Draft FACC-changes accepted 5-29 (00170571)a-mobilized-membership-is-an-irresistible-force.984137.n3.nabble.co… · THE MALONEY FIRM, APC EL SEGUNDO, CALIFORNIA 90245 2381 ROSECRANS

Exhibit A

Case 2:20-cv-03146-JFW-PLA Document 49-1 Filed 05/29/20 Page 1 of 30 Page ID #:298

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00170571.DOCX 1 AMENDED COUNTERCLAIM FOR DAMAGES

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THE MALONEY FIRM, APC PATRICK M. MALONEY - State Bar No. 197844 CRAIG T. REESE - State Bar No. 238332 2381 Rosecrans Avenue, Suite 405 El Segundo, California 90245 T: (310) 540-1505 | F:(310) 540-1507 E: [email protected] E: [email protected] Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CURTIS CONYERS AND DANIEL LANGFORD, trustees, participants and/or authorized agents of THE CARPENTERS SOUTHWEST TRUSTS,

Plaintiff,

vs. MARISA CANO, an individual; and SANDRA MALONEY, an individual,

Defendant,

Case No.: 2:20-cv-03146 JFW (PLAx) Judge: Hon. John F. Walter Courtroom: 7A Complaint Filed: April 3, 2020 DEFENDANT AND COUNTERCLAIM PLAINTIFF SANDRA MALONEY’S FIRST AMENDED COUNTERCLAIMS FOR DAMAGES DEMAND FOR JURY TRIAL

SANDRA MALONEY, an individual,

Counterclaim Plaintiff,

vs. CARPENTERS SOUTHWEST ADMINISTRATIVE CORPORATION, a California Corporation; CURTIS CONYERS and DANIEL LANGFORD, trustees and/or participants of the CARPENTERS SOUTHWEST TRUSTS; BOARD OF TRUSTEES FOR THE CARPENTERS SOUTHWEST TRUSTS; DOUGLAS MCCARON, an Individual;

Counterclaim Defendants.

1. Harassment in violation of the Cal. FEHA;

2. Retaliation in violation of the Cal. FEHA;

3. Discrimination in violation of the Cal. FEHA;

4. Associational Discrimination in violation of the Cal. FEHA;

5. Retaliation in violation of Cal. Labor Code § 1102.5;

6. Intentional Infliction of Emotional Distress;

7. Violation of Cal. Labor Code § 6310; 8. Wrongful Termination in Violation of

Public Policy;


mailto:[email protected]

mailto:[email protected]

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9. Failure to Prevent Discrimination, Retaliation, and Harassment in Violation of the Cal. FEHA;

10. Trespass to Chattels.

INTRODUCTION

1. This action arises after a long-term employee of the CARPENTERS

SOUTHWEST ADMINISTRATIVE CORPORATION and CARPENTERS

SOUTHWEST TRUSTS was terminated for complaining about working conditions

and attempting to secure the health and safety of the workforce during the COVID-19

pandemic. Counterclaim Plaintiff was subjected to years of sexual harassment and

was told by opposing counsel that she should sue her employer because of the

mistreatment. Substantial factors for her termination were her gender, association

with other individuals, cooperating in a government investigation, and complaining

about working conditions.

PARTIES

2. Defendant and Counterclaim Plaintiff SANDRA MALONEY

(hereinafter “SANDRA”) is 53 years old. She has worked in companies that provide

support to organized labor and labor unions for the entirety of her adult life. All of her

jobs have been with various entities that are part of the Southwest Carpenters

organization.

3. Counterclaim Defendant CARPENTERS SOUTHWEST

ADMINISTRATIVE CORPORATION (hereinafter “CSAC”) administers the

CARPENTERS SOUTHWEST TRUSTS. CSAC has a Board of Directors that is

exclusively comprised of Trustees of the CARPENTERS SOUTHWEST TRUSTS.

During board meetings, the members of the Board of Directors are referred to as

Trustees.


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4. Counterclaim Defendant DOUGLAS MCCARRON (hereinafter

“MCCARRON”) is the Chief Executive Officer of CSAC and a member of its Board

of Directors. He is also a member of the BOARD OF TRUSTEES FOR THE

CARPENTERS SOUTHWEST TRUSTS and is the General President of the United

Brotherhood of Carpenters and Joiners of America. Until SANDRA’s termination, he

was her boss at CSAC.

5. Plaintiff and Counterclaim Defendant CURTIS CONYERS is allegedly a

paid trustee, a participant and/or is authorized to act on behalf of the CARPENTERS

SOUTHWEST TRUSTS (consisting of the Southwest Carpenters Pension Trust,

Southwest Carpenters Health and Welfare Trust, Southwest Carpenters

Apprenticeship Trust, and the Southwest Carpenters Vacation Trust). Plaintiff and

Counterclaim Defendant DANIEL LANGFORD is allegedly a trustee, a participant

and/or is authorized to act on behalf of the CARPENTERS SOUTHWEST TRUSTS.

LANGFORD is also the Executive Secretary-Treasurer of the Carpenters Southwest

Regional Council of Carpenters.

6. The BOARD OF TRUSTEES FOR THE CARPENTERS SOUTHWEST

TRUSTS is a fiduciary and a duly authorized and acting trustee of the various

Carpenters Trust Funds (hereinafter LANGFORD and CONYERS acting on behalf of

CARPENTERS SOUTHWEST TRUSTS and the BOARD OF TRUSTEES FOR THE

CARPENTERS SOUTHWEST TRUSTS collectively referred to as “TRUSTS”).

JURISDICTION AND VENUE

7. This Court has supplemental jurisdiction in this counterclaim pursuant to

28 U.S.C. Section 1367 for causes of action under California law.

8. This District possesses venue of this matter pursuant to 28 U.S.C. Section

1391, because the events and omissions giving rise to the claims alleged in this

counterclaim occurred in Los Angeles County, a county within the Central District of

California. The amount in controversy in this action exceeds the jurisdictional limits


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of this Court.

STATEMENT OF FACTS

9. SANDRA has worked in the world of organized labor for her entire adult

life. She devoted her career to ensuring that members of the union were provided with

the level of service needed. Her entire career was spent working for entities affiliated

with Carpenters Southwest organization.

10. SANDRA was an employee of CSAC.

11. There are five separate main trusts and several smaller ancillary trusts,

which comprise the CARPENTERS SOUTHWEST TRUSTS, which collect

contributions from the members. CSAC was created to administer the various funds

of the trusts. SANDRA, who is not a lawyer and has no legal training, had been under

the impression that CSAC was her sole employer. Notwithstanding SANDRA’s lay

understanding, the TRUSTS are joint employers of SANDRA, along with CSAC,

within the meaning of California and federal law, given, among other things, the

control they have exercised over her employment with CSAC, including their decision

to terminate SANDRA and the TRUSTS’ allegations in the Complaint on file in this

action that they employed and terminated SANDRA.

12. Based on information and belief, she believes and herein alleges that the

Plaintiffs and Counterclaim Defendants TRUSTS are a joint employer of her because

they exercised control over the conditions of her employment and share control with

Counterclaim Defendant CSAC over the terms of SANDRA’s employment, including

control over SANDRA’s wages, hours, and working conditions. To wit, SANDRA

understands and is informed and believes that the TRUSTS assert in this action that

they control her working hours and work locations, among other things, with regard to

the TRUSTS positions regarding a so-called “four-hour rule.” The working

conditions of SANDRA and others employed by CSAC are controlled by the

TRUSTS, which has asserted in the Complaint on file herein that SANDRA and her


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colleagues at CSAC were required to work a certain number of hours, from certain

locations, at prescribed times. SANDRA is informed and believes that these policies

were developed by the TRUSTS’ counsel, including its counsel of record in this

action, on behalf of the TRUSTS to control the employment of CSAC employees,

including SANDRA. Further, SANDRA is informed and believes and based thereon

alleges that the TRUSTS made the decision and instructed CSAC to terminate

SANDRA’s employment with CSAC. Further still, SANDRA is informed and

believes that the TRUSTS were responsible for decisions concerning the severance

package that had been offered to SANDRA and then retracted. Even further still, the

TRUSTS have alleged in Paragraph 4 of the Complaint on file herein that they are

SANDRA’s employer and alleged in Paragraphs 4 and 12 of the Complaint that

SANDRA owed fiduciary duties to the TRUSTS.

SANDRA IS SUBJECTED TO SEXUAL HARASSMENT AND PROTESTS

ILLEGAL CONDUCT

13. During the period from 1992 to 2011, SANDRA had an off and on

romantic relationship with MCCARRON, her boss, the Chief Executive Office of

CSAC, a member of its Board of Directors, and a member of the BOARD OF

TRUSTEES FOR THE CARPENTERS SOUTHWEST TRUSTS.

14. After the end of their personal relationship, SANDRA and MCCARRON

continued to work together professionally.

15. After the relationship ended in 2011 and continuing to shortly before her

termination, however, MCCARRON engaged in behavior towards SANDRA that was

offensive and unwelcome. Some conduct and comments that were once considered

welcome became unwelcome and offensive as the conduct and comments continued

unabated despite the relationship ending.

16. MCCARRON would often treat SANDRA inappropriately.

MCCARRON would instill fear in SANDRA and was hostile; other times,


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MCCARRON was flirtatious and chatty with SANDRA. MCCARRON was very

comfortable with SANDRA and often talked about her body or blue eyes, sometimes

telling her to look in the mirror and not be upset about anything when she would seek

advice about work-related issues. MCCARRON has made many references to

SANDRA’s breasts in her office or on phone calls to her during work hours and has

made the comment that SANDRA will never have to worry about drowning. He

would ask if “they are real or Memorex.” MCCARRON would flirt with SANDRA

and say things like, “Hey Young Lady.” Recently, when alone with SANDRA in her

office, MCCARRON asked SANDRA for a hug, to which she did not consent but

reluctantly complied as she was fearful of spurning her boss’s advances.

MCCARRON hugged SANDRA, squeezed her, and said, “this is dangerous.”

17. In March 2020, SANDRA told CSAC’s CFO, Nina Gutierrez, and other

employees that she was sick of the harassment by MCCARRON. Shortly thereafter,

SANDRA was placed on administrative leave.

18. Desmond Lee, a lawyer with DeCarlo & Shanley, counsel for Plaintiffs

and Counterclaim Defendants TRUSTS in this action, provided SANDRA with advice

concerning her rights resulting from such misconduct.

19. In February 2020, SANDRA participated in an interview during an

investigation by the Department of Labor, at which time she was represented by

counsel for the TRUSTS in this action, DeCarlo & Shanley. SANDRA cooperated as

required by law and provided truthful information during the investigation.

20. The main inquiry of the Department of Labor investigation related to

how the TRUSTS handled internal processes for processing benefits. MCCARRON

and the TRUSTS became fearful the investigation could result in a financial audit for

CSAC.

21. Following the Department of Labor interview, SANDRA learned that

MCCARRON, working with John DeCarlo, added to the agenda of the March 2020

Quarterly Board of Trustees Meeting an item for approval consisting of creating a


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request for proposal and contract for a new consulting firm to do claims auditing for

the TRUSTS.

22. After learning of the proposal, SANDRA contacted MCCARRRON and

raised concerns about the proposal, including that the TRUSTS had very recently

entered into a contract with another auditing firm following approval at the most

recent CSAC meeting, that the existing auditor had already been paid, and that the

audit was set to begin soon. SANDRA questioned why a new auditor was necessary

and further raised her concerns that inaccurate information had been used in creating

the request for proposal for the new auditor. MCCARRON became angry and ended

the conversation.

23. Despite SANDRA’s earlier efforts to voice her concerns, MCCARRON

nonetheless introduced the request for proposal at the Trustee Board Meeting on

March, 20, 2020, seeking approval to hire the new auditor. At MCCARRON’s

request, the Trustees agreed to table the decision to a later date. Sandra was put on

administrative leave that afternoon.

SANDRA PROTESTS COVID-19 POLICIES

24. On or about March 13, 2020, a participant of the TRUSTS came to the

building wearing a face mask and coughing. The participant told the receptionist that

he needed help figuring out his insurance as he had just had a COVID-19 test. Several

employees were exposed to this individual, so Human Resources sent them home to

self-quarantine.

25. On March 13, 2020, Desmond Lee provided to SANDRA and her

colleagues advice and guidance regarding health and safety issues relating to the

COVID-19 pandemic.

26. CANO and SANDRA disagreed with the advice provided by Desmond

Lee and argued in favor of a greater degree of protection for their colleagues and co-

workers.


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27. In early March, as the COVID-19 pandemic was rapidly expanding

throughout the country, CSAC employee Chris Edlebi requested that she be permitted

to work from home. Ms. Edlebi was SANDRA’s executive assistant and SANDRA

wanted to make sure that Ms. Edlebi was able to continue working in a safe manner.

SANDRA wanted to make sure that Ms. Edlebi received fair and equitable treatment

and that a request for accommodation was considered. She expressed concern that she

was considered high risk of exposure and medical complications from the virus

because she was 69 years old and took public transportation to work. HR also shared

the concerns and wanted to try to find a way to have Ms. Edlebi do her work from

home for a couple weeks. Ms. Edlebi expressed to SANDRA that she was concerned

for her health. Ms. Edlebi was deeply troubled by COVID-19 and was visibly upset.

28. SANDRA was instructed that Ms. Edlebi would not be permitted to work

from home.

29. During this period, MCCARRON expressed that he would have

employees of CSAC and affiliated companies declared “essential employees,” who

would be allowed to continue to work. SANDRA understood that MCCARRON

would seek this designation in order to avoid or dilute the obligations to provide

reasonable accommodations and refrain from discriminating against employees.

30. On or about March 16, 2020, Governor Gavin Newsom issued a mandate

that individuals 65 years or age of older should self-isolate at home.

31. SANDRA and Mr. Lee exchanged a series of emails concerning Ms.

Edlebi’s employment and request to work from home, with SANDRA advocating for

the health and safety of Ms. Edlebi.

32. SANDRA protested the propriety of MCCARRON attempting to have

CSAC and its affiliated companies declared “essential employers” and disagreed with

the legal advice the Mr. Lee was purporting to provide so that CSAC employees

would continue to provide services to Mr. Lee’s other client, the TRUSTS. SANDRA

reasonably believed that declaring CSAC and its affiliated companies an essential


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employer and not permitting accommodations for the employees was illegal.

SANDRA was informed that Ms. Edlebi would not be permitted to work from home.

After advocating for an accommodation for Ms. Edlebi and protesting the declaration

that CSAC and its affiliated entities were an essential employer, SANDRA became

fearful that Counterclaim Defendants would terminate her for not being a “team

player.”

33. Many other employees of CSAC and its affiliated and related entities

were permitted to work from home.

34. Later, during a CSAC Board Meeting, the Board Members, who are also

each a Trustee of the TRUSTS, informed SANDRA they had found out about the

email correspondence involving Ms. Edlebi and were unhappy with SANDRA. After

the Board Meeting, the Board Members began to question SANDRA’s work time and

the “four-hour rule.”

35. SANDRA was very concerned with the health and safety issues that

would be created by requiring older, health-compromised employees to come to the

office. For this reason, SANDRA objected to what she understood from her

communication with counsel for both CSAC and the TRUSTS, that the TRUSTS, and

hence its support agency, CSAC, were requiring that employees such as SANDRA

and Ms. Edlebi be required to come to work and be deprived of the opportunity to

work from home or engage in “social distancing.”

SANDRA SUFFERS RETALIATION

AND IS WRONGFULLY TERMINATED

36. In response to SANDRA’s advocacy for Ms. Edlebi, SANDRA was

challenged by CSAC’s and the TRUSTS’ counsel about certain employment practices

that had long been in place. Namely, the so-called “four-hour rule” that had been

implemented by another CSAC Executive Administrator. The four-hour rule allowed

exempt employees to sometimes come into work for four hours in the morning and


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work the remaining part of the workday outside of the office, so long as it was

approved.

37. Working full days from home was not a foreign or uncommon policy

for the TRUSTS and CSAC, and did not require any excess expense to allow

employees to work from home. For example, a previous Executive Administrator,

Kevin Wolfe, who is male, worked from home at least one day per week. SANDRA

is informed and believes and based thereon alleges that Mr. Wolfe has not been sued

for, nor accused of, breaching any fiduciary obligations.

38. On a late night, weekend phone call to her personal cellphone, Mr. Lee

discussed with SANDRA the accusations against her and apologized to her.

39. SANDRA became aware that the lawyers in Mr. Lee’s firm were

interviewing numerous individuals in an attempt to scapegoat SANDRA for the four-

hour rule, notwithstanding that she did not develop or implement the rule.

40. On or about March 20, 2020, Daniel Shanley – who is the lawyer that

filed this suit for the TRUSTS – and his partner John DeCarlo met with SANDRA to

place SANDRA on administrative leave. They told SANDRA that they wanted to talk

about an exit strategy with her because there was “bad blood” with the Trustees.

SANDRA understood the comments of the TRUSTS’ attorneys to convey that the

Trustees of the TRUSTS had concluded and directed that CSAC should terminate her

employment with CSAC.

41. Messrs. Shanley and DeCarlo informed SANDRA that they had just met

with the Trustees, and Messrs. Shanley and DeCarlo wished to talk to discuss what

she would want to terminate her employment with CSAC. When SANDRA gave an

amount of two years’ salary and pension credits, they said that amount was too much.

Based on the information provided to her by Messrs. Shanley and DeCarlo, SANDRA

understood that it was the Trustees of the TRUSTS, in their capacity as Trustees, that

made the decision and required that CSAC terminate her employment.


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42. Based on SANDRA’s experience with other terminations conducted by

CSAC and its affiliates (as CSAC’s now sixth Executive Administrator in nine years),

CSAC and its affiliates typically paid very substantial severance packages.

43. Based on SANDRA’s knowledge of severance packages offered to other

former employees, her extended tenure with CSAC and affiliated entities, her age, her

concern that she would be unable to find suitable replacement employment, and the

reasons for which CSAC wished to terminate her employment, she requested a

severance package equivalent to two years’ compensation.

44. After informing SANDRA that the severance package she requested was

too much, Messrs. Shanley and DeCarlo proceeded to chastise her about the four-hour

rule and, in an apparent move to gain an upper hand in the negotiation, threatened

SANDRA by accusing her of engaging in criminal behavior by partaking in CSAC’s

four-hour rule. These threats by Messrs. Shanley and DeCarlo were not a personnel

function, but instead were unlawful and outrageous conduct, in violation of the

California Rules of Professional Conduct, made solely in order to put SANDRA into a

state of fear and duress to coerce SANDRA into taking an offer of severance without

any time to consider the offer or speak with counsel, notwithstanding that under the

Older Workers Benefit Protection Act, Age Discrimination in Employment Act, and

29 C.F.R. 1625.22(e), due to her age (she is over 40 years of age) SANDRA should

have been provided both the opportunity to speak with counsel and 21 days to review

any severance package. SANDRA is informed and believes that the conduct of

Messrs. Shanley and DeCarlo violates Rule 3.10 of the California Rules of

Professional Conduct applicable to attorneys licensed and practicing within the State

of California.

45. Messrs. Shanley and DeCarlo proceeded to threaten and attempt to extort

SANDRA on behalf of CSAC and TRUSTS by telling her that if things went any

further, she should know that information about SANDRA’s past would get out.

SANDRA understood Messrs. Shanley’s and DeCarlo’s threat to be about her past


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relationship with MCCARRON and others, suggesting that the disclosure of that prior

relationship would harm her relationship with her husband, whom she married in

April 2016. SANDRA responded by saying that it was okay because her husband

knows everything about her past.

46. SANDRA informed them that if they were not going to terminate her, she

was going to go back to work.

47. Approximately three hours later, Messrs. Shanley and DeCarlo returned

to put SANDRA on administrative leave but did not say why. They escorted

SANDRA to her car and took her parking pass and the key to the building.

48. SANDRA has not since returned to the building, and her personal

belongings have not been returned to her. CSAC remains in wrongful possession of

SANDRA’s personal possessions.

49. On or about March 30, 2020, SANDRA spoke to Mr. DeCarlo by

telephone. During that telephone call, Mr. DeCarlo claimed that she had engaged in

criminal conduct by attempting to extort his clients in the prior meeting SANDRA had

with him and Mr. Shanley because she had asked for a severance package that they

had unilaterally deemed too large.

SANDRA’S EMPLOYERS PROVIDE PRETEXTUAL REASONS TO

SUPPOSEDLY JUSTIFY HER WRONGFUL TERMINATION

50. Despite his representations in prior severance package negotiations, Mr.

DeCarlo also told SANDRA that she was being terminated because of her role with

regard to the four-hour rule and because she had taken off too many days in 2019.

SANDRA is informed and believes that the Board of Directors for CSAC had to

authorize this action and made the decision to terminate her.

51. With regards to the four-hour rule, Mr. DeCarlo claimed SANDRA had

engaged in criminal conduct and could face criminal prosecution. SANDRA was

intimidated and frightened by the threats coming from Mr. DeCarlo, an attorney. As


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noted, Mr. DeCarlo’s threat of criminal prosecution violates rules that prohibit

lawyers making threats of criminal conduct to obtain an advantage in a civil dispute.

52. Further demonstrating that the four-hour rule was not the real reason for

the termination of employment, CSAC has not terminated, sued or accused of breach

of fiduciary duty the other individuals who exercised the four-hour rule, nor has it

terminated, sued or accused of breach of fiduciary duty to the other individuals who

have been involved in discussions concerning the application of the four-hour rule.

To the contrary, rather than terminating Rich Crook, an individual who has taken

advantage of the four-hour rule, CSAC promoted him to fill the space vacated by

SANDRA’s termination.

53. Similarly, Mr. DeCarlo’s claim that SANDRA took off too much time in

2019 is also belied by a full understanding of the numerous, traumatic, and remarkable

life and family events in 2019 that many of the Trustees knew about, including, but

not limited to, MCCARRON. In early 2019, a member of SANDRA’s immediate

family suffered a sexual assault. In February 2019, her sister was diagnosed with lung

cancer. Her brother-in-law died suddenly of a stroke in May 2019. In Fall 2019, her

stepson who lived with her was involved in a serious auto accident during his first

week of college, rendering him a quadriplegic. Her father also received a cancer

diagnosis and passed on January 13, 2020. Her father-in-law passed a week later on

January 19, 2020.

54. In light of this trauma, it should come as no surprise she missed work in

2019. SANDRA did work on days off however, even if she was away from the office.

Though SANDRA was not always physically present in the office, she continued to

work, taking calls day and night from staff and others.

55. Trustee Dick Harris advised SANDRA to work from home because she

looked tired from the stress of the family trauma she had suffered.

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56. Dick Harris also advocated at meetings, in the presence of MCCARRON,

CONYERS, LANGFORD, and Nina Gutierrez, that SANDRA did not start the four-

hour rule, which was put in place by a prior individual, LaNell Petersen.

57. SANDRA is informed and believes and based thereon alleges that neither

CSAC nor the TRUSTEES have brought suit against or accused LaNell Petersen of

breaching fiduciary obligations she owed to any of them.

58. A previous Executive Administrator, Kevin Wolfe, was permitted to be

in the office only a few days a week and then work remotely from Seattle at least one

day a week.

59. An Operations Manager who reported to LANGFORD was allowed to

work from home and to depart from the office early.

60. Others who were allowed to work remotely include IT Manager Antonio

Quinnonez, Chris Westmoreland, Betty Becerra, Sonya Silva, Cecile Standridge,

Chris Hildago, Norman Guererro, Dan Vela, Vince Chianese, Paolo Gutierrez, Kristin

Tingley, Rich Crook, Francisco Villanueva, and Nina Gutierrez, among others.

SANDRA is informed and believes and based thereon alleges that neither CSAC nor

the TRUSTS have initiated suit or accused these individuals of breaching fiduciary

obligations.

61. In short, the TRUSTS and CSAC then concocted a pretextual basis to fire

SANDRA in an attempt provide cover for culling the most vocal dissident of the

Trustees’ within the organization. It is plain from the conduct of their attorneys, the

TRUSTS and CSAC are and were willing to do anything to intimidate and silence

SANDRA.

EXHAUSTION OF REMEDIES

62. SANDRA timely exhausted her administrative remedies by filing a

complaint with the California Department of Fair Employment and Housing on April

28, 2020, at which time she received a right to sue letter.


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CAUSES OF ACTION

COUNT I

Sexual Harassment

Violation of Cal. Gov. Code § 12940(j)

(Against Counterclaim Defendants McCarron, Trusts, and CSAC)

63. Counterclaim Plaintiff incorporates by reference each and every

allegation contained in the preceding paragraphs as though fully stated here.

64. At all relevant times mentioned herein, Counterclaim Plaintiff and

MCCARRON were employed by CSAC.

65. At all relevant times mentioned herein, Counterclaim Plaintiff is

informed and believes and based thereon alleges that the TRUSTS and CSAC

exercised control over the terms and conditions of her employment and work

environment.

66. At all relevant times, MCCARRON subjected and/or exposed

Counterclaim Plaintiff to a concerted, routine, and repeated pattern of unwanted,

unsolicited, offensive and abusive conduct, directly because of her gender, her

association with other individuals due to protected categories, and the perception of

engaging in protected activities. To the extent that the conduct herein complained by

Counterclaim Plaintiff was not specifically directed toward her, she witnessed it being

committed by MCCARRON in or near her immediate work environment.

67. MCCARRON’s conduct, as herein alleged and described, was

sufficiently severe or pervasive so as to adversely alter the condition of Counterclaim

Plaintiff’s employment.

68. Counterclaim Plaintiff has been informed, believes and thereon alleges

that any reasonable women of her age, national origin, and financial status would have

considered MCCARRON’s conduct to have created a work environment that was

hostile, abusive, and intimidating, and Counterclaim Plaintiff did so consider her work

environment to be as such.


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69. Counterclaim Plaintiff has been informed, believes, and thereon alleges

that MCCARRON was, at all relevant times mentioned herein, an officer and

managing employee of CSAC and/or the TRUSTS and the illegal conduct

Counterclaim Plaintiff was subjected and/or exposed to was carried out with the prior

consent, approval, authorization, encouragement, knowledge, and/or ratification of

CSAC and/or the TRUSTS. Counterclaim Plaintiff has been informed, believes, and

thereon alleges that CSAC and/or the TRUSTS knew, must have known, had reason to

know, or should have known of MCCARRON’s behavior, yet failed to take

immediate, appropriate, or adequate corrective and/or remedial measures to protect

Counterclaim Plaintiff, in violation of Gov. Code §§ 12940(k) and 12940(j)(1).

70. Therefore, as a direct, foreseeable, legal and proximate result of

Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC and/or

the TRUSTS’ failure to take action in violation of Gov. Code §§ 12940(k) and

12940(j)(1), Counterclaim Plaintiff suffered substantial loss of tangible job benefits,

in addition to anxiety, trepidation, apprehension, panic, dread, fear, worry,

embarrassment, humiliation, shame, mental and emotional distress and discomfort, all

to her damage in an amount to be proven at trial. As a further direct, foreseeable,

legal, and proximate result of MCCARRON’s conduct and behavior, as herein

described, as well as CSAC and the TRUSTS’ failure to act, as herein set forth,

Counterclaim Plaintiff was also caused to retain attorneys and have thus incurred legal

fees, expenses, and costs, entitling her to reimbursement of same pursuant to Gov.

Code §12940(b), in an amount to be proven at trial.

71. Counterclaim Defendants’ misconduct was committed intentionally, in a

malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim

Plaintiff to punitive damages against Counterclaim Defendants.

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COUNT II

Retaliation

Violation of Cal. Gov. Code § 12940(h)

(Against Counterclaim Defendants Trusts and CSAC)



73. Counterclaim Plaintiff’s complaints to Counterclaim Defendants about

sexual harassment, as well as mistreatment of other employees based on other

characteristics protected by FEHA, Government Code section 12900, et seq., were

motivating factors in Counterclaim Defendants’ decision to terminate Counterclaim

Plaintiff.

74. Counterclaim Plaintiff complained of and protested Counterclaim

Defendants’ illegal and wrongful actions. Thereafter, Counterclaim Defendants

retaliated against Counterclaim Plaintiff by harassing her and/or taking adverse

employment actions against her, in major part because she reported and complained of

activities that she reasonably believed to be unlawful under FEHA.

75. As a proximate result of Counterclaim Defendants’ willful, knowing, and

intentional discrimination against Counterclaim Plaintiff, she has sustained and

continues to sustain substantial losses of earnings and other employment benefits.


intentional retaliation against Counterclaim Plaintiff, Counterclaim Plaintiff has

sustained and continues to sustain substantial losses of earnings and other employment

benefits.

77. Therefore, as a direct, foreseeable, legal, and proximate result of






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fees, expenses, and costs, entitling her to reimbursement of the same pursuant to Gov.





COUNT III

Discrimination on the Basis of Sex

Violation of Cal. Gov. Code § 12940(a)




80. Counterclaim Plaintiff’s gender, association with employees in a

protected status, complaints to Counterclaim Defendants about sexual harassment, as

well as mistreatment of other employees based on other characteristics protected by

FEHA, Government Code section 12900, et seq., were motivating factors in

Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.

81. Counterclaim Defendants discriminated against Counterclaim Plaintiff by

taking adverse employment actions against her, in major part because of her gender.

82. The harassment of Counterclaim Plaintiff by MCCARRON created a

hostile working environment and altered the terms and conditions of her employment.


intentional discrimination against Counterclaim Plaintiff, Counterclaim Plaintiff has


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benefits.


Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC’s and/or














COUNT IV

Associational Discrimination

Violation of Cal. Gov. Code § 12940




87. Counterclaim Plaintiff’s gender, association with employees in a

protected status, complaints to Counterclaim Defendants about sexual harassment, as

well as mistreatment of other employees based on other characteristics protected by

FEHA, Government Code section 12900, et seq., were motivating factors in


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Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.

88. Counterclaim Defendants discriminated against Counterclaim Plaintiff by

taking adverse employment actions against her, in major part because of her

association with individuals with protected status under FEHA.


intentional discrimination against Counterclaim Plaintiff, Counterclaim Plaintiff has


benefits.
















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COUNT V

Retaliation

Violation of Cal. Labor Code § 1102.5




93. At all relevant times, Cal. Labor Code section 1102.5 was in effect and

was binding on Counterclaim Defendants. This statute prohibits Counterclaim

Defendants from retaliating against any employee, including Counterclaim Plaintiff,

for raising complaints of illegality.

94. Counterclaim Plaintiff raised complaints of illegality while she worked

for Counterclaim Defendants. The complaints included protesting the designation of

CSAC and its affiliated entities as “essential employers,” participating in a

government investigation, and questioning improper efforts to replace recently hired

auditors out of fear of Department of Labor audit. Counterclaim Defendants retaliated

against her by discriminating against her, harassing her, and taking adverse

employment actions, including employment termination, against her.

95. Counterclaim Plaintiff’s protests of illegal activities, were motivating

factors in Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.


intentional violations of Labor Code section 1102.5, Counterclaim Plaintiff has

suffered and continues to suffer humiliation, emotional distress, and mental and

physical pain and anguish, all to her damage in a sum according to proof.

97. As a result of Counterclaim Defendants’ adverse employment actions

against Counterclaim Plaintiff, she has suffered general and special damages, and has

had to retain attorneys and has incurred attorneys’ fees, in sums according to proof.


malicious, oppressive, and fraudulent manner, entitling Counterclaim Plaintiff to


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punitive damages against Counterclaim Defendants.

COUNT VI

Intentional Infliction of Emotional Distress

(Against Counterclaim Defendants McCarron, Trusts, and CSAC)



100. Counterclaim Defendants engaged in conduct directed at Counterclaim

Plaintiff, directly and through their agents, DeCarlo, Shanley, and Lee, including the

following misconduct which is outside of the scope of the employment bargain,

including:

a. Sexual harassment in violation of FEHA;

b. Retaliation in violation of FEHA;

c. Discrimination in violation of FEHA;

d. Retaliation in violation of the California Labor Code;

e. Extortion and duress brought on by threatening criminal

prosecution and the disclosure of personal and private information.

101. Counterclaim Defendants’ unlawful, discriminatory, harassing, and

retaliatory actions against Counterclaim Plaintiff constituted severe and outrageous

misconduct and caused Counterclaim Plaintiff extreme emotional distress.

102. Counterclaim Defendants were aware that treating Counterclaim Plaintiff

in the manner alleged above, including depriving Counterclaim Plaintiff of her

livelihood, would devastate Counterclaim Plaintiff and cause her extreme hardship.

103. As a proximate result of Counterclaim Defendants’ extreme and

outrageous conduct, Counterclaim Plaintiff has suffered and continues to suffer severe

emotional distress. Counterclaim Plaintiff has sustained and continues to sustain

substantial losses of earnings and other employment benefits as a result of being

emotionally distressed.


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104. As a proximate result of Counterclaim Defendants’ extreme and

outrageous conduct, Counterclaim Plaintiff has suffered and continues to suffer

humiliation, emotional distress, and mental and physical pain and anguish, all to his

damage in a sum according to proof.



punitive damages.

COUNT VII

Retaliation

Violation of Cal. Labor Code § 6310




107. At all relevant times, Cal. Labor Code section 6310 was in effect and was

binding on Counterclaim Defendants, providing in relevant part:

Section 6310.

(a) No person shall discharge or in any manner discriminate against any

employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other

governmental agencies having statutory responsibility for or

assisting the division with reference to employee safety or health,

his or her employer, or his or her representative.

(b) Any employee who is discharged, threatened with

discharge, demoted, suspended, or in any other manner

discriminated against in the terms and conditions of

employment by his or her employer because the employee

has made a bona fide oral or written complaint to the


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division, other governmental agencies having statutory

responsibility for or assisting the division with reference to

employee safety or health, his or her employer, or his or her

representative, of unsafe working conditions, or work

practices, in his or her employment or place of employment,

or has participated in an employer-employee occupational

health and safety committee, shall be entitled to

reinstatement and reimbursement for lost wages and work

benefits caused by the acts of the employer. Any employer

who willfully refuses to rehire, promote, or otherwise restore

an employee or former employee who has been determined

to be eligible for rehiring or promotion by a grievance

procedure, arbitration, or hearing authorized by law, is guilty

of a misdemeanor.

108. Counterclaim Plaintiff raised complaints concerning work place safety

issues and advocated for workplace safety while employed by CSAC.

109. Counterclaim Defendants retaliated against Counterclaim Plaintiff by

discriminating against her, harassing her, and taking adverse employment actions,

including employment termination, against her.


intentional violations of Labor Code section 6310, Counterclaim Plaintiff has suffered

and continues to suffer humiliation, emotional distress, and mental and physical pain

and anguish, all to her damage in a sum according to proof.

111. As a result of Counterclaim Defendants’ adverse employment actions

against Counterclaim Plaintiff, she has suffered general and special damages, and has

had to retain attorneys and has incurred attorneys’ fees, in sums according to proof.




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punitive damages against Counterclaim Defendants.

COUNT VIII

Wrongful Termination in Violation of Public Policy




114. Counterclaim Defendants terminated Counterclaim Plaintiff’s

employment in violation of various fundamental public policies underlying both state

and federal laws. Specifically, Counterclaim Plaintiff’s employment was terminated in

part because of her protected status (i.e., gender, association with other employees in

protected statuses, national origin, color, sexual orientation, marital status, and/or

good faith complaints). These actions were in violation of FEHA, the California

Constitution, Title VII, and California Labor Code sections 1102.5 and 6310.

115. As a proximate result of Counterclaim Defendants’ wrongful termination

of Counterclaim Plaintiff’s employment in violation of fundamental public policies,

Counterclaim Plaintiff has suffered and continues to suffer humiliation, emotional

distress, and mental and physical pain and anguish, all to her damage in a sum

according to proof.

116. As a result of Counterclaim Defendants’ wrongful termination of her

employment, Counterclaim Plaintiff has suffered general and special damages in sums

according to proof.

117. Counterclaim Defendants’ wrongful termination of Counterclaim

Plaintiff’s employment was done intentionally, in a malicious, oppressive, and

fraudulent manner, entitling Counterclaim Plaintiff to punitive damages.

118. Counterclaim Plaintiff has incurred and continues to incur legal expenses

and attorneys’ fees. Pursuant to Code of Civil Procedure sections 1021.5 and 1032, et

seq., Counterclaim Plaintiff is entitled to recover reasonable attorneys’ fees and costs


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in an amount according to proof.

COUNT IX

Failure to Prevent Discrimination, Retaliation, and Harassment

Violation of Cal. Gov. Code § 12940(k)




120. At all times herein mentioned, FEHA, Government Code section

12940(k), was in full force and effect and was binding on Counterclaim Defendants.

This statute states that it is an unlawful employment practice in California for an

employer “to fail to take all reasonable steps necessary to prevent discrimination and

harassment from occurring.” Prior to filing the instant Complaint, Counterclaim

Plaintiff filed a timely administrative charge with the DFEH and received a right-to-

sue letter.

121. During the course of Counterclaim Plaintiff’s employment, Counterclaim

Defendants failed to prevent their employees from engaging in intentional actions that

resulted in Counterclaim Plaintiff’s being treated less favorably because of

Counterclaim Plaintiff’s protected status (i.e., her gender, association, race, national

origin, color, and/or marital status).


Defendants failed to prevent their employees from engaging in unjustified

employment practices against employees in such protected classes.


Defendants failed to prevent a pattern and practice by their employees of intentional

discrimination and harassment on the bases of gender, associations, race, national

origin, color, sexual orientation, marital status, and/or other protected statuses or

protected activities.


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124. Counterclaim Plaintiff believes and, on that basis, alleges that her gender,

associations with persons in protected statuses, and/or other protected status and/or

protected activity were substantial motivating factors in Counterclaim Defendants’

employees’ discrimination against, retaliation, and harassment of her.


intentional misconduct, Counterclaim Plaintiff has sustained and continues to sustain

substantial losses of earnings and other employment benefits.


intentional misconduct, Counterclaim Plaintiff has suffered and continues to suffer

humiliation, emotional distress, and physical and mental pain and anguish, all to his

damage in a sum according to proof.

127. Counterclaim Plaintiff has incurred and continues to incur legal expenses

and attorneys’ fees. Pursuant to Government Code section 12965(b), Counterclaim

Plaintiff is entitled to recover reasonable attorneys’ fees and costs (including expert

costs) in an amount according to proof.




COUNT X

Trespass to Chattels




130. Counterclaim Plaintiff owned and has a right to possess her property

within Counterclaim Defendants’ office but cannot retrieve her property due to the

fact that Counterclaim Defendants will not allow Counterclaim Plaintiff to return to

Counterclaim Defendants’ office and Counterclaim Defendants will not return her


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property.

131. Counterclaim Defendants intentionally interfered with Counterclaim

Plaintiff’s use or possession of her property by refusing to allow Counterclaim

Plaintiff to retrieve the property or returning the property upon demand.

132. As a direct and proximate result of Counterclaim Defendants’ actions, as

alleged herein, Counterclaim Plaintiff has suffered damages to be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, Counterclaim Plaintiff, SANDRA MALONEY, prays for

judgment against Counterclaim Defendants as follows:

1. For general and special damages, according to proof;

2. For exemplary damages, according to proof;

3. For pre-judgment and post-judgment interest on all damages awarded;

4. For reasonable attorneys’ fees;

5. For costs of suit incurred;

6. For declaratory relief;

7. For such other and further relief as the Court may deem just and proper.

Dated: May 29, 2020

THE MALONEY FIRM, APC

/s/ Patrick M. Maloney By:______________________________

PATRICK M. MALONEY CRAIG T. REESE

Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY


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DEMAND FOR JURY TRIAL

Pursuant to Rule 38 of the Federal Rules of Civil procedure, Counterclaim

Plaintiff, SANDRA MALONEY, demands trial of this matter by jury.

Dated: May 29, 2020 THE MALONEY FIRM, APC

/s/ Craig T. Reese By:______________________________

PATRICK M. MALONEY CRAIG T. REESE

Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY


Documents

Draft FACC-changes accepted 5-29 (00170571)a-mobilized-membership-is-an-irresistible-force.984137.n3.nabble.co… · THE MALONEY FIRM, APC EL SEGUNDO, CALIFORNIA 90245 2381 ROSECRANS