Complaint Unlimited Fee AppliesCal. Super. - 6th Dist.March 2, 2021lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 E-FILED 3/2/2021 2:47 PM - Clerk of Court Tlega-Noel Varlack, Esq. (SBN 248203) . VARLACK LEGAL SERVICES SUperlor Court 0f CA, 225 W. Winton Avenue, Suite 207 County Of Santa Clara Hayward, CA 94544 21 CV378994 Telephone: 510-397-2008 - . - Fax: 510_397_2997 ReVIewed By. D Harris E-mail: tiega@varlacklegal.com Attorney for Plaintiff SHAWN ROBERTSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ) Case No.2 21 CV378994 SHAWN ROBERTSON 3 3 COMPLAINT FOR DAMAGES Plaintiff; g 1. Retaliation VS. ) 2. Wrongful Termination in Violation of ) Public Policy ) 3. Breach 0f Contract LUCILLE SALTER PACKARD 3 4. Failure to Pay Overtime/Mealtime Penalties CHILDREN’S HOSPITAL AT STANFORD ) 5. Waiting Time Penalties ) 6. Unfair Competition and DOES 1 through 10, inclusive ) Defendants g JURY TRIAL DEMANDED )) Shawn Robertson (“Plaintiff”), an individual, by and through his undersigned attorney brings this action against Defendant Lucille Salter Packard Children’s Hospital at Stanford (“Defendant,” “Employer,” “Lucille Packard”) for retaliation, wrongful termination, breach of contract, failure t0 pay meal and overtime wages, waiting time penalties and Unfair Competition. Plaintiff complains and alleges as follows. I. THE PARTIES 1. Plaintiff is and at all times mentioned herein was a resident ofAlameda County, State 0f California. 2. Defendant Lucille Packard is a domestic nonprofit operating Within the county 0f Santa Clara, in the state of California With their place of operation located at 725 Welch Road PLAINTIFF’S COMPLAINT FOR DAMAGES-l lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 in Palo Alto. Many of the acts complained 0f herein took place Within the above- captioned judicial district. Lucille Packard is incorporated in the state of California. . Plaintiff is ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 10, inclusive, and therefore sues them by such fictitious names. Plaintiff will amend this complaint t0 allege the true names and capacities 0f said Defendants when the same has been ascertained. Plaintiff is informed and believes and thereon alleges that each 0f the fictitiously named Defendants is responsible in some manner for the acts complained of herein. Unless otherwise stated, all references to named Defendants shall include the Doe Defendants as well. II. JURISDICTION AND VENUE . Jurisdiction and venue as t0 Defendants is proper in this judicial district, pursuant to Code of Civil Procedure section 395(a). Defendant resides in Santa Clara County and is otherwise within this Court’s jurisdiction for purposes of service of process. This Court has jurisdiction over Plaintiff” s claims pursuant to California Government Code Section 12965. Venue is proper in this Court because, pursuant t0 Section 12965, the unlawful practices are alleged t0 have taken place in Santa Clara County, California. III. FACTUAL ALLEGATIONS . Mr. Robertson was hired on April 13, 1998 as an engineer in Plant Operations and Motivations at Lucille Packard. His job duties required him t0 maintain operation 0f building, mechanical, and utility systems at the Hospital. . From his date 0f hire until his termination from employment, Mr. Robertson did not have any trouble performing his duties and responsibilities as a maintenance engineer. On 0r about May 22, 2017, Mr. Robertson raised a complaint With Assistant Chief Engineer Ray McMorris and Administrative Director Mick Zader regarding Master Electrician Christian Alvarado addressing Mr. Robertson in an unprofessional manner and then threatening physical altercation. Mr. Alvarado’s conduct and Lucille Packard’s silence was in Violation 0f Labor Code Section 6300 et. seq., and Federal OSHA regulations. PLAINTIFF’S COMPLAINT FOR DAMAGES-2 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. On June 19, 2017, Chief Engineer Paul Bonitz prepared an official letter investigating Mr. Robertson’s complaint where he insured that the appropriate action has been taken based 0n the findings of the investigation, although Mr. Bonitz stated he was unable to confirm the details 0f the actions taken as a result of the investigation. Plaintiff believed that the matter would resolve so he continued t0 work as usual. Mr. Alvarado was eventually fired but this did not resolve the issues that Robertson continued t0 experience with his meal breaks. In sum, he was not given breaks and instead was asked to take “penalty pay,” instead of lunch almost daily. The matter was not resolved and after Mr. Robertson complained about it, Defendant’s attitude towards him completely changed. Then 0n April 3, 2018 Robertson was issued What Defendant coined a “written warning for misconduct.” Robertson believed that this was done in reprisal for his report of workplace Violence. In an unrelated matter, Robertson was the subject of a workplace investigation based on an alleged inappropriate comment he made to a staff member, when he allegedly asked her out 0n a date. In Robertson’s mind, his actions had been under a microscope since 2017, When he reported workplace Violence and when he complained that he was not allowed to take state mandated meal and rest breaks during his shifts, which were routinely at least eight and a half hours in length. On June 8, 2020, Mr. Robertson was terminated from his employment at Lucille Packard for allegedly Violating the LPCHS Harassment, Discrimination, and Retaliation Prevention Policy. On the day of his termination Mr. Robertson did not receive his final check. He did not receive his final check until June 12, 2020, four (4) days after his termination. Robertson began t0 experience depression and physical pain, Which persists as he has been unable t0 find work. PLAINTIFF’S COMPLAINT FOR DAMAGES-3 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. IV. FIRST CAUSE OF ACTION Defamation 0f Character Plaintiff hereby incorporates by reference the foregoing paragraphs, as though fully set forth herein. The essential elements to pleading a claim for defamation under California law are: (a) Intentional publication of a fact that was false; (b) Statement is unprivileged; and (c) statement has a natural tendency to injure or which causes special damages. In late May 2020 Defendants agents published false statements that injured plaintiff. Specifically, they said out loud and later reduced t0 writing the following untrue statements: Robertson broke into another co-W0rker, Vanessa Vaca’s locker; Robertson followed Vaca in elevators and hallways; and Robertson made suggestive comments t0 Vaca. These statements were in fact false. The statements were not privileged, and it had a natural tendency to injury because it implied that plaintiffwas unfit for his occupation. Between June 6 and 7 2020, Robertson looked into his job assignments and noticed that his preventative maintenance jobs were missing from his work que, so he became concerned. Plaintiff contacted Donald Andrzejewski (“Don”) his immediate supervisor and advised him that if he were t0 be fired for false statements that he would seek legal counsel to protect his character, honor, and truth. When plaintiff reported t0 work 0n Monday June 8, Don approached him and said that we need t0 walk over t0 Mick Zader’s office. Zader was the Director of General Services. When plaintiffwas told by Zader that he was fired, plaintiff told him that the statements made about him were false and that he would seek legal counsel. Zader replied, that “I know everyone in the hospital industry in this area,” While peering ominously at plaintiff. PLAINTIFF’S COMPLAINT FOR DAMAGES-4 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 30. 31. 32. 33. 34. 35. 36. Since then, plaintiff has been unable t0 find another job. V. SECOND CAUSE OF ACTION Retaliation in Violation of Labor Code Section 1102.5 Plaintiff hereby incorporates by reference the foregoing paragraphs, as though fully set forth herein. In Violation of California Labor Code Section 1102.5 et seq., Defendant retaliated against Plaintiff for reporting Workplace Violence and for complaining that he had t0 take penalty pay instead of being allowed to take his state mandated meal and rest breaks. Within weeks of Robertson complaining about his safety Which his concerns had been ongoing and the failure t0 be allowed his breaks, Plaintiffwas terminated from employment With Defendant under the guise of an investigation into his alleged “harassment” of a coworker. The truth was, he never harassed anyone, he asked someone out for coffee on his break, that he was able to take, and she said n0. By reason 0f the conduct 0f Defendants and each of them as alleged herein, Plaintiff has necessarily retained attorneys t0 prosecute the Within action. Plaintiff is therefore entitled t0 reasonable attorney’s fees and litigation expenses, including expert witness fees and costs, incurred in bringing the within action. As a result 0f Defendants and each of their actions, Plaintiff sustained economic damages t0 be proven at trial. As a further result 0f Defendants and each 0f their actions, Plaintiff suffered emotional distress, resulting in damages t0 be proven at trial. The conduct of Defendants and of their agents and/or employees as described herein was malicious, and/or oppressive, and done with a willful and conscious disregard for Plaintiff s rights and for the deleterious consequences of Defendants’ actions. Defendants and their agents and/or employees 0r supervisors authorized, condoned, and ratified the unlawful conduct against Plaintiff. Consequently, Plaintiff is entitled t0 punitive damages against Defendants. PLAINTIFF’S COMPLAINT FOR DAMAGES-S lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 37. 38. 39. 40. 41. 42. Despite Defendants’ actual or constructive knowledge of the above-mentioned retaliation, and the knowledge of Defendant’s supervisors and agents, each Defendant failed to take immediate and appropriate corrective action to stop the retaliation. Furthermore, before the retaliation occurred, Defendant failed t0 take all reasonable steps t0 prevent such retaliation from occurring. As a direct and proximate result 0f Defendants’ conduct, Plaintiff has suffered general damages in an amount t0 be determined by proof at trial. Defendants’ conduct was done knowingly, willfully, and with malicious intent, and in blatant Violation 0f Californian Law; as such, Plaintiff is entitled to punitive damages in amount to be determined by proof at trial. Wherefore, Plaintiff requests relief as set forth below. VI. THIRD CAUSE OF ACTION Wrongful Termination in Violation 0f Public Policv Plaintiff hereby incorporates by reference the foregoing paragraphs, as though fully set forth herein. Plaintiff’ s wrongful termination from his employment with Defendant was based upon Defendant’s Violation 0f the Public Policy of the State of California as put forward in the Fair Employment Housing Act, the California Constitution, and other statutes and provisions. As a proximate result of Defendant’s wrongful acts, Plaintiff has suffered and continues t0 suffer substantial monetary losses incurred and has suffered and continues t0 suffer emotional distress in an amount according to proof at the time 0f trial. Defendants, and each 0f them, did the acts alleged herein maliciously, fraudulently and oppressively, with the wrongful intent to injure Plaintiff, from an improper and evil motive amounting t0 malice, and in conscious disregard of Plaintiff s rights. The acts alleged herein were known to, authorized, and ratified by Defendants. Plaintiff is therefore entitled t0 recover punitive damages from Defendants and each 0f them, in an amount according t0 proof at the time of trial. Wherefore, Plaintiff requests relief as set forth below. PLAINTIFF’S COMPLAINT FOR DAMAGES-6 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 43. 44. 45. 46. 47. 48. 49. 50. 51. VII. FOURTH CAUSE OF ACTION Breach 0f Contract Plaintiff hereby incorporates by reference the foregoing paragraphs, as though fully set forth herein. Plaintiff entered in an employment contract With Defendant. Defendant agreed t0 pay plaintiff s hourly wages on an average 40-hour work week excluding overtime. The existence of the employment contract was evidenced by several pay stubs from the Defendant t0 Plaintiff. Plaintiff has at all times performed the terms of the contract Which in essence required that he provide his labor in return for the agreed upon wages. Plaintiff was employed by Defendant for twenty-two (22) years, consistently received either good 0r excellent performance evaluations, and merit raises, and was assured on numerous occasions that he was doing a good job. Plaintiff relied on these assurances; t0 conclude that Plaintiff and Defendant had entered into an implied contract that Plaintiff would not be discharged unless there was good cause t0 d0 so. Based on the oral representations and promises 0f Defendants, and/or conduct of Defendant, Plaintiffhad an employment contract with Defendant that Defendant would employ him so long as his performance was satisfactory, and that Defendant would not discharge him Without good and just cause. The terms of the employment contract included, but were not limited to, the following: Defendant would not demote, discharge, or cause Plaintiff to lose any 0f his benefits without good cause and fair warning, based on obiective reasonable iob evaluations 0f Plaintiff. Plaintiff at all times fulfilled his duties and conditions under the contract and has been ready, Willing, and able t0 continue performing them in a competent and satisfactory manner. Notwithstanding the implied promise to terminate the employment contract only for good cause, 0n 0r about On June 8, 2020, Defendant terminated Plaintiff’s employment on the PLAINTIFF’S COMPLAINT FOR DAMAGES-7 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 52. 53. 54. 55. 56. 57. 58. alleged ground of a Violation of policy, even though plaintiff had received consistently good performance evaluations prior and had consistently reported to work before his termination. Defendant’s failure and refusal t0 perform its obligation under the contract has damaged Plaintiff in the following manner, he was deprived 0f the benefit 0f his bargain in that he lost his job in retaliation for reporting Workplace Violence and for complaining that he had to take penalty pay instead 0f being allowed to take his state mandated meal and rest breaks. As a proximate result of Defendant’s breach of the employment contract, Plaintiff has suffered and continues to suffer losses in earnings and other employment benefits, to his damage in an amount t0 be established at trial. Wherefore, Plaintiff requests relief as set forth below. VIII. FIFTH CAUSE OF ACTION Failure t0 Provide Mandated Meal and Rest Periods Plaintiff re-alleges each paragraph 0f this Complaint as though fully set forth. Defendant failed to maintain a policy 0f providing meal breaks as required by Labor Code §§ 226.7 and 512. Defendant also failed t0 provide Plaintiff With a 10-minute rest period for each work period that was four hours or a major portion thereof. Since at least three years prior to filing this action, Plaintiff has worked in excess of five hours and at times ten hours a day Without being provided at least halfhour meal periods in Which he was relieved of his duties, as required by Labor Code §§ 226.7 and 512. Because Defendant failed t0 provide proper meal periods and rest breaks, it is liable t0 Plaintiff for one hour of additional pay at the regular rate of compensation for each workday that his meal break was not provided, and an additional hour of regular pay at the regular rate of compensation for each workday that his rest break was not provided as well as interest thereon. Wherefore, Plaintiff requests relief as set forth below. PLAINTIFF’S COMPLAINT FOR DAMAGES-8 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 59. 60. 61. 62. 63. 64. 65. 66. IX. FIFTH CAUSE OF ACTION Failure to Pav Compensation due Upon Termination. Labor Code 88 201-203 Plaintiff re-alleges each paragraph of this Complaint as though fully set forth. California Labor Code §§ 201 and 202 require Defendant to pay all compensation due and owing to Plaintiffupon discharge or within 72 hours of his termination of employment. California Labor Code § 203 provides that if an employer willfully fails to pay compensation promptly upon discharge or resignation, as required by Sections 201 and 202, then the employer is liable for such “waiting time” penalties in the form 0f continued compensation up to thirty workdays. Defendant willfully failed to pay PlaintiffWho is no longer employed by Defendant compensation due upon termination as required by California Labor Code §§ 201 and 202. As a result, Defendant is liable to Plaintiff for waiting time penalties provided under § 203, plus reasonable attorney’s fees and costs of suit. Wherefore, Plaintiff requests relief as set forth below. X. SIXTH CAUSE OF ACTION Unfair Competition Plaintiff re-alleges each paragraph of this Complaint as though fully set forth. Defendant’s conduct as alleged in this Complaint has been and continues t0 be unfair, unlawful, and harmful to Plaintiff. Plaintiff seeks t0 enforce important rights affecting the public interest within the meaning 0f California Code 0f Civil Procedure Section 1021.5. California Business & Professions Code Section 17200, et seq., prohibits acts of unfair competition, which means and includes any “fraudulent business act 0r practice . . .” and conduct Which is “likely to deceive” and is “fraudulent” Within the meaning of Section 17200. California wage and hour laws express fundamental public policies. Properly providing employees with wages earned is a fundamental public policy of the State and 0f the PLAINTIFF’S COMPLAINT FOR DAMAGES-9 lO ll 12 13 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 67. 68. 69. 70. 71. United States. Since plaintiff started in 1998, defendant failed to uphold the law. Sometime in 2012, defendant paid Larry Hicks $30,000.00 in meal break penalties in accordance with newly enacted California state law. This was “hush money” because defendant failed t0 pay any other stationary engineer for working the same hours without a break. Since then, plaintiff has still not received his meal and rest break penalties in filll. But, more importantly, he was still not allowed t0 take proper meal and rest breaks up until his termination. In fact, defendant only staffed one engineer per shift, so this made it impossible for anyone to take their state mandated breaks. Labor Code § 90.5(a) articulates the public policies 0f this State to enforce vigorously all minimum labor standards, to ensure that employees are not required 0r permitted t0 work under substandard and unlawful conditions, and t0 protect law-abiding employers and employees from competitors who lower their costs by failing to comply with minimum labor standards. As more fully described above, Defendant’s acts and practices are likely to deceive, constituting a fraudulent business act 0r practice. This conduct is ongoing and continues t0 this date. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and practices of the Defendants, Plaintiff and California consumers have suffered and will continue t0 suffer damages in the form 0f loss of benefits and unpaid wages. By reason of the foregoing, the Defendants have been unjustly enriched and should be required t0 disgorge their illicit profits and/or make restitution t0 Plaintiff and other California consumers Who have been harmed, and/or be enjoined from continuing in such practices pursuant t0 California Business & Professions Code §§ 17203 and 17204. Additionally, Plaintiff is therefore entitled to injunctive relief and attorney’s fees as available under California Business and Professions Code § 17200. PLAINTIFF’S COMPLAINT FOR DAMAGES- 1 0 lO ll 12 l3 l4 15 l6 l7 l8 l9 20 21 22 23 24 25 26 27 28 XI. RELIEF WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: 1. For damages for breach of contract according to proof, including lost earnings and other employee benefits, past and future; 2. for compensatory damages according t0 proof, including lost earnings and other employee benefits, costs of seeking other employment, and damages for emotional distress, humiliation and mental anguish; 3. for a waiting time penalty for 30-days as per California Labor Code, Section 203; 3. for interest on lost earnings and benefits at the prevailing legal rate from June 8, 2020; 4. for punitive damages in an amount appropriate to punish Defendant and deter others from engaging in similar misconduct; 5. for reasonable attorney's fees incurred by Plaintiff; 6. for costs 0f suit incurred by Plaintiff; and any other remedies that the court deems appropriate. DATED: January 25, 2021 VARLACK LEGAL SERVICES By: (‘fi/Dj/ . 4:;7/‘77é# Tiega-Noel Varlack Attorney for Plaintiff Shawn Robertson XII. DEMAND FOR JURY TRIAL Plaintiff demands a jury trial. DATED: January 25, 2021 VARLACK LEGAL SERVICES Q/h/WQ' ¢- Tiega-Noel Varlack Attorney for Plaintiff Shawn Robertson By: PLAINTIFF’S COMPLAINT FOR DAMAGES-ll