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20 21 2 23 24 25 J riLED duior Court J. Gary Gwilliam (SBN 33430) OCT 14 205 Randall E. Strauss (SBN 168363) _ Jayme L. Walker (SBN 273159) G, Ureta ‘Gwilliam, Ivary, Chiosso, Cavalli & Brewer 1999 Harrison St. Ste 1600 Oakland, CA 94612 /P: 510-832-5411 510-832-1918 parguuaearies com ASSIGNED TO JUDGE __PAULL. BEEMAN FOR ALL PURPOSES SOLANO COUNTY SUPERIOR COURT casenos FCSIYO ogy MICHAEL AND HOLLEY MURACO, } -_ ) COMPLAINT FOR DAMAGES Plaintiffs, } 1. Violation of Labor Code 1102.8 } 2. Violation of Labor Code 6310 vs. } 3. Defamation SIX FLAGS ENTERTAINMENT ) 4. Intentional Infliction of Emotional Distress CORPORATION; VANESSA FRAVEL, ) 5. Wrongful Termination in Violation of Public ) SAMUEL DOVER, DIANA PROCTER and) Policy ) ‘Does 1-100, MICHAEL MURACO and HOLLEY MURACO complain and allege as follows: PARTIES Fs Plaintiff MICHAEL MURACO was employed by Defendant SIX FLAGS as the Director Jof Animal Care for the Vallejo, California theme park and zoo, At all relevant times herein, MICHAEL MURACO was a lawful resident of the State of California and worked for Defendant ‘SIX FLAGS in the County of Solano. MICHAEL MURACO complains and alleges that SIX FLAGS terminated him in violation of the Whistleblower Protection Act (Cal. Labor Code 1102.5), the Workplace Health and Safety Act (Cal. Labor Code 6310) and in violation of public policy. MICHAEL MURACO further complains and alleges that he was defamed by SIX ‘COMPLAINT FOR DAMAGES. a 19 20 a 4 28 FLAGS employees and agents, individual Defendants, VANESSA FRAVEL, SAMUEL, DOVER, and DIANA PROCTER. 2. Plaintiff HOLLEY MURACO complains and alleges that she was defamed by SIX FLAGS employees and agents, individual Defendants, VANESSA FRAVEL, SAMUEL DOVER, and DIANA PROCTER: 3. Defendant SIX FLAGS is, and at all relevant times was, a corporation operating in the State of California, County of Solano. 4, Defendant VANESSA FRAVEL is a resident of California and an employee of SIX FLAGS in Vallejo, California and was acting in the course and scope of her employment when she committed the acts alleged herein. e Defendant SAM DOVER is a resident of California and was an agent of SIX FLAGS in Vallejo, California and was acting in the course and scope of his agency when he committed the acts alleged herein, 6. Defendant DIANA PROCTER is a resident of California and was an. agent of SIX FLAGS in Vallejo, California and was acting in the course and scope of her agency when she committed the acts alleged herein. = Plaintiffs do not know the true names and capacities of defendants sued as Does 1 ‘through 100. Plaintiffs will amend the complaint to show the true names of each such defendant ‘when their identities have been ascertained. Each of the Doe defendants encouraged, participated in, and/or ratified and approved the conduct complained of herein. Each of the Doe defendants /was at all relevant times the agent, employee, or representative of one or more of the named defendants and/or the other Doe defendants, and was acting within the course and scope or such relationship. it ut COMPLAINT FOR DAMAGES +2 19 20 21 2 4 2s FACTS 8. MICHAEL MURACO was hired as the Director of Animal Care for DEFENDANT SIX FLAGS on November 5, 2007. 9. MICHAEL MURACO immediately reported to his supervisors that DEFENDANT SIX FLAGS was in need of updates and repairs to infrastructure to address animal care. MICHAEL MURACO reported the Park General Manager Eric Gilbert that infrastructure needed to be upgraded to address poor water quality and public safety. He reported that the condition of the infrastructure made it possible for dangerous animals to escape the enclosures, contributed to ‘ongoing dolphin respiratory illnesses, and put the employees and animals in danger. Despite MICHAEL MURACO’S complaints and capital expenditure plans, GM Eric Gilbert refused to take steps to address animal welfare and public and employee safety. Despite repeated complaints and warnings from MICHAEL MURACO, a badly damaged elephant enclosure was not repaired until an elephant was caught climbing over the enclosure on a crowded day. 10. MICHAEL MURACO continued to make complaints about needed upgrades to animal care and submitted capital spending plans to address the upgrades and animal care, MICHAEL MURACO was an outstanding employee and was recognized by Six Flags as going above and beyond the call of duty. However, despite MICHAEL MURACO's best efforts, SIX FLAGS refused to implement the upgrades and refused to spend necessary funds to address animal health and safety. MICHAEL MURACO complained, inter alia, that dolphins were addicted to ‘unnecessary drugs, that marine mammals were not being fed proper diets, and that the Park was not putting enough salt in the salt water. The failure to address these problems was extremely detrimental to the health and welfare of the animals at SIX FLAGS. 11. Plaintiff HOLLEY MURACO is « Zoological Reproduction Physiologist. In 2012, Mrs. Muraco signed a 5 year contract with SIX FLAGS to assist with reproduction of the animals and ‘conduct research on reproduction, HOLLEY MURACO’S work has been the subject of several COMPLAINT FOR DAMAGES: 3 ” 18 1» 20 21 23 Pr 2s documentaries and facilitated high profile positive media exposure for SIX FLAGS, including ‘animals being featured in National Geographic magazine. 12. HOLLEY MURACO also reported several issues with SIX FLAGS animal care that she believed were negotively impacting reproduction and were resulting in an abnormally high ‘mortality rate for baby animals. Upon her initial review, HOLLEY MURACO reported that the dolphins were living in water that was not appropriately temperature controlled, that dolphins 'were being given daily steroids and other drugs to mask chronic conditions, that dolphin training techniques were out dated and abusive, and that the walrus and killer whale were underweight and malnourished. 13, MICHAEL MURACO also complained about conditions that were dangerous to Six Flags’ employees. In January, 2013, MICHAEL MURACO complained about a high voltage electrical project was being installed behind the dolphin stage. The transformer was not rated for} saltwater and not even rated to be outside, MICHAEL MURACO complained about this and told the GM it was a safety issue, In response to MICHAEL MURACO’S complaints, a shed ‘was built around the transformer. Over the next week, the staff kept getting shocked when they stepped near the area, MICHAEL MURACO brought in the in-house electrician and an outside vendor to review the situation and they confirmed that it was VERY dangerous to the employees and animals. It was not until MICHAEL MURACO persisted in addressing this issue that the transformer was relocated to a safer area, 14, Onmultiple occasions in 2014, the MURACOS questioned SIX FLAGS" veterinarians’, DEFENDANTS VANESSA FRAVEL, SAM DOVER and DIANA PROCTER, methods and sought outside advice on practices that they felt were endangering the animals, These practices included unnecessarily drugging animals, performing unnecessary medical procedures, including| spaying a seal under anesthesia without the use of a ventilator, which resulted in the seal’s death, COMPLAINT FOR DAMAGES 4 20 21 2 23 4 25 and failing to monitor water quality for the animals and failing to consult outside experts on dealing with severe water quality issues. 15. DEFENDANTS VANESSA FRAVEL, SAM DOVER and DIANA PROCTER resented that more qualified veterinarians were being consulted and resented the fact that the MURACOS" suggestions on animal care had been proven right and DEFENDANTS had been publicly embarrassed by the fact that they were wrong. 16. In April, 2014, the DEFENDANTS FRAVEL, PROCTER AND DOVER refused to allow HOLLEY MURACO to continue her reproduction projects at Six Flags. Despite several complaints to Six Flags’ management, who expressed agreement that HOLLEY MURACO was being unfairly defamed and prevented from performing consulting services pursuant to her contract, nothing was done to remedy the situation. This effectively terminated HOLLEY MURACO'S contract with Six Flags 17. Onor around April 13, 2014, MICHAEL Muraco met with SIX FLAGS’ Sr. VP, Tom Iven, and unloaded years of frustration regarding compliance issues, animal welfare issues that were being ignored, water quality and environmental issues and safety and OSHA violations by Six Flags. Dianne Cameron was present for the full meeting. MICHAEL MURACO informed ‘Mr. Iven that the Park General Manager was involved and aware of all these issues and yet refused to act to bring the Park into compliance or address animal welfare and public safety. MICHAEL MURACO asked Mr. Iven for a process that allowed him to report violations and infractions without fear of retaliation from the General Managers. Mr. Iven took full responsibility for these issues and told MICHAEL MURACO that he fet sick about it. However, no such process was implemented. 18. On April 21, 2014, MICHAEL MURACO wrote a letter of complaint addressed to the ‘CEO and complaining about the badly needed updates to infrastructure, water quality, and lack of legal compliance. However, wary of angering his management, he decided to send it to Mr. ‘Iven and Mr. MeCoy first to see if seeing his complaints in writing would prompt action. Despite MICHAEL MURACO’S complaints, no one did anything to address the concerns. COMPLAINT FOR DAMAGES “5 10 n 19 20 21 2 23 24 25 19, In 2014, two dolphin babies died at SIX FLAGS. 20, On May 12, 2014, the USDA came to investigate the dolphin deaths, 21. During one of the USDA visi to aroom full of Six Flags employees, including Plaintiff Michael Muraco, Diane Cameron, s, on of around May, 2014, USDA investigators announced Kristin Wasson and Remy Comer that Sam Dover had told her the company had been ignoring ‘water quality issues for years. Plaintiff Muraco immediately remarked that the investigators complete disregard for confidentiality would make it difficult for people to speak the truth if they| felt they were going to be exposed and possibly subjected to retaliation by Six Flags. Mr, “Muraco then spoke to the investigators alone and confirmed that his team had made numerous requests over the years for repairs and upgrades that Six Flags had ignored. He told the USDA ‘investigator that he, and the Six Flags’ veterinarians, had serious concems about the welfareof the animals due to neglected upgrades and repairs. He also informed the investigators that his repeated requests to bring the animal facilities into compliance with the law were ignored and that financial resources were not made available. Mr. Muraco discussed his concerns with the construction taking place adjacent to the dolphin maternity pool. The investigator asked Mr, ‘Muraco why Six Flags had protein skimmers on property that were never used, Mr. Muraco explained that the resources needed for engineering and installation were never made available despite his numerous requests, He further explained that the devices on site were not large ‘enough for the big dolphin systems and that new equipment was needed. Finally, Mr. Muraco told the investigator that his concerns were not specific to the marine areas and that resources ‘were withheld for the avian and terrestrial facilities as well. 22, The USDA cited Six Flags for many of the water quality and infrastructure issues that MICHAEL MURACO had been complaining about for years. The USDA determined that the ‘water quality of the pools at SIX FLAGS was a factor in the deaths, 23, At some point during or after the May, 2014 inspection, DEFENDANT PROCTER and DEFENDANT FRAYEL told the USDA inspector that HOLLEY MURACO was performing research without a permit and without their approval. They told the USDA that HOLLEY MURACO’S projects were harming the animals, This was false and defamatory and harmed ‘COMPLAINT FOR DAMAGES “6 10 2 B 4 20 a 2 23 4 25 HOLLEY MURACO’S reputation. Although the USDA later determined that HOLLEY MURACO was not required to have a permit under USDA regulations because her research was ‘not invasive, the damage to her reputation was done. 24, On May 20, 2014, MICHAEL MURACO asked Dr. Tom Reidarson to begin a full review of the Park’s medical records to determine the cause of the dolphin deaths and how to address the Park’s dismal dolphin calf mortality rate. Dr, Reidarson is a board certified 18 year veteran of Sea World and known as an expert in marine mammal medical care. Dr. Reidarson reported that a medication given by DEFENDANT PROCTER to one dolphin was not necessary and was a likely culprit into the baby’s death. Dr. Reidarson also noted that poor water quality ‘could have been a culprit in both baby dolphins’ deaths. 25, _ Following MICHAEL MURACO’S receipt of Dr. Reidarson’s report, he had several conference calls with SIX FLAGS’ GM Don McCoy, Legal Counsel Jim Gesualdi and Legal Counsel Danielle Bernthal, MICHAEL MURACO informed them that he believed the animals. ‘were at risk. He asked for direction and empowerment on how to deal with these issues, He ‘was told that nothing could be done until the USDA appeal was finalized. MICHAEL MURACO asked that Dr. Reidarson’s report be shared with the USDA. He was informed that the report would not be shared because it did not help the case as it simply exposed further ‘wrongdoing by Six Flags and its vets. GM Don McCoy repeatedly acknowledged that DEFENDANT PROCTER’S attacks on the MURACOS were personal and unjustified. He ‘admitted the Park and the company failed to support MICHAEL MURACO, his department and the animals. 26. While SIX FLAGS waited for the outcome of the appeal, MICHAEL MURACO ‘submitted another notification of significant problems in infrastructure at the Park and notified ‘management that there were safety and regulatory problems with failing to address these upgrades, COMPLAINT FOR DAMAGES “7 10 u R B 8 19 20 21 2 23 24 28 27. Onor around, 2014, HOLLEY AND MICHAEL MURACO were informed that DEFENDANT DOVER had told colleagues at a Caribbean facility that they were the reason the dolphins had died and that they were going to be fired forit. MICHAEL MURACO immediately informed GM Don MeCoy who assured him that this was not true, and in fact, SIX FLAGS planned to fire Dover for his failures as the supposed marine mammal expert. 28. On October 10, 2014, MICHAEL MURACO told GM Don MeCoy that he wanted to bring in Dr, Reidarson to resolve the animal welfare issues once and for all, including the ‘ongoing respiratory issues with the dolphins and the dismal mortality rate for the babies. He made it clear to Mr. McCoy that as long as he was the Director of Animal Care that the animals would not suffer or be subject to sub par veterinary care that endangered their health and welfare | MICHAEL MURACO made sure that this initiative would be fully funded without going over budget. On October 15, 2015, he presented Mr. MeCoy with an agenda putting the plan into action. 29. OnNovember 13, 2014, less than a month after MICHAEL, MURACO took a stand to protect the animals, he was terminated from his position as Director of Animal Care. When ‘MICHAEL MURACO informed the President of the Marine Mammal Alliance, Kevin Willis, that he was no longer with SIX FLAGS, Mr. Willis expressed concern about SIX FLAGS? ‘commitment to Animal Care now that MICHAEL MURACO was no longer there, 30. On December 1, 2014, MICHAEL AND HOLLEY MURACO, were informed that DEFENDANTS FRAVEL AND PROCTER had made statements to a third party that they had endangered the animals at SIX FLAGS and were terminated because of it, These ‘statements harmed Plaintiffs’ reputations and caused them significant distress, 31, On February 9, 2015, HOLLEY MURACO’S contract was officially terminated by SIX FLAGS COMPLAINT FOR DAMAGES “8 10 2 B 4 1s 16 " 19 20 al 2 24 25 32. Throughout 2014, and continuing to this day, MICHAEL AND HOLLEY MURACO. were defamed by employees and agents of SIX FLAGS. Dr. Vanessa Fravel, Dr, Diana Procter and Dr. Sam Dover made public statements that MICHAEL AND HOLLEY MURACO were to blame for the dolphin deaths, that they harmed the animals at Six Flags and that they were terminated from SIX FLAGS because of this. All of these statements were false and significantly harmed the Muracos’ reputations in the community. 33, On September 2, 2015, and within the time provided by law, PLAINTIFF MICHAEL, MURACO contacted via certified letter, California’s Labor and Workforce Development Agency (“LWDA") pursuant to Labor Code Section 2699 et, seq, ie. the California Private Attomey General Act. Plaintiff's letter was received by the LWDA on September 9, 2015, As of the date of filing, the LWDA has not responded to PLAINTIFF’s correspondence. As such PLAINTIFF asserts that he has met all pre-court exhaustion steps required to request an award o' attorney's fees following successful prosecution of this action, FIRST CAUSE OF (Violation of California Labor Code Section 1102.5) (Michael Muraco v. SIX FLAGS) 34. Plaintiffs reallege and incorporate by reference, the allegations contained in paragraphs 1 through 33, 38. Defendant SIX FLAGS' actions, as described above, violate California Labor Code section 1102.5 which prohibits an employer from retaliating against an employee for reporting violations of federal regulations and prohibit an employer from retaliating against an employee for refusing to engage in conduct that violates federal regulations. 36. SIX FLAGS terminated MICHAEL MURACO in retaliation for reporting violations of federal USDA regulations, including 9 CFR 3.106, regarding water quality for animals, and 9 ‘CER 3.101, 3.125, 3.126 and 3.127 regarding the condition of the facilities housing the animals, 37. Asa proximate result of Defendant’s actions, Plaintiff has suffered and continues to suffer substantial loss of earings and other employment benefits, and has suffered and continues ‘COMPLAINT FOR DAMAGES “9 20 21 2 23 4 to suffer pain, embarrassment, humiliation and mental anguish, all to his damage in an amount. according to proof. SECOND CAI (Violation of California Labor Code Section 6310) (Michael Muraco v. SIX FLAGS) 38. Plaintiffs reallege and incomporates by reference, the allegations contained in paragraphs | through 37. 39. Defendant SIX FLAGS’ actions, as described above, violate California Labor Code section 6310 which prohibits an employer from retaliating against an employee for reporting conditions that adversely affect the health, welfare and safety of the workplace, 40. SIX FLAGS terminated MICHAEL MURACO iin retaliation for reporting conditions that adversely affected the health and safety of the workplace, 41, Asa proximate result of Defendant’s actions, Plaintiff has suffered and continues to suffer substantial loss of earnings and other employment benefits, and has suffered and continues ‘to suffer pain, embarrassment, humiliation and mental anguish, all to his damage in an amount CAUSE OF ACTION imation (Holley Muraco and Michael Muraco v, All Defendants) 42. Plaintiffs reallege and incorporate by reference, the allegations contained in paragraphs 1 through 41, 43. Plaintifis are informed and believe that DEFENDANTS PROCTER, DOVER AND FRAVEL and Does 1-50 negligently, recklessly and intentionally caused Plaintiffs to be defamed internally and to third persons. These false and defamatory statements include express according to proof. and implied statements that Plaintiffs endangered the animals at Six Flags, caused the dolphin deaths at Six Flags, and were terminated from Six Flags because of this, DEFENDANTS accused HOLLEY MURACO of performing ultrasounds that harmed the animals, when, in fact, using an ultrasound is a generally accepted practice for reproductive care for animals, 44, PLAINTIFFS are informed and believe that these publications were outrageous, negligent, reckless, intentional, and maliciously published by Defendants, DEFENDANT SIX FLAGS is vicariously liable for the statements by its employees and agents acting in the course COMPLAINT FOR DAMAGES. =10 20 21 23 28 ‘and scope of their employment. Plaintiffs hereby seek damages for these publications and all foreseeable republications discovered up to the time of trial. 43, The defamatory publications consisted of oral and written, knowingly false, and ‘nprivileged communications, tending directly to injure Plaintiffs and Plaintiffs’ personal, ‘business and professional reputation in violation of Civil Code §§44, 45 and 46.. 46. Plaintiff is informed and believes and fears that these false and defamatory statements will continue to be published by DEFENDANTS and will foresecably be republished by their recipients, all to the ongoing harm and injury to Plaintiffs’ business, professional and personal reputations. Plaintiffs also seek redress in this action forall foreseeable republications, including their own compelled self publication of these defamatory statements, 47, None of Defendants defamatory publications against Plaintiffs were true and were ‘understood as assertions of fact not as assertions of opinion, Defendants knew thet there was no reasonable basis for these statements and recklessly published the statements to individuals with ‘no need to know, and who made no inquiry, and who had a mere general or idle curiosity of this information. 48, Asa proximate result ofthe publication and republication of these defamatory statements, Plaintiffs have suffered injury to their personal and professional reputations including embarrassment, humiliation, severe emotional distress, loss of employment and employability, ‘and significant economic loss inthe form of lost wages in an amount according to proof, 49. In doing the things alleged herein, the Defendants’ conduct was despicable. Defendants acted towards Plaintiffs with malice, oppression and fraud and willful and conscious disregard to Plaintiffs’ rights entitling them to an award of punitive damages, FOU Roe CAUSE OF ey (Holey and Michvel Maracov, AilDeteaists 50. Plaintiff realleges and incorporates by reference, the allegations contained in paragraphs 1 through 49. 51. Defendants, in the conduct set forth above, engaged in outrageous behaviors. By such COMPLAINT FOR DAMAGES 1 16 a 18 rr 20 21 2 23 24 25 conduct, Defendant intended to cause Plaintifs emotional distress, or engaged in conduct with reckless disregard of the probability of causing Plaintiffs emotional distress or both. Defendant ‘SIX FLAGS is vicariously liable for intentional torts committed by PROCTER, DOVER AND FRAVEL in the course and scope of their employment. 52, As a proximate result of Defendant's conduct, Plaintiffs have suffered severe emotional distress, 53. The outrageous conduct of Defendant was a substantial factor in the severe emotional distress suffered by Plaintiff. 54, Defendants’ wrongful conduct has caused Plaintiffs to suffer and continue to suffer injury, including, but not limited to, loss of income and benefits, severe emotional distress, and other damages. 55. Indoing the things alleged herein, Defendants conduct was despicable, Defendants acted| towards Plaintiffs with malice, oppression and fraud and willful and conscious disregard to Plaintiffs’ rights entitling them to an award of punitive damages. IFTH CAUSE OF ACTION ‘Wrongful Termination in Violation of Public Policy (Michael Muraco v. Six Flags) 56, Plaintiff re-incorporates and repeats the allegations in paragraphs 1 through $5 as though fully set forth herein, 57. Plaintiff was in an employee-employer relationship with Defendant Six Flags. 58. Plaintiff was terminated from his employment in violation of the public policy of the state of California, 59. The wrongful termination is rooted or tethered to policies delineated in constitutional and statutory provisions, 60, The Defendants’ wrongful conduct was the legal cause of Plaintiff's suffering, Plaintiff continues to suffer injury, including, but not limited to, loss of income and benefits, severe emotional distress, and other damages. 61. In doing the things alleged herein, the Defendants’ conduct was despicable, Defendants COMPLAINT FOR DAMAGES, “2 10 u 2 21 2 23 24 25 acted towards Plaintiff with malice, oppression and fraud and willful and conscious disregara| to Plaintiff's rights entitling him to an award of punitive damages, ‘REQUEST FOR RELIEF Plaintiffs seek judgment against Defendants as follows: 1, Compensatory damages, including lost past and future wages and benefits, and emotional distress damages, in a sum according to proof; 2. Front pay, in a sum according to proof; 3. Interest on judgment, including prejudgment interest, atthe legal rate; 4, Attomeys’ fees and costs, including but not limited under CCP 1021.5, Labor Code 2699.3 5. Civil penalties (as permitted by statute including but not limited to California Labor Code Section 218.5, California Code of Civil Procedure Section 1021.5, and/or the Private Attomey Generals Act, ie. Labor Code Section 2699 et. seq.) 6. Punitive damages 7. Injunctive Relief 8. Such other and further relief as the Court may deem proper. pa: Mf /Attowdeys for Plaintifis DEMAND FOR A JURY TRIAI GWILLIAM IVARY CHIOSSO CAVALLI & BREWER| Liebe f. GARY GWILLIAM Dated: fe fy COMPLAINT FOR DAMAGES, “13