ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 9/2/2016 12:59:50 PM By: Sarah Sisto, Deputy
1 JANEAN ACEVEDO DANIELS (SBN 145707) Attorney at Law 2 The Forum 820 State Street, Fourth Floor Barbara, CA 93101 3 Santa (805) 963-4694 Fax: (805) 456-2050 4
[email protected] 5 Attorney for PLAINTIFF PAULA LOPEZ OCHOA 6 7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SANTA BARBARA
9 10 11
PLAINTIFF,
12 13
Case No. 16CV03875
PAULA LOPEZ OCHOA
v.
14 NPG OF CALIFORNIA, LLC and DOES 150, inclusive, 15 16 17 18 19 20 21 22 23 24
Defendants.
COMPLAINT FOR: 1. Termination in Violation of Public Policy 2. Private Attorney General Act Penalties & Attorney Fees 3. Sex Discrimination in Violation of FEHA 4. Race/Ancestry Discrimination in Violation of FEHA 5. Disability Discrimination in Violation of FEHA 6. Failure to Prevent Discrimination In Violation of FEHA 7. Failure to Provide Reasonable Accommodation in Violation of FEHA 8. Failure to Engage in Interactive Process in Violation of FEHA 9. Retaliation In Violation of FEHA 10. Violation of Labor Code § 1102.5 11. Negligence 12. Intentional Infliction of Emotional Distress 13. Negligent Infliction of Emotional Distress 14. Unfair Competition 15. Violation of CFRA 16. Violation of Equal Pay Act 17. Violation of California Constitution, Article I, section 1
25 26
DEMAND FOR JURY TRIAL
27 28 COMPLAINT Page 1 of 46
1 PLAINTIFF PAULA LOPEZ OCHOA alleges: 2 GENERAL ALLEGATIONS
3 4 5 6 7
1.
At all times pertinent hereto, PLAINTIFF PAULA LOPEZ OCHOA
(“PLAINTIFF”) was a resident of the County of Santa Barbara, California. 2.
The true names and capacities of DOES 1-50, whether individual, corporate,
8 9 10
associate or otherwise are unknown to PLAINTIFF at this time, who therefore sues these Defendants by such fictitious names. When the true names and capacities of such Defendants are
11
ascertained, PLAINTIFF will amend this complaint to insert the true names and capacities of said
12
DOE Defendants.
13
3.
14
Defendant NPG OF CALIFORNIA, LLC d/b/a Station KEYT-TV, Station KCOY-
TV and Station KKFX-TV (“Defendant” or “NPG”) is, and at all times pertinent hereto has been,
15 a limited liability company organized and existing under the laws of the State of Missouri, which 16 17 18 19 20 21 22
at all times pertinent hereto operated in various California counties, including the County of Santa Barbara, California. 4.
At all times pertinent to this complaint, PLAINTIFF was employed by NPG in the
County of Santa Barbara, California. 5.
PLAINTIFF is informed and believes, and on that basis alleges that each Defendant
in this Complaint was, at all times mentioned, the agent, servant and/or employee of the other
23 Defendants and was at all such times acting within the course and scope of said agency and/or 24 25 26 27
employment. 6.
PLAINTIFF is informed and believes and on that basis alleges that each Defendant
named as a DOE Defendant is responsible for each and every act and obligation set forth in this
28 COMPLAINT Page 2 of 46
1
complaint.
2 3
FACTUAL BACKGROUND
4
PLAINTIFF Was a Hard-Working, Conscientious, Award-Winning Employee Who
5
Brought Recognition and Sponsorship Revenue To KEYT, KCOY, and KKFX
6
and Created a Loyal Audience Following
7 8 9
7.
PLAINTIFF is a Hispanic female of Mexican-American ancestry. A ninth
generation Santa Barbara native and graduate of University of California, Santa Barbara and
10
UCLA’s Anderson School of Management Corporate Director’s Program, PLAINTIFF has
11
distinguished herself as one of the most experienced, trusted, visible, and vibrant television
12
journalists on the Central Coast.
13
8.
From 1985 through 1989, and again from April 1996 until her abrupt and
14 unwarranted termination in September 2015, PLAINTIFF served as an anchor, reporter, and 15 16 17
broadcaster on the evening newscasts for KEYT, and later KCOY and KKFX (“the Stations”). 9.
With her energy, professionalism, and lifetime connections to the Santa Barbara
18
community, and her open, engaging on screen presence, PLAINTIFF drew her audience in, and
19
developed a loyal following of viewers who were eager to tune in to her broadcasts and watch her
20
present the local news and events of the day with the warmth, caring, and integrity that she was
21
known for.
22 10.
PLAINTIFF’s hard work, dedication to excellence, deep commitment to the
23 24
Stations and her community, and ability to connect with others as a journalist, co-worker, and
25
friend earned her praise and accolades from her professional colleagues, and from the community
26
at large.
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1
11.
Among the honors and awards bestowed on PLAINTIFF are the Golden Mike
2
Award (awarded to her on eight occasions for her news casting, news coverage, and reporting),
3
an Associated Press Award for Best 60 Minute Newscast, Achievement Awards from the
4
Association of Women in Communications, and Santa Barbara Hispanic Achievement Council,
5
President’s Award from the Santa Barbara Hispanic Chamber of Commerce, a Champion Award
6
from the Santa Barbara Community Action Commission, a Community Hero Award from the
7 Santa Barbara County Education Office, a L.A Area Emmy for her work at KCAL in Los 8 9 10
Angeles, and the Influential Latino Award from Latino Today. 12.
In addition to her work as an award-winning anchor and journalist, PLAINTIFF has
11
served as an ambassador for the Station, and a role model for women and girls in the Santa
12
Barbara community, through her volunteer work and service to a variety of non-profit
13 14
organizations, including the Santa Barbara Children’s Museum, Ice in Paradise, Peabody Charter School Foundation, the Unity Shoppe, American Lung Association of California, American Heart
15 16 17 18
Association of Santa Barbara County, AIDS Housing Santa Barbara, and sober living facility New House Santa Barbara. 13.
Since 1986, PLAINTIFF has hosted the Unity Telethon and helped raise millions of
19
dollars for the Unity Shoppe. She has also hosted the Children’s Miracle Telethon for many
20
years to benefit Santa Barbara Cottage Children’s Hospital.
21
14.
PLAINTIFF has also served as master of ceremonies for events on behalf of Girls
22 Inc., United Boys and Girls Clubs, Santa Barbara Boys and Girls Club, American Red Cross Go 23 24
Red for Women Luncheon, American Lung Association Celebrity Waiter’s Luncheon, Domestic
25
Violence Solutions, Police Activities League, Santa Barbara Man and Woman of The Year, Santa
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Barbara Beautiful, Santa Barbara Scholarship Foundation, Santa Maria’s Black and White Ball,
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1
Alzheimer’s Association of Santa Barbara, Santa Barbara Mariachi Festival, United Way
2
Luncheons, Santa Barbara Natural History Museum Galas, Marymount School Annual Gala,
3
Santa Barbara Diabetes Foundation, the Community Commemoration of the Anniversary of
4
9/11, Council on Alcoholism and Drug Abuse Poster Contest, Court Appointed Special
5
Advocates Annual Fundraising Dinner, and Casa Pacifica’s Angel’s Ball.
6
15.
Notwithstanding the tremendous dedication, work ethic, and diligence that
7 PLAINTIFF consistently demonstrated throughout her 25-year career with NPG (and its 8 9
predecessors), and the valuable, ratings-generating broadcasting and journalism services that she
10
provided to the Stations and its viewers, PLAINTIFF was discriminated against, demeaned, and
11
degraded by NPG on the basis of her sex, disability, and Hispanic race/ancestry; was denied
12
equal pay based on her sex; and was denied reasonable accommodation of her disability, and the
13 14
legally-mandated interactive process regarding such disability. 16.
In addition, PLAINTIFF was punished based upon an arrest which did not result in
15 16
a conviction that arose from and related to a disability from which PLAINTIFF suffers by being
17
required to sign an intrusive and degrading “Last Chance Agreement” that violated her privacy
18
and required her to undergo random drug and alcohol testing under threat of termination; by
19
being demoted and transferred to a less prestigious station; and ultimately, by being terminated
20
after nearly three decades of loyal service, all in violation of California law.
21
After PLAINTIFF Filed A DFEH Complaint of Discrimination Against
22 KEYT, NPG Acquired the Station and Retaliated Against PLAINTIFF By 23 Failing to Offer Her An Acceptable Employment Agreement, and
24
Paying Her Less than Her Male Counterpart
25 26
17.
In January 2012, PLAINTIFF was removed as the anchor of a primetime news
27 28 COMPLAINT Page 5 of 46
1 2
broadcast and replaced by a younger, non-Hispanic female. 18.
On February 3, 2012, PLAINTIFF filed a Complaint of Discrimination against
3
NPG’s predecessor in interest with the California Department of Fair Employment and Housing
4
(“DFEH”).
5
19.
6
Effective November 16, 2012, NPG acquired the Station, and Mark Danielson
became the new General Manager of KEYT.
7 20.
Although NPG was not a party to PLAINTIFF’s prior DFEH Complaint, NPG and
8 9
KEYT General Manager Danielson were aware of, and were openly uncomfortable with,
10
PLAINTIFF’s assertion of discrimination claims and her filing of the DFEH Complaint against
11
NPG’s predecessor in interest.
12 13 14
21.
On several occasions when PLAINTIFF attempted to discuss her concerns with
Danielson regarding the actions that prompted her to file a DFEH Complaint against the previous Station owner, and/or tried to address the issues raised in her DFEH Complaint, Danielson
15 16 17 18
became agitated, covered his ears with his hands, and told PLAINTIFF in a disapproving manner that he did not want to hear about it. 22.
PLAINTIFF was met with similar hostility, disapproval, and/or indifference when
19
she repeatedly complained to NPG about unsanitary and unsafe working conditions that she and
20
other female anchors/reporters faced when they were required to use the women’s bathroom at
21
the Santa Barbara Station as a makeup area when the former makeup room was converted for use
22 as a studio. 23 24
23.
Specifically, in order to save costs after buying the Stations, NPG modified the
25
physical station plant at 730 Miramonte Drive in Santa Barbara, which was already inadequate
26
and cramped for KEYT’s new operations, to turn it into a space from which newscasts could be
27 28 COMPLAINT Page 6 of 46
1
delivered for KEYT, KCOY, and KKFX newscasts. As part of the modification, the station
2
makeup room was eliminated and converted to a studio, thereby requiring PLAINTIFF and other
3
female employees to use the women’s bathroom to apply their television makeup. These
4
modifications made it difficult for employees to safely navigate and move around in the space,
5
and created crowded, unsanitary and dangerous working conditions for PLAINTIFF and other
6
NPG employees.
7 24.
Moreover, NPG engaged in public deception by failing to alert the viewing
8 9
audience that newscasts previously emanating from Santa Maria and further north, which were
10
designed for North Santa Barbara County and San Luis Obispo audiences, were actually being
11
broadcast from Santa Barbara. NPG perpetuated the deception by creating a “Keystone Cops”-
12
type three part moving stage operation, whereby news anchors and staff had to leap from one
13 14
news program set at the end of a 10 PM to 11 PM show to a different program set for an 11PM show on a different channel. This deceptive, disorganized practice resulted in news delivery
15 16
personnel becoming confused and misidentifying the station for which they were purportedly
17
reporting during live broadcasts, and put their health and safety at risk as they tried to quickly
18
move from set to set in a limited period of time within a confined space. NPG's practices, and the
19
resulting unsafe and unsanitary work environment, adversely impacted PLAINTIFF’S health and
20
well-being.
21
25.
NPG's actions in increasing PLAINTIFF’S work obligations, subjecting her to
22 unfair and discriminatory treatment, and requiring her to work in unsafe and unhealthy working 23 24
conditions caused PLAINTIFF to develop eye infections due to bacterial contamination, and
25
exacerbated her pre-existing disabling medical conditions. Rather than accommodating
26
PLAINTIFF’S known disabilities as required by law, NPG engaged in a repeated pattern of
27 28 COMPLAINT Page 7 of 46
1 2 3
activities which worsened PLAINTIFF’S condition, thereby sacrificing PLAINTIFF’S health and well-being for its own business and monetary interests. 26.
On numerous occasions, PLAINTIFF objected to the above-described unsafe and
4
unsanitary working conditions. PLAINTIFF also specifically reported to Station management
5
that requiring her and other female employees to apply eye and facial makeup in the public
6
women’s bathroom created an unsafe and unhealthy work environment for the impacted
7 employees, and was causing her to develop eye infections. 8 9
27.
Based on its hostile and retaliatory animus toward PLAINTIFF arising from her
10
objecting to the above-described unsanitary and unsafe working conditions at the Station, and
11
arising from her filing of a DFEH Complaint and assertion of discrimination claims against the
12
prior Station owner, NPG retaliated against PLAINTIFF by failing to offer PLAINTIFF an
13 14
employment agreement that was appropriate, acceptable, or commensurate with her professional experience, journalistic skills and accomplishments, reputation, or standing in the television news
15 16 17
broadcasting community. 28.
Instead, NPG offered PLAINTIFF a contract that included a minimal pay increase,
18
despite the fact that PLAINTIFF was being paid a significantly lower salary than her male, non-
19
Hispanic counterpart, C.J. Ward. In so doing, NPG engaged in discriminatory pay practices and
20
failed to provide PLAINTIFF with equal pay for substantially similar work in violation of
21
governing law.
22 29.
Thereafter, PLAINTIFF had little choice but to work without the protection of a
23 24
written agreement.
25
After PLAINTIFF Was Arrested for an Incident Related to Her Disability,
26
She Was Suspended Without Pay, Required to Sign a Punitive and Intrusive
27 28 COMPLAINT Page 8 of 46
1
Last Chance Agreement, Demoted, Discriminated and Retaliated Against, And Ultimately, Fired
2 3
30.
On February 27, 2013, PLAINTIFF’s family was unable to locate her and reported
4
her missing from her home. When PLAINTIFF was later located, it was determined, and
5
publically reported, that her disappearance was related to a medical condition she was
6
experiencing. (As NPG was aware, PLAINTIFF’s medical situation was a complex combination
7 8 9 10
of symptoms and conditions, including symptoms related to alcoholism, anxiety, and depression for which PLAINTIFF was undergoing treatment.) 31.
From February 25, 2013 through May 13, 2013, PLAINTIFF took a leave of
11
absence from work due to her serious medical condition. The leave was designated as protected
12
leave under the terms of the federal Family Medical Leave Act (“FMLA”). The leave also
13
qualified (but was not designated) as protected leave under California’s Moore-Brown-Roberti
14 Family Rights Act (“CFRA”). 15 16
32.
A March 4, 2013 Certification of Health Care Provider form submitted to NPG on
17
PLAINTIFF’s behalf confirmed that PLAINTIFF had received care at a facility that provides
18
treatment programs for individuals recovering from alcohol and chemical dependency, and that
19
she was being treated for “significant health conditions which prevent[ed] her from performing
20
her job functions at [that] time.”
21
33.
On the afternoon of Monday, July 29, 2013, PLAINTIFF was arrested by the Santa
22 Barbara County Sheriff’s Department. PLAINTIFF was walking near her home and was not on 23 24 25 26
duty for NPG when the arrest occurred. 34.
Following her arrest, which was reported in the local press, PLAINTIFF issued a
public statement in which she confirmed that she had been suffering from and was being treated
27 28 COMPLAINT Page 9 of 46
1 2 3
for alcoholism, anxiety and depression. She also explained that the arrest, and her February 2013 reported disappearance, stemmed from her ongoing battle with alcoholism. 35.
In her statement, PLAINTIFF revealed and implored: “I have been in professional
4
medical treatment for the disease of alcoholism for a number of months. I have dealt with anxiety
5
and depression for many years. Excessive self-medication is a fairly recent phenomenon for me.
6
It has increased over time. I have had substantial periods of abstinence and sobriety. As can occur
7 in the recovery process, I have also had failures and relapses. I know that most people have a 8 9
family member, a friend, a coworker, or know of someone who has been impacted by substance
10
abuse. They understand the scourge and pain that befalls those close to the diseased individual.
11
Much was written about my prior medical circumstances. All that was released to the media
12
regarding my medical circumstances was true. But it was not complete. That is no longer the
13 14
case. From your expressions, I know that vast multitudes of you understand my plight and sympathize with my circumstances. Others of you cannot, and never will. I am extremely
15 16 17
humbled and grateful for those who do. I ask the forgiveness of those who cannot.” 36.
Following her arrest, PLAINTIFF underwent outpatient treatment, participated in
18
recovery programs for alcoholism, and attended a diversion program. No criminal charges were
19
filed against her, and no conviction resulted from her arrest.
20 21
37.
To PLAINTIFF’s knowledge, NPG did not conduct any independent investigation
of the facts, circumstances, or conduct that led to her arrest. Instead, the Station based its
22 response to her arrest--whereby it required PLAINTIFF to sign the intrusive and punitive Last 23 24 25 26
Chance Agreement in order to keep her job--solely on media reports of the incident. 38.
On Tuesday, July 30, 2013, PLAINTIFF returned to work and successfully
anchored two early evening news broadcasts, then went to a dress rehearsal for La Fiesta Pequeña
27 28 COMPLAINT Page 10 of 46
1
(the opening ceremony for Santa Barbara’s Old Spanish Days Fiesta celebration). News Director
2
Jim Lemon subsequently instructed PLAINTIFF not to return to the Station to anchor the 11 p.m.
3
news broadcast.
4 5 6
39.
The following day, Wednesday, July 31, 2013, NPG General Manager Danielson
and Station News Director Lemon called PLAINTIFF at home and informed her that she was being suspended from work without pay immediately due to her reported arrest on July 29, 2013.
7 40.
They also instructed PLAINTIFF to refrain from representing the Station at any
8 9 10 11 12 13 14
public events during her suspension, including numerous upcoming Santa Barbara Fiesta events that she had been scheduled to attend (and has attended annually for over 27 years). 41.
Danielson further indicated that, if and when PLAINTIFF was allowed to return to
work, it would have to be under strict conditions to ensure that she received treatment for her alcoholism, and that she was not drinking. 42.
Throughout the conversation, Danielson spoke to PLAINTIFF in a hostile, angry,
15 16 17
demeaning, and intimidating manner. 43.
A July 31, 2013 suspension notice in PLAINTIFF’s personnel file confirms that
18
PLAINTIFF was suspended due to her arrest. The notice specifically describes the “performance
19
issue” that promoted the suspension as PLAINTIFF’S arrest on July 29, 2013 and stated, “We
20
have decided until further information is obtained, to suspend [PLAINTIFF] while we acquire
21
more details of the incident.”
22 44.
Although the suspension notice also says “Managers will acquire more information
23 24
which will help them make a determination on the continuation of Paula's employment,” as noted
25
above, NPG made no effort to obtain additional information from PLAINTIFF regarding her
26
disabling condition, the circumstances that led to her arrest, or any other issues related to her
27 28 COMPLAINT Page 11 of 46
1 2
suspension, and PLAINTIFF is unaware of any efforts by the Station to obtain such information from any other sources (apart from media reports and speculation).
3 4 5 6
45.
Following her suspension, PLAINTIFF began a disability leave of absence from
46.
On August 12, 2013, while PLAINTIFF was still suspended and on a disability
work.
leave from work, and was undergoing treatment for various disabling health conditions,
7 Danielson called PLAINTIFF in for a meeting at the Station and presented her with a document 8 9 10 11 12 13 14
entitled “Last Chance Agreement,” which she was required to sign as a condition of continuing her employment with NPG. 47.
In presenting the agreement to PLAINTIFF, Danielson berated her in a degrading
fashion that NPG “should be firing you,” and admonished her, “we have cause to fire you,” then added in a threatening and humiliating tone, “but if you sign this we won’t.” 48.
Under duress, suffering from anxiety, depression, and various other debilitating
15 16 17 18
emotional and physical symptoms, and believing she had no choice but to sign the “agreement” if she wanted to keep her job, PLAINTIFF signed and returned the document on August 13, 2013. 49.
The Agreement referred to various unspecified actions that PLAINTIFF had
19
purportedly engaged in between February 27, 2013 and July 29, 2013 (the date of her reported
20
arrest) which had “became matters of public knowledge and media publication,” and alleged that
21
such actions “degraded” PLAINTIFF and subjected her “to public scorn and ridicule.” The
22 Agreement confirmed that, based on such actions, PLAINTIFF was being placed on an 23 24 25 26
immediate unpaid leave from work “as of today, August 12, 2013.” 50.
The Agreement also stated that it was being provided to PLAINTIFF “as an
accommodation, at [her] request,” which was patently false. At no point had PLAINTIFF ever
27 28 COMPLAINT Page 12 of 46
1 2
asked for the Last Chance Agreement as a form of accommodation of her disability or otherwise. 51.
Moreover, instead of being appropriately tailored to PLAINTIFF’s performance
3
and workplace behavior, the Agreement contained a variety of invasive and humiliating
4
conditions related to PLAINTIFF’s disability and her related arrest, including:
5
•
6
requiring PLAINTIFF to accept a referral to a healthcare provider selected by the Station for evaluation of substance abuse/dependency (the Station had already
7 scheduled the appointment for the following afternoon, August 13, 2013 at 4:00
8
p.m.);
9 10
•
requiring PLAINTIFF to enroll in and successfully complete a rehabilitation
11
program to be selected by the Station (if recommended by the Station’s evaluating
12
provider);
13
•
requiring PLAINTIFF to abide by all recommendations resulting from any
14 rehabilitation program, and mandating that PLAINTIFF provide the Station upon
15
its request with any and all reports and documentation regarding her “compliance
16
with any requirements;” and
17 18
•
19
demanding that PLAINTIFF submit to “random drug screens and/or blood alcohol tests” at least once per month or more frequently as determined “in the sole
20
discretion of the Station” for a period of 24 months to ensure that she was not using
21 alcohol or drugs. 22 23
52.
Although PLAINTIFF was informed by Station management that she was required
24
to sign the Agreement to avoid immediate termination of her employment, and the Agreement’s
25
terms confirm that entering into the Agreement was necessary to “prevent [her] immediate
26
discharge,” the Agreement purports to state that PLAINTIFF entered into this Agreement
27 28 COMPLAINT Page 13 of 46
1
“voluntarily.” 53.
2
Given that PLAINTIFF had no choice but to sign the Agreement to maintain her
3
employment, given PLAINTIFF’S disability, and given the compromised physical and emotional
4
condition that PLAINTIFF was in when she was required to sign the document to avoid
5
immediate termination, her signature on the document was clearly not “voluntary.”
6
54.
In accordance with the Agreement terms, PLAINTIFF attended a rehabilitation
7 program selected by the Station, where she was required to undergo weekly urine tests to 8 9
determine whether she was using alcohol or drugs. 55.
10
NPG personnel repeatedly called the treatment program to check on PLAINTIFF’s
11
attendance and compliance with the substance testing, and to determine whether any such tests
12
were positive. The Program representatives were disturbed by NPG’s continual efforts to intrude
13 14
into PLAINTIFF’s private health and medical matters, and informed NPG that the information they sought was protected from disclosure by federal law, specifically, the Health Insurance
15 16
Portability and Accountability Act of 1996 (“HIPAA”). 56.
17
Despite the Program representatives’ objections that NPG’s inquiries were intrusive
18
and unlawful, NPG continued to hound the Program for information about PLAINTIFF, her
19
recovery, her test results, and her adherence to the Agreement terms. In response, the providers
20
confirmed that PLAINTIFF was successfully attending the Program.
21
57.
According to PLAINTIFF’s time sheets, she was on “No Pay/Suspended” status
22 until November 4, 2013, when she returned to work. 23 58.
24
Following PLAINTIFF’s return to work, Station management gave her the cold
25
shoulder treatment, and made no effort to acknowledge PLAINTIFF’s return or welcome her
26
back.
27 28 COMPLAINT Page 14 of 46
1
59.
In February 2014, Danielson abruptly informed PLAINTIFF in a cold and hostile
2
manner that she was being moved from the news anchor and reporter for #2-ranked ABC-affiliate
3
KEYT-TV to a position as the anchor/reporter KCOY-TV, the Santa Maria-based station for the
4
Northern Santa Barbara County and San Luis Obispo County areas. (KCOY-TV ranked third
5
behind KEYT and KSBY in area viewership). Danielson further told PLAINTIFF that she was
6
also going to be required to do an hour-long Fox News show from 10-11 p.m. on Santa Maria-
7 based station KKFX-TV. 8 9
60.
The change became effective in April 2014, when a substantially younger, male,
10
non-Hispanic news anchor/reporter, Scott Hennessee, was hired, and reporter Beth Farnsworth,
11
who also is not Hispanic, replaced PLAINTIFF as the KEYT anchor on its 5 p.m. and 6 p.m.
12
newscasts.
13 14
61.
PLAINTIFF was then required to anchor three 30-minute newscasts for KCOY, a
smaller studio with less stature and smaller viewership than KEYT, as well as the 60-minute 15 16
10:00 p.m. Fox News show for KKFX. As a result, PLAINTIFF’s workload increased from
17
doing three on-air newscasts totaling 1 1/2 on-air hours to doing four newscasts totaling 2 1/2 on-
18
air hours.
19 20 21
62.
Given that KCOY has a significantly smaller viewing audience and smaller sponsor
revenues than KEYT, which is based in Santa Barbara, and is considered a less prestigious, less competitive station, the involuntary transfer constituted a demotion for PLAINTIFF.
22 63.
In addition to being a step down professionally, the KCOY and KKFX assignments
23 24
were more demanding and time consuming, involved more driving, including frequent trips from
25
Santa Barbara to Santa Maria and back for promo shots (a 2 to 2 ½ hour roundtrip), and were
26
more burdensome than PLAINTIFF’s prior role as an anchor/reporter at Santa Barbara-based
27 28 COMPLAINT Page 15 of 46
1 2 3
KEYT. Notwithstanding her additional, more time-consuming job duties, the Station did not provide PLAINTIFF with any additional compensation. 64.
Despite the humiliation of being demoted to the #3 and #4 area stations after a long
4
and distinguished career with KEYT, where she had become the face of KEYT news in Santa
5
Barbara, PLAINTIFF worked diligently to deliver quality reporting and engaging evening news
6
broadcasts to the KCOY and KKFX audiences.
7 65.
With her loyal viewer following and consummate professionalism, PLAINTIFF
8 9
brought her two KCOY news broadcasts and the KKFX Fox News at 10 broadcast to the #1
10
ranking in their time slots by July 2015, to the expressed surprise of Station management. At one
11
Station meeting, News Director Lemon happily announced the ratings success, and said that
12
Station managers were “shocked” that it happened so quickly.
13 14
66.
In addition, from May 2015 through September 2015 (when PLAINTIFF was
terminated), the Station aired repeated promos touting the KCOY and KKFX newscasts that 15 16
PLAINTIFF anchored as being #1 in the Nielson ratings. The KKFX FOX News at Ten program
17
that PLAINTIFF hosted debuted in April 2014 at number one for its time slot, and subsequently
18
remained there.
19 20 21
67.
Following her broadcast and ratings successes, PLAINTIFF attended a lunch
meeting with Danielson. During the meeting, Danielson watched PLAINTIFF closely, then told her that she appeared to be doing “OK,” and that her recovery seemed to be “for real.”
22 68.
While PLAINTIFF was demonstrating her professionalism, work ethic, and value
23 24 25 26
to the Stations, a male reporter was displaying inappropriate on duty behavior and was missing a significant amount of work. 69.
In the Summer of 2015, the Station shot a promotional piece featuring Caucasian
27 28 COMPLAINT Page 16 of 46
1
anchor Scott Hennessee, Caucasian weatherman Jason Stiff, and PLAINTIFF. While the two
2
White males were instructed to wear suits and ties, when PLAINTIFF arrived for her promo
3
segment dressed in similar professional attire, she was instructed by Creative Services Director
4
Jeff Martin to go change into jeans. PLAINTIFF’s promo was then shot with her alone in a field
5
wearing unprofessional, casual clothing, while the male personalities were filmed in Pismo Beach
6
in business attire. The Station’s disparate treatment of PLAINTIFF caused her to feel further
7 marginalized, excluded, and humiliated in front of her colleagues. 8 9
70.
When Station Traffic Coordinator Lea Galindo subsequently viewed the completed
10
promo in the scheduled lineup, she expressed concerns to Danielson about the fact that the piece
11
featured PLAINTIFF in a less prominent role than her male counterparts (specifically, dressed in
12
jeans in a field where manual labor is performed) and portrayed her as an outlier who was not
13 14
part of the top-tier broadcast team. 71.
After Galindo objected to the manner in which PLAINTIFF was portrayed in the
15 16 17 18 19 20 21
demeaning promo, Station management pulled the piece before it aired. 72.
On September 6, 2015, PLAINTIFF was arrested. The arrest was reported in the
local media on September 7, 2015. 73.
Two days later, on September 8, 2015, Danielson and Lemon called PLAINTIFF
into a meeting, which NPG Human Resources Representative Jennifer Wright was also attending by phone. Danielson, who had a copy of a newspaper article regarding PLAINTIFF’s arrest on a
22 table in front of him, told PLAINTIFF in an angry, scornful, and denigrating manner, “you’ve 23 24 25 26
cost us” and “you’ve hurt the station.” 74.
Without giving PLAINTIFF any opportunity to explain her behavior or discuss the
status of her disabling condition and/or need for reasonable accommodation thereof, Danielson
27 28 COMPLAINT Page 17 of 46
1
then abruptly informed PLAINTIFF that she was being immediately terminated for violating the
2
Last Chance Agreement. Danielson then added in a dismissive and demeaning tone, “this is a
3
done deal.”
4
75.
5 6
Stunned, humiliated, and distraught, PLAINTIFF left the meeting in severe
emotional and physical distress. 76.
Shortly after firing PLAINTIFF, NPG replaced her on the KCOY and KKFX
7 broadcasts with a young, blond, Non-Hispanic female, Melissa Mahan. 8 9
77.
On November 19, 2015, Plaintiff filed a complaint regarding Defendants’ wrongful
10
actions as alleged herein with the California Department of Fair Employment and Housing
11
(hereinafter, "DFEH"). A true and correct copy of the complaint is attached hereto as Exhibit
12
"A" and incorporated herein.
13 14
78.
Effective November 19, 2015, DFEH issued Plaintiff a Notice of Case Closure
giving Plaintiff the right to file a private lawsuit based on the allegations contained in the 15 16 17
complaint of discrimination. A true and correct copy of the notice is attached hereto as part of Exhibit "A" and incorporated herein.
18
FIRST CAUSE OF ACTION
19
(Termination In Violation of Public Policy Against Defendant NPG and DOES 1-50)
20
79.
21
PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 78 as though
set forth in full.
22 80.
Under California law, no employee, whether employed at-will or under a written or
23 24
other employment contract, can be terminated for a reason that violates fundamental public
25
policy. California courts have interpreted a fundamental public policy to be any constitutional or
26
statutory provision or regulation that inures to the benefit of the public that is fundamental,
27 28 COMPLAINT Page 18 of 46
1 2
substantial, and well-established at the time of an employee’s discharge. 81.
California Labor Code §432.7 prohibits employers from seeking from any source
3
whatsoever or utilizing as a factor in determining any condition of employment, such as
4
promotion, demotion, or termination, “any record of arrest or detention that did not result in
5
conviction, or any record regarding a referral to, and participation in, any pretrial or posttrial
6
diversion program . . ..”
7 82.
As described above, in August 2013, shortly after PLAINTIFF’s July 29, 2013
8 9
arrest, NPG required PLAINTIFF to sign the Last Chance Agreement in order to continue her
10
employment with the Station due in whole or substantial part to that arrest, from which no
11
conviction resulted, and in connection with which PLAINTIFF attended a diversion program.
12 13 14
83.
Thereafter, immediately following PLAINTIFF’s September 6, 2015 arrest, NPG
terminated PLAINTIFF based on that arrest, the media reports that surrounded it, and her purported violation of the Last Chance Agreement, which itself was based on, and PLAINTIFF
15 16 17
was required to sign as a result of, her July 29, 2013 arrest. 84.
Although the Station claimed it was terminating PLAINTIFF for violating the Last
18
Chance Agreement, the only information known to the Station regarding PLAINTIFF’s conduct
19
and presumed violation of the Agreement was the information about PLAINTIFF’s arrest that
20
had been reported in the media—information that the Station is statutorily prohibited by
21
California Civil Code Sec. 432.7 from considering in making any decisions about the terms or
22 conditions of PLAINTIFF’s employment. 23 24
85.
Moreover, the Last Chance Agreement itself was based on PLAINTIFF’s July 29,
25
2013 arrest, which did not result in any conviction. Accordingly, it was a violation of law and
26
fundamental public policy for NPG to require PLAINTIFF to enter into the Last Chance
27 28 COMPLAINT Page 19 of 46
1 2 3
Agreement in August 2013 based on her first arrest as a condition of continuing her employment with the Station; and/or for NPG to later fire PLAINTIFF for breaching the Agreement terms. 86.
California Labor Code §1102.5(a) prohibits an employer from making, adopting, or
4
enforcing any rule, regulation, or policy preventing an employee from disclosing information to a
5
government or law enforcement agency, or to a person with authority over the employee or over
6
another employee who has the authority to investigate, discover, or correct the violation or
7 noncompliance, where the employee has reasonable cause to believe that the information 8 9 10 11 12 13 14
discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. 87.
Labor Code §§1102.5(b) and (c) prohibit an employer from retaliating against an
employee for disclosing such information to a government or law enforcement agency, or to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for refusing to participate in
15 16 17 18
an activity that would result in a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. 88.
These provisions, which protect employees who report what they reasonable
19
believe is unlawful conduct to a government or law enforcement agency, to a person with
20
authority over them, or to another employee who has the authority to investigate, discover, or
21
correct the reported violation or noncompliance, reflect “the broad public policy interest in
22 encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation." 23 24 25 26
Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77. 89.
Labor Code §6310, a provision of the California Occupational Safety and Health
Act of 1973, was enacted for the purpose of assuring safe and healthful working conditions for all
27 28 COMPLAINT Page 20 of 46
1
California workers. Labor Code §6310(a) prohibits employers from discharging “or in any
2
manner discriminat[ing] against any employee” because the employee made an oral or written
3
complaint regarding employee health or safety to her employer, or exercised any rights afforded
4
to her. Under Labor Code § 6310(b), “[a]ny employee who is discharged, threatened with
5
discharge, demoted . . . or in any other manner discriminated against in the terms and conditions
6
of employment” because the employee has made a complaint to her employer of unsafe working
7 conditions or work practices “shall be entitled to reinstatement and reimbursement for lost wages 8 9 10
and work benefits caused by the acts of the employer.” 90.
Labor Code § 232.5 prohibits employers from discharging, formally disciplining, or
11
otherwise discriminating against an employee who discloses information about the employer's
12
working conditions.
13 14
91.
It was and is the public policy of the State of California that an employer may not
retaliate against an employee for reporting to her employer what she reasonably believes to be 15 16
actions by her employer which constitute a violation, or potentially violation, of a state or federal
17
statute, or a violation or noncompliance with a state or federal rule or regulation, and/or
18
deceptive, fraudulent, or unfair business practices.
19 20 21
92.
Article I, § 1 of the California Constitution protects the privacy rights of the State’s
citizens by specifically endowing upon them a right of privacy, which protects them from breaches of privacy by both public and private entities. The Constitutional protection provides:
22 All people are by nature free and independent and have inalienable rights. Among these are 23 24 25 26
enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. 93.
As described above, on numerous occasions throughout her employment,
27 28 COMPLAINT Page 21 of 46
1
PLAINTIFF objected to, complained of, and reported to her employer, NPG, a variety of:
2
a) unsafe working conditions and practices;
3
b) invasions of her right of privacy; and
4
c) discriminatory, retaliatory, and otherwise wrongful actions by the NPG that she
5
reasonably believed constituted a violation, or potential violation, of one or more state or
6
federal statutes, and/or violations or noncompliance with one or more state or federal rules
7 or regulations; and/or that she reasonably believed to unfair business practices. 8 9
94.
As a proximate result of PLAINTIFF making the above-described complaints to
10
her employer regarding workplace health, safety and/or working conditions, and/or regarding
11
what she reasonably believed to be violations of law, Defendants terminated PLAINTIFF’s
12
employment.
13 14
95.
Defendants’ termination of PLAINTIFF’s employment after PLAINTIFF reported
and opposed the above-described actions that she reasonably believed to be unsafe and/or 15 16
unlawful; after she engaged in the above-described legally-protected activities; and/or in violation
17
of her constitutional right of privacy, constitutes termination in violation of fundamental public
18
policy, including but not limited to the public policy reflected in the following statutes, rules,
19
and/or regulations:
20 21
(A) Labor Code §432.7; (B) Labor Code §1102.5;
22 (C) Labor Code §6310; 23 24
(D) Labor Code §232.5;
25
(E) Business and Professionals Code §17200 et seq..;
26
(F) Government Code §12945.2 and California Code of Regulations §7297.9;
27 28 COMPLAINT Page 22 of 46
(G) California Constitution, Art. I, sec. I.
1 2
96.
As a proximate result of NPG’s wrongful actions, PLAINTIFF has been harmed in
3
that she has suffered a substantial loss of earnings, compensation, employment-related
4
opportunities, and other employment benefits, and has suffered additional damages in an amount
5
that will be shown according to proof at the time of trial
6
97.
As a further proximate result of Defendants’ wrongful actions against PLAINTIFF,
7 PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional 8 9 10 11 12 13 14
reputation, and other injuries; and has incurred, and will continue to incur, medical and related expenses, amounts to be shown according to proof at the time of trial. 98.
Defendants’ wrongful actions against PLAINTIFF were outrageous and were
undertaken with malice and oppression; with the intent, design and purpose of injuring PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and wellbeing. All such actions of said Defendants, and each of them, their agents and employees, were
15 16 17
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
18
SECOND CAUSE OF ACTION
19
(Private Attorneys General Act ("PAGA") [Labor Code §2698 et seq.] Claim for
20
Penalties and Attorney’s Fees Against All Defendants)
21
99.
PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 98 as though
22 set forth in full. 23 24
100. PLAINTIFF is an "aggrieved employee" under PAGA, as she has been employed
25
by NPG during the applicable statutory period and has suffered one or more of the Labor Code
26
violations described herein. As such, she seeks to recover on behalf of herself the civil penalties
27 28 COMPLAINT Page 23 of 46
1
provided by PAGA, plus reasonable attorney's fees and costs.
2
101. PLAINTIFF seeks to pursue remedies pursuant to PAGA for Defendants’
3
violations of California Labor Code Labor Code §§432.7, 1102.5, 6310 and 232.5 as described
4
herein.
5 6
102. PLAINTIFF has fully complied with the procedural requirements specified in Labor Code § 2699.3 as to each of the alleged violations. On May 4, 2016 via certified mail
7 return receipt requested (and received) (with copies to NPG’s attorney via certified mail), 8 9
PLAINTIFF notified:
10
a) the California Labor & Workforce Development Agency (“LWDA”) Private Attorneys
11
General Act of 2004 (“PAGA”) Administrator of Defendants’ violations of California
12
Labor Code §§432.7, 1102.5, 6310 and 232.5 as described herein, and of PLAINTIFFS'
13 14
claims based on such Labor Code violations, including the facts and theories supporting these claims; and
15 16
b) the California Division of Occupational Safety and Health Labor (“DOSH”) of
17
Defendants’ violation of California Labor Code §6310 as described herein, and of
18
PLAINTIFFS' claims based on such Labor Code violation, including the facts and
19
theories supporting these claims.
20
103. LWDA and DOSH have provided no notice to PLAINTIFF regarding its/their
21
intentions to investigate or not investigate PLAINTIFF’s claims. Accordingly, PLAINTIFF may
22 commence this action pursuant to Labor Code § 2699. 23 24
104. Enforcement of the public policies underlying statutory provisions that prohibit
25
employers from considering or taking adverse action against an employee based upon an arrest
26
that did not result in a conviction; from retaliating against employees for discussing their working
27 28 COMPLAINT Page 24 of 46
1
conditions, and/or reporting unsafe working conditions; and from retaliating against employees
2
for opposing what they reasonably believe to be unlawful actions by their employers are
3
fundamental public interests. PLAINTIFF is incurring a financial burden in pursuing this action,
4
and it would be against the interest of justice to require the payment of PLAINTIFF’S attorneys'
5
fees and costs from any recovery obtained, pursuant to, inter alia, California Labor Code§ 2699.
6 THIRD CAUSE OF ACTION
7 8 9 10 11 12
(Sex Discrimination in Violation of FEHA [Gov. Code§12940(a) Against All Defendants) 105.
PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 104 as
though set forth in full. 106. Defendants’ wrongful and discriminatory actions against PLAINTIFF as alleged herein, culminating in their termination of PLAINTIFF’s employment, constitute unlawful
13 employment discrimination on account of PLAINTIFF's sex in violation of Government Code 14 15 16
§12940(a). 107. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
17
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related
18
opportunities, and other employment benefits, and has suffered additional damages in an amount
19
that will be shown according to proof at the time of trial.
20
108. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
21 PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional 22 23 24 25 26
reputation, and other injuries; and has incurred, and will continue to incur, medical and related expenses, amounts to be shown according to proof at the time of trial. 109. Defendants’ wrongful actions against PLAINTIFF were outrageous and were undertaken with malice and oppression; with the intent, design and purpose of injuring
27 28 COMPLAINT Page 25 of 46
1
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
2
being. All such actions of said Defendants, and each of them, their agents and employees, were
3
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
4
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
5 FOURTH CAUSE OF ACTION
6 7
(Race/Ancestry Discrimination in Violation of FEHA [Gov. Code§12940(a)]
8
Against All Defendants)
9 10 11 12
110. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 109 as though set forth in full. 111. Defendants’ wrongful and discriminatory actions against PLAINTIFF as alleged herein, culminating in their termination of PLAINTIFF’s employment, constitute unlawful
13 14 15 16
employment discrimination on account of PLAINTIFF's Hispanic race/ancestry in violation of Government Code §12940(a). 112. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
17
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related
18
opportunities, and other employment benefits, and has suffered additional damages in an amount
19
that will be shown according to proof at the time of trial.
20 113. As a further proximate result of Defendants' wrongful actions against PLAINTIFF, 21 22
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
23
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
24
expenses, amounts to be shown according to proof at the time of trial.
25 26
114. Defendants’ wrongful actions against PLAINTIFF were outrageous and were undertaken with malice and oppression; with the intent, design and purpose of injuring
27 28 COMPLAINT Page 26 of 46
1
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
2
being. All such actions of said Defendants, and each of them, their agents and employees, were
3
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
4
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
5 FIFTH CAUSE OF ACTION
6
(Disability Discrimination in Violation of FEHA [Gov. Code§12940(a)] 7 Against All Defendants)
8 9 10 11 12 13
115. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 114 as though set forth in full. 116. At all times pertinent hereto, PLAINTIFF has suffered from physical and/or emotional disabilities and related symptoms which were known to Defendants. Defendants’ wrongful and discriminatory actions against PLAINTIFF as alleged herein, culminating in their
14 15 16 17
termination of PLAINTIFF’s employment, constitute unlawful employment discrimination on account of PLAINTIFF's disability in violation of Government Code §12940(a). 117. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
18
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related
19
opportunities, and other employment benefits, and has suffered additional damages in an amount
20 21
that will be shown according to proof at the time of trial. 118. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
22 23 24 25 26
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional reputation, and other injuries; and has incurred, and will continue to incur, medical and related expenses, amounts to be shown according to proof at the time of trial. 119. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
27 28 COMPLAINT Page 27 of 46
1
undertaken with malice and oppression; with the intent, design and purpose of injuring
2
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
3
being. All such actions of said Defendants, and each of them, their agents and employees, were
4
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
5
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
6
SIXTH CAUSE OF ACTION
7
(Failure to Prevent Discrimination In Violation of FEHA [Govt. Code §12940(k)]
8
Against all Defendants)
9 10 11 12
120. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 119 as though set forth in full. 121. California Government Code §12940(k) provides that it is unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment
13 from occurring. 14 15
122. Defendants failed to take all reasonable steps necessary to prevent unlawful
16
discrimination against PLAINTIFF based on her sex, Hispanic race/ancestry, and/or disability
17
from occurring, thereby violating FEHA. Among other things, Defendant failed to train and
18
adequately supervise its employees in order to ensure that these employees were not violating the
19
Fair Employment and Housing Act in their treatment of other employees.
20
123. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
21 harmed in that she has suffered a substantial loss of earnings, compensation, employment-related 22 23 24 25 26
opportunities, and other employment benefits, and has suffered additional damages in an amount that will be shown according to proof at the time of trial. 124. As a further proximate result of Defendants' wrongful actions against PLAINTIFF, PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
27 28 COMPLAINT Page 28 of 46
1 2 3
reputation, and other injuries; and has incurred, and will continue to incur, medical and related expenses, amounts to be shown according to proof at the time of trial. 125. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
4
undertaken with malice and oppression; with the intent, design and purpose of injuring
5
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
6
being. All such actions of said Defendants, and each of them, their agents and employees, were
7 known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF 8 9
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
10
SEVENTH CAUSE OF ACTION
11
(Failure to Provide Reasonable Accommodation for Known Disability in Violation
12
of FEHA [Govt. Code §12940(m)] Against All Defendants)
13 14
126. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 125 as though set forth in full.
15 16 17
127. Government Code §12940(m)(1) makes it unlawful for an employer to fail to make reasonable accommodation for the known physical or mental disability of an
18 employee unless the employer demonstrates that the accommodation would 19 produce undue hardship to its operation as defined in Government Code §12926(u). 20 21
128. Government Code §12940(m)(2) makes it unlawful for an employer to retaliate or otherwise discriminate against a person for requesting such accommodation, regardless of
22 whether the request was granted. 23 24
129. At all times pertinent hereto, PLAINTIFF suffered from physical and/or mental
25
disabilities and related symptoms which were known to Defendants, which disabilities
26
Defendants failed to reasonably accommodate.
27 28 COMPLAINT Page 29 of 46
1
130. Although PLAINTIFF was capable of performing her essential job duties with
2
reasonable accommodation, such reasonable accommodation was repeatedly and wrongfully
3
denied to her by Defendants in violation of her rights.
4 5 6
131. Furthermore, Defendants retaliated and discriminated against PLAINTIFF for requesting such accommodation. 132. In addition, Defendants’ repeated and successive adverse and unlawful employment
7 actions against PLAINTIFF as described above worsened her disabling medical conditions as 8 9 10
opposed to accommodating them, in violation of PLAINTIFF’s rights and governing law 133. As a proximate result of Defendants’ failure to provide reasonable accommodation
11
for PLAINTIFF’S mental disabilities as alleged herein, and/or of Defendants’ retaliation and
12
discrimination against PLAINTIFF for requesting such accommodation, PLAINTIFF has been
13 14
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related opportunities, and other employment benefits, and has suffered additional damages in an amount
15 16 17
that will be shown according to proof at the time of trial. 134. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
18
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
19
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
20
expenses, amounts to be shown according to proof at the time of trial.
21
135. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
22 undertaken with malice and oppression; with the intent, design and purpose of injuring 23 24
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
25
being. All such actions of said Defendants, and each of them, their agents and employees, were
26
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
27 28 COMPLAINT Page 30 of 46
1
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
2
EIGHTH CAUSE OF ACTION
3
(Failure to Engage in the Interactive Process in Connection with Known Disability in
4
Violation of FEHA [Govt. Code §12940(n)] Against All Defendants)
5 6
136. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 135 as though set forth in full.
7 137. At all times pertinent hereto, PLAINTIFF suffered from physical and/or mental 8 9
disabilities and related symptoms which were known to Defendants. On one or more occasions
10
during her employment, PLAINTIFF requested that Defendants make reasonable accommodation
11
for her mental disabilities in order to permit PLAINTIFF to perform her essential job
12
requirements.
13 14
138. Although PLAINTIFF was willing to participate in an interactive process to determine whether reasonable accommodation could be made to enable her to perform their
15 16 17 18
essential job requirements, Defendants failed to participate in a timely good-faith interactive process with PLAINTIFF to determine whether such reasonable accommodation could be made. 139. As a proximate result of Defendants’ failure to engage in a good-faith interactive
19
process with PLAINTIFF to determine whether it would be possible to implement effective
20
reasonable accommodations, PLAINTIFF has been harmed in that she has suffered a substantial
21
loss of earnings, compensation, employment-related opportunities, and other employment
22 benefits, and has suffered additional damages in an amount that will be shown according to proof 23 24 25 26
at the time of trial. 140. As a further proximate result of Defendants' wrongful actions against PLAINTIFF, PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
27 28 COMPLAINT Page 31 of 46
1 2 3
reputation, and other injuries; and has incurred, and will continue to incur, medical and related expenses, amounts to be shown according to proof at the time of trial. 141. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
4
undertaken with malice and oppression; with the intent, design and purpose of injuring
5
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
6
being. All such actions of said Defendants, and each of them, their agents and employees, were
7 known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF 8 9
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
10
NINTH CAUSE OF ACTION
11
(Retaliation In Violation of FEHA [Govt. Code §12940(h)] Against all Defendants)
12 13 14 15
142. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 141 as though set forth in full. 143. California Government Code §12940(h) provides that it is unlawful for an
16
employer to discharge, expel, or otherwise discriminate against any person because she has
17
opposed any practices forbidden under FEHA.
18
144. Defendants’ adverse employment actions against PLAINTIFF as alleged herein,
19 culminating in her termination, after PLAINTIFF reported and opposed what she reasonably 20 21 22 23 24 25 26
believed to be unlawful discrimination and/or retaliation in her workplace in violation of FEHA constitutes retaliation in violation of Government Code §12940(h). 145. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been harmed in that she has suffered a substantial loss of earnings, compensation, employment-related opportunities, and other employment benefits, and has suffered additional damages in an amount that will be shown according to proof at the time of trial.
27 28 COMPLAINT Page 32 of 46
1
146. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
2
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
3
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
4
expenses, amounts to be shown according to proof at the time of trial.
5 6
147. Defendants’ wrongful actions against PLAINTIFF were outrageous and were undertaken with malice and oppression; with the intent, design and purpose of injuring
7 PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well8 9
being. All such actions of said Defendants, and each of them, their agents and employees, were
10
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
11
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
12
TENTH CAUSE OF ACTION
13 14
(Violation of Labor Code § 1102.5 Against All Defendants) 148. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 147 as though
15 16 17
set forth in full. 149. Labor Code § 1102.5(a) prohibits an employer from making, adopting, or enforcing
18
any rule, regulation, or policy preventing an employee from disclosing information to a
19
government or law enforcement agency, or to a person with authority over the employee or over
20
another employee who has the authority to investigate, discover, or correct the violation or
21
noncompliance, where the employee has reasonable cause to believe that the information
22 discloses a violation of state or federal statute, or a violation or noncompliance with a state or 23 24 25 26
federal rule or regulation. 150. Labor Code §§ 1102.5(b) and (c) prohibit an employer from retaliating against an employee for disclosing such information to a government or law enforcement agency, or to a
27 28 COMPLAINT Page 33 of 46
1
person with authority over the employee or another employee who has the authority to
2
investigate, discover, or correct the violation or noncompliance, or for refusing to participate in
3
an activity that would result in a violation of state or federal statute, or a violation or
4
noncompliance with a state or federal rule or regulation.
5 6
151. As described above, Defendants retaliated against and terminated PLAINTIFF for reporting what she had reasonable cause to believe was one or more violations of state or federal
7 statute, and/or violations or noncompliance with a state or federal rule or regulation, to a person 8 9 10 11 12 13 14
with authority over her, and/or to employees who had the authority to investigate, discover, or correct such violation or noncompliance, in violation of Labor Code §1102.5. 152.
As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related opportunities, and other employment benefits, and has suffered additional damages in an amount that will be shown according to proof at the time of trial.
15 16
153. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
17
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
18
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
19
expenses, amounts to be shown according to proof at the time of trial.
20 21
154. Defendants’ wrongful actions against PLAINTIFF were outrageous and were undertaken with malice and oppression; with the intent, design and purpose of injuring
22 PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well23 24
being. All such actions of said Defendants, and each of them, their agents and employees, were
25
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
26
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
27 28 COMPLAINT Page 34 of 46
ELEVENTH CAUSE OF ACTION
1
(Negligence Against All Defendants)
2 3 4 5 6
155. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 154 as though set forth in full. 156. Defendants had a duty to properly and adequately screen, hire, monitor, train, discipline, and supervise their management personnel, supervising agents and employees in order
7 8 9 10
to protect PLAINTIFF from threatening, harassing, harmful, injurious, or humiliating conduct, or conduct that negligently or intentionally subjected such persons to extreme emotional and/or physical distress.
11
157. PLAINTIFF is informed and believes and thereon alleges that Defendants knew, or
12
in the exercise of reasonable diligence should have known, that the supervisors, agents and other
13
employees who engaged in the wrongful conduct described herein were incompetent and unfit to
14 perform the duties for which they were hired and/or employed, and that an undue risk to persons 15 16
such as PLAINTIFF would exist because of those individuals’ initial and/or continuing
17
employment. PLAINTIFF is informed and believes and thereon further alleges that Defendants
18
negligently:
19
A) failed to properly screen those employees and verify their fitness for employment prior
20
to hiring them;
21
B) failed to properly educate and train those employees to refrain from negligently or
22 intentionally threatening, harassing, harming, and/or injuring PLAINTIFF and other third 23 24
parties, and from committing the other actions described herein;
25
C) failed to properly educate and train its agents, employees, and management and
26
supervisory personnel to refrain from engaging in harassing, offensive, and/or injurious
27 28 COMPLAINT Page 35 of 46
1
conduct toward PLAINTIFF and other third parties, and/or to respond adequately to
2
complaints regarding such wrongdoing or potential wrongdoing, in order to assure that
3
such complaints were adequately investigated and that any harassing conduct was
4
effectively stopped;
5
D) failed to adequately supervise those employees in the exercise of their employment
6
tasks, thereby negligently failing to prevent them from engaging in harassing, offensive,
7 and/or injurious conduct toward PLAINTIFF and others; and 8 9
E) failed to adequately discipline those employees for engaging in such conduct, and/or
10
negligently retaining those employees in Defendants’ employ after learning that they were
11
unfit for such employment, and/or that they presented a foreseeable risk of harm to
12
individuals such as PLAINTIFF.
13 14
158. Notwithstanding Defendants' knowledge that those employees were unfit for such employment, and/or presented a foreseeable risk of harm to individuals such as PLAINTIFF,
15 16
Defendants negligently hired and retained, and negligently failed to adequately train, supervise,
17
or discipline those employees. If Defendants had not hired and/or retained those employees,
18
and/or had trained those employees to refrain from engaging in the type of wrongful acts alleged
19
herein, and/or if Defendants had adequately supervised or disciplined those employees to assure
20
that they refrained from engaging in the type of conduct alleged herein, and/or if Defendants had
21
trained their personnel to adequately respond to and investigate complaints regarding wrongful
22 conduct by such employees, the injuries to PLAINTIFF described herein would not have 23 24 25 26
occurred. 159. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been harmed in that she has suffered a substantial loss of earnings, compensation, employment-related
27 28 COMPLAINT Page 36 of 46
1 2 3
opportunities, and other employment benefits, and has suffered additional damages in an amount that will be shown according to proof at the time of trial. 160. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
4
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
5
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
6
expenses, amounts to be shown according to proof at the time of trial.
7 TWELFTH CAUSE OF ACTION
8 9 10 11 12 13 14
(Intentional Infliction of Emotional Distress Against All Defendants) 161. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 160 as though set forth in full. 162. In committing the retaliatory and wrongful actions described herein, Defendants acted intentionally and maliciously and for the purpose of causing PLAINTIFF to suffer humiliation, harm to her professional and personal reputation, mental anguish, and emotional and
15 16
physical injury. Defendants committed such wrongful acts against PLAINTIFF with knowledge
17
that her emotional and physical injury would thereby increase, and did so with a wanton and
18
reckless disregard of the consequences to PLAINTIFF.
19 20 21
163. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been harmed in that she has suffered a substantial loss of earnings, compensation, employment-related opportunities, and other employment benefits, and has suffered additional damages in an amount
22 that will be shown according to proof at the time of trial. 23 24
164. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
25
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
26
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
27 28 COMPLAINT Page 37 of 46
1 2
expenses, amounts to be shown according to proof at the time of trial. 165. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
3
undertaken with malice and oppression; with the intent, design and purpose of injuring
4
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
5
being. All such actions of said Defendants, and each of them, their agents and employees, were
6
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
7 to punitive damages in an amount sufficient to punish Defendants for their egregious conduct. 8 THIRTEENTH CAUSE OF ACTION
9 10 11 12 13 14
(Negligent Infliction of Emotional Distress Against All Defendants) 166. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 165 as though set forth in full. 167. Defendants owed a duty of care to PLAINTIFF as their employee. 168. Defendants knew, or should have known, that their retaliatory, unwarranted, and
15 16 17 18
other wrongful actions toward PLAINTIFF as described herein would cause PLAINTIFF severe emotional distress. 169. Defendants nonetheless failed to exercise due care in their actions toward
19
PLAINTIFF and in their working relationship with PLAINTIFF, thereby giving rise to
20
PLAINTIFF's claims of harm as alleged herein.
21
170. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
22 harmed in that she has suffered a substantial loss of earnings, compensation, employment-related 23 24 25 26
opportunities, and other employment benefits, and has suffered additional damages in an amount that will be shown according to proof at the time of trial. 171. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
27 28 COMPLAINT Page 38 of 46
1
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
2
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
3
expenses, amounts to be shown according to proof at the time of trial.
4 5
FOURTEENTH CAUSE OF ACTION (Unfair Competition in Violation of Business and Professions Code §17200 et seq.
6
Against All Defendants)
7 8 9 10 11
172. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 171 as though set forth in full. 173. Defendants engaged in unfair competition by engaging in unsafe, deceptive, discriminatory, retaliatory, and otherwise unlawful actions which PLAINTIFF reported and
12 13 14 15 16 17 18
objected to as described above; by terminating PLAINTIFF’s employment; and by taking the other wrongful actions alleged herein. 174. Defendants’ conduct constitutes unlawful, unfair and fraudulent activity prohibited by Business and Professions Code §17200 et seq. 175. Defendants should be required to make restitution to PLAINTIFF in the amount of all wages and employment benefits lost by and denied to PLAINTIFF as a result of
19 Defendants’ unfair competition, which resulted in substantial cost savings and profits to 20 21
Defendants.
22
///
23
///
24
FIFTEENTH CAUSE OF ACTION
25
(Violation of Moore-Brown-Roberti California Family Rights Act (“CFRA”)
26
[Gov. Code §12945.2 & Cal. Code of Regulations §7297.9] Against All Defendants)
27 28 COMPLAINT Page 39 of 46
1 2 3
176. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 175 as though set forth in full. 177. At all times herein mentioned, the Moore-Brown-Roberti California Family
4
Rights Act (“CFRA”), Government Code §12945.2 and California Code of Regulations
5
§7297.9, were in full force and effect, were binding upon Defendants, and required
6
Defendants, and their employees and agents, to provide notice to their employees, including
7 PLAINTIFF, of the right to request CFRA leave and to grant PLAINTIFF’s request for a 8 9 10 11 12 13 14
medical leave for her serious health condition with a guarantee of employment in the same or a comparable position upon the termination of the leave. 178. In addition, under CFRA, it is an unlawful employment practice for an employer to discharge, fine, suspend, expel, or discriminate against any individual because of her exercise of the right to family care and medical leave provided thereunder. 179. As described herein, PLAINTIFF notified Defendants of, and Defendants were
15 16
aware of, PLAINTIFF’s need for CFRA qualifying leave, the reason(s) for such leave, and the
17
anticipated timing and duration of the leave. PLAINTIFF was not under any legal duty to
18
expressly assert her rights under CFRA to such leave, or even mention CFRA, in order to meet
19
the required notice to her employer.
20 21
180. As further described herein, Defendants discriminated and took a variety of adverse employment actions against PLAINTIFF because of her exercise of the right to family
22 care and medical leave, including, ultimately, terminating her employment. 23 24
181. In failing to notify PLAINTIFF of her rights to take statutory family care and
25
medical leave, and in engaging in such adverse actions against her for taking such leave,
26
Defendants engaged in unlawful employment practices in violation of the CFRA.
27 28 COMPLAINT Page 40 of 46
1
182. In committing the retaliatory and wrongful actions described herein, Defendants
2
acted intentionally and maliciously and for the purpose of causing PLAINTIFF to suffer
3
humiliation, harm to her professional and personal reputation, mental anguish, and emotional and
4
physical injury. Defendants committed such wrongful acts against PLAINTIFF with knowledge
5
that her emotional and physical injury would thereby increase, and did so with a wanton and
6
reckless disregard of the consequences to PLAINTIFF.
7 183. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been 8 9
harmed in that she has suffered a substantial loss of earnings, compensation, employment-related
10
opportunities, and other employment benefits, and has suffered additional damages in an amount
11
that will be shown according to proof at the time of trial.
12 13 14
184. As a further proximate result of Defendants' wrongful actions against PLAINTIFF, PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional reputation, and other injuries; and has incurred, and will continue to incur, medical and related
15 16 17
expenses, amounts to be shown according to proof at the time of trial. 185. Defendants’ wrongful actions against PLAINTIFF were outrageous and were
18
undertaken with malice and oppression; with the intent, design and purpose of injuring
19
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
20
being. All such actions of said Defendants, and each of them, their agents and employees, were
21
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
22 to punitive damages in an amount sufficient to punish Defendants for their egregious conduct. 23 24 25 26
SIXTEENTH CAUSE OF ACTION (Violation of California Equal Pay Act [Labor Code §1197.5] Against All Defendants) 186. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 185 as though
27 28 COMPLAINT Page 41 of 46
1 2
set forth in full. 187. Effective January 1, 2016, the California Equal Pay Act prohibits employers from
3
paying any of its employees at wage rates less than the rates paid to employees of the opposite
4
sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility,
5
and performed under similar working conditions. Prior to January 1, 2016, the Act prohibited
6
employers from paying any individual in the employer's employ at wage rates less than the rates
7 paid to employees of the opposite sex in the same establishment for equal work on jobs the 8 9 10
performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.
11
188. In paying PLAINTIFF at wage rates less than her male counterpart, C.J. Ward for
12
substantially similar work when viewed as a composite of skill, effort, and responsibility, and/or
13 14
for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and performed under similar working conditions as alleged above, Defendants denied
15 16
PLAINTIFF equal pay and violated the Act.
17
189. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been
18
harmed in that she has been denied equal pay, and has suffered a substantial loss of wages,
19
earnings, and compensation, and has suffered additional damages in an amount that will be
20
shown according to proof at the time of trial.
21
190. PLAINTIFF seeks recovery of her unpaid wages, interest thereon, liquidated
22 damages equivalent to her unpaid wages, and attorney's fees and costs. 23 24 25 26
SEVENTEENTH CAUSE OF ACTION (Violation of California Constitution, Article I, section 1, Against All Defendants) 191. PLAINTIFF re-alleges and incorporates herein Paragraphs 1 through 190 as though
27 28 COMPLAINT Page 42 of 46
1 2
set forth in full. 192. Article I, § 1 of the California Constitution protects the privacy rights of the State’s
3
citizens by specifically endowing upon them a right of privacy, which protects them from
4
breaches of privacy by both public and private entities. The Constitutional protection provides:
5
All people are by nature free and independent and have inalienable rights. Among these
6
are enjoying and defending life and liberty, acquiring, possessing, and protecting
7 property, and pursuing and obtaining safety, happiness, and privacy. 8 9
193. The Constitutional privacy clause creates a right of action against private as well
10
as government entities. See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 20;
11
Pettus v. Cole, 49 Cal. App. 4th 402, 439-440.
12 13 14
194. Legally recognized constitutional privacy interests in California have been held to fall into two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential
15 16
information (known as “informational privacy”); and
17
(2) interests in making intimate personal decisions or conducting personal activities
18
without observation, intrusion, or interference (known as “autonomy privacy”). Hill, 7
19
Cal. 4th at 35.
20
195. It is well settled that informational privacy--“’the core value furthered by the
21
Privacy Initiative’"-- includes an individual’s medical information and history. See Pettus, 49
22 Cal. App. 4th 402, 440-441, quoting Hill, 7 Cal. 4th at 35, and citing Cutter v. Brownbridge 23 24
(1986) 183 Cal. App. 3d 836, 842 and Wood v. Superior Court (1985) 166 Cal. App. 3d 1138,
25
1147. See also Long Beach City Employees Assn. v. City of Long Beach (1986) 41 Cal. 3d
26
937, 944 ["If there is a quintessential zone of human privacy it is the mind. Our ability to
27 28 COMPLAINT Page 43 of 46
1
exclude others from our mental processes is intrinsic to the human personality." (Fn.
2
omitted.)]; Kees v. Medical Board (1992) 7 Cal. App. 4th 1801, [same]; Davis v. Superior
3
Court (1992) 7 Cal. App. 4th 1008, 1019 [a person's medical profile is an area of privacy
4
which cannot be compromised except upon good cause; right of privacy extends to the details
5
of one's personal life].
6
196. An individual whose constitutional right of privacy has been violated may seek
7 redress through a civil law suit for damages and/or equitable relief. See Urbaniak v. Newton 8 9
(1976) 226 Cal. App. 3d 1128, 1133-1136 (holding that plaintiff stated a valid cause of action
10
against doctor who disclosed his HIV positive status following a workers' compensation action
11
examination, and could proceed with an action for resulting damages), citing Porten v.
12
University of San Francisco (1976) 64 Cal. App. 3d 825, 829-830 (“The constitutional
13 14
provision [of Article I, § 1] is self-executing; hence, it confers a judicial right of action on all Californians"); see also Payton v. City of Santa Clara (1982) 132 Cal. App. 3d 152; White v.
15 16 17
Davis (1975) 13 Cal. 3d 757. 197. Throughout her employment with Defendants as described above, PLAINTIFF
18
had legally protected privacy rights and interests in her health and medical condition and
19
history, and in her intimate personal decisions and ability to conduct personal activities
20
without observation, intrusion, or interference. PLAINTIFF also had a reasonable expectation
21
of privacy regarding such rights and interests under the circumstances of her employment.
22 198. In engaging in the probing and intrusive conduct toward PLAINTIFF as 23 24
described above, including but not limited to requiring PLAINTIFF to enter into the “Last
25
Chance Agreement” that violated her informational and autonomy privacy rights, and required
26
her to undergo random drug and alcohol testing by giving urine samples, and to be subjected to
27 28 COMPLAINT Page 44 of 46
1
other degrading and improper intrusions, all under the threat of termination of her
2
employment, Defendants seriously invaded PLAINTIFF’s privacy in violation of Article I, § 1
3
of the California Constitution.
4 5 6
199. As a proximate result of Defendants' wrongful actions, PLAINTIFF has been harmed in that she has suffered a substantial loss of earnings, compensation, employment-related opportunities, and other employment benefits, and has suffered additional damages in an amount
7 that will be shown according to proof at the time of trial. 8 9
200. As a further proximate result of Defendants' wrongful actions against PLAINTIFF,
10
PLAINTIFF has suffered physical and emotional injuries, harm to her personal and professional
11
reputation, and other injuries; and has incurred, and will continue to incur, medical and related
12
expenses, amounts to be shown according to proof at the time of trial.
13 14
201. Defendants’ wrongful actions against PLAINTIFF were outrageous and were undertaken with malice and oppression; with the intent, design and purpose of injuring
15 16
PLAINTIFF; and in willful and conscious disregard of PLAINTIFF's rights, dignity, and well-
17
being. All such actions of said Defendants, and each of them, their agents and employees, were
18
known, ratified and approved by the Defendants, and each of them, thereby entitling PLAINTIFF
19
to punitive damages in an amount sufficient to punish Defendants for their egregious conduct.
20 21
WHEREFORE, PLAINTIFF prays for judgment against defendants as follows:
22 1.
For general damages according to proof;
2.
For special damages according to proof;
3.
For a money judgment for loss of employability, mental pain and anguish and
23 24 25
26 emotional distress, according to proof; 27 28 COMPLAINT Page 45 of 46
STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING
GOVERNOR EDMUND G. BROWN JR. DIRECTOR KEVIN KISH
2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 800-884-1684 I TDD 800-700-2320 www.dfeh.ca.gov I email:
[email protected]
November 19, 2015 Paula Lopez Ochoa The Forum, 820 State Street Santa Barbara California 93101 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 712128195489
Right to Sue: Lopez Ochoa / Mark Danielson NPG Of California, LLC D/b/a Station KEYTTV, Station KCOYTV And Station KKFXTV Dear Paula Lopez Ochoa, This letter informs you that the abovereferenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective November 19, 2015 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint. 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 abovereferenced complaint. The civil action must be filed within one year from the date of this letter. To obtain a federal Right to Sue notice, you must visit 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,
Department of Fair Employment and Housing
COMPLAINT EXHIBIT "A"
STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency
DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758 800-884-1684 I TDD 800-700-2320 www.dfeh.ca.gov I email:
[email protected]
Enclosures cc:
COMPLAINT EXHIBIT "A"
GOVERNOR EDMUND G. BROWN JR. DIRECTOR KEVIN KISH
1
COMPLAINT OF EMPLOYMENT DISCRIMINATION
2
BEFORE THE STATE OF CALIFORNIA
3
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)
4 5 6 7 8 9 10 11 12 13
DFEH No. 712128195489
In the Matter of the Complaint of Paula Lopez Ochoa, Complainant. The Forum, 820 State Street Santa Barbara California 93101 vs. Mark Danielson NPG Of California, LLC D/b/a Station KEYTTV, Station KCOYTV And Station KKFXTV, Respondent. 730 Miramonte Drive Santa Barbara, California 93109
14 15 16 17 18 19 20 21 22 23
Complainant alleges: 1. Respondent NPG Of California, LLC D/b/a Station KEYTTV, Station KCOYTV And Station KKFX TV is a subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). Complainant believes respondent is subject to the FEHA. 2. On or around September 08, 2015, complainant alleges that respondent took the following adverse actions against complainant: Discrimination, Harassment, Retaliation Demoted, Denied a good faith interactive process, Denied a work environment free of discrimination and/or retaliation, Denied equal pay, Denied or forced to transfer, Denied reasonable accommodation, Terminated, . Complainant believes respondent committed these actions because of their: Ancestry, Disability, Family Care or Medical Leave, Race, Sex Gender . 3. Complainant Paula Lopez Ochoa resides in the City of Santa Barbara, State of California. If complaint includes corespondents please see below.
5 Complaint – DFEH No. 712128195489
DFEH 9021
Date Filed: November 19, 2015
COMPLAINT EXHIBIT "A"
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
Additional Complaint Details: On a continuing basis from 2013 until my involuntary termination effective September 8, 2015, I was subjected to discrimination in the terms and conditions of my employment based on my sex, actual and perceived (regarded as) mental disability, on the history of my disability as known to my employer, on my race/ancestry (Hispanic), and as a result of my requesting and taking protected family care and medical leave. The continuing discrimination included, but was not limited to, being denied equitable compensation, being denied equal pay based on my sex, being effectively demoted involuntarily from KEYT the number two station in the market where I had worked continuously since 1996 to KCOY, the number three station in the market without explanation while my white male counterpart maintained his position at KEYT at a higher wage, being required to sign and adhere to the terms of a discriminatory Last Chance Agreement under threat of termination, being subjected to a discriminatory and unwarranted degree of scrutiny in my work and personal life, including being required to undergo random drug and alcohol testing, being subjected to unwarranted and burdensome changes in my job duties and work schedule, including being made to travel frequently 80 miles north to Santa Maria and increasing my on-air duties from two shows on one channel to four shows on two channels and being held to different standards of performance than other, similarly-situated employees who are not members of these protected categories, being denied resources and support necessary to effectively and efficiently perform my job, including but not limited to reimbursement for on-air wardrobe and high definition television make-up, being denied reasonable accommodation of, and being denied the required interactive process regarding, my disability, being subjected to hostile, intimidating, and demeaning actions, and being terminated. I have been harassed and subjected to a hostile, intimidating, and demeaning work environment. I have been denied reasonable accommodation of my disability, and an interactive process regarding such accommodation. I have been discriminated and retaliated against for requesting and taking family care and medical leave for my serious health condition.
19 20 21 22 23
6 Complaint – DFEH No. 712128195489
DFEH 9021
Date Filed: November 19, 2015
COMPLAINT EXHIBIT "A"
1 2 3 4
VERIFICATION I, Janean Acevedo Daniels, am the Attorney for Complainant in the aboveentitled complaint. I have read the foregoing complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true. On November 19, 2015, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
5
Santa Barbara, CA Janean Acevedo Daniels
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
7 Complaint – DFEH No. 712128195489
DFEH 9021
Date Filed: November 19, 2015
COMPLAINT EXHIBIT "A"
