Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.March 29, 2021

10 11 12 13 14 15 16 1'7 18 l9 20 21 22 23 24 25 26 2'7 28 E-FILED 3/29/2021 4:32 PM Clerk of Court Noel D. Hibbard SBN: 226425 Super'or Court 0f CA, LAW OFFICES 0F NOEL HIBBARD County 0f Santa Clara 2099 Lincoln Ave Ste 202 21 CV381 436 san Jose, CA 95125 Reviewed By: M Vu (408) 294-9100 (408) 228-8979 Fax Attorney for Plaintiff MICHELLE GARCIA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY 0F SANTA CLARA UNLIMITED CIVIL JURISDICTION MICHELLE GARCIA i Case No.: 21 CV331 436 Plaintiffs, ASSIGNED FOR ALL PURPOSES T0: ) HON. VS- g COMPLAINT FORDAMAGES FAMILY EYE CARE CENTER, PETER l.) Wrongful Termination/Disability ROSS, LARRY WAN and DOES 1-30, Discrimination/Retaliation, violation Inclusive of Cal. Gov Code § 12940 (a),’ Defendants Violation of Fair Employment and Housing Act (FEHA); 2.) Failure to prevent Discrimination and Harassment and Retaliation 3.) Failure to Engage in the Interactive Process Govt Code § 12940 et seq. 4.) Wrongful termination in Violation of Public Policy 5.) Failure to Accommodate Cal. Gov Code § 12940 et seq, Gov. Code § 12926 et seq. violation of Cal. Code Regs., Title 2 § 7293.9 6.) Unfair Business Practices PLAINTIFF DEMANDS JURY TRIAL Plaintiff, MICHELLE GARCIA, brings this action against defendants, FAMILY EYE CARE CENTER, and alleges as follows: - 1 .. GARCIA v. FAMILYEYE CARE et a1 Complaint for Damages 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JURISDICTION AND VENUE 1. This court has jurisdiction over this action and Defendants pursuant to California Code of Civil procedure §410.10. This is a civil action wherein the matter in controversy, exclusive of interest and costs, exceeds the jurisdictional minimum of the Court. Defendants, during times relevant to this action, have conducted substantial, systematic and continuous commercial activities in California. 2.Venue is proper in this judicial district pursuant to California Code of Civil Procedure §§ 395 (a) and 3955 as at least some of the acts and omissions complained of in this action occurred in the county of Santa Clara in the State of California. Defendants had its principal place ofbusiness in Santa Clara County. The Defendants own property, maintains an office, transact business, engage in financial operations, has an agent or agents within the County of Santa Clara, and/or is otherwise found within the county of Santa Clara, and the defendants arc within the jurisdiction of this Court for purposes of service of process. PARTIES 3. Plaintiff, MICHELLE GARCIA (hereinafier “Plaintiff’) was employed by Defendant FAMILY EYE CARE CENTER to perform services for a wage. Plaintiff is of lawfi11 age and resides in Santa Clara County. PlaintiffMICHELLE GARCIA was employed by defendants beginning in or around May 13, 2020 and was terminated on or about October 21, 2020. 4. Defendant, FAMILY EYE CARE CENTER (hereinafter “EYE CARE”) is and at all relevant times herein was a business within the county of Santa Clara that employed plaintiff for wages whose form of organization is unknown. On information and beliefPETER ROSS and LARRY WAN are owners, managers, partners ofFAMILY EYE CARE CENTER. At all relevant times, as alleged more fully herein, each Defendant acted as an agent, servant, employee, co- _ 2 ._ GARCIA v. FAMILYEYE CARE. et aI Complaint for Damages 10 11 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 conspirator, alter-ego and/or joint venture of the other Defendants, and in doing the things alleged herein acted within the course and scope of such agency, employment, alter-ego and/or in furtherance of the joint venture. 5. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants named herein as DOES 1 through 3O inclusive, are unknown to Plaintiffs, who therefore sue these Defendants by such fictitious names. Plaintiffs are informed and believe, and thereon allege, that each of the Defendants designated herein as a DOE is legally responsible in some manner for the acts and omissions herein alleged, and legally and proximately caused injury and damage to Plaintiffs as hereinafter alleged. 6. Except as herein otherwise specifically alleged, Plaintiff is informed and believes, and thereon alleges, that at all relevant times mentioned herein, each of the Defendant DOES 1 through 30, were owners, operators, managers, subsidiaries of, or owned entities of Defendant, and each of them, or persons otherwise responsible for paying the wages and/or penalties alleged herein. 7.Whenever in this complaint reference is made to any act or omission of Defendant, such act or omission shall be deemed the act or omission of each Defendant, acting individually, jointly and severally. 8.Whenever in this complaint reference is made to any act or omission of a corporate Defendant, such allegation shall be deemed to mean that corporate Defendant, its officers, directors, agents, employees and representatives did or authorized such act or omission while engaged in the management, direction and control of the affairs of that corporate Defendant, and while acting within the court and scope of their agency and employment. _ 3 _ GARCIA v. FAMILYEYE CARE, et al Complaint for Damages 10 11 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 PRE-LITIGATION COMPLAINTS. CLAIM FILINGS. AND DISPOSITIONS (FEHA) 9.Plaintiff has exhausted her administrative remedies under the California Employment and Housing Act (FEHA). 0n or about Mach 28, 2021, Plaintiff, MICHELLE GARCIA, filed the charges of discrimination based on disability and termination, denial of a workplace fiee of discrimination, and retaliation against Defendants and DOES 1-3 0, and in thereto, the Department of Fair Housing and Employment issued the Notice of Case Closure/Right to Sue letter. Attached hereto are copies of Plaintiff, MICHELLE GARCIA’S Notice of Filing of Discrimination Complaint, Complaint of Employment Discrimination and Notice ofCase Closure and Right to Sue, dated March 28, 2021, as Exhibit “A”. FACTUAL ALLEGATIONS 10. In or about May 13, 2020, Plaintiff, MICHELLE GARCIA’S employment began with Defendants as a receptionist and continued until on or about October 21, 2020 when she was terminated. ll. At all times relevant hereto, and during the entire period of Plaintiff’s employment with Defendant, FAMILY EYE CARE CENTER, Plaintiff regularly worked over eight hours per day/forty hours per week. 12. On or about July 18, 2020, plaintiff tested positive for COVID-19. Plaintiff promptly notified defendants of the positive test. 0n information and beliefplaintiff believes she contracted COVID while on the job. Defendants failed to provide the DWC-l form within 24 hours of the _ 4 _ GARCIA v. FAMILYEYE CARE. et al Complaint for Damages 10 ll 12 13 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 diagnosis and failed to provide treatment through workers’ compensation as required by Labor Code Section 3700 et seq and Labor Code Section 6409.6. 13. On or about July 16, 2020 plaintiff slipped and fell down some stairs while working sustaining physical injury to her knees and back. Plaintiff promptly reported her work injury and requested treatment. Defendants again failed t0 provide the required DWC-l form within 24 hours of her work place injury, failed to provide workers compensation insurance information and failed to refer plaintiff to a workers’ compensation medical provider. 14. On or about September 21, 2020, plaintiff reported to her employer that she needed to take some sick leave for her daughter who was ill in the hospital. Plaintifftook approximately 2 weeks off to care for her daughter. 15. At all relevant times defendants were fully aware of plaintiff’s on the job work injuries. Defendants failed to provide the required DWC-l form within 24 hours as required by law and defendants failed to send plaintiff to an authorized doctor within the Medical Provider Network of Workers’ Compensation. 15. Defendants’ failed to engage in any interactive process with plaintiffregarding her on the job injury and/or disability. 16. On October 21, 2020 defendants’ terminated plaintiff’s employment. Plaintiff was informed that the reason for her termination was that her employment was “at will.” - 5 _ GARCIA v. FAMILYEYE CARE et al Complaint for Damages 10 ll 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 2'7 28 FIRST CAUSE OF ACTION (Wrongful Termination/Disability/FEHA) (Violations of: California Government Code §§ 12940(a) et seq; 12926 et seq) (Against all Defendants and all applicable DOES 1-30.) l7. Plaintiff, MICHELLE GARCIA, re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 18. On or about October 21, 2020, Plaintiff, MICHELLE GARCIA, was fired by Defendants. PlaintiffMICHELLE GARCIA is informed and believes and thereupon alleges that Defendants discharged Plaintiff due her injuries/disability. 19.At all times relevant hereto, Plaintiff, MICHELLE GARCIA, was a full time employee, subject to the laws of the State of California, as set forth in the Government Code, and was covered under one or more statutes and Regulations of Fair Employment and Housing Act (FEHA). 20.Plaintiff, MICHELLE GARCIA, is informed and believes and on that basis alleges that the Fair Employment and Housing Act (FEHA) protects the right of individuals to seek, obtain, and hold employment without discrimination on the basis of race, national origin, or disability. 21 .Plaintiff, MICHELLE GARCIA, is informed and believes and thereupon alleges that the actions of defendants are in violation of Government Code Section 12940 which states, in part: “12940. It is unlawful employment practice. . .(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person fiom employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges ofemployment.” - 5 _ GARCIA v. FAMILYEYE CARE et a1 Complaint for Damages 10 ll 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 22. Defendants acted and failed to act, as alleged hereinabove, in such manner that defendants treated Plaintiff, MICHELLE GARCIA, less favorably than others holding a position of employment with Defendant, FAMILY CARE due to her on the job injury and disability. Defendants perceived Plaintiff, MICHELLE GARCIA, as a nuisance and “unable” to perform her work. On or about October 21 , 2020, Defendant, FAMILY EYE CARE CENTER and their agents took retaliatory action and fired PlaintiffMICHELLE GARCIA. 23.At all times relevant herein, Defendant FAMILY EYE CARE CENTER knew or should have known, through its agents and DOES 1-30, of the discriminatory conduct against Plaintiff, MICHELLE GARCIA and failed to take corrective measures within its control. 24. Defendant FAMILY EYE CARE CENTER’S discriminatory conducts, by and through the acts of its authorized agent, against Plaintiff, MICHELLE GARCIA, constituted unlawful discrimination, and retaliation in employment on account of Plaintiffs perceived disability a violation of California Government Code §§ 12940, et seq. 25.Defendant FAMILY EYE CARE CENTER’S conduct would seriously affect the emotional wellbeing of any reasonable employee and did in fact interfere with and create such emotional harm to PlaintiffMICHELLE GARCIA. 26.As a direct, foreseeable, and proximate result of Defendant FAMILY EYE CARE CENTER’S acts, as hereinabove alleged, Plaintiff, MICHELLE GARCIA suffered injuries and damages in an amount, which will be proven at trial. 27.Defendant, FAMILY EYE CARE CENTER committed the acts described herein oppressively, fraudulently, and maliciously, entitling Plaintiff, MICHELLE GARCIA, to an award of punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants. Indeed, discriminatory acts and harassment were done through Defendant FAMILY EYE - 7 _ GARCIA v. FAMILYEYE CARE, et al Complaint for Damages 10 11 12 13 l4 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 CARE CENTER’S managing agents (who were acting pursuant to Defendant EYE CARE CENTER’S directions) WHEREFORE, Plaintiff prays for judgment as hereinafier set forth. SECOND CAUSE OF ACTION (Failure to Prevent Discrimination and Harassment and Retaliation) (Violation of Cal. Gov. Code §12940, et seq.) (Against all defendants and all applicable DOES 1-30.) 28. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 29. Defendants as the employer of Plaintiff had an affirmative duty to take all reasonable steps necessary to prevent discrimination on the basis of disability. 30.Defendants thIough their agents took punitive actions against plaintiff for reporting the work injury. 3 1. Defendants by and through its agents failed to take any reasonable actions to end retaliation against plaintiff. By doing so, Defendants by and through its agents and DOES 1-30 participated, encouraged and allowed the retaliation and participated and encouraged the conduct. 32. Defendants breached its affirmative duties to take all reasonable steps necessary to prevent and object to discrimination after learning that discrimination was going on by failing to take any reasonable actions to end the conduct, as alleged herein above, and/or participating and encouraging the conduct by ignoring Plaintiff’s complaints. 33 .As a direct, foreseeable, and proximate result of Defendants pattern of conduct, by and through its agents and DOES 1-30, as hereinabove alleged, Plaintiff suffered injuries and damages in an amount, which will be proven at trial. _ 8 .. GARCIA v. FAMILYEYE CARE. et a1 Complaint for Damages 10 11 12 13 14 15 16 1'7 18 19 20 21 22 23 24 25 26 27 28 34.Defendants committed the acts described herein, through its agents and does 1-30, oppressively, fraudulently, and maliciously, and officers, directors, and managing agents engaged in the conduct, or the conduct was ratified, entitling Plaintiff to an award of punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants. WHEREFORE, Plaintiffprays forjudgment as hereinafler set forth. THIRD CAUSE OF ACTION (Failure to Engage in the Interactive Process Gov. Code Section 12940(n)) (Against all Defendants & DOES 1-30) 35.Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 36. FAMILY EYE CARE CENTER, was an employer of plaintiff during all relevant time periods 37.Plaintiff, MICHELLE GARCIA was an employee ofdefendants during all relevant time periods; 38. Plaintiffhad a work place injury which caused disability that was known at all relevant times to defendants 39. Plaintiffwas willing to participate in an interactive process to determine whether reasonable accommodations could be made so that he could perform the essential job requirements 40. Defendants failed to participate in a timely good-faith interactive process with plaintiff, MICHELLE GARCIA to determine whether reasonable accommodations could be made; 41. Plaintiff, MICHELLE GARCIA was harmed as he was terminated fiom employment; 42. Defendant’s failure to engage in a good faith interactive process was a substantial factor in causing plaintiffharm, namely she was terminated from employment as a result. - 9 - GARCIA v. FAMILYEYE CARE, et a1 Complaint for Damages 10 11 12 l3 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 FOURTH CAUSE OF ACTION (Wrongful discharge in Violation of Public Policy) (Against all Defendants and all applicable DOES 1-30) 43. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 44.Plaintiff, MICHELLE GARCIA is informed and believes, and on that basis alleges that Defendants terminated her employment because of her disability and in retaliation for making a workers’ compensation claim. 45. Plaintiff’s act of filing and/or reporting a workers’ compensation claim and her symptoms were a motivating reason for defendants’ discharging and terminating plaintist employment. Plaintiff’s request to take medical leave for the care ofher child was also a motivating factor in defendants’ decision to discharge plaintiff. 46. As a direct, foreseeable, and proximate result of Defendants acts, as hereinabove alleged, Plaintiff suffered injuries and damages in an amount, which will be proven at trial. 47. Defendants, conduct was a substantial factor in causing Plaintiffs harm. WHEREFORE, Plaintiffs pray for judgment as hereinafter set forth. FIFTH CAUSE 0F ACTION (Failure to Accommodate/FEHA (Violation of Cal. Gov. Code § 1296(m)(n), 12940 (a); Cal. Code Regs., Title 2, 7293.9 Against all Defendants and Applicable DOES 1-30) 48. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fully set forth herein. 49. Plaintiff is informed and believes and on that basis alleges that Pursuant to California Government Code Section 12926 (m)(n), California Code of Regulations, Title 2, Section 7293.9 promulgated by the Fair Employment Housing Act, employers must make reasonable _ 1 0 _ GARCIA v. FAMILYEYE CARE, et a1 Complaint for Damages 10 ll 12 13 l4 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 accommodations for employees with disabilities and health conditions. Examples of reasonable accommodations include restructuring jobs, including, reassigning or transferring an employee, developing or modified work schedules, acquisition or modification of equipment or devices, and other similar accommodations for individuals with disabilities. 50. Plaintiff is informed and believes and thereupon alleges that the Fair Employment and Housing Act (FEHA) requires employers reasonably to accommodate the physical disabilities of any employee if the work environment could have been modified or adjusted in a manner that would have enables the employee to perform the essential functions of the job. 5 1. At all relevant times, plaintiffwas able to perform the essential job duties of the position he held, with reasonable accommodation. 52. Defendant refused to provide plaintiffwith reasonable accommodations and instead chose to terminate plaintiff’s employment with defendant on October 21 , 2020 due to plaintiff’s medical condition and physical disability and for seeking a reasonable accommodation. Plaintiff’s physical disability was a substantial motivating reason for defendant’s decision to terminate plaintiff. 53. Defendant’s discriminatory conducts against plaintiff, as alleged hereinabove, is in violation of California Code of Regulations, Title 2, Section 7293.9 promulgated by the Fair Employment Housing Act, and California Government Code Sections 12940, et seq. 54. Defendant’s conduct was a substantial factor in causing plaintiff’s harm. 55. As a direct, foreseeable, and proximate result of defendant’s acts, as hereinabove alleged, plaintiff suffered injuries and damages in an amount, which will be proven at tn'al. WHEREFORE, plaintiffprays forjudgment as hereinafter set forth. - 1 1 .. GARCIA v. FAMILYEYE CARE. et aI Complaint for Damages 10 ll 12 l3 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 2'7 28 SIXTH CAUSE OF ACTION (Unfair Business Practices, Violation of Business and Professions Code §17200-17208 Against All Defendants and all applicable DOES 1-30) 56. Plaintiff re-alleges and incorporates herein by this reference the allegations in each and every paragraph above, as though fiJlly set forth herein. 57. California Business and Professions Code Section 17200 prohibit “any unlawful, unfair or fraudulent act or practice” and states in part “As used in this chapter, unfair competition shall mean and include any unlawfiJI, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter l (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” 58. Defendants repeated failure to adhere to California law including but not limited to, failing to provide the DWC-l form within 24 hours, failing to refer plaintiff to a doctor within the workers’ compensation system or to timely open a claim and retaliatory acts of firing constitutes an unfair business practice, unfair competition, and provides an unfair advantage over Defendants’ competitors doing business in the State of California that comply with their obligations to properly provide employment conditions in compliance with the law and provide an employment setting fiee of disability discrimination. 59. Defendants’ retaliated against plaintiff for reporting her work place injuries and for requesting leave t0 take care of her daughter, in violation of Labor Code Sections 245-249, 2810.5. 60. The decision to terminate plaintiffbased upon her disability, reporting the work injury and requesting time off to take care of her daughter and were substantial motivating factors in defendants’ decision to terminate plaintiff. 61. As a proximate result, defendants’ terminated plaintiff. _ 1 2 _ GARCIA v. FAMILYEYE CARE. et al Complaint for Damages 10 11 12 13 14 15 16 l7 18 19 20 21 22 23 24 25 26 27 28 D PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for relief as follows: a. For general damages according to proof; b. Special damages, including doctor, hospital, medical, and incidental expenses according to proof; c. For an award of compensatory damages, punitive damages, Back Pay, Front Pay, or reinstatement to the permissible by law under FEHA; d. For lost wages, loss of earning capacity, and loss ofbenefits; e. For reasonable attorneys’ fees and cost of suit and, to the extent permitted by law, including pursuant to Labor Code §§ 218.5, 226(c)(h), 1194(a) and 2802(c), and Code of Civil Procedure § 1021.5, including pursuant to Labor Code sections, FEHA; f. An award of such other and further relief as this Court deems proper and just. DEMAND FOR JURY TRIAL Plaintiffs hereby demand tn'al of this matter by jury to the extent authorized by law. ated: ’9 I 24 {7" Law Offices ofNoel Hibbard Noel Hibbard " ' Attorney for PlaintiffMICHELLE GARCIA - 13 _ GARCIA v. FAMILYEYE CARE, et al Complaint for Damages DEPARTMENT OF FAIR EMPLOYMENT & HOUSING KEV!" K'SH‘D‘RE‘WR 2218 Kausen Drive. Suite 100 I Elk Grove I CA I 95758 (800) 884-1684 (Voice) I (800) 700-2320 (TI'Y) | Californla’s Relay Service at 711 httpzliwww.dfeh.ca.gov I Email: contact.center@dfeh.ca.gov March 28, 2021 Noel Hibbard 2099 Lincoln Ave Ste 202 SAN JOSE, California 951 25 RE: Notice to Complainant’s Attorney DFEH Matter Number: 2021 03-1 3050628 Right to Sue: Garcia / Family Eyecare Center Dear Noel Hibbard: 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 mm "A O(OQVOCH-th-l' NNNMNNNNNJJ-LJ-L-L-LAAA mfimm¥®NAOU1$CONAO 9/1 7/20. Employer also retaliated against plaintiff for requesting leave to take care of her daughter. After plaintiff reported said injuries and requested treatment she was terminated on or about 10/21/20. Employer failed to engage in the interactive process. Employers actions were discriminatory based upon disability/perceived disability from her work place injuries and in retaliation for asserting her claims. -2. Complaint - DFEH No. 202103-13050628 Date Filed: March 28, 2021