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LAWRANCE A. BOHM, (SBN 208716) BIANCA N. SMITH, (SBN 269963)

Bohm Law Group 4600 Northgate Blvd.

Suite 210 Sacramento, CA 95834

Phone (916) 927-5574 Fax (916) 927-2046

Attomey for Plaintiff

SOKPHY TIN

SED

2011 JUL-7

PM

|:2 0

LEGAL PROCESS #2

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

SOKPHY TIN,

V.

Plaintiff,

PANDA EXPRESS, INC., PANDA EXPRESS

LLC,

PANDA INN, INC., PANDA

RESTAURANT GROUP, INC., HIBACHI- SAN, INC. and DOES 1-100, inclusive,

Defendants.

CaseNo. 34-2010-00090959

PLAINTIFF'S FIRST AMENDED

COMPLAINT FOR DAMAGES

1.

PREGNANCY/SEX

DISCRIMINATION

  • 2. RETALIATION (CFRA)

  • 3. FAILURE TO PREVENT DISCRIMINATION AND/OR RETALIATION

  • 4. ADVERSE ACTION IN VIOLATION OF PUBLIC POLICY

DEMAND FOR JURY TRIAL

Plaintiff, SOKPHY TIN, respectfiilly submits the instant First Amended Complaint for

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Damages and Demand for Jury Trial and alleges as follows:

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PARTIES AND JURISDICTION

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  • 1. Plaintiff SOKPHY TIN (hereafter "TIN" or "Plaintiff) was at all times relevant

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to this action, a recmit, employee, or wrongfully terminated employee of Defendants PANDA

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EXPRESS, INC., PANDA EXPRESS LLC, PANDA INN, INC., PANDA RESTAURANT

26

GROUP, INC., and HIBACHI-SAN, INC., (hereafter "PANDA EXPRESS" or "Defendant").

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While employed by PANDA EXPRESS and at all times relevant to this action, Plaintiff resided

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Plaintiffs First Amended Complaint for Damages TIN V. PANDA EXPRESS, INC , et al

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in Sacramento County.

  • 2 2. Venue and jurisdiction are proper because the majority of the events giving rise

  • 3 to this action took place in Sacramento; because Defendants were doing business in the County

  • 4 of Sacramento; because Plaintiffs employment was entered into in Sacramento County;

  • 5 because Plaintiff worked for Defendants in Sacramento; because the damages sought exceed

  • 6 the jurisdictional minimum of this Court; and because the majority of witnesses and events

  • 7 occurred in Sacramento County.

  • 8 3. Defendant PANDA EXPRESS, INC. was at all times relevant to this action a

  • 9 business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at

  • 10 all times relevant employers as defined by Government Code § 12926(d).

  • 11 4. Defendant PANDA EXPRESS LLC was at all times relevant to this action a

  • 12 business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at

  • 13 all times relevant employers as defined by Government Code § 12926(d).

  • 14 5. Defendant PANDA INN, INC. was at all times relevant to this action a business

  • 15 corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times

  • 16 relevant employers as defined by Government Code § 12926(d).

  • 17 6. Defendant PANDA RESTAURANT GROUP, INC. was at all times relevant to

  • 18 this action a business corporation, operating a fast food restaurant in Sacramento, CA.

  • 19 Defendants were at all times relevant employers as defined by Government Code § 12926(d).

  • 20 7. Defendant HIBACHI-SAN, INC. was at all times relevant to this action a

  • 21 business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at

  • 22 all times relevant employers as defined by Government Code § 12926(d).

  • 23 8. Plaintiff is ignorant of the tme names and capacities of the Defendants sued

  • 24 herein as DOES 1 through 100. Defendants Does 1 through 100 are sued herein under

  • 25 fictitious names pursuant to Califomia Code of Civil Procedure section 474. Plaintiff is

  • 26 informed and believes, and on that basis alleges, that each Defendant sued under such fictitious

  • 27 names is in some manner responsible for the wrongs and damages as alleged herein. Plaintiff

  • 28 does not at this time know the tme names or capacities of said Defendants, but prays that the Plaintiffs First Amended Complaint for Damages TIN V PANDA EXPRESS, INC, et al

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same may be inserted herein when ascertained.

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9. At all times relevant, each and every Defendant was an agent and/or employee

3

of each and every other Defendant. In doing the things alleged in the causes of action stated

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herein, each and every Defendant was acting within the course and scope of this agency or

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employment, and was acting with the consent, permission and authorization of each remaining

6

Defendant. All actions of each Defendant as alleged herein were ratified and approved by

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every other Defendant or their officers or managing agents.

8

STATEMENT OF FACTS

9

10. On or around July 20, 2004, SOKPHY TIN (TIN) was hired with PANDA

  • 10 EXPRESS as counter help. TIN was hired at the 735 Harbor Point Place location in West

  • 11 Sacramento, CA 95605.

  • 12 In or around October 2004, TIN leamed she was pregnant with her fifth child.

11.

  • 13 On or around October 17, 2004, TIN was promoted to lead counter help with a

12.

  • 14 pay increase.

  • 15 13. On or around October 22, 2004, recmiter George Chu (Chu) emailed regional

  • 16 director of operations Chris Fung (Fung) requesting approval to promote TIN to assistant

  • 17 manager in training. On or around the same day, Fung approved TIN'S promotion.

18

14.

On or around October 25, 2004, TIN was promoted to assistant manager in

  • 19 training and transferred to 545 Downtown Plaza, Sacramento, CA 95814 with a pay increase.

  • 20 15. On or around October 30, 2004, TIN received her first manager in training

  • 21 weekly assessment from certified trainer Cindy Lu (Lu). TIN achieved a ninety percent rating

  • 22 overall.

  • 23 16. On or around November 6, 2004, TIN received her second manager in training

  • 24 weekly assessment from Lu. TIN achieved a ninety-three percent rating overall.

  • 25 17. On or around November 18, 2004, TIN received her third manager in training

  • 26 weekly assessment from Lu. TIN achieved a ninety percent rating overall.

  • 27 18. In or around the same time period, TIN informed Lu of her pregnancy and the

  • 28 fact she was experiencing moming sickness. Shortly after, TIN overheard Lu comment to Fung Plaintiffs First Amended Complaint for Damages TIN V PANDA EXPRESS, INC , et al

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had she known of TIN'S pregnancy earlier, PANDA EXPRESS would not have trained her to

  • 2 become an assistant manager.

  • 3 19. On or around November 23, 2004, TIN completed her fourth week of training

  • 4 and received a final manager in training evaluation. TIN received points based on her job

  • 5 knowledge, personal ability, floor operations performance, and final exam score. TIN'S

  • 6 combined score was 415 points out of 445, giving her a ninety-seven percent passing rating. A

  • 7 score of 405 or more was considered passing. Upon completion, TIN eamed an assistant

  • 8 manager completion certificate.

  • 9 20. On or around November 24, 2004, TIN was transferred back to West

  • 10 Sacramento as an assistant manager. As a manager, TIN was scheduled to work one eight-hour

  • 11 day shift and four eight-hour night shifts.

  • 12 21. In or around January 2005, TIN notified her general manager Yan Hua Liu (Liu)

  • 13 of her pregnancy. Liu responded by asking TIN why she has so many children and why she

  • 14 continues having more babies.

  • 15 22. In or around January 2005, TIN leamed she was at risk of going into premature

  • 16 labor due to being on her feet at work. Consequently, TIN feared going into labor while

  • 17 working alone at night and contacted Liu to request different shifts. TIN requested to work two

  • 18 eight-hour day shifts and three eight-hour night shifts until after her baby was bom. TIN'S

  • 19 request was ignored.

  • 20 23. In or around January 2005, TIN again requested to work two eight-hour day

  • 21 shifts and three eight-hour night shifts. TIN'S request was again ignored. After TIN requested a

  • 22 third time, her shifts were drastically cut and she was only scheduled to work two eight-hour

  • 23 shifts each week.

  • 24 24. On or around January 24, 2005, TIN contacted Fung and complained about her

  • 25 shifts being cut. Fung told TIN he would talk to Liu and get back to her.

  • 26 25. On or around January 25, 2005, TIN received a call from Fung regarding

  • 27 concerns with her work performance. Two days later, TIN was emailed a final performance

  • 28 review reinforcing the telephone discussion that took place a few days prior. TIN believed she Plaintiffs First Amended Complaint for Damages TIN V PANDA EXPRESS, INC , et al

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received this write-up in retaliation for having requested pregnancy accommodations related to

  • 2 her pregnancy, and for having complained about her reduction in hours.

  • 3 26. In or around Febmary 2005, TIN gave Liu a doctor's note stating that she could

  • 4 not lift over fifty pounds. After receiving no response from Liu, TIN contacted area coach of

  • 5 operations Chris Cheng (Cheng) to follow up about her pregnancy accommodations. Cheng

  • 6 told TIN if she needed lifting assistance to ask one of her co-workers.

  • 7 27. On or around March 19, 2005, TIN received a disciplinary action report from

  • 8 supervisor Cheng for poor work performance. As a result, TIN would be demoted and given

  • 9 goals for improvement. During a follow-up review on March 20, 2005, TIN was told she

  • 10 would be terminated if she did not show improvement.

  • 11 28. On or around March 20, 2005, TIN was demoted to lead counter help for poor

  • 12 work performance with a pay decrease. TIN again believed she was being retaliated against for

  • 13 requesting pregnancy accommodations.

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29.

In or around March 2005, TIN notified Liu that her doctor was placing TIN on

  • 15 early matemity leave due to pregnancy complications.

  • 16 30. In or around the end of March 2005, TIN left on pregnancy disability leave. At

  • 17 the time, TIN was five months pregnant.

  • 18 On April 27, 2005, TIN's fifth child was bom two months premature.

31.

  • 19 In or around June 2005, TIN retumed to work from matemity leave as lead

32.

  • 20 counter help.

  • 21 33. Chris Cheng was transferred and David Chandiawhata (Chandiawhata) took

  • 22 over as area coach of operation.

  • 23 34. In or around May 2007, area coach of operation Chandiawhata requested that

  • 24 TIN be given another opportunity to become an assistant manager.

  • 25 35. On or around May 20, 2007, TIN was promoted to assistant manager in training

  • 26 and transferred to 1491 West Covell Blvd., Davis, CA 95616 with a pay increase.

  • 27 36. On or around May 21, 2007, TIN received her first manager in training weekly

  • 28 assessment from certified trainer Helen Chan (Chan). TIN achieved a ninety-seven percent Plaintiffs First Amended Complaint for Damages Tm V PANDA EXPRESS, INC , et al

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rating overall.

  • 2 37. On or around May 28, 2007, TIN received her second manager in training

  • 3 weekly assessment from Chan. TIN achieved a ninety-three percent rating overall.

  • 4 38. On or around June 4, 2007, TIN received her third manager in training weekly

  • 5 assessment from Chan. TIN achieved an eighty-five percent rating overall.

  • 6 39. On or around June 16, 2007, TIN received a fourth manager in training weekly

  • 7 assessment from Chan. TIN achieved a ninety-four percent rating overall.

  • 8 40. On or around the same day, TIN received a final manager in training evaluation.

  • 9 TIN'S combined score was 406 points out of 445, giving her a ninety-seven percent passing

  • 10 rating. Upon completion, TIN eamed an assistant manager completion certificate.

  • 11 41. In or around the end of June 2007, TIN was transferred to 2940 Del Paso Road

  • 12 Sacramento, CA 95834 as an assistant manager.

  • 13 42. In or around August 2007, TIN leamed she was pregnant with her sixth child.

  • 14 TIN decided not to inform anyone of her pregnancy at this time from fear of further retaliation.

  • 15 43. In or around November 2007, TIN notified Chandiawhata of her pregnancy and

  • 16 discussed the possibility of early matemity leave. Chandiawhata told TIN to notify her general

  • 17 manager when the time came.

  • 18 44. Throughout all of Plaintiffs employment at PANDA EXPRESS, she was never

  • 19 informed of her rights to pregnancy disability leave or transfer, her right to be reinstated to her

  • 20 employment following leave or transfer, or her rights under the Califomia Family Rights Act.

  • 21 45. In or around the end of December 2007, TIN notified her general manager Maria

  • 22 Vasquez her doctor was placing her early matemity leave due to pregnancy complications.

  • 23 Vasquez exhibited concem about having adequate help in TIN's absence.

  • 24 46. In or around January 2008, TIN left on pregnancy disability leave. At the time,

  • 25 TIN was five months pregnant.

  • 26 On March 28, 2008, TESf's sixth child was bom two months premature.

47.

  • 27 On or around June 15, 2008, TIN retumed to work from matemity leave. While

48.

  • 28 TIN was gone, PANDA EXPRESS replaced TIN by training a new assistant manager to take

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Plaintiffs First Amended Complaint for Damages TIN V PANDA EXPRESS, INC , et al

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over permanently. TIN no longer had a home store as an assistant manager.

  • 2 49. In or around June 2008, Chandiawhata asked TIN to transfer to the Davis

  • 3 location temporarily until West Sacramento location opened. TIN reluctantly agreed to transfer

  • 4 with the understanding her mileage would be paid and she would be transferred back to

  • 5 Sacramento when the new location opened.

  • 6 50. In or around the end of June 2008, Chandiawhata was transferred and Kai-Yi

  • 7 Wang (Wang) took over as area coach of operations.

  • 8 51. On or around August 2, 2008, TIN was transferred to Davis as an assistant

  • 9 manager. After a few weeks of commuting, TIN asked Wang to be reimbursed for her mileage.

  • 10 TIN'S request was denied.

  • 11 52. In or around September 2008, there was an open general manager position at the

  • 12 Davis location. TIN approached Wang about being considered for the permanent general

  • 13 manager position of the Davis location. Wang responded by telling TIN that she should just

  • 14 worry about taking care of her children since she had so many.

  • 15 53. In or around October 2008, TIN had to leave work thirty minutes early due to an

  • 16 emergency with her daughter being burned. TIN notified her counter lead of her emergency. In

  • 17 or around the same day, Wang called TIN and reprimanded her for not immediately calling to

  • 18 notify him of her emergency.

  • 19 54. On or around November 1, 2008, TIN was transferred to 2220 Lake Washington

  • 20 Blvd., Ste. 100, West Sacramento, CA 95691 as assistant manager.

  • 21 55. In or around November 2008, Tony lyamu (lyamu) became the new general

  • 22 manager ofthe West Sacramento location.

  • 23 56. In or around November 2008, lyamu asked TIN why she had so many kids.

  • 24 lyamu further questioned TIN about her financial circumstances and asked if she received

  • 25 welfare benefits.

  • 26 57. In or around November 2008, TIN complained to lyamu that she was not

  • 27 receiving a second meal break when working twelve hour shifts. lyamu stated the store was too

  • 28 busy for her to take a second meal break. TIN challenged lyamu by referring to the company Plaintiffs First Amended Complaint for Damages TINv PANDA EXPRESS, mc , et al

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handbook policies. lyamu ignored TIN's concems and said, "Who is the manager here?"

  • 2 58. In or around November 2008, lyamu cut TIN's hours from forty hours a week to

  • 3 sixteen hours a week. TIN immediately complained to lyamu her schedule was not meeting the

  • 4 company's required forty hours a week for assistant managers. TIN'S complaint was ignored.

  • 5 59. In or November 2008, TIN was called in to help out at 735 Harbor Point Place

  • 6 West Sacramento, CA 95605 by general manager Justin Gen (Gen). TIN reported as

  • 7 instmcted. lyamu later called TIN and questioned TIN about not showing up to work. TIN was

  • 8 confiised and explained to lyamu that Gen was supposed to call and let him know that TIN'S

  • 9 assistance was needed. lyamu, told TIN that she was scheduled to work at 2220 Lake

  • 10 Washington Blvd., Ste. 100, West Sacramento, CA 95691 and that he was writing her up as a

  • 11 no-call, no-show for the day.

  • 12 60. On or around November 13, 2008, TIN received a written waming from lyamu.

  • 13 lyamu wamed TIN that if another "no-call, no-show" occurred, she would be terminated with

  • 14 no questions asked.

  • 15 61. In or around December 2008, TIN leamed she was pregnant with her seventh

  • 16 child. Because of her employer's reaction to her previous pregnancies and related leaves of

  • 17 absence, TIN decided once again not to inform anyone of her pregnancy at this time.

  • 18 62. In or around January 2009, lyamu was transferred and Nicolas Fueling (Fueling)

  • 19 took over as general manager at the West Sacramento location.

  • 20 63. In or around January 2009, Lu, Wang, and Fueling were at the West Sacramento

  • 21 location to rearrange the store. While there, Lu commented on TIN's size and asked TIN if she

  • 22 was pregnant again. TIN admitted she was. Shortly after TIN informed Lu of her pregnancy,

  • 23 she saw Lu talking to Fueling and Wang. Fueling then approached TIN and congratulated her

  • 24 on her pregnancy. This indicated to TIN that Lu must have informed both Fueling and Wang of

  • 25 her pregnancy.

  • 26 64. On or around January 30, 2009, TIN was scheduled to work from 11:00 a.m. to

  • 27 7:00 p.m. During her shift, TIN leamed her nine-month old daughter was having asthma

  • 28 problems.

Consistent with PANDA EXPRESS policy regarding schedule changes, TIN asked

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Fueling for permission to leave her shift early to care for her daughter. Fueling approved TIN's

  • 2 request.

  • 3 65. On or around January 31, 2009, TIN was scheduled to work from 11:00 a.m. to

  • 4 7:00 p.m. TIN called Fueling before her shift to inform him that her daughter was now in the

  • 5 emergency room, and she would be unable to attend her shift. TIN was also experiencing

  • 6 moming sickness. Fueling indicated that TIN's absence would not be a problem.

  • 7 66. On or around Febmary 2, 2009, Wang suspended TIN for three days because of

  • 8 her attendance. TIN told Wang she was absent because her daughter was ill and because TIN

  • 9 was experiencing moming sickness from her current pregnancy. Wang asked TIN for her store

  • 10 keys and sent her home.

  • 11 67. Prior to suspending TIN on Febmary 2, 2009, Wang made no attempt to contact

  • 12 TIN directly to leam why she was absent on January 30th and January 31 st.

  • 13 68. On or around Febmary 5, 2009, TIN returned to work only to leam she had been

  • 14 terminated. Wang handed TIN her final check and told TIN to reapply in six months after her

  • 15 baby is bom. TIN was approximately three months pregnant at the time of her termination.

  • 16 69. During both of TIN's previous pregnancies while working at PANDA

  • 17 EXPRESS, she left for matemity leave at approximately five months into her pregnancy.

  • 18 70. TIN'S termination papers listed Febmary 2, 2009 as her termination date, and

  • 19 the reason given was for attendance issues.

  • 20 On or around Febmary 21, 2009, TIN applied for unemployment benefits.

71.

  • 21 On or around March 25, 2009, TIN was contacted by an Employment

72.

  • 22 Development Department (EDD) representative. TIN was informed that PANDA EXPRESS

  • 23 was claiming that TIN had not in fact been terminated, but was out on matemity leave. TIN

  • 24 I explained that she had been terminated on Febmary 2, 2009 when she was approximately three

  • 25 months pregnant. On information and belief, the decision to terminate Plaintiff was motivated

  • 26 by management's desire to avoid the imminent accommodation of Plaintiff s pregnancy.

  • 27 73. On June 15, 2009, TIN's seventh child was bom. Just like with TIN's previous

  • 28 two children, TIN's seventh child was bom two months premature.

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Plaintiffs First Amended Complaint for Damages Tm V PANDA EXPRESS, mC , et al

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74.

On or around November 5, 2009, TIN filed a complaint with the Department of

2

Fair Employment and Housing (DFEH). On or around the same day, TIN received a right to

3

sue notice from DFEH.

4

FIRST CAUSE OF ACTION (Pregnancy/Sex Discrimination, Government Code § 12940 (a))

"

75.

All factual allegations of this complaint are hereby re-alleged and incorporated by

'

reference.

°

16.

Plaintiff is a female. During her employment with Defendants, Plaintiff became

"

pregnant. As such, pursuant to Government Code §12926 subdivision (p) allegations in this

^^

complaint on the basis of "sex" refer to Plaintiffs gender, including but not limited to pregnancy,

^ ^

childbirth, or medical conditions related to pregnancy or childbirth.

^2 77. Defendants conduct violated Government Code 12940(a) and consistent with Title

^^

2 ofthe Califomia Code of Regulations §§7293.7 and 7291.5 by: (1) terminating Plaintiff because

^^

of her pregnancy, (2) refusing to provide pregnancy accommodation (3) failing to investigate

^ ^ discrimination, (4) disparate application of company practices, procedures and policies, and (5)

^"

otherwise discriminating against Plaintiff

with regard to the terms and conditions of her

^'

employment.

^° 78. The unlawful and discriminatory conduct was perpetrated or ratified by a

^"

managing agent of PANDA EXPRESS. Defendants' actions were perpetrated with malice,

^^

oppression and/or fraud. As such, Plaintiff seeks punitive damages from Defendants in an

•^ ^

amount according to proof

22

79.

As a proximate result of the aforementioned violations. Plaintiff has been

2-^

damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this

24

Court. Plaintiff also seeks "affirmative relief or "prospective relief as defmed by

25

Government Code § 12926(a).

SECOND CAUSE OF ACTION

27

(Retaliation; Government Code §12945(2))

2g

80.

All factual allegations of this Complaint are hereby re-alleged and incorporated

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Plaintiffs First Amended Complaint for Damages

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herein by reference.

  • 2 81. Plaintiff became pregnant on three different occasions during her employment

  • 3 with PANDA EXPRESS. At various points in time, Plaintiff requested accommodations related

  • 4 to her pregnancy, asserted her right to take a pregnancy disability leave under the Fair

  • 5 Employment and Housing Act (FEHA), and asserted her right to take leave in conjunction with

  • 6 pregnancy, childbirth, or related medical conditions under the Califomia Family Rights Act

  • 7 (CFRA). Additionally, Plaintiff complained about Defendants' discriminatory treatment of

  • 8 Plaintiff, and about Defendants' refusal to provide Plaintiff her entitled meal breaks.

  • 9 82. After Plaintiff asserted her various rights related to her pregnancies and/or after

  • 10 Plaintiff complained about being denied meal breaks. Defendants unlawfully retaliated against

  • 11 Plaintiff by subjecting her to various adverse employment actions that affected the terms and

  • 12 conditions of Plaintiff s employment.

  • 13 83. Adverse employment actions suffered by Plaintiff include but are not limited to:

  • 14 demotion, decrease in pay, decrease in hours, failure to reinstate Plaintiff to her same or

  • 15 comparable position following matemity leave, transfer to a distant location outside of

  • 16 Sacramento, denial of promotion, negative performance reviews, suspension, and termination.

  • 17 84. Defendants, and each of them, were motivated to discriminate against Plaintiff on

  • 18 grounds that violate FEHA, codified in the Government Code, in retaliation for requesting

  • 19 accommodations related to her pregnancy, asserting her rights to pregnancy disability leave, and

  • 20 for asserting her rights under CFRA. Defendants also retaliated against Plaintiff for

  • 21 complaining about unlawful employment conditions regarding Defendants' refusal to provide

  • 22 Plaintiff her entitled meal breaks.

  • 23 85. Plaintiff was terminated by Defendants in retaliation for having complained about

  • 24 discrimination, and on the basis of her pregnancies and related disabilities, requesting

  • 25 accommodations related to her pregnancies, and for having taken leave in conjunction with

  • 26 pregnancy, childbirth or related medical conditions.

  • 27 86. At the time of Plaintiffs termination, she was told to reapply after her baby is

  • 28 bom.

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87.

Defendants' explanation that Plaintiffs termination was because of attendance

  • 2 issues, is pretextual.

  • 3 Defendants' termination of Plaintiffs employment violated Government Code

88.

  • 4 §12945(2)) and Title 2 ofthe Califomia Code of Regulations §7297.7.

  • 5 As a proximate result of the aforementioned violations, Plaintiff has been

89.

  • 6 damaged in an amount according to proof, but in an amoimt in excess of the jurisdiction of this

  • 7 Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by Government

  • 8 Code § 12926(a).

  • 9 The unlawful and discriminatory conduct was perpetrated or ratified by a

90.

10

managing agent of PANDA EXPRESS. Defendants' actions were perpetrated with malice,

11

oppression and/or fraud. As such. Plaintiff seeks punitive damages from Defendants in an

12

13

amount according to proof

91.

As a proximate result of the aforementioned violations, Plaintiff has been

14

15

16

damaged in an amount according to proof, but in an amount in excess ofthe jurisdiction of this

Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by

Government Code § 12926(a).

17

18

19

20

THIRD CAUSE OF ACTION (Failure to Prevent Discrimination and Retaliation; Government Code §12940(k).)

92.

93.

All factual allegations are re-alleged and incorporated herein by reference.

As employers pursuant to the definition in Government Code § 12926(d),

Defendants had a duty to prevent unlawful harassment and discrimination, including retaliation.

21

22

94.

Defendants breached their duty to prevent the discrimination and retaliation of

Plaintiff by failing to inform Plaintiff of her rights to pregnancy disability leave or transfer, her

23

right to be reinstated to her employment following leave or transfer, or her rights under the

24

25

26

27

28

i

Califomia Family Rights Act.

95.

Defendants

knew

or

should

have

known

about

the

unlawful

pregnancy

discrimination and retaliation of Plaintiff set forth above. Defendants breached their duty to

Plaintiffs First Amended Complaint for Damages Tm V PANDA EXPRESS, mC , et al

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Lawrance A Bohm, Esq Bohm Law Group

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prevent the discrimination and retaliation of Plaintiff. Accordingly, Defendant violated

  • 2 Government Code §12940(k) and Titie 2 ofthe Califomia Code of Regulations §7287.6(3).

3 96. The unlawful failure to prevent discrimination and retaliation was perpetrated or 4 ratified by
3
96.
The unlawful failure to prevent discrimination and retaliation was perpetrated or
4
ratified by a managing agent of PANDA EXPRESS. Defendants' actions were perpefrated
5
with malice, oppression and/or fraud. As such, Plaintiff seeks punitive damages from
6
Defendants in an amount according to proof
7
97.
As a proximate result of the aforementioned violations. Plaintiff has been
8
damaged in an amount according to proof, but in an amount in excess ofthe jurisdiction of this
9
Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by
10
Government Code § 12926(a).
11
FOURTH CAUSE
OF ACTION
(Adverse Employment Action in Violation of Public Policy)
12
98.
All factual allegations are hereby re-alleged and incorporated herein by reference.
13
99.
The foregoing adverse employment actions were perpetrated in violation of public
14
policy codified in Government Code §§12940 (a), (k) and section 12945(2); and Titie 2 ofthe
15
Califomia Code of Regulations §§7291.5, 7293.7, 7297.7, and 7287.6(3).
16
100.
The adverse employment action in violation of public policy was perpetrated or
17
ratified by a managing agent of PANDA EXPRESS. Defendants' actions were perpetrated
18
with malice, oppression and/or fraud. As such. Plaintiff seeks punitive damages from
19
Defendants PANDA EXPRESS in an amount according to proof
20
101.
As a proximate result ofthe aforementioned violations. Plaintiff has been damaged
21
in an amount according to proof, but in an amount in excess ofthe jurisdiction of this Court.
22
23
PRAYER FOR RELIEF
24
WHEREFORE,
Plaintiff
demands
judgment
against
Defendants
and
any
other
25
defendants who may be later added to this action as follows:
26
1.
For
compensatory
damages, including, but
not
limited
to
lost
wages
and
27
emotional distress in an amount according to proof;
28

Plaintiffs First Amended Complaint for Damages Tm V PANDA EXPRESS, mC , et al

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Lawrance A Bohm, Esq Bohm Law Group

  • 1 For attorneys'

2.

fees

and costs pursuant to all applicable statutes or legal

  • 2 principles;

  • 3 For cost of suit incurred;

3.

  • 4 For punitive damages;

4.

  • 5 For prejudgment interest on all amounts claimed pursuant to Civil Code section

5.

  • 6 3287 and/or 3288;

  • 7 6.

For injunctive relief preventing fiirther harassment, discrimination, retaliation

  • 8 and as otherwise deemed appropriate;

  • 9 7.

For such other and further relief as the court may deem proper.

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Dated:

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Dated:

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July 7, 2011

ESQ:

BIANCA N. SMITH, ESQ. Bohm Law Group

Attomeys for Plaintiff SOKPHY TIN

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial by jury for this matter.

July 7, 2011

SM^

^T-AjdmiC^^

LAWRANCE A. BOHM, ESQ. BIANCA N. SMITH, ESQ. Bohm Law Group

Attomeys for Plaintiff SOKPHY TIN

Plaintiffs First Amended Complaint for Damages Tm V PANDA EXPRESS, mC , et al

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Lawrance A Bohm, Esq Bohm Law Group

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE

DATE: 06/29/2011

MINUTE ORDER

TIME: 02:00:00 PM

DEPT: 53

JUDICIAL OFFICER PRESIDING: David Brown CLERK: E. Brown, K. Pratchen REPORTER/ERM: T Goleno CSR# 10127 BAILIFF/COURT ATTENDANT: C. Chambers

CASE NO: 34-2010-00090959-CU-OE-GDS CASE INIT.DATE: 11/04/2010 CASE TITLE: Tin vs. Panda Express Inc CASE CATEGORY: Civil - Unlimited

EVENT ID/DOCUMENT ID: ,6554794

EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP MOVING PARTY: Hibachi-San Inc, Panda Restaurant Group Inc, Panda Express Inc, Panda Express LLC CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/23/2011

APPEARANCES

Stanley Stringfellow, counsel, present telephonically for the Defendant Nature of Proceeding: Hearing on Demurrer

TENTATIVE RULING

Defendants' Demurrer to Plaintiffs Complaint is OVERRULED

The notice of motion does not provide notice of the Court's tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 3.04(D). Local Rules for the Sacramento Supenor Court are available on the Court's website at <http://wwwsaccourt.ca.gov/local-rules/local-rules.aspx> Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 3 04(B)

Plaintiffs complaint sets forth four causes of action against defendants: the l^t for pregnancy/sex discrimination, the 2"° for retaliation, the 3''d for failure to prevent discrimination and/or retaliation and the 4^'' for adverse action in violation of public policy. Defendants demur to each cause of action on the grounds that they fail to state facts sufficient to constitute a cause of action, and on the grounds of uncertainty.

Demurrer to the l^t for pregnancy/sex discrimination is OVERRULED.

A plaintiff employee who claims discrimination must allege a prima facie case, that she was within the class protected from discnmination and was performing her job competently, but was terminated, plus some other circumstance suggesting discnminatory motive. Kelly v. Stamps.com Inc. (2005)135 Cal., App. 4th 1088, 1097

The Court finds that the facts alleged in paras. 10-64, and incorporated by reference into each cause of action (with regard to "incorporation by reference", see e g Republic Bank v. Manne Nat. Bank (1996) 45 Cal. App. 4th 919, 922), including the negative comments by a number of plaintiffs supervisors about

DATE: 06/29/2011

MINUTE ORDER

Pagel

DEPT: 53

Calendar No.

CASE TITLE: Tin vs. Panda Express Inc

CASE NO: 34-2010-00090959-CU-OE-GDS

her pregnancies and her children, are sufficient to raise an inference that the adverse employment actions taken against plaintiff by defendants were based upon her gender/pregnancy

Demurrer to the 2"^ cause of action for retaliation, is SUSTAINED, with leave to amend.

Plaintiff informed her general manager of her pregnancy in November 2008. Plaintiff has failed to allege

that her termination

in February

2009,

has any

nexus to

her

request

for

time off

for

her pnor

pregnancies, under the California Family Rights Act

 

Demurrer to the 3''^

cause

of action

for failure

to

prevent

discnmination

and/or

retaliation is

SUSTAINED, with leave to amend as to the retaliation allegations.

 

Demurrer to the 4th cause of action for adverse action in violation of public policy, is OVERRULED. Discrimination based on pregnancy has been sufficiently alleged.

Plaintiff may have leave to file and serve her first Amended Complaint not later than Monday, July 11,

  • 2011. The responsive pleading shall be due 10 days thereafter (15 days if service is by mail).

This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice.

COURT RULING

There being no request for oral argument, the Court affirmed the tentative ruling

DATE: 06/29/2011

MINUTE ORDER

Page 2

DEPT: 53

Calendar No.

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Proof Of Service

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CASE: TIN v. PANDA EXPRESS, INC., et aL

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CASE NO.: 34-2010-00090959

I, the undersigned, declare:

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I am employed in the County of Sacramento, State of Califomia.

I am over

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the age of eighteen (18) years and not a party to the within action; my business address is 4600 Northgate Blvd. Suite 210, Sacramento, CA 95834.

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On July 7, 2011,1 served the within:

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PLAINTIFF'S FIRST AMENDED COMPLAINT FOR DAMAGES

By causing the same to be personally delivered to the individual and at the

  • 11 address as set forth below.

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  • XX By placing a true copy thereof enclosed in a sealed envelope with postage

  • 13 thereon fiilly prepaid for deposit in the United States Post Office mail box, at my business address shown above, following Lawrance A. Bohm's ordinary business practices for the collection and processing of mail, of which I am

^4

  • 15 readily familiar, and addressed as set forth below.

  • 16 By depositing a true copy thereof enclosed in a sealed envelope with delivery fees thereon fiilly prepaid in a box or other facility regularly maintained by
    17 Federal Express or delivering to an authorized courier or driver authorized by

  • 18 Federal Express to receive documents on the same date that it is placed at Lawrance A. Bohm for collection, addressed as set forth below.

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2Q

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By sending a copy by facsimile to the person(s) at the address(s) and facsimile number(s) set forth below.

Harry I. Johnson, III, Esq. Stanley G. Strinfellow, II, Esq.

  • 23 ARENT FOX LLP 555 West Fifth Street, 48^^ Floor

  • 24 Los Angeles, CA 90013

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I declare under penalty of perjury under the laws of the State of Califomia

  • 26 the foregoing is true and correct, and that this decli^ration was excelled on July 7, 2011, at Sacramento, Califomia.

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proof of Service

Lawrance A Bohm, Esq BOHM LAW GROUP