Brian Parolini vs Flyers Energy, LLC

Complaint Information

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SEYFARTH SHAW LLP E-FILED

Kristina M. Launey (SBN 221335) klauney@seyfarth.com 4/4/2016

| 400 Capitol Mall, Suite 2350 FRESNO COUNTY SUPERIOR COURT

Sacramento, California 95814-4428 ) 11 Telephone: (916) 448-0159 By:J . Phillips, Deputy Facsimile: (916) 558-4839

SEYFARTH SHAW LLP

Pritee K. Thakarsey (SBN 266168) pthakarsey(@seyfarth.com 560 Mission Street, 31st Floor

San Francisco, California 94105

Telephone: (415) 397-2823

Facsimile: (415) 397-8549

Attorneys for Defendants FLYERS ENERGY, LLC and FLYERS TRANSPORTATION, LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO

BRIAN PAROLINI, Case No. 14CECGO00417

Plaintiff, DEFENDANTS’ ANSWER TO VERIFIED

SECOND AMENDED COMPLAINT FOR

V. DAMAGES

FLYERS ENERGY, LLC, FLYERS TRANSPORTATION, LLC, and DOES 1-50, Original Complaint filed: February 13, 2014 inclusive, Amended Complaint filed: June 13,2014

Defendants.

THIRD CAUSE OF ACTION FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS

COMPLAINT € 1.

Defendants are without sufficient information to either admit or deny the facts alleged in this paragraph and, on that basis, deny each and every allegation contained in paragraph 1. COMPLAINT ¢ 2.

Defendants are without sufficient information to either admit or deny the facts alleged in this paragraph and, on that basis, deny each and every allegation contained in paragraph 2. COMPLAINT ¢ 3.

Defendants are without sufficient information to either admit or deny the facts alleged in this | paragraph and, on that basis, deny each and every allegation contained in paragraph 3. The remainder o paragraph 3 does not contain factual allegations and does not require a response from Defendants . COMPLAINT ¢ 4.

Defendants are without sufficient information to either admit or deny the facts alleged in this paragraph and, on that basis, deny each and every allegation contained in paragraph 4. COMPLAINT ¢ S.

Defendants admit that Plaintiff was employed by Flyers Transportation, LLC as a truck driver. Defendants deny the remaining allegations contained in paragraph 5.

COMPLAINT € 6.

Defendants deny the allegations contained in paragraph 6.

COMPLAINT q 7.

Defendants admit the allegations contained in paragraph 7. COMPLAINT ¢ 8. Defendants admit that Flyers Transportation, LLC was aware of Plaintiff’s shoulder injury which occurred at work in February 2013, his surgery, and that his treating physician provided workplace 2

Defendants admit the allegations contained in paragraph 7. COMPLAINT ¢ 8. Defendants admit that Flyers Transportation, LLC was aware of Plaintiff’s shoulder injury which occurred at work in February 2013, his surgery, and that his treating physician provided workplace 2 v ~1 N

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restrictions which prohibited Plaintiff from working. Defendants are without sufficient information to either admit or deny the facts alleged in this paragraph and, on that basis, deny each and every allegation contained in paragraph 8. The remainder of paragraph 8 does not contain factual allegations and does not require a response from Defendants.

COMPLAINT € 9.

Defendants admit that Plaintiff sustained a workplace injury, was placed on workers’ compensation, and underwent surgery. Defendants admit that Flyers Transportation, LLC terminated Plaintiff>s employment on or about October 10, 1013. Defendants deny the remaining allegations contained in paragraph 9.

COMPLAINT € 10.

Defendants admit that Flyers Transportation, LLC was aware of Plaintiff’s shoulder injury which occurred at work in February 2013, his surgery, and that his treating physician provided workplace restrictions which prohibited Plaintiff from working. Defendants are without sufficient information to either admit or deny the facts alleged in this paragraph and, on that basis, deny each and every allegation contained in paragraph 10.

COMPLAINT € 11.

Defendants admit that Flyers Transportation, LLC was aware of Plaintiff’s shoulder injury which occurred at work in February 2013. Defendants deny the allegations contained in paragraph 11. The reminder of Paragraph 11 does not contain factual allegations and does not require a response from Defendants . | COMPLAINT € 12.

Defendants deny the allegations contained in paragraph 12. The reminder of Paragraph 12 does not contain factual allegations and does not require a response from Defendants .

COMPLAINT € 13. Defendants deny the allegations contained in paragraph 13. The reminder of Paragraph 13 does

not contain factual allegations and does not require a response from Defendants .

not contain factual allegations and does not require a response from Defendants . COMPLAINT ¢ 14.

COMPLAINT ¢ 14.

Defendants deny the allegations contained in paragraph 14.

COMPLAINT € 15.

Defendants deny the allegations contained in paragraph 15.

COMPLAINT ¢ 16.

Defendants deny the allegations contained in paragraph 16.

COMPLAINT € 17.

Defendants deny the allegations contained in paragraph 17. COMPLAINT ¢ 18. Defendants deny the allegations contained in paragraph 18.

FOURTH CAUSE OF ACTION FAILURE TO PROVIDE REASONABLE ACCOMMODATION

COMPLAINT € 1.

Paragraph 1 contains a statement of incorporation and does not require a response from

Defendants. Defendants incorporate all denials contained above. COMPLAINT € 2.

Defendants admit that Flyers Transportation, LLC wasfiaware of Plaintiff’s shoulder injury, his surgery, and that his treating physician provided workplace restrictions which prohibited Plaintiff from working. Defendants deny the remaining allegations contained in paragraph 2.

COMPLAINT € 3.

Defendants admit that Flyers Transportation, LLC was aware that Plaintiff’s treating physician provided workplace restrictions which prohibited Plaintiff from working. Defendants deny the remaining allegations contained in paragraph 3.

COMPLAINT € 4.

Defendants admit that Flyers Transportation, LLC was aware that Plaintiff’s treating physician provided workplace restrictions which prohibited Plaintiff from working. Defendants deny the remaining allegations contained in paragraph 4. |

Defendants admit that Flyers Transportation, LLC was aware that Plaintiff’s treating physician provided workplace restrictions which prohibited Plaintiff from working. Defendants deny the remaining allegations contained in paragraph 4. | COMPLAINT ¢ 5.

COMPLAINT ¢ 5.

Defendants denies the allegations contained in paragraph 5.

COMPLAINT ¢ 6.

Defendants deny the remaining allegations contained in paragraph 6.

COMPLAINT ¢ 7.

Defendants deny the remaining allegations contained in paragraph 7. COMPLAINT ¢ 8. Defendants deny the remaining allegations contained in paragraph 8.

PLAINTIFF’S PRAYER FOR RELIEF

Defendants deny that Plaintiff is entitled to the relief Plaintiff seeks as set forth on Page 7-6 of his Second Amended Complaint, or any relief whatsoever.

SEPARATE ADDITIONAL AND AFFIRMATIVE DEFENSES

In further answer to Plaintiff’s Second Amended Complaint, Defendants allege the following separate and distinct additional defenses. In asserting these defenses, Defendants do not assume the burden of proof as to matters that, pursuant to law, are Plaintiff’s burden to prove. Defendants do not presently know all of the facts and circumstances relating to Plaintiff’s claims and therefore reserve the right to amend this Answer should Defendants later discover facts demonstrating the existence of additional defenses.

FIRST DEFENSE

(Failure to State a Cause of Action - All Causes of Action)

Neither Plaintiff’s Second Amended Complaint nor any purported cause of action therein alleges

state facts sufficient to constitute claims upon which relief may be granted.

SECOND DEFENSE

(Statutes of Limitation - All Causes of Action)

Plaintiff’s claims, in whole or in part, are barred by the applicable statutes of limitation, including, but not limited to, California Code of Civil Procedure §§ 335.1 or Government Code §12940 el. seq.

Plaintiff’s claims, in whole or in part, are barred by the applicable statutes of limitation, including, but not limited to, California Code of Civil Procedure §§ 335.1 or Government Code §12940 el. seq. O o~ o i s W N

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NNNNNNNNN*—‘HMMMMMMMH OO*\!O\M-%UJMHO\DOO\JO\M&WNHO THIRD DEFENSE

(Failure to Exhaust Administrative Remedies - All Causes of Action)

The relief Plaintiff seeks under the California Fair Employment and Housing Act (Government Code §§ 12940 et seq.), it is barred because Plaintiff failed to exhaust his administrative remedies and/or statutory prerequisites in a complete and timely manner.

FOURTH DEFENSE

(Workers’ Compensation Preemption - All Cause of Action)

Plaintiff’s Complaint, and each cause of action attempted to be stated therein, arises from an employment relationship, such that any emotional distress or mental anguish allegedly suffered is barred by the exclusive remedy provided by California Labor Code sections 3600 et seq., and cannot be compensated for in the present action.

FIFTH DEFENSE

(Undue Hardship - All Causes of Action)

Plaintiffs claims are barred because the accommodation he requested was not reasonable, and

would cause Defendants undue hardship.

SIXTH DEFENSE

(Good Faith Reasonable Accommodation - All Causes of Action

Plaintiff’s claims are barred because Defendants made a good-faith effort to engage in the interactive process with Plaintiff to make a reasonable accommodation to the extent possible in light of business needs and necessities.

SEVENTH DEFENSE

(Legitimate, Good-Faith, Privileged Reasons - All Causes of Action)

Plaintiff’s First Amended Complaint, and each purported cause of action alleged against Defendants, is barred because the alleged treatment complained of by Plaintiff, if it occurred, is permissible as it was privileged, justified, and based on legitimate, good-faith, nondiscriminatory,

nonretaliatory reasons.

EIGHTH DEFENSE

(Employment Decisions Contrary to Employer’s Policies - All Causes of Action)

Defendants are not liable for the alleged conduct of their employee(s) to the extent that such conduct was outside the scope and course of employment or contrary to policies that Defendants instituted and enforced in good faith.

NINTH DEFENSE

(After-Acquired Evidence - All Causes of Action)

Plaintiff’s First Amended Complaint, and each purported cause of action alleged therein, is barred in whole or in part by the doctrine of after-acquired evidence or, alternatively, that the doctrine of after-acquired evidence limits and reduces Plaintiff’s alleged damages.

TENTH DEFENSE

(Avoidable Consequences - All Causes of Action)

Plaintiff’s claim is barred and any recovery of damages is precluded in whole or in part because Defendants took reasonable steps to prevent or correct any alleged workplace discrimination, Plaintitf unreasonably failed to take advantage of Defendants’ preventative or corrective measures, and reasonable use of its safeguards would have prevented at least some of the harm Plaintiff alleges to have suffered.

ELEVENTH DEFENSE

(Laches - All Causes of Action) | Plaintiff’s First Amended Complaint, and each purported cause of action therein, is barred by the equitable doctrine of laches.

TWELFTH DEFENSE

(Judicial Estoppel - All Causes of Action) Plaintiff’s First Amended Complaint, and each and every cause of action alleged therein, 1s

barred by the doctrine of judicial estoppel.

O R 3 THIRTEENTH DEFENSE

(Estoppel and Res Judicata - All Causes of Action)

Plaintiff’s First Amended Complaint, and each and every cause of action alleged therein, is

barred by the doctrines of collateral estoppel and res judicata.

FOURTEENTH DEFENSE

(Waiver - All Causes of Action)

Plaintiff’s First Amended Complaint, and each and every cause of action alleged therein, is barred by the doctrine of waiver.

FIFTEENTH DEFENSE

(Ratification and Consent - All Causes of Action)

Plaintiff’s claims are barred, in whole or in part, to the extent he ratified and/or consented to Defendants’ actions.

SIXTEENTH DEFENSE

(Unclean Hands - All Causes of Action)

Plaintiff’s First Amended Complaint, and each and every cause of action alleged therein, 1s

barred by the doctrine of unclean hands.

SEVENTEENTH DEFENSE

(Failure to Mitigate Damages - All Causes of Action)

Defendants are informed and believe and based thereon allege that, by exercise of reasonable efforts, Plaintiff could have mitigated the amount of damages he allegedly suffered, but Plaintiff has failed or refused to exercise reasonable efforts to mitigate his damages.

EIGHTEENTH DEFENSE

(Pre-existing Condition or Alternative Cause - All Causes of Action)

To the extent Plaintiff suffered any symptoms of mental or emotional distress or injury, they

were the result of a pre-existing medical condition or psychological disorder or alternative concurrent

cause, and not the result of any act or omission of Defendants.

NINETEENTH DEFENSE

(Set-Off - All Causes of Action)

Defendants are entitled to a set-off of any benefits Plaintiff receives or has received from workers’ compensation, unemployment compensation, and from any benefit plans of Defendants, for injuries or damages alleged in the Complaint, against any award of damages to Plaintiff in this action.

TWENTIETH DEFENSE

(Unconstitutionality of Punitive Damages - All Causes of Action)

Plaintiff’s claim for punitive damages is barred to the extent that punitive damages are

unconstitutional under the California and United States Constitutions.

TWENTY-FIRST DEFENSE

(Punitive Damages - Civil Code § 3294 - All Causes of Action)

Plaintiff has failed to state facts sufficient to entitle him to an award of punitive damages under California Civil Code section 3294.

ADDITIONAL DEFENSES

Defendants presently have insufficient knowledge or information upon which to form a belief as to whether there may be additional, as yet unstated, defenses and reserve the right to assert additional defenses in the event that discovery indicates that such defenses are appropriate.

DEFENDANTS’ REQUEST FOR COSTS AND ATTORNEYS’ FEES

Plaintiff knew or should have known that his claims are without any reasonable basis in law or equity and cannot be supported by good faith argument for extension, modification or reversal of existing law. As a result of Plaintiff’s filing of this complaint, Defendants have been required to obtain the services of the undersigned attorneys, and have incurred and will continue to incur substantial costs and attorneys’ fees in defense of this frivolous case, and Defendants are therefore entitled to recover reasonable attorneys’ fees, expenses, and costs incurred by and through this action in accordance with California Labor Code 218.5 (as a prevailing party), and California Code of Civil Procedure Section

PRAYER

WHEREFORE, Defendants pray for judgment as follows:

1. That Plaintiff take nothing by his Second Amended Complaint;