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‘THE TASHNIZI LAW FIRM, 200 N. WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 (805) 718-2010, Paul P. Tashnizi (CSBN 190670) The Tashnizi Law Firm 200 N, Westlake Bivd., Suite 204 Westlake Village, California 91362 Telephone: (805) 719-2010 Facsimile: (866) 973-3368 Email: paul@tashnizilaw.com Attorney for Plaintiff Armando Fausto SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO - UNLIMITED JURISDICTION ARMANDO FAUSTO, an individual; CASE NO. _ CIVDS 1619768 ) Plaintiff, ) Assigned For All Purposes To: Wilfred J. Schneider, dur vs. ) Department $32 7 FIRST AMENDED COMPLAINT FOR: CITY OF ONTARIO, a business entity; DON MEYER, an individual; and DOES 1- 200 INCLUSIVE 1. Disability Discrimination (Gov. Code §12940(a) & (m)); Failure to Engage in the Interactive Process to : Accommodate Disability (Gov. Code § 12940(n)); Defendants. Failure to Provide Reasonable Accommodation (Gov. Code §12940(m)); Harassment/Hostile Work Environment (Gov. Code § 12940(j)); Retaliation in violation of FEHA, Government Code section 12940, subdivision (h); and, 6. Failure to Prevent/Remedy Discrimination and Retaliation (Gov. Code § 12940(k)) Damages Exceed $25,000.00 DEMAND FOR JURY TRIAL. Plaintiff Armando Fausto alleges: INTRODUCTION This is a Complaint by ARMANDO F. employer, CITY OF ONTARIO, (hereafter “ONTARIO”), and DONALD MEYER (hereafter USTO (hereafter “FAUSTO”) against his current “MEYER”) who discriminated against and harassed FAUSTO because of his disability. These defendants created a hostile work environment, retaliated against Plaintiff, failed to prevent/remedy| 1 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM 200 N. WESTLAKE BLVD., SUITE 206 (05) 719-2010, WESTLAKE VILLAGE, CALIFORNIA 91362 4 15 16 1” 18 19 2 2 2 2s 26 a 8 discrimination and retaliation, failed to provide reasonable accommodation and failed to engage in the| ‘to accommodate his disabilities in violation of the laws of the State of California. THE PARTIES 1, Plaintiff FAUSTO is an individual and, at all times relevant herein, is a resident of the County| of San Bernardino, State of California. FAUSTO was employed at all times relevant by City of Ontario} ‘in California. All the torts and statutory violations took place in Ontario, California. 2. Atall times herein mentioned, FAUSTO is informed and believes, and on that basis alleges, that at all times relevant to this Complaint, Defendant ONTARIO is a city in San Bernardino County, California. 3. Atall times herein mentioned, FAUSTO is informed and believes, and on that basis alleges, that at all times relevant to the Complaint, Defendant MEYER is and has been an individual, residing| in San Bernardino County, State of California. 4. Defendants Does 1 through 200 are sued under fictitious names pursuant to California Code| of Civil Procedure section 474, Plaintiff is informed and believe, and on that basis allege, that each] defendant sued under such fictitious names is in some manner responsible for the wrongs and damages as alleged below, and in so acting was functioning as the agent, servant, manager, supervisor, and/or ‘employee of the Defendant, and in doing the actions mentioned below was acting within the course| and scope of his or her authority as such agent, servant, manager, supervisor, and/or employee with the| permission and consent of the other Defendants. 5. FASUTO isa fifty-seven year old Latino male and is accordingly entitled to the protections o! the Fair Employment and Housing Act (“FEHA”). The Defendants are California employers who| employ more than one hundred (100) employees, and are accordingly subject to the provisions o FEHA, FACTS COMMON TO ALL CAUSES OF ACTION 6. Plaintiff FAUSTO is a fifty-seven (57) year old Hispanic man who worked for ONTARIO for eleven (11) years as a Tech 1 in the Utilities Department. FAUSTO was a hard working employee with a more than satisfactory performance. However, throughout his employment at ONTARIO, he suffered| from multiple physical injuries because of the physical nature of the job and strenuous tasks that he 2 FIRST AMENDED COMPLAINT (805) 718-2010 “THE TASHNIZI LAW FIRM 200 N. WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 2B 2 %6 2 had been assigned. He had a serious shoulder injury in 2010 and ended up having a surgery to repair his shoulder. Typically as a Tech 1, FAUSTO was responsible for replacing and servicing water lines, repairing leaks, and a variety of other duties involving water. In addition, he was asked to work on| meters as well as painting hydrants. 7. In 2011, FAUSTO went through a very difficult time and suffered both from physical injuries and some serious emotional distress and had to take some time off, FAUSTO went on an FMLA leave, Upon his return from his FMLA leave, he encountered a different attitude and was harassed by his| superiors and his manager MEYER in particular. MEYER began to harass FAUSTO telling him how he had missed too much work, despite the fact that FAUSTO was on an approved FMLA leave and had provided all of the necessary paperwork. MEYER also inquired about FAUSTO’s medical and personal issues by asking what was wrong with him. MEYER told FAUSTO that he should snap out o it and what he went through was not a big deal. In addition, MEYER began assigning him to strenuous and unfavorable jobs that he was not normally responsible for and in violation of restrictions because of his shoulder injury. Such mistreatment of FAUSTO because of his disability and in retaliation o him taking a disability leave continued as recently as September of 2016. 8. On or about July 16, 2014, FAUSTO complained that he was not treated equal like other employees. He complained to Robert, his foreman or supervisor, that he was being singled out when Robert questioned him on why his paperwork was not completed on the same day. FAUSTO responded that it was not easy with all the work and calls he receives, and how he feels he is being| treated unfairly. FAUSTO complained that Chad was given a new truck and went to the service créw| while FAUSTO and Ed were sent to do curb stops by themselves. FAUSTO asked if it was “becausé of his color of skin?” FAUSTO also complained that he was so busy that at times he could not even take his lunch, Robert told FAUSTO not to ever say anything about the supervisors and walked out. On top of that, FAUSTO knew that other employees did not complete their paperwork on the same day but Robert did not raise it with them. 9. In addition, FAUSTO had serious injuries, including tom shoulders as a result of the physical and repetitive nature of the tasks as part of his job, such as working on meters and hydrants. FAUSTO had provided management and ONTARIO the required notes from his treating physicians witli 3 FIRST AMENDED COMPLAINT ‘92010 s ‘THE TASHNIZI LAW FIRM 200 N. WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 Fr 2 2 restrictions, but was always accused of complaining, was not accommodated, and was told there was nothing wrong with him. Defendants, despite their notice of FAUSTO’s injuries and the restrictions, made FAUSTO perform duties that violated his restrictions. In one instance, Andy Marquez, one of FAUSTO’s supervisors moved him from working on meters to working on valves to accommodate his injuries. Working on meters is very strenuous and requires being on your knees and hands. However, when a Caucasian employee named Bob Caldwell was injured, ONTARIO assigned him to work valves and FAUSTO was sent back to work on meters. FAUSTO working on meters violated the| restrictions he was on. In addition, he was asked to paint fire hydrants that did not meet the restrictions| because the repetitive use of arms and shoulders. FAUSTO could have easily been accommodated by doing other available tasks that met his medical restrictions. 10. On or about November 10, 2014, MEYER asked FAUSTO what he was going to do that day and FAUSTO said that he was going to do fire hydrants. Then MEYER asked FAUSTO how he felt and FAUSTO responded “ok.” Then, MEYER replied that FAUSTO should do the meters instead, ‘Working meters is one of the most strenuous physical duties one could be assigned to especially if you had shoulder surgeries and MEYER knew that. 11. FAUSTO had informed ONTARIO, MEYER, Thomas O'Neill, and his supervisors that after his shoulder surgery he was not hundred percent. FAUSTO had informed MEYER, O’Neill, Andy and] Richie that his doctor had placed some restrictions and that he could not reach too far or pull up as a result of his surgery. Defendants, including MEYER, did not care and demanded that FAUSTO perform all tasks even if in violation of his doctor’s advice including reaching and pulling out , 12. On or about November 2, 2015, while FAUSTO was installing water meters his right hand| long finger became infected. In addition, FAUSTO suffered from eczema on his hands. He went to the doctor for the cut and his doctor provided with him with a note that he was required to keep the cut dry| and clean by wearing latex gloves at work. FAUSTO in compliance with his doctor's request wore| gloves but ONTARIO and MEYER took the latex gloves away and required him to wear non-porous| gloves that had a composition of wool and rubber, but they became moist after prolonged immersion in| water and stayed moist for the entire day. He was also required to wear leather gloves that had the same problem and began having problems with his hand with inflammation around the nail fold as well| 4 FIRST AMENDED COMPLAINT Ae AE ” 19 20 2 2 n 8 as cracking and pain. FAUSTO was extremely upset by MEYER’s complete disregard to follow the| doctor’s requirement and failure to accommodate. FAUSTO had to file a complaint with HR about this incident. Even HR agreed that FAUSTO should be able to use his gloves while working, so Monte| Farrel, who is another FAUSTO’s supervisors, took him to buy a pair of gloves for work. 13, FAUSTO spoke to Farrel about his frustration with MEYER taking his gloves away, and| FARREL told FAUSTO it was because MEYER and O’Neill were tired of FASUTO going to HR and complaining. FAUTSO was forced to go to HR on many occasions because of the way he had been treated, and how his injuries had been dealt with. There never seemed to be a resolution with HR, they had even told FAUSTO at one point that management had the right to do whatever they wanted in regards to the employees. 14, As part of FAUSTO’s job he was provided with a work truck that was stocked with all of the tools and appliances he would need to complete his daily tasks. On three separate occasions, FAUSTO’s work truck was taken from him and he was instead given an older truck that was not stocked with the supplies he needed to complete his jobs. On one occasion the truck broke down while| he was working on meters along with another coworker, Hantke. Management then asked FAUSTO and Hantke to work on meters by hand knowing FAUSTO’s shoulders injuries and restrictions, and that the fact that FAUSTO had injured his shoulder in the first place by working on meters. 15. Defendants continued to harass FAUSTO and consistently singled him out for the most miniscule matters. On March 29, 2016, Andy picked on FAUSTO for going to his car in the yard, Andy told FAUSTO that O’Neill had seen him going to his car and had asked Andy to wam FAUSTO not to go his car. All other employees that were favored by the management were allowed to go to their cars in the yard and the management never raised that issue with them and they were not reprimanded| ‘or warned or disciplined for doing so. 16, In March of 2016, George, another supervisor of FAUSTO, told him that from now on, he needed to make his own appointments, including medical and physical appointments. However, the next day, FAUSTO witnessed Andy making appointments for other employees. 17. On May 4, 2016, O'Neill told FAUSTO that he was going to “educate him.” FAUSTO received a call from Andy that O°Neill wanted to have a meeting with him. At the meeting, O’Neill 5 FIRST AMENDED COMPLAINT (005) 719-2010 ‘THE TASHNIZI LAW FIRM 200 N, WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 as 6 2 wamed FAUSTO that he was putting too many miles on the truck. O*Neill then told FAUSTO that on| May 3, 2016, he went to the store and his house in the truck. He was also told that he had gone to the| yard. O°Neill mentioned that he had been tracking FAUSTO using the GPS on his truck, which is in violation of what management had promised not to use the GPS to track employees’ movements. Of| course, ONTARIO and the management used the GPS selectively against those employees who| complained about discrimination, or they did not favor because of their race, national origin or| disabilities, or because these employees complained about being discriminated against including! Hantke and Romero 18. On or about May 16, 2016, FAUSTO sustained an injury to his left shoulder and was| recommended to receive physical therapy for his left shoulder. Despite the injury and the restrictions, MEYER and O'Neill assigned FAUSTO the most physically challenging duties including meters and painting fire hydrants that required repetitive use of arms and shoulders. 19. The hostile treatment intensified in late 2015 and 2016 to the point that FAUSTO found it very difficult to go to work where he was shunned. For instance MEYER purposefully avoided any encounter with FAUSTO except when in an official meeting warning or reprimanding him. FAUSTO was ignored by MEYER and was excluded and isolated systematically. 20. On June 1, 2016, early in the morning, MEYER walked into the office and as soon as he saw} FAUSTO in the office making a copy, he tured around and went outside to wait for FAUSTO to leave| before he walked back into the copy room. 21. On June 3, 2016, Monte told FAUSTO that O'Neill had called a meeting with him and wanted to know if FAUSTO had set up a meeting with Scott Burton, the Utilities General Manager. FAUSTO was confused since he had not set up a meeting with Burton. FAUSTO went to the meeting with Burton present. Burton asked FAUSTO if he had filed complaints with HR and if FAUSTO had gone over the chain of command complaining about O’Neill and MEYER. FAUSTO responded that he had done so since he had no other options since his complaints were about the mistreatment by O’Neill and MEYER and did not make sense and would be a waste of time to go to the harassers to complain about them. Burton then asked if FAUSTO liked working for the City of Ontario. FAUSTO replied that he liked his job and that is why he worked on Fridays, Saturday and Sundays and he even went in 6 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM (05) 719-2010, 19 a 2 B 2” on night calls. He then asked FAUSTO about his supervisors and FAUSTO told him that he thought Monte and Andy were good supervisors. Burton promised to investigate FAUSTO’s complaints and| get back to him. FAUSTO never heard back from Burton about his investigation, if any. 22. In June of 2016, O'Neill even asked FAUSTO why he had to go to the HR and complain when he could have gone to O'Neill himself with any complaints. O°Neill ordered FAUSTO not to go| to HR to complain about his supervisors and managers, 23. When an employe went to MEYER to complain, MEYER gets mad right away. He did not want to hear it. MEYER was not there for his employees. 24. When O'Neill went out for dinner and drinks with other workers, FAUSTO was always| excluded. 25. FAUSTO had not been written up and his managers and supervisors, on many instances, told him that he was doing a good job and he was a good worker. FAUSTO even filled in for other employees when they were not be able to be at work, He worked as the night person when asked and| was ok to be on call or be called last minute to come in even if it was very late at night. 26. On June 7, 2016, O'Neill instructed Monte and George to go through FAUSTO’s locker a ‘work and took all the tools from his locker and placed them on a cart in public view and use by co-| workers. 27. On June 16, 2016, Monte told Victor, a co-worker, that if FAUSTO did not get his things together and stop complaining, management did not have to keep an eye on him, 28. On June 20, 2016, on a scolding hot day, other employees were asked to go indoors to watch| videos to stay cool but FAUSTO was excluded. 29. On June 21, 2016, a training seminar was held at 7 in the morning for the gate crew but FAUSTO was never told about the course and was excluded from attending. 30. On June 26, 2016, FAUSTO complained about his supervisors favoring other employees and discriminating against him by not allowing him to receive training like other employees that were favored by his supervisors. FAUSTO complained that he was not treated equally like other employees. 31. On June 28, 2016, another training class was held and all the employees in the valve crew were asked to attend except for FAUSTO. 7 FIRST AMENDED COMPLAINT. ; g “THE TASHNIZI LAWFIRM, 200 N, WESTLAKE BLVD., SUITE 204 3 £ 3 3 5 3 g n 2 1B “4 15 4 25 6 n 32, Sometime on or before June 30, 2016, FAUSTO complained of discrimination and| harassment when the management constantly changed his work assignments more than most and he| was not given any explanation as to why. FAUSTO complained that he was on meter replacement, then valve maintenance, then utility markings, and now fire hydrant painting, FAUSTO explained to| Lupe in HR that not all the staff gets moved around to different assignments like what was done to him. FAUSTO complained that on three occasions he was reassigned and “his truck was taken away.” 33. On or about June 30, 2016, FAUSTO also complained about the change in the type of gloves| provided for working on meter replacement and his need for latex gloves because of his eczema and| ‘the cut he sustained working on meters. Shortly after his complaint, he was reassigned to different| work. 34. On or about June 30, 2016, FAUSTO also complained about the number of time he had been| called to speak to a supervisor or a manager about work performance, and the tone of the meetings had been intimidating, threatening and disrespectful. Both O'Neill and MEYER had called FAUSTO into the office to talk about him not meeting expectations in terms of work production and attendance. This included O'Neill using the GPS placed in FAUSTO’s vehicle to track his location and how much time he spent at each location in violation of his privacy and in violation of the promise by the management that the GPS will not be used to track individuals’ location. 35. On or before June 30, 2016, FAUSTO complained to HR and Lupe that he believed he was| being retaliated against for filing a complaint with HR in February of 2016 about how he was being| singled out, harassed, and discriminated against by MEYER, O'Neill, and other supervisors FAUSTO is certain that he was criticized, picked on and singled out on minor issues after his complaints to HR about O’Neill and MEYER and other managers at ONTARIO. 36. On or about June 30, 2016, FAUSTO complained that MEYER ignored him at work and stopped talking to FAUSTO completely. 37. On or about June 30, 2016, FAUSTO complained to HR that when the vehicle he was using for valve maintenance broke down, he was assigned to meter replacement. The management did not do this to other employees. 38. On or about June 30, 2106, FAUSTO filed a complaint with HR that there was favoritism at FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM 200 N, WESTLAKE BLVD,, SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 (805) 719-2010, 2 4 25 6 n ‘work and that it was unfair to favor certain group over others because of their color of their skin or national origin or other unfair bases. 39. As of June 30, 2016, FAUSTO was on restricted duty because of his shoulder injury and was| scheduled for an MRI. As a result, he had been assigned to painting fire hydrants. 40. On or about July 18, 2016, FAUSTO was given a pace evaluation that he thought was not fair and accurate, so he did not agree to sign it. He complained to his supervisor, Andy, that he still suffered from his shoulder injury and could not perform certain duties as well, that management had failed to accommodate his shoulder injury, and to take that into consideration in his evaluations. 41. On July 18, 2016, MEYER wanted to meet with FAUSTO to discuss the evaluation and| issues raised by FAUSTO related to the evaluation. A meeting was held at 3:00 p.m. with MEYER, Andy and Sergio present. FAUSTO was firm about what he had written in response to the evaluation and how he felt being discriminated by his supervisors and managers. He felt he was discriminated against because he complained about discrimination because of his color of skin and his injuries. He also complained that he had not been accommodated for his injuries like other employees who were favored. They wanted FAUSTO to sign the evaluation and he did not agree to do so. FAUSTO told them he was hurt and even filed a complaint with HR. HR, however, never took any action. 42. On July 25, 2016, FAUSTO complained about the management not following the M.O.U. and having someone with less seniority in charge of a crew or a department when the supervisor is out. This complaint relates to an incident when on July 13, 2016, Monte put Mike, who had less seniority, in charge of the department while on vacation. Danny, who had more seniority, complained why not him, and Monte responded that O’Neill wanted that way. 43. On July 28, 2016, first thing in the morning, FAUSTO received a letter from Burton that he had left with Vickie, a secretarial assistant in the utilities department, Burton never discussed the contents of the letter and or his complaints and other issues with FAUSTO within a week as he had promised, and FAUSTO did not agree with what Burton had stated and concluded in his letter. 44, On August 2, 2016, MEYER asked to meet with FAUSTO to discuss him clocking in and out without a witness and FAUSTO could not meet with him because he had a doctor's appointment. 45. On August 9, 2016, MEYER met with FAUSTO, with Andy and Sergio present, to discuss FIRST AMENDED COMPLAINT i 3 ‘THE TASHNIZI LAWFIRM 200 N, WESTLAKE BLVD., SUITE 204 5 § 3 ” 8 19 2» 2 2 4 2 26 2” 28 clocking in and out. MEYER told FAUSTO that he had clocked-in one minute late. FAUSTO told MEYER that he had not been told about clocking-in late. FAUSTO informed MEYER that he is there| early or on time but sometimes he would be distracted and would forget to clock in on time. Andy then| brought up taking FAUSTO’s truck and replacing it with another truck and how FAUSTO felt he was| discriminated against by taking the truck that he had been using and was newer with an older truck, FAUSTO also mentioned that he will have to clean the trucks and he would be in the yard and he did! not want to get in trouble for being in the yard for too long. 46. On August 9, 2106, FAUSTO called Andy and asked if a smaller truck was available that he could use. Andy said no. FAUSTO’s small truck had taken away from him and assigned to someone else. 47. On August 16, 2016, MEYER and Andy had another meeting with FAUSTO related to his evaluation and his reasons for his response and not signing it. About 7 in the morning, Andy approached FAUSTO that he needed to go over his evaluation with him. FAUSTO reviewed the| evaluation and was fine with most of it except for one thing, and he asked Andy to change it. The| evaluation stated that FAUSTO had been late, which was not true. Andy said that he needed to speak to MEYER. Andy came back and informed FAUSTO that MEYER wanted to speak with him, MEYER told FAUSTO, in an intimidating and threatening tone, that he had been told that FAUSTO disagreed with the evaluation. MEYER told FAUSTO that he had been told about the late clock-in twice. FAUSTO disagreed. MEYER was not happy with FAUSTO not agreeing with the evaluation and insisted that he signed the evaluation even if he disagreed. This is another example of FAUSTO| being singled out by MEYER and ONTARIO. 48. On September 12, 2016, at about 3:30 p.m., O’Neill saw FAUSTO walk to the parking lot to put his lunch pail in his car. Soon after, Andy told FAUSTO that MEYER wanted to talk to him, MEYER told FAUSTO that he was not supposed to be in the parking lot and wanted FAUSTO to sign the write up, but FAUSTO refused do to so. FAUSTO complained that he was being picked on for no| reason since other employees walked to their cars in the parking lot and they did not write them up. MEYER threatened FAUSTO that if he did not sign the paper that he would be insubordinate for not signing and will go further with the incident. FAUSTO explained to MEYER that he was in the| 10 FIRST AMENDED COMPLAINT. ‘THE TASHNIZI LAW FIRM ‘200 N, WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 (805) 719-2010 4 25 7 8 parking lot not even for a minute and that he is being picked on. FAUSTO even explained that he| forgot he was not supposed to be in the parking lot and asked again why he was being treated| differently than those other employees in the parking lot. FAUSTO went to HR and reported this incident. 49. Sometime in 2016, FAUSTO’s general manager Scott had heard about FAUSTO’s many failed attempts with HR and spoke to him about what was going on. FAUSTO explained to Burton that he was being harassed by MEYER, Marquez, and O’Neill. Burton advised FAUSTO, in an unhappy tone, that he would try to resolve any issues with the management by speaking to those involved. However, FAUSTO believes that Burton did not take any action to stop or remedy the harassment, and circumstances did not improve for FAUSTO. Burton later on advised FAUSTO that he would not be able to do anything regarding MEYER, Marquez, and O'Neill. 50. The harassment escalated when O’Neill approached FAUSTO and warmed him, in his face, to not complain to HR, but rather to go to him with any issues he had. For FAUSTO, it was like the fox ‘watching the chicken coop. FAUSTO believed that O’Neill was the one orchestrating the harassment| and discrimination and that complaining to O’Neill would have been a waste of time. 51. FAUSTO was once again put in a hopeless situation when Burton contacted him again to ‘warn him that he had heard that FAUSTO was still going to HR and that he would be taking over his| ‘case. After taking over FAUSTO’s case Burton, once again, did nothing to help FAUSTO, and never| followed up with any of his complaints. As if Burton not taking FAUSTO’s complaints seriously ‘wasn’t frustrating and devastating enough, Burton told FAUSTO that HR could no longer help him. 52. On September 27, 2016, FAUSTO was placed on an administrative leave pending an| administrative investigation for allegedly taking a traffic sign home. 53. On March 28, 2017, FAUSTO was terminated for stealing a traffic sign. 54. FAUSTO has exhausted his administrative remedies. Within the time provided by law, FAUSTO filed a complaint with the EEOC on November 16, 2016 and received a right to sue on November 16, 2016. a a " FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM 200 N, WESTLAKE BLVD,, SUITE 204 (805) 719-2010 WESTLAKE VILLAGE, CALIFORNIA 91362 4 18 16 ” 20 2 25 6 2 FIRST CAUSE OF ACTION DISABILITY DISCRIMINATION (Gov. Code §12940(a)&(m)) (Against City of Ontario and Does 1-10) 55. Plaintiff realleges and incorporate herein by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein, 56. Plaintiff is informed and believe, and on that basis alleges, ONTARIO discriminated against Plaintiff by virtue of his disability, a violation of Government Code section 12900, et. seq. 57. Specifically, Plaintiff is informed and believes, and on that basis alleges that in electing to terminate him, ONTARIO discriminated against Plaintiffs and ONTARIO failed to engage in a timely, continuing, good faith, interactive process with Plaintiff to determine reasonable and effective accommodations for Plaintiff's disability, following Plaintiff's request for them to do so, Defendants| violated Government Code section 12940 (n). 58, Asa direct and proximate result of the acts of the defendant, and each of them, Plaintifis have suffered damages, including but not limited to, loss of earnings and future loss of earings, loss of| health benefits, emotional anguish, and others as yet unascertained damages, all in an amount to be| proven at trial. SECOND CAUSE OF ACTION FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS TO ACCOMMODATE DISABILITY (Gov. Code §12940(n)); (Against City of Ontario and Does 11-20) 59. Plaintiff realleges and incorporate herein by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein. 60. At all relevant times, Plaintiff was a qualified individual with a mental and/or physical disability that limited his major life activities. 61. Despite his disabilities, Plaintiff was able to perform the essential functions of their job with| or without reasonable accommodations. 2 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM ‘200 N: WESTLAKE BLVD, SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 (605) 719-2010 19 a 2 2B m 25 6 7 62. Defendants, and each of them, knew of Plaintiff's disabilities and knew or should have known that he fell within the definition of disability under Gov. Code section 12926. But, Defendants further knew or should have known that despite his disability, Plaintiff could perform the essential functions of his job with or without reasonable accommodations. 63. Defendants also knew, or should have known, of the need to accommodate Plaintiff's disabilities, including the need to engage in the interactive process to determine how to achieve a| reasonable accommodation for Plaintiff. However, Defendants failed and refused to engage in the interactive process with Plaintiff. 64, Instead of engaging in the interactive process, Defendants took adverse action against Plaintiffs, in whole or in part, because of his disabilities and/or Defendants' perception that Plaintiff was disabled. 65. In engaging in the foregoing conduct, Defendants aided, abetted, incited, participated in, coerced and/or compelled unlawful employment practices in violation of California's Fair Employment and Housing Act. 66. As a direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiff has lost and will continue to lose income and benefits in an amount to be proven at the time of trial, Plaintiffs claim such amount as damages together with pre-judgment interest pursuant to Civil Code section 3287 and/or any other provision of law providing for pre-judgment interest. 67. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for mental and emotional distress and aggravation in an amount to be proven at the time of trial. 68. Plaintiff will also seek and is entitled to recover attorney's fees in connection with this cause| of action under Government Code section 12940, et seq. ‘THIRD CAUSE OF ACTION FAILURE TO PROVIDE REASONABLE ACCOMMODATION (Gov. Code §12940(m)): (Against City of Ontario and Does 21-30) 69. Plaintiff realleges and incorporate herein by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein. 13 FIRST AMENDED COMPLAINT. ‘THE TASHNIZI LAW FIRM. 200 N. WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362. (605) 719-2010 ” 19 2 2 2 m 2s 7 70. Defendants knew of Plaintiff's disabilities and knew or should have known that he fell within| the definition of disability under Gov. Code section 12926. But, Defendants further knew or should| have known that despite his disability, Plaintiff could perform the essential functions of his job with or without reasonable accommodations. 71. At all relevant times, Plaintiff was a qualified individual with a mental and/or physical disability and or perceived disability that limited some of his life activities. Specifically, but without| limitation, Plaintiff suffered from physical disability, depression and anxiety. 72. Despite his disabilities, Plaintiff was able to perform the essential functions of his job with or| without reasonable accommodations, 73. Despite their knowledge of the foregoing, Defendants took adverse action against Plaintiff, including, but not limited to, terminating him, in whole or in part, because of his disabilities and/or Defendants perception that Plaintfis were disabled. 74. In engaging in the foregoing conduct, Defendants aided, abetted, incited, participated in, coerced and/or compelled unlawful employment practices in violation of California's Fair Employment| and Housing Act. 75. Asa direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiff has lost and will continue to lose income and benefit in an amount to be proven at the time of trial. Plaintiffs claim such amount as damages together with pre-judgment interest pursuant to Civil Code section 3287 and/or any other provision of law providing for pre-judgment interest. 76. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for mental and emotional distress and aggravation in an amount to be proven at the time of trial. 77. Plaintiff will also seek and is entitled to recover attorney's fees in connection with this cause of action under Government Code section 12940, et seq. FOURTH CAUSE OF ACTION HARASSMENT/HOSTILE WORK ENVIRONMENT (Gov. Code §12940()) (Against All Defendants and Does 31-40) 78. Plaintiff realleges and incorporate herein by reference each and every allegation contained in 14 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAW FIRM, ‘200 N, WESTLAKE BLVD., SUITE 204 WESTLAKE VILLAGE, CALIFORNIA 91362 (005) 719-2010 “ 25 6 7 8 the preceding paragraphs of this Complaint as though fully set forth herein. 79. By engaging in the acts detailed herein, Defendants and Does 11-20, inclusive, have violated| Government Code Section 12940, subdivision (j) as to Plaintiff's. 80. As a proximate result of Defendants and Does 11-20, inclusive willful, knowing, and| intentional discrimination against Plaintiff, he has sustained and continues to sustain substantial losses| in earnings and other employment benefits. 81. Atall times material herein, Defendants at all times knew, or reasonably should have known, that the conduct, acts, and failures to act of all other Defendants and/or supervisors, agents and| employees as described herein above violated Plaintiff's rights under the law, inclusive, knew, or| reasonably should have known, that the conduct, acts, and failures to act of all other Defendants and/or| supervisors, agents and employees as described herein above violated Plaintiffs rights under the law. 82. Atal times material herein, Defendants and Does 11-20, inclusive, and each of them, knew, or reasonably should have known, that the incidents, conduct, acts, and failures to act described herein above, would and did proximately result in emotional distress to Plaintiff, including, but not limited to, loss of sleep, anxiety, stress, unable to focus and concentrate, and depression. 83. Atall times material herein, Defendants and Does 11-20, inclusive, failed to protect Plaintiff, and to adequately supervise, prohibit, control, regulate, discipline, and/or otherwise penalize the| conduct, acts, and failures to act of all other Defendants and/or supervisors, agents or employees as| alleged herein above, said conduct, acts, and failures to act were perceived by them as, and in fact had| the effect of, ratifying, encouraging, condoning, exacerbating, increasing, and/or worsening said conduct, acts, and failures to act. 84. Atall times material herein, Defendants and Does 11-20, inclusive, and each of them, failed to protect Plaintiff and to adequately supervise, prohibit, control, regulate, discipline, and/or otherwise penalize the conduct, acts, and failures to act of all other Defendants and/or supervisors, agents or| employees violated Plaintiff's rights under the law. 85. At all times material herein, Plaintiff has suffered and will continue to suffer pain and| suffering, extreme, and severe mental anguish and emotional distress. Plaintiff is thereby entitled to| general and compensatory damages in amounts to be proven at trial. 15 FIRST AMENDED COMPLAINT. “THE TASHNIZI LAWFIRM, 200 N, WESTLAKE BLVD,, SUITE 204 (05) 719-2010 WESTLAKE VILLAGE, CALIFORNIA 91362 10 n 2 B 1s 16 7 18 20 a 2 B 4 6 2” 86. In light of individual defendants’ outrageous malicious conduct, Plaintiff seeks an award o! punitive and exemplary damages in an amount according to proof against the individual defendants only. Individual defendants recognized their obligation to not discriminate against and harass Plaintiff] and of their obligation not to abuse and defraud their employees. Individual defendants were aware| and conscious of Plaintiff's rights and yet, they chose, to ignore and disregard them. The acts o! Individual defendants were performed with the knowledge of an employer's economic power over its employees. Individual defendants authorized, condoned and ratified the unlawful conduct of all of the other individual defendants in this action. Consequently, Plaintiff is entitled to punitive damages from individual Defendants only. 87. As a further direct and proximate result of defendants’ violation of Government Code § 12941, as heretofore described, Plaintiff has been compelled to retain the services of counsel in an| effort to enforce the terms and conditions of the employment relationship with Defendants and has thereby incurred, and will continue to incur, legal fees and costs. Plaintiff requests that attomey’s fees be awarded pursuant to Government Code §12965. FIFTH CAUSE OF ACTION RETALIATION (Gov. Code §12940, Et Seq) (Against City of Ontario and Does 41-50) 88. Plaintiff realleges and incorporate herein by reference each and every allegation contained in| the preceding paragraphs of this Complaint as though fully set forth herein. 89, Defendants retaliated against Plaintiff for, among other things, 1) Plaintiff's requests for accommodation; 2) Plaintiff's complaints regarding discrimination based on disability; and 3) taking| his duties away; 4) assigning him demeaning and humiliating assignments; 5) assigning him to tasks| that were below his grades; 6) not providing training; and 7) tracking Plaintiff using the GPS on his| vehicles. 90. Defendants engaged in unlawful retaliation against Plaintiff by, among other things; 1) discriminating against Plaintiff, 2) treating him differently; 3) refusing reasonable accommodations for| Plaintiff's disabilities; and 4) because Plaintiff opposed practices forbidden by Government Code| 16 FIRST AMENDED COMPLAINT 8 3 (@05) g 8 38 eB a ‘ é : : s 2 2 4 25 26 2 8 §12900 et seq. Defendants’ treatment of Plaintiff was in violation of Government Code section| 12940(h). 91. As a direct and proximate result of defendants’ actions, Plaintiff has suffered and will continue to suffer a loss of earings and other employment benefits and job opportunities; and has suffered and will continue to suffer pain and extreme and severe mental anguish and emotional distress. Plaintiff is thereby entitled to general and compensatory damages in an amount to be proven| at trial, 92. As a further direct and proximate result of defendants’ violation of Government Code § 12941, as heretofore described, Plaintiff has been compelled to retain the services of counsel in an effort to enforce the terms and conditions of the employment relationship with defendants and has| thereby incurred, and will continue to incur, legal fees and costs. Plaintiff requests that attomey’s fees| be awarded pursuant to Government Code § 12965. SIXTH CAUSE OF ACTION FAILURE TO PREVENT/REMEDY DISCRIMINATION AND RETALIATION (Gov. Code §12940(k) (Against City of Ontario and Does 51-60) 93. Plaintiff realleges and incorporate herein by reference each and every allegation contained in the preceding paragraphs of this Complaint as though fully set forth herein. 94, Plaintiff is informed and believes that Defendant failed to take all steps reasonably necessary to prevent harassment and retaliation to Plaintiff from occurring as required by Government Code| §12940(k). Such conduct violated Government Code §12940(k), and allowed Plaintiff to be harassed and retaliated against, all as aforepled. 95. Defendant ONTARIO and/or their agents/employees, failed to take all reasonable steps necessary to prevent discrimination in employment from occurring. Further, said Defendant knew or| should have known of the discrimination against Plaintiff described above, yet failed to conduct an| adequate investigation into the nature and substance of the discrimination and failed to take immediate| and appropriate corrective action so as to discipline any of the offenders. 96. The response of Defendant, and/or their agents/employees, to that knowledge was so 17 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM, 200 N. WESTLAKE BLVD,, SUITE 206 (805) 718-2010 WESTLAKE VILLAGE, CALIFORNIA 91362 4 15 16 ” 19 0 21 2s 6 n 8 inadequate as to establish a deliberate indifference to, or tacit authorization of, the alleged offensive| practices, and an affirmative causal link existed between Defendant's inaction and the injuries suffered by Plaintiff. 97. By failing to take all reasonable steps necessary to prevent discrimination, and by failing to properly investigate and remedy the discrimination that occurred, Defendant committed unlawful employment practices as described and prohibited in Government Code section 12940(k).. 98. In engaging in the aforementioned conduct, Defendants, and each of them, aided, abetted, incited, compelled, and/or coerced unlawful employment practices in violation of the announced policy| of this State against such practices. 99. Asa direct and foreseeable result of the aforesaid acts of said Defendant, Plaintiff has lost and| will continue to lose income and benefits in an amount to be proven at the time of trial. Plaintiff claims such amount as damages together with prejudgment interest pursuant to Civil Code section| 3287 and/or any other provision of law providing for pre-judgment interest. 100.As a result of the aforesaid acts of Defendant, Plaintiff claims general damages for mental and| emotional distress and aggravation in an amount to be proven at the time of trial. 101.Plaintiff will also seek and is entitled to recover attorney's fees in connection with this cause of action under the private attomey general doctrine (Civ. Code section 1021.5) as well as Government| Code section 12940, et seq. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for damages against Defendants, and each of them, as follows: 1. Forcompensatory damages, including loss of salary, future earnings, and for loss of other valuable employment benefits in an amount according to proof; 2. For the value of Plaintiff's physical and emotional pain and suffering caused by Defendant's wrongful conduct; 3. For an award of interest, including prejudgment interest, atthe legal rate; 4, For punitive damages against the individual defendants according to proof; 5. Forattomeys’ fees on causes of action, including but not limited to, causes of action brought pursuant to the California Labor Codes, California Civil Procedure and FEHA; §§ 201-208, 18 FIRST AMENDED COMPLAINT ITE 204 ‘THE TASHNIZI LAW FIRM 200 N, WESTLAKE BLVD, 1194, 2699(g)(1), Code of Civil Procedure § 1021.5; California Government Code §§ 12940 and pursuant to CCP § 17200; and, 6. For such other relief that the Court may deem just and proper. 4 Dated: March 31, 2017 By Lip a Esq. The Tashnizi Law Firm Attomey for Plaintiff Armando Fausto DEMAND ROR JURY TRIAL, Plaintiffs hereby request a trial by jury, Dated: March 31, 2017 By Paul P. Tashnizi, Esq. ‘The Tashnizi Law Firm Attorneys for Plaintiff Armando Fausto 19 FIRST AMENDED COMPLAINT ‘THE TASHNIZI LAWFIRM ‘200 N. WESTLAKE BLVD,, SUITE 204 (805) 719-2010 WESTLAKE VILLAGE, CALIFORNIA 91362 a 6 a . PROOF OF SERVICE Iam an employee in the County of Ventura, State of California. 1 am over the age of 18 and not a party to the within action; my business address is 200 N. Westlake Bvd,, Suite 204, Westlake Village, fornia 91362. ‘On March 31, 2017, I served the foregoing document, described as FIRST AMENDED COMPLAINT on all interested parties in this action: Brian P. Walter, Esq. Leighton D. Henderson, Esq. Alysha Stein- Manes, Esa. BERT CASSIDY WHITMORE A Professional Law Corporation 6033 West Century Boulevard, 5" Floor Los Angeles, California 90045 /bwalter@lewlegal.com Thenderson@lewlegal.com asteinmanes@lewlega.com C By placing a true copy thereof enclosed in a sealed envelope a 1 placed such envelope, with postage thereon prepaid, in the United States mail at Westlake Village, California. a, Yam readily familia” with the firm's practice of collecting and progessing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day, with postage thereon fully prepaid, at Westlake Village, California, in the ordinary course of business. ‘I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation or postage meter date is more than one day after the date of deposit for mailing in this affidavit. & (STATE) | declare, under penalty of perjury under the laws of the State of California, that the above is true and correct. Fy FEDERAL I declare that | am employed in the office of a member of the bar of this Court at whose direction the service was made. 11 (BY PERSONAL SERVICE) | caused such envelope tobe delivered by hand tothe attorney at offices of the addressee. & @Y ELECTRONIC MAIL) I sent such document via Email to the individuals noted above. (VIA FACSIMILE) I sent such document via Facsimile to the individuals noted above. Executed on March 31, 2017 at Westlake Village, California. fy ee 20 FIRST AMENDED COMPLAINT

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