JULIE GUTMAN DICKINSON (SBN 148267) LISA C. DEMIDOVICH · PDF fileLISA C. DEMIDOVICH (SBN 245836) [email protected] HECTOR DE HARO (SBN 300048) [email protected]

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551775.6 11848-25007 COMPLAINT

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JULIE GUTMAN DICKINSON (SBN 148267) [email protected] LISA C. DEMIDOVICH (SBN 245836) [email protected] HECTOR DE HARO (SBN 300048) [email protected] BUSH GOTTLIEB A Law Corporation 500 North Central Avenue, Suite 800 Glendale, California 91203-3345 Telephone: (818) 973-3200 Facsimile: (818) 973-3201 Attorneys for Plaintiff YVETTE HOLMES

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

YVETTE HOLMES,

Plaintiff,

vs. ANTELOPE VALLEY TRANSIT AUTHORITY, a governmental entity; and LEN ENGEL, in his individual and official capacities as former Director of Operations and Maintenance and as current Executive Director,

Defendants.

CASE NO. COMPLAINT FOR DAMAGES FOR: (1) DEPRIVATION OF RIGHTS UNDER COLOR OF STATE LAW [42 U.S.C. § 1983]; (2) RETALIATION FOR REQUESTING AN ACCOMMODATION; (3) FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS; (4) RACE DISCRIMINATION; (5) SEX DISCRIMINATION. DEMAND FOR JURY TRIAL

INTRODUCTION

1. This is a civil rights action where former Antelope Valley Transit

Authority (“AVTA”) bus operator Yvette Holmes (“Holmes”) contests her removal

from employment on five grounds. First, Holmes was removed without cause or

due process, despite the fact that she completed her probationary period and thus

Case 2:16-cv-01454 Document 1 Filed 03/02/16 Page 1 of 31 Page ID #:1

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achieved a property interest in her position. Next, AVTA discriminated against

Holmes based on her physical disability by failing to engage in the interactive

process and by retaliating against Holmes for requesting a reasonable

accommodation, which she had been receiving for over a year, for her respiratory

impairment. Finally, Holmes, a 56-year-old African-American female, was

discriminated against based on her race and sex when she was removed from her

employment at AVTA for pretexual reasons and pursuant to a process that has been

used exclusively against African-American female bus operators.

PARTIES

2. At all relevant times, plaintiff Yvette Holmes (“Holmes”) was a citizen

of the United States, and a resident of the City of Lancaster, County of Los Angeles,

and State of California. Holmes was a bus operator of Antelope Valley Transit

Authority (“AVTA”) buses until AVTA removed her from operating AVTA buses

on any AVTA routes on or about April 7, 2015. Until her removal, Holmes had

received numerous safety and service awards and had good performance

evaluations.

3. Upon information and belief, defendant Antelope Valley Transit

Authority (“AVTA”) is a governmental entity created on or about July 1, 1992,

pursuant to California Government Code section 6506 organized and operating

under a Joint Exercise of Powers Agreement (entered into by the County of Los

Angeles and the cities of Lancaster and Palmdale) and the laws of the State of

California, with a principal place of business and bus facility located at 42210 6th

Street West, Lancaster, California. AVTA controls and operates the buses that were

driven by Holmes and other public buses in the Antelope Valley area. A portion of

AVTA’s funding comes from the federal and state governments.

4. Defendant Len Engel (“Engel”), sued in his official as well as

individual capacities, was, upon information and belief, AVTA’s Director of


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Operations and Maintenance from 2012 until Summer 2015, when his title became

Executive Director, and is an individual residing within the County of Los Angeles.

At all relevant times, Engel was acting under the color and authority of the United

States, State of California, state and local ordinances, regulations, customs, and

usages, and pursuant to AVTA’s official policy.

5. Upon information and belief, defendants, and each of them, were the

employers, principals, employees, agents, servants, supervisors, officers and/or

directors of each and every other defendant, and in doing the things alleged herein

were acting within the course, scope and authority of such agency, supervision

and/or employment.

6. Upon information and belief, the acts, omissions, and things

complained of herein were done by the agents, servants, employees, officers and/or

directors of defendants, and each of them, and were authorized, directed, approved

and ratified by defendants within the County of Los Angeles.

7. Upon information and belief, at all relevant times, each of the

defendants performed, participated in, aided and/or abetted, or were deliberately

indifferent to the Holmes’ due process rights averred herein, proximately caused the

damages averred below, and are liable to Holmes for the damages and other relief

sought herein.

8. Continuing Violation. Upon information and belief, all of the conduct

alleged in this Complaint by defendants, and their officers, directors, supervisors

and managing agents, constitutes a continuing violation of the laws against

discrimination, and defendants’ conduct is part of a systematic, intentional and/or

condoned course of discriminatory conduct which is:

a. Specifically directed against Holmes, a female, African-

American employee; and/or

b. Part of a conscious pattern and/or practice of discriminating

against female, African-American employees.


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JURISDICTION

9. This Court has jurisdiction over Holmes’ federal civil rights claims

under 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over

Holmes’ state-law claims arising from the same factual circumstances, events, and

transactions under 28 U.S.C. § 1367(a).

VENUE

10. Venue is proper in this Court under 28 U.S.C. § 1391(b) because

Holmes and the individual defendants reside and/or are located in the County of Los

Angeles, California, and the events or omissions giving rise to the claims in this

action occurred in the County of Los Angeles, California.

FACTS COMMON TO ALL CLAIMS

Holmes’ Employment with Veolia/Transdev

11. Plaintiff Yvette Holmes began her employment as a bus operator on

AVTA routes on or about December 12, 2005. Holmes was hired by MV

Transportation, which was a private entity and subcontractor of bus operator and

maintenance services for AVTA buses and routes.

12. In or around June 2006, Veolia Transportation (“Veolia”) took over the

bus operator and maintenance services contract with AVTA, and Holmes had to

complete an application to keep her job as a bus operator. Veolia hired Holmes, and

Holmes experienced no break in service.

13. Upon information and belief, Veolia was a private corporation

providing bus operator and maintenance services to AVTA pursuant to a written

agreement, which is referred to herein as the Revenue Contract.

14. Veolia had a collective-bargaining agreement with International

Brotherhood of Teamsters Local 848 (“Teamsters Local 848”), effective January 1,

2012 to December 31, 2016, and on page 3, the covered bargaining unit is described


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as “all full time and regular part time Drivers performing work under the

Company’s revenue contract with the Antelope Valley Transportation Authority.”

Until on or around April 7, 2015, Holmes was a member of this bargaining unit, and

covered by the collective-bargaining agreement.

15. Effective on or about September 24, 2014, upon information and belief,

AVTA recognized that Veolia changed its name to “Transdev Services, Inc.,” and

the Revenue Contract was amended by replacing all Veolia references to “Transdev

Services, Inc,” a private company.

16. Upon information and belief, in or around September 2014, Transdev

Services, Inc. (“Transdev”) assumed all of Veolia’s privileges and obligations under

the collective-bargaining agreement with Teamsters Local 848.

Holmes’ Employment with AVTA

17. Upon information and belief, AVTA is a joint and/or dual employer of

bus operators of AVTA routes, including Holmes, because it exercises control over

daily employment activities of Veolia/Transdev employees:

a. AVTA owns the equipment and buses operated by

Veolia/Transdev bus operators, including Holmes [Revenue Contract Section 1

(Equipment), Section 3(5), Section 12.A-C, and Section 16];

b. AVTA owns the facility out of which Veolia/Transdev operates

and where bus operators, including Holmes, report; it is the same location as

AVTA’s operations and maintenance facility [Revenue Contract Section 1(Facility)

and 14.A(1)];

c. AVTA retains ultimate control over determining whether bus

operators were properly trained by Veolia during the transition and start-up, and

AVTA could withhold payment for training activities “if AVTA determines that the

employees trained were unprepared or failed to properly do their assigned duties

during training” [Revenue Contract Section 8.D];


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d. AVTA has the right to establish and/or establishes performance

standards for Veolia/Transdev bus operators, and AVTA can test to see whether the

service standards of bus operators are being met [Revenue Contract Section 9.A(1)

and Section 27, and Attachment A Section C(19)];

e. AVTA controls the hiring, removing, or reassigning of Veolia/

Transdev managers of the bus operators [Revenue Contract Section 9.B(3)(a)];

f. AVTA retains ultimate control over removing any bus operator

from performing AVTA services [Revenue Contract Section 9.C(4)];

g. AVTA has control over the bus operator staffing plan.

Specifically, there must be at least 114 bus operators, and if that number were

reduced in the first year of the Revenue Contract, AVTA would adjust the revenue it

gave to Veolia, and in subsequent years, the number could not be reduced “without

prior written approval of AVTA” [Revenue Contract Section 9.C(1)-(3)];

h. Veolia/Transdev must give non-management AVTA employees

a preference in hiring [Revenue Contract Section 9.D(1)];

i. AVTA establishes employment policies affecting bus operators’

working conditions, including that bus operators must comply with the AVTA

Uniform Policy and wear uniforms (shirts, pants, cap and name plate) with “AVTA

and/or logo but not that of the Contractor” Veolia/Transdev [Revenue Contract

Section 10.B & Attachment E];

j. AVTA establishes and/or approves the bus routes and schedules

of services performed by Veolia/Transdev bus operators [Revenue Contract Section

10.B and Section 17.A];

k. AVTA retains the right to effectively discipline bus operators

because “[u]pon notice from AVTA concerning any conduct, demeanor, or

appearance of any employee not conforming to [AVTA’s] requirements, the

Contractor [Veolia/Transdev] shall take all steps necessary to remove or alleviate

the cause of the objection” [Revenue Contract Section 10.B];


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l. AVTA must be notified of the results of Veolia/Transdev’s

Department of Motor Vehicle checks as well as any corrective action taken against

bus operators operating AVTA vehicles [Revenue Contraction Section 10.C(2)];

m. AVTA establishes the on-time performance standard of

Veolia/Transdev bus operators, and AVTA measures on a daily basis the bus

operators’ on-time performance [Revenue Contract Section 11.C];

n. AVTA “reserves the right in its sole discretion to review

maintenance records, and to inspect and reject temporarily or permanently . . . any

vehicle the Contractor utilizes which AVTA deems unacceptable” [Revenue

Contract Section 12.F(3)];

o. If Veolia/Transdev “detects a defect or malfunction within the

applicable warranty period” on one of AVTA’s buses, it “shall promptly notify

AVTA of the actions it is taking to enforce the warranty” [Revenue Contract Section

13.B];

p. AVTA mandates the bus operators’ annual training requirements,

and records of compliance with AVTA’s training mandates must be provided to

AVTA upon request [Revenue Contract Section 18.B(4)];

q. AVTA retains ultimate control of the bus operators’ access to the

Veolia/Transdev facility owed by AVTA [Revenue Contract Section 18.D, Section

27.A, and Attachment A Section C(35)];

r. AVTA monitors Veolia/Transdev bus operators’ performance on

a monthly basis [Revenue Contract Section 25.C(2)];

s. AVTA determines the fare amount and collection manner used

by Veolia/Transdev bus operators [Revenue Contract Attachment A, Section C(12)];

t. Prospective Veolia/Transdev bus operators learn of employment

opportunities by visiting AVTA’s website, www.avta.com;

u. AVTA recognizes the Veolia/Transdev bus operator of the

month at its regular meetings of the Board of Directors, and displays a framed


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photograph of the Veolia/Transdev bus operator of the month in the entryway of

AVTA’s headquarters in close proximity to photographs of AVTA’s Board of

Directors;

v. AVTA’s Board of Directors, as part of Mobility Management

Program, engages a third-party consultant, Moore & Associates, to audit Transdev

bus operators on a quarterly basis, and report the data to the Board. “These audits

provide AVTA with tools to monitor and evaluate operator performance and

identify potential areas for improvement.” [Memorandum to AVTA Board of

Directors submitted by defendant Len Engel, dated February 24, 2015 at p.1];

w. AVTA uses a joint letterhead with AVTA’s logo and Veolia’s or

Transdev’s logo for employee forms involving Veolia/Transdev bus operators; and

x. AVTA awards Transdev bus operators’ performance on perfect

ride checks conducted by AVTA’s consultants with the “Perfect Ride Check” pin

and certificate of recognition ; in or around February 2015, Holmes was awarded

based on her four Perfect Ride Checks, which was more than double the Perfect

Ride Checks of any other Transdev bus operator [Memorandum to AVTA Board of

Directors submitted by defendant Len Engel, dated February 24, 2015 at p.2].

18. Upon information and belief, AVTA controls access—and can block

access if it demands removal of a Veolia/Transdev bus operator—to the job market

of public transit drivers in AVTA’s approximately 1,200-square-mile service area.

Holmes’ Property Interest in Continued Employment at AVTA

19. Holmes is a permanent employee who has a property interest in

continued employment as a bus operator on AVTA routes because she completed

her 90-day probationary period in 2006, and she can only be disciplined or

discharged for just cause.

20. Collective-bargaining agreement Article 15, Section 7 provides in

pertinent part:


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Probationary Period: New employees shall be placed on probation

until the completion of ninety (90) days of revenue service. During this

probationary period, such employees shall be considered as being on

trial subject to immediate dismissal at any time at the sole discretion of

the Company. Termination during the probationary period shall not be

subject to the Grievance Procedure. (Emphasis in original).

21. Collective-bargaining agreement Article 21, Section 1 provides in

pertinent part: “Just cause: Employees will be disciplined or discharged for just

cause as outlined in the Employee Handbook.” (Emphasis in original).

22. Revenue Contract Section 9.C.(4) “Right to Removal” provides:

The AVTA Executive Director shall have the right to demand the

removal from services under this Agreement, for reasonable cause,

any Key Personnel or any other individual (whether in a management

or a non-management position) furnished by the Contractors. Any such

demand shall be made in writing, and shall be promptly complied with

by the Contractor. (Emphasis supplied).

23. Holmes had a property interest in continued employment at AVTA

because she could not be removed for her position unless AVTA could establish it

had reasonable cause to demand her removal.

24. AVTA exercising its removal demand right means that the bus operator

will no longer be able to work as a public transit bus operator in the 1,200-square-

mile coverage area of AVTA.

25. Collective-bargaining agreement Article 24 provides in pertinent part:

The relevant provisions of a revenue contract between the

Company and its customers under which an employee of the Company

performs work shall be incorporated by reference into this Agreement .

. . . In a situation in which a provision of this revenue contract

[conflict]s, the relevant provisions of said revenue contract shall prevail


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for all purposes. Nothing in this Article shall be construed as

subjecting any of the terms of any of the Company’s revenue contract

to the Grievance and Arbitrator provisions of this Agreement. If it is

determined that the operator is not guilty of the offenses that lead to

his/her removal, that operator will be transferred to another location,

should an opening be available.

26. Upon information and belief, the next closest Veolia/Transdev location

to AVTA is located in Hesperia, which is a greater than a 60-mile drive in one

direction from AVTA’s headquarters, and the bus operator wage rates at the

Hesperia location are significantly lower than the wage rates at AVTA.

27. Upon information and belief, when AVTA exercises its removal

demand, the bus operator will be terminated from his/her employment with

Veolia/Transdev unless the bus operator can prove his/her innocence and there is an

open position, but even then the bus operator’s reporting location will be more than

60 miles away from AVTA and it could be for significantly lower pay.

28. Upon information and belief, every time AVTA has demanded removal

of a bus operator, Veolia/Transdev have complied immediately with the demand,

and the bus operator was without employment as a public transit driver in AVTA’s

approximately 1,200-square-mile service area.

29. Upon information and belief, Veolia/Transdev have no discretion to

disagree with, contest, ignore or not comply with AVTA’s removal demand because

Veolia/Transdev’s failure to immediately comply with AVTA’s removal demand

could lead to Veolia/Transdev being liable to AVTA for liquidated damages or

being in default of the Revenue Contract for failure to provide operations services in

the manner required by the Revenue Contract [Revenue Contract Section 24.A and

Section 33.A(1)].

/ / /

/ / /


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Holmes’ On-Duty Respiratory Injuries

30. On or about December 21, 2012, Holmes was assigned a bus (unit

4365) where shortly into her route the high-exhaust light illuminated and exhaust

fumes entered the main cabin. The fumes were causing the passengers to cough.

Holmes called Veolia Dispatch, and spoke to Maria López, who eventually advised

Holmes to turn off the bus. Exposure to the fumes required Holmes to seek medical

treatment, resulting in Holmes being treated for asthma and receiving an inhaler.

Holmes completed and submitted an Operator Incident Report along with five

passengers’ signatures that they smelled fumes.

31. On or about December 26, 2012, Holmes was operating a bus (unit

4364) when the high-exhaust light illuminated and exhaust fumes were entering the

bus. Holmes reported the bus problem.

32. On or about January 18, 2013, Holmes was assigned a bus (unit 4361)

where shortly into her route, the high-exhaust light illuminated when Holmes

stopped the bus, but the light went off when the bus started moving, even though

exhaust fumes continued to enter into the main cabin. Holmes completed the

route(s), and submitted an Operator Incident Report.

33. On or about February 11, 2013, Holmes was operating a bus (unit

4658) when she began to smell exhaust fumes entering the main cabin. She was not

able to pull over to the side of the road immediately, and the fumes worsened.

Holmes called Dispatch and spoke to Kim Hines to report that she could no longer

drive the bus because of the fumes. Hines dispatched then-Veolia Supervisor Jeff

Babbitt to take over the bus. Holmes drove the van Babbitt had driven to meet her,

and he drove the bus back to the yard to take it out of service. When Babbitt exited

the coach about 10-20 minutes later, his face and eyes were red. Holmes completed

and submitted an Operator Incident Report.


4369) when she smelled exhaust fumes entering the main cabin. Holmes turned off


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the bus’s heater, but the high-exhaust light still came on and remained on for 20

minutes and she could smell fumes during that time period. After 20 minutes of the

heater being off, the fumes finally dissipated and the high-exhaust light turned off.

Holmes had a headache from the approximately 20-minute exposure to fumes.

Holmes completed the route(s), and submitted an Operator Incident Report.


4362) when she began to smell fumes. Because Dispatch had recently informed

Holmes that Maintenance wanted the operators to turn off the air conditioning or

heating when they smelled fumes, she turned it off and continued to drive the bus.

Holmes estimated that it took 20 minutes for the fumes to go away. Because of the

20-minute exposure to fumes, Holmes felt sleepy, had a headache, had burning eyes,

felt her chest tighten, and had difficulty breathing. Holmes completed and

submitted an Operator Incident Report, stating that the exposure to fumes was

unsafe to the operators and the passengers.

36. On or about March 4, 2013, Holmes reported the bus (unit 4368)

assigned to her was emitting high-exhaust fumes into the bus.





39. On or about April 24, 2013, Holmes was operating a bus (unit 4338)

when she began smelling exhaust fumes. She called Dispatch (and spoke to Kim

Hines) to request a “switch out” (meaning Holmes’ bus would be switched out with

another bus) because of the fumes coming into the bus. Dispatcher Hines agreed

that a new bus would be sent. After Holmes continued on the route, she called back

to Dispatch, and explained that she needed a new driver to be sent because she

needed to go to the doctor as she was having difficulty breathing due to the fumes.

A Veolia supervisor came to Holmes’ route, and when the supervisor asked Holmes


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if she needed medical attention, Holmes responded in the affirmative, explaining she

was experiencing shortness of breath. Paramedics arrived to Holmes’ location, and

transported her by ambulance to a hospital emergency room, where she was treated

for asthma and carbon monoxide exposure. Holmes completed and submitted an

Operator Incident Report. Holmes remained too sick from the exposure to the

exhaust fumes to return to work on April 25, 2013.

40. On or about May 3, 2013, Holmes was operating a bus (unit 4357), and

when she turned on the heater/defroster, exhaust fumes came into the driver area.

Holmes was assigned this bus the same day or the day after another Veolia driver,

Linda Haynes, had submitted a written report that bus no. 4357 emitted exhaust

fumes with the high-exhaust light illuminated.

41. On or about May 8, 2013, Holmes was operating a bus (unit 4361)

when the high-exhaust light illuminated and fumes began to enter the bus. Holmes

called Veolia Dispatch (speaking to Kim Hines), and requested a switch out due to

the fumes inside the bus. Holmes had to step outside the bus because the fumes

were making her sick. Holmes completed the route(s), and submitted an Operator

Incident Report, noting the safety issue and documenting that she had reported the

safety issue to then-Veolia Operator Manager Lucy Sales.

42. On or about July 11, 2013, Holmes was operating a bus (unit 4355)

where exhaust fumes were not being emitted into the main cabin, but they were

coming into the bus when the windows or doors were opened. The exposure to the

fumes made Holmes sick. Holmes completed and submitted an Operator Incident

Report, noting the ongoing problem.

43. On or about October 29, 2013, Holmes reported the bus (unit 4367)


44. On or about November 7, 2013, Holmes reported the bus (unit 4359)


/ / /


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45. On or about November 8, 2013, Holmes reported the bus (unit 4358)


46. Around the time of the April 24, 2013, incident where Holmes was

taken by paramedics in an ambulance to the hospital, Holmes began engaging in the

interactive process with then-Veolia Operator Manager Lucy Sales, requesting that

she not be assigned to drive buses known to emit fumes into the bus’ main cabin,

specifically units 3331-3335, 4338 and 4355-4369 because they made it difficult for

her to breathe. Sales response was that she would talk to Veolia Dispatch about bus

assignments and to the then-Veolia General Manager Martin Tompkins. A few days

after the first conversation, Holmes returned and had a similar conversation with

Sales about the importance of not being regularly assigned buses with fumes. After

a conversation occurring sometime around November 2013, Holmes was not

assigned a bus with fumes until April 6, 2015.

47. Around April 2013, Holmes had numerous conversations with then-

Veolia Operations Supervisor Florence Brewton about her respiratory impairment

when she was assigned to drive buses known to emit fumes into the bus’ main cabin,

where they engaged in the interactive process to arrive at a reasonable

accommodation for Holmes’ breathing difficulties associated with driving a bus that

emitted fumes into the bus. Brewton stated she would look into it.

48. Between November 9, 2013 and April 5, 2015, Veolia/Transdev

granted Holmes the reasonable accommodation of not being assigned to the buses

known to emit exhaust fumes, specifically units 3331-3335, 4338 and 4355-4369,

due to her respiratory impairment of asthma symptoms and breathing difficulties

from being exposed to bus exhaust fumes while driving the above-numbered AVTA

buses.

49. Upon information and belief, Veolia/Transdev reported to AVTA the

buses (units 3331-3335, 4338 and 4355-4369) emitting exhaust fumes into the main

cabin and/or the substance of Holmes’ reports. Specifically as to bus nos. 4355-


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4369, those buses had a defect causing the fumes emission that was under warranty,

and AVTA and Veolia/Transdev worked together to fix the exhaust problem with

those buses under warranty.

Holmes Requests An Accommodation that Transdev Had Been Granting for 18

Months

50. On or about April 6, 2015, at around 8:30 a.m., Holmes received her

route assignments with the corresponding bus unit numbers for her shift. Her

second route was nos. 11/12 with the bus assignment of bus no. 3331 to begin at

around 11 a.m.

51. Immediately upon receiving the assignment at around 8:30 a.m.,

Holmes informed two Transdev employees, Terrance Cloud and a new dispatcher,

that she needed a different bus because of the exhaust fumes emitted by bus no.

3331. They said another bus would be sent before Holmes began route no. 11/12

later in her shift.

52. When Holmes went to the pre-designated location to pick up the bus, it

was bus no. 3331. Holmes called Transdev Dispatch again, spoke to Kim Hines,

and was instructed to wait because a different bus was being sent to Holmes.

53. The location where Holmes was taking over the bus was the end of the

line, meaning all passengers were expected to exit when the bus arrived to the end-

of-the-line stop. Exiting Transdev driver, Egbert Pascascio—male, Spanish-

speaking and originally from Central America—left the bus running and did not

state to Holmes whether any passengers remained on board. Holmes never assumed

control of the bus no. 3331 that day, and she never went into the bus because of her

concern about fumes, which she could smell from the outside of the bus.

54. While Holmes was waiting outside bus no. 3331 for a new bus to

arrive, two AVTA employees came to the bus stop: an AVTA maintenance

supervisor and Wendy Williams of AVTA’s Human Resources Department. By this


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time, some passengers had arrived wanting to ride the bus, and they were waiting for

the bus outside with Holmes. Holmes did not see any passengers board the bus.

The AVTA employees did not speak with Holmes, but the Maintenance Supervisor

spoke with a passenger who was upset about having to wait for a bus when a bus

was already present. The AVTA Maintenance Supervisor then called for a new bus,

which arrived within 10 minutes of the call.

55. Holmes worked the remainder of her shift on April 6 and worked her

shift on April 7, 2015.

AVTA Demands Holmes’ Removal For Requesting an Accommodation

56. At the end of her shift on or about April 7, Transdev Operations

Manager Michael Sorensen and Transdev Human Resources personnel Claudia

Salty met with Holmes to inform her that she had been removed from service at

AVTA, and provided Holmes a copy of defendant Len Engel’s April 7, 2015,

removal demand letter to Transdev.

57. At this meeting, Transdev gave Holmes the option of voluntarily

resigning her employment.

58. Defendants lodged false, unfounded, and pretextual allegations against

Holmes which were that Holmes “allowed passengers to remain on unit 3331 after

she had left the bus because . . . of fumes.”

59. Holmes never allowed passengers to board bus no. 3331 on April 6,

2015, because she was concerned about the fumes she detected from outside the bus.

If passengers were on the bus, exiting driver Pascascio allowed them to remain on

the bus when he exited the bus while it was running; Holmes never assumed control

of the bus no. 3331 that day.

60. Holmes waited outside bus no. 3331 based on Transdev’s instruction so

that Transdev could carry out Holmes’ reasonable accommodation request for a new

bus as it had been doing for the past 18 months.


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61. Defendants’ allegations against Holmes were false. Upon information

and belief, Defendants knew its allegations against Holmes were false.

62. Upon information and belief, Defendants’ removal demand required

Transdev to effectively terminate Holmes’ employment with AVTA, and blocked

Holmes from working as a public transit bus operator in AVTA’s 1,200-square-mile

service area.

Defendants Removed Holmes without a Fair Investigation, Hearing or Appeal

63. Upon information and belief, AVTA did not conduct a full, fair or

meaningful investigation of Holmes’ conduct of April 6, 2015, nor did AVTA rely

on information from Transdev. Even though the Revenue Contract requires

Transdev to investigate passenger complaints and oversee bus operators, Transdev

did not conduct any investigation of the April 6, 2015 event. Instead, AVTA

removed Holmes from her AVTA employment before Transdev conducted an

investigation.

64. Even though Holmes is covered by a just-cause provision in the

collective-bargaining agreement between Transdev and Teamsters Local 848, as

well as the reasonable-cause requirement before removal in the Revenue Contract,

Holmes was never asked for her account of the April 6, 2015 incident before she

was removed from AVTA service.

65. Neither Defendants nor anyone else provided notice to Holmes of the

allegations against her that led to AVTA’s removal, an explanation of AVTA’s

evidence against her, or an opportunity to present her side of the April 6, 2015

incident before defendant Len Engel sent the removal demand letter to Transdev on

or about April 7, 2015.

66. Upon information and belief, defendants do not have a process or

procedure for a Veolia/Transdev bus operator to challenge the removal

determination to ensure it is actually supported by reasonable cause. Defendants did


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not allow Holmes to have a hearing after AVTA demanded her removal from

AVTA.

67. Upon information and belief, the only available remedy to a Transdev

bus operator who is falsely accused by AVTA is to prove innocence to Transdev,

apply for an open position (if one exists), and then permanently commute more than

60 miles away from AVTA in each direction every work day in addition to

operating a bus during the shift.

68. Upon information and belief, the process of applying for an open

position and beginning work at the new Veolia/Transdev position in a different

location would take more than five business days, causing the bus operator to not

receive wages or benefits for a minimum of five shifts.

69. Defendants directly interfered with Holmes’ employment opportunities

and/or access to the job market of public transit drivers in AVTA’s approximately

1,200-square-mile service area.

70. Defendants lacked reasonable cause to demand Holmes’ immediate

removal.

71. Holmes’ union representative, Teamsters Local 848, through legal

counsel, raised the due process deprivations in writing on three occasions: (1) letter

to defendant Len Engel dated April 9, 2015; (2) letter to AVTA Board of Directors

dated October 2, 2015; and (3) letter to AVTA General Counsel on February 5,

2016. Defendants have never responded to the letters in writing, and have refused to

rescind their demand that Holmes be removed from AVTA.

AVTA Demands Removal Exclusively of African-American Females

72. Defendants demanded removal of Holmes, an African-American

female, for actions that were taken by Egbert Pascascio, a Spanish-speaking male

originally from Central America. Upon information and belief, Pascascio did not

receive any discipline for departing bus no. 3331 on April 6, 2015, while it was still


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running and/or with passengers still on it when Holmes had not taken control of the

bus per Transdev Dispatch’s instructions.

73. Upon information and belief, since 2006, defendant AVTA has only

invoked the removal procedure against African-American female bus operators:

a. Upon information and belief, in or around September 2010,

defendant AVTA demanded the removal of an African-American female Veolia bus

operator (for privacy, she is identified herein by her initials) P.A. for allegedly being

discourteous toward a bus passenger. Two other bus passengers, who were present

during P.A.’s interaction with the passenger, supported P.A.’s account of the

incident. After investigating the incident, Veolia disciplined P.A. with a written

warning, but AVTA nevertheless demanded her removal, which led to P.A.’s

termination from AVTA services. Immediately upon AVTA demanding removal,

Veolia terminated P.A.’s 10-year employment. P.A. tried to challenge the removal

through the collective-bargaining agreement’s grievance and arbitration process, but

AVTA refused to arbitrate because AVTA asserted that the provisions of the

Revenue Contract, specifically the removal procedure, are not subject to the

collective-bargaining agreement’s grievance and arbitration process. A few months

later, a Hispanic male bus operator, (for privacy, he is identified herein by his

initials) O.N., was fired by Veolia for discourteous conduct toward a bus passenger,

including pushing the passenger, and he was reinstated to Veolia employment and

his removal was never demanded by AVTA, and he continues to work as a bus

operator on AVTA routes.

b. Upon information and belief, in or around 2013, defendant

AVTA demanded the removal of Veolia bus operator (for privacy, she is identified

herein by her initials) K.W., an African-American female, for an alleged Americans

with Disabilities Act violation. Specifically, K.W. lowered a wheelchair ramp in the

safest area for that bus stop, which happened to be over some gravel. The passenger

in a wheelchair did not want to go over the gravel, but wanted K.W. to back up the


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bus to a driveway. In K.W.’s professional judgment and based on her experience,

where she was already stopped was safer for the passenger to enter the bus’s

wheelchair lift. The passenger refused to enter, and used profanity against K.W.

K.W.’s union shop steward reviewed video footage of the incident, and did not see

any conduct that would warrant discipline. AVTA nevertheless demanded that

Veolia remove K.W. from AVTA services.

c. Upon information and belief, in or around October 2014, an

African-American female bus operator (for privacy, she is identified herein by her

initials) L.M. was placed on unpaid investigatory suspension pending further

investigation without any justification being provided to her. Until then, during

L.M.’s nine-year employment tenure, she had good performance evaluations, no

serious discipline, and no coaching about her performance. L.M. had even been

assigned to train other bus operators. Several months later in or around late

December 2014, Transdev General Manager Hector Fuentes and/or Human

Resources Claudia Salty called L.M. to inform her that AVTA had demanded her

removal because of unspecified passenger complaints, but L.M. could continue to

work for Transdev by transferring to another location. The union shop steward,

Phillip Winston, informed L.M. that AVTA removed her because she ran one red

light. Running a red light is not a terminable offense and common for commuter

bus operators in heavy downtown traffic. Instead, lower level discipline is given

along with retraining. White and Latino male bus operators have run red lights, and

they were not removed by AVTA. Other than informing L.M. of AVTA’s removal

demand, Transdev did not discipline L.M. for running a red light. L.M. applied for

another Transdev position in Los Angeles, but did not begin working at the

Transdev Los Angeles location until in or around March 2015. In or around 2014,

L.M. reported a Veolia/Transdev Latino male bus operator for sexually harassing

behavior toward her; AVTA did not remove that person, and he continues to work at

AVTA.


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d. Upon information and belief, white and Latino male bus

operators have engaged in similar or more serious misconduct than what P.A., K.W.,

L.M. and Holmes were accused of performing, but they have not been similarly

removed by AVTA.

74. The author of Holmes’ demand letter, defendant Len Engel, is a white

male. Upon information and belief, Engel has been involved with or made the

decision to demand removal of bus operators P.A., K.W., L.M. and Holmes .

Holmes’ Administrative Claims

75. On or about February 26, 2016, Holmes filed a complaint of

discrimination and retaliation against defendant AVTA under and pursuant to

California Government Code §§ 12926, 12926.1 & 12940 with the California

Department of Fair Employment and Housing (“DFEH”), which on February 26,

2016, issued Holmes her “right to sue” letters.

FIRST CLAIM FOR RELIEF

(Denial of Due Process Rights – 42 U.S.C. § 1983)

(Against All Defendants)

76. Holmes realleges and repleads all of the allegations in paragraphs 1 –

75 of this Complaint and incorporates them by reference.

77. Holmes, a permanent employee who could only be removed from her

employment or otherwise disciplined for cause, has a property interest in continued

employment.

78. Defendants removed Holmes from her employment at AVTA without

providing her either a pre-removal hearing or a meaningful post-removal hearing.

79. By reason of defendants’ conduct, Holmes has been deprived of rights

secured to her by the Fourteenth Amendment to the U.S. Constitution, Article I,

section 7 of the California Constitution, and the Civil Rights Act, 42 U.S.C. § 1983,


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in that effectively terminating Holmes’ employment at AVTA without providing

pre-termination and post-termination hearings deprived her of property without due

process of law.

80. Defendants have permanently prevented Holmes from working as a bus

operator on AVTA routes or working as a public transit bus operator in AVTA’s

1,200-square-mile service area.

81. Had a post-deprivation hearing occurred, Defendants would have been

unable to prove they had reasonable cause to demand Holmes’ removal because

Defendants failed to fairly and fully investigate whether Holmes, on April 6, 2015,

had allowed passengers to board, and remain on board, bus no. 3331, or otherwise

been responsible for leaving the bus running without a driver on board.

82. Defendants’ removal demand occurred as part of an institutionalized

practice of demanding permanent employees be removed from bus operator services

without defendants affording any pre-deprivation due process.

83. Defendants’ removal demand occurred as part of an institutionalized

practice of demanding permanent employees be removed from bus operator services

without defendants affording any post-deprivation due process.

84. Upon information and belief, defendant AVTA individually—and/or as

delegated to defendant Engel—established, maintained and/or ratified an

unconstitutional policy, decision, directive, action(s) and/or order to deprive Holmes

of her constitutional rights, as set forth above, and removed Holmes from her

employment (effectively terminating Holmes’ employment) pursuant to the

unconstitutional policy, decision, directive, action(s) and/or order.

85. As a direct consequence and proximate result of defendants’ actions

against Holmes, as alleged above, Holmes has been harmed in that she lost past and

future wages and other employment compensation and benefits in amounts to be

established according to proof.

/ / /


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86. The acts, conduct, and behavior of defendant Engel were performed

knowingly, intentionally and maliciously, by reason of which Holmes is entitled to

an award of punitive damages against Engel.

87. As a further direct and proximate result of defendants’ conduct, Holmes

has been required to retain counsel to prosecute this action, the reasonable attorneys’

fees for which are sought pursuant to 42 U.S.C. § 1988, in a sum according to proof.

SECOND CLAIM FOR RELIEF

(Retaliation for Requesting an Accommodation –

Cal. Govt. Code §§ 12926(m), (p), 12926.1 & 12940(m))

(Against Defendant AVTA)



89. Throughout her entire tenure at AVTA, Holmes performed her assigned

job duties in an exemplary manner, and was never counseled, disciplined, or warned

that her work did not meet or exceed AVTA or Veolia/Transdev’s work standards

for maintaining her employment.

90. Upon information and belief, defendant AVTA demanded Holmes’

removal from AVTA because she delayed service while she was waiting for a new

bus to arrive on or about April 6, 2015, when she requested a reasonable

accommodation to not drive a bus emitting exhaust fumes that would impair her

breathing. Transdev had been granting Holmes this accommodation for

approximately 18 months due to Holmes’ respiratory impairment.

91. Upon information and belief, defendant AVTA violated and breached

its pattern, practice and/or policy, as actually applied and implemented by defendant

AVTA (along with its subcontractor Transdev) of accommodating injured workers.

92. The conduct of defendant AVTA alleged herein constitutes retaliation

for requesting an accommodation to a physical disability, an unlawful employment


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practice in violation of the California Fair Employment and Housing Act, California

Government Code sections 12926(m), (p), 12926.1 & 12940(m).

93. Upon information and belief, defendant AVTA engaged in disability

discrimination when it retaliated against Holmes for requesting an accommodation

for her physical disability by demanding her removal from AVTA. Holmes has

exhausted her administrative claims at the DFEH.

94. As a direct and proximate result of defendant AVTA’s conduct alleged

herein, Holmes’ working conditions deteriorated, and she was removed from AVTA

services and effectively terminated from her employment, all to Holmes’ detriment.

95. As a direct and proximate result of defendant AVTA’s conduct,

Holmes has suffered general and specific damages, including past and future lost

wages and earnings, in a sum according to proof.

96. As a further direct and proximate result of defendant AVTA’s conduct,

Holmes has been required to retain legal counsel, entitling Holmes to an award of

attorneys’ fees under California Government Code section 12965(b) in a sum

according to proof.

THIRD CLAIM FOR RELIEF

(Failure to Engage in Interactive Process –

Cal. Govt. Code §§ 12926(m), (p), 12926.1 & 12940(n))








/ / /


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99. Upon information and belief, defendant AVTA demanded Holmes’

removal from AVTA when she delayed service while she was waiting for a new bus

to arrive on or about April 6, 2015, after she had requested a reasonable

accommodation to not drive a bus emitting harmful exhaust fumes that would impair

her breathing. Transdev had granted her request on that day, and had been granting

Holmes this accommodation for approximately 18 months due to Holmes’

respiratory disability.

100. Upon information and belief, defendant AVTA violated and breached

its pattern, practice and/or policy, as actually applied and implemented by defendant

AVTA (along with its subcontractor Transdev) of engaging in the interactive

process with workers who requested accommodations.

101. Upon information and belief, the conduct of defendant AVTA alleged

herein constituted a refusal and/or failure to engage in a timely, good faith,

interactive process with Holmes to determine effective reasonable accommodations,

i.e. whether a different bus without a history of fumes could be substituted for bus

no. 3331, in response to Holmes’ request for that to occur to accommodate her

known physical disability and/or medical condition of a respiratory impairment

when exposed to exhaust fumes, in violation of the California Fair Employment and

Housing Act, California Government Code sections 12926(m), (p), 12926.1 &

12940(n).

102. Upon information and belief, defendant AVTA engaged in disability

discrimination when it failed and/or refused to engage in the interactive process with

Holmes concerning the reasonable accommodation she had requested and been

granted before AVTA demanded her removal from AVTA. Holmes has exhausted

her administrative claims at the DFEH.

103. As a direct and proximate result of defendant AVTA’s conduct alleged

herein, Holmes’ working conditions deteriorated, and she was removed from AVTA

and effectively terminated from her employment, all to Holmes’ detriment.


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Holmes has suffered general and specific damages, including past and future lost

wages and earnings, in a sum according to proof.

105. As a further direct and proximate result of defendants’ conduct, Holmes

has been required to retain legal counsel, entitling Holmes to an award of attorneys’

fees under California Government Code section 12965(b) in a sum according to

proof.

FOURTH CLAIM FOR RELIEF

(Race Discrimination – Cal. Govt. Code §§ 12926(r) & 12940(a))




107. Upon information and belief, at all relevant times alleged herein,

AVTA was an employer within the meaning of California Government Code section

12926(d).


Holmes was an employee of defendant AVTA and African-American.





110. Upon information and belief, defendant AVTA’s proffered justification

for demanding the removal of Holmes was a pretextual reason because the alleged

misconduct was performed by a non-African American bus operator, who was not

similarly removed, and because AVTA did not follow the procedure required by the

Revenue Contract for investigating passenger complaints.

/ / /


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111. Upon information and belief, prior to and through the date of Holmes’

removal on or about April 7, 2015, defendant AVTA entered into a course of

conduct, practice, policy, and plan of discriminating against Holmes in the terms,

conditions, and/or privileges of employment based in whole or in part upon Holmes’

race, and denied Holmes equal privileges and working conditions as enjoyed by and

offered to similarly-situated white and Hispanic employees.

112. Upon information and belief, defendant AVTA approved, implemented

and condoned this practice, policy, and plan; had actual or constructive knowledge

of the aforementioned conduct; and directed, authorized and/or ratified the conduct.

113. Upon information and belief, defendant AVTA’s discrimination in the

terms, conditions, and/or privileges of employment as alleged herein was

intentional, or in reckless disregard for Holmes’ rights, and was substantially

motivated by the fact that Holmes is African-American. Holmes has exhausted her

administrative claims at the DFEH.


Holmes has suffered general and/or special damages, including but not limited to

past and future lost wages and earnings, for which she seeks compensatory damages

against defendant AVTA, in a sum according to proof.




according to proof.

FIFTH CLAIM FOR RELIEF

(Sex Discrimination – Cal. Govt. Code § 12940(a))





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AVTA was an employer within the meaning of California Government Code section

12926(d).


Holmes was an employee of defendant AVTA and female.





120. Upon information and belief, defendant AVTA’s proffered justification

for demanding the removal of Holmes was a pretextual reason because the alleged

misconduct was performed by a male bus operator, who was not similarly removed,

and because AVTA did not follow the procedure required by the Revenue Contract

for investigating passenger complaints.

121. Upon information and belief, prior to and through the date of Holmes’

removal on or about April 7, 2015, defendant AVTA entered into a course of

conduct, practice, policy, and plan of discriminating against Holmes in the terms,

conditions, and/or privileges of employment based in whole or in part upon Holmes’

sex, and denied Holmes equal privileges and working conditions as enjoyed by and

offered to similarly-situated male employees.

122. Upon information and belief, defendant AVTA approved, implemented

and condoned this practice, policy, and plan; had actual or constructive knowledge

of the aforementioned conduct; and directed, authorized and/or ratified the conduct.

123. Upon information and belief, defendant AVTA’s discrimination in the

terms, conditions, and/or privileges of employment as alleged herein was

intentional, or in reckless disregard for Holmes’ rights, and was substantially

motivated by the fact that Holmes is female. Homes exhausted her administrative

claims at the DFEH.


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Holmes has suffered general and/or special damages, including but not limited to

past and future lost wages and earnings, for which she seeks compensatory damages

against defendant AVTA, in a sum according to proof.




according to proof.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Yvette Holmes prays for a judgment in her favor as

follows:

1. Issue a judgment declaring that the acts of defendants described herein

deprived Plaintiff Yvette Holmes of rights secured to her by the Fourteenth

Amendment to the United States Constitution, Article I, section 7 of the California

Constitution, and 42 U.S.C. § 1983, and ordering Defendants to restore the status

quo ante by rescinding AVTA’s demanded removal of Holmes from driving AVTA

bus routes, as well as cease and desist from denying to Holmes her right to be given

notice of the charges against her and an opportunity to be heard before she is again

removed from AVTA routes and thereby deprived of her property interest in

continued employment;

2. Issue an injunction order requiring defendants to stop engaging in such

unconstitutional and unlawful acts, and to develop policies and procedures for

preventing the recurrence of any such unconstitutional and unlawful events,

including but not limited to requiring defendants to revise AVTA’s Removal Policy

and adopt specific guidelines for AVTA directors and staff to follow regarding

providing notice to a bus operator of all charges and evidence against him/her that

could lead to removal from AVTA routes and an opportunity to be heard before a


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removal demand is submitted to Transdev as well as a hearing after a removal

occurs;

3. For compensatory damages and consequential damages for loss of pay

and benefits sustained by reason of defendants’ actions and/or inactions to be

awarded to Plaintiff Yvette Holmes in a sum according to proof at trial;

4. For exemplary and punitive damages to be awarded to Plaintiff Yvette

Holmes against defendant Len Engel in a sum according to proof at trial;

5. For interest;

6. For costs (including expert witness fees) of suit and attorneys’ fees

incurred in this action pursuant to 42 U.S.C. § 1988 and California Government

Code section 12965(b); and

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

and appropriate.

DATE: March 2, 2016 Respectfully submitted, JULIE GUTMAN DICKINSON LISA C. DEMIDOVICH HECTOR DE HARO BUSH GOTTLIEB, A Law Corporation

By:

/s/

JULIE GUTMAN DICKINSON Attorneys for Yvette Holmes


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DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and Rule 38-1

of the Local Rules, Plaintiff Yvette Holmes hereby demands a jury trial on all the

issues pleaded herein so triable.

DATED: March 2, 2016 Respectfully submitted, JULIE GUTMAN DICKINSON LISA C. DEMIDOVICH HECTOR DE HARO BUSH GOTTLIEB, A Law Corporation

By:

/s/

JULIE GUTMAN DICKINSON Attorneys for Yvette Holmes


Documents

JULIE GUTMAN DICKINSON (SBN 148267) LISA C. DEMIDOVICH · PDF fileLISA C. DEMIDOVICH (SBN 245836) [email protected] HECTOR DE HARO (SBN 300048) [email protected]