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
PEDRO EUFRACIO
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF LOS ANGELES
11
PEDRO EUFRACIO, an individual; ) Case No.:
12 ) Assigned for all purposes to the
Smaili & Associates, P.C.
13 Plaintiff, )
)
14 v. ) COMPLAINT:
) 1. Discrimination in Violation of Gov. Code
15 COMPLETE AUTOMOTIVE ) §12940 et seq.
2. Failure to Accommodate in Violation of Gov.
16 RECONDITIONING SPECIALISTS ) Code § 12940(m)
LLC, a corporate entity form unknown; ) 3. Failure to Engage in Interactive Process in
17 and DOES 1-50, inclusive, ) Violation of Gov. Code § 12940(n)
) 4. Failure to Prevent Discrimination in
18 Violation of Gov. Code § 12940(k)
Defendants. )
5. Retaliation in Violation of Gov. Code
19 ) §12940(h)
) 6. Wrongful Termination
20 ) 7. Meal and Rest Break Violations of Labor
) Code § 226.7
21 8. Failure to Provide Employment Records in
)
Violation of Cal. Labor Code §1198.5 et seq.
22 ) 9. Failure To Pay Overtime & Wages
) 10. Failure to Pay All Compensation at
23 ) Termination; Waiting Time Penalties
) 11. Violation of Business & Professions Code
24 § 17200 et seq.
)
25 ) DEMAND FOR JURY TRIAL
) UNLIMITED JURISDICTION
26 )
27 )
)
28 )
COMPLAINT
1
1 Plaintiff Pedro Eufracio (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 Complete Automotive Reconditioning Specialists LLC,
7 (hereinafter “C.A.R.S.”), is a corporate entity, form unknown, regularly conducting
8 business in the State of California, and specifically, in the County of Los Angeles.
9 Plaintiff is further informed and believes and thereon alleges that C.A.R.S. was
10 transacting business in the County of Los Angeles, State of California, at the time claims
11 of Plaintiff arose. At all times relevant, C.A.R.S. was an employer within the meaning of
12 Government Code §12926(d) and as such was barred from, inter alia, harassing,
Smaili & Associates, P.C.
13 discriminating or retaliating against Plaintiff in personnel, scheduling, employment,
14 promotion, advancement, retention, hiring, terminating and other decisions relating to
15 Plaintiff’s employment on the basis of age, race, physical disability or medical condition,
16 participation in protected activity, and other immutable characteristics.
17 3. The true names and capacities, whether individual, corporate, associate, or
18 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff,
19 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to
20 amend this complaint to show their true names and capacities when ascertained. Plaintiff
21 is informed and believes and thereon alleges that each Defendant named herein as a DOE
22 was responsible in some manner for the occurrences and damages alleged herein.
23 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers
24 to C.A.R.S., and also refers to all Defendants sued under fictitious names, jointly and
25 severally.
26 5. Plaintiff is informed and believes and thereon alleges that Defendants, and
27 each of them, are now and/or at all times mentioned in this Complaint were in some
28 manner legally responsible for the events, happenings and circumstances alleged in this
COMPLAINT
2
1 Complaint. Plaintiff is further informed and believes and thereon alleges that
2 Defendants, and each of them, proximately subjected Plaintiff to the unlawful practices,
3 wrongs, complaints, injuries and/or damages alleged in this Complaint. Likewise,
4 Defendants, and each of them are now and/or at all times mentioned in this Complaint
5 were the agents, servants and/or employees of some or all other Defendants, and vice-
6 versa, and in doing the things alleged in this Complaint, Defendants are now and/or at all
7 times mentioned in this Complaint were acting within the course and scope of that
8 agency, servitude and/or employment.
9 6. Plaintiff is informed and believes and thereon alleges that Defendants, and
10 each of them, are now and/or at all times mentioned in this Complaint were members of
11 and/or engaged in a joint venture, partnership and common enterprise, and were acting
12 within the course and scope of, and in pursuance of said joint venture, partnership and
Smaili & Associates, P.C.
13 common enterprise.
14 7. Plaintiff is informed and believes and thereon alleges that Defendants, and
15 each of them, at all times mentioned in this Complaint, concurred and contributed to the
16 various acts and omissions of each and every one of the other Defendants in proximately
17 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is
18 further informed and believes and thereon alleges that Defendants, and each of them, at
19 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified
20 each and every one of the acts and/or omissions alleged in this Complaint. Likewise,
21 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted
22 the acts and omissions of each and every one of the other Defendants thereby proximately
23 causing the damages alleged in this Complaint.
24 8. Plaintiff is informed and believes and thereon alleges that at all actions
25 alleged herein committed by Defendants were committed by managing agents of
26 Defendants, or, such conduct was known by and/or ratified by managing agents of
27 Defendants.
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 Inglewood, California, and, all of the claims
4 and causes of action alleged herein occurred and accrued in the County of Los Angeles,
5 State of California.
6 FACTUAL BACKGROUND
7 10. In or around July 2021, Defendant hired Plaintiff as a rim repairman. His
8 job duties included, but were not limited to, repairing all rims of the automobiles, and
9 cleaning and preparing the cars to be painted. At 37 years of age, Plaintiff worked hard
10 and earned an hourly wage of $24.00.
11 11. Due to the repetitive and physical nature or his job duties, Plaintiff began to
12 suffer from severe pain in his lower back, neck, both wrists, and right middle finger,
Smaili & Associates, P.C.
13 starting in or around October 2021.
14 12. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code
15 §12926 because Plaintiff’s injury limited Plaintiff from performing major life activities,
16 including, without limitation, working.
17 13. Out of fear of reprimand and retaliation, Plaintiff worked through the pain
18 and sought medical treatment on his own. However, the medical expenses quickly added
19 up and became too much. Plaintiff exercised his rights and hired a workers’
20 compensation attorney.
21 14. Although Defendant knew or should have known about Plaintiff’s work-
22 related disability, Defendant did not provide workers’ compensation paperwork, did not
23 engage in a good faith interactive process, and did not provide a reasonable
24 accommodation.
25 15. Plaintiff endured a hostile work environment where he suffered harassment
26 and abuse at the hands of Defendant and its agents.
27 16. Plaintiff began suffering from eye problems and was forced to miss two
28 weeks of work. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code
COMPLAINT
4
1 §12926 because Plaintiff’s eye problems limited Plaintiff from performing major life
2 activities, including, without limitation, working. Although Defendant knew or should
3 have known about this disability, Defendant again did not provide workers’
4 compensation paperwork, did not engage in a good faith interactive process, and did not
5 provide a reasonable accommodation.
6 17. When Plaintiff returned from medical leave, his supervisor told him that he
7 would not pay him $24 per hour, and that his pay would be reduced to $20 per hour. This
8 adverse employment actions was in blatant retaliation for Plaintiff’s requests for
9 accommodation and in discrimination against his disability.
10 18. Plaintiff also has significant wage-and-hour claims. Plaintiff was hired to
11 work at $24 per hour. He was paid $18 per hour on his regular paycheck and given a
12 separate $350 check every two weeks to cover the rest of the salary. However, Defendant
Smaili & Associates, P.C.
13 decided to stop paying Plaintiff his full wages. Plaintiff complained about this to the
14 owner. Defendant’s owner was rude and dismissed Plaintiff’s claims, falsely claiming to
15 Plaintiff that Defendant did not owe him anything. Plaintiff calmly responded that
16 Defendant still owed him $2,100, to which Defendant’s owner angrily responded, “You
17 think I have money to give away?!” Defendant then tried to negotiate a lower number he
18 could pay Plaintiff, but Plaintiff refused to accept less than what he was owed and
19 deserved.
20 19. Additionally, due to the excessive workload assigned by Defendant,
21 Plaintiff was not provided time to take breaks since the start of his employment. Thus,
22 Defendant failed to provide Plaintiff with 10-minute rest breaks for every four (4) hours
23 worked. Plaintiff is allowed all maximum waiting time penalties for his missing wages
24 and missed rest and meal breaks as afforded by California Law.
25 20. On or about March 15, 2022, Plaintiff was forced to resign due to
26 Defendant’s refusal to pay him his earned wages. No reasonable employee in Plaintiff’s
27 position would have tolerated the working conditions intentionally created or knowingly
28 permitted by Defendant. Thus, Defendant constructively terminated Plaintiff, upon
COMPLAINT
5
1 information and belief, in retaliation against his reporting missing wages, requesting for
2 accommodation, and filing for workers’ compensation, and in discrimination against his
3 disability and age.
4 21. Plaintiff suffered from harassment, discrimination, retaliation, and
5 ultimately termination on the basis of his disability, requesting accommodation, and
6 engagement in protected activity. Further, Defendant utterly failed to provide workers’
7 compensation paperwork, failed to engage in a good faith interactive process, and failed
8 to offer any reasonable accommodation.
9 22. On or about October 25, 2022, Plaintiff requested his payroll stubs and
10 personnel file. Defendant did not produce the requested documents.
11 23. Before filing this lawsuit, Plaintiff exhausted his administrative remedies
12 by timely filing a complaint with the California Civil Rights Department (CCRD) and
Smaili & Associates, P.C.
13 receiving a right-to-sue notice, dated January 20, 2023.
14 FIRST CAUSE OF ACTION
15 DISCRIMINATION IN VIOLATION OF
16 CALIFORNIA GOVERNMENT CODE § 12940 et seq.
17 (Against All Defendants)
18 24. Plaintiff re-alleges and incorporates by reference all of the allegations
19 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
20 25. California law, and particularly the Fair Employment and Housing Act
21 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against
22 persons with a physical condition or disability, which is broadly defined therein, and
23 which includes even the perception that a person has a medical or mental condition
24 and/or physical condition or disability. FEHA further prohibits discrimination based
25 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and
26 other immutable characteristics.
27 26. Plaintiff has a disability as alleged above.
28 27. Defendant was aware of Plaintiff’s disability, as herein alleged, because
COMPLAINT
6
1 Plaintiff specifically reported said disability directly to Defendant via Defendant’s
2 supervisors and managing agents.
3 28. At all times herein alleged, Plaintiff was qualified for the position of
4 employment that he held with Defendant and was able to perform the essential functions
5 of that job.
6 29. Plaintiff is informed and believes and thereon alleges that as a direct and
7 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an
8 interactive process, refused to communicate with Plaintiff, refused to accommodate
9 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn
10 a living, and terminated Plaintiff.
11 30. Defendant’s discriminatory action against Plaintiff, as alleged above,
12 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in
Smaili & Associates, P.C.
13 violation of FEHA, and particularly Gov’t Code §12940(a).
14 31. As a direct, foreseeable, and proximate result of Defendant’s discriminatory
15 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
16 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
17 amounts of money Plaintiff would have received but for Defendants’ discriminatory
18 conduct, all in an amount subject to proof at the time of trial, but believed to be no less
19 than three hundred thousand dollars ($300,000) and no more than three million dollars
20 ($3,000,000).
21 32. As a direct, foreseeable, and proximate result of the wrongful conduct of
22 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
23 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
24 amount subject to proof at trial.
25 33. Plaintiff is informed and believes and thereon alleges that the above-alleged
26 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
27 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
28 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
COMPLAINT
7
1 enabled agents to believe that their conduct was appropriate.
2 34. Defendant, and each of them, failed to offer counseling or comfort to
3 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
4 workplace.
5 35. Plaintiff is informed and believes and thereon alleges that Defendant has a
6 systemic and wide-spread policy of discriminating against and retaliating against
7 employees with disabilities. By failing to stop the discrimination, harassment and
8 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
9 directly caused a vicious cycle of wrongful conduct with impunity.
10 36. Plaintiff is informed and believes and thereon alleges that his disability was
11 a motivating factor in the decision of Defendant to discriminate against him and
12 terminate him.
Smaili & Associates, P.C.
13 37. The outrageous conduct of Defendant, and each of them, as alleged herein,
14 was done with oppression and malice by Defendant and its supervisors and managers,
15 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
16 individuals who were managing agents of Defendant.
17 38. The conduct of Defendant as alleged hereinabove was done with malice,
18 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
19 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
20 39. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
21 amount according to proof at the time of trial which fees and expenses are recoverable
22 pursuant to Gov’t Code §12900 et seq.
23 SECOND CAUSE OF ACTION
24 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF
25 CALIFORNIA GOVERNMENT CODE § 12940(m)
26 (Against All Defendants)
27 40. Plaintiff re-alleges and incorporates by reference all of the allegations
28 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
COMPLAINT
8
1 41. Plaintiff has a disability as alleged above.
2 42. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
3 43. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed
4 and refused to engage in an interactive process with Plaintiff, and, failed to address
5 Plaintiff’s needs in light of his disabilities.
6 44. At all times herein alleged, Plaintiff was qualified for the position of
7 employment that he held with Defendant and was able to perform the essential functions
8 of that job if such reasonable accommodation had been made by Defendant. At no time
9 would the performance of the functions of the employment position, with a reasonable
10 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
11 person’s health or safety, nor would it have created an undue hardship to the operation of
12 Defendant’s business.
Smaili & Associates, P.C.
13 45. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes
14 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code
15 §12940.
16 46. As a direct, foreseeable, and proximate result of Defendant’s wrongful
17 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
18 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
19 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
20 in an amount of at least three hundred thousand dollars ($300,000), and no more than
21 three million dollars ($3,000,000), all subject to proof at the time of trial.
22 47. As a direct, foreseeable, and proximate result of the wrongful conduct of
23 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
24 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
25 amount subject to proof at trial.
26 48. Plaintiff is informed and believes and thereon alleges that the above-alleged
27 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
28 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
COMPLAINT
9
1 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
2 enabled agents to believe that their conduct was appropriate.
3 49. Defendant, and each of them, failed to offer counseling or comfort to
4 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
5 workplace.
6 50. Plaintiff is informed and believes and thereon alleges that Defendant has a
7 systemic and wide-spread policy of discriminating against and retaliating against
8 employees with disabilities. By failing to stop the discrimination, harassment and
9 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
10 directly caused a vicious cycle of wrongful conduct with impunity.
11 51. Plaintiff is informed and believes and thereon alleges that Defendant’s
12 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
Smaili & Associates, P.C.
13 Defendant to discriminate against him and ultimately terminate him.
14 52. The outrageous conduct of Defendant, and each of them, as alleged herein,
15 was done with oppression and malice by Defendant and its supervisors and managers,
16 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
17 individuals who were managing agents of Defendant.
18 53. The conduct of Defendant as alleged hereinabove was done with malice,
19 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law.
20 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
21 54. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
22 amount according to proof at the time of trial which fees and expenses are recoverable
23 pursuant to Gov’t Code §12900 et seq.
24 THIRD CAUSE OF ACTION
25 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN
26 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n)
27 (Against All Defendants)
28 55. Plaintiff re-alleges and incorporates by reference all of the allegations
COMPLAINT
10
1 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
2 56. Plaintiff has a disability as alleged above.
3 57. Defendant was aware of Plaintiff’s disability, as alleged above and herein.
4 58. Defendant failed and refused to engage Plaintiff in an interactive process
5 designed to unite Plaintiff with his job.
6 59. At all times herein alleged, Plaintiff was qualified for the position of
7 employment that he held with Defendant and was able to perform the essential functions
8 of that job if such reasonable accommodation had been made by Defendant. At no time
9 would the performance of the functions of the employment position, with a reasonable
10 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other
11 person’s health or safety, nor would it have created an undue hardship to the operation of
12 Defendant’s business.
Smaili & Associates, P.C.
13 60. Defendant’s failure to engage with Plaintiff in an interactive process, as
14 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and
15 particularly Gov’t Code §12940.
16 61. As a direct, foreseeable, and proximate result of Defendant’s wrongful
17 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has
18 suffered the loss of wages, salary, benefits, the potential for advancement, and additional
19 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct,
20 all in an amount no less than three hundred thousand dollars ($300,000), and no more
21 than three million dollars ($3,000,000), subject to proof at the time of trial.
22 62. As a direct, foreseeable, and proximate result of the wrongful conduct of
23 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional
24 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an
25 amount subject to proof at trial.
26 63. Plaintiff is informed and believes and thereon alleges that the above-alleged
27 actions of Defendant were the result and consequence of Defendant’s failure to supervise,
28 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and
COMPLAINT
11
1 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and
2 enabled agents to believe that their conduct was appropriate.
3 64. Defendant, and each of them, failed to offer counseling or comfort to
4 Plaintiff and sent the unmistakable message that such conduct is appropriate in the
5 workplace.
6 65. Plaintiff is informed and believes and thereon alleges that Defendant has a
7 systemic and wide-spread policy of discriminating against and retaliating against
8 employees with disabilities. By failing to stop the discrimination, harassment and
9 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn,
10 directly caused a vicious cycle of wrongful conduct with impunity.
11 66. Plaintiff is informed and believes and thereon alleges that Defendant’s
12 desire to avoid accommodating Plaintiff was a motivating factor in the decision of
Smaili & Associates, P.C.
13 Defendant to discriminate against him and ultimately terminate him.
14 67. The outrageous conduct of Defendant, and each of them, as alleged herein,
15 was done with oppression and malice by Defendant and its supervisors and managers,
16 along with conscious disregard of Plaintiff’s rights, and were ratified by those other
17 individuals who were managing agents of Defendant.
18 68. The conduct of Defendant as alleged hereinabove was done with malice,
19 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law.
20 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294.
21 69. Plaintiff also continues to incur attorneys’ fees and legal expenses in an
22 amount according to proof at the time of trial which fees and expenses are recoverable
23 pursuant to Gov’t Code §12900 et seq.
24 FOURTH CAUSE OF ACTION
25 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION
26 OF CALIFORNIA GOVERNMENT CODE § 12940(k)
27 (Against All Defendants)
28 70. Plaintiff re-alleges and incorporates by reference all of the allegations
COMPLAINT
12
1 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
2 71. During the course of employment, Defendant, and each of them, failed to
3 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis
4 of his disability, age, and engagement in protected activity in violation of Government
5 Code §12940(k).
6 72. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered,
7 and continues to suffer, substantial losses in earnings and other benefits in an amount
8 according to proof at the time trial, including special and general damages.
9 73. As a direct, foreseeable, and proximate result of the wrongful conduct of
10 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish,
11 humiliation, substantial losses in salary, bonuses, job benefits, and other employment
12 benefits which he would have received all to his damage in a sum within the jurisdiction
Smaili & Associates, P.C.
13 of the Court to be ascertained according to proof.
14 74. Plaintiff is informed and believes and thereon alleges that the outrageous
15 conduct of Defendant, and each of them, as alleged herein, was done with oppression and
16 malice by Plaintiff’s supervisors and managers, along with conscious disregard of
17 Plaintiff’s rights, and were ratified by those other individuals who were managing agents
18 of Defendant.
19 75. As a proximate result of the wrongful conduct of Defendant, and each of
20 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and
21 mental and physical pain and anguish according to proof at the time of trial.
22 76. These unlawful acts were further encouraged by Defendant and done with a
23 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of
24 injuring Plaintiff. The conduct of Defendant 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 77. Plaintiff has also incurred and continues to incur attorneys’ fees and legal
28 expenses in an amount according to proof at the time of trial.
COMPLAINT
13
1 FIFTH CAUSE OF ACTION
2 RETALIATION IN VIOLATION OF
3 CALIFORNIA GOVERNMENT CODE §12940(h)
4 (Against All Defendants)
5 78. Plaintiff re-alleges and incorporates by reference all of the allegations
6 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
7 79. At all times herein mentioned, FEHA, Government Code §12940(h), was in
8 full force and effect and was binding on Defendant. This statute requires Defendant to
9 refrain from retaliating against Plaintiff.
10 80. Plaintiff is informed and believes and thereon alleges that as a consequence
11 of requesting disability accommodations and medical treatment, lodging complaints
12 about harassing and discriminatory acts being committed against Plaintiff, coupled with
Smaili & Associates, P.C.
13 Plaintiff’s disability and age, Defendant took retaliatory action against Plaintiff by failing
14 to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, denying
15 Plaintiff advancement and promotion, and ultimately terminating Plaintiff.
16 81. Defendant unlawfully retaliated against Plaintiff after he engaged in
17 protected activity including requesting disability accommodations, medical treatment,
18 and lodging workplace complaints related to harassment and discrimination that he was
19 facing, and other complaints of a hostile and unsafe working environment.
20 82. As a proximate result of Defendant’s willful, knowing, and intentional
21 conduct against Plaintiff, he has sustained and continues to sustain substantial losses in
22 Plaintiff’s earnings and other employment benefits and continues to suffer humiliation,
23 emotional distress, and mental and physical pain and anguish, and sleep dysfunction, all
24 to Plaintiff damage in a sum according to proof.
25 83. These unlawful acts were further encouraged by Defendant and done with a
26 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of
27 injuring Plaintiff. In light of Defendant’s willful, knowing, and intentional discrimination
28 against Plaintiff which culminated in Plaintiff discharge, Plaintiff seeks an award of
COMPLAINT
14
1 punitive and exemplary damages in an amount according to proof.
2 84. Plaintiff has incurred and continues to incur legal expenses and attorney
3 fees. Plaintiff is presently unaware of the precise amount of said expenses and fees and
4 prays leave of court to amend this Complaint when said amounts are more fully known.
5 SIXTH CAUSE OF ACTION
6 WRONGFUL TERMINATION
7 (Against All Defendants)
8 85. Plaintiff re-alleges and incorporates by reference all of the allegations
9 contained in the preceding paragraphs of this Complaint as though fully set forth herein.
10 85. Defendant was aware that Plaintiff suffered from a disability. Further,
11 Defendant was aware of Plaintiff’s complaints about his workplace environment.
12 86. Labor Code §232.5 makes it illegal for an employer to prohibit an
Smaili & Associates, P.C.
13 employee from discussing their working conditions.
14 87. Labor Code §6310 protects an employee’s right to complain of unsafe
15 working conditions.
16 88. Labor Code §6400 requires employers to provide a work environment that
17 is safe for its employees.
18 89. Gov’t Code §12940 et seq., prohibits forms of discrimination against
19 protected classes of employees.
20 90. Defendant wrongfully terminated Plaintiff in violation of a substantial and
21 fundamental public policy in that a determining and motivating factor in Defendants’
22 decision to terminate Plaintiff was the desire to discriminate against him because: (i) he
23 suffered from a disability, and (ii) he lodged complaints about his working environment.
24 91. Plaintiff is informed and believes and thereon alleges that these factors
25 made up Defendant’s decision to terminate Plaintiff and/or played an important and
26 integral role in said decision. Such discrimination was in violation of the public policy of
27 the State of California and resulted in damage and injury to Plaintiff as alleged herein.
28 92. As a proximate result of Defendants’ willful, knowing, and intentional
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 PEDRO EUFRACIO 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF LOS ANGELES 11 PEDRO EUFRACIO, an individual; ) Case No.: 12 ) Assigned for all purposes to the Smaili & Associates, P.C. 13 Plaintiff, ) ) 14 v. ) COMPLAINT: ) 1. Discrimination in Violation of Gov. Code 15 COMPLETE AUTOMOTIVE ) §12940 et seq. 2. Failure to Accommodate in Violation of Gov. 16 RECONDITIONING SPECIALISTS ) Code § 12940(m) LLC, a corporate entity form unknown; ) 3. Failure to Engage in Interactive Process in 17 and DOES 1-50, inclusive, ) Violation of Gov. Code § 12940(n) ) 4. Failure to Prevent Discrimination in 18 Violation of Gov. Code § 12940(k) Defendants. ) 5. Retaliation in Violation of Gov. Code 19 ) §12940(h) ) 6. Wrongful Termination 20 ) 7. Meal and Rest Break Violations of Labor ) Code § 226.7 21 8. Failure to Provide Employment Records in ) Violation of Cal. Labor Code §1198.5 et seq. 22 ) 9. Failure To Pay Overtime & Wages ) 10. Failure to Pay All Compensation at 23 ) Termination; Waiting Time Penalties ) 11. Violation of Business & Professions Code 24 § 17200 et seq. ) 25 ) DEMAND FOR JURY TRIAL ) UNLIMITED JURISDICTION 26 ) 27 ) ) 28 ) COMPLAINT 1 1 Plaintiff Pedro Eufracio (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 Complete Automotive Reconditioning Specialists LLC, 7 (hereinafter “C.A.R.S.”), is a corporate entity, form unknown, regularly conducting 8 business in the State of California, and specifically, in the County of Los Angeles. 9 Plaintiff is further informed and believes and thereon alleges that C.A.R.S. was 10 transacting business in the County of Los Angeles, State of California, at the time claims 11 of Plaintiff arose. At all times relevant, C.A.R.S. was an employer within the meaning of 12 Government Code §12926(d) and as such was barred from, inter alia, harassing, Smaili & Associates, P.C. 13 discriminating or retaliating against Plaintiff in personnel, scheduling, employment, 14 promotion, advancement, retention, hiring, terminating and other decisions relating to 15 Plaintiff’s employment on the basis of age, race, physical disability or medical condition, 16 participation in protected activity, and other immutable characteristics. 17 3. The true names and capacities, whether individual, corporate, associate, or 18 otherwise, of Defendants DOES 1—50, inclusive, are currently unknown to Plaintiff, 19 who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave to 20 amend this complaint to show their true names and capacities when ascertained. Plaintiff 21 is informed and believes and thereon alleges that each Defendant named herein as a DOE 22 was responsible in some manner for the occurrences and damages alleged herein. 23 4. Each reference in this complaint to “Defendant” and/or “Defendants” refers 24 to C.A.R.S., and also refers to all Defendants sued under fictitious names, jointly and 25 severally. 26 5. Plaintiff is informed and believes and thereon alleges that Defendants, and 27 each of them, are now and/or at all times mentioned in this Complaint were in some 28 manner legally responsible for the events, happenings and circumstances alleged in this COMPLAINT 2 1 Complaint. Plaintiff is further informed and believes and thereon alleges that 2 Defendants, and each of them, proximately subjected Plaintiff to the unlawful practices, 3 wrongs, complaints, injuries and/or damages alleged in this Complaint. Likewise, 4 Defendants, and each of them are now and/or at all times mentioned in this Complaint 5 were the agents, servants and/or employees of some or all other Defendants, and vice- 6 versa, and in doing the things alleged in this Complaint, Defendants are now and/or at all 7 times mentioned in this Complaint were acting within the course and scope of that 8 agency, servitude and/or employment. 9 6. Plaintiff is informed and believes and thereon alleges that Defendants, and 10 each of them, are now and/or at all times mentioned in this Complaint were members of 11 and/or engaged in a joint venture, partnership and common enterprise, and were acting 12 within the course and scope of, and in pursuance of said joint venture, partnership and Smaili & Associates, P.C. 13 common enterprise. 14 7. Plaintiff is informed and believes and thereon alleges that Defendants, and 15 each of them, at all times mentioned in this Complaint, concurred and contributed to the 16 various acts and omissions of each and every one of the other Defendants in proximately 17 causing the complaints, injures and/or damages alleged in this Complaint. Plaintiff is 18 further informed and believes and thereon alleges that Defendants, and each of them, at 19 all times mentioned in this Complaint, approved of condoned and/or otherwise ratified 20 each and every one of the acts and/or omissions alleged in this Complaint. Likewise, 21 Defendants, and each of them, at all times mentioned in this Complaint aided and abetted 22 the acts and omissions of each and every one of the other Defendants thereby proximately 23 causing the damages alleged in this Complaint. 24 8. Plaintiff is informed and believes and thereon alleges that at all actions 25 alleged herein committed by Defendants were committed by managing agents of 26 Defendants, or, such conduct was known by and/or ratified by managing agents of 27 Defendants. 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 Inglewood, California, and, all of the claims 4 and causes of action alleged herein occurred and accrued in the County of Los Angeles, 5 State of California. 6 FACTUAL BACKGROUND 7 10. In or around July 2021, Defendant hired Plaintiff as a rim repairman. His 8 job duties included, but were not limited to, repairing all rims of the automobiles, and 9 cleaning and preparing the cars to be painted. At 37 years of age, Plaintiff worked hard 10 and earned an hourly wage of $24.00. 11 11. Due to the repetitive and physical nature or his job duties, Plaintiff began to 12 suffer from severe pain in his lower back, neck, both wrists, and right middle finger, Smaili & Associates, P.C. 13 starting in or around October 2021. 14 12. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code 15 §12926 because Plaintiff’s injury limited Plaintiff from performing major life activities, 16 including, without limitation, working. 17 13. Out of fear of reprimand and retaliation, Plaintiff worked through the pain 18 and sought medical treatment on his own. However, the medical expenses quickly added 19 up and became too much. Plaintiff exercised his rights and hired a workers’ 20 compensation attorney. 21 14. Although Defendant knew or should have known about Plaintiff’s work- 22 related disability, Defendant did not provide workers’ compensation paperwork, did not 23 engage in a good faith interactive process, and did not provide a reasonable 24 accommodation. 25 15. Plaintiff endured a hostile work environment where he suffered harassment 26 and abuse at the hands of Defendant and its agents. 27 16. Plaintiff began suffering from eye problems and was forced to miss two 28 weeks of work. Accordingly, Plaintiff was disabled within the meaning of Gov’t Code COMPLAINT 4 1 §12926 because Plaintiff’s eye problems limited Plaintiff from performing major life 2 activities, including, without limitation, working. Although Defendant knew or should 3 have known about this disability, Defendant again did not provide workers’ 4 compensation paperwork, did not engage in a good faith interactive process, and did not 5 provide a reasonable accommodation. 6 17. When Plaintiff returned from medical leave, his supervisor told him that he 7 would not pay him $24 per hour, and that his pay would be reduced to $20 per hour. This 8 adverse employment actions was in blatant retaliation for Plaintiff’s requests for 9 accommodation and in discrimination against his disability. 10 18. Plaintiff also has significant wage-and-hour claims. Plaintiff was hired to 11 work at $24 per hour. He was paid $18 per hour on his regular paycheck and given a 12 separate $350 check every two weeks to cover the rest of the salary. However, Defendant Smaili & Associates, P.C. 13 decided to stop paying Plaintiff his full wages. Plaintiff complained about this to the 14 owner. Defendant’s owner was rude and dismissed Plaintiff’s claims, falsely claiming to 15 Plaintiff that Defendant did not owe him anything. Plaintiff calmly responded that 16 Defendant still owed him $2,100, to which Defendant’s owner angrily responded, “You 17 think I have money to give away?!” Defendant then tried to negotiate a lower number he 18 could pay Plaintiff, but Plaintiff refused to accept less than what he was owed and 19 deserved. 20 19. Additionally, due to the excessive workload assigned by Defendant, 21 Plaintiff was not provided time to take breaks since the start of his employment. Thus, 22 Defendant failed to provide Plaintiff with 10-minute rest breaks for every four (4) hours 23 worked. Plaintiff is allowed all maximum waiting time penalties for his missing wages 24 and missed rest and meal breaks as afforded by California Law. 25 20. On or about March 15, 2022, Plaintiff was forced to resign due to 26 Defendant’s refusal to pay him his earned wages. No reasonable employee in Plaintiff’s 27 position would have tolerated the working conditions intentionally created or knowingly 28 permitted by Defendant. Thus, Defendant constructively terminated Plaintiff, upon COMPLAINT 5 1 information and belief, in retaliation against his reporting missing wages, requesting for 2 accommodation, and filing for workers’ compensation, and in discrimination against his 3 disability and age. 4 21. Plaintiff suffered from harassment, discrimination, retaliation, and 5 ultimately termination on the basis of his disability, requesting accommodation, and 6 engagement in protected activity. Further, Defendant utterly failed to provide workers’ 7 compensation paperwork, failed to engage in a good faith interactive process, and failed 8 to offer any reasonable accommodation. 9 22. On or about October 25, 2022, Plaintiff requested his payroll stubs and 10 personnel file. Defendant did not produce the requested documents. 11 23. Before filing this lawsuit, Plaintiff exhausted his administrative remedies 12 by timely filing a complaint with the California Civil Rights Department (CCRD) and Smaili & Associates, P.C. 13 receiving a right-to-sue notice, dated January 20, 2023. 14 FIRST CAUSE OF ACTION 15 DISCRIMINATION IN VIOLATION OF 16 CALIFORNIA GOVERNMENT CODE § 12940 et seq. 17 (Against All Defendants) 18 24. Plaintiff re-alleges and incorporates by reference all of the allegations 19 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 20 25. California law, and particularly the Fair Employment and Housing Act 21 (“FEHA”), codified at Government Code §12900 et seq., prohibits discrimination against 22 persons with a physical condition or disability, which is broadly defined therein, and 23 which includes even the perception that a person has a medical or mental condition 24 and/or physical condition or disability. FEHA further prohibits discrimination based 25 upon, inter alia, age, race, gender, sexual orientation, national origin, pregnancy and 26 other immutable characteristics. 27 26. Plaintiff has a disability as alleged above. 28 27. Defendant was aware of Plaintiff’s disability, as herein alleged, because COMPLAINT 6 1 Plaintiff specifically reported said disability directly to Defendant via Defendant’s 2 supervisors and managing agents. 3 28. At all times herein alleged, Plaintiff was qualified for the position of 4 employment that he held with Defendant and was able to perform the essential functions 5 of that job. 6 29. Plaintiff is informed and believes and thereon alleges that as a direct and 7 proximate result of Plaintiff’s disability, Defendant refused to engage Plaintiff in an 8 interactive process, refused to communicate with Plaintiff, refused to accommodate 9 Plaintiff, denied Plaintiff opportunity for advancement, promotion and the ability to earn 10 a living, and terminated Plaintiff. 11 30. Defendant’s discriminatory action against Plaintiff, as alleged above, 12 constitutes unlawful discrimination in employment on account of Plaintiff’s disability in Smaili & Associates, P.C. 13 violation of FEHA, and particularly Gov’t Code §12940(a). 14 31. As a direct, foreseeable, and proximate result of Defendant’s discriminatory 15 action against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 16 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 17 amounts of money Plaintiff would have received but for Defendants’ discriminatory 18 conduct, all in an amount subject to proof at the time of trial, but believed to be no less 19 than three hundred thousand dollars ($300,000) and no more than three million dollars 20 ($3,000,000). 21 32. As a direct, foreseeable, and proximate result of the wrongful conduct of 22 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 23 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 24 amount subject to proof at trial. 25 33. Plaintiff is informed and believes and thereon alleges that the above-alleged 26 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 27 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and 28 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and COMPLAINT 7 1 enabled agents to believe that their conduct was appropriate. 2 34. Defendant, and each of them, failed to offer counseling or comfort to 3 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 4 workplace. 5 35. Plaintiff is informed and believes and thereon alleges that Defendant has a 6 systemic and wide-spread policy of discriminating against and retaliating against 7 employees with disabilities. By failing to stop the discrimination, harassment and 8 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 9 directly caused a vicious cycle of wrongful conduct with impunity. 10 36. Plaintiff is informed and believes and thereon alleges that his disability was 11 a motivating factor in the decision of Defendant to discriminate against him and 12 terminate him. Smaili & Associates, P.C. 13 37. The outrageous conduct of Defendant, and each of them, as alleged herein, 14 was done with oppression and malice by Defendant and its supervisors and managers, 15 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 16 individuals who were managing agents of Defendant. 17 38. The conduct of Defendant as alleged hereinabove was done with malice, 18 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 19 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 20 39. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 21 amount according to proof at the time of trial which fees and expenses are recoverable 22 pursuant to Gov’t Code §12900 et seq. 23 SECOND CAUSE OF ACTION 24 FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF 25 CALIFORNIA GOVERNMENT CODE § 12940(m) 26 (Against All Defendants) 27 40. Plaintiff re-alleges and incorporates by reference all of the allegations 28 contained in the preceding paragraphs of this Complaint as though fully set forth herein. COMPLAINT 8 1 41. Plaintiff has a disability as alleged above. 2 42. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 3 43. Defendant failed and refused to accommodate Plaintiff’s needs, and, failed 4 and refused to engage in an interactive process with Plaintiff, and, failed to address 5 Plaintiff’s needs in light of his disabilities. 6 44. At all times herein alleged, Plaintiff was qualified for the position of 7 employment that he held with Defendant and was able to perform the essential functions 8 of that job if such reasonable accommodation had been made by Defendant. At no time 9 would the performance of the functions of the employment position, with a reasonable 10 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 11 person’s health or safety, nor would it have created an undue hardship to the operation of 12 Defendant’s business. Smaili & Associates, P.C. 13 45. Defendant’s failure to accommodate Plaintiff, as alleged above, constitutes 14 unlawful conduct in employment in violation of FEHA, and particularly Gov’t Code 15 §12940. 16 46. As a direct, foreseeable, and proximate result of Defendant’s wrongful 17 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 18 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 19 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 20 in an amount of at least three hundred thousand dollars ($300,000), and no more than 21 three million dollars ($3,000,000), all subject to proof at the time of trial. 22 47. As a direct, foreseeable, and proximate result of the wrongful conduct of 23 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 24 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 25 amount subject to proof at trial. 26 48. Plaintiff is informed and believes and thereon alleges that the above-alleged 27 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 28 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and COMPLAINT 9 1 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 2 enabled agents to believe that their conduct was appropriate. 3 49. Defendant, and each of them, failed to offer counseling or comfort to 4 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 5 workplace. 6 50. Plaintiff is informed and believes and thereon alleges that Defendant has a 7 systemic and wide-spread policy of discriminating against and retaliating against 8 employees with disabilities. By failing to stop the discrimination, harassment and 9 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 10 directly caused a vicious cycle of wrongful conduct with impunity. 11 51. Plaintiff is informed and believes and thereon alleges that Defendant’s 12 desire to avoid accommodating Plaintiff was a motivating factor in the decision of Smaili & Associates, P.C. 13 Defendant to discriminate against him and ultimately terminate him. 14 52. The outrageous conduct of Defendant, and each of them, as alleged herein, 15 was done with oppression and malice by Defendant and its supervisors and managers, 16 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 17 individuals who were managing agents of Defendant. 18 53. The conduct of Defendant as alleged hereinabove was done with malice, 19 fraud, or oppression, and in reckless disregard of Plaintiff’s rights under California law. 20 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 21 54. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 22 amount according to proof at the time of trial which fees and expenses are recoverable 23 pursuant to Gov’t Code §12900 et seq. 24 THIRD CAUSE OF ACTION 25 FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN 26 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(n) 27 (Against All Defendants) 28 55. Plaintiff re-alleges and incorporates by reference all of the allegations COMPLAINT 10 1 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 2 56. Plaintiff has a disability as alleged above. 3 57. Defendant was aware of Plaintiff’s disability, as alleged above and herein. 4 58. Defendant failed and refused to engage Plaintiff in an interactive process 5 designed to unite Plaintiff with his job. 6 59. At all times herein alleged, Plaintiff was qualified for the position of 7 employment that he held with Defendant and was able to perform the essential functions 8 of that job if such reasonable accommodation had been made by Defendant. At no time 9 would the performance of the functions of the employment position, with a reasonable 10 accommodation for Plaintiff’s disabilities, have been a danger to Plaintiff’s or any other 11 person’s health or safety, nor would it have created an undue hardship to the operation of 12 Defendant’s business. Smaili & Associates, P.C. 13 60. Defendant’s failure to engage with Plaintiff in an interactive process, as 14 alleged above, constitutes unlawful conduct in employment in violation of FEHA, and 15 particularly Gov’t Code §12940. 16 61. As a direct, foreseeable, and proximate result of Defendant’s wrongful 17 conduct against Plaintiff, as herein alleged, Plaintiff has been harmed in that Plaintiff has 18 suffered the loss of wages, salary, benefits, the potential for advancement, and additional 19 amounts of money Plaintiff would have received but for Defendant’s wrongful conduct, 20 all in an amount no less than three hundred thousand dollars ($300,000), and no more 21 than three million dollars ($3,000,000), subject to proof at the time of trial. 22 62. As a direct, foreseeable, and proximate result of the wrongful conduct of 23 Defendant as herein alleged, Plaintiff has also suffered and continues to suffer emotional 24 distress and anguish, humiliation, anxiety, and medical expenses all to his damage in an 25 amount subject to proof at trial. 26 63. Plaintiff is informed and believes and thereon alleges that the above-alleged 27 actions of Defendant were the result and consequence of Defendant’s failure to supervise, 28 control, direct, manage, and counsel those agents throughout Plaintiff’s employment and COMPLAINT 11 1 that Defendant ratified, condoned and/or encouraged the discriminatory behavior and 2 enabled agents to believe that their conduct was appropriate. 3 64. Defendant, and each of them, failed to offer counseling or comfort to 4 Plaintiff and sent the unmistakable message that such conduct is appropriate in the 5 workplace. 6 65. Plaintiff is informed and believes and thereon alleges that Defendant has a 7 systemic and wide-spread policy of discriminating against and retaliating against 8 employees with disabilities. By failing to stop the discrimination, harassment and 9 retaliation, Defendant ratified the discriminatory and retaliatory conduct which, in turn, 10 directly caused a vicious cycle of wrongful conduct with impunity. 11 66. Plaintiff is informed and believes and thereon alleges that Defendant’s 12 desire to avoid accommodating Plaintiff was a motivating factor in the decision of Smaili & Associates, P.C. 13 Defendant to discriminate against him and ultimately terminate him. 14 67. The outrageous conduct of Defendant, and each of them, as alleged herein, 15 was done with oppression and malice by Defendant and its supervisors and managers, 16 along with conscious disregard of Plaintiff’s rights, and were ratified by those other 17 individuals who were managing agents of Defendant. 18 68. The conduct of Defendant as alleged hereinabove was done with malice, 19 fraud or oppression, and in reckless disregard of Plaintiff’s rights under California law. 20 As such, Plaintiff is entitled to punitive damages within the meaning of Civ. Code §3294. 21 69. Plaintiff also continues to incur attorneys’ fees and legal expenses in an 22 amount according to proof at the time of trial which fees and expenses are recoverable 23 pursuant to Gov’t Code §12900 et seq. 24 FOURTH CAUSE OF ACTION 25 FAILURE TO PREVENT DISCRIMINATION IN VIOLATION 26 OF CALIFORNIA GOVERNMENT CODE § 12940(k) 27 (Against All Defendants) 28 70. Plaintiff re-alleges and incorporates by reference all of the allegations COMPLAINT 12 1 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 2 71. During the course of employment, Defendant, and each of them, failed to 3 prevent or remedy discrimination, retaliation and harassment toward Plaintiff on the basis 4 of his disability, age, and engagement in protected activity in violation of Government 5 Code §12940(k). 6 72. As a direct result of the wrongful conduct of Defendant, Plaintiff suffered, 7 and continues to suffer, substantial losses in earnings and other benefits in an amount 8 according to proof at the time trial, including special and general damages. 9 73. As a direct, foreseeable, and proximate result of the wrongful conduct of 10 Defendant, Plaintiff has suffered and continues to suffer emotional distress and anguish, 11 humiliation, substantial losses in salary, bonuses, job benefits, and other employment 12 benefits which he would have received all to his damage in a sum within the jurisdiction Smaili & Associates, P.C. 13 of the Court to be ascertained according to proof. 14 74. Plaintiff is informed and believes and thereon alleges that the outrageous 15 conduct of Defendant, and each of them, as alleged herein, was done with oppression and 16 malice by Plaintiff’s supervisors and managers, along with conscious disregard of 17 Plaintiff’s rights, and were ratified by those other individuals who were managing agents 18 of Defendant. 19 75. As a proximate result of the wrongful conduct of Defendant, and each of 20 them, Plaintiff has suffered and continues to suffer humiliation, emotional distress, and 21 mental and physical pain and anguish according to proof at the time of trial. 22 76. These unlawful acts were further encouraged by Defendant and done with a 23 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of 24 injuring Plaintiff. The conduct of Defendant 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 77. Plaintiff has also incurred and continues to incur attorneys’ fees and legal 28 expenses in an amount according to proof at the time of trial. COMPLAINT 13 1 FIFTH CAUSE OF ACTION 2 RETALIATION IN VIOLATION OF 3 CALIFORNIA GOVERNMENT CODE §12940(h) 4 (Against All Defendants) 5 78. Plaintiff re-alleges and incorporates by reference all of the allegations 6 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 7 79. At all times herein mentioned, FEHA, Government Code §12940(h), was in 8 full force and effect and was binding on Defendant. This statute requires Defendant to 9 refrain from retaliating against Plaintiff. 10 80. Plaintiff is informed and believes and thereon alleges that as a consequence 11 of requesting disability accommodations and medical treatment, lodging complaints 12 about harassing and discriminatory acts being committed against Plaintiff, coupled with Smaili & Associates, P.C. 13 Plaintiff’s disability and age, Defendant took retaliatory action against Plaintiff by failing 14 to determine the essential functions of Plaintiff’s job, mistreating Plaintiff, denying 15 Plaintiff advancement and promotion, and ultimately terminating Plaintiff. 16 81. Defendant unlawfully retaliated against Plaintiff after he engaged in 17 protected activity including requesting disability accommodations, medical treatment, 18 and lodging workplace complaints related to harassment and discrimination that he was 19 facing, and other complaints of a hostile and unsafe working environment. 20 82. As a proximate result of Defendant’s willful, knowing, and intentional 21 conduct against Plaintiff, he has sustained and continues to sustain substantial losses in 22 Plaintiff’s earnings and other employment benefits and continues to suffer humiliation, 23 emotional distress, and mental and physical pain and anguish, and sleep dysfunction, all 24 to Plaintiff damage in a sum according to proof. 25 83. These unlawful acts were further encouraged by Defendant and done with a 26 conscious disregard for Plaintiff’s rights and with the intent, design, and purpose of 27 injuring Plaintiff. In light of Defendant’s willful, knowing, and intentional discrimination 28 against Plaintiff which culminated in Plaintiff discharge, Plaintiff seeks an award of COMPLAINT 14 1 punitive and exemplary damages in an amount according to proof. 2 84. Plaintiff has incurred and continues to incur legal expenses and attorney 3 fees. Plaintiff is presently unaware of the precise amount of said expenses and fees and 4 prays leave of court to amend this Complaint when said amounts are more fully known. 5 SIXTH CAUSE OF ACTION 6 WRONGFUL TERMINATION 7 (Against All Defendants) 8 85. Plaintiff re-alleges and incorporates by reference all of the allegations 9 contained in the preceding paragraphs of this Complaint as though fully set forth herein. 10 85. Defendant was aware that Plaintiff suffered from a disability. Further, 11 Defendant was aware of Plaintiff’s complaints about his workplace environment. 12 86. Labor Code §232.5 makes it illegal for an employer to prohibit an Smaili & Associates, P.C. 13 employee from discussing their working conditions. 14 87. Labor Code §6310 protects an employee’s right to complain of unsafe 15 working conditions. 16 88. Labor Code §6400 requires employers to provide a work environment that 17 is safe for its employees. 18 89. Gov’t Code §12940 et seq., prohibits forms of discrimination against 19 protected classes of employees. 20 90. Defendant wrongfully terminated Plaintiff in violation of a substantial and 21 fundamental public policy in that a determining and motivating factor in Defendants’ 22 decision to terminate Plaintiff was the desire to discriminate against him because: (i) he 23 suffered from a disability, and (ii) he lodged complaints about his working environment. 24 91. Plaintiff is informed and believes and thereon alleges that these factors 25 made up Defendant’s decision to terminate Plaintiff and/or played an important and 26 integral role in said decision. Such discrimination was in violation of the public policy of 27 the State of California and resulted in damage and injury to Plaintiff as alleged herein. 28 92. As a proximate result of Defendants’ willful, knowing, and intentional