• ORIGINAL - - ""-----
.,. Case 2:03-cv-05131-SVW-V' B.' K."' , .D.",o'.,c,u.m, ent 12 Filed 12/03/03 Page 1 of 59 Page ID #:21
,, ..~,>:. '\ '."" -,

1 Theresa M. Traber (State Bar No, 116305) Bert Voorhees (State Bar No, 137623)
2 LA W OFFICES OF TRABER & VOORHEES 128 North Fair Oaks Avenue, Suite 204
3 Pasadena, California 91103 Telephone: (626) 585-9611
4 Fax: (626) 577-7079

. ._--:;;:0.:;---'" ...-C-LER-K,,.F~U,.ISL:,.FDEILI:SEDTDR-ICT-CO-UR"T .iII,:,J
,l,I [DEDECC 331<01010J3 ;:,;;I
!

5 Attorneys for Plaintiffs Tomas Solis Lara, et al.

!CENTRAL DISTRICT OF CAU~~~~
BY

6

,eMs 7

Robert Vogel (SS~tate Bar Yvonne Arvamnitils ~(SSttaatte

No. Bar

N 063091)

, --

No. 161764))I"""!"'-~

\~~ 8
9 10
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UNITED STATES DISTRICT COURT

14

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CENTRAL DISTRICT OF CALIFORNIA

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(!l TQMA&'SOL S LARA, BENITO

No.: CV 03-Sl31-SVW (VBKx)

.Po17 MG&GNnZ~'BAZtt''EE,ZZ'f't;UARRETLINIOAVLVAASQORUEZEZ

"'-'18 RQf>Rf!illJEZ SANTOS HERRERA,

JOINT STIPULATION:

A8flL~DO OPEZ RAMQOS, and

(1) ALLOWING THE FILING OF

19 Ha:t<IG,stIINNiiPl'ARK, on their own behalf SECOND AMENDED COMPLAINT

and on behalf of a class of similarly

DISMISSING ALL FEDERAL

20 situated individuals,

CLAIMS WITH PREJUDICE; AND (2)

REQUESTING THAT THE CASE BE

21

Plaintiffs,

REMANDED TO STATE COURT; .,

AND rp AR AO~] ORDER

22

vs.

THEREON

23 ASSI SUPER, INC., a California cOIJ,oration; DANIEL SEUNG CHUL
24 RHEE, an individual; JUN BAEK LEE, an individual; and DOES I through 50,
25 inclusive,

Honorable Stephen V. Wilson

Pretrial Conf.: Trial Date:

May 24,2004 June 1,2004

26

Defendants.

27

\1r

28

JOINT STIP. FOR FILING OF SECOND AMENDED COMPLAINT DISMISSING ALL FEDERAL CLAIMS' ·'AND GRANTING I'LS.' MOT. TO REMAND; AND IPRItOPOSEDI ORDER THEREON
r

• Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 2 of 59 Page ID #:22

IT IS HEREBY STlPULATED by the parties to this action, PLAINTlFFS TOMAS
Ct
2 SOLIS LARA, BENITO GONZALEZ, AURELIO VASQUEZ MARTINEZ, MAR'F.,:.J..;~,N ,~
3 ALVAREZ RODRIGUEZ, SANTOS HERRERA, ABELARDO LOPEZ RAMOS, ~~
'..J
(.'"(
4 HONG SHIN PARK, and the putative members ofthe classes they seek to represent, and

5 Defendants ASSI SUPER, INC., DANIEL SEUNG CHUL RHEE & JUN BAEK LEE,

6 by and through their respective attorneys of record, that:

7

I. This action was initially filed in state court and was removed to this Court on or

8 about July 18,2003. Soon thereafter, on August 11,2003, the Court stayed the action

9 until October 20,2003, so that the parties could focus their efforts on settlement and a

10 mediation which took place on September 16,2003; .

11

2. The First Amended Complaint in this action sets forth 21 causes of action and

12 various class actions, including, but not limited to, claims for unlawful harassment,

13 discrimination, retaliation, failures to hire in violation of state and federal employment

14 law, and for various violations of state and federal wage and hour laws.

15

3. The parties agree that the Court should allow plaintiffs to file a Second

16 Amended Complaint, a copy of which is attached hereto. The Second Amended

17 Complaint deletes all of plaintiffs' federal claims. Specifically, Causes of Action I, 2, 3,

.

'

18 4, 12, and 15 have been deleted, as well as all references to plaintiffs' federal claims.

19

4. When the Courts enters an order allowing the filing of the Second Amended

20 Complaint, plaintiffs' federal claims will thereby be dismissed with prejudice and

21 plaintiffs have agreed they will not re-file those claims in any court of competent

22 jurisdiction. The parties agree that the dismissal of plaintiffs' federal claims shall have

23 no res judicata, collateral estoppel, or any other effect on the viability of plaintiffs' state

24 law claims.

25

. 5. Defendants waive notice of service of the Second Amended Complaint; shall

26 not be required to file an answer thereto; and all denials, responses and affirmative

27 defenses contained in the answer filed by defendants to the First Amended Complaint

28 shall be deemed responsive to the Second Amended Complaint.
2
JOINT STIP. FOR FILING OF SECOND AMENDED COMPLAINT DISMISSING ALL FEDERAL CLAIMS AND GRANTING "LS.' MOT. TO REMAND; AND IPROPOSEDI ORDER THEREON

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 3 of 59 Page ID #:23

6. Because the Second Amended Complaint contains no federal claims and there

, ,

(2:)

2 is no diversity jurisdiction, after its filing, the Court will retain only supplemental ~~

3 jurisdiction over this action. In light of the fact thai, to date, there has been no moti6hs

"

\.~I

4 filed, the case has been stayed for the majority ofthe time it has b~en in federal court;

5 discovery has just begun, and there have been limited court appearances, the parties

6 agree that it would not promote judicial economy for this Court to retain supplemental

7 jurisdiction over this action. Accordingly, the parties agree that the case should be

8 remanded to state court, where the action was originally filed, and jointly ask that the

9 Court do so.

10

7. If the Court dismisses the action following the filing of the Second Amended

11 Complaint rather than remanding the action as the parties have requested, then the date

12 that plaintiffs re-file their Second Amended Complaint in state cOUl1will be regarded as

13 the same dates that plaintiffs originally filed their initial and First Amended Complaints

14 in state court for purposes of any statute of limitations analysis, provided that plaintiffs

15 re-file the action within 30 days of the Court's dismissal order.

16

IT IS SO STIPULATED.

17

lL, 18 Dated: November

2003 KOREAN IMMIGRANT WORKERS ADVOCATES

TRABER & VOORHEES

19
20

By: ~v~@

21

Attorneys for Plaintiffs

22

TOMAS SOLIS LARA, et al.

23
Dated: November _ , 2003 JACKSON LEWIS LLP 24

25

26

BByy:: -_-_--_~R_~o~'R-bo~eb~er~trt~D> D·..~=VV~oo~g~gee- l~I----

27

Attorneys for Defendants

ASSI SUPER, INC., et flL

28

3
JOINT STIP. FOR FILING OF SECOND AMENDED COMPLAINT DISMISSING ALL FEDERAL CLAIMS AND GRANTING PLS.' MOT. TO REMAND; AND IPROPOSEDI ORDER THEREON

,,1'

~..

t

•2136890430

NO. 674 P. 5

Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 4 of 59 Page ID #:24

21

. 6. Because the Second Amended Complaint contains no federal claims and

2 there is no diversity jurisdiction, after its filing, the Court will retain only supplement~'

L"

3

jurisdiction over this action. In light of the fact that, to date, there has been no motion~ ,,,~

4 filed, the case has been stayed for the majority of the time it has been in federal court,:;;

5 discovery has just begun, and there have been limited court appearances, the parties agree

6 that it would not promote judicial economy for this Court to retain supplemental

7 jurisdiction over this action. Accordingly, the parties agree that the case should be

8 remanded to state court, where the action was originally filed, and jointly ask that the

9 Court do so.

10

7. If the Court dismisses the action following the filing of the Second Amended

11 Complaint rather than remanding the action as the parties have requested, then the date

12 that plaintiffs file their Second Amended Complaint in state court will be regarded as the

13 same dates that plaintiffs originally filed their initial and First Amended Complaints in

14 state court for purposes of any statute oflimitations analysis, provided that plaintiffs re-

15 file the action within 30 days of the Court's dismissal order.

16

IT IS SO STIPULATED.

KOREAN IMMIGRANT WORKERS ADVOCATES TRABER & VOORHEES

BY:---::I---=~-:-_ _ _ _ _ _ __

By:--=:--:-___. . : . . - - . - - - - - - gel
Attorneys for Defi dants
ASSI SUPER, INC., e f1l.
3
JOINT sm. FOR FII.ING OF SECOND AMENDBD COMPLAINT DISMISSING ALL FEDERAL CLAIMS AND
GRANTING PLS.' MOT. TO REMAND; i\ND [pROPOSED] ORDER THEREON

• Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 5 of 59 Page ID #:25

ORDER

.

. .

I', :;

2

Based

on

the

stipulation

of

the

partie.s,

plaintiffs

may

tile

their

Second

Amended ""::;,

3 'Complaint, 'a, copy 'of whi~h i; attached,hereto: Defendants waive n'otice of service 9~ the

4 Second Amended Complaint; shall not be required to file an answer thereto; and all V1
..
5 denial, responses and affir!11ative defenses contained in the answer filed by defendants to

6 the First Amended Complaint shall be deemed responsive to the Second Amended

7 Complaint.

8

In light of the fact' that no federal claims rernain al1d that virtually no litigation has

9 proceeded in federal court, the Court declines to retain supplemental jurisdiction over

10 this action, and this action is hereby REMANDED to state court,

11

12

IT IS SO ORDERED.

(@(j; 13
14 DATED:

15

16

-~
HaN. STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE

17

18

19

20

21

22

23

24

25

26

27

28
4
JOINT STIP. FOR FILING OF SECOND AMENDED COMPLAINT DISMISSING ALL FEDERAL CLAIMS AND GRANTING PLS.' MOT. TO REMAND; AND IPROPOSEDI ORDER THEREON

 
 Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 7 of 59 Page ID #:27

Esteban P. Arredondo [State Bar # 216220] KOREAN IMMIGRANT WORKERS ADVOCATES 2 3465 West Eighth Street Los Angeles, California 90005 3 Telephone: (213) 738-9050 Fax: (213) 738-9919
4
Theresa M. Traber [State Bar # 116305] 5 Bert Voorhees [State Bar # 137623]
Jocelyn Sperling [State Bar # 211714] 6 LAW OFFICES OF TRABER & VOORHEES
128 North Fair Oaks Avenue, Suite 204 7 Pasadena, California 91103
Telephone: (626) 585-9611 8 Fax: (626) 577-7079

9 Attorneys for Plaintiffs Tomas Solis Lara, Benito Gonzalez, Aurelio Vasquez Martinez, Martin Alvarez Rodriguez, Santos Herrera,
10 Abelardo Lopez Ramos, and Hong Shin Park

II

12

13

FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT

14

15 TOMAS SOLIS LARA, BENITO GONZALEZ, ~

16 AURELIO VASQUEZ MARTINEZ, MARTIN )

ALVAREZ RODRIGUEZ, SANTOS

)

17

HERRERA, ABELARDO LOPEZ RAMOS, and HONG SHIN PARK, on their own behalf and on

~

18 behalf of a class of similarly situated individuals, )

19

Plaintiffs,

) )

20

vs.

) )

21 22 23

ASSI SUPER, INC., a California corporation; DANIEL SEUNG CHUL RHEE, an individual; JUN BAEK LEE, an individual; and DOES I through 50, inclusive,
Defendants.

) ) )
) )
)

24

25

26

27

28

No.:C!V (>3-5"1 81 ~~~{vf1K'1-)
SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
CLASS ACTIONS
JURY TRIAL DEMANDED
I. Harassment on the Basis of National Origin and/or Race [Violation of Govt. Code § 12940)
2. Discrimination on the Basis of National Origin and/or Race [Violation of Govt. Code § 12940)
3. Retaliation for Opposing Harassment and/or Discrimination [[Violation of Gov!. Code § 12940(h)]
4. Failure to Prevent Harassment and Discrimination [Violation of Govt. Code §12940(k»)
5. Failure to Hire [Violation of Gov!. Code §12940(a)]
6. Failure to Pay Overtime [Violation of Labor Code §§ 200-03, 510, 1994;

SEC,OND AMENDED COMPLAINT FOR DAMAGES AND IN.JUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 8 of 59 Page ID #:28

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

i

,

22

1

I'

23

24

25

26

27

28

IWC Wage Order No, 5]

(~,

7,

.. Failure to Provide Rest Periods

,~
I.lJ

[Violation of Labor Code

"~.':II:.:.~~~

§ 226,7 and Iwe Wage Order

:~ t::1"

No, 5]

, 1
.,j

8. Breach of Contract

(,,:~

.9, Fraud
10, Negligent Misrepresentation 'II. Conversion

12. Negligent Appointment, Training

and/or Supervision

Ij', ' Negligent Int1iction

of Emotional Distress

14, ' Assault and/or Battery

15, Unfair Business Practices

[Violation of Business &

Professions Code §17200 et seq ,]

2 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 9 of 59 Page ID #:29

I. NATURE OF ACTION

2

1. Plaintiffs TOMAS SOLIS LARA, BENITO GONZALEZ, AURELIO VASQUEZ ~{.~:J

<I~

3 MARTINEZ, and MARTIN ALVAREZ RODRIGUEZ (collectively, "Discrimination Plaintiffs"), ~l of

I.J

4 whom have worked as employees for defendant ASS! SUPER, INC. (hereafter "Assi Super"), brinlC

5 claims on their own behalf and on behalf of a class of similarly-situated persons against Defendants for

6 compensatory, consequential, statutory and punitive damages, injunctive reliet~ attorneys' fees and costs,

7 and other appropriate relief, to remedy Defendants' unlawful harassment, discrimination, and retaliation

8 in violation of the California Fair Employment and Housing Act ("FEHA"), Government Code § 12900

9 et ~ Discrimination Plaintiffs also bring parallel common law claims on their own behalf and on

10 behalf of a class of similarly-situated person against Defendants for negligent appointment, training

II and/or supervision, and/or negligent infliction of emotional distress. Several Discrimiriation Plaintiffs

12 also bring individual claims for assault and/or battery.

13

2. Plaintiff SANTOS HERRERA ("Applicant Plaintitr') brings claims on his own behalf

14 and on behalf of a class of similarly-situated persons against Defendants for compensatory,

15 consequential, statutory and punitive damages, injunctive relief: attol'l1eys' fees and costs, and other

16 appropriate relief, to remedy Defendants' unlawful failure to hire in violation of the FEHA, Government

17 Code § 12900 et seq.

18

,
J.

Plaintiffs ABELARDO LOPEZ RAMOS and HONG SHIN PARK (collectively,

19 "Misc1assified Plaintiffs"), both of whom have worked as salaried employees for Assi Super and were

20 misclassified as exempt from the overtime provisions of wage and hour laws of California, bring claims

21 individually and on behalf of a class of similarly-situated persons under California law, for

22 compensatory damages, statutory penalties, liquidated damages, attorneys' fees and costs, and other

23 appropriate relief, to remedy Defendants' violations of various provisions of the California Labor Code.

24 MiscIassit1ed Plaintiffs also bring parallel common law claims for breach of contract, fraud, negligence,

25 negligent misrepresentation, and conversion on their own behalf and on behalf of a class of similarly-

26 situated persons.

27

4. Plaintiffs TOMAS SOLIS LARA, BENITO GONZALEZ. AURELIO VASQUEZ

28 MARTINEZ, and MARTIN ALVAREZ RODRIGUEZ (collectively, "Rest Period Plaintiffs"), bring

3 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 10 of 59 Page ID #:30

claims on their own behalf and on behalf of a class of similarly-situated persons, including but not
Cl
2 limited to the Latino workers and the cashiers at Assi Super, who were not provided state-mandate~Jpaid
.:..;;,
,'~
3 rest periods by Assi Super, in violation of California Labor Code ~ 226.7 lind California Industrial:~
t, ..J
4 Welfare Commission Occupational ("IWC") Wage Order No.5 (Title 8 Cal. Code of Reg. § II 0O5S0Ojj::1

5

5. Discrimination Plaintiffs, Applicant Plaintiffs, Misclassitied Plaintiffs, and Rest Period

6 Plaintiffs (collectively, "Plaintiffs") seek injunctive relief, disgorgement of profits and other appropriate

7 equitable relief for Defendants' unlawful and unfair business practices under California Business and

8 Professions Code § 17200 et ~

9

II. JURISDICTION

10

6. This Court has jurisdiction over Plaintiffs' claims under the FEHA, California

I11I Government Code § 12965(b); California Labor Code §§ 203, 218, and 1194; and California Business &

12 Professions Code §§ 17203 and 17204.

13

III. VENUE

.

.

14

7. Venue as to each Defendant is proper in thisjjudieial district. pllfsuuant to Code of Civil

15 Procedure § 395. Defendants maintain offices, transacts business, has agents, and are found in Los

16 Angeles County, and each Defendant is within the jurisdiction of this Court for purposes of service of

17 process. The unlawful acts alleged herein have a direct effect on Plaintiffs and those similarly situated

18 within the State of California and within Los Angeles County. Defendants operate facilities and employ

19 numerous class members in Los Angeles County.

20

IV. PARTIES

21

8. Plaintiff TOMAS SOLIS LARA is Latino and worked primarily as a Stocker in the Deli

22 and Grocery Departments for Assi Super from approximately March, 2000 through July, 2002. During

23 his employment with Assi Super, Defendants, or some of them, subjected Lara to harassment on the

24 basis of national origin andJor race, to different terms and conditions of el]1ployment with respect to

25 promotions, working conditions, discipline, and wages based on his national origin and/or race, to

26 unlawful retaliation, and/or to other unlawful treatment. Assi Super also failed to provide Lara with paid

27 rest periods as required by California law.

28

9. PlaintiffBBEENNIITQ GONZALEZ is Latino and worked as a Stocker in the Grocery

4 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 11 of 59 Page ID #:31

Department at Assi Super from approximately September, 1999 through July, 2002. During his
"1.:1
2 employment with Assi Super Defendants, or some of them, subjected Gonzalez to harassment on tl1\l ,.;l, ."
3 basis of national origin and/or race, to different terms and conditions of employment with respect t01~
U·
4 promotions, working conditions, discipline, and wages based on his national origin and/or race, to V\

5 unlawful retaliation, and/or to other unlawful treatment. Assi Super also failed to provide Gonzalez with

6 paid rest periods as required by California law.

7

10. Plaintiff AURELIO VASQUEZ MARTINEZ is Latino and worked as a Stocker in the

8 Grocery Department at Assi Super from approximately January, 2000 through July, 2002. During his

9 employment with Assi Super, Defendants, or some of them, subjected Martinez to harassment on the

10 basis of national origin and/or race. to different terms and conditions of employment with respect to

II promotions, working conditions, discipline, and wages based on his national origin and/or race, to

12 unlawful retaliation, and/or (0 other unlawful treatment. Assi Super also failed to provide Martinez with

13 paid rest periods as required by California law.

14

11. PlaintiiI MARTIN ALVAREZ RODRIGUEZ is Latino and worked as a kitchen assistant

15 at Assi Super from approximately July, 2000, through July, 2002. During his employment with Assi

16 Super, Defendants, or some of them, subjected Rodriguez to harassment on the basis of national origin

17 and/or race, to different terms and conditions of employment with respect to promotions, working

18 conditions, discipline, and wages based on his national origin and/or race, to unlawful retaliation, and/or

19 to other unlawful treatment. Assi Super also failed to provide Rodriguez with paid rest periods as

20 required by California law.

21

12. Plaintiff SANTOS HERRERA is Latino and applied to worked at Assi Super in

22 approximately November, 200 I. He was never hired. Defendants, or some of them, failed to hire

23 Herrera on the basis of his national origin and/or race.

24

13. PlaintiffABELARDO LOPEZ RAMOS worked at Assi Super ii'om approximately

25 September 25, 1998 through July 31,2002. Plaintiff Ramos regularly worked in excess of forty (40)

26 hours per week and/or eight (8) hours per day, but failed to receive all overtime compensation to which 27 he was entitled by virtue of hours worked in excess of forty (40) hours per week and/or eight (8) hours
28 per day.

5 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 12 of 59 Page ID #:32

14. Plaintiff HONG SHIN PARK worked at Assi Super from approximately August 1,2000
,,~.
I••..j
2 through February 24., 2003. Plaintiff Park regularly worked in excess offorty (40) hours per weekL~.rd/or
'I~,
3 eight (8) hours per day, but failed to receive all overtime compensation to which 'he was entitled b~l~
u
\,q
4 virtue of hours worked in excess of forty (40) hours per week and/or eight (8) hours per day.

5

15. Defendant ASS[I SUPER is and has been at all times relevant herein a corporation

6 qualified to do business within the State of California and conducting business in the County of Los

7 Angeles, with its principal place of business in Los Angeles County, within the jurisdiction of this court.

8

16. Defendant SEUNG CHUL RHEE, a.k.a. Daniel Rhee,. a.k.a. Seung Chul Lee, a.k.a.

9 Daniel Lee, a.k.a. Seung Chung Vi, a.k.a. Daniel Yi (h~rein "Daniel Rhee"), a resident of Los Angeles

I0 County, is and has been at all times relevant herein the owner and/or the Chief Executive Officer for

II Assi Super. [In this position, Daniel Rhee acts as a manager for Assi Super and a general supervisor of

12 each Plaintiff and all other Assi Super managers and employees. In this position, he also acts as a

13 decision-maker with regard to hiring of Assi Super employees.

14

17. Defendant JUN BAEK LEE, a resident of Los Angeles County, is and/lor has been, at

15 times relevant herein, the general manager and/or a manager for Assi Super. At times relevant herein,

16 Assi Super and Daniel Rhee charged Jun Baek Lee with, and/or he assumed with their knowledge and

17 acquiescence, supervisorial power and authority over Plaintiffs and other Assi Super employees.

18

18. Plaintiffs are ignorant of the true names and capacities of Defendants sued as DOES 1I

19 through 50, inclusive, and therefore sue said Detendants by such fictitious names. Plaintiffs will ask

20 leave of court to amend this complaint to allege their true names and capacities when the same shall

21 have been ascertained. Plaintiffs allege that each ofthe Defendants named as Does herein was in some

22 manner responsible for the acts and omissions herein alleged and Plaintiffs will ask leave of court to

23 amend this complaint to allege such responsibility when the same shall have been ascertained.

24

19. Plaintiffs are informed and believe and thereupon allege that, at all times material herein,

25 each Defendant was the agent, employee and/or joint venturer of, or working in concert with his/her co-

26 Defendants and was acting within the course and scope of such agency, employment andl/or joint venture

27 or concerted activity.

28

20. Defendant Assi Super and other Defendants are aware and have been aware at all relevant

6 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 13 of 59 Page ID #:33

times of the unlawful conduct of Defendants and/or their managers as alleged herein. Despite said
. t':,
2 knowledge and their ability to do so, Defendants have failed to censure, criticize, suspend, discharge or lI'~:
3 otherwise discipline any Detendant for his conduct. Consequently, Defendants have authorized, ::i (j
4 condoned and/or ratified and are, therefore, joint participants in the conduct of the other Defendant'i1

5

21. Plaintiffs are informed and believed, and thereon allege, that there exists such a unity of

6 interest and ownership between Defendants that the individmility and separateness of Defendants have

7 ceased to exist. The business affairs of Defendants are, and at all times relevant hereto were, so mixed

8 and intermingled that the same cannot reasonably be segregated, and the same are in inextricable

9 confusion. Defendants are, and at all times relevant hereto were, used by one another as a mere shell and

10 conduit for the conduct of certain of Defendants' affairs. The recognition of the separate existence of

II each Defendant would not promote justice, in that it would permit Defendants to insulate themselves

12 from liability to Plaintiffs. Accordingly, Defendants constitute the alter egos of each other, and the

13 fiction of their separate existence must be disregarded at law and in equity, because such·disregard is

14 necessary to avoid thud and injustice to Plaintiffs herein.

15

22. Whenever and wherever reference is made in this complaint to any act or failure to act by

16 a Defendant or Defendants, such allegations and references shall also be deemed to mean the acts and/or

17 failures to act by each Defendant acting individually, jointly, and severally.

18

23. Whenever and wherever reference is made to individuals who are not named as Plaintiffs

19 or Defendants in this complaint but who during relevant time periods were employees, managers and/or

20 agents of Assi Super, such individuals at such relevant times shall be deemed to have acted or to have

21 failed to act on behalf of Assi Super during and within the scope of their respective employment and/or

22 agency with Assi Super.

23

V. CLASS ACTION ALLEGATIONS

24

24. Discrimination Plaintiffs' Class Action Allegations. Discrimination Plaintiffs allege the

25 following:

26

(A) Discrimination Plaintiffs, as putative class representatives, bring their claims

27 under the FEHA, their common law claims for negligent appointment, training and/or supervision,

28 negligent infliction of emotional distress, and the California Business and Professions Code § 17200 et

7
SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 14 of 59 Page ID #:34

seg. for damages and declaratory and injunctive relief on their own behalf and on behalf of a class
CJ
2 comprised of all persons who were subject to harassment on the basis of national origin and/or raci;!} to
:~ 3 different terms and conditions of employment with respect to promotions, working conditions, (J
4 discipline, and wages on the basis of national origin and/or race, and to retaliation for complaints ~1iout

5 or resistance to such harassment or discrimination, at any time from October, 1998 to the present, as well

6 as all persons who will be subject to such unlawful conduct in the future. Reference herein to

7 Discrimination Plaintiffs includes both the named Plaintiffs and members of the class they seek to

8 represent.

9

(B) Members of the class on whose behalf the class representatives sue are

10 ascertainable but so numerous that joinder of all such members is impracticable. The class is expected

II to exceed seventy-five (75) individuals, including future class members whose joinder is inherently

12 impossible.

13

(C) Discrimination Plaintiffs will fairly and adequately protect the interests of the

14 class because Discrimination Plaintiffs' attorneys possess the requisite resources and ability to prosecute

15 this case as a class action and because the class representatives' interests are consistent with, not

16 antagonistic to, the interests of the class.

17

(D) Questions offact and law regarding Defendants' unlawful employment practices

18 and appropriate relief to eliminate those practices are common for the claims of all class members. The

19 prosecution of separate actions against Defendants by individual class members would create a risk of

20 inconsistent or varying adjudications which would establish incompatible standards of conduct for

21 Defendants.

22

(E) The claims of Discrimination Plaintiff class representatives are typical of the claims

23 of all class members Discrimination Plaintiffs seek to represent. The unlawful employment practices

24 which have injured Discrimination Plaintiffs in violation of stale law are identical to those which have

25 and will continue to operate to deny other class members their rights under state employment statutes.

26

25. Applicant Plaintiffs Class Action Allegations. Applicant Plaintiff alleges the following:

27

(A) Applicant Plaintiff, as a putative class representative, brings his claims under the

28 FEHA, and the California Business and Professions Code § 17200, et seq. for damages and declaratory

8 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 15 of 59 Page ID #:35

and injunctive relief on his own behalf and on behalf of a class comprised of all persons who were not

2

hired

on

the

basis

of their

national

origin

and/or

race

from

October,

. 1998

to

the

present,

as

well

as

adJI
d-.,,

3 persons who will not be so in the future. Reference herein to Applicant Plaintilf includes both the:?, ('_1

4 named Plaintiff and members of the class he seeks to represent.

5

(B) Members oftbe class on whose behalf the class representatives sue are

6 ascertainable but so numerous that joinder of all such members is impracticable. The class is expected

7 to exceed forty (40) individuals, including future class members whose joinder is inherently impossible.

8

(C) Applicant Plaintiff will fairly and adequately protect the interests of the class

9 because Applicant Plaintiffs attorneys possess the requisite resources and ability to prosecute this case

10 as a class action and because the class representative's interests arc consistent with, not antagonistic to,

11 the interests of the class.

12

(D) Questions Oftllct and law regarding Defendants' unlawti.tl employment practices

I3 aJ.ld appropriate relief to eliminate those practices are common for the claims of all class members. The

14 prosecution of separate actions against Dd'endants by individual class mcmbers would create a risk of

15 inconsistent or varying adjudications which would establish incompatible standards of conduct for

16 Defendants.

17

(E) The claims of Applicant Plaintiff class representative are typical of the claims of all

18 class members Applicant Plaintiff seeks to represent. The unlawful employment practices which have

19 injured Applicant Plaintiff in violation of state law are identical to those which have and will continue to

20 operate to deny other class members their rights under state employment statutes.

21

26. Misclassified Plaintiffs' Class Action Allegations. Misclassitied Plaintiffs allege the

22 following:

23

(A) Misclassified Plaintiffs bring their claims under California Labor Code § 1194,

24 [WC Wage Order No.5 (Title 8 CaL Code of Reg. § 11050), their common law claims for breach of

25 contract, fraud. negligence, negligent misrepresentation. and conversion. and California Business and

26 Professions Code § 17200, et ~ lor damages and de~laratory and injunctive relief on behalf of all

27 salaried, non-exempt employees of defendant Assi Super, during the applicable limitations period, whom

28 Defendants refused to compensate for all overtime work performed in excess of eight (8) hours per day

9 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.IUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 16 of 59 Page ID #:36

and/or forty (40) hours per work week, Misclassified Plaintiffs allege on behalf of themselves and all
fis.m 2 similarly-situated misclassified employees that Defendants unlawfully classified them as exempt .~...~..
3 overtime payments under California law andlor failed and refused to pay overtime premiums to theij1 for
t.J
4 all overtime worked, notwithstanding that they are not and have not been exempt and are and have"been

5 entitled to oveliime pay, for overtime worked, and further that Defendants failed to record and maintain

6 time records as required by law. Misclassified Plaintiffs also assert class-wide claims under California

7 Labor Code §§ 203 and 558, alleging that Defendants failed to pay wages when due, and wilfully

8 violated California wage law. Reference herein to Misclassified Plaintiffs includes both the named

9 Plaintiffs and members of the class they seek to represent.

10

(B) Members of the class on whose behalf the class representatives sue are

11 .ascertainable but so numerous that joinder of all such members is impracticable, The class is expected

12 to exceed forty (40) individuals, including future class members whose joinder is inherently impossible,

13

(C) Misclassified Plaintiffs will fairly and adequately protect the interests of the class

14 because Misclassified Plaintiffs' attorneys possess the requisite resources and ability to prosecute this

15 case as a class action and because the class representatives' interests are consistent with, not antagonistic

16 to, the interests of the class.

17

(D) Common questions oflaw and fact exist as to members oftl1e class that

18 predominate over any questions afTecting only individual members and include, but are not limited to,

19 the following:

20

(i) Whether Defendants unlawfully failed to pay overtime compensation in

21 violation orthe California Labor Code and applicable Wage Orders;

22

(ii) Whether Misclassified Plaintiffs are non-exempt from the entitlement to

23 overtime compensation for overtime hours worked under the overtime pay requirements of California

24 law;

25

(iii) Whether Defendants' policy and practice of classifying as exempt from

26 overtime entitlement under California law and Defendants' policy and practice of failing to pay overtime 27 to Misclassified Plaintiffs and the class violates applicable provisions of California law, including 28 applicable Labor Code sections, applicable Wage Orders, and applicable state regulations;

10
SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 17 of 59 Page ID #:37

(iv) Whether Defendants failed to pay wages when due within the meaning of

* 2 California Labor Code 203;

C;
.,1:1~.1

,,~.

3

(v) Whether Defendants' conduct as alleged in this action was willful within ~he

\.,,)

VI
4 meaning of California Labor Code § 558;

5

(vi) The proper measure of damages sustained by Misclassified Plaintiffs;

6

(vii) Whether Defendants' practices as alleged herein constitute unfair business

7 practices under California Business & Professions Code, § 1·7200 et ~.; and

8

(viii) Whether Plaintiffs are entitled to restitution, disgorgement of protits, or

9 other equitable relief to remedy Defendants' unfair business practices.

10

(E) The claims of Misclassified Plaintiffs are typical of the claims of all class members

I I Misclassified Plaintiffs seeks to represent. The unlawful employment practices which have injured

12 Misclassified Plaintitls in violation of state law are identical to those which have and will continue to

13 operate to deny other class members their rights under state employment statutes.

14

27. Rest Pt:riod Plaintiffs' Class Action Allegations. Rest Period Plaintiffs allege the

15 following:

16

(A) Rest Period Plaintiffs, as putative class representatives, bring their claim for

17 violation of California Labor Code § 226.7, IWC Wage Order No.5 (Title 8 Cal. Code of Reg. § 11050), 18 and California Business and Professions Code § 17200, et ~., for damages and declaratory and

19 injunctive relief on their our behalf and on behalf of a class comprised of employees including but not

20 limited to all Latinos employees and cashiers. Reference herein to Rest Period Plaintiffs includes both

21 the named Plaintiffs and members of the class they seek to represent.

22

(8) Members of the class on whose behalf the class representatives sue are

23 ascertainable but so numerous that joinder of all such members is impracticable. The class is expected

24 to exceed one hundred (100) individuals, including future class members whose joinder is inherently

25 impossible.

26

(e) Rest Period Plaintiffs will fairly and adequately protect the interests of the class

27 because Rest Period Plaintiffs' attorneys possess the requisite resources and ability to prosecute this case

28 as a class action and because the class representative's interests are consistent with, not antagonistic to,

11 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 18 of 59 Page ID #:38

the interests of the class.

{:~l

2

(D) Questions of fact and'law regarding Defendants' unlawful employment prac~~ces

!:~:

3 and appropriate relief to eliminate those practices are common for the claims of all class members"ifhe

tJ

4 prosecution of separate actions against Defendants by individual class members would create a ris~'6f

5 inconsistent or varying adjudications which would establish incompatible standards of conduct for

6 Defendants.

7

(E) The claims of Rest Period Plaintiffs class representative qre typical ofthe claims of

8 all class members Rest Period Plaintiffs seek to represent. The unla\\~ul employment practices which

9 have injured Rest Period PlaintitTs in violation of state law are identiCal to those which have and will

10 continue to operate to deny other class members their rights under state employment statutes.

I11I

28. Discrimination Plaintiffs' Tolling Allegations. On or about January 8, 2002, Tomas Solis

12 Lara filed an administrative claim with the Equal Employment Opportunity Commission ("EEOC"),

13 asserting the harassment and diserimination against Defendants as described herein. On or about

14 February 11,2002, and August 6, 2002, Tomas Solis Lara tiled an administrative claim with the EEOC,

15 asserting further retaliation claims against Defendants as described herein. On or about January 14, 16 2002, Benito Gonzalez filed an administrative claim with the EEOC, asserting the harassment and 17 discrimination against Defendants as described herein. On or about January 7, 2002, Aurelio Vasquez

18 Martinez t1illeed an administrative claim with the EEOC, asserting the harassment and discrimination

19 against Defendants as described herein. On or about January 8, 2002, Martin Alvarez Rodriguez filed an

20 administrative claim with the EEOC, asserting the harassment and discrimination against Defendants as

21 described herein. On September 17,2002, the EEOC issued cause determinations with respect to these

22 discrimination claims on behalf of a class of Assi Super employees. The EEOC issued right to sue

23 letters to the named Discrimination Plaintiffs on October 28,2002. During their pendency, the named

24 Discrimination Plaintiffs' administrative claims tolled the statute of limitations on each and every claim

25 asserted herein by the Discrimination PlaiinnttiiffTfs.

26

29. Applicant Plaintiffs' Tolling Allegations. On or about January 8, 2002, Santos HelTera

27 filed an administrative claim with the EEOC, asserting Assi Super failed to hire him based on national

28 origin, race and/or ethnicity. On September 17,2002, the EEOC issued cause determinations with

. 12 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.JUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 19 of 59 Page ID #:39

respect to this denial of hire claim due to national origin on behalf of a class of applicants, The EEOC

I.)

2 issued a right to sue letter to Santos Herrera on October 28,2002, During its pendency, Herrera's I;~

,.:::.,

•

7

3 administrative claim tolled the statute oflimitations on each and every claim asserted herein by the:~

(,-1

4 Applicant Plaintiffs,

VI

5

30, Misclassified Plaintiffs' and Rest Period Plaintifl'S' Tolling Allegations, On or about June

6 7, 2002, Tomas Solis Lara submitted an administrative claim for wage and hour violations with the

7 Department of Labor Standards Enforcement ("DLSE"), On or about June 7, 2002, Aurelio Vasquez

8 Martinez submitted an administrative claim for wage and hour violations with the DLSE, In addition,

9 Misclassified Plaintiffs and Rest Period Plaintiffs are informed and believe and thereon allege that other

10 members of these classes have also submitted administrative claims for wage and hour violations with

II the DLSE, Upon information and belief, these administrative claims led to an investigation by the

12 Bureau ofField Enforcement which uncovered evidence of the various wage and hour violations alleged

13 herein, The administrative claims of members of these plaintiff classes have tolled and continue to toll

14 the statute of limitations on ca~h and everyone of the claims asserted herein by Misclassified Plaintiffs

15 and Rest Period Plaintiffs,

16

VI. FACTS OF THE CASE RELATING TO THE DISCRIMINATION

17

AND HARASSMENT CAUSES OF ACTION

18

31. Plaintiffs are informed and believe and thereupon allege that, beginning in or around

19 October, 1998, each Defendant entered into a conspiracy and agreement with other Defendants and/or

20 subsequently joined said conspiracy and ratified the prior acts and conduct of the Defendants who had 21 previously entered into said conspiracy, Plaintiffs are currently unaware of when each Defendant joined 22 said conspiracy, but, on information and belief, allege that all Defendai1ts have knowingly, maliciously, 23 and wilfully entered into said conspiracy which continues to this day, The purposes of said ongoing 24 conspiracy include, but are not limited to, engaging in a pattern or practice of subjecting Assi Super's 25 Latino employees to harassment, different terms and conditions of employment with respect to hiring, 26 promotions, working conditions, discipline, and wages, and/or retaliation against Plaintiffs and/or others 27 who have refused to acquiesce in or have complained about such harassment and discrimination, All of 28 Defendants' acts and failures to act alleged herein were perpetrated in furtherance of said ongoing

13 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.JUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 20 of 59 Page ID #:40

conspiracy.

,~~)

2

32. Defendants' pattern or practice of subjecting the Latino employees to harassment, l:~

":::'
3 different terms and conditions of employment with respect to promotions, working conditions, "~?-,

'.J

l;P' 4 discipline, and wages, andlor retaliation, has been and continues to be characterized by and made of,

5 but is not limited to, the following conduct: (1) regularly refusing to promote Latino employees and

6 instead promoting Korean andlor Korean American employees who are less qualified, andlor have less

7 experience andlor were trained by Latino employees who were not so promoted; (2) requiring Latino

8 workers to perform duties in addition to their regularly assigned duties, while the Korean and/or Korean

9 American workers rarely, if ever, were given such additional duties; (3) prcssuring Latino workers to

10 work faster and to carry heavier loads than the Korean andlor Korcan Amcrican workers; (4) subjecting

II andlor allowing managers and/or co-workers to subject Latino workers to profanities andlor derogatory

12 language, while not subjecting the Korean andlor Korean American workers to such unlawful and

13 demeaning treatment; (5) verbally and/or physically assaulting and/or allowing managers and/or co-

14 workers to verbally andlor physically assault Latino employees without suspension, discharge, or other

15 disciplinary measures; (6) refusing to allow Latino employees to take state-mandated rest periods, while

16 allowing the majority of the Korean and/or Korean American employees to take such rest periods; (7)

17 requiring Latino workers to return early from lunch to work to assist other employees and giving them

18 warnings if they did not do so, but not requiring the same from Korean andlor Korean American

19 workers; (8) paying Latino workers a lower hourly wage than Korean and/or Korean American workers
20 for similar work; (9) regularly assigning Korean andlor Korean American workers more hours of
21 employment; (10) providing Latino workcrs fewer vacation days per year than similarly-situated Korean

22 and/or Korean American employees; (11) providing fewer bonuses to Latino employees than Korean

23 andlor Korean American employees; (12) stripping Latino workers of certain work duties despite their
. 24 satisfactory performance of such duties in retaliation for filing discrimination charges; (13) changing . 25 Latino workers' break schedules and days off, andlor reducing the number of houl's they were assigned 26 in retaliation tbr filing discrimination charges; (14) retaliating against Latino workers by, among other 27 things, cutting their work hours and subjecting them to intimidating surveillance, tbr collectively taking 28 their state-mandated 10-minute rest periods, which the overwhdming majority of their Korean andlor

14 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 21 of 59 Page ID #:41

Korean American co-workers were allowed to take; (15) by allowing defendant managers and/or

2 supervisors to permit co-workers to harass Latino worker,s; and/or (16) through other harassing,

3 discriminatory, retaliatory, and unlawful conduct.

(,,':;

4

Ddendants also engaged in a pattern and practice of subjecting Latino applicants for

5 employment to discrimination by refusing to hire them on the basis of their national origin and/or race.

6

Allegations Concerning Plaintiff Tomas Solis Lara

7

34. On or about March, 2000, Plaintiff Lara was hired at Assi Super as a Stocker to work in

8 the Grocery and Deli Departments. He had years of previous experience working in supermarkets most

9 of whose customers were Korean and/or Korean American. His duties consisted of stocking and

10 cleaning the aisles to which he was assigned, rotating the merchandise in those aisles, and preparing

11 merchandise displays for those aisles, He also had the responsibility of ordering merchandise for his

12 aisles, which required extensive knowledge about the shopping habits of the primarily Korean and/or

13 Korean American clientele. Further, he was assigned to stock the warehouse, which required extensive

14 knowledge about the wholesale clientele.

15

35, Throughout his employment at Assi Super, Lara was subjected to differential treatment

16 because of his national origin and/or race in promotions, working conditions, discipline, and wages, and

17 other such treatment. He was also subjected to a hostile work environment. The harassment and

18 discrimination to which Lara was subjected disrupted his emotional tranquility in the workplaee and

19 interfered with and undermined his personal sense of well being,

20

36. During all or virtually all of the period during which Lara was employed by Assi Super,

21 there were no Latino managers, All of the managers were Korean and/or Korean American. Lara

22 routinely trained new Korean and/or Korean A?1erican employees how to, for example, stock and order

23 merchandise. Some of these Korean and/or Korean American employees were then promoted to

24 manager even though they had less experience and were less qualified than Lara, including, as only one

25 example, Jae Sik Kim." In fact, Lara continued to train these Korean und/or Korean American employees

26 after they became managers, For example, after his promotion, Jae Sik Kim asked Lara to assist him

27 with ordering merchandise, When Lara asked Daniel Rhee why there wei'e no Latino managers, Rhee

28 responded that there could not be any Latino managers because it was a "Korean supernlarket." Thus,

15 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 22 of 59 Page ID #:42

despite the fact that Lara was more qualified than many of his Korean andlor Korean American co-

t,':J
2 workers, many ofthese Korean and/or Korean American co-workers were promoted while he was i.if>t. -~,~.

3

37. During a portion of the period during which Lara was employed by Assi Super, he :;:

,

tJ

4 worked in the froze~ department, in which area Latino workers were almost exclusively assigned. 'This

5 was one of the most ditlicult areas in which to work in the store because it involved lifting extremely

6 heavy boxes offrozen products. Despite the sub-freezing temperatures, Assi Super refused to give Lara

7 and his Latino co-workers adequate suits to protect them from the cold and only gave them one pair of

8 gloves, which were not effective to protect against the freezing and moist temperatures.

9

38. During all or virtually all of the period during which Lara Was employed by Assi Super,

10 Assi Super owners andlor managers, including his manager Jae Sik Kim, used profanities directed at

11 him, including but not limited to "sekya" and "pabo" (derogatory Korean words) and "pendejo"

12 (derogatory Spanish word). Jae Sik Kim also routinely pressured Lara to work faster than his Korean

13 and/or Korean American co-workers. Additionally, the owners and/or managers of Assi Super failed to

14 censure, criticize, suspend, discharge, or otherwise discipline, and therefore condoned and ratitled, the

15 acts of Lara's Korean andlor Korean American co-workers, who harassed Lara in various ways,

16 including but not limited to yelling profanities at Lara, directing Lara to do work despite lacking

17 supervisorial authority over him, and directing Lara to work faster. Lara's Korean and/or Korean

18 American co-workers were rarely, if ever, mistreated in these ways.

19

39. Throughout his employment, Lara was required to perform duties in addition to his

20 regularly assigned dmies. Lara was pressured to finish all of these duties within the time allotted for his 21 regular duties. Korean andlor Kor~an American workers in similar positions were rarely, if ever, given

22 duties beyond their regularly assigned duties.

23

40. Lara was also required to carry heavier loads than his Korean and/or Korean American

24 co-workers. By way of example, in hauling merchandise, Lara lIsed wheeled, nat bed carts, which he

25 was required to fill to eye level. If Lura did not fill the cart to this level, the owners and/or managers of

26 Assi Super would reprimand him, order him to fill the cart, and yell "pali pali" ("hurry" in Korean). 27 Generally, the Korean and/or Korean American workers loaded the carts only halfway and the owners 28 andlor managers of Assi Super did not reprimand the Korean andlor Korean American workers whose

16 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 23 of 59 Page ID #:43

carts were filled only to this level.

(,:J

2

41. During his employment, defendants often directed Lara to return to work before hislMate-

0/::'.

:;~

3 mandated lunch break was over to assist other employees. By way of example, on or about Decemb.er

'.J

. (r"

4 23,2001, Lara took his lunch break around 5:00 P.M. Even though Lara was on his lunch break, a' ,

5 manager named Mr. Lee told Lara to go back to work. The Korean and/or Korean American workers

6 were rarely, if ever, disturbed during their lunch breaks.

7

42. In addition to having his lunch breaks cut short, Lara was not given state-mandated 10-

8 minute rest periods until October or November, 2001. This change was only instituted after the Latino

9 workers collectively began taking their state-mandated breaks despite having been instructed not to take

10 any such breaks. In retaliation for taking the 10-minute breaks, Lara's hours were cut. In contrast, the

II majority of Korean and/or Korean American workers had been permitted to take breaks at their leisure

12 long before October or November, 2001 and were not reprimanded for doing so.

13

43. According to Assi Super company policy, employees were awarded bonuses for the sales

14 in their departments. Lara, however, did not receive most of these bonuses that Korean and/or Korean

15 American workers in similar positions in his department received. Additionally, Lara had only accrued

16 approximately two days of vacation time after one year of working for Assi Super whereas Korean

17 and/or Korean American workers in similar positions had accrued approximately seven days of vacation

18 time after one year of work.

19

44. On or about January 8, 2002, Lara tiled discrimination charges with the Equal

20 Employment Opportunity Commission ("EEOC") against Assi Super.

21

45. In response to his discrimination charges, on September 17, 2002, the EEOC issued a

22 determination stating, "The preponderance of the evidence supports the Charging Party's allegations of

harassment and different terms and conditions of employment. The evidence further supports that
24 Hispanics, as a class, were subjected' to a hostile work environment due to their national origin. .
25 Therefore, I have concluded that the evidence is sufficient to establish a violation of Title VII of the
26 Civil Rights Act of 1964, as amended." Lara was issued a Notice or Right to Sue from the EEOC dated
27 October 28,2002 and a right-to-sue letter from the Department of Fair Employment and Housing 28 ("DFEH") dated January 8, 2002. (A copy of the charge, the determination letter, and the right-to-sue

17 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• ••

c

Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 24 of 59 Page ID #:44

letters from the EEOC and the DFEH are attached as Exhibit A.)

C::J

2 3

a

46. pattern of

Soon abusive,

after he tiled his charges on or about January 8, 2002, Defendants harassing, and retaliatory conduct, including but not limited to the

subjected following

Lara L~
.I'.~.i'j.:!~:~~~~",,

to

,J

4 conduct.

5

47. After Lara filed discrimination charges, on or about January 15,2002, despite the fact that

6 Lara was satisfactorily performing his duties of ordering merchandise, .lUll Bacek Lee stated that Lara, as

7 well as his Latino co-workers, could not perform the duty of ordering merchandise.

8

48. Ailer Lara tilled discrimination charges, in order to intimidate Lara, Daniel Rhee would

9 follow Lara around the market. standing near Lara for periods of lime and staring at him.

10

49. After Lara filed discrimination charges, Jun Baek Lee forced Lara to work part-time in

1I1I the frozen food section, which is very demanding physically because of the extremely low temperatures

12 in that section. Jun Bacek Lee 1lo0rrcced Lara to work in the frozen section despite the fact thaI Lara told lJun

13 Baeck Lee that his doctor told him that he could not work in that section because of his blood pressure.

14

50. After Lara filed discrimination charges, Assi Super owners and/or managers changed

1155 Lara's work schedule so that he no longer had Sundays oft~ instead scheduling him to be off on

16 Mondays. In contrast, a new Korean and/or Korean American worker who had worked only two or three

1177 months at Assi Super was given Sunday off, despite the policy that those with greater seniority were to

1188 be scheduled for more desirable days off, such as Sunday. When Lara asked to have Sundays off, he was

19 told either to take Mondays off or quit.

20

51. After Lara filed discrimination charges, in addition to changing his work schedule, Assi

2211 Super owners and/or managers changed Lara's break schedule. Before Lara lEiled the EEOC charges, he

2222 was allowed to take breaks with his Latino co-workers, hbut after tiling charges Ass!i Super owners and/or

2233 managers changed the Latino employees' schedules so that he was not allowed to take breaks with his

2244 Latino co-workers.

25

52. After Lara filed discrimination charges, Lara was also asked to sign a document stating,

26 among other things, that Assi Super could terthinate him at any time, which was much stricter than the

27 prior policy which required three warnings before termination.

28

53. After Lara filed discrimination. charges, Lara continued to be subjected to abusive verbal

18

.. SECOND AMENDED COMPLAI~T FOR DAMAGES AND INJUNCTIVE RELIEF

..

! • i' I

.'

,

... I "

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 25 of 59 Page ID #:45

reprimands. For example, on or about January 29, 2002, Jae Sik Kim, one of Lara's managers, yelled at

1::1

2 Lara in both Korean and English. including "you son of a bitch." for staying longer than his shift, cj~spite

,I~.

~?t

3 the fact that Jun Back Lee had ordered Lara to work late.

(,,J1'

.

In

4

54. On or about February 11.2002, and on or about August 6. 2002, Lara filed charges bf

5 discrimination with the EEOC alleging that Defendants engaged in the above-described unlawful

6 retaliation.

7

55. On October 15,2002, the EEOC issued a letter of determination, stating: "The

8 preponderance of the evidence supports the charging Party's claim that he was reassigned and subjected

9 to different terms and conditions of employment in retaliation for. filing the EEOC charge of

10 discrimination." The EEOC issued a Notice of Right to Sue dated October 28,2002, and the DFEH

II issued a right-to-sue letter dated February 11,2002. (A copy of the charge, the determination letter, and

12 the right-to-sue letters from the EEOC and the DFEH are attached as Exhibit B.)

13

Allegations Concerning Plaintiff Benito Gonzalez

14

56. On or about September, 1999, Plaintiff Gonzalez began working at Assi Super as a

15 Stocker in the Grocery Department. His duties consisted of stocking and ckaning the aisles to which he

16 was assigned, rotating the merchandise in those aisles, and preparing merchandise displays for those

17 aisles. He also had the responsibility of ordering merchandise for his aisles, which required extensive

18 knowledge about the shopping habits of the primarily Korean and/or Korean American clientele.

19 Further, his duties included stocking the warehouse, which required extensive knowledge about the

20 store's wholesale clientele.

21

57. During all of his employment at Assi Super, Gonzalez was subjected to different

22 treatment because of his national origin and/or race in promotions, working conditions, discipline, and

23 wages, and other such treatment. He was also subjected to a hosti Ie work environment. The harassment

24 and discrimination to which Gonzalez was subjected disrupted his emotional tranquility in the workplace

25 and interfered with and undermined his personal sense of welIl being.

26

58. While Gonzalez was employed at'Assi Super, there were no Latino managers. All of the

27 managers were Korean and/or Korean American. Gonzalez trained many of the Korean and/or Korean

28 American employees who became managers, including all of his managers except for his first manager.

19 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 26 of 59 Page ID #:46

For example, Gonzalez trained lae Sik Kim who, after being promoted to manager, told Gonzalez to

.

q

2 instruct his co-workers about their job responsibilities because lae Sik Kim did not know what their:!

.;::.

3 duties were. Gonzalez also trained a Korean andlor Korean American worker who recently moved:from
(.J

4 Korea, who was then promoted despite having no prior supermarket experience. The Korean andloi'·l

5 Korean American workers were promoted to manager were usually so promoted within two to six weeks

6 of starting at Assi Super.

7

59. Gonzalez was required to perform duties in addition to his regularly assigned duties.

8 Gonzalez was pressured to finish all of these duties within the time allotted for his regular duties.

9 Korean and/or Korean American workers in similar positions were rarely. if ever, given duties beyond

10 their regularly assigned duties.

II

60. During his employment at Assi Super, Gonzalez was regularly subject to verbal abuse by

12 . his managers. They directed profanities at Gonzalez, including "sekya" and '"pabo" (derogatory Korean

13 words) and "pendejo".(derogatory Spanish word). Gonzalez's Korean and/or Korean American co-

14 workers were rarely, if ever, mistreated in these ways. Additionally, the owners and/or managers of Assi

15 Super failed to censure, criticize, suspend, discharge, or otherwise discipline, and therefore condoned

16 and ratified. the acts of Gonzalez's Korean andlor Korean American co-workers, who would yell the

17 same profanities at Gonzalez and order him to assist them in their work despite having no supervisorial

18 authority over him.

19

61. Throughollt his employment, defendants often directed Gonzalez to return to work before

20 his state-mandated lunch break was over to assist other employees. Korean and/or Korean American

21 workers were rarely, if ever, disturbed during their lunch breaks.

22

62. Prior to Noyember, 200 I, Gonzalez was not pem1itted to take his state-mandated 10-

23 minute breaks. He was not allowed to smoke or drink coffee while at work, but his Korean andlor

24 Korean American co-workers could do so at their leisure. In the year 2000, Gonzalez and several of his

25 co-workers attempted to take the rest periods to which they were entitled. The general manager at that

26 time ordered them to return to work. When Gonzalez and the others explained that they were taking the 27 10-minute break to which they were entitled under the law, the general manager responded, "This store' 28 is Korean. The rules of the United States do not apply here. If you want to have a break, go home." The

20 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 27 of 59 Page ID #:47

general manager then fired Gonzalez and his co-workers. After returning to the store the next day,
CJ
2 Gonzalez and his co-workers were rehired. Gonzalez only got rest periods beginning in October oi:~
.1,..
3 Novembe~, 200 I. This change was only instituted after the Latino workers collectively began takin'~'"b~ heir
l.J
4 state-mandated breaks despite having been instructed not to take any such breaks. In contrast, the <A

5 majority of Korean and/or Korean American workers had been permitted to take breaks at their leisure

6 long before October or November, 200 I and were not reprimanded for doing so. In retaliation for taking

7 the 10-minute breaks beginning in Odober or November, 2001. Gonzalez's breaks were scheduled so

8 that he could not take breaks with his Latino co-workers, whereas his Korean and/or Korean American

9 co-workers' breaks we're not so scheduled.

10

63. Throughout his employment, Gonzalez had to use wheeled, nat bed carts to haul

II merchandise, which he was required to fill to eye level. If Gonzalez did not fill the cart to this level, the

12 owners and/or managers of Assi Super would reprimand him, order him to fill the cart, and yell "paJi

13 pali" ("hurry" in Korean). Generally. the Korean and/or Korean American workers loaded the carts only

14 halfway and the owners and/or managers of Assi Super did not reprimand the Korean and/or Korean

IS American workers whose carts were tilled only to this level.

16

64. On one occasion, Gonzalez obeyed a front manager's order to take a box filled with

17 merchandise to the manager. The manager complained that,Gonzalez had brought him a "disorganized"

18 box, and made disparaging comments to Gonzalez. Gonzalez said that it was not his job to retrieve

19

boxes.

Thereaf.ter,

the

manager

destroyed

Gonzalez's
,

time

card,

and

said.

"No

more

work

for

you."

The

20 manager then attempted to give Gonzalez a written warning.

21

65. On one occasion, Gonzalez was accosted by an assistant manager, Mr. Lee, for refusing

22 to stock expired products. This led to a confrontation in which Gonzalez was punched and bitten in the

23 face.

24

66. In January, 2002. anel' several of co-workers had filed discrimination charges with the

25 EEOC, Gonzalez spoke publicly during a press conference about the discrimination to which Latino

26 workers were subjected. In retaliation, on the day of the press conference, the grocery manager, Mr.

27 Kim, sent Gonzalez home early from work. The next day, Gonzalez learned that his work hours had

28 been reduced from between ten and thirteen hours per day to only seven hours per day.

21 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 28 of 59 Page ID #:48

67. On or about January 14,2002, Gonzalez filed discrimination and retaliation charges with

1)

2 the EEOC against Assi Super.

~~

)j~.

-7

3

68. In response to his discrimination charges, on September 17. 2002, the EEOC issucd':ii

(J

4 determination stating, "The preponderance of the evidence supports the Charging Party' S allegatio;l~ of

5 harassment, different terms and conditions of employment, and retaliation. The evidence further

6 supports that Hispanics, as a class, were subjected to a hostile work environment due to their national

7 origin. Therefore, I have concluded that the evidence is sufficient to establish'a v'iolatio"n of Title VII of

8 the Civil Rights Act of 1964, as amended." Gonzalez was issued a Notice of Right to Sue by the EEOC

9 dated October 28, 2002. and issued a right-lo-sue letter by the DFEH dawd January 14,2002. (A copy

10 of the charge, the determination letter, and the right-to-sue letters from the EEOC and the DFEH are

II attached as Exhibit C)

12

Allegations Concerning Plaintiff Aurelio Vasquez Martinez

13

69 . On or about January, 2000, Plaintiff Martinez was hired at Assi Super as a Stocker in the

. 14 frozen area of the Grocery Department. Martinez also worked in the i,'ont area as a Box Boy, and in the

15 Produce Department as a Stocker. He had years of experience working in supermarkets most of whose

16 customers were Korean and/or Korean American. His duties at Assi Super consisted of stocking and

17 cleaning aisles to which he was assigned, rotating the merchandise in those aisles, and stocking and

18 rotating merchandise in the freezer. He also was responsible for ordering merchandise for his aisles,

19 which required extensive knowledge about the shopping habits of the primarily Korean and/or Korean

20 American clientele. Further, he was assigned the duty of stocking the warehouse, which required

21 extensive knowledge about the wholesale clientele.

22

70. During all of his employment at Assi Super, Martinez was subjected to different

23 treatment because of his national origin and/or race in promotions. working conditions, discipline, and

24 wages, and other such treatment. He was also subjected to a hostile work environment. The harassment

25 and discrimination to which Martinez was subjected disrupted his emotional tranquility in the workplace

26 and interfered with and undermined his personal sense of well being.

27

71. During all of the period during which Martinez was employed by Assi Super, there were

28 no Latino supervisors. Martinez routinely trained· new Korean and/or Korean American employees how

22 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 29 of 59 Page ID #:49

to, for example, stock and order merchandise, who were then promoted to manager even though they had

2 less experience and were less qualified than Martinez. Martinez continued (0 (rain Koreans and/or.:0 .,~
3 Korean Americans after they became man~gers. Martinez asked Daniel Rhee why there were no L~.i_,lno
1"-:,
4 managers. Rhee responded that he could not make a Latino a manager because Assi Super was a

5 "Korean supermarket."

6

72. During a portion of the period during which Martinez was employed by Assi Super, he

7 worked in the frozen department, in which Latinos were almost exclusively assigned. This was one of

8 the most difficult areas in which to work in the store because it involved lifting extremely heavy boxes

9 of frozen products. Despite the sub-freezing temperatures, Assi Super refused to give Martinez and his

10 Latino co-workers adequate suits to protect them from the cold and only gave them one pair of gloves,

II which were not effective to protect against the freezing and moist temperatures.

12

73. During all or virtually all of the period during which Martinez was employed by Assi

13 Super, Assi Super owners and/or managers, including one of his managers, Moon Won Noh, directed

14 profanities at him including "sekya" and "pabo" (derogatory Korean words) and "pendejo" (derogatory

15 Spanish word). Noh and other supervisors, including but not limited to Jae Sik Kim and Jun Baek Lee,

16 routinely pressured Martinez to work faster, while not so pressuring similarly-situated Korean or Korean

17 American workers. Additionally, the owners and/or managers of Assi Super failed to censure, criticize,

18 suspend, discharge, or otherwise discipline, and therefore condoned and ratified, the acts of Martinez's

19 Korean and/or Korean American co-workers, who yelled profanities at Martinez and/or directed

20 Martinez to do certain work or to work faster despite having no authority to do so. By way of example,

21 on several occasions one Korean and/or Korean American co-worker, Gun Hee Nam, called Martinez,a

22 "Mexican Pendejo." Martinez complained to Mr. Lee, the Cashier Manager about Nam's conduct. Lee

23 failed to take any corrective action, instead telling Martinez to return to work. Martinez's Korean and/or

24 Korean American co-workers were rarely, if ever, mistreated in these ways.

25

74. While employed Assi Super, Martinez heard Daniel Rhee make generalizations about

26 Latino workers such as "Latinos don't work well" or "Latinos don't do things right."

27

75. On one occasion, Martinez was assaulted and/or battered by a Korean and/or Korean

28 American co-worker who yelled a number of expletives at Martinez, including but not limited to, "shit

23 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 30 of 59 Page ID #:50

. I man," "tucker," "son of a bitch," and "sekya" (Korean derogatory term). This co-worker also slapped
L'J
2 Martinez in his face. This Korean and/or Korean American worker was not disciplined for his actigps,

3 despite the fact that management was aware of his actions.

4

76. Throughout his employment, Martinez was required to carry heavier loads than his

5 Korean and/or Korean American co-workers. By way of example, Martinez was required to load flatbed

6 wheeled carts to haul merchandise, which he was required to fill to eye level. If Martinez did not fill the

7 cart to this level, the owners and/or managers of Assi Super would reprimand him and order him to fill

8 the cart. On several occasions Martinez was sent back by Daniel Rhee to load his cart to a higher level.

9 Generally, the Korean and/or Korean American workers loaded the carts only halfway and the owners

10 and/or managers of Assi Super did not reprimand the Korean and/or Korean American workers whose

II carts were filled only to this level.

12

77. During his employment at Assi Super, Martinez was directed to return to work before his

13 state-mandated lunch break was over in order to assist other employees. As an example, while on his

14 break, Assi Super owners and/or managers ordered Martinez to bag groceries, gather carts, and perform

15 other duties that were not regularly assigned to him. Korean and/or Korean American workers were

16 rarely, if ever, disturbed during their lunch breaks.

17

78. In addition to having his lunch breaks cut short, Martinez was not given state-mandated

18 rest periods until October or November, 2001. This change was only instituted after the Latino workers

19 collectively began taking their state-mandated breaks despite having been instructed not take any such

20 breaks. In contrast, the majority of Korean and/or Korean American workers had been permitted to take

21 breaks at their leisure long before October or November, 2001 anc! were not reprimanded for doing so.

22

79. Martinez was paid a lower hourly wage than his Korean and/or Korean American co-

23 workers who performed similar jobs. Additionally, Martinez had only accrued approximately two days

24 of vacation time after one year of work for Assi Super whereas similarly-situated Korean and/or Korean

25 American workers accrued approximately seven days of vacation time after one year of work.

26

80. According to Assi Super company policy, employees were awarded bonuses for the sales

27 in their departments. Martinez however, did not receive most of these bonuses that Korean and/or

28 Korean American workers in similar positions in his department received.

24 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 31 of 59 Page ID #:51

81. On or about January 7. 2002, Martinez filed discrimination charges with the-EEOC

L'J

2 against Assi Super.

LlJ ;;:1:

,,~

3

82. In response to his discrimination charges, on September 17,2002, the EEOC iissssuueedd~~;;,

Ui,,;

4 determination stating, 'The preponderance of the evidence supports the Charging Party's allegatiOliii'of

5 harassment and different terms and conditions of employment. The evidence further supports that

6 Hispanics, as a class, were subjected to a hostile work environment due to their national origin.

7 Therefore, I have concluded that the ~vidence is sufficient to establish a violation of Title VII of the

8 Civil Rights Act of 1964, as amended." Martinez was issu~d a Notice of Right to Sue by the EE0C

9 dated October 28, 2002, and right-to-sue letter by the DFEH dated January 7, 2002. (A copy of the

10 charge, the detem1ination letter, and the right-to-sue letters frOI11 the EEOC and the DFEH are attached

II as Exhibit D.)

12

83. Soon after filing charges. Defendants subjected Martinez to a pattern of abusive,

13 harassing, and retaliatory conduct. including but not limited to the following conduct.

14

84. After Martinez tikd discrimination charges, Martinez's hours were cut frol11 nine hours

15 of work per day to seven hours of 1V0rk per day.

16

85. Ailer Martinez tiled discrimination charges, Maliinez's scheduled day off was changed so

17 that he no longer had Monday off. Rather his day off changed weekly, alternating from Tuesday to

18 Wednesday to Thursday for a period of time.

19

Allegations Concerning Plaintiff Martin Alvarez Rodriguez

20

86. On or about July, 2000, Plaintiff Rodriguez was hired at Assi Super as a Kitchen Helper

21 in the Kitchen Department. His duties consisted of cutting various foods to assist the cooks, cleaning the

22 kitchen, and washing dishes.

23

87. During all of his employment at Assi Super, Rodriguez was subjected to different

24 treatment because of his national origin and/or race in promotions. working conditions, discipline, and

25 wages, and other such treatment. He was also subjected to a hostile work environment. The harassment

26 and discrimination to which Rodriguez was subjected disrupted his emotional tranquility in the

27 workplace and interfered with and undermined his personal sense of well being.

28

88. Myung Yun Yoo, the kitchen manager, continuously subjected Rodriguez to demeaning

25 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 32 of 59 Page ID #:52

and unfair treatment. Yoo yelled at Rodriguez, including regularly telling him to hurry up and finish his

CJ

2 work. She did not subject Korean and/or Korean American workers to this mistreatment.

LlJ

3

89. One ofthe Korean and/or Korean American assistant managers in the kitchen, Yang~.~~"~: oon

\,j

4 Kwon, nicknamed "Halmoni," routinely yelled at Rodriguez. Ih contrast, she rarely yelled at Kore~;

5 and/or Korean American workers. On at least two occasions, Halmoni hit Rodriguez on the back.

6 Rodriguez never saw Halmoni hit any of the Korean and/or Korean American workers. Halmoni also

7 directed derogatory Korean words at Rodriguez. Yoo knew about Halmoni's demeaning and offensive

8 treatment of Rodriguez. Nonetheless, Yoo and other owners and/or managers of Assi Super failed to

9 censure, criticize, suspend, discharge. or otherwise discipline, and therefore condoned and ratified, the

10 acts of Halmoni as well as other Korean and/or Korean American co-workers of Rodriguez who 11 subjected him to such treatment in the workplace.

12

90. Despite their similar duties, Korean and/or Korean American co-workers in similar

13 positions were given extra hours of work, with consequently higher earnings, than were assigned to

14 Rodriguez. Rodriguez was also required to do duties in addition to his regularly assigned duties, while

15 his Korean and/or Korean American co-workers with the same job were not required to do so. These

16 duties included washing dishes and cleaning. Korean and/or Korean Ame.rican workers in similar

17 positions were rarely, if ever, given duties beyond their regularly assigned duties.

18

91. At one time during his employment, Rodriguez was given a written warning by .Tun Baek ~

.

19 Lee for working an hour of ovcrtirile: even though Yoo, Rodriguez's manager, had asked him to work' .!

20 the additional hour. In contrast, Korean and/or Korean American employees worked hours beyond their

21 regular schedules but did not receive such warnings. The written warning was written in English and

22 never translated for Rodriguez, who is a monolingual Spanish speaker. Rodriguez was told to sign the

23 document. Rodriguez was never informed that he could provide a written response to the warning or

24 that not providing a response was a concession that he agreed with the manager who issued the warning.

25

92. Rodriguez was not given state-mandated 10-minute rest periods until October or

26 November, 2001. This change was only instituted after the Latino workers collectively began taking 27 their state-mandated breaks despite having been instructed not take any sllch breaks. In contrast, the
28 majority of Korean and/or Korean American workers had been permitted to take breaks at their leisure

26 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 33 of 59 Page ID #:53

long before October or November, 200 I and were not reprimanded for doing so. In retaliation for tak.ing

''''.
tJ;S 2 the 10-minute break after October or November, 2001, Rodriguez's work hours were reduced by

""~1;,

~~

3 hours.

,t:t;.

,...1

4

93. On or about January 8, 2002, Rodriguez filed discrimination charges with the EEOCC(

5 against Assi Super.

6

94. In response to his discrimination charges, on or about September 17,2002, the EEOC

7 issued a determination stating, "The preponderance of the evidence supports the Charging Party's

8 allegations of harassment and different terms and conditions of employment. The evidence further

9 supports that Hispanics, as a class, were subjected to a hostile work environment due to their national

10 origin. Therefore, I have concluded that the evidence is sufficient to establish a violation of Title VII of

II the Civil Rights Act of 1964, as amended." Rodriguez was issued a Notice of Right to Sue by the EEOC

12 dated October 28, 2002, and a right-to-sue letter by the DFEH dated January 8, 2002. (A copy of the

13 charge, the determination letter, and (he right-to-sue letters from the EEOC and the DFEH are attached

14 as Exhibit E.)

15

Allegations Concerning Plaintiff Santos Herrera

16

95. On or about November 16, 2001, Plaintiff Herrera was informed by a Latino worker that

17 there were job openings at Assi Super. He filled out an application that day. A Korean and/or Korean

18 American woman who worked in the office told Herrera that there were many openings, and told him to

19 return on or about November 18, 200 I. HClTera had thirteen years of experience as a stocker in a retail

20 business.

21

96. Herrera returned on or about November 18, 200 I, to meet with the same Korean and/or

22 Korean American woman in the office. At that time, she asked him to complete another application,

21 J

which was longer than the one he hac! filled out before. He filled out the application, and the Korean

24 and/or Korean American woman told him to return 011" or about November 25.2001 for an interview

25 with Daniel Rhee.

26

97. On or about November 25, 2001, Herrera met with Rhee. Rhee told Herrera that there

27 were many job openings and asked Herrera what work he wanted. Herrera responded that he wanted to

28 be a Stocker. Rhee told him that he would get back to Herrera later.

27 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 34 of 59 Page ID #:54

98. On or about December 18, 200 I, Rhee told Herrera that he would not offer him a job.

el

2 Assi Super never hired Herrera, despite his experience. Upon information and belief, Assi Super hii,¢d a

01"',

~~

3 number of Korean and/or Korean American workers during this time period.

,~

(.(1

4

99. On or about January 8, 2002, Herrera filed discrimination charges with the EEOC ag~inst

5 Assi Super.

6

100. In response to his discrimination charges, on or about September 17,2002, the EEOC

7 issued a determination stating, "The preponderance of the evidence supports that Hispanics as a class

8 were denied hire due to their national origin. In addition, the preponderance of the evidence showed a

9 record-keeping violation as Respondent failed to keep records as required by statute. Therefore, I have

10 concluded that the evidence is sufficient to establish a violation ofTitle VII of the Civil Rights Act of

II 1964, as amended." Herrera was issued a Notice of Right to Sue by the EEOC dated October 28, 2002,

12 and a right-to-sue by the DFEH dated January 8, 2002. (A copy of the charge, the determination letter,

13 and the right-to-sue letters from the EEOC and the DFEH are attached as Exhibit F.)

14 VII. FACTS OF THE CASE RELATING TO THE WAGE AND HOUR CAUSES OF ACTION

15

101. Plaintiffs are informed and believe and thereupon allege that, beginning in or around

16 October, 1998, each Defendant entered into a conspiracy and agreement with other Defendants and/or

17 subsequently joined said conspiracy and ratified the prior acts and conduct of the Defendants who had

.

.

18 previously entered into said conspiracy. Plaintiffs are currently unaware of when each Defendant joined

19 said ((ol1spiracy, but, on information and belief, allege that all Defendants have knowingly, maliciously,

20 and wilfully entered into said conspiracy which continues to this day. The purposes of said ongoing

21 conspiracy include, but are not limited to, misclassifying salaried, non-exempt employees as exempt

22 from the overtime provisions of the wage and hour laws of California, and refusing to provide state-

23 mandated rest periods to certain employees, including but not limited to the Latino employees and the

24 cashiers. All of Defendants' acts and failures to act alleged herein were perpetrated in furtherance of

25 said ongoing conspiracy.

26

102. Defendants operate, and at all times during the liability period. have operated a

27 supermarket with various departments, including but not limited to Produce, Korean Deli, Meat, Fish,

28 and Grocery.

28 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.IUNCTIVERELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 35 of 59 Page ID #:55

103. Defendants have employed salaried employees, such as named Misclassified Plaintiffs
r.:l
2 Ramos and Park, to perform the following job duties, including but not limited to stocking and clea[l}ng . ':;"
" .~
3 the aisles in the supermarket, rotating merchandise in those aisles, preparing displays, bagging grocJries,
I,;)'
4 preparing food, and receiving and unloading merchandise. Plaintiffs are informed and believe, and';

5 based thereon allege, that Defendant cUITently employ approximately forty (40) employees who are

6 salaried who perform such job duties.

7

104. Assi Super employs workers who are paid hourly and receive overtime compensation

8 and, yet, perform the same duties as Misclassified Plaintiffs.

9

105. Misclassified Plaintiffs are covered by IWC Wage Order No. 5-89 (Title 8 Cal. Code of

10 Reg. § 11050). Until January 1, 199R, Section 3 of these Wage Order required employers to pay

11 employees one-and-one-half their normal hourly rate for hours worked in excess of eight (8) per day and

12 in excess oftwelve (12) per day and eight (8) on the seventh day worked in a work week. Effective

13 January I, 1998, Wage Order No. 5-89 was renumbered 5-98 and this Wage Order was amended to

14 exclude the requirement of overtime premiums for hours worked in excess of eight (8) per day and

15 double-time for hours worked in excess of eight on the seventh day in a work week. Effective January 1,

16 2000, and continuing to the present, Wage Order 5-98 is null and void and Wage Order 5-89 is reinstated

17 in compliance with the provisions of Labor Code Section 510 which directs that employers are to pay

18 employees one-and-one-half times their normal hourly rate for hours worked in excess of eight (8) per

19 day and in excess of forty (40) per week, and at twice the normal hourly rate for hours worked in excess

20 of twelve (12) per day and eight (8) on the seventh day worked on a work week.

21

106. Misclassified Plaintiffs are properly classified as "non-exempt" employees. They do not

22 engage in work which is primarily "intellectual," managerial, or "creative," and which "requires the

23 exercise of discretion and independent judgment," within the meaning of those terms as set out in Wage

24 Order No.5. The job duties of Misclassified Plaintiffs do not entail significant discretionary decision

25 making or supervisory duties; they do not hire, select, supervise, discipline, evaluate, or terminate other

26 employees. Consequently, Misclassified Plaintiffs do not fall within the "administrative, executive or

27 professional" exemptions from the overtime requirements.

28

107. Misclassified Plaintiffs regularly worked in excess of40 hours per week and/or eight (8)

29 SECOND AMENDED COMPLAINT ·FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 36 of 59 Page ID #:56

hours per day. During the liability period, Misclassified Plaintiffs were paid a salary On a biweekly
CJ
2 basis, but were not paid any addi tional compensation for their work in excess offorty (40) hours P~E
J:;'
3 week and/or eight (8) hours per day. On information and belief, plaintiffs allege that Defendants' ',.J~ ,/'"
4 practice of not paying overtime compensation to the members of the class that Misclassified Plaintiffs

5 seek to represent is ongoing.

6

108. Defendants are aware of and require the long hours worked by these salaried, non-exempt

7 workers.

8

109. Defendants' denial of compensation for overtime work due to Misclassified Plaintiffs was

9 willful and deliberate.

10

110. Defendants also willfully failed to timely pay the overtime wages due Misclassified

II Plaintiffs when each such employee left Defendants' employ.

12

III. Defendants have made it difficult to account with precision for the unpaid overtime

13 worked by the Misclassitied Plaintiffs during the liability period. because they did not make, keep, and

J4 preserve records of all hours worked by such employees as required for non-exempt employees by Labor

IS Code section I I74(d), and the section 7 of the subject Wage Order. Defendants' failure to retain

16 records of hours worked by Misclassitied Plaintiffs was willful and deliberate, ilnd designed to serve its

17 policy of unlawfully denying overtime compensation.

18

112. Rest Period Plaintiffs, including but not limited to Latino workers and cashiers, are

19 covered by California Labor Code § 226.7 and Section 12 ofIWC Wage Order No.5, which require paid

20 rest periods at the rate of ten (10) minutes per four (4) hours of work or major fraction thereof.

21

113. Pursuant to Labor Code § 226.7, an employer who fails to provide Ull employee with a

22 rest period must pay the employee one additional hour of pay at the employee's regular rate of pay for

23 each work day that the rest period is not provided.

24

114. Defendants required Rest Period Plaintiffs to work without rest periods in

25 violation of California Labor Code § 226.7 and Section 12 ofIWC Wage Order No.5. Rest Period

26 Plaintiffs generally worked over eight (8) hours per day, aceruing'ilt least two (2) rest periods per day.

27

115. Rest Period Plaintiffs were required to work without taking their state-mandated rest

28 periods despite employees' complaims that they were entitled to such breaks. In the year 2000, nilmed

30 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.JUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 37 of 59 Page ID #:57

Rest Period Plaintiff Gonzalez. along with several coworkers, attempted to take rest periods to which

C!

2 they were entitled. Defendants willfully refused to allow Rest Period Plaintiffs to take rest breaks.i:t!

.. :1,

3

116, [n October or November of2001, Latino workers collectively began taking their staf~-

L.J

4 mandated rest breaks despite being instructed to not to take any such breaks, It was only at this tirrl:e; that

5 the Latino workers finally began to receive their state-mandated rest periods. Defendants willfully

6 continued to refuse to allow other employees to take their state-mandated rest periods.

7

VIII. CLAIMS FOR RELIEF

8

FIRST CAUSE OF ACTION

9

Harassment on the Basis of National Origin and/or Race

10

[California Government Code § 12940 et seq,]

11

(Brought by Discrimination Plaintiffs Against All Defendants)

12

117, Plaintit1S restate, reallege and incorporate by reference paragraphs I through 116,

13 inclusive, as though fully set forth herein.

14

'118, [n perpetrating the above-described conduct, Defendants and/or their managers, agents or

15 employees engaged in a pattern and practice of unlawful hara.ss, ment 011 the basis of national origin
16 and/or race in violation of California Fair Employment and Housing Act ("FEHA"), including but not

17 limited to Government Code § 129400). Defendants andlor their managers, agents or employees

18 harassed Discrimination Plaintiffs on the basis of national origin and/or race, and/or failed to take

19 immediate and appropriate corrective action to prevent such harassment trom occurring. The harassment

20 was sufficiently pervasive and severe as to alter the conditions of employment and to create a hostile or

21 abusive working environment.

22

119. As a direct and proximate result of Defendants' unlawful conduct, each Discrimination

23 Plaintiff has suffered and continues to suffer damages, including lost pay and other benefits, loss of

24 promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount to be

25 proven at trial.

26

120, The un'lawful conduct of Defendants, and each ofthem, as alleged herein, was malicious,

27 fraudulent, despicable, and/or oppressive in that Defendants, and each of them, acted with full

28 knowledge of the consequences to each Discrimination Plaintiff as alleged herein, with the intent to

SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

~---------
•• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 38 of 59 Page ID #:58

harass each Discrimination PlaintifT on the basis of national origin, and/or with a willful, conscious,

L.,,J....

2 wanton, and reckless disregard for each Discrimination Plaintiff s rights and for the deleterious ~y

..I.:~ :"

3 consequences and hardship resulting to each Discrimination Plaintifffrom the conduct of Defendanl~.

,

I.J

4 Consequently, each Discrimination Plaintiff is entitled to exemplary and punitive damages in an an\'6unt

5 to be proven,

,

6

121. Defendants' conduct, as described herein above, constitutes an ongoing and continuous

7 violation of FEHA, and unless they are restrained from doing so, Defendants will continue to violate

8 FEHA. Defendants' conduct has injured Discrimination Plaintiffs and will continue to cause irreparable

9 injury to Discrimination Plaintiffs, who have no adequate remedy at law, Relief by damages alone for

10 Defendants' continuing violation of Discrimination Plaintiffs' statutory rights would require a

II mUltiplicity of suits. Consequently, Discrimination Plaintiffs are entitled to injunctive relief designed to

12 place them in the positions they would have held in the absence of Delendants' unlawful conduct and to

13 bar further harassment against them,

14

SECOND CAUSE OF ACTION

15

Discrimination on the Basis of National Origin and/or Race

16

[California Government Code § 17940 et seq.)

17

(Brought by Discrimination Plaintiffs Against Assi Super)

18

122. Plaintiffs restate, reallege and incorporate by reterence paragraphs 1 through 121,

19 inclusive, as though fully set t(lrth herein,

20

123. In perpetrating the above-described conduct, Defendants and/or their managers, agents or

21 employees engaged in a pattern and practice of unlawful discrimination on the basis of national origin

22 and/or race in violation of FEHA, including but not limited to Government Code § 12940(a).

23 Defendants and/or their managers, agents or employees discriminated against Discrimination Plaintiffs

24 in the terms, conditions, and/or privileges of employment on the basis of national origin and/or race,

25 and/or failed to take immediate and appropriate corrective action to prevent such discrimination fr0111

26 occurring,

27

124. As a direct and proximate result of Defendants' unlawflll conduct, each Discrimination

28 Plaintiff has suffered and continues to sutTer damages, including lost pay and other benefits, loss of

SECOND AMENDED COMPLAINT FOR DAMAG ES ANI) INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 39 of 59 Page ID #:59

promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount to be

2 proven at trial. ;;~

3

125. The unlawful conduct of Defendants, and each of them, as alleged herein, was malid1us,

I,,''

4 fraudulent, despicable, and/or oppressive' in that Defendants, and each of them, acted with full (.';;

5 knowledge of the consequences to each Discrimination Plaintiff as alleged herein, with the intent to

6 discriminate against each Discrimination Plaintiff on the basis of national origin, and/or with a willful,

7 conscious, wanton, and reckless disregard for each Discrimination Plaintiff s rights and for the

8 deleterious consequences and hardship resulting to each Discrimimitiol1 Plaintiff ii'om the conduct of

9 Defendants. Consequently, each Discrimination Plaintiff is entitled to exemplary and punitive damages

10 in an amount to be proven .

. II

126. Defendants' conduct, as described herein above, constitutes an ongoing and continuous

12 violation ofFEHA, and unless they are restrained from doing so. Defendants will continue to violate

13 FEHA. Defendants' conduct has injured Discrimination Plaintiffs and will continue to cause irreparable

14 injury to Discrimination PlaintitTs, who have no adequate remedy at law. Relief by damages alone for

15 Defendants' continuing violation of Discrimination Plaintiffs' statutory rights would require a

16 multiplicity of suits. Consequently, Discrimination Plaintiffs are entitled to injunctive relief designed to

17 place them in the positions they would have held in the absence of Defendants' unlawful conduct and to

18 bar further discrimination against them.

19

THIRD CAUSE OF ACTION

20

Retaliation for Opposing Harassment and Discrimination

21

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

22

(Brought by Discrimination Plaintiffs Against All Defendants)

23

127. Plaintitfs restate, reallege and incorporate by reference paragraphs 1 through 126,

24 inclusive as though fully set forth herein.

25

128. Through their conduct as alleged herein, Defendants retaliated against Discrimination

26 Plaintiffs in violation of California Government Code § 12940(h), for, among other things, complaining

27 about and/or resisting and/or making allegations about and/or filing and/or attempting to file claims

28 concerning the harassment and discrimination to which Discrimination Plaintiffs were subjected.

33

SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

...

",.

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 40 of 59 Page ID #:60

129. Discrimination Plaintiffs' managers knew or should have known of the retaliatory

CJ

2 conduct and, in fact, participated in the retaliation. Discrimination Plaintiffs' managers did not takejany

,.,~:.,

~;~

3 measures to prevent the retaliatory conduct from occurring.

,~

tJ

4

'$r 130. Further, Defendants conspired to retaliate against Discrimination Plaintiffs because

5 their opposition to Defendants' discriminatory practices and acted in tllrtherance of this conspiracy by

6 subjecting them to different terms and conditions of employment and/Dr creating an abusive, hostile,

7 intimidating and threatening work environment, as alleged herein.

8

131. As a direct and proximate result of Defendants' unlawful conduct, each Discrimination

9 Plaintiff has suffered and continues to suffer damages, including lost pay and other benefits, loss of

10 promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount to be

II proven at trial.

12

132. The unlawful conduct of Defendants, and each of them. as alleged herein, was malicious,

13 fraudulent, despicable, and/or oppressive in that Defendants, and each of them, acted with full

14 knowledge of the consequences to Discrimination Plaintiffs as alleged herein, with the intent to

15 discriminate, harass andlor retaliate against Discrimination Plaintiffs, andlor with a willful, conscious,

16 wanton, and reckless disregard for Discrimination Plaintiffs' rights and for the deleterious consequences

17 and cruel and unjust hardship resulting to Discrimination Plaintiffs Ii-om the conduct of Defendants.

18 Consequently, Discrimination Plainti ffs are entitled to exemplary und punitive damages in an amount to

19 be proven against each Defendant.

20

FOURTH CAUSE OF ACTION

21

Failure to Prevent Harassment and Discrimination

22

[Violation of California Government Code § 12940Ckl]

23

(Brought by Discrimination Plaintiffs Against Assi Super)

24

133. Plaintiffs restate, reallege and incorporate by reference paragraphs 1 through 132,

25 inclusive, as though fully set forth herein.

26

134. In violation of California Government Code § 12940(k), Defendants andlor their

27 managers, agents or employees failed to tuke all reas0I1abie steps necessary to prevent harassment and

28 discrimination on the basis of national origin andlor race from occurring. In perpetrating the above-

SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 41 of 59 Page ID #:61

described ·'conduct, defendants engaged in a pattern, practice, policy and/or custom of unlawful
c; 2 harassment and/or discrimination, and retaliation for complaints about harassment and discriminatiQP.
.::i, ~~~.
3 In violation of California Government Code §12940(i), defendants and/or their agents/lemployees failed u
4 to take all reasonable steps necessary to prevent such discrimination, harassment and/or retaliation 'Yriioomm

5 occurring. Thc:se acts and failures to act include but are not limited to the ftollowing:

6

(A) Defendants had no policies and/or had ineffective policies, practices, and/or procedures

7 regarding defendants' obligatiOJis to provide a workplace free frrool1m1 discrimination andl/or harassment on

8 the basis of national origin and/or race and retaliation for having made a complaint of regarding such

9 harassment andlor discrimination;

10

(B) Defendants had no policies and/or had ineffective policies, practices and/or procedures

11 regarding the handling of complaints of such harassment and/or discrimination, and/or retaliation for

12 having made such a complaint of harassment,. retaliation, and/or discrimination;

13

(C) Defendants failed to adopt and/or enforce reasonable and effective practices, policies

14 andl/or procedures regarding the hundling of.,complaints of harassment, discrimination, andlor retaliation

15 for having made a complaint of harassment, retaliation, and/or discrimination:

16

(0) Defendants failed to take any and/lor took inappropriate action to investigate complaints

17 by Discrimination Plaintiffs and/or others of harassment, retaliation, and/or discrimination; and/or

18

(E) Defendants failked to implement whatever policies, practices and/lor procedures regarding

19 the foregoing were in existence in an effective manner, or at all.

20

135. During the entire relevant time period, Defendants failed to make an adequate and/or any

21 response to this pattern and practice and thereby established a policy, custom, practice, and/or usage

22 which condoned, encouraged, tolerated, sanctioned, ratified, approved of, and/or acquiesced in

23 harassment. retaliation, and/or discrimination on the basis of national origin and/or race.

24

136. Upon infiormation and belief, during the entire relevant time period, defendants failed to

25 provide any and/or adequate training, education, andlor information to their personnel and most

26 particularly to management and supervisory personnel with regard to policies and procedures regarding

27 harassment discrimination on the basis of national origin and/or race, and/or retaliation for having

28 complained of harassment, retaliation and/lor discrimination.

35
SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 42 of 59 Page ID #:62

137. As a direct and proximate result of Defendants' unlawful actions, Discrimination
L'~!
2 Plaintiffs have suffered and continue to suffer damages, including lost pay and other benefits, loss Q~
"I:S,
3 promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount ~ be
i.j
4 proven at triaL

5

138. Defendants' conduct, liS described herein above, constitutes an ongoing and continuous

6 violation ofthc FEHA, and unless they arc restrained from doing so, defendants will continue to violate

7 said Act. Defendants' conduct has injured plaintitfs and other employ~es and will continue to cause

8 irreparable injury to plaintifTs amI other employees, who have no adequate remedy at law. Reliefby

9 damages alone for Defendants' continuing violation of these statutory rights would require a multiplicity

10' of suits. Consequently, Discrimination Plaintiffs are entitled to injunctive relief requiring defendants to

II institute effective policies and procedures and to take other actions designed to prevent harassment,

12 retaliation and discrimination from occurring.

13

FIFTH CAUSE OF ACTION

14

Failure to Hire

15

[Violation of California Government Code § 12?40 et seq.)

16

(Brought by Applicant Plaintiff Against Assi Super)

17

139. Plaintiffs restate, reallegt: and incorporate by reference paragraphs 1 through 138,

18 inclusive, as though fully set forth herein.

19

140. In perpetrating the above-described conduct, Defendants and/or their managers, agents or

20 employees engaged in a pattern and practice of unlawful discrimination on the basis of national origin

21 and/or race in violation of the FEHA. Government Code § 12940(a). Defendants and/or their managers,

22 agents or employees failed to hire Applicant Plaintiff on the basis of national origin and/or race, and/or

23 failed to take immediate and appropriate corrective action to prevent such discrimination from occurring.

24 Defendants' conduct as alleged herein constitutes unlawful discrimination on the basis of each Applicant

25 Plaintiff s national origin and/or race.

26

141. As a direct and proximate result of Defendants' unlawful conduct, each Applicant

27 Plaintiff has suffered and continues to suffer damages, including lost pay and other benefits, loss of

28 promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount to be

36 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
I
I '

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 43 of 59 Page ID #:63

proven at trial.

\~:'r

2

142. The unlawful conduct of Defendants, and each of them, as alleged herein, was maliCi6us,

II::!;

,

. ~?~

3 fraudulent, despicable, and/or oppressive in that Defendants, and each of them, acted with full {"Jt

4 knowledge of the consequences to each Applicant Plaintiff as alleged herein, with the intent to

5 discriminat\: each Applicant Plaintiff on the basis of national origin and/or race, and/or with a willful,

6 conscious, wanton, and reckless disregard for each Applicant Plaintiffs rights and for the deleterious

7 consequences and hardship resulting to each Applicant Plaintiff from the conduct of Defendants.

8 Consequently, each Applicant Plaintiff is entitled to exemplary and punitive damages in an amount to be

9 proven.

10

143. Defendants' conduct, as described herein above, constitutes an ongoing and continuous

11 violation of FEHA, and unless they are restrained from doing so, Defendants will continue to violate

12 FEHA. Defendants' conduct has injured Applicant Plaintiff and will continue to cause irreparable injury

\3 to Applicant Plaintiff, who have no adequate remedy at law. Reliefby damages alone for Defendants'

14 continuing violation of Applicant Plaintiffs statutory rights would require a mUltiplicity of suits.

15 Consequently, Applicant Plaintiff is entitled to injunctive relief designed to place them in the positions

16 they would have held in the absence of Defendants' unlawful conduct and to bar further harassment

17 against them.

18

SIXTH CAUSE OF ACTION

19

Failure to Pay Overtime

20

[Violation of Cal. Labor Code §§ 200-03, 510, 1994; lWC Wage Order No.5]

21

(Brought by Misc1assified Plaintiffs against All Defendants)

22

144. Plaintiffs restate, reallege and incorporate by reference paragraphs 1 through 143, as if

23 they were set forth again herein.

24

145. At all times relevant herein, lWC Wage Order No.5 applied to the wages, hours, and

25 working conditions of Misc1assified Plaintiffs because they are employed in the "Public Housekeeping

26 Industry." By definition, the Public Housekeeping Industry includes any industry, business, or

27 establishment that provides meals, including but not limited to "establishments which prepare food for

28 consumption on or off the premises."

37 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

- - - - -- - - -- - -- - --- - - - - - -
• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 44 of 59

Page ID #:64

146, At all times relevant herein, Labor Code § 1I94(a) provided that an employee who had

{:J

2 not been paid overtime compensation could recover the unpaid balance of the full amount of overtiii{e

>::~.,

'3 wages due, including interest thereon, together with reasonable attorneys' fees and costs of suit.

~?:
,{

Ci

4

147. Under California Labor Code § 510 and IWC Wage Order No.5, Defendants were ~~'d

5 are obligated to compensate Misclassified Plaintiffs at an overtime premium jar all hours worked in

6 excess of eight (8) hours in one day and/or in excess of forty (40) hours in a work week. Defendants

7 were required 10 pay Misclassified Plaintiffs overtime compensation, which is calculated at one and one8 half (1 Yz) times the regular rate of pay for hours worked in excess of eight (8) hours per day andlor forty 9 (40) hours per week; and, for the first eight (8) hours on the seventh consecutive day of any work week,

10 with double time after twelve (12) hours in any single workday and/or atter eight (8) hours on the

11 seventh consecutive day of any work week.

12

148. Sections 201 and 202 of the Labor Code require Defendants to pay its employees

13 all wages due within 72 hours of termination of employment. Section 203 of the Labor Code provides
a 14 that ifan employer willfully fails to timely pay such wages the employer must, as penalty, continue to

15 pay the subject employees' wages until the back wages are paid in full or an action is commenced. The

16 penalty cannot exceed 30 days of wages. Many of the Misclassitied Plaintiffs were not paid all wages

17 owed to them at the time of their termination, entitling them to recover waiting time penalties equal to

18 thirty days' pay pursuant to Labor Code § 203.

19

149, Pursuant to Labor Code ~ 558, if an employer fails to pay all overtime compensation due,

20 an employee may recover $50.00 from the employer for the initial pay period in which an employee is

21 underpaid in addition to the amount which is sufficient to recover unpaid wages, and $100.00 per pay

22 period for each subsequent violation.

23

150. Misclassified Plaintiffs were required to work in excess of forty (40) hours per week

24 andlor eight (8) hours in one work day, but were not paid for all such overtime work as required by

25 California law.

26

151. By failing to pay all overtime compensation due, whether through the failure to

27 provide any overtime pay, the denial of premimll pay for all overtime hours actually worked, andlor the
28 failure to calculate and pay overtime premiums according to law, and by failing to pay all wages when

SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 45 of 59 Page ID #:65

due to Misclassified Plaintiffs, Defendants willfully, knowingly and/or recklessly violated California

t'~
2 wage and hour laws, which require overtime compensation be provided to non,excmpt employees ~q);h

"'::.., ""7

3 as Misclassified Plaintiffs.

:)'

Ij

4

152. As a result of Defendants' policy and practice of withholding overtime compensation'and

5 failing to pay all wages owed when due, Misclassified Plaintiffs have been damaged in that· they have

6 not received wages due to them pursuant to California wage and hour laws.

7

153. Defendants have made it difficult to account with precision for the unpaid overtime

8 worked by the Misclassified Plaintiffs during the liability period, because they did not make, keep, and

9 preserve the recorded hours worked by such employees as required for non-exempt employees by 10 California Labor Code ~ I 174(d) and applicable wage orders. Defendants' failure to retain reeords of

1I hours worked by the Misclassitied Plaintiffs was willful and deliberate, and designed to serve its policy

12 of unlawfully denying overtime compensation to such persons.

13

154. If Defendants' action were not willful, Defendants knew or reasonably should have

14 known that the conduct described herein would and did proximately result in damage to Misclassified

15 Plaintiffs. At all relevant times, Defendants and/or their managers, agents, and/or employees had the

16 power, ability, authority, and duty to stop engaging in the conduct described herein and/or to intervene to

17 prevent or prohibit said conduct, including to act so as to ensure compliance with state wage and hour

18 laws. Despite said knowledge, power, and duty, Defendants and/or their managers, agents, and/or

19 employees negligently failed to act so as to stop engaging in the conduct described herein and lor to

20 prevent or to prohibit such conduct or to otherwise protect Misclassificd Plaintiffs. To the extent that

21 said negligent conduct was perpetrated by certain Defendants, the remaining Defendants confirmed and

22 ratified said conduct with the knowledge that each Discrimination Plaintiffs work would not be

23 compensated in compliance with state laws, and with a wanton and reckless disregard for the deleterious

24 consequences to each Misclassified Plaintiffs. As a direct and proximate result of Defendants' unlawful

25 conduct, the Misc1assitied Plaintiffs have been deprived and continue to be deprived of overtime

26 compensation in amounts to be determined at trial.

27

155. As a result of the unlawful acts of Defendants, the Misclassified Plaintiffs have been

28 deprived and continue to be deprived of overtime compensation in amounts to be determined at trial, and

39 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 46 of 59 Page ID #:66

are entitled to recovery of sllch amounts, attorneys' fees, costs, statutory penalties, and other

I'""J",

2 compensation pursuant to Califomia Labor Codes §§ 203, 218.5, 226, 558, and 1194.

lU

3

SEVENTH CAUSE OF ACTION

4

Failure to Provide Rest Periods

5

IViolation of California Labor Code § 226.7; IWC Wage Order No.5)

6

(Brought By Rest Period Plaintiffs Against All Defendants)

7

J 56. Plaintiffs restate, reallege and incorporate by reference paragraphs I through 155, as if

8 they were set forth again herein.

9

J57. Pursuant to Califomia Labor Code § 226.7 and IWC Wage Order No.5, Defendants were

J0 required to authorize and permit employees such as Rest Period Plaintitls to take rest periods, based

1I1I upon the total hours worked at a rate of ten (10) minutes net rest time per for (4) hours or major fraction

12 thereof, with no deduction from wages.

13

158. Defendants willfully failed and refused to authorize and permit Rest Period Plaintiffs to

14 take rest periods, in violations of Califomia Labor Code § 226.7 and lWC Wage Order No.5.

15

1J 59.

[fDefendants'
, "

action

were

not

will,ful,

Defendants

knew

or

reasonably

should

have

16 known that the conduct described herein would and did proximately result in damage to Rest Period

17 Plaintiffs. At all relevant times, Defendants and/or their managers, agents, and/lor employees had the

18 power, ability, authority, and duty to stop engaging in the conduct described herein andl/or to intervene to

19 prevent or prohibit said conduct, including to act so as to ensure compliance with state wage and hour

20 laws. Despite said knowledge, power, and duty, Defendants and/lor their managers, agents, and/or

21 employees negligently failed to act so as to stop engaging in the conditct described herein and/or to

22 prevent or to prohibit such conduct or to otherwise protect Rest Period Plaintiffs. To the extent that said

23 negligent conduct was perpetrated by certain Defendants, the remaining Defendants confirmed and

24 ratified said conduct with the knowledge that each Rest Period Plaintiffs' work would not be

25 compensated in compliance with state law, and with a wanton and reckless disregard for the deleterious

26 consequences to each Rest Period Plaintiff. As a direct and proximate result of Defendants' unlawful

27 conduct, the Rest Period Plaintiffs have been deprived of paid rest periods and are entitled to

28 compensation and penalties in amounts to be determined at trial. .'

40 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 47 of 59 Page ID #:67

160. As a proximate result of Defendants' violation of Califurnia Labor Code § 226.7 and IWC

1';:1

2 Wage Order No.5, Rest Period Plaintiffs have each suffered damages in amounts to be proven at tri!!1

,

JI~;

3 and are entitled to recovery of compensation for the rest period time they worked at overtime rates,;~

I..:r

4 attorneys' fees, costs, statutory penalties, and other compens\ltion.

5

161. Pursuant to California Labor Code §"226.7 and lWC Wage Order No.5, Defendants are

6 required to pay each Rest Period Plaintiff a penalty of one hour of pay at the regular rate of

. 7 compensation for each Rest Period Plaintiff for each. work day that the rest period was not provided.

8

162. Under Labor Code § 558, Rest Period Plaintiffs are entitled to recover from Defendants

9 $50.00 for the initial pay period in which each Rest Period Plaintiff was underpaid in addition to the

10 amount which is sufficient to recover unpaid wages, and $100.00 per pay period per Rest Period Plaintiff

11 for each subsequent violation.

12

163. Section 203 of the Labor Code provides that if an employer willfully fails to timely pay

13 such wages the employer must, as a penalty, continue to pay the subiect employees' wages until the back

14 wages are paid in full or an action is commenced. The penalty cannot exceed 30 days of wages. Many

15 of the Rest Period Plaintiffs were not paid all wages owed to them at the time of their termination,

16 entitling them to recover waiting time penalties equal to thirty days' pay pursuant to Labor Code § 203.

17

EIGHTH CAUSE OF ACTION

18

Breach of Contract

19

(Brought by Misclassified Plaintiffs Against Ass! Super)

20

164. Plaintiffs restate, reallege and incorporate by reference paragraphs 1 through 163, as if

21 they were set forth again herein.

22

165. At all relevant times herein a contract existed between Misclassified Plaintiffs and

23 Defendants that was partly oral and/or partly implied. The terms of the contract upon which

24 Misclassified Plaintiffs relied included the implied agreement that they would be paid wages in

25 accordance with all applicable laws, rules, and regulations promulgated by the State of California.

26

166. Defendants, by their actions and statements set torth abovc, have breached the terms,

27 covenants, conditions and agreements of the above-referenced contract.

28

167. In doing the acts alleged above and below, Defendants have also breached the implied

41 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 48 of 59 Page ID #:68

covenant of good faith and fair dealing found in the subject contracts. This br~ach of the implied

2 covenant of good faith and fair dealing includes the frauds, concealment, and negligent

3 misrepresentations set forth above. To this day Defendants continue their breaches of contracts.

4

168. As a direct and legal result of Defendants' breach of contract, Misclassified Plaintiffs"';

5 have been damaged in amounts to be proven at trial.

6

169. Misclassitied Plaintiffs have been required to hring this action and in doing so will incur

7 reasonable attorney's tees and costs in an amount not yet ascertainable by Misclassified Plaintiffs in an

8 amount to be proven at or following trial ofthis matter.

9

NINTH CAUSE OF ACTION

10

Fraud

II

(Brought by Misclassified Plaintiffs Against Assi Super)

12

170. Plaintiffs restate, reallege and incorporate by reference paragraphs I through 169, as if

13 they were set forth again herein.

14

171. During the relevant time period, Defendants categorized Misclassitied Plaintiffs as

15 exempt from overtime compensation regardless of what specific duties Misclassified Plaintiffs

16 performed. In doing so, Defendants intentionally, and/or with reckless disregard, committed fraud upon ,
17 Misclassified PlaintitIs by developing and executing a systematic plan by which Defendants, including

18 through their officers, managers, and others, represented to Misclassitied Plaintiffs, through practices

19 and policies, that Misclassitied Plaintiffs were not entitled to overtime compensation because they were

20 exempt employees. These representations were false, and Defendants knew it. Defendants failed to

2]' disclose to Misclassified Plaintiffs that their positions did not meet the legal requirements for exempt

22 status.

23

172. In actual and justifiable reliance on these statements, Misclassified Plaintiffs continued to

24 work overtime without additional compensation.

25

173. As a direct and legal result of Defendants' actions, Misclassitied Plaintiffs have been

26 damaged in amounts to be proven at trial.

27

174. Defendants' conduct, pursuant to corporate practices and policies that Defendants knew

28 violated applicable law, was wi II ful, maliciolls, oppressive, and done with conscious disregard of

SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 49 of 59 Page ID #:69

Misclassified Plaintiffs' rights. entitling Misclassified Plaintiffs to punitive damages.

2

TENTH CAUSE OF ACTION

3

Negligent Misrepresentation

4

(Brought by Misclassified Plaintiffs Against Assi Super)

5

175...,PPlalaiinnttiiffs restate, reallege and incorporate by reference paragraphs 1through 174, as if

6 they were set forth again herein.

7

176. During the relevant time period, Defendants categorized Misclassilied Plaintiffs as

8 exempt from overtime compensation regardless of what speciflic duties Misclassified Plaintiffs

9 performed. In doing so, Defendants, including through their officers, managers, and others, represented

10 to Misc1laasssified Plaintiffs, through practices and policies, that Misclassified Plaintiffs were not entitled

II to overtime compensation because they were exempt employees. These representations were false, and

12 Defendants made the representations without any reasonable ground for believing it to be true.

13 Defendants made the representations with the intent to induce Misclassified Plaintiffs to rely on them.

14 Defendants failed to disclose to Misclassified Plaintiffs that their positions did not meet the legal

1IS5 requirements for exempt status.

16

177. Misclassified Plaintiffs were unaware ofthe falsity of Defendants' representation.

17

178. In actual and justifiable reliance on these statements: Misclassified Plaintiffs continued to

18 work overtime without additional compensation.

19

179. As a direct and legal result of Defendants: actions, Misclassified Plaintiffs have been

20 damaged in amounts to be proven at trial.

21

ELEYENTH CAUSE OF ACTION

22

Conversion

23

(Brought by Misclassified Plaintiffs Against Assi Super)

24

1ISO. Plaintiffs restate, reallege and incorporate by reference paragraphs I through 179, as if

25 they were set forth again herein.

26

181. The Labor Code, and other applicable law, provide that wages become the property of the

2277 employee on the next pay day after they are earned. In failing to pay and retaining the overtime wages

2288 owed to Misclassified Plaintiffs on and after the next pay day after they were O\vned, Defendants

43 SECOND AMENDED COMPLAINT FOR DAMAG ES AND INJUNCTIVE RELIEF

------~~

---

-

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 50 of 59

Page ID #:70

wrongfully exercised dominion and control over monies otherwise owed'to Misclassified Plaintiffs for

n

2

overtime.

Additionally,

Defendants

intentionally

and/or

negligently

misrepresented

to

... Misclassitie~,! ~

3 Plaintiffs their true non-exempt status under the law and, in justifiable reliance, Misclassified Plainiiffs
I..J

4 worked unpaid overtime.

5

182. As a direct and legal result of Defendants' actions, Misclassiticd Plaintiffs have been

6 damaged in amounts to be proven at trial.

7

183. Defendants' conduct. in converting the overtime pay owed to Misclassified Plaintiffs,

8 pursuant to corporate practices and policies that Defendants knew violated applicable law, was willful,

9 malicious, oppressive. and done with conscious disregard of Misclassified Plaintiffs' rights. entitling

10 Misclassified Plaintiffs to punitive damages.

11

184. If Defendants' action were not willful, Defendants knew or reasonably should have

12 known that the conduct described herein would and did proximately result in damage to Misclassified

13 Plaintiffs. At all relevant times, Defendants and/or their managers, agents, (lnd/or employees had the

14 power, ability, authority, and duty to stop engaging in the conduct described herein and/or to intervene to

15 prevent or prohibit said conduct, including to act so as to ensure compliance with state wage and hour

16 laws. Despite said knowledge, power, and duty, Defendants and/or their managers, agents, and/or

17 employees negligently tailed to act so as to stop engaging in the conduct described herein and/or to

18 prevent or to prohibit sllch conduct or to otherwise protect Misclassificd Plaintiffs. To the extent that

19 said negligent conduct was perpetrated by certain Defendants, the remaining Defendants confirmed and

20 ratified said conduct with the knowledge that each Discrimination Plaintiffs work would not be

21 compensated in compliance with state laws, and with a wanton and reckless disregard for the deleterious

22 consequences (0 each Misclassified Plaintiffs. As a direct and proximate result of Defendants' unlawful

23 conduct, the Misclassified Plaintiffs have been deprived and continue to be deprived of overtime

24 compensation in amounts to be determined at trial.

25

TWELFTH CAUSE OF ACTION

26

Negligent Appointment, Training and/or Supervision

27

(Brought by All Plaintiff Classes Against All Defendants)

28

185, Plaintiffs restate, reallege and incorporate by reference paragraphs I through 184,

44 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 51 of 59 Page ID #:71

inclusive, as though fully set forth herein.

n

2

186. Defendants have had and continue to have a duty of care under the common law andLl.l

•

.I~

3 under state statutory and/or constitutional law to exercise due care in the operation and managemen~;i;:""9' f
.•1

4 Assi Super, which duty obligates Defendants to avoid and prevent harassment, discrimination and «:1

5 retaliation against Discrimination Plaintiffs as described herein. Such due care requires Defendants to

6 comply with all pertinent statutes, including but not limited to state laws prohibiting harassment on the

7 basis of national origin and race, employment discrimination, and retaliation for complaints about or

8 resistance to harassment or discrimination.

9

187. During all relevant time periods, Defendants, and each of them, knew, or reasonably

10 should have known, that other Defendants had engaged in unlawfl.1l and discriminatory practices in

11 positions held before they were given and/or during the time they held the supervisory positions they

12 held with Assi Super, and that they ""Olild continue to implement and usc those unlawtul and

13 discriminatory practices in managing Assi Super and/or supervising its employees. In the alternative,

14 Defendants, and each of them, knew, or reasonably should have known, that other Defendants were 15 ignorant as to the 111anner in which managers and supervisors must conduct themsei~es in order to

16 comply with state statutes and laws prohibiting harassment on the basis of national origin and race,
,
17 employment discrimination, and retaliation for complaints about or resistance to harassment or

18 discrimination.

19

188. Despite said knowledge, Defendants, and each of them, breached their duty of care by

20 negligently, wilfully and/or recklessly placing and/or maintaining said Defendants in positions with the

21 responsibility to manage and supervise employees of Assi Super and to make personnel decisions

22 regarding such employees, without providing said Defendants with any training, guidance, supervision, .

23 and/or other direction about how to manage and supervise employees of Assi Super and/or to make

24 personnel decisions regarding such employees, in compliance with any and all state statutes and laws

25 prohibiting harassment on the basis of national origin and race, employment discrimination, and

26 retaliation for complaints about or resistance to harassment or discrimination.

27

189. During all relevant time periods, Defendants, and each of them, knew, or reasonably

28 should have known, that other Defendants and/or other managers and employees individually and/or

45 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTiVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 52 of 59 Page ID #:72

together in varying combinations, were engaged in the incidents, conduct, acts, and failures to act,

CJ
2 described above, and that said incidents. conduct, acts, and failures to act. violated Discrimination ~~

~f~

;;~

3 Plaintiffs' rights under state statutory and common law.

,~

u

4

190. At all times material herein, Defendants, and each of them, knew, or reasonably sholiiti

5 have known, that the incidents, conduct, acts, and failures to act as set fOl1h herein would and did

6 proximately result in injury and damage to Discrimination Plaintitl's,

7

191. At all times material herein Defendants, and each of lhem. knew, or in the exercise of

,

'

8 reasonable care should have known, that unless Defendants, and each of them, intervened to protect

9 Discrimination Plaintiffs, and to adequately train, supervise, prohibit, control, regulate, discipline, and/or

10 otherwise penalize the conduct, act, and failures to act, of the other Defendants and/or other managers

11 and employees as set forth herein, said conduct, acts, and failures to act would continue, thereby

12 subjecting Discrimination Plaintiffs to personal injury, emotional distress, attendant economic losses,

13 and other injuries.

J 4

192, Defendants, and each of them, knew, or in the exercise of reasonable care should have

15 known, that unless Defendants. and each of them, intervened to protect Discrimination Plaintiffs, and to

16 adequately train, supervise, prohibit, control, regulate, discipline, and/or otherwise penalize the conduct,

17 acts, and failures to act of other Defendants and/or other managers and employees, Defendants' failure to

18 so protect, supervise, and intervene would have the effect of encouraging, ratifying, condoning,

19 exacerbating, increasing and worsening said conduct, acts, and failures to act.

20

193. At all times material herein, Defendants, and each of them, had the power, ability,

21 authority, and duty to so intervene, train, supervise, prohibit, control, regulate, discipline, and/or penalize

22 the conduct of the other Defendants and/or other managers and employees,

23

194, Despite said knowledge, power, and duty, Defendants and each of them, breached and

24 continue to breach their duty of care by negligently, wilfully and/or recklessly failing to act so as to

25 intervene, supervise, prohibit, control, regulate, discipline, and/or penalize such conduct, acts, and

26 failures to act or otherwise to protect Discrimination Plaintiffs.

27

195, As a direct and proximate result of the failure of Defendants, and each of them, to protect

28 each Discrimination Plaintiff and to adequately train, supervise, prohibit, control, regulate, discipline,

46
SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 53 of 59 Page ID #:73

and/or otherwise penalize theconduct, acts, and failures to act of the other Defendants and/or other c]
2 managers and employees as set forth herein, said conduct, acts, and failures to act were perceived brithe

~!i.

3 other Defendants and/or other managers or employees as, and in fact, had the effect of, ratifying, ('\

.

.J

(/,

4 encouraging, condoning, exacerbating, increasing, and/or worsening said conduct, acts, and failures' io

5 act.

6

196. At all times material herein, the failure of the Defendants, and each of them, to protect

7 Discrimination Plaintiffs, and to adequately train, supervise, prohibit, control, regulate, discipline, and/or

8 otherwise penalize the conduct, acts, and failures to act of the other Defendants and/or other managers

9 and employees violated Discrimination Plaintiffs' rights under state statutory and common law.

10

197. As a direct and proximate result of Defendants' unlawful conduct, each Discrimination

11 Plaintiff has sutTered and continues to sllffer damages, including lost pay and other benefits, loss of

12 promotional opportunities, emotional distress, anxiety and stress, and otiler damages in an amount to be

13 proven at trial.

14

198. Defendants' conduct as described herein was maliciolls, fl'uudulent and/or oppressive, and

15 done with a conscious disregard for Discrimination Plaintiffs' rights and for the deleterious

16 consequences of the Deftmdants' actions. The acts of Defendants and each of them were performed with

17 the knowledge of an employer's economic power over its employees. Each Defendant authorized,

18 condoned and/or ratified the unlawflil conduct of all the other Defendants named in this action and of

19 their employees. Consequently, Discrimination Plaintiffs are entitled to an award of punitive damages.

20

THIRTEENTH CAUSE OF ACTION

21

Negligent Infliction of Emotional Distress

22

(Brought by Discrimination Plaintiffs Against All Defendants)

2'j

199. Plaintiffs restate, reallege and incorporate by reference paragraphs 1 through 198,

24 inclusive, as though fully set forth herein.

25

200. As alleged herein,, Defendants and/or their managers, agents, and/or employees knew or

26 reasonably should have known, that the conduct described herein would and did proximately result in

27 physical and emotional distress to Discrimination Plaintiffs.

28

20 I. At all relevant times, Defendants aOd/or their managers, agents, and/or employees had the

47
SECOND AMENDED COMPLAINT FOR DAMAG ES AND IN.IVNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 54 of 59 Page ID #:74

power, ability, authority, and duty to stop engaging in the conduct described herein and/or to intervene to

,,,,'~

2 prevent or prohibit said conduct.

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~~

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3

202. Despite said knowledge, power, and duty, Defendants and/or their managers, agents;;?,

Ir,J

4 and/or employees negligently failed to act so as to stop engaging in the conduct described herein an'dior

5 to prevent or to prohibit such conduct or to otherwise protect Discrimination Plaintiffs. To the extent

6 that said negligent conduct was perpetrated by certain Defendants. the remaining Defendants confirmed

7 and ratified said conduct with the knowledge that each Discrimination Plaintiffs emotional and physical

8 distress would thereby increase, and with a wanton and reckless disregard for the deleterious

9 consequences to each Discrimination Plaintiff.

10

203. As a direct and proximate result of Defendants' unlawful conduct, each Discrimination

11 Plaintiff has suffered and continues to suffer damages, including lost pay and other benefits, loss of

12 promotional opportunities, emotional distress, anxiety and stress, and other damages in an amount to be

13 proven at trial.

14

FOURTEENTH CAUSE OF ACTION

15

Assault and/or Batterv

16

(Califomia Common Law Tort)

17

(Brought by Plaintiffs Benito Gonzalez, Aurelio Vasquez Martinez,

18

and Martin Alvarez Rodriguez Against Assi Super)

19

204. Plaintitrs restate, reallege and incorporate by reference paragraphs 1 through 203,

20 inclusive, as though fully set forth herein.

21

205. Defendants and/or their managers intentionally, willfully, and knowingly inflicted upon

22 these named Discrimination Plaintiffs unwanted, hannful and/or offensive touchings and/or put these 23 named Discrimination Plaintiffs in apprehension of such offensive and unwanted contact whenever they 24 were in proximity to Defendants.

25

206. As a direct and proximate result of Defendants' unlawful conduct, each named

26 Discrimination Plaintitfhas suffered and continues to suffer damages, including lost pay and other 27 benefits, loss of promotional opportunities, emotional distress, anxiety and stress, and other damages in
28 an amount to be proven at triaLl.

48 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 55 of 59 Page ID #:75

207. Defendants' acts were repeated and intentional. Defendants knew or should have known
()
2 that their managers and/or their employees inflicted these wrongs and failed to take corrective actiot\,J
i ••I,
3 Defendants' conduct as described herein was fr.audulent, malicious, and oppressive, and done with ~j:"'I' t,..!
4 conscious disregard for Discrimination Plaintiffs' rights and for the deleterious consequences of

5 Defendants' actions. Consequently, Discrimination Plaintiffs are entitled to exemplary and punitive

6 damages from Defendants in an amount to be proven.

7

FIFTEENTH CAUSE OF ACTION

8

Unfair Business Practices .

9

[Violation of Business and Professions Code § 17200 et seq.]

10

(Brought by All Plaintiff Classes Against All Defendants)

11

208. Plaintiffs restate, reallege and incorporate by reference each and every allegation

12 contained in paragraphs I through 209, inclusive, as though set fOlih fully herein.

13

209. All Plaintitf Classes bring this cause of action on behalf of themselves, the deseribed

14 classes, and members of the general public pursuant to Section 17200 et seg., of the Business and

15 Professions Code. The conduct of Defendants as alleged herein has been and continues to be deleterious

16 to Plaintiffs, the Plaintiff classes, and/or the general public, and Plaintiffs are seeking to enforce

17 important rights affecting the public interest within the meaning of Code of Civil Procedure § 1021.5.

18

210. Plaintiffs are informed and believe and, on that basis, allege that Defendants, and each of

19 them, have engaged, continue to engage, and will continue to engage in a pattern or practice of creating

20 and maintaining a hostile work environment on the basis of national origin and/or race, discriminating

21 on the basis of national origin and/or race, and/or retaliating against employees who protest

. 22 discrimination or harassment, all in violation of the FEHA.

23

211. Plaintiffs are informed and believe and, on that basis, allege that Assi Super has and

24 continues to fail to pay legally-required overtime wages, to provide itemized statements of hours worked

25 with payments of wages, to pay wages when due, to provide state-mandated rest periods, and othe,r 26 conduct alleged herein, in violation of the California Labor Code and IWC Wage Orders.

27

212. Defendants' conduct, as described above, constitute ongoing and continuous unfair

28 business practices, and unless they are restrained from so doing, Defendants will continue to engage in

49 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 56 of 59 Page ID #:76

said unfair business practices.

cj

2

213. Defendants' unfair business practices have injured Plaintiffs, the Plaintiff classes, an~{or

3 the general public, and will continue to cause irreparable injury to them, or some of them, who hav~-.l'~n"" o

!.J

4 adequate remedy at law. Relief by damages alone for Defendants' continuing unlawful business V1

5 practices would require a multiplicity of suits.

6

7

VIII. ]'RAYERFOR RELIEF

8

WHEREFORE, Plaintiffs. on behalf ofthcmselves and for the classes they seek to represent in

9 this action, request the following relief:

10

II

I. That the Court determine that the foregoing claims may be maintained as class actions

12 under section 382 of the Code of Civil Procedure;

13

2. That the Court enter a declaratory judgment that the practices complained of herein are

14 unlawful and violative of tile California Fair Employment and I-lousing Act; the California Labor Code;

15 lWC Wage Order No.5; California Business and Professions Code § 17200 et seq.; and state common

16 law',

17

3.

That the COUli permanently enjoin Defendants, their agents, successors, officers,

18 employees, attorneys and those acting in concert with them from engaging in each of the unlawful 19 practices, policies, customs and usag~s set torth herein, and 11'0111 continuing any and all other practices

20 shown to be in violation of applicable law;

21

4. That the Court order modification or elimination of practices, policies, customs and

22 usages set forth herein and all other such practices shown to be in violation of applicable law so that

23 Defendants will not engage in such unlawful conduct in the future;

24

5. That the Court immediately assign Discrimination Plaintiffs to the positions they would

25 now be occupying but for the discriminatory and retaliatory practices of Defendants, and adjust the wage

26 rate, salary, bonuses, and benefits tor Discrimination Plaintiffs to that level which they would be

27 enjoying but for Defendants' discriminatory and retaliatory practices;

28

6. That Defendants are found to have violated the overtime provisions ofthe Labor Code

50 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.IUNCTIVE RELIEF

, • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 57 of 59 Page ID #:77

and the Wage Orders as 'to the Misclassified and Rest Period Plaintiffs

Cj

2

7, That Defendants are found to have violated the record keeping provisions of state la~;

,I.~

,

;~

3

8. That Defendants are found to have violated Labor Code sections 20 I, 202 and 203 fot

,

l:~

•

(I,";

4 willful failure to pay compensation at the time of termination of employment to the Misclassified arid

5 Rest Period Plaintiffs;

6

9. That Defendants are to~nd to have violated Busine;s and Professions Code section 17200

7 by discriminating against, harassing and/or retaliating against members of the Discrimination and

8 Applicant Plaintiff classes, by failing to pay members of the Misclassified Class overtime compensation,

9 by failing to provide paid rest periods as required by the applicable Wage Orders and Labor Code

10 sections, and by failing to keep proper time records;

11

10. That Defendants be enjoined to cease and desist from unfair activities in violation of

12 section 17200 of the Business and Professions Code and that Defendants further be ordered and enjoined

13 to disgorge all ill-gotten benefits and pay restitution to Plaintiffs and the classes they seek to represent,

14 pursuant to Business and Professions Code sections 17200-05;

15

11. That Defendants' violations as described above are found to have been willful;

16

12. Award the Misclassitied Plaintiff and the Rest Period Plaintiff Classes damages for the

17 amount of unpaid overtime compensation, including interest thereon, and penalties subject to proof at

18 trial;

19

13. Award Plaintiffs general, special and other compensatory damages, exemplary, and

20 punitive damages, in amounts to be proven at trial;

21

14. Award Plaintiffs statutory penalties;

22

15. Award Plaintiffs pre-j udgment and post-judgment interest at applicable legal rates, the

23 costs of suit and reasonable attorneys' fees to the extent they are available; and

24

16. Grant such other and further relief as may be just and proper.

25

26

27

IX, DEMAND FOR JURY TRIAL

28

Plaintiffs and all the members of the various classes they seek to represent hereby demand trial of

51 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

• • Case 2:03-cv-05131-SVW-VBK Document 12 Filed 12/03/03 Page 58 of 59 Page ID #:78

their claims by jury to the extent authorized by law.

..\h ~

2

l.U
~:c

3 Dated: November _1I_I1.,2003

Respectfully submitted,

~~ .
~J

.

l0

4

KOREAN IMMIGRANT WORKERS ADVOCATES

5

TRABER & VOORHEES

6

7

By: ~tl2nsv~@)

8

Bert Voorhees

Attorneys tor Plaintiffs

9

TOMAS SOLIlS LARA, et al.

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

52 SECOND AMENDED COMPLAINT FOR DAMAGES AND IN.JUNCTIVE RELIEF

 
 Case: 2:03-cv-05131-SVW-VBK As of: 07/16/2010 06:12 PM PDT 1 of 5
(VBKx), CLOSED, REMANDED
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA (Western Division − Los Angeles)
CIVIL DOCKET FOR CASE #: 2:03−cv−05131−SVW−VBK

Tomas Solis Lara, et al v. ASSI Super Inc, et al Assigned to: Judge Stephen V. Wilson Referred to: Discovery Victor B. Kenton Demand: $0
Case in other court: LA Cnty Supr Crt, BC289199
Cause: 28:1441 Notice of Removal − Employment Discrimination
Plaintiff

Date Filed: 07/18/2003 Date Terminated: 12/05/2003 Jury Demand: Both Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Tomas Solis Lara

represented by Bert G Voorhees Traber &Voorhees 128 N Fair Oaks Ave, Ste 204 Pasadena, CA 91103 626−585−9611 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo Korean Immigrant Wokers Advocates 3465 West Eighth St Los Angeles, CA 90005 213−738−9050 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Sharyn Sperling Traber &Voorhees Marine Bldg 128 N Fair Oaks Ave, Ste 204 Pasadena, CA 91103 626−585−9611 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber Traber &Voorhees Marine Building 128 North Fair Oaks Avenue Suite 204 Pasadena, CA 91103 626−585−9611 Fax: 626−577−7079 Email: tmt@tvlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Benito Gonzalez, −

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-05131-SVW-VBK As of: 07/16/2010 06:12 PM PDT 2 of 5

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Aurelio Vasquez Martinez

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Martin Alvarez Rodriguez

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Santos Herrera

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:03-cv-05131-SVW-VBK As of: 07/16/2010 06:12 PM PDT 3 of 5

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Abelardo Lopez Ramos

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Hong Shin Park on their own behalf and on behalf of a class of similary situated individuals

represented by Bert G Voorhees (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Esteban Perales Arredondo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jocelyn Sharyn Sperling (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theresa M Traber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
ASSI Super Inc a California corporation

represented by Philline B Parlan−Spelman Jackson Lewis 725 S Figueroa Street Ste 2500 Los Angeles, CA 90017−5408 213−689−0404 Fax: 213−689−0430 Email: parlanp@jacksonlewis.com

Case: 2:03-cv-05131-SVW-VBK As of: 07/16/2010 06:12 PM PDT 4 of 5

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D Vogel Jackson Lewis 725 S Figueroa Street Suite 2500 Los Angeles, CA 90017−5408 213−689−0404 Fax: 213−689−0430 Email: vogelr@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Arvanitis Fossati Jackson Lewis LLP 725 South Figueroa Street Suite 2500 Los Angeles, CA 90017−5408 213−689−0404 Email: arvanity@jacksonlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Daniel Seung Chul Rhee an individual

represented by Philline B Parlan−Spelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Arvanitis Fossati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jun Baek Lee an individual

represented by Philline B Parlan−Spelman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert D Vogel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Yvonne Arvanitis Fossati (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Does 1 through 50, inclusive

Date Filed 07/18/2003

# Docket Text
1 NOTICE OF REMOVAL by defendants ASSI Super Inc, Daniel Seung Chul Rhee, Jun Baek Lee from Superior Court of the State of California, Los Angeles County,

Case: 2:03-cv-05131-SVW-VBK As of: 07/16/2010 06:12 PM PDT 5 of 5

07/18/2003 07/18/2003 07/21/2003
07/21/2003 07/22/2003 07/28/2003 07/29/2003 08/11/2003 08/13/2003 10/20/2003
10/23/2003 12/03/2003 12/03/2003

Central District (Case Number: BC289199) with conformed copy of first amended complaint referred to Discovery Victor B. Kenton. (rrey) (Entered: 07/23/2003)
CONFORMED COPY OF ANSWER filed in state court on 7/17/03 by defendants ASSI Super Inc, Daniel Seung Chul Rhee, Jun Baek Lee re removal complaint [1−1] (rrey) (Entered: 07/23/2003)
2 NOTICE OF INTERESTED PARTIES filed by defendants ASSI Super Inc, Daniel Seung Chul Rhee, Jun Baek Lee (rrey) (Entered: 07/23/2003)
4 ORDER REGARDING STATUS CONFERENCE by Judge Stephen V. Wilson ; status conference set for 3:00 8/11/03 ; attorneys attending this conference MUST be those in charge of the conduct of the trial; attendace is MANDATORY; FURTHER ORDERED that counsel meet and confer prior to conference in accordance with local rule 16 (see document for more details) (ab) (Entered: 07/23/2003)
5 NEW CASE ORDER by Judge Stephen V. Wilson (see document for more details) (ab) (Entered: 07/23/2003)
3 PROOF OF SERVICE by defendant ASSI Super Inc, defendant Daniel Seung Chul Rhee, defendant Jun Baek Lee on 7/21/03 of Notice of adverse party of removal to federal court (yc) (Entered: 07/23/2003)
6 NOTICE by plaintiffs of order re status conference. (yc) (Entered: 07/29/2003)
7 NOTICE OF INTERESTED PARTIES filed by plaintiffs (yc) (Entered: 07/30/2003)
8 MINUTES: Status conference held. The court set the following dates: Further status conference set for 3:00 10/20/03 ; The court styas the action until October 20, 2003 by Judge Stephen V. Wilson CR: N/A (pj) (Entered: 08/13/2003)
PLACED IN FILE − NOT USED re joint stipulation to stay case to 11/17/03 to allow currently scheduled mediation to proceed and to explore settlement prior to proceeding with litigation (yc) (Entered: 08/14/2003)
9 MINUTES: Pretrial Conference set for 3:30 5/24/04; jury trial set on 9:00 6/1/04; IN COURT HEARING RE: Motion for Class Certification set on 1:30 1/12/04 ; status conference held ; by Judge Stephen V. Wilson CR: none present (ln) (Entered: 10/27/2003)
10 CIVIL TRIAL PREPARATION ORDER by Judge Stephen V. Wilson: Counsel preparing for trial before this court shall comply with this order. Pretrial conference 5/24/04 at 3:30; court/jury trial 6/1/04 at 9am. (yc) (Entered: 10/27/2003)
11 SECOND AMENDED COMPLAINT [1−1] by plaintiffs; jury demand. Summons not issued (yc) (Entered: 12/05/2003)
12 STIPULATION and ORDER by Judge Stephen V. Wilson; Plaintiffs may file their second amended complaint, Defendants waive notice of service of the second amended complaint; shall not be required to file an answer and all denial, responses and affirmative defenses contained in the answer filed by defendants to the first amended complaint shall be deemed responsive to the second amended complaint. The court declines to retain supplemental jurisdicion over this action and this action is hereby REMANDED to state court. remanding case to State Court , terminating case (MD JS−6) cc docket sheet, ltr. and order sent. (yc) Modified on 12/09/2003 (Entered: 12/05/2003)