draft facc-changes accepted 5-29...
TRANSCRIPT
Exhibit A
Case 2:20-cv-03146-JFW-PLA Document 49-1 Filed 05/29/20 Page 1 of 30 Page ID #:298
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00170571.DOCX 1 AMENDED COUNTERCLAIM FOR DAMAGES
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THE MALONEY FIRM, APC PATRICK M. MALONEY - State Bar No. 197844 CRAIG T. REESE - State Bar No. 238332 2381 Rosecrans Avenue, Suite 405 El Segundo, California 90245 T: (310) 540-1505 | F:(310) 540-1507 E: [email protected] E: [email protected] Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CURTIS CONYERS AND DANIEL LANGFORD, trustees, participants and/or authorized agents of THE CARPENTERS SOUTHWEST TRUSTS,
Plaintiff,
vs. MARISA CANO, an individual; and SANDRA MALONEY, an individual,
Defendant,
Case No.: 2:20-cv-03146 JFW (PLAx) Judge: Hon. John F. Walter Courtroom: 7A Complaint Filed: April 3, 2020 DEFENDANT AND COUNTERCLAIM PLAINTIFF SANDRA MALONEY’S FIRST AMENDED COUNTERCLAIMS FOR DAMAGES DEMAND FOR JURY TRIAL
SANDRA MALONEY, an individual,
Counterclaim Plaintiff,
vs. CARPENTERS SOUTHWEST ADMINISTRATIVE CORPORATION, a California Corporation; CURTIS CONYERS and DANIEL LANGFORD, trustees and/or participants of the CARPENTERS SOUTHWEST TRUSTS; BOARD OF TRUSTEES FOR THE CARPENTERS SOUTHWEST TRUSTS; DOUGLAS MCCARON, an Individual;
Counterclaim Defendants.
1. Harassment in violation of the Cal. FEHA;
2. Retaliation in violation of the Cal. FEHA;
3. Discrimination in violation of the Cal. FEHA;
4. Associational Discrimination in violation of the Cal. FEHA;
5. Retaliation in violation of Cal. Labor Code § 1102.5;
6. Intentional Infliction of Emotional Distress;
7. Violation of Cal. Labor Code § 6310; 8. Wrongful Termination in Violation of
Public Policy;
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00170571.DOCX 2 AMENDED COUNTERCLAIM FOR DAMAGES
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9. Failure to Prevent Discrimination, Retaliation, and Harassment in Violation of the Cal. FEHA;
10. Trespass to Chattels.
INTRODUCTION
1. This action arises after a long-term employee of the CARPENTERS
SOUTHWEST ADMINISTRATIVE CORPORATION and CARPENTERS
SOUTHWEST TRUSTS was terminated for complaining about working conditions
and attempting to secure the health and safety of the workforce during the COVID-19
pandemic. Counterclaim Plaintiff was subjected to years of sexual harassment and
was told by opposing counsel that she should sue her employer because of the
mistreatment. Substantial factors for her termination were her gender, association
with other individuals, cooperating in a government investigation, and complaining
about working conditions.
PARTIES
2. Defendant and Counterclaim Plaintiff SANDRA MALONEY
(hereinafter “SANDRA”) is 53 years old. She has worked in companies that provide
support to organized labor and labor unions for the entirety of her adult life. All of her
jobs have been with various entities that are part of the Southwest Carpenters
organization.
3. Counterclaim Defendant CARPENTERS SOUTHWEST
ADMINISTRATIVE CORPORATION (hereinafter “CSAC”) administers the
CARPENTERS SOUTHWEST TRUSTS. CSAC has a Board of Directors that is
exclusively comprised of Trustees of the CARPENTERS SOUTHWEST TRUSTS.
During board meetings, the members of the Board of Directors are referred to as
Trustees.
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00170571.DOCX 3 AMENDED COUNTERCLAIM FOR DAMAGES
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4. Counterclaim Defendant DOUGLAS MCCARRON (hereinafter
“MCCARRON”) is the Chief Executive Officer of CSAC and a member of its Board
of Directors. He is also a member of the BOARD OF TRUSTEES FOR THE
CARPENTERS SOUTHWEST TRUSTS and is the General President of the United
Brotherhood of Carpenters and Joiners of America. Until SANDRA’s termination, he
was her boss at CSAC.
5. Plaintiff and Counterclaim Defendant CURTIS CONYERS is allegedly a
paid trustee, a participant and/or is authorized to act on behalf of the CARPENTERS
SOUTHWEST TRUSTS (consisting of the Southwest Carpenters Pension Trust,
Southwest Carpenters Health and Welfare Trust, Southwest Carpenters
Apprenticeship Trust, and the Southwest Carpenters Vacation Trust). Plaintiff and
Counterclaim Defendant DANIEL LANGFORD is allegedly a trustee, a participant
and/or is authorized to act on behalf of the CARPENTERS SOUTHWEST TRUSTS.
LANGFORD is also the Executive Secretary-Treasurer of the Carpenters Southwest
Regional Council of Carpenters.
6. The BOARD OF TRUSTEES FOR THE CARPENTERS SOUTHWEST
TRUSTS is a fiduciary and a duly authorized and acting trustee of the various
Carpenters Trust Funds (hereinafter LANGFORD and CONYERS acting on behalf of
CARPENTERS SOUTHWEST TRUSTS and the BOARD OF TRUSTEES FOR THE
CARPENTERS SOUTHWEST TRUSTS collectively referred to as “TRUSTS”).
JURISDICTION AND VENUE
7. This Court has supplemental jurisdiction in this counterclaim pursuant to
28 U.S.C. Section 1367 for causes of action under California law.
8. This District possesses venue of this matter pursuant to 28 U.S.C. Section
1391, because the events and omissions giving rise to the claims alleged in this
counterclaim occurred in Los Angeles County, a county within the Central District of
California. The amount in controversy in this action exceeds the jurisdictional limits
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00170571.DOCX 4 AMENDED COUNTERCLAIM FOR DAMAGES
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of this Court.
STATEMENT OF FACTS
9. SANDRA has worked in the world of organized labor for her entire adult
life. She devoted her career to ensuring that members of the union were provided with
the level of service needed. Her entire career was spent working for entities affiliated
with Carpenters Southwest organization.
10. SANDRA was an employee of CSAC.
11. There are five separate main trusts and several smaller ancillary trusts,
which comprise the CARPENTERS SOUTHWEST TRUSTS, which collect
contributions from the members. CSAC was created to administer the various funds
of the trusts. SANDRA, who is not a lawyer and has no legal training, had been under
the impression that CSAC was her sole employer. Notwithstanding SANDRA’s lay
understanding, the TRUSTS are joint employers of SANDRA, along with CSAC,
within the meaning of California and federal law, given, among other things, the
control they have exercised over her employment with CSAC, including their decision
to terminate SANDRA and the TRUSTS’ allegations in the Complaint on file in this
action that they employed and terminated SANDRA.
12. Based on information and belief, she believes and herein alleges that the
Plaintiffs and Counterclaim Defendants TRUSTS are a joint employer of her because
they exercised control over the conditions of her employment and share control with
Counterclaim Defendant CSAC over the terms of SANDRA’s employment, including
control over SANDRA’s wages, hours, and working conditions. To wit, SANDRA
understands and is informed and believes that the TRUSTS assert in this action that
they control her working hours and work locations, among other things, with regard to
the TRUSTS positions regarding a so-called “four-hour rule.” The working
conditions of SANDRA and others employed by CSAC are controlled by the
TRUSTS, which has asserted in the Complaint on file herein that SANDRA and her
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00170571.DOCX 5 AMENDED COUNTERCLAIM FOR DAMAGES
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colleagues at CSAC were required to work a certain number of hours, from certain
locations, at prescribed times. SANDRA is informed and believes that these policies
were developed by the TRUSTS’ counsel, including its counsel of record in this
action, on behalf of the TRUSTS to control the employment of CSAC employees,
including SANDRA. Further, SANDRA is informed and believes and based thereon
alleges that the TRUSTS made the decision and instructed CSAC to terminate
SANDRA’s employment with CSAC. Further still, SANDRA is informed and
believes that the TRUSTS were responsible for decisions concerning the severance
package that had been offered to SANDRA and then retracted. Even further still, the
TRUSTS have alleged in Paragraph 4 of the Complaint on file herein that they are
SANDRA’s employer and alleged in Paragraphs 4 and 12 of the Complaint that
SANDRA owed fiduciary duties to the TRUSTS.
SANDRA IS SUBJECTED TO SEXUAL HARASSMENT AND PROTESTS
ILLEGAL CONDUCT
13. During the period from 1992 to 2011, SANDRA had an off and on
romantic relationship with MCCARRON, her boss, the Chief Executive Office of
CSAC, a member of its Board of Directors, and a member of the BOARD OF
TRUSTEES FOR THE CARPENTERS SOUTHWEST TRUSTS.
14. After the end of their personal relationship, SANDRA and MCCARRON
continued to work together professionally.
15. After the relationship ended in 2011 and continuing to shortly before her
termination, however, MCCARRON engaged in behavior towards SANDRA that was
offensive and unwelcome. Some conduct and comments that were once considered
welcome became unwelcome and offensive as the conduct and comments continued
unabated despite the relationship ending.
16. MCCARRON would often treat SANDRA inappropriately.
MCCARRON would instill fear in SANDRA and was hostile; other times,
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00170571.DOCX 6 AMENDED COUNTERCLAIM FOR DAMAGES
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MCCARRON was flirtatious and chatty with SANDRA. MCCARRON was very
comfortable with SANDRA and often talked about her body or blue eyes, sometimes
telling her to look in the mirror and not be upset about anything when she would seek
advice about work-related issues. MCCARRON has made many references to
SANDRA’s breasts in her office or on phone calls to her during work hours and has
made the comment that SANDRA will never have to worry about drowning. He
would ask if “they are real or Memorex.” MCCARRON would flirt with SANDRA
and say things like, “Hey Young Lady.” Recently, when alone with SANDRA in her
office, MCCARRON asked SANDRA for a hug, to which she did not consent but
reluctantly complied as she was fearful of spurning her boss’s advances.
MCCARRON hugged SANDRA, squeezed her, and said, “this is dangerous.”
17. In March 2020, SANDRA told CSAC’s CFO, Nina Gutierrez, and other
employees that she was sick of the harassment by MCCARRON. Shortly thereafter,
SANDRA was placed on administrative leave.
18. Desmond Lee, a lawyer with DeCarlo & Shanley, counsel for Plaintiffs
and Counterclaim Defendants TRUSTS in this action, provided SANDRA with advice
concerning her rights resulting from such misconduct.
19. In February 2020, SANDRA participated in an interview during an
investigation by the Department of Labor, at which time she was represented by
counsel for the TRUSTS in this action, DeCarlo & Shanley. SANDRA cooperated as
required by law and provided truthful information during the investigation.
20. The main inquiry of the Department of Labor investigation related to
how the TRUSTS handled internal processes for processing benefits. MCCARRON
and the TRUSTS became fearful the investigation could result in a financial audit for
CSAC.
21. Following the Department of Labor interview, SANDRA learned that
MCCARRON, working with John DeCarlo, added to the agenda of the March 2020
Quarterly Board of Trustees Meeting an item for approval consisting of creating a
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00170571.DOCX 7 AMENDED COUNTERCLAIM FOR DAMAGES
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request for proposal and contract for a new consulting firm to do claims auditing for
the TRUSTS.
22. After learning of the proposal, SANDRA contacted MCCARRRON and
raised concerns about the proposal, including that the TRUSTS had very recently
entered into a contract with another auditing firm following approval at the most
recent CSAC meeting, that the existing auditor had already been paid, and that the
audit was set to begin soon. SANDRA questioned why a new auditor was necessary
and further raised her concerns that inaccurate information had been used in creating
the request for proposal for the new auditor. MCCARRON became angry and ended
the conversation.
23. Despite SANDRA’s earlier efforts to voice her concerns, MCCARRON
nonetheless introduced the request for proposal at the Trustee Board Meeting on
March, 20, 2020, seeking approval to hire the new auditor. At MCCARRON’s
request, the Trustees agreed to table the decision to a later date. Sandra was put on
administrative leave that afternoon.
SANDRA PROTESTS COVID-19 POLICIES
24. On or about March 13, 2020, a participant of the TRUSTS came to the
building wearing a face mask and coughing. The participant told the receptionist that
he needed help figuring out his insurance as he had just had a COVID-19 test. Several
employees were exposed to this individual, so Human Resources sent them home to
self-quarantine.
25. On March 13, 2020, Desmond Lee provided to SANDRA and her
colleagues advice and guidance regarding health and safety issues relating to the
COVID-19 pandemic.
26. CANO and SANDRA disagreed with the advice provided by Desmond
Lee and argued in favor of a greater degree of protection for their colleagues and co-
workers.
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00170571.DOCX 8 AMENDED COUNTERCLAIM FOR DAMAGES
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27. In early March, as the COVID-19 pandemic was rapidly expanding
throughout the country, CSAC employee Chris Edlebi requested that she be permitted
to work from home. Ms. Edlebi was SANDRA’s executive assistant and SANDRA
wanted to make sure that Ms. Edlebi was able to continue working in a safe manner.
SANDRA wanted to make sure that Ms. Edlebi received fair and equitable treatment
and that a request for accommodation was considered. She expressed concern that she
was considered high risk of exposure and medical complications from the virus
because she was 69 years old and took public transportation to work. HR also shared
the concerns and wanted to try to find a way to have Ms. Edlebi do her work from
home for a couple weeks. Ms. Edlebi expressed to SANDRA that she was concerned
for her health. Ms. Edlebi was deeply troubled by COVID-19 and was visibly upset.
28. SANDRA was instructed that Ms. Edlebi would not be permitted to work
from home.
29. During this period, MCCARRON expressed that he would have
employees of CSAC and affiliated companies declared “essential employees,” who
would be allowed to continue to work. SANDRA understood that MCCARRON
would seek this designation in order to avoid or dilute the obligations to provide
reasonable accommodations and refrain from discriminating against employees.
30. On or about March 16, 2020, Governor Gavin Newsom issued a mandate
that individuals 65 years or age of older should self-isolate at home.
31. SANDRA and Mr. Lee exchanged a series of emails concerning Ms.
Edlebi’s employment and request to work from home, with SANDRA advocating for
the health and safety of Ms. Edlebi.
32. SANDRA protested the propriety of MCCARRON attempting to have
CSAC and its affiliated companies declared “essential employers” and disagreed with
the legal advice the Mr. Lee was purporting to provide so that CSAC employees
would continue to provide services to Mr. Lee’s other client, the TRUSTS. SANDRA
reasonably believed that declaring CSAC and its affiliated companies an essential
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00170571.DOCX 9 AMENDED COUNTERCLAIM FOR DAMAGES
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employer and not permitting accommodations for the employees was illegal.
SANDRA was informed that Ms. Edlebi would not be permitted to work from home.
After advocating for an accommodation for Ms. Edlebi and protesting the declaration
that CSAC and its affiliated entities were an essential employer, SANDRA became
fearful that Counterclaim Defendants would terminate her for not being a “team
player.”
33. Many other employees of CSAC and its affiliated and related entities
were permitted to work from home.
34. Later, during a CSAC Board Meeting, the Board Members, who are also
each a Trustee of the TRUSTS, informed SANDRA they had found out about the
email correspondence involving Ms. Edlebi and were unhappy with SANDRA. After
the Board Meeting, the Board Members began to question SANDRA’s work time and
the “four-hour rule.”
35. SANDRA was very concerned with the health and safety issues that
would be created by requiring older, health-compromised employees to come to the
office. For this reason, SANDRA objected to what she understood from her
communication with counsel for both CSAC and the TRUSTS, that the TRUSTS, and
hence its support agency, CSAC, were requiring that employees such as SANDRA
and Ms. Edlebi be required to come to work and be deprived of the opportunity to
work from home or engage in “social distancing.”
SANDRA SUFFERS RETALIATION
AND IS WRONGFULLY TERMINATED
36. In response to SANDRA’s advocacy for Ms. Edlebi, SANDRA was
challenged by CSAC’s and the TRUSTS’ counsel about certain employment practices
that had long been in place. Namely, the so-called “four-hour rule” that had been
implemented by another CSAC Executive Administrator. The four-hour rule allowed
exempt employees to sometimes come into work for four hours in the morning and
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00170571.DOCX 10 AMENDED COUNTERCLAIM FOR DAMAGES
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work the remaining part of the workday outside of the office, so long as it was
approved.
37. Working full days from home was not a foreign or uncommon policy
for the TRUSTS and CSAC, and did not require any excess expense to allow
employees to work from home. For example, a previous Executive Administrator,
Kevin Wolfe, who is male, worked from home at least one day per week. SANDRA
is informed and believes and based thereon alleges that Mr. Wolfe has not been sued
for, nor accused of, breaching any fiduciary obligations.
38. On a late night, weekend phone call to her personal cellphone, Mr. Lee
discussed with SANDRA the accusations against her and apologized to her.
39. SANDRA became aware that the lawyers in Mr. Lee’s firm were
interviewing numerous individuals in an attempt to scapegoat SANDRA for the four-
hour rule, notwithstanding that she did not develop or implement the rule.
40. On or about March 20, 2020, Daniel Shanley – who is the lawyer that
filed this suit for the TRUSTS – and his partner John DeCarlo met with SANDRA to
place SANDRA on administrative leave. They told SANDRA that they wanted to talk
about an exit strategy with her because there was “bad blood” with the Trustees.
SANDRA understood the comments of the TRUSTS’ attorneys to convey that the
Trustees of the TRUSTS had concluded and directed that CSAC should terminate her
employment with CSAC.
41. Messrs. Shanley and DeCarlo informed SANDRA that they had just met
with the Trustees, and Messrs. Shanley and DeCarlo wished to talk to discuss what
she would want to terminate her employment with CSAC. When SANDRA gave an
amount of two years’ salary and pension credits, they said that amount was too much.
Based on the information provided to her by Messrs. Shanley and DeCarlo, SANDRA
understood that it was the Trustees of the TRUSTS, in their capacity as Trustees, that
made the decision and required that CSAC terminate her employment.
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00170571.DOCX 11 AMENDED COUNTERCLAIM FOR DAMAGES
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42. Based on SANDRA’s experience with other terminations conducted by
CSAC and its affiliates (as CSAC’s now sixth Executive Administrator in nine years),
CSAC and its affiliates typically paid very substantial severance packages.
43. Based on SANDRA’s knowledge of severance packages offered to other
former employees, her extended tenure with CSAC and affiliated entities, her age, her
concern that she would be unable to find suitable replacement employment, and the
reasons for which CSAC wished to terminate her employment, she requested a
severance package equivalent to two years’ compensation.
44. After informing SANDRA that the severance package she requested was
too much, Messrs. Shanley and DeCarlo proceeded to chastise her about the four-hour
rule and, in an apparent move to gain an upper hand in the negotiation, threatened
SANDRA by accusing her of engaging in criminal behavior by partaking in CSAC’s
four-hour rule. These threats by Messrs. Shanley and DeCarlo were not a personnel
function, but instead were unlawful and outrageous conduct, in violation of the
California Rules of Professional Conduct, made solely in order to put SANDRA into a
state of fear and duress to coerce SANDRA into taking an offer of severance without
any time to consider the offer or speak with counsel, notwithstanding that under the
Older Workers Benefit Protection Act, Age Discrimination in Employment Act, and
29 C.F.R. 1625.22(e), due to her age (she is over 40 years of age) SANDRA should
have been provided both the opportunity to speak with counsel and 21 days to review
any severance package. SANDRA is informed and believes that the conduct of
Messrs. Shanley and DeCarlo violates Rule 3.10 of the California Rules of
Professional Conduct applicable to attorneys licensed and practicing within the State
of California.
45. Messrs. Shanley and DeCarlo proceeded to threaten and attempt to extort
SANDRA on behalf of CSAC and TRUSTS by telling her that if things went any
further, she should know that information about SANDRA’s past would get out.
SANDRA understood Messrs. Shanley’s and DeCarlo’s threat to be about her past
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relationship with MCCARRON and others, suggesting that the disclosure of that prior
relationship would harm her relationship with her husband, whom she married in
April 2016. SANDRA responded by saying that it was okay because her husband
knows everything about her past.
46. SANDRA informed them that if they were not going to terminate her, she
was going to go back to work.
47. Approximately three hours later, Messrs. Shanley and DeCarlo returned
to put SANDRA on administrative leave but did not say why. They escorted
SANDRA to her car and took her parking pass and the key to the building.
48. SANDRA has not since returned to the building, and her personal
belongings have not been returned to her. CSAC remains in wrongful possession of
SANDRA’s personal possessions.
49. On or about March 30, 2020, SANDRA spoke to Mr. DeCarlo by
telephone. During that telephone call, Mr. DeCarlo claimed that she had engaged in
criminal conduct by attempting to extort his clients in the prior meeting SANDRA had
with him and Mr. Shanley because she had asked for a severance package that they
had unilaterally deemed too large.
SANDRA’S EMPLOYERS PROVIDE PRETEXTUAL REASONS TO
SUPPOSEDLY JUSTIFY HER WRONGFUL TERMINATION
50. Despite his representations in prior severance package negotiations, Mr.
DeCarlo also told SANDRA that she was being terminated because of her role with
regard to the four-hour rule and because she had taken off too many days in 2019.
SANDRA is informed and believes that the Board of Directors for CSAC had to
authorize this action and made the decision to terminate her.
51. With regards to the four-hour rule, Mr. DeCarlo claimed SANDRA had
engaged in criminal conduct and could face criminal prosecution. SANDRA was
intimidated and frightened by the threats coming from Mr. DeCarlo, an attorney. As
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noted, Mr. DeCarlo’s threat of criminal prosecution violates rules that prohibit
lawyers making threats of criminal conduct to obtain an advantage in a civil dispute.
52. Further demonstrating that the four-hour rule was not the real reason for
the termination of employment, CSAC has not terminated, sued or accused of breach
of fiduciary duty the other individuals who exercised the four-hour rule, nor has it
terminated, sued or accused of breach of fiduciary duty to the other individuals who
have been involved in discussions concerning the application of the four-hour rule.
To the contrary, rather than terminating Rich Crook, an individual who has taken
advantage of the four-hour rule, CSAC promoted him to fill the space vacated by
SANDRA’s termination.
53. Similarly, Mr. DeCarlo’s claim that SANDRA took off too much time in
2019 is also belied by a full understanding of the numerous, traumatic, and remarkable
life and family events in 2019 that many of the Trustees knew about, including, but
not limited to, MCCARRON. In early 2019, a member of SANDRA’s immediate
family suffered a sexual assault. In February 2019, her sister was diagnosed with lung
cancer. Her brother-in-law died suddenly of a stroke in May 2019. In Fall 2019, her
stepson who lived with her was involved in a serious auto accident during his first
week of college, rendering him a quadriplegic. Her father also received a cancer
diagnosis and passed on January 13, 2020. Her father-in-law passed a week later on
January 19, 2020.
54. In light of this trauma, it should come as no surprise she missed work in
2019. SANDRA did work on days off however, even if she was away from the office.
Though SANDRA was not always physically present in the office, she continued to
work, taking calls day and night from staff and others.
55. Trustee Dick Harris advised SANDRA to work from home because she
looked tired from the stress of the family trauma she had suffered.
///
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56. Dick Harris also advocated at meetings, in the presence of MCCARRON,
CONYERS, LANGFORD, and Nina Gutierrez, that SANDRA did not start the four-
hour rule, which was put in place by a prior individual, LaNell Petersen.
57. SANDRA is informed and believes and based thereon alleges that neither
CSAC nor the TRUSTEES have brought suit against or accused LaNell Petersen of
breaching fiduciary obligations she owed to any of them.
58. A previous Executive Administrator, Kevin Wolfe, was permitted to be
in the office only a few days a week and then work remotely from Seattle at least one
day a week.
59. An Operations Manager who reported to LANGFORD was allowed to
work from home and to depart from the office early.
60. Others who were allowed to work remotely include IT Manager Antonio
Quinnonez, Chris Westmoreland, Betty Becerra, Sonya Silva, Cecile Standridge,
Chris Hildago, Norman Guererro, Dan Vela, Vince Chianese, Paolo Gutierrez, Kristin
Tingley, Rich Crook, Francisco Villanueva, and Nina Gutierrez, among others.
SANDRA is informed and believes and based thereon alleges that neither CSAC nor
the TRUSTS have initiated suit or accused these individuals of breaching fiduciary
obligations.
61. In short, the TRUSTS and CSAC then concocted a pretextual basis to fire
SANDRA in an attempt provide cover for culling the most vocal dissident of the
Trustees’ within the organization. It is plain from the conduct of their attorneys, the
TRUSTS and CSAC are and were willing to do anything to intimidate and silence
SANDRA.
EXHAUSTION OF REMEDIES
62. SANDRA timely exhausted her administrative remedies by filing a
complaint with the California Department of Fair Employment and Housing on April
28, 2020, at which time she received a right to sue letter.
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00170571.DOCX 15 AMENDED COUNTERCLAIM FOR DAMAGES
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CAUSES OF ACTION
COUNT I
Sexual Harassment
Violation of Cal. Gov. Code § 12940(j)
(Against Counterclaim Defendants McCarron, Trusts, and CSAC)
63. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
64. At all relevant times mentioned herein, Counterclaim Plaintiff and
MCCARRON were employed by CSAC.
65. At all relevant times mentioned herein, Counterclaim Plaintiff is
informed and believes and based thereon alleges that the TRUSTS and CSAC
exercised control over the terms and conditions of her employment and work
environment.
66. At all relevant times, MCCARRON subjected and/or exposed
Counterclaim Plaintiff to a concerted, routine, and repeated pattern of unwanted,
unsolicited, offensive and abusive conduct, directly because of her gender, her
association with other individuals due to protected categories, and the perception of
engaging in protected activities. To the extent that the conduct herein complained by
Counterclaim Plaintiff was not specifically directed toward her, she witnessed it being
committed by MCCARRON in or near her immediate work environment.
67. MCCARRON’s conduct, as herein alleged and described, was
sufficiently severe or pervasive so as to adversely alter the condition of Counterclaim
Plaintiff’s employment.
68. Counterclaim Plaintiff has been informed, believes and thereon alleges
that any reasonable women of her age, national origin, and financial status would have
considered MCCARRON’s conduct to have created a work environment that was
hostile, abusive, and intimidating, and Counterclaim Plaintiff did so consider her work
environment to be as such.
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00170571.DOCX 16 AMENDED COUNTERCLAIM FOR DAMAGES
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69. Counterclaim Plaintiff has been informed, believes, and thereon alleges
that MCCARRON was, at all relevant times mentioned herein, an officer and
managing employee of CSAC and/or the TRUSTS and the illegal conduct
Counterclaim Plaintiff was subjected and/or exposed to was carried out with the prior
consent, approval, authorization, encouragement, knowledge, and/or ratification of
CSAC and/or the TRUSTS. Counterclaim Plaintiff has been informed, believes, and
thereon alleges that CSAC and/or the TRUSTS knew, must have known, had reason to
know, or should have known of MCCARRON’s behavior, yet failed to take
immediate, appropriate, or adequate corrective and/or remedial measures to protect
Counterclaim Plaintiff, in violation of Gov. Code §§ 12940(k) and 12940(j)(1).
70. Therefore, as a direct, foreseeable, legal and proximate result of
Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC and/or
the TRUSTS’ failure to take action in violation of Gov. Code §§ 12940(k) and
12940(j)(1), Counterclaim Plaintiff suffered substantial loss of tangible job benefits,
in addition to anxiety, trepidation, apprehension, panic, dread, fear, worry,
embarrassment, humiliation, shame, mental and emotional distress and discomfort, all
to her damage in an amount to be proven at trial. As a further direct, foreseeable,
legal, and proximate result of MCCARRON’s conduct and behavior, as herein
described, as well as CSAC and the TRUSTS’ failure to act, as herein set forth,
Counterclaim Plaintiff was also caused to retain attorneys and have thus incurred legal
fees, expenses, and costs, entitling her to reimbursement of same pursuant to Gov.
Code §12940(b), in an amount to be proven at trial.
71. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim
Plaintiff to punitive damages against Counterclaim Defendants.
///
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00170571.DOCX 17 AMENDED COUNTERCLAIM FOR DAMAGES
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COUNT II
Retaliation
Violation of Cal. Gov. Code § 12940(h)
(Against Counterclaim Defendants Trusts and CSAC)
72. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
73. Counterclaim Plaintiff’s complaints to Counterclaim Defendants about
sexual harassment, as well as mistreatment of other employees based on other
characteristics protected by FEHA, Government Code section 12900, et seq., were
motivating factors in Counterclaim Defendants’ decision to terminate Counterclaim
Plaintiff.
74. Counterclaim Plaintiff complained of and protested Counterclaim
Defendants’ illegal and wrongful actions. Thereafter, Counterclaim Defendants
retaliated against Counterclaim Plaintiff by harassing her and/or taking adverse
employment actions against her, in major part because she reported and complained of
activities that she reasonably believed to be unlawful under FEHA.
75. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional discrimination against Counterclaim Plaintiff, she has sustained and
continues to sustain substantial losses of earnings and other employment benefits.
76. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional retaliation against Counterclaim Plaintiff, Counterclaim Plaintiff has
sustained and continues to sustain substantial losses of earnings and other employment
benefits.
77. Therefore, as a direct, foreseeable, legal, and proximate result of
Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC and/or
the TRUSTS’ failure to take action in violation of Gov. Code §§ 12940(k) and
12940(j)(1), Counterclaim Plaintiff suffered substantial loss of tangible job benefits,
in addition to anxiety, trepidation, apprehension, panic, dread, fear, worry,
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00170571.DOCX 18 AMENDED COUNTERCLAIM FOR DAMAGES
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embarrassment, humiliation, shame, mental and emotional distress and discomfort, all
to her damage in an amount to be proven at trial. As a further direct, foreseeable,
legal, and proximate result of MCCARRON’s conduct and behavior, as herein
described, as well as CSAC and the TRUSTS’ failure to act, as herein set forth,
Counterclaim Plaintiff was also caused to retain attorneys and have thus incurred legal
fees, expenses, and costs, entitling her to reimbursement of the same pursuant to Gov.
Code §12940(b), in an amount to be proven at trial.
78. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim
Plaintiff to punitive damages against Counterclaim Defendants.
COUNT III
Discrimination on the Basis of Sex
Violation of Cal. Gov. Code § 12940(a)
(Against Counterclaim Defendants Trusts and CSAC)
79. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
80. Counterclaim Plaintiff’s gender, association with employees in a
protected status, complaints to Counterclaim Defendants about sexual harassment, as
well as mistreatment of other employees based on other characteristics protected by
FEHA, Government Code section 12900, et seq., were motivating factors in
Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.
81. Counterclaim Defendants discriminated against Counterclaim Plaintiff by
taking adverse employment actions against her, in major part because of her gender.
82. The harassment of Counterclaim Plaintiff by MCCARRON created a
hostile working environment and altered the terms and conditions of her employment.
83. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional discrimination against Counterclaim Plaintiff, Counterclaim Plaintiff has
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00170571.DOCX 19 AMENDED COUNTERCLAIM FOR DAMAGES
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sustained and continues to sustain substantial losses of earnings and other employment
benefits.
84. Therefore, as a direct, foreseeable, legal and proximate result of
Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC’s and/or
the TRUSTS’ failure to take action in violation of Gov. Code §§ 12940(k) and
12940(j)(1), Counterclaim Plaintiff suffered substantial loss of tangible job benefits,
in addition to anxiety, trepidation, apprehension, panic, dread, fear, worry,
embarrassment, humiliation, shame, mental and emotional distress and discomfort, all
to her damage in an amount to be proven at trial. As a further direct, foreseeable,
legal, and proximate result of MCCARRON’s conduct and behavior, as herein
described, as well as CSAC and the TRUSTS’ failure to act, as herein set forth,
Counterclaim Plaintiff was also caused to retain attorneys and have thus incurred legal
fees, expenses, and costs, entitling her to reimbursement of same pursuant to Gov.
Code §12940(b), in an amount to be proven at trial.
85. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim
Plaintiff to punitive damages against Counterclaim Defendants.
COUNT IV
Associational Discrimination
Violation of Cal. Gov. Code § 12940
(Against Counterclaim Defendants Trusts and CSAC)
86. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
87. Counterclaim Plaintiff’s gender, association with employees in a
protected status, complaints to Counterclaim Defendants about sexual harassment, as
well as mistreatment of other employees based on other characteristics protected by
FEHA, Government Code section 12900, et seq., were motivating factors in
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00170571.DOCX 20 AMENDED COUNTERCLAIM FOR DAMAGES
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Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.
88. Counterclaim Defendants discriminated against Counterclaim Plaintiff by
taking adverse employment actions against her, in major part because of her
association with individuals with protected status under FEHA.
89. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional discrimination against Counterclaim Plaintiff, Counterclaim Plaintiff has
sustained and continues to sustain substantial losses of earnings and other employment
benefits.
90. Therefore, as a direct, foreseeable, legal and proximate result of
Counterclaim Defendants’ conduct, acts, and/or omissions, including CSAC and/or
the TRUSTS’ failure to take action in violation of Gov. Code §§ 12940(k) and
12940(j)(1), Counterclaim Plaintiff suffered substantial loss of tangible job benefits,
in addition to anxiety, trepidation, apprehension, panic, dread, fear, worry,
embarrassment, humiliation, shame, mental and emotional distress and discomfort, all
to her damage in an amount to be proven at trial. As a further direct, foreseeable,
legal, and proximate result of MCCARRON’s conduct and behavior, as herein
described, as well as CSAC and the TRUSTS’ failure to act, as herein set forth,
Counterclaim Plaintiff was also caused to retain attorneys and have thus incurred legal
fees, expenses, and costs, entitling her to reimbursement of same pursuant to Gov.
Code §12940(b), in an amount to be proven at trial.
91. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim
Plaintiff to punitive damages against Counterclaim Defendants.
///
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00170571.DOCX 21 AMENDED COUNTERCLAIM FOR DAMAGES
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COUNT V
Retaliation
Violation of Cal. Labor Code § 1102.5
(Against Counterclaim Defendants Trusts and CSAC)
92. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
93. At all relevant times, Cal. Labor Code section 1102.5 was in effect and
was binding on Counterclaim Defendants. This statute prohibits Counterclaim
Defendants from retaliating against any employee, including Counterclaim Plaintiff,
for raising complaints of illegality.
94. Counterclaim Plaintiff raised complaints of illegality while she worked
for Counterclaim Defendants. The complaints included protesting the designation of
CSAC and its affiliated entities as “essential employers,” participating in a
government investigation, and questioning improper efforts to replace recently hired
auditors out of fear of Department of Labor audit. Counterclaim Defendants retaliated
against her by discriminating against her, harassing her, and taking adverse
employment actions, including employment termination, against her.
95. Counterclaim Plaintiff’s protests of illegal activities, were motivating
factors in Counterclaim Defendants’ decision to terminate Counterclaim Plaintiff.
96. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional violations of Labor Code section 1102.5, Counterclaim Plaintiff has
suffered and continues to suffer humiliation, emotional distress, and mental and
physical pain and anguish, all to her damage in a sum according to proof.
97. As a result of Counterclaim Defendants’ adverse employment actions
against Counterclaim Plaintiff, she has suffered general and special damages, and has
had to retain attorneys and has incurred attorneys’ fees, in sums according to proof.
98. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, oppressive, and fraudulent manner, entitling Counterclaim Plaintiff to
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00170571.DOCX 22 AMENDED COUNTERCLAIM FOR DAMAGES
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punitive damages against Counterclaim Defendants.
COUNT VI
Intentional Infliction of Emotional Distress
(Against Counterclaim Defendants McCarron, Trusts, and CSAC)
99. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
100. Counterclaim Defendants engaged in conduct directed at Counterclaim
Plaintiff, directly and through their agents, DeCarlo, Shanley, and Lee, including the
following misconduct which is outside of the scope of the employment bargain,
including:
a. Sexual harassment in violation of FEHA;
b. Retaliation in violation of FEHA;
c. Discrimination in violation of FEHA;
d. Retaliation in violation of the California Labor Code;
e. Extortion and duress brought on by threatening criminal
prosecution and the disclosure of personal and private information.
101. Counterclaim Defendants’ unlawful, discriminatory, harassing, and
retaliatory actions against Counterclaim Plaintiff constituted severe and outrageous
misconduct and caused Counterclaim Plaintiff extreme emotional distress.
102. Counterclaim Defendants were aware that treating Counterclaim Plaintiff
in the manner alleged above, including depriving Counterclaim Plaintiff of her
livelihood, would devastate Counterclaim Plaintiff and cause her extreme hardship.
103. As a proximate result of Counterclaim Defendants’ extreme and
outrageous conduct, Counterclaim Plaintiff has suffered and continues to suffer severe
emotional distress. Counterclaim Plaintiff has sustained and continues to sustain
substantial losses of earnings and other employment benefits as a result of being
emotionally distressed.
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00170571.DOCX 23 AMENDED COUNTERCLAIM FOR DAMAGES
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104. As a proximate result of Counterclaim Defendants’ extreme and
outrageous conduct, Counterclaim Plaintiff has suffered and continues to suffer
humiliation, emotional distress, and mental and physical pain and anguish, all to his
damage in a sum according to proof.
105. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, oppressive, and fraudulent manner, entitling Counterclaim Plaintiff to
punitive damages.
COUNT VII
Retaliation
Violation of Cal. Labor Code § 6310
(Against Counterclaim Defendants Trusts and CSAC)
106. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
107. At all relevant times, Cal. Labor Code section 6310 was in effect and was
binding on Counterclaim Defendants, providing in relevant part:
Section 6310.
(a) No person shall discharge or in any manner discriminate against any
employee because the employee has done any of the following:
(1) Made any oral or written complaint to the division, other
governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or health,
his or her employer, or his or her representative.
(b) Any employee who is discharged, threatened with
discharge, demoted, suspended, or in any other manner
discriminated against in the terms and conditions of
employment by his or her employer because the employee
has made a bona fide oral or written complaint to the
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00170571.DOCX 24 AMENDED COUNTERCLAIM FOR DAMAGES
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division, other governmental agencies having statutory
responsibility for or assisting the division with reference to
employee safety or health, his or her employer, or his or her
representative, of unsafe working conditions, or work
practices, in his or her employment or place of employment,
or has participated in an employer-employee occupational
health and safety committee, shall be entitled to
reinstatement and reimbursement for lost wages and work
benefits caused by the acts of the employer. Any employer
who willfully refuses to rehire, promote, or otherwise restore
an employee or former employee who has been determined
to be eligible for rehiring or promotion by a grievance
procedure, arbitration, or hearing authorized by law, is guilty
of a misdemeanor.
108. Counterclaim Plaintiff raised complaints concerning work place safety
issues and advocated for workplace safety while employed by CSAC.
109. Counterclaim Defendants retaliated against Counterclaim Plaintiff by
discriminating against her, harassing her, and taking adverse employment actions,
including employment termination, against her.
110. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional violations of Labor Code section 6310, Counterclaim Plaintiff has suffered
and continues to suffer humiliation, emotional distress, and mental and physical pain
and anguish, all to her damage in a sum according to proof.
111. As a result of Counterclaim Defendants’ adverse employment actions
against Counterclaim Plaintiff, she has suffered general and special damages, and has
had to retain attorneys and has incurred attorneys’ fees, in sums according to proof.
112. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, oppressive, and fraudulent manner, entitling Counterclaim Plaintiff to
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punitive damages against Counterclaim Defendants.
COUNT VIII
Wrongful Termination in Violation of Public Policy
(Against Counterclaim Defendants Trusts and CSAC)
113. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
114. Counterclaim Defendants terminated Counterclaim Plaintiff’s
employment in violation of various fundamental public policies underlying both state
and federal laws. Specifically, Counterclaim Plaintiff’s employment was terminated in
part because of her protected status (i.e., gender, association with other employees in
protected statuses, national origin, color, sexual orientation, marital status, and/or
good faith complaints). These actions were in violation of FEHA, the California
Constitution, Title VII, and California Labor Code sections 1102.5 and 6310.
115. As a proximate result of Counterclaim Defendants’ wrongful termination
of Counterclaim Plaintiff’s employment in violation of fundamental public policies,
Counterclaim Plaintiff has suffered and continues to suffer humiliation, emotional
distress, and mental and physical pain and anguish, all to her damage in a sum
according to proof.
116. As a result of Counterclaim Defendants’ wrongful termination of her
employment, Counterclaim Plaintiff has suffered general and special damages in sums
according to proof.
117. Counterclaim Defendants’ wrongful termination of Counterclaim
Plaintiff’s employment was done intentionally, in a malicious, oppressive, and
fraudulent manner, entitling Counterclaim Plaintiff to punitive damages.
118. Counterclaim Plaintiff has incurred and continues to incur legal expenses
and attorneys’ fees. Pursuant to Code of Civil Procedure sections 1021.5 and 1032, et
seq., Counterclaim Plaintiff is entitled to recover reasonable attorneys’ fees and costs
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00170571.DOCX 26 AMENDED COUNTERCLAIM FOR DAMAGES
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in an amount according to proof.
COUNT IX
Failure to Prevent Discrimination, Retaliation, and Harassment
Violation of Cal. Gov. Code § 12940(k)
(Against Counterclaim Defendants Trusts and CSAC)
119. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
120. At all times herein mentioned, FEHA, Government Code section
12940(k), was in full force and effect and was binding on Counterclaim Defendants.
This statute states that it is an unlawful employment practice in California for an
employer “to fail to take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” Prior to filing the instant Complaint, Counterclaim
Plaintiff filed a timely administrative charge with the DFEH and received a right-to-
sue letter.
121. During the course of Counterclaim Plaintiff’s employment, Counterclaim
Defendants failed to prevent their employees from engaging in intentional actions that
resulted in Counterclaim Plaintiff’s being treated less favorably because of
Counterclaim Plaintiff’s protected status (i.e., her gender, association, race, national
origin, color, and/or marital status).
122. During the course of Counterclaim Plaintiff’s employment, Counterclaim
Defendants failed to prevent their employees from engaging in unjustified
employment practices against employees in such protected classes.
123. During the course of Counterclaim Plaintiff’s employment, Counterclaim
Defendants failed to prevent a pattern and practice by their employees of intentional
discrimination and harassment on the bases of gender, associations, race, national
origin, color, sexual orientation, marital status, and/or other protected statuses or
protected activities.
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124. Counterclaim Plaintiff believes and, on that basis, alleges that her gender,
associations with persons in protected statuses, and/or other protected status and/or
protected activity were substantial motivating factors in Counterclaim Defendants’
employees’ discrimination against, retaliation, and harassment of her.
125. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional misconduct, Counterclaim Plaintiff has sustained and continues to sustain
substantial losses of earnings and other employment benefits.
126. As a proximate result of Counterclaim Defendants’ willful, knowing, and
intentional misconduct, Counterclaim Plaintiff has suffered and continues to suffer
humiliation, emotional distress, and physical and mental pain and anguish, all to his
damage in a sum according to proof.
127. Counterclaim Plaintiff has incurred and continues to incur legal expenses
and attorneys’ fees. Pursuant to Government Code section 12965(b), Counterclaim
Plaintiff is entitled to recover reasonable attorneys’ fees and costs (including expert
costs) in an amount according to proof.
128. Counterclaim Defendants’ misconduct was committed intentionally, in a
malicious, despicable, oppressive, and fraudulent manner, entitling Counterclaim
Plaintiff to punitive damages against Counterclaim Defendants.
COUNT X
Trespass to Chattels
(Against Counterclaim Defendants Trusts and CSAC)
129. Counterclaim Plaintiff incorporates by reference each and every
allegation contained in the preceding paragraphs as though fully stated here.
130. Counterclaim Plaintiff owned and has a right to possess her property
within Counterclaim Defendants’ office but cannot retrieve her property due to the
fact that Counterclaim Defendants will not allow Counterclaim Plaintiff to return to
Counterclaim Defendants’ office and Counterclaim Defendants will not return her
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00170571.DOCX 28 AMENDED COUNTERCLAIM FOR DAMAGES
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property.
131. Counterclaim Defendants intentionally interfered with Counterclaim
Plaintiff’s use or possession of her property by refusing to allow Counterclaim
Plaintiff to retrieve the property or returning the property upon demand.
132. As a direct and proximate result of Counterclaim Defendants’ actions, as
alleged herein, Counterclaim Plaintiff has suffered damages to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Counterclaim Plaintiff, SANDRA MALONEY, prays for
judgment against Counterclaim Defendants as follows:
1. For general and special damages, according to proof;
2. For exemplary damages, according to proof;
3. For pre-judgment and post-judgment interest on all damages awarded;
4. For reasonable attorneys’ fees;
5. For costs of suit incurred;
6. For declaratory relief;
7. For such other and further relief as the Court may deem just and proper.
Dated: May 29, 2020
THE MALONEY FIRM, APC
/s/ Patrick M. Maloney By:______________________________
PATRICK M. MALONEY CRAIG T. REESE
Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY
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00170571.DOCX 29 AMENDED COUNTERCLAIM FOR DAMAGES
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DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil procedure, Counterclaim
Plaintiff, SANDRA MALONEY, demands trial of this matter by jury.
Dated: May 29, 2020 THE MALONEY FIRM, APC
/s/ Craig T. Reese By:______________________________
PATRICK M. MALONEY CRAIG T. REESE
Attorneys for Defendant and Counterclaim Plaintiff, SANDRA MALONEY
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