Yolanda Kueny v City of Camarillo and Bruce Feng

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James Q. McDermott (SBN 192572) Joshua S. Hopstone (SBN 273719) FERGUSON CASE. ORR PATERSON LLP 1 050 South Kimball Road Ventura, CA 93004 Telephone: (805) 659-6800 Fax Number: (805) 659-6818 Email: jmcdermott@fcoplaw .com;

Attorneys for Plaintiff YOLANDA KUENY

. VEI\ITURA SUPERIOR COURT

. FILED ~1~~.R 0 1 2013

~ET Ex t ilerk BY: . , Deputy ~.~;)

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF VENTURA

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11 YOLANDA KUENY, an individual,

12 Plaintiff,

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14 CITY OF CAMARILLO, a governmental entity; BRUCE FENG, an individual; and

15 DOES 1 through 25, inclusive,

16 Defendants.

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Case No.: 56-2012-00427311-CU-OE-VTA

FIRST AMENDED COMPLAINT FOR:

(1) Disability Harassment (2) Failure to Prevent Harassment (3) Retaliation ( 4) Retaliation in Violation of California

Labor Code sections 1102.5 (5) Retaliation in Violation of the Family

and Medical Act and the California Family Rights Act

(6) Failure to Provide Reasonable Accommodation

(7) Failure to Engage in the Interactive Process

[DEMAND FOR JURY TRIAL]

21 Plaintiff, YOLANDA KUENY ("Plaintiff'), hereby alleges as follows:

22 I.

23 THE PARTIES

24 1. Plaintiff is an individual residing iri the County of Ventura, California.

25 2. Defendant City of Camarillo ("City" or "Defendant") is a governmental entity situated 26 iri the County of Ventura, California.

3. Defendant Bruce Feng ("Feng" or "Defendant'') is, and at all times mentioned in this Complaint was the city manager of City. At all times known to Plaintiff, Feng was a resident of the

1 FIRST AMENDED COMPLAINT

1 County ofVentura, California.

2 4. Plaintiff is informed and believes and thereon alleges that each ofthe Defendants herein

3 were at all times the agent, employee, or repr~sentative of each remaining Defendant and were at all

4 times herein acting within and outside the scope and purpose of said agency and employment.

5 Plaintiff further alleges that as to each Defendant, whether named or referred to as a fictitious name,

6 said Defendants supervised, r.atified, controlled, acquiesced in, adopted, directed, substantially

7 participated in, and/or approved the acts, errors, or omissions, of each remaining Defendant.

8 5. The true names and capacities of the Defendants named herein as DOES 1 through 25,

9 inclusive, whether individual, corporate, partnership, association, or otherwise, are unknown to

10 Plaintiff who therefore sues these Defendants by such fictitious names. Plaintiff will request leave

11 of court to amend this Complaint to allege their tnie names and capacities at such time as they are

12 ascertained.

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14 EXHAUSTION OF ADMINISTRATIVE REMEDIES

15 6. Within the time provided by law, Plaintiff filed Complaints with the California

16 Department of Fair Employment and Housing ("DFEH") and received her right to sue notices 17 which are attached as Exhibit "A". Plaintiff has exhausted all administrative remedies required

18 under the law.

19 III.

20 GENERAL FACT ALLEGATIONS

21 7. Plaintiff has worked in various personnel and human resources positions at the City

22 since 1999. Since July 2008 she has served as the Assistant Human Resources Director reporting

23 directly to the City Manager. Throughout her tenure at the City; Plaintiff has been a loyal,

24 dedicated employee who was respected and liked by City employees. Throughout her career at the

25 City, Plaintiff received favorable performance reviews and was consistently promoted.

26 8. Defendant Feng was hired as the Assistant City Manager in 2005, working under Mr.

27 Jerry Bankston who was then serving as the City Manager.

28 9. Prior to 2005, Feng was employed by the City of Burbank. While employed at the City


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1 of Burbank, Feng was accused of wrongfully harassing and retaliating against employees and was

2 involved in litigation that resulted in judgments being issued against the City of Burbank. The City 3 of Camarillo was aware of this history when they hired Feng.

4 10. Until October 2010, Plaintiff reported to and worked directly with Mr. Bankston.

5 Plaintiff had limited interaction with Feng.

6 11. In 2010 Mr. Bankston announced his retirement. Without conducting a standard

7 investigation or otherwise seeking outside candidates, the City Council hired Feng as the new City

8 Manager.

9 12. In his entire career preceding his_appointment, Feng had never been elevated to the

1 0 position of City Manager position despite numerous attempts.

11 13. In September of2010 Gust before Feng's official start date), Feng required Plaintiffto 12 meet with him, ostensibly to discuss issues regarding human resources. The meeting lasted several

13 hours and was nothing more than an obscenity laced tirade against Mr. Bankston and existing staff.

14 Feng made it clear that he had utter contempt for Mr. Bankston and stated that Mr. Bankston did not

15 know how to manage people. Feng then stated that a certain manager was not qualified and "was

16 nothing more than a truck driver." Referring to the same employee, Feng said, "who the hell does

17 he think he is?" Feng continued, stating, "it was outrageous that the same manager did not

18 congratulate him for being elevated to City Manager." As to a different manager, Feng stated that

19 he (the manager) had the audacity to think he could be Assistant City Manager when he is nothing 20 "more than a joke, who is always taking time offto take care ofhis sick wife." Fengranted on that 21 other employees were not qualified and "why did they still have a job," and that others still were 22 "weak" and "could not manage their departments." Feng continued that watching two particular

23 employees "made him sick," and then proceeded to mimic the employees' voices and mannerisms.

24 At no time did Feng ask for professional advice from Plaintiff. It was clear to Plaintiff that she was

25 to simply sit and provide an audience for his rant. Plaintiff understood the interaction to be a clear

26 warning from Feng not to cross him.

27 14. Soon thereafter, Feng told Plaintiff that regardless of City policies and practices he

28 wished to demote a particular employee and to elevate Jill Gordan, the secretary who previously

3 FffiST AMENDED COMPLAINT

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1 worked for Feng during his time as Assistant City Manager. The employee Feng wished to demote

2 was a female over the age of 40. Feng stated to Plaintiff that in his experience, "women come off

3 brave and tough but they always break down crying." Plaintiff explained that he could not simply

4 demote one employee without grounds and promote another. Feng told Plaintiff that "I don't give a

5 fuck" and that he wanted to demote her and promote Gordan.

6 15. Soon thereafter, on November 16, 2010, the same employee whom Feng had told

7 Plaintiff he wished to demote ("Ms. 0.") approached Piaintiff in her capacity as Assistant Human 8 Resources Director. Ms. 0. was in tears and appeared to be seriously distressed. She explained to

9 Plaintiff that Feng had harassed her by taking away her job duties and giving them to "younger 10 prettier women." She then demanded to file a formal complaint against Feng for harassment, and

11 requested that Plaintiff assist in processing the formal complaint. She also asked Plaintiff about

12 filing a harassment complaint with the state Department of Fair Employment and Housing (DFEH). 13 16. That same day (November 16) Plaintiff notified Feng that Ms. 0. was daiming that 14 Feng had harassed her. Feng replied: "I knew it was coming". Plaintiff explained that she would be

15 processing .Ms. O.'s formal harassment complaint against Feng. Feng immediately demanded to

16 know whether the City Council would be informed of the complaint. Plaintiff explained that the

17 . City Council would have to be informed as part of the processing of the complaint. Feng

18 aggressively asked Plaintiff "why".the City Council had to be informed, and asked "why not just 19 talk to a single council member?" Feng also demanded to Plaintiff and the City Attorney, Brian

20 Pierick, what he wanted to be said in the closed City Council session; specifically, that the word

21 "harassment" was not to be used. Plaintiff questioned why they would not be honest with the City

22 Council, but Mr. Pierick told her that per Feng's instructions, the word "harassment" would not be

23 uttered.

24 17. That day (November 16), Ms. 0. left work crying after Feng spoke to her.. The 25 employee never returned to her employment with the City.

26 18. Plaintiff proceeded to process Ms. O.'s claim of harassment against Feng by bringing

27 the complaint before the City Council in accordance with City policies and procedures.

28 19. Ms. O.'s claim against Feng was brought before the City Council in a closed session on


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1 November 17, 2010. On November 19, 2010, Feng came to Plaintiff's office and closed the door

2 behind him. Feng pressed Plaintiff for details about the complaint against him. Feng demanded

3 that Plaintiff tell him what was specifically stated during the closed session City Council meeting,

4 despite having been advised that a forrilal investigation was being conducted. Plaintiff explained it

5 would not be appropriate for her to reveal what was discussed during a closed session meeting,

6 particularly when an investigation is ongoing. To this, Feng sternly stated: "You should have

7 brought this to my attention only;" "Why did you take this to the City Council and City Attorney?

8 This could have been handled differently, Yolanda;" "You know everything is going to come out, it

9 will get ugly and this is going to affect our relationship, and not in a good way." Feng further

10 stated, "this will pass, a new day will come and I have a city to run," and that "you [Plaintiff] are 11 running this investigation." Feng then asked Plaintiff in an aggressive and threatening tone, "Are

12 you an at will employee?" Plaintiff understood this comment to mean that Feng was directly

13 threatening Plaintiffs job. Plaintiff was extremely upset by this. Plaintiff could not hide her fright 14 after receiving the threat, and her facial expression showed her shock and fear. Feng turned to open

15 the door and leave Plaintiffs office. He said in a mocking voice, "now put a smile on your face"

16 and left her office. Plaintiff began to cry uncontrollably at her desk. Eventually, Plaintiff asked

17 another employee to sit with her so that she could compose herself.

18 20. Based on the above, on November 19, 2010, Plaintiff filed a formal complaint for

19 harassment against Feng on her own behalf. Because Feng was the City Manager and Plaintiffs

20 direct supervisor, Plaintiff presented her complaint to Kelly Trainer, Esq., who was the outside

21 employment attorney for the City and who worked for the City Attorney. Plaintiff also reported

22 Feng's attempt to get her to divulge the content of the closed session discussion of the City Attorney

23 and the City Council in response to Ms. O.'s complaint against Feng.

24 21. Trainer acknowledged receipt of Plaintiffs complaint. Trainer then told Plaintiff that

25 as a result of the complaint, Plaintiff must be kept "out of the loop" with regards toMs, O.'s future

26 claims, and that any communication from Feng to Plaintiff must be routed through Trainer,

27 Assistant City Attorney Don Davis, or Director of Community Development Bob Burrow.

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I 22. Feng was then instructed by Trainer or other counsel not to have direct communication

2 with Plaintiff while the investigation into Plaintiffs claim against him was under way. Feng largely

3 disregarded this instruction. Feng made a point of going out of his way to speak directly to Ms.

4 Kueny, if only to ask her questions aboutthings he already knew the answer to. This occurred on

5 December 8, 2010, and again on January 24, 20Il. When others were not present or could not hear

6 Feng, Feng would make faces at Plaintiff, would stare Plaintiff down until she turned away, and

. 7 made inappropriate comments to Plaintiff about her job status. These interactions were very 8 intimidating and traumatic to Plaintiff, exasperating her distress.

9 23. As to Plaintiffs report regarding Feng's improper attempt to elicit the closed-session

I 0 discussion of the City Council on the complaint against him, the response of the City Attorney and

II the City Council was to modify how closed sessions are reported, such that the minutes of closed

I2 sessions no longer reflect who is in attendance, in direct violation of the Brown Act (see, Gov't 13 Code 54956, 54957). Plaintiff reported this violation of the law to those conducting the I4 investigation ofFeng.

I5 24. In December 20IO and January 201I, Plaintiff continued to meet with investigators

I6 regarding the complaint against Feng that she had brought to the City Council on behalf of Ms. 0.

I7 in November 20IO. Plaintiff provided testimony in connection with that investigation, and

18 thereafter was removed from the administrative processing ofthe case.

I9 25. By March 2011, Feng's harassment of Plaintiff continued to the point that Plaintiff

20 found it unbearable and very difficult to work. As a proximate result of Feng's harassing treatment

2I toward her, Plaintiff became severely depressed. She experienced episodes of all-encompassing

22 upset and low self-esteem .. She lost interest in activities that she had previously found enjoyable. 23 The severe depression and anxiety attacks Plaintiff experienced as a result of harassment from F eng

24 advanced to apoint of mental and emotional disability.

25 26. On March I, 2011, Plaintiff presented a request that City provide a reasonable

26 accommodation for her disability of depression, panic attacks, and anxiety. This request was

27 presented to recently appointed Assistant City Manager Dan Paranick, and to Assistant City

28 Attorney Don Davis. The reasonable accommodation that Plaintiff requested was a short (but at 6

FIRST AMENDED COMPLAINT

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1 least one week) leave of absence. Plaintiff explained that she had experienced an emotional 2 breakdown in the workplace in front of City staff, department heads, the City Attorney and the

3 Assistant City Attorney. She believed this short leave time would allow her to reflect and otherwise

4 get herself together, and return refreshed and ready to work. The City denied Plaintiffs request.

5 The City further failed to engage in a meaningful discussion with Plaintiff in a good faith attempt at

6 making alternative arrangements or accommodations for Plaintiffs disability.

7 27. On March 3, 2011, Plaintiffs physician determined that her condition- what would

8 later be diagnosed as Major Depressive Disorder and Panic Disorder With Agoraphobia- prevented 9 her from safely remaining at work, and placed her on medical leave. This medical leave was to

10 address Plaintiffs disability, a serious health condition qualifying under the federal Family and

11 Medical Leave Act and the California Family Rights Act.

12. 28. Plaintiffs FLMA/CFRA-qualified medical leave lasted from March 3, 2010 to May 8,

13 2011. It was an extremely difficult time for her. As a hardworking loyal employee who. genuinely

14 enjoyed her job and her interaction with co-workers, Plaintiff remained in deep depression, 15 spending days crying in her room. Ordinarily Plaintiff was a very active and engaged wife and

16 mother of a young son. The depression, panic, and anxiety she suffered as a result of the

17 harassment she experienced by Feng was extremely distressing.

18 29. On March 10, 2011, while still on medical leave, Assistant City Attorney Don Davis

19 asked Plaintiff to meet regarding the results of the investigation into her formal complaint against

20 Feng. Davis told Plaintiff that the City Council had considered the investigation report and had not

21 found any illegal activity, but that the City Council took her claim seriously and would be making

22 changes to avoid future conflict, including having Plaintiff report to the newly hired Assistant City

23 Manager instead ofF eng.

24 30. Plaintiff later leamedthat on the same day Plaintiffhad met with Don Davis (March 10, 25 2011), the Mayor of the City of Camarillo, Michael Morgan, approached City Human Resources 26 Specialist Kathy Holman in the parking lot at City Hall after stepping out of Feng's car. Mayor

27 Morgan informE(d Holman that he was conducting his own personal internal investigation of 28 Plaintiff and wanted to ask her questions about Plaintiff. Mayor Morgan also contacted City


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1 employees Tom Fox and Talley Tucker in furtherance of his internal investigation. Plaintiff was

2 never officially informed why the City and the Mayor were conducting an apparent off-the-record

3 investigation ofher, however, the fact itself inflamed her distress, depression, and anxiety.

4 31. On May 9, 2011 Plaintiff returned to work. The custom arid practice at the City for

5 employees who had been away on leave included a welcome back potluck upon tlieir return. In

6 advance of Plaintiffs return to work, Plaintiffs coworkers had arranged for a welcome back .

7 potluck to occur for her. The day before Plaintiff returned to work, however, Plaintiffs welcome

8 back potluck was unilaterally cancelled by Feng.

9 32. In the approximately 7 months between May, 2011 and February 2012, Plaintiff was

10 subjected to a series of adverse employment actions by Feng and others at his direction, in 11 retaliation for having processed regarding Ms. O.'s harassment claim against Feng and providing

12 testimony in connection with the case, and for having taken her qualified medical leave.

13 a .. At the direction of Feng, the other City department heads stopped responding to

14 . Plaintiffs written and oral communications.

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b. Plaintiff was relieved of her duties in directing and overseeing the hiring of new City

employees.

c. Job interviews were set up without Plaintiffs knowledge and hiring was

accomplished without her review and approval.

d. Plaintiff was also relieved of her duty to conduct exit interviews with employees

leaving the City.

e. Plaintiff was excluded from the group management meetings, and the closed session

meetings that she had previously attended.

f. Plaintiff no longer met with key staff, and was ignored and ostracized by other City

staff.

g. Plaintiff was not invited to attend the Mayor's State of the City Address at the

Chamber of Commerce, as she had been in prior years.

h. Plaintiffs travel request to attend the PERS conference and other professional

conferences, which had always been granted in the past, was summarily denied by


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Feng.

1. Plaintiff was cut off from further training, and was prohibited from attending

seminars or professional development opportunities.

J. Plaintiff stopped receiving written goals, objectives, and assignments from the City, as she had in the past.

k. Plaintiff received no performance evaluation, despite requesting one several times.

7 In sum, durin~ the seven months following her return to work, Plaintiffs day to day job of 8 managing and overseeing the activities and operations of the City's Human Resources Department

9 had been fundamentally altered and any chance at meaningful career development appeared to her

1 0 to have ended.

11 33. Also during this period, on June 8, 2011, Paranick informed Plaintiff that Plaintiff

12 would not be allowed to .attend a closed session of the City Council that day, which was listed on

13 the agenda as being solely for employee negotiations. The next day, Paranick informed Plaintiff

14 that the City Council had discussed the City Attorney's contract and had directed the City Manager

15 to prepare a Request for Proposal for Human Resources legal services. Plaintiff advised Paranick

16 that this was not permissible as it had not been placed on the agenda for the closed session, again, in

17 direct violation of the Brown Act. Paranick disregarded Plaintiffs complaint. The matter was then

18 placed on the June 22, 2011 City Council consent calendar without any prior open discussion or

19 action by the City Council.

20 34. On November 1, 2011, Plaintiff was introduced to Irma Rodriguez Moi~a, Esq., the new

21 outside employment attorney who would be assisting the City on human resources issues. Plaintiff

22 had been informed that the purpose of the meeting was to meet Moisa because they would now be

23 working together. In reality, this was just pretext, and soon after the meeting began it became clear 24 the purpose of the meeting was an interrogation of Plaintiff regarding her claims against Feng and

25 the City. Plaintiff was not given the opportunity to consult her own attorney before, during, or after

26 this interrogation took place.

27 35. Soon after this meeting with Moisa took place, Plaintiff complained to Assistant City

28 Manager Dan Paranick about her treatment at that meeting. For several weeks Plaintiff received no


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1 response .. On December 21, 2011, Plaintiff was provided with a letter from Paranick, stating he and

2 Moisa did not find any misconduct on their part.

3 36. Plaintiff was placed on medical leave on December 28, 2011 by her treating physician.

4 On January 12, 2012, Plaintiff received a letter from the City advising her that her accrued leave

5 was nearly exhausted and that "the City does not commit to provide any additional leave of absence,

6 beyond January 25, 2012." The letter also stated "the City is concerned that some of your job duties 7 are not being completed."

8 37. On January 25, 2012, Ms. Kueny submitted a second formal harassment complaint

9 against Feng. Plaintiff further complained about the above-described Brown Act violation in

10 connection with the closed session City Council meeting in June of2011. Initially, the City refused

11 to ev_en accept the complaint. Soon thereafter, however, Plaintiff received an e-mail from Feng

12 which stated: " ... it has come to my attention that you have submitted a complaint to the city

13 council which contains allegations involving Assistant City Manager Dan Paranick and outside

14 counsel Itma Rodriguez Moisa .... effective Monday, February 13, 2012, you will :report to me."

15 38. Feng's instructions were in direct violation of the past instructions given by the City

16 Council to Feng, whereby Feng was not to have direct contact with Plaintiff due to Plaintiffs

17 multiple complaints against him. Nevertheless Plaintiff returned to work as instructed on February

18 14, 2012, and reported to Feng. Upon Plaintiffs arrival, Feng and Parartick ignored her. A mere

19 two days later, on February 16, 2012, Plaintiff was told by Feng that she was being placed on

20 administrative leave "pending the investigation of your complaints". It was apparent to Plaintiff

21 that Feng had absolutely no intention ofallowing Plaintiff to return to meaningful work at the City.

22 Hewas willing to harass her or manufacture any reason to keepher away, even if it required him to

23 spend city resources to maintain her full pay. No consideration was given to the damage that an

24 indefinite "administrative leave" could cause to Plaintiff, or how it could further isolate and stunt

25 her professional development.

26 39. Over four months passed. Plaintiff did not hear a single word from the City about the

27 purported "investigation" of her complaints against Feng. Very much wishing to return to work, on

28 June 11, 2012, Plaintiff sent an email to the City inquiring when she can return to work. The City


1 ignored this request. On June 20, 2012, Plaintiff sent yet another e-mail to inquire as to her status.

2 On June 25, 2012, Plaintiff finally received a response from Ms. Rodriguez Moisa. Moisa advised

3 that Plaintiff cannot be allowed to return to work, not because of an underlying investigation, but as

4 a result of restrictions placed on her by a worker's compensation examiner. This was mere pretext,

5 however, and directly contradicted the findings of the Qualified Medical Examiner who had 6 formally found in the Worker's Compensation proceeding that Plaintiff should be returned to work

7 and that City should not delay in providing Plaintiff with the treatment outlined. The City had

8 actual knowledge of this recommendation at the time Moisa sent her response.

9 40. On September 11, 2012, Plaintiff's treating physician released her to return to work, but

1 0 the City refused to allow her to return. It was clear that the City simply did not want Plaintiff back.

11 41. It was not until after Plaintiff filed a summons and complaint herein that Plaintiff was

12 not permitted to return to work at the City on December 19, 2012. Since then, the pervasive

13 retaliation she previously experienced has grown worse. Her meaningful job duties have not been 14 returned to her, and further responsibilities have been taken away.

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a. Plaintiff is no longer allowed to advise and direct managers, supervisors, and

employees in the interpretation of city policies,. procedures, and personnel rules, .as

she had in the past;

b. Plaintiff's prior authority to exercise independent discretion in the evaluation of

sensitive human resources issues, or to provide guidance to City management or

department heads;

c. Plaintiff was instructed that she must report to Feng for approval of any action taken,

even the most minor administrative decisions;

d. Plaintiff no longer represents the City in disciplinary actions and has been excluded

from the high-level meetings that she previously attended as a matter of routine;

e. Plaintiff is no longer included in the negotiation or resolution of sensitive or

controversial human resources issues, as she previously was;

f. Plaintiff's authority to speak with the City Attorney and the City's human resources

attorney regarding human resources issues has been revoked;


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g. Plaintiff has been removed as the primary contact person within the human resources

department for outside agencies such as PERS, JPIA, and ICMA, a role she had

previously held for several years;

h. Plaintiff has been removed as the administrative representative of the hunian

resources department when dealing with third party administrators and the City

Council, a role she had previously held for several years; and

1. Plaintiff has been removed from the internal routing lists for budgets, invoicing,

8 notices of training, and attorney bills, making it impossible for her to meaningfully

9 contribute to discussions within her department on those issues.

10 In sum, Plaintiffhas effectively been demoted to the position of a low-level clerk. All hopes

11 for meaningful career advancement at the City are gone.

12 FIRST CAUSE OF ACTION

13 Disability Harassment - Against All Defendants and

14 DOES l through 25, inclusive [Government Code 12940 (j)]) 15

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Plaintiff incorporates herein and alleges paragraphs 1 through 41, above.

The City had actual knowledge that Plaintiff suffered from a serious disability,

17 namely, Major Depressive Disorder and Panic Disorder With Agoraphobia. 18 44. Plaintiff was subjected to the above-described unwanted harassing conduct because 19 she suffered from a serious disability, in violation of Government Code section 129400). 20 45. The harassing conduct inflicted against Plaintiff was so severe and pervasive as to

21 alter the nature and material terms and conditions of Plaintiffs employment with the City.

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Plaintiff considered the work environment to be hostile or abusive.

A reasonable person with Plaintiffs disability would have considered the work

24 environment hostile and abusive.

25 48. The harassing acts and/or omissions were perpetrated by Plaintiffs supervisor,

26 Defendant Feng, who participated in, assisted, and/or directed the harassing conduct.

27 49. The acts and/or omissions of Defendants, and each of them, caused Plaintiff to suffer

28 harm and economic damages for loss of past and future earnings and employee benefits, loss of


1 ealning capacity, loss of such employment related opportunities as the opportunity for advancement

2 and promotion within the City, in amounts according to proof at trial, as well as non-economic

3 damages for humiliation, mental anguish, serious and severe emotional distress, physical illness,

4 pain and suffering, in~amounts according to proof at trial.

5 50. In committing the acts and/or omissions alleged, Defendants, and each of them, have

6 been guilty of malice, fraud, or oppression and, therefore, Plaintiff seeks an award of punitive

7 damages against Defendant Feng, according to proof at trial.

8 51. Pursuant to Government Code section 12965, Plaintiff is entitled to recover and

9 seeks an award of attorneys' fees incurred in this action, against all Defendants.

10 SECOND CAUSE OF ACTION

11 (Failure to Prevent Harassment- Against ])efendant City and DOES 1 through 25, inclusive 12 [Government Code 12940 (k)]) 13 52. Plaintiff incorporates herein and alleges paragraphs 1 through 51, above.

14 53. Defendant City was aware that harassment against Plaintiff was occurring, and failed to

15 take all reasonable steps necessary to prevent the harassment from occurring, in violation of

16 Government Code section 12940(k). 17 54. The acts and/or omissions of Defendants caused Plaintiff to suffer harm and economic

18 damages for loss of past and future earnings and employee benefits, loss of earning capacity, loss of

19 such employment related opportunities as the opportunity for advancement and promotion within

20 the City organization, in amounts according to proof at trial.

21 . 55. The acts and/or omissions of Defendant caused Plaintiff to suffer harm and non-

22 economic damages for humiliation, mental anguish, serious and severe emotional distress, physical

23 illness, pain and suffering, in amounts according to proof at trial.

24 56. Pursuant to Government Code section 12965, Plaintiff is entitled to recover and seeks

25 an award of attorneys' fees incurred in this action, against Defendant.

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1 THIRD CAUSE OF ACTION

. 2 (Retaliation- Against Defendant City and DOES 1 through 25, inclusive 3 [Government Code 12940 (h)]) 4 57. Plaintiff incorporates herein and alleges paragraphs 1 through 56, above.

5 58. Plaintiff engaged in protected activity, including without limitation, (1) processing the 6 complaint of another City employee (Ms. 0.) for unlawful discrimination and harassment by 7 reporting it to the City, City Attorney, and City Council, and by providing testimony in connection

8 with the case; (2) reporting the City's violations of the Brown Act to outside investigators; and (3) 9 taking a medical leave of absence for a qualifying purpose under FMLA and CFRA.

10 59. Defendant City imposed a series of increasingly severe adverse employment acts and

11 omissions against Plaintiff in retaliation for Plaintiff engaging in said lawful and protected activity.

12 60. The adverse acts and/or omissions of Defendant taken as a whole, were so severe and

13 pervasive as to materially and adversely affect the terms and conditions ofPhtintiff's employment.

14 61. The fact that Plaintiff reported and testified regarding the unlawful discrimination and

15 harassment of another City employee, reported the City's unlawful violations of the Brown Act, and

16 took an FMLA/CFRA-qualified medical leave of absence, were the principal motivating reasons for

17 the adverse actions and/or omissions she suffered and for the continued harassment and retaliation

18 she was subjected to. 19 62. The acts and/or omission~ of Defendant caused Plaintiff to suffer harm and economic

20 damages for loss of past and future earnings and employee benefits, loss of earning capacity, loss of

21 such employment related opportunities as the opportunity for advancement and promotion within

22 the City organization, in amounts according to proof at trial, as well as non-economic damages for

23 humiliation, mental anguish, serious and severe emotional distress, physical illness, pain and

24 suffering, in amounts according to proof at trial.


26 an award of attorneys' fees incurred in this action.

27 FOURTH CAUSE OF ACTION

28 (Retaliation in Violation of Labor Code, Section 1102.5 14


1 (Against Defendant City and DOES l through 25, inclusive)) 2 64. Plaintiff incorporates hereinand alleges paragraphs 1 through 63, above.

3 65. Plaintiff engaged in protected activity by disclosing information to a government

4 agency regarding the regarding the unlawful discrimination and harassment of another City

5 employee (Ms. 0.), and regarding the City's violations of the Brown Act. 6 66. Plaintiff had had a reasonable cause to believe that the information she disclosed,

7 regarding the harassment of Ms. 0. and regarding the City's violations of the Brown Act, divulged

8 violations of or noncompliance with state and/or federal statutes, rules or regulations ..


10 omissions against Plaintiff in retaliation for Plaintiff engaging in lawful and protected activity.

11 68. The acts and/or omissions of Defendant taken as a whole, were so severe and pervasive

12 as to materially and adversely affect the terms and conditions of Plaintiff's employment.

13 69. The acts and/or omissions of Defendants caused Plaintiff to suffer damages, including

14 but not limited to, loss of earning capacity, loss of such employment related opportunities as the

15 opportunity for advancement and promotion within the City organization, in amounts according to

16 proof at trial, as well as non-economic damages for humiliation, mental. anguish, serious and severe

17 emotional distress, physical illness, pain and suffering, in amounts according to proof at trial.

18 FIFTH CAUSE OF.ACTION

19 (Retaliation in Violation of the Family and Medical Leave Act and the California Family 20 Rights Act- Against Defendant City and DOES 1 through 25, inclusive,

21 [29 USC 2611-2619; 29 CFR 825.220(c); Government Code 12945.2(1)]) 22 70. Plaintiff incorporates herein and alleges paragraphs 1 through 69, above.

23 71. At the time of her medical leave, Plaintiff was an eligible employee under the

24 definitional terms of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. section 25 2611(2)(a)(i)(ii) and California Family Rights Act ("CFRA"), Government Code section 12945.2. 26 72. At the time of her medical leave, Plaintiff had been employed by Defendant City for at

27 least twelve (12) months. Further, Plaintiff had worked at least 1,250 hours for Defendant during 28 the twelve (12) months prior to him taking medical leaves of absence.


1 73. Defendant employed in excess of 50 employees within 75 miles of the location where

2 . Plaintiff worked.

3 74. Defendant had knowledge that Plaintiff was suffering from a serious health condition,

4 specifically, Major Depressive Disorder and Panic Disorder With Agoraphobia, and needed to take 5 time off to recover.

6 75. Plaintiff engaged in protected activity by taking a medical leave of absence for a

7 qualifying purpose under FMLA and CFRA, after her request for a reasonable accommodation of

8 her disability was denied by Defendant City.


10 omissions against Plaintiff in retaliation for Plaintiff taking a FMLA/CFRA-qualified leave of

11 absence.

12. 77. The acts and/or omissions of Defendant that were imposed against Plaintiff, taken as a

13 whole, were so severe and pervasive as to materially and adversely affect the. terms and conditions

14 of Plaintiffs employment.

15 78. The acts and/or omissions of Defendants caused Plaintiff to suffer damages, including

16 but not limited to, loss of earning capacity, loss of such employment related opportUnities as the

17 opportunity for advancement and promotion within the City organization, in amounts according to

18 proof at trial, as well as non-economic damages for humiliation, mental anguish, serious and severe

19 emotional distress, physical illness, pain and suffering, in amounts according to proof at trial.

20 79. Defendant's retaliatory actions constitute independent unlawful acts under the FMLA

21 and CFRA.

22 80. Pursuant to 29 USC section 2617(a)(3) and Government Code section 12965(b), 23 Plaintiff is entitled to recover and seeks an award of attorneys' fees incurred in this action, against

24 Defendants.

25 Ill

26 SIXTH CAUSE OF ACTION

27 (Failure to Provide Reasonable Accommodation -Against Defendant City and 28 DOES 1 through 25, inclusive [Government Code 12940 {m)])


1 81. Plaintiff incorporates herein and alleges paragraphs 1 through 80, above.

2 82. At all times herein mentioned, the FEHA, Government Code section 12940(m), was in 3 full force and effect and binding on Defendant. These statutes require Defendant



3 SEVENTH CAUSE OF ACTION

4 (Failure to Engage in the Interactive Process - Against Defendant City, DOES 1 through 25, 5 inclusive (Government Code 12940 (n)]) 6 90. Plaintiff incorporates herein and alleges paragraphs 1 through 89, above.

7 91. At all times herein mentioned, the FEHA, Government Code section 12940(n), was in 8 full force and effect and binding on Defendant City. These statutes require Defendant to engage in

9 an interactive process in assessing an employee's disability in order to provide that employee with a

10 reasonable accommodation. Government Code section 12940(n) makes it an unlawful employment 11 practice. for an employer to fail to engage in a timely, good faith, interactive process with an

12 employee suffering from a physical disability to determine the effective reasonable

13 accommodations, if any, in response to a request for reasonable accommodation by an employee

14 with a disability.

15 92. Plaintiff suffered from a serious disability during her employment with Defendant,

16 specifically, Major Depressive Disorder and Panic Disorder With Agoraphobia. Defendantwas . 17 aware ofPlaintiffs disability.

18 93. Plaintiff requested that Defendant provide a reasonable accommodation for her

19 disability to allow her to continue to complete her job duties and conditions of employment. 20 94. Defendant willfully,. knowingly and intentionally failed to provide reasonable

21 accommodation for Plaintiffs disability and adversely changed her job duties and conditions of 22 employment.

23 95. Defendant did not reach out to Plaintiff in order to make reasonable accommodation for

24 her disability so that she would be able to perform her essential job requirements. 25 96. Plaintiff was willing to participate in an interactive process to determine whether

26 reasonable accommodation could be made so that she would be able to perform the essential job 27 requirements.

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1 97. Defendant failed to participate in a timely good-faith interactive process with Plaintiff

2 to determine whether reasonable accommodation could be made.

3 98. Plaintiff believes and thereon alleges that Defendant's desire to avoid engaging in the

4 interactive process to determine whether reasonable accominodation could be made for her

5 disability was a motivating and substantial factor in Defendant's harassment and retaliation against

6 her, and was a principal reason for the material adverse changes in Plaintiffsjob and the terms and 7 conditions of her employment.

8 99. As a proximate result of Defendant's failure to provide her with a reasonable

9 accommodation concerning her disability, failure to engage in a timely good faith interactive

1 0 process, Plaintiff has sustained and continues to sustain damages, including but not limited to, loss

11 of earning capacity, loss of such employment related opportunities as the opportunity for

12 advancement and promotion within the City organization, in amounts according to proof at trial, as

13 well as non-economic damages for humiliation, mental anguish, serious and severe emotional

14 distress, physical illness, pain and suffering, in amounts according to proofat trial.

15 100.In committing the acts and/or omissions alleged, Defendant is guilty of malice, fraud, or

16 oppression and, therefore, Plaintiff seeks an award of punitive damages against Defendant,

17 according to proof at trial.

18 10l.Pursuant to Government Code section 12965, Plaintiff is entitled to recover and seeks


20 PRAYER

21 WHEREFORE, PlaintiffKueny, prays for judgment against defendants as follows: 22 1. For compensatory damages according to proof, including loss of earnings, deferred

23 compensation, and other employment benefits;

24 2. For prejudgment interest on the amount of losses incurred in loss of earnings, 25 deferred compensation, and other employee benefits at the prevailing legal rate;

26 3. For general damages, including, but not limited to, damages for physical injuries 27 and/or physical sickness, according to proof;

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1 4. For other special damages according to proof, including but not limited to reasonable

2 medical expenses;

3 5. Exemplary and punitive damages against Mr. Feng on the First Cause of Action in an

4 amount determined by the court to be reasonable as authorized by section 3294 of the Civil Code;

5 6. For costs incurred by plaintiff, including reasonable attorneys' fees and costs of suit,

6 for causes of actions one (1) through seven (7); and 7 7. For such other and further relief as the Court deems just and proper. 8 Additionally, PlaintiffKueny, dem~ds trial of this matter by jury. 9

10 Dated: February 28, 2013

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By:

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c ermott opstone

for Plaintiff, YOLANDA KUENY


Documents

Yolanda Kueny v City of Camarillo and Bruce Feng