Preview
Jihad M. Smaili, Esq. [262219]
1
Stephen D. Counts, Esq. [231348]
2 SMAILI & ASSOCIATES, PC
2114 North Broadway, Suite 200
3 Santa Ana, California 92706
714-547-4700
4
714-547-4710 (facsimile)
5 jihad@smaililaw.com
stephen@smaililaw.com
6
7 Attorneys for Plaintiff
ANGELA MORENO
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF RIVERSIDE
11
ANGELA MORENO, an ) Case No.:
12
Smaili & Associates, P.C.
individual; ) Assigned for all purposes to the
13 ) COMPLAINT:
Plaintiff, ) 1. Discrimination in Violation of Gov. Code § 12940
14 ) et seq.
v. ) 2. Failure to Accommodate in Violation of Gov. Code
15 § 12940(m)
) 3. Failure to Engage in Interactive Process in
16 WALGREEN CO., a corporate entity ) Violation of Gov. Code § 12940(n)
form unknown; and DOES 1-50, ) 4. Age Discrimination in Violation of Gov. Code §
17 inclusive, ) 12940 et seq.
) 5. Failure to Prevent Discrimination in Violation of
18 Gov. Code § 12940(k)
Defendants. ) 6. Retaliation in Violation of Gov. Code §12940(h)
19 ) 7. Failure To Provide Employment Records in
) Violation of Cal. Labor Code §1198.5 et seq.
20 ) 8. Violation of Business & Professions Code
§ 17200 et seq.
)
21 DEMAND FOR JURY TRIAL
) UNLIMITED JURISDICTION
22 )
)
23 )
24 )
)
25 )
)
26 )
27
28
COMPLAINT
1
1 Plaintiff Angela Moreno (hereinafter “Plaintiff”) alleges as follows:
2 THE PARTIES
3 1. At all times mentioned herein, and at the time the causes of action arose,
4 Plaintiff was and is an individual.
5 2. Plaintiff is informed and believes and thereon alleges that at all times
6 mentioned herein, Defendant Walgreen Co. (“Walgreen”), is a corporate entity, form
7 unknown, regularly conducting business in the State of California, and specifically, in the
8 County of Riverside. Plaintiff is further informed and believes and thereon alleges that
9 Walgreen was transacting business in the County of Riverside, State of California, at the
10 time claims of Plaintiff arose. At all times relevant, Walgreen was an employer within the
11 meaning of Government Code §12926(d) and as such was barred from, inter alia,
12 harassing, discriminating or retaliating against Plaintiff in personnel, scheduling,
Smaili & Associates, P.C.
13 employment, promotion, advancement, retention, hiring, terminating and other decisions
14 relating to Plaintiff’s employment on the basis of age, race, physical disability or medical
15 condition, participation in protected activity, and other immutable characteristics.
16 3. The true names and capacities, whether individual, corporate, associate, or
17 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff,
18 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to
19 amend this complaint to show their true names and capacities when ascertained. Plaintiff
20 is informed and believes and thereon alleges that each Defendant named herein as a DOE
21 was responsible in some manner for the occurrences and damages alleged herein.
22 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers
23 to Walgreen, and also refers to all Defendants sued under fictitious names, jointly and
24 severally.
25 5. Plaintiff is informed and believes and thereon alleges that Defendants, and
26 each of them, are now and/or at all times mentioned in this Complaint were in some
27 manner legally responsible for the events, happenings and circumstances alleged in this
28 Complaint. Plaintiff is further informed and believes and thereon alleges that Defendants,
COMPLAINT
2
1 and each of them, proximately subjected Plaintiff to the unlawful practices, wrongs,
2 complaints, injuries and/or damages alleged in this Complaint. Likewise, Defendants, and
3 each of them are now and/or at all times mentioned in this Complaint were the agents,
4 servants and/or employees of some or all other Defendants, and vice-versa, and in doing
5 the things alleged in this Complaint, Defendants are now and/or at all times mentioned in
6 this Complaint were acting within the course and scope of that agency, servitude and/or
7 employment.
8 6. Plaintiff is informed and believes and thereon alleges that Defendants, and
9 each of them, are now and/or at all times mentioned in this Complaint were members of
10 and/or engaged in a joint venture, partnership and common enterprise, and were acting
11 within the course and scope of, and in pursuance of said joint venture, partnership and
12 common enterprise.
Smaili & Associates, P.C.
13 7. Plaintiff is informed and believes and thereon alleges that Defendants, and
14 each of them, at all times mentioned in this Complaint, concurred and contributed to the
15 various acts and omissions of each and every one of the other Defendants in proximately
16 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is
17 further informed and believes and thereon alleges that Defendants, and each of them, at
18 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified
19 each and every one of the acts and/or omissions alleged in this Complaint. Likewise,
20 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted
21 the acts and omissions of each and every one of the other Defendants thereby proximately
22 causing the damages alleged in this Complaint.
23 8. Plaintiff is informed and believes and thereon alleges that at all times, the
24 actions alleged herein committed by Defendants were committed by managing agents of
25 Defendants, or, such conduct was known by and/or ratified by managing agents of
26 Defendants.
27 ///
28 ///
COMPLAINT
3
1 VENUE AND JURISDICTION
2 9. Venue is proper in this county and this Court has jurisdiction over this
3 matter because Defendants operate out of Moreno Valley, California, and, all of the
4 claims and causes of action alleged herein occurred and accrued in the County of
5 Riverside, State of California.
6 FACTUAL BACKGROUND
7 10. On or about September 15, 2004, Defendant hired Plaintiff as a
8 floater/stocker. Her job duties included, but were not limited to, stocking and picking
9 items, picking paper, and working on cycles daily counts. At 59 years of age, Plaintiff
10 worked hard and earned an hourly wage of $20.25.
11 11. On or about April 13, 2020, Plaintiff was injured while performing tasks
12 within the course and scope of her employment with Defendant. She was opening a
Smaili & Associates, P.C.
13 heavy gate when she heard a pop in her shoulder.
14 12. Plaintiff injured her right shoulder, and upper and lower back. Accordingly,
15 Plaintiff was disabled within the meaning of Gov’t Code §12926 because Plaintiff’s
16 injury limited Plaintiff from performing major life activities, including, without
17 limitation, working.
18 13. She immediately reported the incident to Defendant, but was not sent to the
19 doctor. Egregiously, Defendant accused Plaintiff of causing her own injury. Although
20 Defendant knew or should have known about Plaintiff’s work-related disability,
21 Defendant failed to provide workers’ compensation paperwork, failed to engage in a
22 good faith interactive process, and failed to provide an accommodation.
23 14. Plaintiff endured a hostile work environment where she suffered
24 harassment and abuse at the hands of Defendant and its agents. She was harassed and
25 bullied by multiple coworkers. Coworker Katrina Jimenez (“Jimenez”) bullied her on a
26 daily basis. Plaintiff reported this to HR multiple times but HR did nothing.
27
28
COMPLAINT
4
1 15. Additionally, coworker Martin Ramirez (“Ramirez”), a friend of Jimenez,
2 would also harass her. He would stand in close proximity to her and stare at her while she
3 was working. Plaintiff reported this to HR, but HR again did nothing.
4 16. On or about April 15, 2020, Defendant terminated Plaintiff. Defendant
5 terminated Plaintiff, upon information and belief, in retaliation against her requests for
6 accommodation perceived filing for workers’ compensation, and reporting of harassment,
7 and in discrimination against her disability and age.
8 17. Plaintiff suffered from harassment, discrimination, retaliation, and
9 ultimately termination on the basis of her disability, age, requesting accommodation, and
10 engagement in protected activity. Further, Defendant utterly failed to provide workers’
11 compensation paperwork, failed to engage in a good faith interactive process, and failed
12 to offer any reasonable accommodation.
Smaili & Associates, P.C.
13 18. On or about March 22, 2023, Plaintiff requested her payroll stubs and
14 personnel file. Defendant did not produce the requested documents.
15 19. Before filing this lawsuit, Plaintiff exhausted her administrative remedies
16 by timely filing a complaint with the State of California Civil Rights Department
17 (formerly known as the Department of Fair Employment and Housing) and receiving a
18 right-to-sue notice.
19 FIRST CAUSE OF ACTION
20 DISCRIMINATION IN VIOLATION OF
21 CALIFORNIA GOVERNMENT CODE § 12940 et seq.
22 (Against All Defendants)
23 20. Plaintiff re-alleges and incorporates by reference all allegations contained
24 in the preceding paragraphs of this Complaint as though fully set forth herein.
25 21. California law, and particularly the Fair Employment and Housing Act
26 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against
27 persons with a physical condition or disability, which is broadly defined therein, and
28 which includes even the perception that a person has a medical or mental condition
COMPLAINT
5
1 and/or physical condition or disability. FEHA further prohibits discrimination based
2 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and
3 other immutable characteristics.
4 22. Plaintiff has a disability as alleged above.
5 23. Defendant was aware of Plaintiff’s disability, as herein alleged, because
6 Plaintiff specifically reported said disability directly to Defendant via Defendant’s
7 supervisors and managing agents.
8 24. At all times herein alleged, Plaintiff was qualified for the position of
9 employment that she held with Defendant and was able to perform the essential functions
10 of that job.
11 25. Plaintiff is informed and believes and thereon alleges that as a direct and
12 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an
Smaili & Associates, P.C.
13 interactive process, refused to communicate with Plaintiff, refused to accommodate
14 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn
15 a living, and terminated Plaintiff.
16 26. Defendant’s discriminatory action against Plaintiff, as alleged above,
17 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in
18 violation of FEHA, and particularly Gov’t Code §12940(a).
19 27. As a direct, foreseeable, and proximate result of Defendant’s discriminatory
20 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
21 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
22 amounts of money Plaintiff would have received but for Defendants’ discriminatory
23 conduct, all in an amount subject to proof at the time of trial, but believed to be no less
24 than three-hundred thousand dollars ($300,000) and no more than three million dollars
25 ($3,000,000).
26 28. As a direct, foreseeable, and proximate result of the wrongful conduct of
27 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
28 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an
COMPLAINT
6
1 amount subject to proof at trial.
2 29. Plaintiff is informed and believes and thereon alleges that the above-alleged
3 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
4 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
5 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
6 enabled agents to believe that their conduct was appropriate.
7 30. Defendant, and each of them, failed to offer counseling or comfort to
8 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
9 workplace.
10 31. Plaintiff is informed and believes and thereon alleges that Defendant has a
11 systemic and wide-spread policy of discriminating against and retaliating against
12 employees with disabilities. By failing to stop the discrimination, harassment and
Smaili & Associates, P.C.
13 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
14 directly caused a vicious cycle of wrongful conduct with impunity.
15 32. Plaintiff is informed and believes and thereon alleges that her disability was
16 a motivating factor in the decision of Defendant to discriminate against her and terminate
17 her.
18 33. The outrageous conduct of Defendant, and each of them, as alleged herein,
19 was done with oppression and malice by Defendant and its supervisors and managers,
20 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
21 individuals who were managing agents of Defendant.
22 34. The conduct of Defendant as alleged hereinabove was done with malice,
23 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
24 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
25 35. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
26 amount according to proof at the time of trial which fees and expenses are recoverable
27 pursuant to Gov’t Code §12900 et seq.
28 ///
COMPLAINT
7
1 SECOND CAUSE OF ACTION
2 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF
3 CALIFORNIA GOVERNMENT CODE § 12940(m)
4 (Against All Defendants)
5 36. Plaintiff re-alleges and incorporates by reference all allegations contained
6 in the preceding paragraphs of this Complaint as though fully set forth herein.
7 37. Plaintiff has a disability as alleged above.
8 38. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
9 39. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed
10 and refused to engage in an interactive process with Plaintiff, and, failed to address
11 Plaintiff’s needs in light of her disabilities.
12 40. At all times herein alleged, Plaintiff was qualified for the position of
Smaili & Associates, P.C.
13 employment that she held with Defendant and was able to perform the essential functions
14 of that job if such reasonable accommodation had been made by Defendant. At no time
15 would the performance of the functions of the employment position, with a reasonable
16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
17 person’s health or safety, nor would it have created an undue hardship to the operation of
18 Defendant’s business.
19 41. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes
20 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code
21 §12940.
22 42. As a direct, foreseeable, and proximate result of Defendant’s wrongful
23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
26 in an amount believed to be no less than three-hundred thousand dollars ($300,000), and
27 no more than three million dollars ($3,000,000), all subject to proof at the time of trial.
28 43. As a direct, foreseeable, and proximate result of the wrongful conduct of
COMPLAINT
8
1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
2 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an
3 amount subject to proof at trial.
4 44. Plaintiff is informed and believes and thereon alleges that the above-alleged
5 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
8 enabled agents to believe that their conduct was appropriate.
9 45. Defendant, and each of them, failed to offer counseling or comfort to
10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
11 workplace.
12 46. Plaintiff is informed and believes and thereon alleges that Defendant has a
Smaili & Associates, P.C.
13 systemic and wide-spread policy of discriminating against and retaliating against
14 employees with disabilities. By failing to stop the discrimination, harassment and
15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
16 directly caused a vicious cycle of wrongful conduct with impunity.
17 47. Plaintiff is informed and believes and thereon alleges that Defendant’s
18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
19 Defendant to discriminate against her and ultimately terminate her.
20 48. The outrageous conduct of Defendant, and each of them, as alleged herein,
21 was done with oppression and malice by Defendant and its supervisors and managers,
22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
23 individuals who were managing agents of Defendant.
24 49. The conduct of Defendant as alleged hereinabove was done with malice,
25 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law.
26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
27 50. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
28 amount according to proof at the time of trial which fees and expenses are recoverable
COMPLAINT
9
1 pursuant to Gov’t Code §12900 et seq.
2 THIRD CAUSE OF ACTION
3 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN
4 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n)
5 (Against All Defendants)
6 51. Plaintiff re-alleges and incorporates by reference all allegations contained
7 in the preceding paragraphs of this Complaint as though fully set forth herein.
8 52. Plaintiff has a disability as alleged above.
9 53. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
10 54. Defendant failed and refused to engage Plaintiff in an interactive process
11 designed to unite Plaintiff with her job.
12 55. At all times herein alleged, Plaintiff was qualified for the position of
Smaili & Associates, P.C.
13 employment that she held with Defendant and was able to perform the essential functions
14 of that job if such reasonable accommodation had been made by Defendant. At no time
15 would the performance of the functions of the employment position, with a reasonable
16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
17 person’s health or safety, nor would it have created an undue hardship to the operation of
18 Defendant’s business.
19 56. Defendant’s failure to engage with Plaintiff in an interactive process, as
20 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and
21 particularly Gov’t Code §12940.
22 57. As a direct, foreseeable, and proximate result of Defendant’s wrongful
23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
26 all in an amount no less than three-hundred thousand dollars ($300,000), and no more
27 than three million dollars ($3,000,000), subject to proof at the time of trial.
28 58. As a direct, foreseeable, and proximate result of the wrongful conduct of
COMPLAINT
10
1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
2 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an
3 amount subject to proof at trial.
4 59. Plaintiff is informed and believes and thereon alleges that the above-alleged
5 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
8 enabled agents to believe that their conduct was appropriate.
9 60. Defendant, and each of them, failed to offer counseling or comfort to
10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
11 workplace.
12 61. Plaintiff is informed and believes and thereon alleges that Defendant has a
Smaili & Associates, P.C.
13 systemic and wide-spread policy of discriminating against and retaliating against
14 employees with disabilities. By failing to stop the discrimination, harassment and
15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
16 directly caused a vicious cycle of wrongful conduct with impunity.
17 62. Plaintiff is informed and believes and thereon alleges that Defendant’s
18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
19 Defendant to discriminate against her and ultimately terminate her.
20 63. The outrageous conduct of Defendant, and each of them, as alleged herein,
21 was done with oppression and malice by Defendant and its supervisors and managers,
22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
23 individuals who were managing agents of Defendant.
24 64. The conduct of Defendant as alleged hereinabove was done with malice,
25 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
27 65. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
28 amount according to proof at the time of trial which fees and expenses are recoverable
COMPLAINT
11
1 pursuant to Gov’t Code §12900 et seq.
2 FOURTH CAUSE OF ACTION
3 AGE DISCRIMINATION
4 IN VIOLATION OF GOV. CODE § 12940 et seq.
5 (Against All Defendants)
6 66. Plaintiff re-alleges and incorporates by reference all allegations contained
7 in the preceding paragraphs of this Complaint as though fully set forth herein.
8 67. At all times herein mentioned, Gov’t Code §§12940(a) and 12941 were in
9 full force and effect and were binding on Defendant. These sections require Defendant to
10 refrain from discriminating against any employee over the age of 40 because of their age.
11 68. At the time of Plaintiff’s injury and at the time of Plaintiff’s termination,
12 and at all times that Defendant was discriminating against Plaintiff as alleged herein,
Smaili & Associates, P.C.
13 Plaintiff was over the age of 40. Plaintiff is informed and believes and thereon alleges
14 that after wholly satisfactory, competent and diligent performance to the profit of
15 Defendants, that Plaintiff’s age, being over 40, was a motivating factor in Defendants’
16 decision to terminate Plaintiff’s employment. Said conduct by Defendants was intentional
17 and willful.
18 69. Plaintiff is informed and believes and thereon alleges that Plaintiff was
19 replaced with an employee below the age of 40.
20 70. Defendant was aware of Plaintiff’s age, as herein alleged, because Plaintiff
21 maintained Plaintiff’s personnel file which specifically contained the date of Plaintiff’s
22 birth and her corresponding age.
23 71. At all times herein alleged, Plaintiff was qualified for the position of
24 employment that she held with Defendant and was able to perform the essential functions
25 of that job.
26 72. Plaintiff is informed and believes and thereon alleges that as a direct and
27 proximate result of Plaintiff’s age, Defendant decided to terminate Plaintiff’s
28 employment, and in fact, did terminate Plaintiff’s employment.
COMPLAINT
12
1 73. Defendants’ discriminatory action against Plaintiff, as alleged above,
2 constitutes unlawful discrimination in employment on account of Plaintiff’s age in
3 violation of FEHA, and particularly Gov’t Code §12940.
4 74. As a direct, foreseeable, and proximate result of Defendants’ discriminatory
5 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
6 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
7 amounts of money Plaintiff would have received but for Defendant’s discriminatory
8 conduct, all in an amount subject to proof at the time of trial.
9 75. As a direct, foreseeable, and proximate result of the wrongful conduct of
10 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
11 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an
12 amount subject to proof at trial.
Smaili & Associates, P.C.
13 76. Plaintiff is informed and believes and thereon alleges that the above-alleged
14 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
15 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
16 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
17 enabled agents to believe that their conduct was appropriate.
18 77. Defendants, and each of them, failed to offer counseling or comfort to
19 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
20 workplace.
21 78. Plaintiff is informed and believes and thereon alleges that Defendant has a
22 systemic and wide-spread policy of discriminating against and retaliating against
23 employees over the age of 40. By failing to stop the discrimination, harassment and
24 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
25 directly caused a vicious cycle of wrongful conduct with impunity.
26 79. The outrageous conduct of Defendant, and each of them was done with
27 oppression and malice by Defendant and its supervisors and managers, along with
28 conscious disregard of Plaintiff’s rights, and were ratified by those other individuals who
COMPLAINT
13
1 were managing agents of Defendant.
2 80. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
3 amount according to proof at the time of trial which fees and expenses are recoverable
4 pursuant to Gov’t Code §12900 et seq.
5 FIFTH CAUSE OF ACTION
6 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION
7 OF CALIFORNIA GOVERNMENT CODE § 12940(k)
8 (Against All Defendants)
9 81. Plaintiff re-alleges and incorporates by reference all allegations contained
10 in the preceding paragraphs of this Complaint as though fully set forth herein.
11 82. During the course of employment, Defendant, and each of them, failed to
12 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis
Smaili & Associates, P.C.
13 of her disability, requesting accommodation, age, and participation in protected conduct,
14 in violation of Government Code §12940(k).
15 83. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered,
16 and continues to suffer, substantial losses in earnings and other benefits in an amount
17 according to proof at the time trial, including special and general damages.
18 84. As a direct, foreseeable, and proximate result of the wrongful conduct of
19 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish,
20 humiliation, substantial losses in salary, bonuses, job benefits, and other employment
21 benefits which she would have received all to her damage in a sum within the jurisdiction
22 of the Court to be ascertained according to proof.
23 85. Plaintiff is informed and believes and thereon alleges that the outrageous
24 conduct of Defendant, and each of them, as alleged herein, was done with oppression and
25 malice by Plaintiff’s supervisors and managers, along with conscious disregard of
26 Plaintiff’s rights, and were ratified by those other individuals who were managing agents
27 of Defendant.
28 86. As a proximate result of the wrongful conduct of Defendant, and each of
COMPLAINT
14
1 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and
2 mental and physical pain and anguish according to proof at the time of trial.
3 87. These unlawful acts were further encouraged by Defendant and done with a
4 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of
5 injuring Plaintiff. The conduct of Defendant alleged hereinabove was done with malice,
6 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
7 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
8 88. Plaintiff has also incurred and continues to incur attorneys’ fees and legal
9 expenses in an amount according to proof at the time of trial.
10 SIXTH CAUSE OF ACTION
11 RETALIATION IN VIOLATION OF
12 CALIFORNIA GOVERNMENT CODE §12940(h)
Smaili & Associates, P.C.
13 (Against All Defendants)
14 89. Plaintiff re-alleges and incorporates by reference all allegations contained
15 in the preceding paragraphs of this Complaint as though fully set forth herein.
16 90. At all times herein mentioned, FEHA, Government Code §12940(h), was in
17 full force and effect and was binding on Defendant. This statute requires Defendant to
18 refrain from retaliating against Plaintiff.
19 91. Plaintiff is informed and believes and thereon alleges that as a consequence
20 of her resistance of Defendant’s harassment, requests for accommodation for her
21 disability, meal and rest breaks, proper compensation including wages and overtime,
22 filing/perceived filing for workers’ compensation, and complaints to Defendant about
23 harassing and discriminatory acts being committed against Plaintiff, coupled with
24 Plaintiff’s age and disability for which workers compensation coverage was required
25 along with reasonable accommodation, Defendant took retaliatory action against Plaintiff
26 by failing to conduct a good faith interactive process aimed at reuniting Plaintiff with her
27 job, failing to determine the essential functions of Plaintiff’s job, mistreating Plaintiff,
28 denying Plaintiff advancement and promotion, and ultimately terminating Plaintiff.
COMPLAINT
15
1 92. Defendant unlawfully retaliated against Plaintiff after she engaged in
2 protected activity, such as without limitation, resisting harassment, requesting her meal
3 and rest breaks, requesting proper compensation including wages and overtime,
4 requesting disability accommodations, filing/perceived filing for workers’ compensation,
5 and lodging workplace complaints related to the harassment and discrimination that she
6 was facing, and other complaints of a hostile and unsafe working environment.
7 93. As a proximate result of Defendant’s
Preview
Jihad M. Smaili, Esq. [262219] 1 Stephen D. Counts, Esq. [231348] 2 SMAILI & ASSOCIATES, PC 2114 North Broadway, Suite 200 3 Santa Ana, California 92706 714-547-4700 4 714-547-4710 (facsimile) 5 jihad@smaililaw.com stephen@smaililaw.com 6 7 Attorneys for Plaintiff ANGELA MORENO 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF RIVERSIDE 11 ANGELA MORENO, an ) Case No.: 12 Smaili & Associates, P.C. individual; ) Assigned for all purposes to the 13 ) COMPLAINT: Plaintiff, ) 1. Discrimination in Violation of Gov. Code § 12940 14 ) et seq. v. ) 2. Failure to Accommodate in Violation of Gov. Code 15 § 12940(m) ) 3. Failure to Engage in Interactive Process in 16 WALGREEN CO., a corporate entity ) Violation of Gov. Code § 12940(n) form unknown; and DOES 1-50, ) 4. Age Discrimination in Violation of Gov. Code § 17 inclusive, ) 12940 et seq. ) 5. Failure to Prevent Discrimination in Violation of 18 Gov. Code § 12940(k) Defendants. ) 6. Retaliation in Violation of Gov. Code §12940(h) 19 ) 7. Failure To Provide Employment Records in ) Violation of Cal. Labor Code §1198.5 et seq. 20 ) 8. Violation of Business & Professions Code § 17200 et seq. ) 21 DEMAND FOR JURY TRIAL ) UNLIMITED JURISDICTION 22 ) ) 23 ) 24 ) ) 25 ) ) 26 ) 27 28 COMPLAINT 1 1 Plaintiff Angela Moreno (hereinafter “Plaintiff”) alleges as follows: 2 THE PARTIES 3 1. At all times mentioned herein, and at the time the causes of action arose, 4 Plaintiff was and is an individual. 5 2. Plaintiff is informed and believes and thereon alleges that at all times 6 mentioned herein, Defendant Walgreen Co. (“Walgreen”), is a corporate entity, form 7 unknown, regularly conducting business in the State of California, and specifically, in the 8 County of Riverside. Plaintiff is further informed and believes and thereon alleges that 9 Walgreen was transacting business in the County of Riverside, State of California, at the 10 time claims of Plaintiff arose. At all times relevant, Walgreen was an employer within the 11 meaning of Government Code §12926(d) and as such was barred from, inter alia, 12 harassing, discriminating or retaliating against Plaintiff in personnel, scheduling, Smaili & Associates, P.C. 13 employment, promotion, advancement, retention, hiring, terminating and other decisions 14 relating to Plaintiff’s employment on the basis of age, race, physical disability or medical 15 condition, participation in protected activity, and other immutable characteristics. 16 3. The true names and capacities, whether individual, corporate, associate, or 17 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff, 18 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to 19 amend this complaint to show their true names and capacities when ascertained. Plaintiff 20 is informed and believes and thereon alleges that each Defendant named herein as a DOE 21 was responsible in some manner for the occurrences and damages alleged herein. 22 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers 23 to Walgreen, and also refers to all Defendants sued under fictitious names, jointly and 24 severally. 25 5. Plaintiff is informed and believes and thereon alleges that Defendants, and 26 each of them, are now and/or at all times mentioned in this Complaint were in some 27 manner legally responsible for the events, happenings and circumstances alleged in this 28 Complaint. Plaintiff is further informed and believes and thereon alleges that Defendants, COMPLAINT 2 1 and each of them, proximately subjected Plaintiff to the unlawful practices, wrongs, 2 complaints, injuries and/or damages alleged in this Complaint. Likewise, Defendants, and 3 each of them are now and/or at all times mentioned in this Complaint were the agents, 4 servants and/or employees of some or all other Defendants, and vice-versa, and in doing 5 the things alleged in this Complaint, Defendants are now and/or at all times mentioned in 6 this Complaint were acting within the course and scope of that agency, servitude and/or 7 employment. 8 6. Plaintiff is informed and believes and thereon alleges that Defendants, and 9 each of them, are now and/or at all times mentioned in this Complaint were members of 10 and/or engaged in a joint venture, partnership and common enterprise, and were acting 11 within the course and scope of, and in pursuance of said joint venture, partnership and 12 common enterprise. Smaili & Associates, P.C. 13 7. Plaintiff is informed and believes and thereon alleges that Defendants, and 14 each of them, at all times mentioned in this Complaint, concurred and contributed to the 15 various acts and omissions of each and every one of the other Defendants in proximately 16 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is 17 further informed and believes and thereon alleges that Defendants, and each of them, at 18 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified 19 each and every one of the acts and/or omissions alleged in this Complaint. Likewise, 20 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted 21 the acts and omissions of each and every one of the other Defendants thereby proximately 22 causing the damages alleged in this Complaint. 23 8. Plaintiff is informed and believes and thereon alleges that at all times, the 24 actions alleged herein committed by Defendants were committed by managing agents of 25 Defendants, or, such conduct was known by and/or ratified by managing agents of 26 Defendants. 27 /// 28 /// COMPLAINT 3 1 VENUE AND JURISDICTION 2 9. Venue is proper in this county and this Court has jurisdiction over this 3 matter because Defendants operate out of Moreno Valley, California, and, all of the 4 claims and causes of action alleged herein occurred and accrued in the County of 5 Riverside, State of California. 6 FACTUAL BACKGROUND 7 10. On or about September 15, 2004, Defendant hired Plaintiff as a 8 floater/stocker. Her job duties included, but were not limited to, stocking and picking 9 items, picking paper, and working on cycles daily counts. At 59 years of age, Plaintiff 10 worked hard and earned an hourly wage of $20.25. 11 11. On or about April 13, 2020, Plaintiff was injured while performing tasks 12 within the course and scope of her employment with Defendant. She was opening a Smaili & Associates, P.C. 13 heavy gate when she heard a pop in her shoulder. 14 12. Plaintiff injured her right shoulder, and upper and lower back. Accordingly, 15 Plaintiff was disabled within the meaning of Gov’t Code §12926 because Plaintiff’s 16 injury limited Plaintiff from performing major life activities, including, without 17 limitation, working. 18 13. She immediately reported the incident to Defendant, but was not sent to the 19 doctor. Egregiously, Defendant accused Plaintiff of causing her own injury. Although 20 Defendant knew or should have known about Plaintiff’s work-related disability, 21 Defendant failed to provide workers’ compensation paperwork, failed to engage in a 22 good faith interactive process, and failed to provide an accommodation. 23 14. Plaintiff endured a hostile work environment where she suffered 24 harassment and abuse at the hands of Defendant and its agents. She was harassed and 25 bullied by multiple coworkers. Coworker Katrina Jimenez (“Jimenez”) bullied her on a 26 daily basis. Plaintiff reported this to HR multiple times but HR did nothing. 27 28 COMPLAINT 4 1 15. Additionally, coworker Martin Ramirez (“Ramirez”), a friend of Jimenez, 2 would also harass her. He would stand in close proximity to her and stare at her while she 3 was working. Plaintiff reported this to HR, but HR again did nothing. 4 16. On or about April 15, 2020, Defendant terminated Plaintiff. Defendant 5 terminated Plaintiff, upon information and belief, in retaliation against her requests for 6 accommodation perceived filing for workers’ compensation, and reporting of harassment, 7 and in discrimination against her disability and age. 8 17. Plaintiff suffered from harassment, discrimination, retaliation, and 9 ultimately termination on the basis of her disability, age, requesting accommodation, and 10 engagement in protected activity. Further, Defendant utterly failed to provide workers’ 11 compensation paperwork, failed to engage in a good faith interactive process, and failed 12 to offer any reasonable accommodation. Smaili & Associates, P.C. 13 18. On or about March 22, 2023, Plaintiff requested her payroll stubs and 14 personnel file. Defendant did not produce the requested documents. 15 19. Before filing this lawsuit, Plaintiff exhausted her administrative remedies 16 by timely filing a complaint with the State of California Civil Rights Department 17 (formerly known as the Department of Fair Employment and Housing) and receiving a 18 right-to-sue notice. 19 FIRST CAUSE OF ACTION 20 DISCRIMINATION IN VIOLATION OF 21 CALIFORNIA GOVERNMENT CODE § 12940 et seq. 22 (Against All Defendants) 23 20. Plaintiff re-alleges and incorporates by reference all allegations contained 24 in the preceding paragraphs of this Complaint as though fully set forth herein. 25 21. California law, and particularly the Fair Employment and Housing Act 26 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against 27 persons with a physical condition or disability, which is broadly defined therein, and 28 which includes even the perception that a person has a medical or mental condition COMPLAINT 5 1 and/or physical condition or disability. FEHA further prohibits discrimination based 2 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and 3 other immutable characteristics. 4 22. Plaintiff has a disability as alleged above. 5 23. Defendant was aware of Plaintiff’s disability, as herein alleged, because 6 Plaintiff specifically reported said disability directly to Defendant via Defendant’s 7 supervisors and managing agents. 8 24. At all times herein alleged, Plaintiff was qualified for the position of 9 employment that she held with Defendant and was able to perform the essential functions 10 of that job. 11 25. Plaintiff is informed and believes and thereon alleges that as a direct and 12 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an Smaili & Associates, P.C. 13 interactive process, refused to communicate with Plaintiff, refused to accommodate 14 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn 15 a living, and terminated Plaintiff. 16 26. Defendant’s discriminatory action against Plaintiff, as alleged above, 17 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in 18 violation of FEHA, and particularly Gov’t Code §12940(a). 19 27. As a direct, foreseeable, and proximate result of Defendant’s discriminatory 20 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 21 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 22 amounts of money Plaintiff would have received but for Defendants’ discriminatory 23 conduct, all in an amount subject to proof at the time of trial, but believed to be no less 24 than three-hundred thousand dollars ($300,000) and no more than three million dollars 25 ($3,000,000). 26 28. As a direct, foreseeable, and proximate result of the wrongful conduct of 27 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 28 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an COMPLAINT 6 1 amount subject to proof at trial. 2 29. Plaintiff is informed and believes and thereon alleges that the above-alleged 3 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 4 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 5 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 6 enabled agents to believe that their conduct was appropriate. 7 30. Defendant, and each of them, failed to offer counseling or comfort to 8 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 9 workplace. 10 31. Plaintiff is informed and believes and thereon alleges that Defendant has a 11 systemic and wide-spread policy of discriminating against and retaliating against 12 employees with disabilities. By failing to stop the discrimination, harassment and Smaili & Associates, P.C. 13 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 14 directly caused a vicious cycle of wrongful conduct with impunity. 15 32. Plaintiff is informed and believes and thereon alleges that her disability was 16 a motivating factor in the decision of Defendant to discriminate against her and terminate 17 her. 18 33. The outrageous conduct of Defendant, and each of them, as alleged herein, 19 was done with oppression and malice by Defendant and its supervisors and managers, 20 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 21 individuals who were managing agents of Defendant. 22 34. The conduct of Defendant as alleged hereinabove was done with malice, 23 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 24 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 25 35. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 26 amount according to proof at the time of trial which fees and expenses are recoverable 27 pursuant to Gov’t Code §12900 et seq. 28 /// COMPLAINT 7 1 SECOND CAUSE OF ACTION 2 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF 3 CALIFORNIA GOVERNMENT CODE § 12940(m) 4 (Against All Defendants) 5 36. Plaintiff re-alleges and incorporates by reference all allegations contained 6 in the preceding paragraphs of this Complaint as though fully set forth herein. 7 37. Plaintiff has a disability as alleged above. 8 38. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 9 39. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed 10 and refused to engage in an interactive process with Plaintiff, and, failed to address 11 Plaintiff’s needs in light of her disabilities. 12 40. At all times herein alleged, Plaintiff was qualified for the position of Smaili & Associates, P.C. 13 employment that she held with Defendant and was able to perform the essential functions 14 of that job if such reasonable accommodation had been made by Defendant. At no time 15 would the performance of the functions of the employment position, with a reasonable 16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 17 person’s health or safety, nor would it have created an undue hardship to the operation of 18 Defendant’s business. 19 41. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes 20 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code 21 §12940. 22 42. As a direct, foreseeable, and proximate result of Defendant’s wrongful 23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 26 in an amount believed to be no less than three-hundred thousand dollars ($300,000), and 27 no more than three million dollars ($3,000,000), all subject to proof at the time of trial. 28 43. As a direct, foreseeable, and proximate result of the wrongful conduct of COMPLAINT 8 1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 2 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an 3 amount subject to proof at trial. 4 44. Plaintiff is informed and believes and thereon alleges that the above-alleged 5 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 8 enabled agents to believe that their conduct was appropriate. 9 45. Defendant, and each of them, failed to offer counseling or comfort to 10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 11 workplace. 12 46. Plaintiff is informed and believes and thereon alleges that Defendant has a Smaili & Associates, P.C. 13 systemic and wide-spread policy of discriminating against and retaliating against 14 employees with disabilities. By failing to stop the discrimination, harassment and 15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 16 directly caused a vicious cycle of wrongful conduct with impunity. 17 47. Plaintiff is informed and believes and thereon alleges that Defendant’s 18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of 19 Defendant to discriminate against her and ultimately terminate her. 20 48. The outrageous conduct of Defendant, and each of them, as alleged herein, 21 was done with oppression and malice by Defendant and its supervisors and managers, 22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 23 individuals who were managing agents of Defendant. 24 49. The conduct of Defendant as alleged hereinabove was done with malice, 25 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law. 26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 27 50. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 28 amount according to proof at the time of trial which fees and expenses are recoverable COMPLAINT 9 1 pursuant to Gov’t Code §12900 et seq. 2 THIRD CAUSE OF ACTION 3 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN 4 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n) 5 (Against All Defendants) 6 51. Plaintiff re-alleges and incorporates by reference all allegations contained 7 in the preceding paragraphs of this Complaint as though fully set forth herein. 8 52. Plaintiff has a disability as alleged above. 9 53. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 10 54. Defendant failed and refused to engage Plaintiff in an interactive process 11 designed to unite Plaintiff with her job. 12 55. At all times herein alleged, Plaintiff was qualified for the position of Smaili & Associates, P.C. 13 employment that she held with Defendant and was able to perform the essential functions 14 of that job if such reasonable accommodation had been made by Defendant. At no time 15 would the performance of the functions of the employment position, with a reasonable 16 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 17 person’s health or safety, nor would it have created an undue hardship to the operation of 18 Defendant’s business. 19 56. Defendant’s failure to engage with Plaintiff in an interactive process, as 20 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and 21 particularly Gov’t Code §12940. 22 57. As a direct, foreseeable, and proximate result of Defendant’s wrongful 23 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 24 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 25 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 26 all in an amount no less than three-hundred thousand dollars ($300,000), and no more 27 than three million dollars ($3,000,000), subject to proof at the time of trial. 28 58. As a direct, foreseeable, and proximate result of the wrongful conduct of COMPLAINT 10 1 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 2 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an 3 amount subject to proof at trial. 4 59. Plaintiff is informed and believes and thereon alleges that the above-alleged 5 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 6 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 7 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 8 enabled agents to believe that their conduct was appropriate. 9 60. Defendant, and each of them, failed to offer counseling or comfort to 10 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 11 workplace. 12 61. Plaintiff is informed and believes and thereon alleges that Defendant has a Smaili & Associates, P.C. 13 systemic and wide-spread policy of discriminating against and retaliating against 14 employees with disabilities. By failing to stop the discrimination, harassment and 15 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 16 directly caused a vicious cycle of wrongful conduct with impunity. 17 62. Plaintiff is informed and believes and thereon alleges that Defendant’s 18 desire to avoid accommodating Plaintiff was a motivating factor in the decision of 19 Defendant to discriminate against her and ultimately terminate her. 20 63. The outrageous conduct of Defendant, and each of them, as alleged herein, 21 was done with oppression and malice by Defendant and its supervisors and managers, 22 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 23 individuals who were managing agents of Defendant. 24 64. The conduct of Defendant as alleged hereinabove was done with malice, 25 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 26 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 27 65. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 28 amount according to proof at the time of trial which fees and expenses are recoverable COMPLAINT 11 1 pursuant to Gov’t Code §12900 et seq. 2 FOURTH CAUSE OF ACTION 3 AGE DISCRIMINATION 4 IN VIOLATION OF GOV. CODE § 12940 et seq. 5 (Against All Defendants) 6 66. Plaintiff re-alleges and incorporates by reference all allegations contained 7 in the preceding paragraphs of this Complaint as though fully set forth herein. 8 67. At all times herein mentioned, Gov’t Code §§12940(a) and 12941 were in 9 full force and effect and were binding on Defendant. These sections require Defendant to 10 refrain from discriminating against any employee over the age of 40 because of their age. 11 68. At the time of Plaintiff’s injury and at the time of Plaintiff’s termination, 12 and at all times that Defendant was discriminating against Plaintiff as alleged herein, Smaili & Associates, P.C. 13 Plaintiff was over the age of 40. Plaintiff is informed and believes and thereon alleges 14 that after wholly satisfactory, competent and diligent performance to the profit of 15 Defendants, that Plaintiff’s age, being over 40, was a motivating factor in Defendants’ 16 decision to terminate Plaintiff’s employment. Said conduct by Defendants was intentional 17 and willful. 18 69. Plaintiff is informed and believes and thereon alleges that Plaintiff was 19 replaced with an employee below the age of 40. 20 70. Defendant was aware of Plaintiff’s age, as herein alleged, because Plaintiff 21 maintained Plaintiff’s personnel file which specifically contained the date of Plaintiff’s 22 birth and her corresponding age. 23 71. At all times herein alleged, Plaintiff was qualified for the position of 24 employment that she held with Defendant and was able to perform the essential functions 25 of that job. 26 72. Plaintiff is informed and believes and thereon alleges that as a direct and 27 proximate result of Plaintiff’s age, Defendant decided to terminate Plaintiff’s 28 employment, and in fact, did terminate Plaintiff’s employment. COMPLAINT 12 1 73. Defendants’ discriminatory action against Plaintiff, as alleged above, 2 constitutes unlawful discrimination in employment on account of Plaintiff’s age in 3 violation of FEHA, and particularly Gov’t Code §12940. 4 74. As a direct, foreseeable, and proximate result of Defendants’ discriminatory 5 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 6 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 7 amounts of money Plaintiff would have received but for Defendant’s discriminatory 8 conduct, all in an amount subject to proof at the time of trial. 9 75. As a direct, foreseeable, and proximate result of the wrongful conduct of 10 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 11 distress and anguish, humiliation, anxiety, and medical expenses all to her damage in an 12 amount subject to proof at trial. Smaili & Associates, P.C. 13 76. Plaintiff is informed and believes and thereon alleges that the above-alleged 14 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 15 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 16 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 17 enabled agents to believe that their conduct was appropriate. 18 77. Defendants, and each of them, failed to offer counseling or comfort to 19 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 20 workplace. 21 78. Plaintiff is informed and believes and thereon alleges that Defendant has a 22 systemic and wide-spread policy of discriminating against and retaliating against 23 employees over the age of 40. By failing to stop the discrimination, harassment and 24 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 25 directly caused a vicious cycle of wrongful conduct with impunity. 26 79. The outrageous conduct of Defendant, and each of them was done with 27 oppression and malice by Defendant and its supervisors and managers, along with 28 conscious disregard of Plaintiff’s rights, and were ratified by those other individuals who COMPLAINT 13 1 were managing agents of Defendant. 2 80. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 3 amount according to proof at the time of trial which fees and expenses are recoverable 4 pursuant to Gov’t Code §12900 et seq. 5 FIFTH CAUSE OF ACTION 6 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION 7 OF CALIFORNIA GOVERNMENT CODE § 12940(k) 8 (Against All Defendants) 9 81. Plaintiff re-alleges and incorporates by reference all allegations contained 10 in the preceding paragraphs of this Complaint as though fully set forth herein. 11 82. During the course of employment, Defendant, and each of them, failed to 12 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis Smaili & Associates, P.C. 13 of her disability, requesting accommodation, age, and participation in protected conduct, 14 in violation of Government Code §12940(k). 15 83. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered, 16 and continues to suffer, substantial losses in earnings and other benefits in an amount 17 according to proof at the time trial, including special and general damages. 18 84. As a direct, foreseeable, and proximate result of the wrongful conduct of 19 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish, 20 humiliation, substantial losses in salary, bonuses, job benefits, and other employment 21 benefits which she would have received all to her damage in a sum within the jurisdiction 22 of the Court to be ascertained according to proof. 23 85. Plaintiff is informed and believes and thereon alleges that the outrageous 24 conduct of Defendant, and each of them, as alleged herein, was done with oppression and 25 malice by Plaintiff’s supervisors and managers, along with conscious disregard of 26 Plaintiff’s rights, and were ratified by those other individuals who were managing agents 27 of Defendant. 28 86. As a proximate result of the wrongful conduct of Defendant, and each of COMPLAINT 14 1 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and 2 mental and physical pain and anguish according to proof at the time of trial. 3 87. These unlawful acts were further encouraged by Defendant and done with a 4 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of 5 injuring Plaintiff. The conduct of Defendant alleged hereinabove was done with malice, 6 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 7 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 8 88. Plaintiff has also incurred and continues to incur attorneys’ fees and legal 9 expenses in an amount according to proof at the time of trial. 10 SIXTH CAUSE OF ACTION 11 RETALIATION IN VIOLATION OF 12 CALIFORNIA GOVERNMENT CODE §12940(h) Smaili & Associates, P.C. 13 (Against All Defendants) 14 89. Plaintiff re-alleges and incorporates by reference all allegations contained 15 in the preceding paragraphs of this Complaint as though fully set forth herein. 16 90. At all times herein mentioned, FEHA, Government Code §12940(h), was in 17 full force and effect and was binding on Defendant. This statute requires Defendant to 18 refrain from retaliating against Plaintiff. 19 91. Plaintiff is informed and believes and thereon alleges that as a consequence 20 of her resistance of Defendant’s harassment, requests for accommodation for her 21 disability, meal and rest breaks, proper compensation including wages and overtime, 22 filing/perceived filing for workers’ compensation, and complaints to Defendant about 23 harassing and discriminatory acts being committed against Plaintiff, coupled with 24 Plaintiff’s age and disability for which workers compensation coverage was required 25 along with reasonable accommodation, Defendant took retaliatory action against Plaintiff 26 by failing to conduct a good faith interactive process aimed at reuniting Plaintiff with her 27 job, failing to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, 28 denying Plaintiff advancement and promotion, and ultimately terminating Plaintiff. COMPLAINT 15 1 92. Defendant unlawfully retaliated against Plaintiff after she engaged in 2 protected activity, such as without limitation, resisting harassment, requesting her meal 3 and rest breaks, requesting proper compensation including wages and overtime, 4 requesting disability accommodations, filing/perceived filing for workers’ compensation, 5 and lodging workplace complaints related to the harassment and discrimination that she 6 was facing, and other complaints of a hostile and unsafe working environment. 7 93. As a proximate result of Defendant’s