This case was last updated from Santa Clara County Superior Courts on 08/07/2019 at 17:36:29 (UTC).

Wells v. DHL Express (USA), Inc., et al.

Case Summary

On 03/14/2018 Wells filed a Labor - Other Labor lawsuit against DHL Express USA , Inc . This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Walsh, Brian C. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******4622

  • Filing Date:

    03/14/2018

  • Case Status:

    Other - Transferred

  • Case Type:

    Labor - Other Labor

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Walsh, Brian C

 

Party Details

Plaintiff

Wells, Marva

Defendants

Lewis, Marcus

Chaparro, Matt

DHL Express (USA), Inc.

Other

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Marder, William Lucas

Hyun, Dennis Sangwon

Dakak, Majed

Defendant Attorney

Boman, Christopher J

Other Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Stipulation and Order

Stipulation and Order to Transfer Venue to LASC: Comment: Stipulation & Order to Transfer Venue to Los Angeles County Superior Court - signed/BCW

Stipulation and Order

11434 Proposed Stipulation and Order.pdf: Comment: Stipulation and Order

Notice: Association/Co-Counsel

Association of Attorney Counsel: Comment: Association of Attorney/Counsel

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies):

Summons: Issued/Filed

Summons Issued Filed:

Civil Case Cover Sheet

Civil Case Cover Sheet:

 

Docket Entries

  • 08/13/2018
  • Acknowledgement of Receipt: Transfer - Comment: From Los Angeles County. New Case # BC714127.

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  • 07/23/2018
  • Receipt: Certified Mail - Comment: From Los Angeles County.

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  • 07/20/2018
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Proposed Class Action * Employment * Discovery and responsive pleading deadline stayed, as of 3/15/18, when the case was deemed complex. Stipulation & Proposed Order to transfer venue to Los Angeles is pending with the Court.

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  • 07/13/2018
  • Notice: Transmittal (Transfer Out) - Comment: to Los Angeles County

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  • 06/12/2018
  • View Court Documents
  • Stipulation and Order - Stipulation and Order to Transfer Venue to LASC: Comment: Stipulation & Order to Transfer Venue to Los Angeles County Superior Court - signed/BCW

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  • 04/12/2018
  • Complaint: Amended - Comment: First Amended Complaint

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  • 03/21/2018
  • View Court Documents
  • Notice: Association/Co-Counsel - Association of Attorney Counsel: Comment: Association of Attorney/Counsel

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  • 03/15/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 03/14/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies):

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  • 03/14/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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  • 03/14/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet:

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Complaint Information

William L. Marder, Cal Bar No. 170131 POLARIS LAW GROUP, LLP

111 N. Market St., Suite 300

San Jose, CA 95113

Tel: + 1 (408) 898-4777

Fax: +1 (408) 854-8100

E-FILED

3/14/2018 9:25 AM Clerk of Court

Superior Court of CA, County of Santa Clara

18CV 324622

Reviewed By: R. Walker

Attorneys for Plaintiff and the Class (Additional Counsel on Next Page)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA

Case No.: 18C V324622

CLASS ACTION AND INDIVIDUAL

COMPLAINT FOR DAMAGES FOR:

MARVA WELLS, as an individual and on

behalf of all others similarly situated,

Plaintiffs, VS.

DHL EXPRESS (USA), INC., an Ohio corporation; MARCUS LEWIS, an individual; MATT CHAPARRO, an individual; and DOES 1 through 50, inclusive,

Defendants.

(D)

2)

3)

4)

)

(6) (7) (8)

©)

VIOLATION OF CAL. LABOR CODE §§ 510, 1194, AND 1197.1;

VIOLATION OF CAL. LABOR CODE § 226;

VIOLATION OF CAL. BUS. & PROF. CODE § 17200, ET SEQ.;

VIOLATION OF PRIVATE ATTORNEYS’

GENERAL ACT;

FAILURE TO ACCOMMODATE IN VIOLATION OF THE FEHA

[INDIVIDUAL CLAIM];

FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN VIOLATION OF THE FEHA

[INDIVIDUAL CLAIM];

HARASSMENT IN VIOLATION OF THE

FEHA;

FAILURE TO PREVENT HARASSMENT

IN VIOLATION THE FEHA; AND

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS DEMAND FOR JURY TRIAL

DEMAND OVER $25.000.00 Dennis S. Hyun (State Bar No. 224240) HYUN LEGAL, APC 515 S. Figueroa St., Suite 1250

Los Angeles, CA 90071

(213) 488-6555

(213) 488-6554 facsimile

Plaintiff Marva Wells (“Plaintiff’) hereby submits this Class Action and Individual Complaint (“Complaint”) against Defendants DHL Express (USA), Inc. (“DHL,” or the “Company”), Marcus Lewis (“Lewis”), Matt Chaparro (“Chaparro”) and Does 1 through 50 (hereinafter collectively referred to as “Defendants’) on behalf of herself and the class of all other similarly situated current and former employees of Defendants for overtime wages, penalties under the California Labor Code, restitution, and damages for her individual claims as follows:

INTRODUCTION

I This class action is within the Court’s jurisdiction under California Labor Code §§ 226, 510, 1194, and the applicable Wage Orders of the California Industrial Welfare Commission (“IWC”) and the California Unfair Competition Law (the “UCL”), Business and Professions Code § 17200, et seq.

2. This complaint challenges systemic illegal employment practices resulting in violations of the California Labor Code and the UCL against individuals who worked for Defendants.

3. Plaintiff is informed and believes, and based thereon alleges, that Defendants, jointly and severally, have acted intentionally and with deliberate indifference and conscious disregard to the rights of all employees in receiving overtime wages based on the correct rate of pay, as well as receiving accurate itemized wage statements.

4, Plaintiff is informed and believes, and based thereon alleges, that Defendants have engaged in, among other things a system of willful violations of the California Labor Code and the UCL by creating and maintaining policies, practices and customs that knowingly deny employees the above stated rights and benefits.

3. The policies, practices and customs of defendants described above and below have resulted in unjust enrichment of Defendants and an unfair business advantage over businesses that routinely adhere to the strictures of the California Labor Code and the UCL.

JURISDICTION AND VENUE

6. The Court has jurisdiction over the violations of the California Labor Code §§ 226, 510, 1194, and the UCL.

7, Venue is proper in Santa Clara County because Defendant does not reside, nor has a principal place of business in the State of California. As such, venue is proper in any county designed by Plaintiff in this Complaint. See Cal. Code Civ. Proc. § 395(a).

PARTIES

8. On or about June 17, 2016, Plaintiff was hired by the Company to work as non- exempt employee. Plaintiff is still currently employed by Defendant.

9. Plaintiff was and is the victim of the policies, practices, and customs of Defendants complained of in this action in ways that have deprived them of the rights guaranteed by California Labor Code §§ 226, 510, 1194, and the UCL.

10. Plaintiff is informed and believes, and based thereon alleges, that Defendants are Ohio corporations which provide shipping services throughout the United States, including numerous locations in the State of California and in the County of Santa Clara.

11. Plaintiff is informed and believes and based thereon alleges that Lewis and Chaparro are individuals residing in the State of California. Plaintiff is further informed and believes and based thereon alleges that Lewis is a manager for the Company and Chaparro works in HR.

2. Plaintiff 1s informed and believes, and based thereon alleges, that at all times herein mentioned Defendant and Does 1 through 50, are and were corporations, business entities, individuals, and partnerships, licensed to do business and actually doing business in the State of California. As such, and based upon all the facts and circumstances incident to Defendants’ business, Defendants are subject to California Labor Code §§ 226, 510, 1194 and the UCL.

13. Plaintiff does not know the true names or capacities, whether individual, partner

or corporate, of the Defendant sued herein as Does 1 through 50, inclusive, and for that reason, said Defendants are sued under such fictitious names, and Plaintiff prays for leave to amend this complaint when the true names and capacities are known. Plaintiff is informed and believes and based thereon alleges that each of said fictitious Defendants was responsible in some way for the matters alleged herein and proximately caused Plaintiff and members of the general public and class to be subject to the illegal employment practices, wrongs and injuries complained of herein.

14. At all times herein mentioned, each of said Defendants participated in the doing of the acts hereinafter alleged to have been done by the named Defendants; and furthermore, the Defendants, and each of them, were the agents, servants and employees of each of the other Detendants, as well as the agents of all Defendants, and at all times herein mentioned, were acting within the course and scope of said agency and employment.

15. Plaintiff is informed and believes, and based thereon alleges, that at all times material hereto, each of the Defendants named herein was the agent, employee, alter ego and/or joint venturer of, or working in concert with each of the other co-Defendants and was acting within the course and scope of such agency, employment, joint venture, or concerted activity.

To the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each of the remaining Defendants confirmed and ratified said acts, conduct, and omissions of the acting Defendants.

16. At all times herein mentioned, Defendants, and each of them, were members of, and engaged 1in, a joint venture, partnership and common enterprise, and acting within the course and scope of, and in pursuance of; said joint venture, partnership and common enterprise.

17. At all times herein mentioned, the acts and omissions of various Defendants, and each of them, concurred and contributed to the various acts and omissions of each and all of the other Defendants in proximately causing the injuries and damages as herein alleged. At all times herein mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, Defendants, and each of them, aided and abetted the acts and omissions of each and all of the other Defendants in proximately causing the

CLASS ACTION ALLEGATIONS

18. Definition: The named individual Plaintiff seeks class certification, pursuant to California Code of Civil Procedure § 382. Plaintiff proposes the following Class and Subclasses:

a. All current and former non-exempt employees of Defendants who worked at any

time during the period of time from March 13, 2014, through the present, in the State of

California, who received overtime pay and non-discretionary incentive pay in the same

pay period, including without limitation, Shift Differentials and/or Safety Awards (the

“Regular Rate Class”); and

g. All current and former employees of Defendants who worked at any time during

the period of time from March 13, 2017, through the present, in the State of California,

who received a wage statement at any time which included payment for any Shift

Differentials and/or Safety Awards and in which the employee worked overtime in the

same pay period (the “Wage Statement Class™).

19. Numerosity and Ascertainability: The members of the Class are so numerous that joinder of all members would be impractical, if not impossible. The identity of the members of the Class is readily ascertainable by review of Defendants’ records, including payroll records. Plaintiff 1s informed and believes, and based thereon alleges, that Defendants: (a) failed to correctly calculate the regular rate of pay by not including all non-discretionary incentive pay; (b) failed to provide accurate itemized wage statements in violation of Labor Code § 226(a); and (c) engaged in unfair business practices in violation of the California Labor Code, the applicable [WC Wage Orders, and the UCL.

20. Adequacy of Representation: The named Plaintiff is fully prepared to take all necessary steps to represent fairly and adequately the interests of the class defined above. Plaintiff’s attorneys are ready, willing and able to fully and adequately represent the class and the individual Plaintiff. Plaintiff’s attorneys have prosecuted and settled wage-and-hour class actions in the past and currently have a number of wage-and-hour class actions pending in California state and federal courts.

21. Defendants uniformly administered a corporate policy, practice of: (a) failing to correctly calculate the regular rate of pay by not including all non-discretionary incentive pay; (b) failing to provide accurate itemized wage statements in violation of Labor Code § 226(a); and (c) engaging in unfair business practices in violation of the California Labor Code, the applicable [WC Wage Orders, and the UCL.

22. Plaintiff is informed and believes, and based thereon alleges, that this corporate conduct 1s accomplished with the advance knowledge and designed intent to willfully and intentionally fail to accurately record proper rates of pay, hours worked, net wages, and deductions.

23 Plaintiff is informed and believes, and based thereon alleges, that Defendants had a consistent and uniform policy, practice and procedure of willfully failing to comply with Labor Code §§ 226, 510, 1194, and the UCL.

24, Common Question of Law and Fact: There are predominant common questions of law and fact and a community of interest amongst Plaintiff and the claims of the Class concerning Defendant’s policy and practice of: (a) failing to correctly calculate the regular rate of pay by not including all non-discretionary incentive pay; (b) failing to provide accurate itemized wage statements in violation of Labor Code § 226(a); and (¢) engaging in unfair business practices in violation of the California Labor Code, the applicable IWC Wage Orders, and the UCL.

25. Typicality: The claims of Plaintiff are typical of the claims of all members of the Class in that Plaintiff suffered the harm alleged in this Complaint in a similar and typical manner as the Class members. As with other non-exempt employees in the State of California, Plaintiff worked overtime and earned non-discretionary pay, including Shift Differentials. Nevertheless, these additional items of non-discretionary pay were not factored into the regular rates of Plaintiff and Class Members for purposes of paying overtime. Therefore, Defendants owe Plaintiff and Class Members additional overtime pay. Defendants also failed to provide accurate, itemized wage statements to Plaintiff and Class Members. Specifically, Defendants failed to list all applicable hourly rates of pay and number of hours worked for all items of

compensation, including without limitation, Shift Differentials and Additional OT - Gross-Ups, earned by Plaintiff and Class Members in violation of Labor Code § 226(a)(9). Therefore, Plaintiff is a member of the Class and has suffered the alleged violations of California Labor Code §§ 226, 510, and 1194.

26. The California Labor Code and upon which Plaintiff bases these claims are broadly remedial in nature. These laws and labor standards serve an important public interest in establishing minimum working conditions and standards in California. These laws and labor standards protect the average working employee from exploitation by employers who may seek to take advantage of superior economic and bargaining power in setting onerous terms and conditions of employment.

27. The nature of this action and the format of laws available to Plaintiff and members of the Class identified herein make the class action format a particularly efficient and appropriate procedure to redress the wrongs alleged herein. If each employee were required to file an individual lawsuit, the corporate Defendants would necessarily gain an unconscionable advantage since it would be able to exploit and overwhelm the limited resources of each individual plaintiff with their vastly superior financial and legal resources. Requiring each Class member to pursue and individual remedy would also discourage the assertion of lawful claims by employees who would be disinclined to file an action against their former and/or current employer for real and justifiable fear of retaliation and permanent damage to their careers at subsequent employment.

28. The prosecution of separate actions by the individual class members, even if possible, would create a substantial risk of (a) inconsistent or varying adjudications with respect to individual Class members against the Defendants and which would establish potentially incompatible standards of conduct for the Defendants, and/or (b) adjudications with respect to individual Class members which would, as a practical matter, be dispositive of the interest of the other Class members not parties to the adjudications or which would substantially impair or impede the ability of the Class members to protect their interests. Further, the claims of the individual members of the Class are not sufficiently large to warrant vigorous individual

prosecution considering all of the concomitant costs and expenses. 29. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation described herein is unlawful and creates an entitlement to recovery by Plaintiff and the Class identified herein, in a civil action, for unpaid minimum wages, overtime wages, applicable penalties, reasonable attorneys’ fees, and costs of suit according to the mandate of California Labor Code §§ 226 and 1194, and Code of Civil Procedure § 1021.5.

30. Proof of a common business practice or factual pattern, which the named Plaintiff experienced and is representative of, will establish the right of each of the members of the Plaintiff Class to recovery on the causes of action alleged herein.

31. The Plaintiff Class is commonly entitled to a specific fund with respect to the compensation illegally and unfairly retained by Defendants. The Plaintiff Class is commonly entitled to restitution of those funds being improperly withheld by Defendants. This action is brought for the benefit of the entire class and will result in the creation of a common fund.

INDIVIDUAL ALLEGATIONS

32. Plaintiff suffered a head injury at work while performing her work duties on or about May 17, 2017. After Plaintiff suffered her head injury, she suffered from a disability in that the injury limited Plaintiff’s life activities, including working and/or Defendants perceived Plaintiff to be disabled. Plaintiff’s injury required her to take a medical leave of absence from on or about June 7, 2017, through July 4, 2017. Plaintiff’s injury further required additional medical leaves following her initial leave. After Plaintiff was injured, Defendants failed to engage in a good faith interactive process and/or accommodate Plaintiff’s disability, including without limitation, following Plaintiff’s medical restrictions. Rather, Defendants ignored Plaintiff’s medical restrictions. Plaintiff’s supervisor, Lewis, even told Plaintiff to “stop faking.” Plaintiff’s coworkers repeatedly harassed Plaintiff as well, including without limitation, asking about her condition and scrutinizing her work hours. When Plaintiff reported this to Chaparro in HR, he rejected Plaintiff’s complaints and did nothing to remedy, investigate and/or prevent the harassment. Further, while Plaintiff was out on medical leave, Chaparro improperly directly

communicated with Plaintiff and harassed her about her medical conditions. 33. Plaintiff has met all the jurisdictional requirements for proceeding with her claims under the Fair Employment and Housing Act (the “FEHA”), including without limitation, California Government Code Sections 12960 and 12965, by timely filing administrative complaints against Defendants with the California Department of Fair Employment and Housing (the “DFEH”) on or about March 13, 2018. On March 13, 2018, Plaintiff received her right-to- sue letters from the DFEH against Defendants.

34. Asan actual and proximate result of the illegal employment actions of Defendants, Plaintiff has suffered and continues to suffer pain, humiliation, severe emotional distress, trauma, and sleeplessness. Also, as an actual and proximate result of Defendants’ illegal employment actions, Plaintiff has suffered lost wages and a loss in earning capacity. Thus, Plaintiff has suffered economic and non-economic losses in an amount greater than this Court’s jurisdictional minimum of $25,000. Plaintiff seeks lost wages and loss in earning capacity, as well as compensatory damages for pain and suffering, inconvenience, and mental anguish. Plaintiff also seeks punitive damages, interest, attorneys’ fees, and costs, as permitted by law.

FIRST CAUSE OF ACTION

VIOLATION OF LABOR CODE §§ 510, 1194, AND 1197.1

(BY PLAINTIFF AND THE CLASS ACAINST DHL AND DOES 1-50)

35. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 34 as though fully set for herein.

36. This cause of action is brought pursuant to Labor Code §§ 510, 1194, and 1197.1 which require an employer to pay employees overtime at a rate of one and one-half the employee’s regular rate of pay for any work in excess of eight hours in a workday or 40 hours in a workweek.

37. During their employment with Defendants, including during pay periods wherein Plaintiff and the Class worked overtime, Plaintiff and the Class earned non-discretionary incentive pay (including but not limited to Shift Differentials). Defendants, as a corporate-wide practice and policy, did not calculate and/or factor such non-discretionary pay into Plaintiff’s and

Class Members’ regular rate of pay for purposes of calculating revised and increased overtime pay, and as such, owes Plaintiff and the Class additional overtime pay.

38. Defendants had a uniform corporate pattern and practice and procedure regarding the above practices in violation of Labor Code §§ 510, 1194, and 1197.1.

39. Such a pattern, practice and uniform administration of corporate policy regarding illegal employee compensation as described herein is unlawful and creates an entitlement to recovery by Plaintiff and the Class in a civil action, for the unpaid balance of the full amount of damages owed, including interest thereon, penalties, attorneys’ fees, and costs of suit according to the mandate of California Labor Code §§ 510, 1194, and 1197.1.

SECOND CAUSE OF ACTION VIOLATION OF LABOR CODE § 226 (BY PLAINTIFF AND THE CLASS AGAINST DHL AND DOES 1-50)

40. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 39 as

though fully set for herein.

41. Defendants failed in their affirmative obligation to provide accurate itemized wage statements. Defendants, as a matter of policy and practice, did not provide accurate wage statements in violation of Labor Code § 226.

42. Plaintiff and the Class were paid hourly. As such, the wage statements should have reflected the number of hours worked and the applicable hourly rates, pursuant to Labor Code § 226(a)(9). The wage statements provided to Plaintiff and the Class failed to identify such information, including without limitation, the number of hours worked and the correct applicable hourly rates, as well as all the hourly rates and number of hours worked for various items of hourly pay, including without limitation, Shift Differentials and Additional OT - Gross-Ups.

43. Such a pattern, practice and uniform administration of corporate policy as described herein is unlawful and creates an entitlement to recovery by the Plaintiff and the Class identified herein, in a civil action, for all damages or penalties pursuant to Labor Code § 226, including interest thereon, attorneys’ fees, and costs of suit according to the mandate of

THIRD CAUSE OF ACTION

VIOLATIONS OF THE UCL, BUSINESS & PROFESSIONS CODE § 17200, ET SEQ.

(BY PLAINTIFF AND THE CLASS AGAINST DHL AND DOES 1-50)

44, Plaintiff re-alleges and incorporates by reference paragraphs 1 through 43 as though fully set for herein.

45. Defendants, and each of them, have engaged and continue to engage in unfair and unlawful business practices in California by practicing, employing and utilizing the employment practices outlined above, include, to wit, by failing to correctly calculate the regular rate of pay by not including all non-discretionary incentive pay.

46. Defendants’ utilization of such unfair and unlawful business practices constitutes unfair, unlawful competition and provides an unfair advantage over Defendants’ competitors.

47, Plaintiff seeks, on behalf of herself and other members of the Class similarly situated, full restitution of monies, as necessary and according to proof, to restore any and all monies withheld, acquired and/or converted by the Defendants by means of the unfair practices complained of herein.

48. Plaintiff is informed and believes, and based thereon alleges, that at all times herein mentioned Defendants have engaged in unlawful, deceptive and unfair business practices, as proscribed by California Business and Professions Code § 17200, ef seq., including those set forth herein above thereby depriving Plaintiff and other members of the class the minimum working condition standards and conditions due to them under the California laws as specifically described therein.

FOURTH CAUSE OF ACTION VIOLATION OF PRIVATE ATTORNEYS’ GENERAL ACT (BY PLAINTIFF AS A PROXY FOR STATE OF CALIFORNIA ON BEHALF OF ALL AGGRIEVED EMPLOYEES)

49, Plaintiff re-alleges and incorporates by reference paragraphs 1 through 48 as

though fully set for herein.

50. Plaintiff brings this cause of action on behalf as a proxy for the State of California and in this capacity, seeks civil penalties on behalf of all Aggrieved Employees for Defendant’s violation of Labor Code §§ 226, 510, 558, 1194, and 1197.1, from January 2, 2017, through the present.

51. On or about January 2, 2018, Plaintiff sent written notice to the California Labor & Workforce Development Agency (“LWDA?”) of Defendant’s violations of Labor Code §§ 201- 204, 226, and 510 pursuant to Labor Code § 2698, ef seq.

52. As of the date of the filing of this Complaint, the LWDA has not provided written notice as to whether it intends to investigate the Labor Code violations set forth in Plaintiff’s written notice and, thus, allowing Plaintiff to proceed under PAGA against Defendants for said violations. Therefore, Plaintiff may seek all applicable penalties under the PAGA.

3. As such, pursuant to Labor Code § 2699(a), Plaintiff seeks recovery of any and all applicable civil penalties for Defendant’s violation of Labor Code §§ 226, 510, 558, 1194, and 1197.1, for the time periods described above on behalf of all other Aggrieved Employees.

FIFTH CAUSE OF ACTION FAILURE TO ACCOMMODATE IN VIOLATION OF THE FEHA (BY PLAINTIFF AS AN INDIVIDUAL AGAINST DHL AND DOES 1-50)

54. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 53 as though fully set for herein.

55. California Government Code Section 12940(m) requires an employer to make reasonable accommodations for physical and/or mental disabilities of an employee. Defendants denied Plaintiff reasonable accommodations, including refusing to honor Plaintiff’s medical restrictions. Plaintiff’s medical restrictions included Plaintiff not using a computer more than 15 minutes per hour, sitting 75% of the time, not driving company vehicles, only performing ground level work, and not working in safety sensitive situations.

56. As a proximate result of Defendants’ failure to accommodate Plaintiff, she has suffered and continues to suffer compensatory damages, including without limitation, lost wages, loss of future earnings and earning capacity, emotional distress, mental anguish, embarrassment,

humiliation, loss of future advancement, and damage to her reputation in the business

12 community, in the amount of at least $25,000.00, according to proof at the time of trial, which is in excess of the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date of the filing of this action pursuant to California Civil Code Sections 3281 and/or 3288, and/or any other provision of law providing for prejudgment interest.

3/, As a proximate result of Defendants’ failure to accommodate Plaintiff, she has been forced to hire attorneys to prosecute the claims alleged herein, and has incurred and is expected to continue to incur attorneys’ fees. Pursuant to California Government Code Section 12965(b), Plaintiff requests the award of attorneys’ fees against Defendants.

58. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard of Plaintiff’s rights and safety. As such, Plaintiff is entitled to an award of punitive damages in an amount according to proof.

SIXTH CAUSE OF ACTION FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN VIOLATION OF THE FEHA (BY PLAINTIFF AS AN INDIVIDUAL AGAINST DHL AND DOES 1-50)

59. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 58 as though fully set for herein.

60. California Government Code Sections and 12926.1(e) and 12940(n) provide that it 1s unlawful for an employer to fail to engage in a timely, good faith interactive process with an employee to determine effective reasonable accommodations.

61. Defendants failed to engage in an adequate interactive process with Plaintiff, including without limitation, with respect to Plaintiff’s medical restrictions.

62. As a proximate result of Defendants’ failure to engage in the interactive process with Plaintiff, she has suffered and continues to suffer compensatory damages, including without limitation, lost wages, loss of future earnings and earning capacity, emotional distress, mental

anguish, embarrassment, humiliation, loss of future advancement, and damage to her reputation in the business community, in the amount of at least $25,000.00, according to proof at the time of trial, which is in excess of the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date of the filing of this action pursuant to California Civil Code Sections 3281 and/or 3288, and/or any other provision of law providing for prejudgment interest.

63. As a proximate result of Defendants’ failure to engage in the interactive process with Plaintiff, she has been forced to hire attorneys to prosecute the claims alleged herein, and has incurred and is expected to continue to incur attorneys’ fees. Pursuant to California Government Code Section 12965(b), Plaintiff requests the award of attorneys’ fees against Defendants.

64. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard of Plaintiff’s rights and safety. As such, Plaintiff is entitled to an award of punitive damages in an amount according to proof.

SEVENTH CAUSE OF ACTION HARASSMENT IN VIOLATION OF THE FEHA (BY PLAINTIFF AS AN INDIVIDUAL AGAINST ALL DEFENDANTYS)

65. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 64 as though fully set for herein.

66. At all times mentioned herein, the FEHA, California Government Code Section 12900, et seq., was in full force and effect and was binding on the Company, as Defendants regularly employed five or more persons. California Government Code Section 12940(j)(1) prohibits harassment of any employee because of disability.

67. As set forth above, both Lewis and Chaparro harassed Plaintiff on account of her disability, including being subjected to inappropriate comments and questions. For example, Lewis accused Plaintiff of “faking™ her disability. Further, Plaintiff was harassed by coworkers at work about her disability, including being unfairly scrutinized. When Plaintiff reported this

harassment to Chaparro in HR, he dismissed Plaintiff’s complaints and refused to remedy, investigate and/or remedy the harassment. Moreover, when Plaintiff was on medical leave, Chaparro harassed Plaintiff by calling her and inquiring about her condition, which further added to Plaintiff’s emotional distress.

68. As a proximate result of Defendants’ harassment against Plaintiff, she has suffered and continues to suffer compensatory damages, including without limitation, lost wages, loss of future earnings and earning capacity, emotional distress, mental anguish, embarrassment, humiliation, loss of future advancement, and damage to her reputation in the amount of at least $25,000.00, according to proof at the time of trial, which is in excess of the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date of the filing of this action pursuant to California Civil Code Sections 3281 and/or 3288, and/or any other provision of law providing for prejudgment interest.

69. As a proximate result of Defendants’ harassment against Plaintiff, she has been forced to hire attorneys to prosecute the claims alleged herein, and has incurred and is expected to continue to incur attorneys’ fees. Pursuant to California Government Code Section 12965(b), Plaintiff requests the award of attorneys’ fees against Defendants.

70. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard of Plaintiff’s rights and safety. As such, Plaintiff is entitled to an award of punitive damages in an amount according to proof.

EIGHTH CAUSE OF ACTION FAILURE TO PREVENT HARASSMENT IN VIOLATION OF THE FEHA (AGAINST DHL AND DOES 1-50 BY PLAINTIFF AS AN INDIVIDUAL)

71. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 70 as though fully set for herein.

72. California Government Code Section 12940(k) provides that it is an unlawful employment practice for an employer “to fail to take all reasonable steps necessary to prevent

discrimination and harassment from occurring.” 73, As alleged above, Plaintiff was repeatedly harassed by Defendants. Defendants, however, did nothing to rectify their unlawful conduct. To the contrary, despite Plaintiff’s complaints of unlawful conduct, Defendants ignored Plaintiff and instead continued to harass Plaintiff.

74. As a result, Defendants violated Section 12940(k) by not taking all reasonable steps to prevent harassment from occurring and, thus, are liable for violation of the FEHA.

75. As a proximate result of Defendants’ failure to adequately prevent the continued harassing acts committed against Plaintiff, she has suffered and continues to suffer compensatory damages, including without limitation, lost wages, loss of future earnings and earning capacity, emotional distress, mental anguish, embarrassment, humiliation, loss of future advancement, and damage to her reputation in the amount of at least $25,000.00, according to proof at the time of trial, which is in excess of the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date of the filing of this action pursuant to California Civil Code Sections 3281 and/or 3288, and/or any other provision of law providing for prejudgment interest.

76. As a proximate result of Defendants’ failure to adequately prevent the continued discrimination against Plaintiff, she has been forced to hire attorneys to prosecute the claims alleged herein, and has incurred and is expected to continue to incur attorneys’ fees. Pursuant to California Government Code Section 12965(b), Plaintiff requests the award of attorneys’ fees against Defendants.

77. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard of Plaintiff’s rights and safety. As such, Plaintiff is entitled to an award of punitive damages 1n an amount according to proof.

NINTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (AGAINST ALL DEFENDANTS BY PLAINTIFF INDIVIDUALLY)

78. Plaintiff re-alleges and incorporates by reference paragraphs 1 through 77 as though fully set for herein.

79. When Defendants, and the each of them, committed the acts described above, they did so deliberately and intentionally to cause Plaintiff to suffer humiliation, mental anguish, and emotional distress. The outrageousness of the above-described conduct is amplified due to upper management’s abuse of their positions with actual and apparent authority over Plaintiff, such as is commonly found in employment relationships. The Defendants, and each of them, were aware of their unlawful acts would cause Plaintiff to suffer extreme emotional distress and other consequential damages.

80. The above-said acts of the Defendants, and each of them, constituted intentional infliction of emotional distress against Plaintiff and such conduct of the Defendants was a substantial or determining factor in causing damage and injury to Plaintiff.

81. As a result of Defendants’ intentional infliction of emotional distress, Plaintiff has suffered and continues to suffer substantial loss and damages including, loss of salary, future advancement, bonuses, benefits, embarrassment, humiliation, and mental anguish in an amount to be determined at trial.

82. Defendants, and each of them, committed said intentional infliction of emotional distress alleged herein against Plaintiff, maliciously, fraudulently, and oppressively with the wrongful intent of injuring Plaintiff for an improper and evil motive which constitutes a malicious and conscious disregard of Plaintiff’s rights. Plaintiff is thereby entitled to punitive damages from the Defendants in an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment for herself and all others on whose behalf

this suit is brought against Defendants, jointly and severally, as follows:

Is For an order certifying the proposed classes;

2. For an order appointing Plaintiff as the representative of the classes as described herein;

3 For an order appointing Counsel for Plaintiff as class counsel; o

Upon the First Cause of Action, for damages and/or penalties pursuant to statute as set forth in Labor Code §§ 510, 558, 1194, and 1197.1, and for costs and

attorneys’ fees;

o

Upon the Second Cause of Action, for penalties and/or damages pursuant to

California Labor Code § 226, and for costs and attorneys’ fees;

&

Upon the Third Cause of Action, for restitution to Plaintiff and other similarly effected members of the general public of all funds unlawfully acquired by Defendants by means of any acts or practices declared by this Court to be in

violation of Business and Professions Code § 17200, ef seq.;

o

Upon the Fourth Cause of Action, for civil penalties, costs and attorneys’ fees as

provided by the PAGA;

S

Upon the Fifth through Eighth Causes of Action, for all applicable damages, including without limitation, general and special damages, punitive damages,

costs and attorneys’ fees;

©

Upon the Ninth Cause of Action, for all applicable damages, including without limitation, emotional distress damages, punitive damages and costs;

10. On all causes of action for attorneys’ fees and costs as provided by California Labor Code §§ 226, 510, 558, 1194, 1197.1, Government Code § 12965 and Code of Civil Procedure § 1021.5; and

11. For such other and further relief the Court may deem just and proper.

DATED: March 13, 2018 POLARIS LAW GROUP, LLP

ByM

DEMAND FOR JURY TRIAL

Only as to Plaintiff’s individual causes of action, i.e., the Fourth and Fifth Causes of

Action, Plaintiff hereby demands a jury trial as provided by California law.

DATED: March 13, 2018 POLARIS LAW GROUP, LLP

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/ : W "’/’7 /""‘/ /-! o By: V/fi/fl Wi

William L. Marder Attorneys for Plaintiff and the Classpage 19 can't be parsed

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COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)

In the Matter of the Complaint of Marva Wells DFEH No. 201803-01546613

Complainant, VS.

DHL EXPRESS (USA), INC.

Marcus Lewis

Matt Chaparro

Respondents.

1. Respondent DHL EXPRESS (USA), INC. is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).

2. Complainant Marva Wells, resides in the City of State of .

3. Complainant alleges that on or about March 13, 2018, respondent took the following adverse actions:

Complainant was harassed because of complainant's family care or medical leave (cfra), disability (physical or mental), medical condition (cancer or genetic characteristic).

Complainant was discriminated against because of complainant's family care or medical leave (cfra), disability (physical or mental), medical condition (cancer or genetic characteristic) and as a result of the discrimination was asked impermissible non-job-related questions, denied a work environment free of discrimination and/or retaliation, denied reasonable accommodation for a disability.

- Complaint — DFEH No. 201803-01546613 Complainant experienced retaliation because complainant requested or used california family rights act or fmla, requested or used a disability-related accommodation and as a result was denied a work environment free of discrimination and/or retaliation, denied reasonable accommodation for a disability.

Additional Complaint Details: 1. Plaintiff suffered a head injury at work while performing her work duties on or about May 17, 2017. After Plaintiff suffered her head injury, she suffered from a disability in that the injury limited Plaintiff's life activities, including working and/or Defendants perceived Plaintiff to be disabled. Plaintiff's injury required her to take a medical leave of absence from on or about June 7, 2017, through July 4, 2017. Plaintiff's injury further required additional medical leaves following her initial leave. After Plaintiff was injured, Defendants failed to engage in a good faith interactive process and/or accommodate Plaintiff's disability, including without limitation, following Plaintiff's medical restrictions. Rather, Defendants ignored Plaintiff's medical restrictions. Plaintiff's supervisor, Lewis, even told Plaintiff to “stop faking.” Plaintiff’'s coworkers repeatedly harassed Plaintiff as well, including without limitation, asking about her condition and scrutinizing her work hours. When Plaintiff reported this to Chaparro in HR, he rejected Plaintiff's complaints and did nothing to remedy, investigate and/or prevent the harassment. Further, while Plaintiff was out on medical leave, Chaparro improperly directly communicated with Plaintiff and harassed her about her medical conditions.

VERIFICATION

|, Dennis Hyun, am the Attorney in the above-entitled complaint. | have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which | believe to be true.

On March 13, 2018, | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Los Angeles, CA