AND 1441(a) ALLEGIS GROUP, INC., a corporation; CARDINAL HEALTH, INC., a corporation; and DOES 1 through 50, Complaint Filed: 01/12/2021 Trial Date: Not Set Defendants. TO THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, PLAINTIFF DINH CUONG NGUYEN, AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant, CARDINAL HEALTH, INC. (“Defendant”), an Ohio corporation, hereby invokes this Court’s jurisdiction under the provisions 0f 28 U.S.C. §§ 1332 and 1441(a) and removes the above-entitled action to this Court from the Superior Court of the State of California for the County of Santa Clara. /// /// /// /// 1 Defendant Cardinal Health, Inc. ’s Notice of Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 2 of 51 PRELIMINARY STATEMENT OF JURISDICTION 1. This Court has original jurisdiction over this action under 28 U.S.C. § 1332, and this action is therefore one that may be removed t0 this Court by Defendant under 28 U.S.C. § 1441(a), in that it is a civil action between citizens 0f different states and the matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. VENUE 2. Although Defendant reserves the right t0 move for a transfer ofvenue t0 the one and most appropriate and convenient for all parties, it alleges that venue lies in the United States District Court for the Northern District 0f California under 28 U.S.C. § 144 1 (a), which provides in pertinent part that “any civil action brought in State court of which the district courts 0f the United States have original jurisdiction, may be removed by the defendant or the defendants, t0 the district court 0f the United States for the district and division embracing the place where such action is pending.” As stated above, Plaintiffbrought this action in the Superior Court 0f the State 0f California for the County of Santa Clara. Thus, venue properly lies in the United States District Court for the Northern District 0f California under 28 U.S.C. §§ 84(a), 1391(a), and 1441(a). PLEADINGS 3. On January 12, 2021, Plaintiff filed a civil complaint (“Complaint”) against Defendant in the Superior Court of the State 0f California, for the County 0f Santa Clara, entitled Dink Cuong Nguyen v. Allegis Group, Ina, Cardinal Health, Ina, and DOES 1-50. Plaintiff’s Complaint alleges the following six (6) causes of action: (1) disability discrimination; (2) failure t0 accommodate; (3) failure t0 engage in the interactive process; (4) failure t0 prevent harassment, discrimination 0r retaliation; (5) retaliation in Violation 0f the FEHA; and (6) wrongful termination. 4. On February 22, 2021, Plaintiff served the Complaint and summons on Cardinal Health, Inc. Cardinal Health, Inc. subsequently filed an answer in state court. A true and correct copy of the Complaint, Summons, related papers served in this matter, and answer are attached as Exhibit A. 5. Also 0n February 22, 202 1 , Plaintiff served the Complaint and summons 0n Allegis Group, Inc. Allegis Group, Inc. subsequently filed an answer in state court. A true and correct 2 Defendant Cardinal Health, Inc. ’s Notice 0f Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 3 of 51 copy of the Proof 0f Service 0f Summons 0n Allegis and its answer are attached as Exhibit B. TIMELINESS OF REMOVAL 6. This Notice ofRemoval is timely under 28 U.S.C. § 1446(b) in that Defendant filed it within 30 days after February 22, 2021, which is the date that Plaintiff effected service 0f the Summons and Complaint on Defendant. DIVERSITY 0F CITIZENSHIP 7. Plaintiff s Complaint alleges that he is an individual residing in Santa Clara County, California. (Complaint, 11 1.) Therefore, Plaintiff is a citizen of California. 8. Defendant was, at the time of filing of the Complaint, and still is, a citizen of the State of Ohio within the meaning of section 1332(c)(1) because it now is and was at all times incorporated under the laws of that state with its principal place 0f business in that state. 9. Additionally, Plaintiff’s Complaint alleges that co-defendant, Allegis Group, Inc. d.b.a. as Aerotek, Inc. (“Co-Defendant”), “is a Corporation duly existing under the laws of the State of Maryland . . . with its principal place of business in Hanover, Maryland.” (Complaint, 11 2.) 10. For diversity purposes, a corporation is considered a citizen 0f any state in which it is incorporated and of the state where it has a pfincipal place 0f business. 28 U.S.C. § 1332(c)(1). 11. The presence of Doe defendants has no bearing on the diversity with respect to removal. “For purposes 0f removal . . . the citizenship 0f defendants used under a fictitious name shall be disregarded.” 28 U.S.C. § 1441(a). 12. Therefore, the “complete diversity” requirement 0f § 1332 for removal is satisfied because Plaintiff, DINH CUONG NGUYEN, is a citizen of California, Defendant, CARDINAL HEALTH, INC., is a citizen 0f Ohio, and Co-Defendant, ALLEGIS GROUP, INC, is a citizen 0f Maryland; no two parties are citizens 0f the same state. AMOUNT IN CONTROVERSY 13. Without conceding that Plaintiff is entitled to damages or can recover damages in any amount whatsoever (Which Defendant expressly denies), the amount in controversy in this action exceeds $75,000, exclusive ofinterest and costs. 28 U.S.C. § 1332. Where a plaintiff s state court complaint is silent as to the amount of damages claimed, the United States Supreme Court 3 Defendant Cardinal Health, Inc. ’s Notice 0f Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 4 of 51 has held “a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold,” but the statement need not contain evidentiary submissions. See Dart Cherokee Basin Operating C0., LLC v. Owens, 135 S. Ct. 547, 549, 554 (2014). If plaintiff contests a defendant’s allegations, defendant need only demonstrate by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold. See id. at *12; see also Sanchez v. Monumental Life Ins. C0., 95 F.3d 856, 860-861 (9th Cir. 1996); Williams v. Best Buy C0., Ina, 269 F.3d 1316, 1319 (1 1th Cir. 2001) (courts may consider factual statements in defendant’s notice of removal in assessing removal jurisdiction). 14. Courts “must assume that the allegations of the complaint are true and that a jury [will] return [] a verdict for the plaintiff 0n all claims made in the complaint.” Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F.Supp.2d 993, 1001 (C.D. Cal. 2002). The ultimate inquiry is what amount is placed “in controversy” by the complaint and not the amount that a defendant would owe if the plaintiff prevails. Lewis v. Verizon Comm ’ns, Ina, 627 F.3d 395, 401 (9th Cir. 2010); see also Rippee v. Boston Market C0rp., 408 F.Supp.2d 982, 986 (S.D. Cal. 2005) (“It’s not a question as t0 what you would owe. It’s a question as t0 what is in controversy”). The “amount in controversy is simply an estimate 0f the total amount in dispute.” Lewis, 627 F.3d at 400. 15. Here, Plaintiff’s Complaint does not specify an amount in controversy, and only states that Plaintiff seeks general, special, compensatory damages; exemplary and punitive damages; emotional distress damages; reasonable attorney’s fees; pre- and post-judgment interest; and, costs. (Complaint, pp. 9.) However, over $75,000 is in controversy. A. Economic Damages 16. Prevailing plaintiffs in an employment termination case are generally entitled to past and future loss ofearnings. Villacorta v. Cemex Cement, Ina, 221 Cal. App. 4th 1425, 1432 (2013); see also Wysinger v. Automobile Club ofSouthern California, 157 Cal. App. 4th 413, 427 (2007) (“Under FEHA, an employee. . .may be compensated for future loss of earnings.”). Both past and future loss 0f earnings are considered for the purposes 0f calculating the amount in controversy, even though the amount in controversy is assessed at “the time 0f removal.” Chavez v. JPMorgan 4 Defendant Cardinal Health, Inc. ’s Notice 0f Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 5 of 51 Chase & C0., 888 F.3d 413, 417 (9th Cir. 2018) (“...[T]here is n0 question that future wages are ‘at stake’ in the litigation, whatever the likelihood that [Plaintiff] Will actually recover them”). 17. Plaintiff alleges that Defendant terminated his employment 0n 0r about November 24, 2020. (Complaint, 1] 10.) At the time of his termination, Plaintiffwas earning $18.00 per hour and working approximately 32-40 hours per week. See Declaration of Laura Garza. Assuming trial in two years on March 24, 2023, Plaintiffs back pay, calculated from the date 0f his termination on November 24, 2020, to the date of trial and assuming 40 hours per week, totals approximately $92,726. A conservative estimate of two years 0f front pay would total approximately an additional $79,568.00. Thus, this item 0f damages alone meets the amount in controversy requirement. B. Non-Economic Damages 18. Plaintiff also seeks emotional distress damages as a result of Defendant’s alleged conduct, which are available under FEHA and wrongful termination claims. Konig v. Fair Employment & Housing Com. 28 Cal. 4th 743 (2001); see also Silo v. CHWMedical Foundation 86 Cal. App. 4th 947, 955 (2001); Simmons v. PCR Tech, 209 F.Supp.2d 1029, 1033 QLD. Cal. 2002) (holding that general damages (i.e., damages for emotional distress) are included in the amount in controversy). To establish probable recovery, a removing defendant may introduce evidence of judgments in cases involving analogous facts. Simmons, 209 F.Supp.2d at 1033. Plaintiffs alleging emotional distress as a result of wrongful termination regularly are awarded in excess 0f $75,000 in such damages. See, e.g., Cosby v. AutoZone, Ina, Case N0. 2:08-cv-00505- LKK-DAD (E.D. Ca1., Feb. 12, 2010) (jury awarded $1,326,000 in emotional distress damages to a plaintiff alleging disability discrimination, among other claims); Keifi’er v. Bechtel Corp, 65 Cal. App. 4th 893, 895 (1998) (California Court of Appeal upheld jury award in excess 0f $75,000.00 for emotional distress damages). 19. Therefore, Plaintiff’s alleged emotional distress damages, standing alone, satisfies the amount in controversy requirement. C. Punitive Damages and Attorney’s Fees 20. Finally, Plaintiff seeks an award for punitive damages and reasonable attorney’s 5 Defendant Cardinal Health, Inc. ’s Notice 0f Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 6 of 51 fees, Which may be considered to determine jurisdictional amounts if a statute authorizes fees to a successful litigant. Gait G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-1 156 (9th Cir. 1998), cert. denied, 459 U.S. 945 (1982) (attorney’s fees may be taken into account t0 determine jurisdictional amount); Celestino v. Renal Advantage, Inc., 2007 U.S. Dist. LEXIS 33827, at *11 (ND. Cal. 2007) (“the amount in controversy includes not only damages accrued up to the time 0f removal, but also a reasonable assessment of damages likely to be accrued after the time of removal”). At the conservative rate 0f $500 per hour, Plaintiffwould reach the jurisdictional threshold 0f $75,000 in 150 hours. See Tiflany v. O’Reilly Auto. Stores, Inc., 2013 U.S. Dist. LEXIS 130082, at *9-10 (E.D. Cal. Sept. 10, 2013) (estimating future attorney’s fees using rate of $250 per hour). As such, Plaintiffs attorney’s fees, alone, would exceed $75,000 if the case proceeds t0 trial. 21. Punitive damages and civil penalties are also included in calculating the amount in controversy. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001); Davenport v. Mutual Ben. Health & Acc. Ass’n, 325 F.2d 785, 787 (9th Cir. 1963); Brady v. Mercedes-Benz USA, Ina, 243 F.Supp.2d 1004, 1009 (N.D. Cal. 2002). In this District, a jury awarded $500,000 in punitive damages, as well as $60,000 in emotional distress damages, to a plaintiff alleging wrongful termination. See Declaration onylan B. Carp; see also Kezfler, 65 Cal. App. 4th at 895 . (affirming a jury award 0f $800,000 in punitive damages, as well as $225,000 in emotional damages, in an age discrimination case). 22. In sum, the foregoing claims for relief in combination demonstrate that Plaintiff seeks damages in excess of $75,000, the jurisdictional requirement of this Court. Therefore, Defendant may properly remove this civil action t0 this Court pursuant t0 the provisions 0f 28 U.S.C. §§ 1332, 1441 et seq., and 1446(b), because the action is between citizens 0f different states and, based on the facts and arguments set forth above, the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs. CONSENT TO REMOVAL 23. A11 named defendants in this action consent to this removal. Allegis Group, Inc. specifically consents t0 this removal. /// 6 Defendant Cardinal Health, Inc. ’s Notice of Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 7 of 51 WHEREFORE, Defendant CARDINAL HEALTH, INC. prays the above action now pending against it in the Superior Court of the State 0f California for the County of Santa Clara be removed therefrom to this District Court. Dated: March 24, 2021 481 4-9072-3297 JACKSON LEWIS P.C. /s/ 7 Dylan B. Carp Attorneys for Defendant CARDINAL HEALTH, INC. Defendant Cardinal Health, Inc. ’s Notice of Removal of Action to Federal Court Under 28 U.S.C. §§ 1332 and 1441(a) Case No. TBA EXHIBIT A Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 8 of 51 Service of Process Transmittal 02/22/2021 CT Log Number 539085346 TO: Alicia Kimmle Cardinal Health, Inc. 7000 CARDINAL PL DUBLIN, OH 43017-1091 RE: Process Served in California FOR: Cardinal Health 100, Inc. (Domestic State: IN) Page 1 of 2 / SA ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS: TITLE OF ACTION: DINH CUONG NGUYEN, Pltf. vs. ALLEGIS GROUP, INC., etc., et al., Dfts. // To: CARDINAL HEALTH 100, INC. DOCUMENT(S) SERVED: - COURT/AGENCY: None Specified Case # 21CV376180 NATURE OF ACTION: Employee Litigation - Wrongful Termination ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA DATE AND HOUR OF SERVICE: By Process Server on 02/22/2021 at 12:16 JURISDICTION SERVED : California APPEARANCE OR ANSWER DUE: None Specified ATTORNEY(S) / SENDER(S): None Specified REMARKS: Entity taken as per cover sheet ACTION ITEMS: CT has retained the current log, Retain Date: 02/22/2021, Expected Purge Date: 02/27/2021 Image SOP Email Notification, Laura Garza laura.garza@cardinalhealth.com Email Notification, David Orensten david.orensten@cardinalhealth.com Email Notification, Joshua Stine joshua.stine@cardinalhealth.com Email Notification, Alicia Kimmle alicia.kimmle@cardinalhealth.com Email Notification, Mary Donahue mary.donahue@cardinalhealth.com REGISTERED AGENT ADDRESS: C T Corporation System 818 West 7th Street Los Angeles, CA 90017 866-331-2303 CentralTeam1@wolterskluwer.com Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 9 of 51 Service of Process Transmittal 02/22/2021 CT Log Number 539085346 TO: Alicia Kimmle Cardinal Health, Inc. 7000 CARDINAL PL DUBLIN, OH 43017-1091 RE: Process Served in California FOR: Cardinal Health 100, Inc. (Domestic State: IN) Page 2 of 2 / SA The information contained in this Transmittal is provided by CT for quick reference only. It does not constitute a legal opinion, and should not otherwise be relied on, as to the nature of action, the amount of damages, the answer date, or any other information contained in the included documents. The recipient(s) of this form is responsible for reviewing and interpreting the included documents and taking appropriate action, including consulting with its legal and other advisors as necessary. CT disclaims all liability for the information contained in this form, including for any omissions or inaccuracies that may be contained therein. Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 10 of 51 Date: Server Name: PROCESS SERVER DELIVERY DETAILS Mon, Feb 22, 2021 Maricela Arellano Wolters Kluwer Entity Served CARDINAL HEALTH 100, INC. Agent Name CT CORPORATION SYSTEM Case Number 21CV376180 Jurisdiction CA 11 11 111 11 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 11 of 51 SUMMONS (CITACION JUDICIAL) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): ALLEGIS GROUP, INC., a corporation; CARDINAL HEALTH, INC., a corporation; and DOES 1 through 50, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): DINH CUONG NGUYEN, an individual; SUM-100 F I L WF:pRAcR:u uRsrouif:PANgR TE) 12/2021 10:34 AM erk of Court uperior Court of CA, Dunty of Santa Clara CV376180 Bviewed By: D Harris welope: 5622470 NOTICE! You have been sued. The court may decide against you without your being heard unless 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 will 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-Help Center (www.courtinfo.ca.govisellhelp), 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 file 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 legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (ww.lawhelpcelifomie.org), the California Courts Online Self-Help Center (www.courfinfo.ca.goviseffherp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. tAVIS01 Lo hen demandado. Si no respond° dentro de 30 dies, la code puede decirfir en su contra sin escuchar su version. Lea la informed& a continuacion. Vane 30 0/AS DE CALENDARIO despuas de quo le entreguen este cited& y papeles legates pare presenter una respuesta por escrito on este corte y hacer quo se entregue una copia al demandante. Una carte o una Hamada teletnica no lo protegen. Su respuesta por escrito (lone quo ester en format° legal correct° si desea quo procesen su caso en la code. Es posible qua hays un formulario quo usted puede user pare su respuesta. Puede encontrar estos formularios de to carte y mas informed& en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la biblioteca do /eyes de su condado o en la carte que to quede mas coma. Si no puede pager la cuota de presentacion, pida al secreted° de la corte quo le di un trawled° de exencion de pago de cuotes. SI no presents su respueste a tiempo, puede perder el caso por incumplimiento y la corte to podra guitar su sueldo, dinero y bienes sin mas advertencia. Hay otros requisitos legates. Es recomendable quo flame a un °boort° inmediatamente. S/no conoce a un abogado, puede Hamer a un servicio de remIsion a abogados. Si no puede pager a un abogado, es posible quo cumpla con los requisitos pare obtener serviclos legates gratuitos de un programa de serviclos legates sin lines de lucro. Puede encontrar estos grupos sin lines de lucro en el sitio web de California Legal Services, (wnviewhelpcalifornle.org), en el Centro de Ayude de las Cortes de California, (www.sucorte.ce.gov) o poniendose en contacto con la corte o el cote& de abogados locales. AVISO: Per ley, la code time detach° a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacion de $10,000 6 mas de valor recibida mediante an acuerdo o una concesiOn de arbitraje en un caso de derecho civil. 'Rene qua pager el gravamen de la corte antes de quo la code puede desechar el caso. The name and address of the court is: (El nombre y direcci6n de la carte es): DOWNTOWN SUPERIOR COURT 191 North First Street San Jose, CA 95113 CASE NUMBER: (Minoru del Caso): 21CV376180 The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: (El nombre, (a direccian y el flamer° de telefono del abogado del demandante, o del demandante qua no tiene abogado, es): Brent Marlis; 3600 Wilshire Blvd., Suite 1815, Los Angeles CA 90010, 323-922-2000 1/12/2021 10:34 AM Clerk of Court Clerk, by D Harris , DeputyDATE: (Fecha) (Secretario) (AdJunto) (For proof of service of this summons, use Proof of Service of Summons (tom, POS-010)) (Para prueba de entrega de este citation use el formulario Proof of Service of Summons, (POS-010).) NOTICE TO THE PERSON SERVED: You are served 1. ni as an individual defendant. 2. (---T as the person sued under the fictitious name of (specify): 3. frgi on behalf of (specify): CARDINAL HEALTH, INC., a corporation under: jJ CCP 416.10 (corporation) 1-7 CCP 416.60 (minor) CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) CCP 416.40 (association or partnership) 71 CCP 416.90 (authorized person) Pam Adopted for Mandatory Use Judicial Council of Csefomla SUM-100 Vrev. July 1, 2009) rn other (specify): 4. fl by personal delivery on (date) SUMMONS Pape 1 off Code of Civil Procedure §§ 412.20,465 www.courfs.e.g.gov Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 12 of 51 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 MARLIS PARK, P.C. Young K. Park SB# 287589 E-Mail: young@marlispark.com Brent P. Marlis SB# 284654 E-Mail: brent@marlispark.com 3600 Wilshire Boulevard, Suite 1815 Los Angeles, CA 90010 Tel: 323-922-2000 Fax: 323-922-2000 E-FILED 1/12/2021 10:34 AM Clerk of Court Superior Court of CA, County of Santa Clara 21CV376180 Reviewed By: D Harris Attorneys for Plaintiff, DINH CUONG NGUYEN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA DINH CUONG NGUYEN, an individual; Plaintiff; vs. ALLEGIS GROUP, INC., a corporation; CARDINAL HEALTH, INC., a corporation; and DOES 1 through 50, Defendants. Case No.21CV376180 COMPLAINT FOR DAMAGES 1. DISABILITY DISCRIMINATION 2. FAILURE TO ACCOMMODATE 3. FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 4. FAILURE TO PREVENT HARASSMENT, DISCRIMINATION OR RETALIATION 5. RETALIATION IN VIOLATION OF THE FEHA 6. WRONGFUL TERMINATION Plaintiff DINH CUONG NGUYEN (hereinafter "Plaintiff" or "Nguyen") for his Complaint against Defendant ALLEGIS GROUP, INC. d.b.a. as AEROTEK, INC. (hereinafter "Aerotek"); Defendant CARDINAL HEALTH, INC. (hereinafter "Cardinal" and/or collectively "Defendants"); and DOES 1 and 50 alleges as follows: PARTIES 1. Plaintiff NGUYEN is, and at all relevant times was, an individual residing in Santa Clara County, CA. Plaintiff NGUYEN was an employee of Defendant AEROTEK and Defendant CARDINAL since approximately November 2, 2020. - 1 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 13 of 51 1 2. Plaintiff is information and believes and thereon allege that Defendant AEROTEK is a Corporation duly existing under the laws of the State of Maryland and authorized to do business 3 in the State of California, with its principal place of business in Hanover, Maryland. 4 3. Plaintiff is information and believes and thereon allege that Defendant CARDINAL is a 5 Corporation duly existing under the laws of the State of Indiana and authorized to do business in 6 the State of California, with its principal place of business in Dublin, Ohio. 7 4. By way of this lawsuit, Plaintiff seeks to pierce the corporate veil and hold individual defendant 8 liable for the acts of his alter ego. Individual defendant held and now holds substantial interest 9 in corporate defendants and should therefore be deemed to be corporate defendants' alter ego. 10 Corporate defendants were, and now still are, mere shells and naked frameworks which 1 1 individual defendant used, and now uses, as a conduit for the conduct of his personal business 12 and/or property affairs and/or obligor for the assumption of obligations and/or liabilities 13 incapable of performance by said corporate and/or entity defendants, which are the obligations 14 and liabilities of individual defendant. 15 5. The true names and capacities, whether individual, corporate, associate or otherwise, of 16 Defendant DOES 1 through 50, are unknown to Plaintiffs, who therefore sue said Defendants by 17 such fictitious names. Plaintiffs will amend this Complaint by inserting the true names and 18 capacities of each such Defendants, with appropriate charging allegations, when they are 19 ascertained. Plaintiffs are informed and believe and thereon allege that each of the Defendants 20 designated herein as "DOE" is responsible in some manner for the injuries suffered by Plaintiffs 21 and for damages proximately caused by the conduct of each such Defendants as herein alleged. 22 6. Plaintiffs are informed and believe and thereon allege that at all relevant times Defendants 23 engaged in the acts alleged herein and/or condoned, permitted, authorized, and/or ratified the 24 conduct of its employees and/or agents, and are liable for the wrongful conduct of its employees 25 and/or agents as alleged herein. 26 7. Plaintiff is informed and believes and thereon alleges that at all times material herein Defendant 27 employed and continues to employ five (5) or more persons in California and is an employer 28 covered by the Fair Employment and Housing Act ("FEHA") and the California Labor Code. - 2 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 14 of 51 1 8. Plaintiff has exhausted his administrative remedies. Plaintiff timely filed charges against 2 Defendant with the California Department of Fair Employment and Housing on January 4, 2021 3 and received a "Right-to-Sue" notice. 4 VENUE AND JURISDICTION 5 9. This Court is the proper Court, and this action is properly filed in the County of Santa Clara 6 because Defendants' obligations and liability arise therein. The work performed by Plaintiffs 7 occurred in Santa Clara County and Defendants conducted regular and sustained business in 8 Santa Clara by promoting and offering its services within the County. 9 FACTS COMMON TO ALL CAUSES OF ACTION 10 10. Plaintiff NGUYEN worked as a medical device assembler for Defendants AEROTEK and 1 1 CARDINAL on or about November 2, 2020. Plaintiff was wrongfully terminated on or about 12 November 24, 2020. 13 11. Plaintiff's primary duties were to assemble medical devices including changing into the 14 appropriate work gown, wear cover for hair and shoes, wearing safety masks, and complete 15 cleaning procedures. Plaintiff's hours were from 2:45 p.m. to 11:45 p.m. 16 12. Plaintiff's daily tasks included taking "shafts" and inserting them into a machine to manually 17 press the shaft. Plaintiff was then required to use a knife to sharpen shafts and insert the mandrel 18 into the shafts. Then, the mandrel and shafts going into a die mold where Plaintiff is required to 19 operate and cut it manually. If the item is flat, Plaintiff then passes it on to the next worker along 20 the assembly line. 21 13. On or about November 20, 2020, Plaintiff was injured at the workplace when he cut his right 22 hand open while sharpening the shaft with a knife. The injury required stitches. Plaintiff's co- 23 workers around him witnessed the accident and helped him with the initial first aid. Afterwards, 24 Plaintiff immediately reported the injury to his supervisor "Yadira" and "Chelsea." An 25 ambulance was then called, and Plaintiff received medical treatment on the day of his injury. 26 14. As a result of Plaintiff's workplace injury, Plaintiff received nine stitches and required medical 27 leave for his injuries to heal. Plaintiff was able to return to work on November 22, 2020. 28 15. On or about November 23, 2020, Plaintiff returned to work after informing his supervisor at - 3 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 15 of 51 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 Cardinal through text messages that his hand was okay and he would be able to work again while wearing a bandage for his wound. Plaintiffs supervisor responded "OK, see you later." 16. However, later that day, Plaintiff was told to speak with the "big boss" regarding how he was injured. At around 4:45 p.m., Plaintiff was told to leave because he cannot work while wearing the bandage for his wound since he was unable to use hand sanitizer. Plaintiff informed them that it would take around 14 days in order for him to be able to remove the bandage. Plaintiff was then told to stay at home until he could remove the bandage. 17. On or about November 24, 2020, Plaintiff informed Defendant AEROTEK about his workplace injury and the required leave. On the same day, Plaintiff opened a worker's compensation claim. 18. On or about November 25, 2020, Defendant AEROTEK supervisor "Chelsea" contacted Plaintiff and terminated his employment after his worker's compensation claim was filed. Defendants used a pre-textual reason that "Cardinal was having some problems and laying off some people." Instead, Defendants terminated Plaintiff because of his disability or perceived medical condition, taking medical leave as a result of a workplace injury, and /or suffering a workplace injury, and intended to replace him with another - uninjured - employee. 19. Defendants did not engage in the interactive process in order to find an accommodation for Plaintiff. Instead of providing a reasonable accommodation for Plaintiff, Defendants terminated his employment. FIRST CAUSE OF ACTION DISABILITY DISCRIMINATION [Govt. Code § 12940(a), et seq.] (Plaintiff Against All Defendants) 20. Plaintiff realleges each paragraph of this Complaint as though fully set forth herein. 21. At all times herein mentioned, the Fair Employment and Housing Act ("FEHA"), Government Code § 12940, et seq., was in full force and effect and binding on Defendants. These statutes make it unlawful to discriminate against an employee on-the-basis of a disability. 22. Defendant discriminated against Plaintiff on-the-basis of Plaintiffs disability by terminating his employment while he was disabled. Plaintiff complained to various supervisors that Plaintiff - 4 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 16 of 51 I 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 required reasonable accommodations due to his back pain. Defendants were aware of her disability yet did nothing to accommodate him. Instead, Defendants coldly terminated her employment. 23. As a proximate result of Defendants' willful, knowing and intentional discrimination of Plaintiff, Plaintiff has sustained and continues to sustain substantial losses in earnings and other benefits. 24. As a proximate result of Defendants' willful, knowing and intentional discrimination of Plaintiff, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to her damage in a sum according to proof. 25. Plaintiff is informed and believes and thereon alleges that Defendants' actions were taken with malice, oppression, fraud, and/or willful and conscious disregard of Plaintiff's rights, and were carried out by Defendants' managing agents and/or ratified by Defendants. Plaintiff is therefore entitled to punitive damages in an amount to be determined at trial as well as attorneys' fees. SECOND CAUSE OF ACTION FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF FEHA [Govt. Code § 12940(m)] (Plaintiff Against All Defendants) 26. Plaintiff re-alleges each and every paragraph of this Complaint as though fully set forth herein. 27. Under the FEHA, Defendants are required to engage in a timely, good faith, interactive process with an employee it believes has a disability or who, in fact, has a disability, to determine if that employee needs reasonable accommodations to perform the job. 28. By engaging in the course of conduct as alleged above, Defendants failed to provide Plaintiff with reasonable accommodations and it failed to engage in a timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations to the extent she needed them in violation of the applicable provisions of Government Code §§ 12940, et seq. 29. As a proximate result of Defendants' willful, knowing and intentional discrimination against Plaintiff, as a result of Defendants' failure to reasonably accommodate Plaintiff's disabilities, Plaintiff has sustained and continues to sustain substantial losses in earnings and other benefits. - 5 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 17 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30. As a proximate result of Defendants' willful, knowing and intentional discrimination against Plaintiff, as a result of Defendants' failure to reasonably accommodate Plaintiff's disabilities, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and physical and mental pain and anguish, all to her der damage in a sum according to proof. Plaintiff is further entitled to recover attorneys' fees pursuant to the provisions of Government Code §§ 12940, et seq. THIRD CAUSE OF ACTION FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS [California Government Code § 12940(n)] (Plaintiff Against All Defendants) 31. Plaintiff realleges each and every paragraph of this Complaint as though fully set forth herein. 32. As described herein, Defendants failed to engage in a good-faith interactive process with Plaintiff to determine wither it would be possible to implement effective reasonable accommodations. 33. As a proximate result of Defendant's failure to engage in a good-faith interactive process, Plaintiff has sustained and continues to sustain substantial losses in earnings and other benefits. Plaintiff has further suffered and continues to suffer humiliation, emotional distress, and physical and mental pain and anguish, all to her damage in a sum according to proof. 34. Plaintiff is further entitled to recovery attorneys' fees pursuant to the provision of Government Code § 12940, et seq. FOURTH CAUSE OF ACTION FAILURE TO PREVENT HARASSMENT, DISCRIMINATION OR RETALIATION [California Government Code § 12940(k)] (Plaintiff Against All Defendants) 35. Plaintiff realleges each and every paragraph of this Complaint as though fully set forth herein. 36. The FEHA requires employers to take all reasonable steps to prevent harassment, retaliation and discrimination including the institution by employer of policies, procedures and practices that - 6 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 18 of 51 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 include prompt and effective remedial procedures, and appropriate training, monitoring and disciplinary measures. 37. Defendants', policies, procedures and practices were inadequate for preventing, monitoring and remediation of harassment and retaliation. To the extent any such policies, procedures and practices existed, employees, including supervisors, were insufficiently trained or made aware of those policies and procedures for the policies and procedures to prevent retaliation and discrimination from occurring. Once Defendants were made aware of harassing conduct as reported by Plaintiff, they failed to take appropriate measures to prevent further harassment and retaliation. 38. As a direct, foreseeable, and proximate result of Defendants conduct, Plaintiff has suffered lost income, employment career opportunities, and has suffered and continues to suffer other economic loss, the precise amount of which will be proven at trial. 39. As a direct foreseeable and proximate result of Defendants conduct, Plaintiff has suffered emotional distress, the precise amount of which will be proven at trial. 40. The conduct which Plaintiff complains of in this Complaint was carried out by Defendants willfully, intentionally, and with oppression, malice and fraud and was carried out with conscious disregard of Plaintiff's rights. Plaintiff is entitled to an award of punitive damages according to proof. Under the FEHA, Plaintiff is entitled to an award of reasonable attorneys' fees and costs. FIFTH CAUSE OF ACTION RETALIATION IN VIOLATION OF THE FEHA [California Government Code §129401 (Plaintiff Against All Defendants) 41. Plaintiff realleges each paragraph of this Complaint as though fully set forth herein. 42. At all times herein mentioned, Cal. Gov. Code § 12940, et seq. ("the FEHA") was in full force and effect and binding on Defendants. Accordingly, Defendants were required to refrain from retaliating against Plaintiff for engaging in activities protected under the FEHA, including but - 7 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 19 of 51 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 not limited to, taking a medical leave, requesting medical leave and/or complaining about harassment. 43. Defendant's conduct described above is in violation of various statutes of this state, including but not limited to, California Government Code § 12940(m). Plaintiff engaged in protected activities and was subsequently terminated for doing so. 44. As a direct and legal result of Defendant's retaliation against Plaintiff, Plaintiff has suffered and continues to suffer general, consequential, and special damages, including but not limited to, substantial losses in earnings, other employment benefits, physical injuries, physical sickness, as well as emotional distress, plus medical expenses, future medical expenses, and attorneys' fees, in an amount according to proof. 45. The retaliation described herein was wrongful and justifies the imposition of punitive damages since the retaliation was against public policy. Defendants committed the acts herein maliciously, fraudulently and oppressively, with an evil intent and sinister plans with the wrongful intention of injuring Plaintiff, and/or in conscious disregard of Plaintiff's rights by retaliating against Plaintiff after complaining that she was being harassed. Moreover, Plaintiff is informed and believes and thereon alleges that Defendants had in place policies and procedures that specifically required Defendants' managers, officers, and agents, to prevent retaliation against employees for exercising their rights under the FEHA. Defendants' managers, officers and/or agents were aware of Defendants' policies and procedures requiring Defendants' managers, officers and agents to prevent retaliation against and upon employees of Defendant for exercising their rights under FEHA. However, Defendants' managers, officers, and/or agents, chose to consciously and willfully ignore said policies and procedures and therefore, their outrageous conduct was fraudulent, malicious, oppressive and done in wanton disregard for the rights of Plaintiff and the rights and duties owed by each Defendant to Plaintiff. Plaintiff should therefore be awarded exemplary punitive damages against Defendants in an amount to be established that is appropriate to punish Defendants and deter others from engaging in such conduct. Based on the foregoing, Plaintiff is entitled to recover punitive damages from Defendants in an amount according to proof. - 8 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 20 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SIXTH CAUSE OF ACTION WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY (Plaintiff Against All Defendants) 46. Plaintiff realleges each paragraph of this Complaint as though fully set forth herein. 47. As described herein, Plaintiff's employment was terminated in violation of the fundamental public policies of the State of California including those set out in the California Fair Employment and Housing Act and the California Constitution. Specifically, Plaintiff's employment was terminated in violation of the Labor Code/FEHA as described above and in violation of the public policy set forth in Government Code section 12950.1. 48. As a direct and foreseeable result of the aforesaid acts of Defendants, Plaintiff lost and will continue to lose income and other benefits in an amount to be proven at trial. Plaintiff seeks back pay, front pay, and all other appropriate remedies. Plaintiff also incurred attorneys' fees and thereby claims such amount as damages, together with pre-judgment interest. 49. Because the acts taken toward Plaintiff by Defendant were deliberate, malicious and undertaken to injure Plaintiff, Plaintiff requests an assessment of punitive :::lamages in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows: (a) For general, special, compensatory damages; (b) For exemplary and punitive damages; (c) For emotional distress damages; (d) For reasonable attorneys' fees; (e) For pre-judgment and post-judgment interest at the maximum legal rate; (0 For costs of suit incurred; (g) For such other and further relief as the Court deems just and proper. - 9 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 21 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: January 4, 2021 MARLIS PARK, P.C. By: Young K. Park Brent P. Marlis Attorneys for Plaintiff, DINH CUONG NGUYEN - 10 - COMPLAINT FOR DAMAGES Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 22 of 51 STATE OF CALIFORNIA! Business. Consumer Services and Housino Annoy GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I 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 January 4, 2021 Anona Su , California Young Park RE: Notice to Complainant's Attorney DFEH Matter Number: 202101-12242504 Right to Sue: Nguyen / Allegis Group, Inc. d.b.a. AeroTek, Inc. et al. Dear Anona SuYoung Park: KEVIN KISH, DIRECTOR Attached is a copy of your complaint of discrimination filed with the Department of Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and Housing Act, Government Code section 12900 et seq. Also attached is a copy of your Notice of Case Closure and Right to Sue. Pursuant to Government Code section 12962, DFEH will not serve these documents on the employer. You must serve the complaint separately, to all named respondents. Please refer to the attached Notice of Case Closure and Right to Sue for information regarding filing a private lawsuit in the State of California. A courtesy "Notice of Filing of Discrimination Complaint" is attached for your convenience. Be advised that the DFEH does not review or edit the complaint form to ensure that it meets procedural or statutory requirements. Sincerely, Department of Fair Employment and Housing Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 23 of 51 STATE OF CALIFORNIA I Business. Consumer Services and Housina Aaencv GAVIN NEWSOM GOVERNOR DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 (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 January 4, 2021 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 202101-12242504 Right to Sue: Nguyen / Allegis Group, Inc. d.b.a. AeroTek, Inc. et al. To All Respondent(s): KEVIN KISH, DIRECTOR Enclosed is a copy of a complaint of discrimination that has been filed with the Department of Fair Employment and Housing (DFEH) in accordance with Government Code section 12960. This constitutes service of the complaint pursuant to Government Code section 12962. The complainant has requested an authorization to file a lawsuit. A copy of the Notice of Case Closure and Right to Sue is enclosed for your records. 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 made 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. Please refer to the attached complaint for a list of all respondent(s) and their contact information. No response to DFEH is requested or required. Sincerely, Department of Fair Employment and Housing Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 24 of 51 STATF_DECAI !FORMA I Bucinnsq rnnsumer Servica9 and Housina Aaancv DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 1 Elk Grove 1 CA I 95758 (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 January 4, 2021 Dinh Cuong Nguyen RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202101-12242504 Right to Sue: Nguyen / Allegis Group, Inc. d.b.a. AeroTek, Inc. et al. Dear Dinh Cuong Nguyen: GAVIN NEWSOM GOVERNOR KEVIN KISH, DIRECTOR This letter informs you that the above-referenced complaint filed with the Department of Fair Employment and Housing (DFEH) has been closed effective January 4, 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 3:21-cv-02065 Document 1 Filed 03/24/21 Page 25 of 51 5TATE OF CALIFORNIA I Business, Consumer Services and Housina Aaencv 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) 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 KEVIN KISH, DIRECTOR Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 26 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) In the Matter of the Complaint of Dinh Cuong Nguyen DFEH No. 202101-12242504 Complainant, VS. Allegis Group, Inc. d.b.a. AeroTek, Inc. Cardinal Health, Inc. Respondents 1. Respondent Allegis Group, Inc. d.b.a. AeroTek, Inc. is an employer Allegis Group, Inc. d.b.a. AeroTek, Inc. subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 2. Complainant is naming Cardinal Health, Inc. as individual Co-Respondent(s). 3. Complainant Dinh Cuong Nguyen, resides in the City of , State of. 4. Complainant alleges that on or about November 24, 2020, respondent took the following adverse actions: Complainant was harassed because of complainant's disability (physical or mental). Complainant was discriminated against because of complainant's disability (physical or mental) and as a result of the discrimination was terminated, denied reasonable accommodation for a disability, denied family care or medical leave (cfra). Complainant experienced retaliation because complainant requested or used a disability- related accommodation and as a result was terminated, denied reasonable accommodation for a disability, denied family care or medical leave (cfra). Additional Complaint Details: 10. Plaintiff NGUYEN worked as a medical device assembler for Defendants AEROTEK and CARDINAL on or about November 2, 2020. Plaintiff was wrongfully terminated on or about November 24, 2020. -1- Date Filed: January 4, 2021 Complaint - DFEH No. 202101-12242504 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 27 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. Plaintiff's primary duties were to assemble medical devices including changing into the appropriate work gown, wear cover for hair and shoes, wearing safety masks, and complete cleaning procedures. Plaintiff's hours were from 2:45 p.m. to 11:45 p.m. 12. Plaintiff's daily tasks included taking "shafts" and inserting them into a machine to manually press the shaft. Plaintiff was then required to use a knife to sharpen shafts and insert the mandrel into the shafts. Then, the mandrel and shafts going into a die mold where Plaintiff is required to operate and cut it manually. If the item is flat, Plaintiff then passes it on to the next worker along the assembly line. 13. On or about November 20, 2020, Plaintiff was injured at the workplace when he cut his right hand open while sharpening the shaft with a knife. The injury required stitches. Plaintiff's co-workers around him witnessed the accident and helped him with the initial first aid. Afterwards, Plaintiff immediately reported the injury to his supervisor "Yadira" and "Chelsea." An ambulance was then called, and Plaintiff received medical treatment on the day of his injury. 14. As a result of Plaintiff's workplace injury, Plaintiff received nine stitches and required medical leave for his injuries to heal. Plaintiff was able to return to work on November 22, 2020. 15. On or about November 23, 2020, Plaintiff returned to work after informing his supervisor at Cardinal through text messages that his hand was okay and he would be able to work again while wearing a bandage for his wound. Plaintiff's supervisor responded "OK, see you later." 16. However, later that day, Plaintiff was told to speak with the "big boss" regarding how he was injured. At around 4:45 p.m., Plaintiff was told to leave because he cannot work while wearing the bandage for his wound since he was unable to use hand sanitizer. Plaintiff informed them that it would take around 14 days in order for him to be able to remove the bandage. Plaintiff was then told to stay at home until he could remove the bandage. 17. On or about November 24, 2020, Plaintiff informed Defendant AEROTEK about his 'workplace injury and the required leave. On the same day, Plaintiff opened a worker's compensation claim. 18. On or about November 25, 2020, Defendant AEROTEK supervisor "Chelsea" contacted Plaintiff and terminated his employment after his worker's compensation claim was filed. Defendants used a pre-textual reason that "Cardinal was having some problems and laying off some people." Instead, Defendants terminated Plaintiff because of his disability or perceived medical condition, taking medical leave as a result of a workplace injury, and/or suffering a workplace injury, and intended to replace him with another - uninjured - employee. 19. Defendants did not engage in the interactive process in order to find an accommodation for Plaintiff. Instead of providing a reasonable accommodation for Plaintiff, Defendants terminated his employment. -2- Date Filed: January 4, 2021 Complaint - DFEH No. 202101-12242504 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 28 of 51 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VERIFICATION I, Young Park, am the Attorney in the above-entitled complaint. I have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which I believe to be true. On January 4, 2021, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Los Angeles, CA -3- Date Filed: January 4, 2021 Complaint- DFEH No. 202101-12242504 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 29 of 51 CM-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and addmsa): Brent Marlis SB#284654; Young Park SB#287589 3600 Wilshire Blvd., Suite 1815 Los Angeles, CA 90010 TELEPHONE NO.: 323-922-2000 FAX NO. (Optional): ATTORNEY FOR (Name): PLAINTIFF DINH CUONG NGUYEN SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA STREET ADDRESS: 191 North First Street MAILING ADDRESS: 191 North First Street CM AND ZIP CODE: San Jose, CA 95113 BRANCH NAME: DOWNTOWN SUPERIOR COURT CASE NAME: DINH CUONG NGUYEN v. ALLEGIS GROUP, INC., ET AL. FOR COURT USE ONLY Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/12/2021 10:34 AM Reviewed By: D Harris Case #21CV376180 Envelope: 5622470 CIVIL CASE COVER SHEET r-i Unlimited r-7 Limited (Amount (Amount demanded demanded is exceeds $25,000) $25,000) Complex Case Designation E 1 Counter Joinder Filed with first appearance by defendant (Cal. Rules of Court, rule 3.402) CASE NTER: 1 CV376180 JUDGE: DEPT.: Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract ni A• uto (22) U• ninsured motorist (46) Other PI/PD/WD (Personal Injury/Property Damage/Wrongful Death) Tort Fi A• sbestos (04) FT Product liability (24) I-I Medical malpractice (45) Other PI/PD/WD (23) Non-PU ri FBPrau0suiNVnde:D1s6()tOthorvuenr)faTiro Fl Defamation (13) [73 Civil rights (08) business practice (07)d Intellectual property (19) I-1 Professional negligence (25) ni O• ther non-PI/PD/WD tort (35) Employment I-7 W• rongful termination (36) 1-1 Other employment (15) 1-1 Other judicial review (39) 1-1 B• reach of contract/warranty (06) 1-1 Rule 3.740 collections (09) Other collections (09) 1-1 Insurance coverage (18) I-I Other contract (37) Real Property 1-7 Eminent domain/Inverse n (1-1 Wrongful evictio 33) Construction defect (10) Mass tort (40) Securities litigation (28) Environmental/Toxic tort (30) Insurance coverage claims arising from the above listed provisionally complex case types (41) Enforcement of Judgment r--1 Enforcement of judgment (20) Miscellaneous Civil Complaint F-1 RICO (27) 1-7 Other complaint (not specified above) (42) Miscellaneous Civil Petition ni Partnership and corporate governance (21) r--1 Other petition (not specified above) (43) Provisionally Complex Civil Litigation (Cal. Rules of Court, rules 3.400-3.403) E-1 Antitrust/Trade regulation (03) EJ 2. This case El is 1-7 Is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management a. ri Large number of separately represented parties d. Large number of witnesses b. Extensive motion practice raising difficult or novel e. El Coordination with related actions pending in one or more issues that will be time-consuming to resolve courts in other counties, states, or countries, or in a federal c. Substantial amount of documentary evidence court f. r--1 Substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a. f ] monetary b. ni nonmonetary; declaratory or injunctive relief c. f-i punitive 4. Number of causes of action (spec*: 6 5. This case 71 is 71 is not a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use farm_CM-015.) Date: January 11,2021 BRENT MARLIS . (TYPE OR PRINT NAME) NOTICE • Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small cla ses or es filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to fi 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. Page 1 of 2 (SIGNATU TV R A ORNEY FOR PARTY) Form Adopted for Mandatory Use Judicial Council of C.alitomie CM-010 [Rev. July I. 2007] CIVIL CASE COVER SHEET Cal. Rules of Court, nilas 2.30, 3.220, 3.400-3.403, 3.740; Cal. Mande:de of Judicial Administration. std. 3.10 emwoourls.cs.gov condemrenaal tploronp(e1: Other (26) Unlawful Detainer El C• ommercial (31) 1-1 Residential (32) E ] D• rugs (38) Judicial Review ni A• sset forfeiture (05) El Petition re: arbitration award (11) ni W• rit of mandate (02) Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 30 of 51 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 plaintiff's 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, t/VVtf C o ontrac /Warranty arrAuto (22)-Personal Injury/Property Breach (06) Rules of Court Rules 3.400-3.403) athBreac of Rental/Lease Damage/Wrongful Death Antitrust/Trade Regulation (03) l defamer unlawfu( Uninsured Motorist (46) (if the Contract Construction Defect (10) case involves an uninsured or wrongful eviction) Claims Involving Mass Tort (40) Contract/Warranty Breach-Sellermotorist claim subject 0 Securities Litigation (28) not ( fraud o ggarbitration, check this item Plaintiff r nelience) Environmental/Toxic Tort (30) Negligent Breach of ContracVinstead of Auto) Insurance Coverage Claims Other PI/PD/W0 (Personal Injury/ Warranty (arising from provisionally complex Other Breach of Contract/WarrantyProperty Damage/Wrongful Death) case type listed above) (41) Collections (e.g., money owed, openTort Enforcement of Judgment book accounts) (09)Asbestos (04) Enforcement of Judgment (20) llCoection Case-Seller PlaintiffAsbestos Property Damage Abstract of Judgment (Out of Other Promissory Note/CollectionsAsbestos Personal injury/ County) CaseWrongful Death Confession of Judgment (non- Insurance Coverage (not provisionallyProduct Liability (not asbestos or domestic relations) 18) lex ( )toxic/environmental) (24) comp Sister State Judgment Auto SubrogationMedical Malpractice (45) Administrative Agency Award CoverageOtherMedical Malpractice- (not unpaid taxes) 37)ntract Co (Physicians & Surgeons Other Petition/Certification of Entry of Other Professional Health Care Contractual Fraud Judgment on Unpaid Taxes Other Contract DisputeMalpractice Other Enforcement of Judgment Other PI/PD/WD (23) Real Properly Case Premises Liability (e.g., slip Eminent Domain/Inverse Miscellaneous Civil Complaint Condemnation (14)and fall) RICO (27) Intentional Bodily Injury/PDA Wrongful Eviction (33)ND Other Complaint (not specified Property Real er (e.g., quiet title) (26)(e.g., assault, vandalism) Oth above) (42) Writ of Possession of Real PropertyIntentional infliction of Declaratory Relief Only Mortgage ForeclosureEmotional Distress Injunctive Relief Only (non- Quiet TitleNegligent Infliction of harassment) Other Real Property (not eminentEmotional Distress Mechanics Lien domain, landlord/tenant, orOther PI/PD/WD Other Commercial Complaint foreclosure) Non-PI/MD/1ND (Other) Tort Case (non-tort/non-complex) DetainerUnlawful Business Tort/Unfair Business Other Civil Complaint Commercial (31)Practice (07) (non-tort/non-complex) Residential (32) Civil Rights (e.g., discrimination, Miscellaneous Civil Petition Drugs (38) (If the case involves illegalfalse arrest) (not civil Partnership and Corporate drugs, check this item; otherwise,harassment) (08) Governance (21)ltiidRreport as Commercial or esidential) Defamation (e.g., slander, libel) Other Petition (not specified Judicial Review(13) above) (43) Asset Forfeiture (05)Fraud (16) Civil Harassment Petition Re: Arbitration Award (11)Intellectual Property (19) Workplace Violence Writ of Mandate (02) Professional Negligence (25) Eider/Dependent Adult Writ-Administrative MandamusLegal Malpractice Abuse Writ-Mandamus on Limited CourtOther Professional Malpractice Election Contest Case Matter(not medical or legal) Petition for Name Change Writ-Other Limited Court Case Other Non-PUPDAND Tort (35) Petition for Relief From Late ReviewEmployment Claim Other Judicial Review (39)Wrongful Termination (36) Other Civil Petition Review of Health Officer OrderOther Employment (15) Notice of Appeal-Labor Commissioner Appeals CM-010 [Rev. July 1.20071 CIVIL CASE COVER SHEET Page 2 of 2 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 31 of 51 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 32 of 51 Dylan B. Carp (State Bar No. 196846) Gonzalo Morales (State Bar No. 334944) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 941 1 1-4615 Telephone: (415) 394-9400 Facsimile: (41 5) 394-9401 E-mail: Dylan.Carp@iacksonlewis.com E-mail: Gonzalo.Morales@iacksonlewis.com Attorneys for Defendant CARDINAL HEALTH, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DINH CUONG NGUYEN, an individual, Case No. 21CV376 1 80 Plaintiff, DEFENDANT CARDINAL HEALTH, V. INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT ALLEGIS GROUP, INC, a Maryland corporation; CARDINAL HEALTH, INC., an Indiana corporation; and DOES 1-50, inclusive, Complaint Filed: 1/12/2021 Trial Date: Not set Defendants. Defendant, CARDINAL HEALTH, INC. (“Defendant”), hereby answers the unverified complaint (“Complaint”) filed by Plaintiff, DINH CUONG NGUYEN (“Plaintiff”), as follows: GENERAL DENIAL Pursuant to California Code 0f Civil Procedure section 43 1 .30(d), Defendant denies, generally and specifically, each and every allegation contained in the Complaint. AFFIRMATIVE DEFENSES Defendant further asserts the following affirmative defenses t0 the alleged causes of action in the Complaint, without conceding that they bear the burden of proof 0r persuasion. /// 1 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 33 of 51 FIRST AFFIRMATIVE DEFENSE Failure t0 State a Claim Plaintiff’s Complaint as a Whole, and each purported cause of action alleged therein, fails to state facts sufficient t0 constitute a cause of action against Defendant for which relief may be granted. SECOND AFFIRMATIVE DEFENSE Statute ofLimitations Any recovery on Plaintiff’s Complaint is barred by the applicable statutes of limitations, including, but not limited to, California Code of Civil Procedure sections 335.1, 337, 338(a), 339, and 340(a); and California Government Code sections 12940, 12960, and 12965. THIRD AFFIRMATIVE DEFENSE At Will Employment Any recovery on Plaintiff’s Complaint, 0r any purported cause of action alleged therein, is barred because Plaintiff’s term of employment was for an unspecified duration and, therefore, pursuant t0 Labor Code section 2922, terminable at Will, with or without cause, in the sole discretion 0f Defendant. FOURTH AFFIRMATIVE DEFENSE Waiver Plaintiffs claims are barred, in whole 0r in part, to the extent such claims have been waived, discharged, and/or abandoned. FIFTH AFFIRMATIVE DEFENSE Mixed Motive Plaintiffs Complaint as a Whole, and each purported cause 0f action alleged therein, is barred, in whole 0r in part, because, even assuming arguendo that Defendant’s actions were motivated in part by a discriminatory, retaliatory, or for any other improper reason (Which Defendant unequivocally denies), Defendant would have taken the same action against Plaintiff regardless 0f any alleged discriminatory, retaliatory, or other improper reason, due t0 legitimate, non-discriminatory reasons arising from Plaintiff s misconduct. 2 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 34 of 51 SIXTH AFFIRMATIVE DEFENSE Avoidable Consequences/Preventative Remedies Plaintiff’ s Complaint, and each purported cause ofaction alleged therein, is barred because, to the extent that any actions 0f Defendant could be construed as unlawful discrimination, retaliation, 0r wrongful termination in Violation 0f public policy (all 0f which Defendant denies), Defendant exercised reasonable care to prevent such conduct and would have taken immediate and appropriate corrective action t0 remedy and stop any such alleged misconduct if Plaintiff had informed Defendant about the alleged misconduct. Plaintiff, however, failed to utilize the preventative 0r corrective remedies provided by Defendant and failed to otherwise avoid such harm. Plaintiff’s claims are, therefore, barred, in Whole 0r limited in part, by the doctrine of avoidable consequences. SEVENTH AFFIRMATIVE DEFENSE Failure t0 Mitigate Plaintiff is barred from recovering any damages for 10st wages, 0r any recovery for lost wages must be reduced if, and to the extent that, Plaintiff failed to exercise reasonable diligence to mitigate her alleged damages, if any. EIGHTH AFFIRMATIVE DEFENSE Workers ’ Compensation Act T0 the extent Plaintiff claims any acts of Defendant or its employees caused his alleged emotional distress, the exclusive remedy for Plaintiff’s alleged emotional distress and other injuries, if any, lies under the California Workers’ Compensation Act, California Labor Code sections 3600 et seq. NINTH AFFIRMATIVE DEFENSE Failure t0 Exhaust Administrative Remedies Plaintiffs FEHA causes of action are barred, in whole or in part, by Plaintiffs failure to meaningfully exhaust his administrative remedies under the California Fair Employment and Housing Act. (Cal. Gov. Code §§ 12960 and 12965.) /// 3 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 35 of 51 TENTH AFFIRMATIVE DEFENSE Estoppel The Complaint as a Whole, and each purported cause of action alleged therein, is barred to the extent Plaintiff is estopped by his own conduct t0 claim any right to damages 0r any relief against Defendant. ELEVENTH AFFIRMATIVE DEFENSE Laches Any recovery on Plaintiff’s Complaint, or any purported cause 0f action alleged therein, is barred under the doctrine of laches for Plaintiff s unreasonable delay in bringing this action and in asserting any claim for relief against Defendant. TWELFTH AFFIRMATIVE DEFENSE Unclean Hands The Complaint as a whole, and each purported cause 0f action alleged therein, is barred to the extent Plaintiff comes to this Court with unclean hands. THIRTEENTH AFFIRMATIVE DEFENSE Pre-existing Condition Defendant is relieved on any liability whatsoever as t0 Plaintiff’s claims for damages t0 the extent Plaintiff seeks redress for physical and emotional injuries arising from preexisting physical or mental conditions. FOURTEENTH AFFIRMATIVE DEFENSE After-Acquired Evidence Plaintiffs Complaint as a whole, and each purported cause 0f action alleged therein, is barred by the doctrine of after-acquired evidence, 0r the doctrine of after-acquired evidence limits or reduces Plaintiff s recovery 0f alleged damages. FIFTEENTH AFFIRMATIVE DEFENSE Failure t0 Use Ordinary Care and Diligence Plaintiff’s claims are barred, in whole 0r in part, by California Labor Code sections 2854 and 2856 t0 the extent Plaintiff failed to use ordinary care and diligence in the performance 0f his 4 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 36 of 51 duties and failed to comply substantially With the reasonable directions of his employer. SIXTEENTH AFFIRMATIVE DEFENSE Managerial Immunity Any injuries Plaintiff allegedly sustained as a result 0f any action by a management employee of Defendant are barred by the doctrine of managerial immunity. SEVENTEENTH AFFIRMATIVE DEFENSE Offset Any recovery on Plaintiff’s Complaint, or any purported cause 0f action alleged therein, is barred, in whole 0r in part, because Defendant is entitled to an offset for any monies Plaintiff received from any source after Plaintiff ceased t0 be employed by Defendant under the doctrine prohibiting double recovery set forth by Witt v. Jackson (1961) 57 Cal.2d 57 and its progeny. EIGHTEENTH AFFIRMATIVE DEFENSE Interactive Process Plaintiff’s Second and Third Causes of Action are barred to the extent Plaintiff failed to participate in the interactive process, which broke down through no fault of Defendant. NINETEENTH AFFIRMATIVE DEFENSE Undue Hardship Plaintiff’s Second and Third Causes of Action are barred to the extent the desired accommodation that Plaintiff sought would impose an undue hardship 0n Defendant’s business operation, pursuant t0 California Government Code sections 12940(a)(1) and 12940(m). TWENTIETH AFFIRMATIVE DEFENSE Health 0r Safety Plaintiffs Second and Third Causes of Action are barred t0 the extent providing an accommodation to Plaintiff would result in a direct threat t0 the health or safety 0f himself 0r others in the workplace. TWENTY-FIRST AFFIRMATIVE DEFENSE Arbitration Agreement Plaintiff’s Complaint as a whole, and each purported cause 0f action alleged therein, is 5 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 37 of 51 barred because Plaintiff is obligated to arbitrate the claims set forth in this Complaint pursuant to a valid agreement t0 arbitrate. WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiff take nothing by his Complaint; 2. That the Complaint be dismissed in its entirety with prejudice; 3. That Plaintiff be denied every demand and prayer for relief contained in the Complaint; 4. That Defendant be awarded costs of suit incurred herein, including reasonable attorney’s fees; and 5. For such other and further relief as the Court deems just and equitable. Dated: March 19, 2021 JACKSON LEWIS P.C. By: Dylan B. Carp Gonzalo Morales Attorneys for Defendant CARDINAL HEALTH, INC. 4821 -5628-0288 6 DEFENDANT’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT Case N0. 2 1CV376 1 80 QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 38 of 51 PROOF 0F SERVICE ICCP 8 1010.6(2), CRC Rule 2.253(b)(1)(A) and General LR 6] I, Fatimah Sikin, declare that I am employed with the law film of Jackson Lewis P.C., Whose address is 50 California Street, 9th Floor, San Francisco, California 941 1 1-4615; I am over the age of eighteen (1 8) years and am not a party t0 this action. On March 19, 2021, I caused to be e-served the attached DEFENDANT CARDINAL HEALTH, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT in this action by uploading a true and correct copy thereof, in PDF format, for electronic filing and service by Express Network (a court-approved Electronic Filing Service Provider), pursuant to Local Rule 2. 1 1. Said document to be filed with the Court and e-served on Plaintiff’s counsel of record, Whose contact information is as follows: Young K. Park, Esq. Attorney for Plaintiff Brent P. Marlis, Esq. Marlis Park, P.C. Dinh Cuong Nguyen 3600 Wilshire Boulevard, Suite 1815 Los Angeles, CA 90010 Telephone: (323) 922-2000 Facsimile: (323) 922-2000 E-mail: oun marlis ark.com E-mail: brent@marlispark.com I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct. Executed on March 19, 2021, at San Francisco, California. {MW Fatimah Sikin Proof 0f Service Case No. 21CV376180 EXHIBIT B Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 39 of 51 21CV376180 Santa Clara - Civil POS-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): Brent Marlis, 284654 MARLIS PARK, P.C. 3600 Wilshire Blvd, Suite 1815, Suite 1815 Los Angeles, CA TELEPHONE NO.: 90010 323-922-2000 ATTORNEY FOR (Name): Plaintiff Electronically by County on FOR COURT USE ONLY System Sy Filed Superior Court of CA, of Santa Clara, 3/2/2021 1:15 PM By: System System #21CV376180 5945372 SUPERIOR COURT OF CALIFORNIA, COUNTY OF Superior Court of California, Santa Clara County 191 N. First Street San Jose, CA 95113-1090 Reviewed Case Envelope: PLAINTIFF/PETITIONER: DINH CUONG NGUYEN DEFENDANT/RESPONDENT: ALLEGIS GROUP, INC., et al CASE NUMBER: 21CV376180 PROOF OF SERVICE OF SUMMONS Ref. No. or File No.: 90010 1. At the time of service I was a citizen of the United States, at least 18 years of age and not a party to this action. 2. I served copies of: Summons, Complaint, Civil Case Cover Sheet. 3. a. Party served: ALLEGIS GROUP, INC., a corporation b. Person Served: CSC - Koy Saechao - Person Authorized to Accept Service of Process 4. Address where the party was served: 2710 Gateway Oaks Dr, Suite 150N Sacramento, CA 95833 5. I served the party a. by personal service. I personally delivered the documents listed in item 2 to the party or person authorized to receive service of process for the party (1) on (date): 02/22/2021 (2) at (time): 1:45PM 6. The "Notice to the Person Served" (on the summons) was completed as follows: d. on behalf of: ALLEGIS GROUP, INC., a corporation under: CCP 416.10 (corporation) 7. Person who served papers a. Name: b. Address: Tyler Anthony DiMaria One Legal - P-000618-Sonoma 1400 North McDowell Blvd, Ste 300 Petaluma, CA 94954 stem c. Telephone number: 415-491-0606 d. The fee for service was: $ 36.00 e I am: (3) reoistered California process server. (i) Employee or independent contractor. (ii) Registration No.:2006-06 (iii) County: Sacramento 8. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. Date: 02/22/2021 Tyler Anthony DiMaria (NAME OF PERSON WHO SERVED PAPERS) (SIGNATURE) Form Adopted for Mandatory Use Judicial Council of California POS-010 [Rev. Jan 1, 2007] PROOF OF SERVICE OF SUMMONS Code of Civil Procedure, § 417.10 OL# 15726603 Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 40 of 51 \OOOQGUl-RUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQONUI-thNh-‘OKOOOQQUl-BWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 41 of 51 Michael S. Kun (SBN 208684) EPSTEIN BECKER & GREEN, P.C. 1925 Century Park East, Suite 500 Los Angeles, CA 90067 Telephone: 310 556-8861 Facmmlle: 310 -553-2165 mkun@ebglaw.com Attorneys for Defendant ALLEGIS GROUP, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA DINH CUONG NGUYEN, an individual; Plaintiff, vs. ALLEGIS GROUP, INC, a corporation; CARDINAL HEALTH, INC., a corporation; and DOES 1 through 50, Defendants. Case No.2 21CV376180 Assigned t0 Hon. Drew Takaichi, Dept. 2 DEFENDANT ALLEGIS GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT Complaint Filed: January 12, 2021 -1- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \DOOQQUl-bWNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUI-hUJNh-‘OKOOOQQUl-RWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 42 of 51 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: Defendant Allegis Group, Inc. (“Defendant”) hereby submits its Answer in response t0 the unverified Complaint (“Complaint”) filed by Plaintiff Dinh Cuong Nguyen (“Plaintiff’) and says as follows: GENERAL DENIAL TO COMPLAINT Pursuant to California Code 0f Civil Procedure § 431.30(d), Defendant generally and specifically denies each and every allegation contained in Plaintiff’ s Complaint. Defendant filrther generally and specifically denies that Plaintiff has incurred damages in any amount whatsoever, and generally and specifically denies that Plaintiff is entitled t0 punitive damages in any amount. AFFIRMATIVE DEFENSES Defendant submits the following affirmative defenses t0 the Complaint, and each and every cause 0f action, claim 0r common count alleged therein, without assuming or undertaking any burden, or burdens of proof, not otherwise assigned to it by law: FIRST AFFIRMATIVE DEFENSE (Failure T0 State A Cause Of Action) 1. Plaintiff s Complaint fails t0 state facts sufficient t0 constitute any cause 0f action against Defendant. SECOND AFFIRMATIVE DEFENSE (Arbitration ) 2. Plaintiffs claims are barred because Plaintiff is required t0 arbitrate his claims pursuant t0 a valid and enforceable arbitration agreement. THIRD AFFIRMATIVE DEFENSE (Not Emgloyer) 3. Plaintiff’ s claims are barred, in Whole or in part, because Defendant did not employ him. -2- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \OOOQGUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUfi-lkLRNh-‘OKOOOQGUl-RWNi-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 43 of 51 FOURTH AFFIRMATIVE DEFENSE (Workers’ Compensation) 4. Plaintiff is barred from seeking any damages for purported physical, mental 0r emotional injuries allegedly suffered as a result of his employment in that the sole and exclusive remedy in this respect is and was governed by the California Workers’ Compensation Act and California Labor Code §§ 3200-4627. FIFTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 5. Plaintiff’s claims are barred, in whole 0r in part, because Plaintiff has failed and neglected t0 use reasonable care to minimize and mitigate his alleged damages, if any. SIXTH AFFIRMATIVE DEFENSE (Statute 0f Limitations) 6. Plaintiff’s claims are barred, in Whole 0r in part, by the applicable statutes of limitations, including, but not limited to, California Code 0f Civil Procedure §§ 335, 335.1, 338, 339, 340, and any other relevant limitations period, including California Government Code §§ 12940, 12960,m and 12965. SEVENTH AFFIRMATIVE DEFENSE (M) 7. Any recovery 0n the Complaint, 0r any cause 0f action 0r purported cause of action alleged therein, is barred 0n the grounds that Plaintiff consented t0 the conduct challenged therein. EIGHTH AFFIRMATIVE DEFENSE (Business Judgment) 8. Plaintiff’ s claims are barred, in whole 0r in part, because Defendant’s actions with respect to Plaintiff were a legitimate exercise 0f Defendant’s business judgment Which Plaintiff cannot invade. -3- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \OOOQQUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUI-hUJNh-‘OKOOOQQUl-bWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 44 of 51 NINTH AFFIRMATIVE DEFENSE (Lack 0f Authorization 0r Ratification) 9. Plaintiff is not entitled t0 recover the punitive damages alleged in the Complaint because Defendant did not authorize or ratify the acts alleged in the Complaint. TENTH AFFIRMATIVE DEFENSE (Exclusive Remedv) 10. Some or all of Plaintiff s claims are barred by the exclusive remedy provisions of California Labor Code § 3600,w. ELEVENTH AFFIRMATIVE DEFENSE (Estoppel) 11. By reason 0f his own conduct, actions or inaction, Plaintiff is estopped from asserting the claims set forth in his Complaint and therefore is barred, in whole or in part, from the relief sought therein. TWELFTH AFFIRMATIVE DEFENSE (M) 12. Some or all of Plaintiff’s claims are barred because, at all times, Defendant was acting in good faith. THIRTEENTH AFFIRMATIVE DEFENSE (Unclean Hands) 13. Some or all 0f Plaintiff s claims are barred by the doctrine of unclean hands based on Plaintiff’ s inequitable and bad faith conduct. FOURTEENTH AFFIRMATIVE DEFENSE (Lack 0f Actual 0r Constructive Knowledge) 14. Defendant lacked actual or constructive knowledge of the conduct alleged in the Complaint or of any alleged wrongdoing by any other persons. -4- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \DOOQQUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQQMJ>UJNHOKOOOQQUIJ>WNHO Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 45 of 51 FIFTEENTH AFFIRMATIVE DEFENSE (Plaintiff and Others as Cause) 15. Plaintiff is barred from claiming any injuries or damages because such injuries and damages were the sole, direct and proximate result of Plaintiff’s conduct or that 0f others. SIXTEENTH AFFIRMATIVE DEFENSE (Failure t0 Exhaust) 16. Some or all of Plaintiff’s claims are barred because he failed to exhaust his administrative remedies under the Fair Employment and Housing Act, California Government Code § 12900,m, which is a jurisdictional requirement to proceed With these claims. SEVENTEENTH AFFIRMATIVE DEFENSE (Proximate Cause) 17. Any acts 0r omissions to act by Defendant were not the proximate cause of any injury suffered by Plaintiff. EIGHTEENTH AFFIRMATIVE DEFENSE (M) 18. Any recovery on Plaintiff’s Complaint, 0r any purported cause of action alleged therein, is barred, in whole or in part, because Defendant is entitled to an offset for any monies Plaintiff received from any source after Plaintiff ceased to be employed by Defendant consistent with the common law doctrine of offset and the doctrine prohibiting double recovery set forth under Witt V. Jackson (1961) 57 Cal.2d 57 and its progeny. NINETEENTH AFFIRMATIVE DEFENSE (After-Acquired Evidence) 19. The Complaint is limited or subject to an absolute bar as to recoverable damages based on after-acquired evidence that Defendant has presently and/or may acquire during the course of this litigation. -5- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \OOOQGUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUI-hUJNh-‘OKOOOQQUl-bWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 46 of 51 TWENTIETH AFFIRMATIVE DEFENSE (Breach of Duties) 20. Plaintiff s claims fail to state facts sufficient t0 constitute a cause 0f action because Plaintiff willfillly breached his duties as an employee, neglected his duties, failed t0 perform his duties, and/or failed t0 use ordinary care and diligence in the performance 0f his employment pursuant to California Labor Code § 2924. TWENTY-FIRST AFFIRMATIVE DEFENSE (Same Decisions) 21. Any recovery 0n Plaintiff’s Complaint, or any cause of action alleged therein, is barred because, assuming, arggendo, that discriminatory 0r retaliatory reasons had been a motivating factor in any employment decisions concerning Plaintiff, Defendant would have made the same employment decisions toward Plaintiff in any case for legitimate, non-discriminatory, non-retaliatory business reasons. TWENTY-SECOND AFFIRMATIVE DEFENSE (Scope 0f Employment) 22. Defendant cannot be held vicariously liable for the conduct alleged in Plaintiff s Complaint because such conduct, if true, was outside the course and scope of the employment of the individual who allegedly engaged in such conduct. TWENTY-THIRD AFFIRMATIVE DEFENSE (N0 Vicarious Liability) 23. Plaintiffs claims against Defendant are barred, in whole 0r in part, because Defendant is not vicariously liable for the acts of its client or its client’s employees. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Limitation 0n Damages) 24. The liability of this answering Defendant, if any, for non-economic damages claimed by Plaintiff is limited by California Civil Code §§ 143 1 .1, et seg. -6- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \OOOQQUl-bWNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUfi-lkLRNh-‘OKOOOQQUl-bWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 47 of 51 TWENTY-FIFTH AFFIRMATIVE DEFENSE (W) 25. At all times, Defendant acted in good faith and Without the requisite scienter. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Legitimate Business Reasons) 26. Defendant’s actions were for legitimate business reasons made in good faith and were not based upon a Violation of public policy or other factors protected by law, including Plaintiff’ s alleged disability. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (Motivating Factor) 27. Any recovery on Plaintiff‘s Complaint, or any cause of action alleged therein, is barred in that Plaintiff s alleged disability 0r alleged protected activity was not a motivating factor in any actions or employment decisions made concerning Plaintiff. TWENTY-EIGHTH AFFIRMATIVE DEFENSE (N0 Notice 0f Discrimination 0r Retaliation) 28. Plaintiff’ s claims are barred, in Whole or in part, because Defendant did not receive notice from Plaintiffthat any individual allegedly had engaged in any discriminatory or retaliatory conduct directed against 0r towards Plaintiffbased upon his alleged disability or alleged protected activity, and Plaintiff unreasonably failed to complain of any unlawful conduct and/or take advantage of the preventative or corrective opportunities available and/or otherwise avoid harm. TWENTY-NINTH AFFIRMATIVE DEFENSE (Policies Prohibiting Discrimination and Retaliation) 29. Any recovery 0n Plaintiff’s Complaint, 0r any purported cause 0f action alleged therein, is barred, in whole 0r in part, because Defendant maintained policies prohibiting unlawful conduct and promoting a work environment free from discrimination and retaliation. -7- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \DOOQQUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQQMJ>UJNHOKOOOQQUIJ>WNHO Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 48 of 51 THIRTIETH AFFIRMATIVE DEFENSE (Avoidable Consequences Doctrine) 30. Although Defendant denies that it committed 0r has responsibility for any act that could support the recovery of damages in this lawsuit, if any, t0 the extent Plaintiff was discriminated against or subjected t0 any other alleged unlawful employment practice, Plaintiff is barred from recovering any damages under the avoidable consequences doctrine. Defendant took reasonable steps t0 prevent and correct workplace discrimination and retaliation, Plaintiff unreasonably failed t0 utilize Defendant’s preventative and corrective measures and reasonable use 0f Defendant’s preventative and corrective measures would have prevented at least some of the harm Plaintiff allegedly suffered. Department 0f Health Services V. Superior Court {McGinnisl (2000) 31 Ca1.4th 1026. THIRTY-FIRST AFFIRMATIVE DEFENSE (Not a Qualified Individual) 31. Any recovery 0n Plaintiff’s Complaint, 0r any purported cause of action alleged therein, is barred, in whole or in part, because Plaintiff was not a qualified individual with a disability pursuant to California Government Code §§ 12940m THIRTY-SECOND AFFIRMATIVE DEFENSE (N0 Intentional Conduct) 32. Plaintiff s claims are barred, in Whole or in part, because the alleged discriminatory and retaliatory conduct was not intentional. THIRTY-THIRD AFFIRMATIVE DEFENSE (Reasonable Accommodation/Interactive Process) 33. Plaintiff’s claims are barred, in whole 0r in part, because reasonable accommodations were made for his alleged disability and because Plaintiff did not request any additional accommodations and did not otherwise participate in the interactive process. -8- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \DOOQQUl-bUJNr-t NNNNNNNNNr-tt-tr-kr-tr-tr-tr-KHr-tr-t OOQO‘xUI-lkUJNh-‘OKOOOQQUl-RWNF-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 49 of 51 THIRTY-FOURTH AFFIRMATIVE DEFENSE (Justification) 34. Defendant’s alleged conduct, as set forth in Plaintiff's Complaint and each 0f its purported causes 0f action, was fully justified. THIRTY-FIFTH AFFIRMATIVE DEFENSE (Speculative Damages) 35. As t0 each and every cause of action set forth in Plaintiff’s Complaint, Defendant is informed and believes, and based thereon alleges, that the damages prayed for are speculative and unforeseeable, and, therefore, Plaintiff is barred from recovery. THIRTY-SIXTH AFFIRMATIVE DEFENSE (Uniust Enrichment) 36. As t0 each and every cause 0f action set forth in Plaintiff s Complaint, Defendant is informed and believes, and based thereon alleges, that granting Plaintiff’s prayer for relief would unjustly enrich Plaintiff, as Plaintiffwould be receiving more than to Which he is entitled. THIRTY-SEVENTH AFFIRMATIVE DEFENSE (Attornevs’ Fees and Costs) 37. Defendant has engaged attorneys t0 represent it in defense of Plaintiff s frivolous, unfounded and unreasonable action, and Defendant is thereby entitled to an award of reasonable attorneys” fees and costs pursuant t0 California Government Code § 12965 upon judgment thereon in its favor. THIRTY-EIGHTH AFFIRMATIVE DEFENSE (Additional Defenses) 38. Defendant hereby gives notice that it intends to rely upon any other defenses that may become available or appear during the discovery proceedings in this case, and hereby reserves the right t0 amend its answer to assert any such defenses. WHEREFORE, Defendant respectfully requests that: 1. Plaintiff take nothing by his Complaint; -9- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \OOOQQUl-bUJNr-t NNNNNNNNNr-tt-tr-tr-tr-tr-tr-KHr-tr-t OOQONUIAWNHOKOOOQQUIJ>WNHO Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 50 0f 51 2. Judgment be entered in favor of Defendant and against Plaintiff on all causes of action; 3. Defendant be awarded costs 0f arbitration and attorneys” fees herein; and 4. For such other and further relief as the Court deems just and proper. DATED: March 24, 2021 EPSTEIN BEGK ffiC. By= m I; ' ' )flifihael S. Kukk Attorneys for Defendant ALLEGIS GROUP, INC. -10- Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT \DOOQGUI-PUJNH NNNNNNNNNr-tr-tr-tr-tr-tr-tr-tr-tr-tr-t OOQQUl-PUJNr-‘OKOOOQQUI-PUJNr-‘O Case 3:21-cv-02065 Document 1 Filed 03/24/21 Page 51 of 51 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1. At the time of service I was at least 18 years of age and not a party t0 this legal action.‘ 2. My business address is 1925 Century Park East, Suite 500, Los Angeles, CA 90067.‘ 3. I served copies 0f the following documents (Specify the exact title ofeach document served): DEFENDANT ALLEGIS GROUP, INC.’S ANSWER TO PLAINTIFF’S COMPLAINT 4. I served the documents listed above in item 3 on the following persons at the addresses listed: Young K. Park, Esq. Attorneysfor Plaintiff Brent P. Marlis, Esq. DINH CUONG NGUYEN MARLIS PARK, P.C. 3600 Wilshire B1Vd., Suite 1815 Los Angeles, CA 90010 T: (323) 922-2000 | F: (323) 922-2000 E: young@marlispark.com brent@marlispark.com Dylan B. Carp, Esq. Attorneysfor JACKSON LEWIS P.C. CARDINAL HEALTHYNC 50 California Street, 9th Floor San Francisco, CA 941 11 T: (415) 796-5425 E: dylan.carp@jacksonlewis.com 5. a. By e-mail 0r electronic transmission. Pursuant to the Judicial Council 0f California’s COVID-19 Emergency Rule 12 adopted effective on April 17, 2020, I caused the documents to be sent on the date shown below to the e-mail addresses of the persons listed in item 4. I did not receive within a reasonable time after the transmission any electronic message or other indication that the transmission was unsuccessful. 6. I served the documents by the means described in item 5 on (date): March 24, 2021. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 03/24/21 Jov Ingoglia _ , DATE [TYPE 0R PRlNT NAME) @Aiama OEPECEARANT)’ -fl1_ £Firm:52577423v1 DEFENDANT’S ANSWER TO PLAINTIFF’S COMPLAINT Vega, Belinda (San Francisco) From: ECF-CAND@cand.uscourts.gov Sent: Wednesday, March 24, 2021 5:22 PM To: efiling@cand.uscourts.gov Subject: Activity in Case 3:21-cv-02065 Nguyen v. Allegis Group, Inc. et al Notice of Removal [EXTERNAL SENDER] This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE T0 PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. U.S. District Court California Northern District Notice of Electronic Filing The following transaction was entered by Carp, Dylan on 3/24/2021 at 5:22 PM and filed on 3/24/2021 Case Name: Nguyen v. Allegis Group, Inc. et al Case Number: 3:21-cv-02065 Filer: Cardinal Health, Inc. Document Numberzl Docket Text: NOTICE OF REMOVAL from Santa Clara County Superior Court. Their case number is 21CV376180. (). Filed byCardinal Health, lnc.. (Attachments: # (1) Declaration, # (2) Declaration, # (3) Civil Cover Sheet)(Carp, Dylan) (Filed on 3/24/2021) 3:21-cv-02065 Notice has been electronically mailed to: Dylan B. Carp carpd@jackson|ewis.com, belinda.vega@jacksonlewis.com, dylan-carp-5044@ecf.pacerpro.com, SanFranciscoDocketing@JacksonLewis.com 3:21-cv-02065 Please see Local Rule 5-5; Notice has NOT been electronically mailed to: Dinh Cuong Nguyen The following document(s) are associated with this transaction: Document descriptionzMain Document Original filename:C:\fakepath\1 Removal - Notice -- Cardinal Health, |nc..pdf Electronic document Stamp: [STAMP CANDStamp_ID=97733613O [Date=3/24/2021] [FileNumber=17918346-O] [642b92a9d3e140f5bcde21f1d40a4f2444b44a2cec90e6ca5e779ac3aca0e517db09 a7edb0903501cf1965bad5bc9270f4c011c5614672e79805a2e7bfc4025c]] Document description:Declaration Original filename:C:\fakepath\2 Removal - Declaration of Laura Garza.pdf Electronic document Stamp: [STAMP CANDStamp_ID=977336130 [Date=3/24/2021] [FileNumber=17918346-1] [7fc0350d467fe9506a7b4f62a1d946e0a5bebc72663c4196931338bc2bc84838405d c800baefce476356e0927b94fa17c9e2fc1133cec41083e826428b97bce7]] Document description:Declaration Original filename:C:\fakepath\3 Removal - Declaration of Carp.pdf Electronic document Stamp: [STAMP CANDStamp_ID=97733613O [Date=3/24/2021] [FileNumber=17918346-2] [2de8d6c9b8ddde7c16d9d77f2a04a660bea5743cafc133b79c9fde533d73489fbcac 86f9610cbad58f7d16def08364a5f7d7a56f84e57679a560a87673e03b75]] Document description:Civi| Cover Sheet Original filename:C:\fakepath\4 Removal - Civil Cover Sheet.pdf Electronic document Stamp: [STAMP CANDStamp_ID=97733613O [Date=3/24/2021] [FileNumber=17918346-3] [47d3dabce35415d2f3d9858ed6b7f00c4d68792c9839fa37739bbcac3a87fc359be7 3817f79a5ca3daf016869cc9ae6db3ce91ddcdfe4a769afc51df5c610793]] QONUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE [CCP S 1010.6(2), CRC Rule 2.253(b)(1)(A) and General Rule 6] I, Belinda Vega, declare that I am employed with the law firm 0f Jackson Lewis P.C., Whose address is 50 California Street, 9th Floor, San Francisco, California 941 1 1-4615; I am over the age of eighteen (18) years and am not a party to this action. On March 30, 2021, I caused t0 be e-served the attached NOTICE OF REMOVAL TO STATE COURT AND ADVERSE PARTIES in this action by uploading a true and correct copy thereof, in PDF format, for electronic filing and service by First Legal (a court-approved Electronic Filing Service Provider), pursuant to General Rule 6. Said document t0 be filed With the Court and e-served 0n counsel 0f record, Whose contact information is as follows: Young K. Park, Esq. Michael S. Kun, Esq. Brent P. Marlis, Esq. Epstein Becker & Green, P.C. Marlis Park, P.C. 1925 Century Park E., Ste. 500 3600 Wilshire B1Vd., Ste. 1815 Los Angeles, CA 90067-2706 Los Angeles, CA 90010-2632 Tel.: (3 10) 556-8861 Tel./Fax: (323) 922-2000 Fax: (3 10)-553-2165 E-mails: young@marlispark.com E-mail: mkun@ebglaw.com brent@marlispark.com Attorneys for Defendant Attorneys for Plaintiff ALLEGIS GROUP, INC. DINH CUONG NGUYEN I declare under penalty of perjury, under the laws of the State of California, that the above is true and correct. Executed on March 30, 2021, at San Francisco, California. FEM 9m Belinda VegaO 4842-5949-7443, V. 1 Proof of Service Case N0. 21CV376180