§5:50Sexual Harassment/Gender Discrimination: California Law
SAMPLE ALLEGATIONS
GENERAL ALLEGATIONS
1. Defendant STOVINGTON FURNITURE INC. is a California corporation, with its principal place of business located in Petaluma, CA, doing business in the County of Sonoma County, California, where the acts alleged took place.
2. Defendant GEORGE TORRANCE is believed to have been an employee with defendants at the time the actions alleged took place. GEORGE TORRANCE did sexually harass plaintiff throughout his employment within the course and scope of his employment with defendants.
3. Defendant JACK HATFIELD is believed to have been an employee with defendants at the time the actions alleged took place.
4. Defendant MATTHEW JACKSON is believed to have been an employee with defendants at the time the actions alleged took place.
5. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES 1 through 20, inclusive, and therefore sues said defendants by such fictitious names. Each fictitiously named defendant is in some manner responsible for the injuries and damages complained of herein. Plaintiff will amend this Complaint to allege the true names and capacities of such defendants when they are ascertained.
6. At all times relevant herein each of the defendants was the agent, employee, supervisor, servant and joint venturer of each of the remaining defendants and in doing the things hereafter alleged, was acting within the course, scope and authority of such agency, employment and joint venture, and with the consent and permission of each of the other defendants. All actions of each defendant alleged in the causes of action into which this paragraph is incorporated by reference were ratified and approved by the officers or managing agents of every other defendant.
7. Each defendant, when acting as a principal, was negligent in the selection and hiring of each and every other defendant as an agent, employee, servant and joint venturer.
8. Plaintiff obtained a right to sue letter from the State Department of Fair Employment and Housing and has therefore exhausted her administrative remedies prior to filing suit.
9. Plaintiff was at all relevant times an employee of defendants and each of them. Plaintiff began working at Stovington Furniture, et al., in 1997 as a product coordinator. Plaintiff’s duties included packing of furniture to send to businesses. Plaintiff’s duties required her to come in daily contact with defendant GEORGE TORRANCE, a warehouse supervisor. As her supervisor, TORRANCE was the person to whom Plaintiff reported directly. Plaintiff’s reviews have at all times been above average, and she has at all times performed at or above expectations.
10. Within one month of commencing work with defendant GEORGE TORRANCE, Defendant TORRANCE began to harass plaintiff. The harassment took the form of asking her repeatedly out on dates, making sexual jokes in her presence, remarking on her appearance, whistling at her, staring at her, telling others that he found plaintiff attractive, blowing kisses to her, asking her if she was jealous of co-workers with whom he fraternized, breathing down her neck, coming up from behind and surprising her, and other conduct not here alleged. Plaintiff did at all times find his conduct to be unwelcome, offensive, and found that it interfered with her working performance.
11. Prior to the time defendant TORRANCE harassed plaintiff, it was known to management that at least one other female employee had complained about excessive sexual attention paid by TORRANCE to her. Despite such notice, the employer took no action to ameliorate a hostile working environment.
12. In or around May 2002 plaintiff complained to Operations Manager JACK HATFIELD that defendant TORRANCE was sexually harassing her. Defendant JACK HATFIELD told TORRANCE to “knock it off” and made other generally ineffective remarks to TORRANCE that did not result in a cessation of the offensive conduct. Plaintiff believes and thereon alleges that defendants have a totally ineffective sexual harassment policy, and that defendants have an ineffective means for disseminating said policy, such that employees charged with the responsibility of responding to complaints of improper conduct do not know how to respond appropriately.
13. The offensive conduct of GEORGE TORRANCE continued unabated after plaintiff’s first complaint to management, and up through and including the day of her second complaint to management on May 24, 2002. For example, TORRANCE told temporary office workers that plaintiff was his girlfriend. TORRANCE told people in the warehouse that it was just a matter of time before he would have sex with her. TORRANCE told male temporary workers not to talk to plaintiff or flirt with her. Defendant TORRANCE asked plaintiff to go on a trip to Denver with him. Defendant TORRANCE asked plaintiff to go out and “paint the town” with him. Defendant TORRANCE continued to ask plaintiff to go out with him on dates. He continued to blow kisses at her. He threatened to walk up behind her and “grab you and kiss you.” On or around May 24, 2002, defendant came up behind plaintiff so closely that she felt his breath on her neck. Plaintiff felt herself to be in imminent danger of being grabbed by defendant TORRANCE, and she stepped away. On or around May 24, 2002, TORRANCE put his arms around plaintiff’s neck, and they stumbled down the hall.
14. On or around May 24, 2002, plaintiff complained for the second time to defendant JACK HATFIELD. When defendant TORRANCE learned of the complaint that had been made against him, he retaliated against plaintiff by ignoring her questions, and by ignoring her. At other times he yelled at her, called her “numb nuts” and threw her paycheck on the ground, then stepped on it. Defendants at all times did permit TORRANCE to retaliate against plaintiff, by failing to assure her that retaliation would not be tolerated, failing to warn TORRANCE not to retaliate against plaintiff, and by failing to respond immediately and appropriately to her complaints about TORRANCE.
15. After May 24, 2002, plaintiff waited to hear from her employer about what would happen either to her or defendant TORRANCE as a result of her complaint. The employer took no steps to inform her as to the progress of the investigation. In fact, there was no investigation: on or around November 21, 2000, plaintiff complained to the Director of Human Resources, MATTHEW JACKSON, that she had heard nothing back. Plaintiff is informed and believes and thereon alleges that it was only after her third complaint, to MATTHEW JACKSON, that the employer took her complaint at all seriously.
16. Defendants have at no time offered any training, to plaintiff or any other non-managerial staff, about the prevention and remedy of sexual harassment.
FIRST CAUSE OF ACTION: ASSAULT AGAINST ALL DEFENDANTS
17. Plaintiff re-alleges and incorporates into this Cause of Action each and every allegation set forth in each and every paragraph of this Complaint.
18. The foregoing conduct alleged constituted separate and distinct ASSAULTS upon plaintiff. Defendants, and each of them, acted with an intent to cause an imminent, unwelcome fear of offensive contact with plaintiff, and a fear of imminent and unwelcome contact resulted each time defendant TORRANCE breathed down plaintiff’s neck, approached her from behind, or attempted to hug and kiss her.
19. Defendants’ conduct alleged herein was intentional, outrageous, malicious and committed for the purpose of causing plaintiff to suffer humiliation, mental anguish, and severe physical and emotional distress.
20. As a direct and proximate result of defendants’ conduct as hereinabove alleged, plaintiff was injured in her strength, health and activity, sustaining shock and injury to her nervous system, all of which have caused and continue to cause plaintiff great mental pain, embarrassment, humiliation, distress, anguish and suffering, all to her damage in an amount in excess of the minimum subject matter jurisdiction of this Court and according to proof.
21. As a direct and proximate cause of the conduct alleged herein, plaintiff has suffered and continues to suffer losses in earnings, bonuses, deferred compensation, employment benefits and earning capacity, opportunities for employment advancement, embarrassment, humiliation, mental anguish and distress, all to her damage in excess of the minimum subject matter jurisdiction of this Court and according to proof.
SECOND CAUSE OF ACTION: BATTERY AGAINST ALL DEFENDANTS
21. Plaintiff re-alleges and incorporates into this Cause of Action each and every allegation set forth in each and every paragraph of this Complaint.
22. The foregoing conduct alleged constituted separate and distinct batteries upon plaintiff. Defendants, and each of them, acted with an intent to cause a harmful or offensive contact with the body of plaintiff, and an offensive or harmful contact directly resulted each and every time the aforementioned employee touched or attempted to touch plaintiff without plaintiff’s consent.
23. Defendants’ conduct alleged herein was intentional, outrageous, malicious and committed for the purpose of causing plaintiff to suffer humiliation, mental anguish, and severe physical and emotional distress, entitling to plaintiff to an award of punitive damages against defendants, and each of them.
24. As a direct and proximate result of defendants’ conduct as hereinabove alleged, plaintiff was injured in her strength, health and activity, sustaining shock and injury to her nervous system, all of which have caused and continue to cause plaintiff great mental pain, embarrassment, humiliation, distress, anguish and suffering, all to her damage in an amount in excess of the minimum subject matter jurisdiction of this Court and according to proof.
25. As a direct and proximate cause of the conduct alleged herein, plaintiff has suffered and continues to suffer losses in earnings, bonuses, deferred compensation, employment benefits and earning capacity, opportunities for employment advancement, embarrassment, humiliation, mental anguish and distress, all to her damage in excess of the minimum subject matter jurisdiction of this Court and according to proof.
26. The acts of defendants alleged above were done maliciously, oppressively and/or fraudulently. Defendants had advance knowledge of the unfitness of some of the kitchen staff, and employed them with conscious disregard of the rights or safety of plaintiff and of other employees, or otherwise ratified their wrongful conduct. Plaintiff is entitled to recover punitive damages against defendants, and each of them.
THIRD CAUSE OF ACTION: VIOLATION OF CALIFORNIA FAIR EMPLOYMENT & HOUSING ACT — SEXUAL HARASSMENT AGAINST ALL DEFENDANTS
27. Plaintiff re-alleges and incorporates all paragraphs of this Complaint into this Cause of Action.
28. Plaintiff received a right to sue letter from the California Department of Fair Employment and Housing (DFEH), and has commenced this action in a timely manner.
29. The foregoing conduct violates the Fair Employment and Housing Act, Government Code §§12940, et seq., which provide that harassment of employees on the basis of sex is an unlawful employment practice.
30. The foregoing conduct further violates the Fair Employment and Housing Act, Government Code §§12940, et seq., which provide that it is unlawful for any employer or person to discriminate against any persons because that person has opposed any practices forbidden under this part, or because the person has filed a complaint in opposition to any practices forbidden by the Fair Employment and Housing Act.
31. The foregoing conduct further violates the Fair Employment and Housing Act, Government Code §§12940, et seq., which provides that it is unlawful for an employer to fail to take all reasonable steps necessary to prevent harassment from occurring.
32. The foregoing conduct violates the Fair Employment and Housing Act, Government Code §§12940, et seq., which provides that it is an unlawful practice for any employer or person to discharge, expel, retaliate against or otherwise discriminate against any person because the person has opposed any practices forbidden by the FEHA or because the person has filed a complaint, testified, assisted in any proceeding or asserted legal rights under the law. Government Code Section 12940 (f).
33. The sexual harassment of and retaliation against plaintiff created an oppressive, hostile, intimidating and/or offensive work environment for plaintiff and interfered with her emotional well-being and ability to perform her duties. The sexual harassment and retaliation were sufficiently severe and pervasive as to materially alter plaintiff’s conditions of employment, and to create an abusive working environment.
34. As a direct and proximate result of the sexual harassment of plaintiff described above, and the retaliation, plaintiff has suffered and will continue to suffer embarrassment, humiliation, mental anguish, emotional and physical distress, losses in earnings, bonuses, deferred compensation, employment benefits, earning capacity, opportunities for employment advancement, and work experience, all to her damage in excess of the minimum subject matter jurisdiction of this Court and according to proof.
35. The acts of defendants alleged above were done maliciously, oppressively and/or fraudulently. Defendants knew, or should have known, that there was an ongoing problem with the kitchen staff making unwelcome sexual advances to female employees and employed them with conscious disregard of the rights or safety of plaintiff and of other employees. Once plaintiff complained the first time, management could have implemented significant remedies, but chose not to. Management did otherwise ratify the kitchen workers’ wrongful conduct. Plaintiff is entitled to recovered punitive damages against defendants and each of them.
FOURTH CAUSE OF ACTION: BREACH OF CONTRACT AGAINST ALL DEFENDANTS
36. Plaintiff re-alleges and incorporates all paragraphs of this Complaint into this Cause of Action as though fully set forth herein. Plaintiff and defendants entered into an employment contract in or around 1997, and during the term of plaintiff’s employment. The contract was oral, written, and implied in fact. The terms of the agreement provided that plaintiff’s employment would be secure for as long as her performance was satisfactory, that plaintiff would not be terminated without good cause, that the workplace would not make her sick, and that plaintiff would earn agreed-upon wages and fringe benefits. Full time work was guaranteed by the terms of the contract.
37. Plaintiff undertook and continued employment and duly performed all of the conditions of the employment agreement to be performed by her until prevented by defendants from further performance. Plaintiff had, at all times, been ready, willing and able to perform all of the conditions of the agreement to be performed by her. Even when defendants made plaintiff mentally sick, they denied that her injuries were caused by their conduct.
38. Defendants breached their contract with plaintiff by making it impossible for her to continue to perform on the contract. They did so without reason, logic or good faith, and for the purpose, among others, of frustrating plaintiff’s enjoyment of the benefits of her contract with defendants. Accordingly, defendants breached their implied duty of good faith and fair dealing.
39. As a direct and proximate cause of the conduct alleged herein, plaintiff has suffered and continues to suffer losses in earnings, bonuses, deferred compensation, employment benefits and earning capacity, opportunities for employment advancement, embarrassment, humiliation, mental anguish and distress, all to her damage in excess of the minimum subject matter jurisdiction of this Court and according to proof.
FIFTH CAUSE OF ACTION: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL DEFENDANTS
40. Plaintiff re-alleges and incorporates into this Cause of Action each and every allegation set forth in each and every paragraph of this Complaint.
41. Defendants’ conduct alleged herein was intentional, outrageous, malicious, and committed for the purpose of causing plaintiff to suffer humiliation, mental anguish, and severe physical and emotional distress, and plaintiff did suffer such distress.
42. As a direct and proximate result of defendants’ conduct as hereinabove alleged, plaintiff was injured in her strength, health, and activity, sustaining shock and injury to her nervous system, all of which have caused and continue to cause plaintiff great mental pain, embarrassment, humiliation, distress, anguish and suffering, all to her damage in an amount in excess of the minimum subject matter jurisdiction of this Court and according to proof.
43. As a direct and proximate cause of the conduct alleged herein, plaintiff has suffered and continues to suffer losses in earnings, bonuses, deferred compensation, employment benefits and earning capacity, opportunities for employment advancement, embarrassment, humiliation, mental anguish and distress, all to her damage in excess of the minimum subject matter jurisdiction of this Court and according to proof.
COMMENT
These causes of action represent a complete sample pleading in a sexual harassment/gender discrimination case based upon California law.
Sexual harassment cases usually lend themselves to pleadings with introductory factual allegations that “tell the story” followed by a series of causes of action with general allegations (non-fact specific) only.
An attorney filing a complaint in a sexual harassment case should always research state as well as federal law to learn if there is a basis for filing a state claim for sexual harassment and/or discrimination. Also, an attorney handling a sexual harassment case should always be mindful of state and federal requirements of filing an administrative claim and obtaining the right to sue before filing a civil complaint in this type of case.