Discrimination_Complaint

Cynthia Coulter Mulvihill, Esq. SBN 171909

Sheral A. Hyde, Esq. SBN 131452

MULVIHILL COLE HYDE APC

216 W. Foothill Boulevard (91016)

PO Box 1007, Monrovia CA 91017-1007

(626) 358-7471 Fax: (626) 358-2894

E-Mail: TraderPublishingLitigation@cmsynergy.com

Attorneys for Plaintiffs TIFFANY KENDRICK, SERGIO SOLRZANO,

ILIANA CANTAVELLA and BEATRIZ GAMBOA-MARTY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN BERNARDINO

TIFFANY A. KENDRICK, SERGIO SOLRZANO, ILIANA CANTAVELLA and BEATRIZ GAMBOA-MARTY

Plaintiffs,

vs.

TRADER PUBLISHING COMPANY, LISA TEDESCO, and Does 1-100, inclusive

Defendants

_________________________________

)

CASE NO.:

PLAINTIFFS TIFFANY A. KENDRICK, SERGIO SOLRZANO, ILIANA CANTAVELLA and BEATRIZ GAMBOA-MARTY’S COMPLAINT AGAINST DEFENDANTS TRADER PUBLISHING COMPANY AND LISA TEDESCO FOR:

1 VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT- RACE

2. VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT- ANCESTRY/NATIONAL ORIGIN

3. VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT- PREGNANCY DISCRIMINATION

4. BREACH OF ORAL EMPLOYMENT CONTRACT

5. VIOLATION OF CALIFORNIA LABOR CODES – FAILURE TO PAY ON-CALL WAGES

6. VIOLATION OF CALIFORNIA LABOR CODES – CLASSIFICATION OF NON-EXEMPT EMPLOYEES AS EXEMPT IN ORDER TO AVOID PAYMENT OF OVERTIME

7. VIOLATION OF CALIFORNIA FAIR LABOR STANDARDS ACT – FAILURE TO PAY WAGES UPON TERMINATION

8. DEFAMATION

9. CHARACTERIZING LAY-OFFS AS TERMINATION FOR CAUSE, IN VIOLATION OF PUBLIC POLICY

10. VIOLATION OF BUSINESS & PROFESSIONS CODE §17200 ET. SEQ.

Comes now Plaintiffs TIFFANY A. KENDRICK, SERGIO SOLRZANO, ILIANA CANTAVELLA and BEATRIZ GAMBOA-MARTY and alleges against Defendants TRADER PUBLISHING and LISA TEDESCO as follows:

TIFFANY A. KENDRICK

1. At all times mentioned herein, TIFFANY A. KENDRICK is and was a resident of the County of San Bernardino.

2. All of the acts and omissions alleged herein took place in the County of San Bernardino, California.

3. In 2002, TRADER PUBLISHING COMPANY hired TIFFANY A. KENDRICK. TRADER PUBLISHING COMPANY terminated TIFFANY A. KENDRICK'S employment in February 2003.

4. TIFFANY A. KENDRICK timely filed a Complaint with the California Department of Fair Employment and Housing (DFEH) for the actions described herein. The DFEH issued a “Right to Sue” letter to TIFFANY A. KENDRICK. This action is brought within the Statute of Repose for an action based on violation of California’s Fair Employment and Housing laws.

5. TIFFANY A. KENDRICK is part Black and part Hispanic. TIFFANY A. KENDRICK is bilingual, and speaks English and Spanish.

6. TIFFANY A. KENDRICK was hired by TRADER PUBLISHING COMPANY in 2002 as a Customer Service Team Leader.

7. LISA TEDESCO assumed the position of Private Party Sales Manager at Trader Publishing Company in approximately late October 2002. Thereafter, LISA TEDESCO served as TIFFANY A. KENDRICK’S supervisor.

8. Prior to working for LISA TEDESCO, TIFFANY A. KENDRICK had an exemplary employment record.

9. LISA TEDESCO told employees of TRADER PUBLISHING COMPANY that she did not like working with individuals speaking Spanish.

10. In December 2002, TIFFANY A. KENDRICK attended a meeting with two co-workers, her supervisor, LISA TEDESCO. During this meeting LISA TEDESCO used the term “African Booty Snatchers.” TIFFANY A. KENDRICK asked what LISA TEDESCO meant by the term. LISA TEDESCO responded by telling TIFFANY A. KENDRICK “this is what we call black people.”

11. During the same meeting, LISA TEDESCO and another employee made additional racial slurs and jokes, including statements like “Why do all Black people have to talk so loud?” and “Can I touch your hair? Why isn’t it nappy?”

12. TIFFANY A. KENDRICK immediately filed a complaint with TRADER PUBLISHING COMPANY’S Human Resources Department regarding the incident with LISA TEDESCO. However, when TIFFANY A. KENDRICK requested and received a copy of her personnel file in connection with her Unemployment Insurance Benefits action, there was no record whatsoever of TIFFANY A. KENDRICK’S complaint to TRADER PUBLISHING COMPANY.

13. Shortly after complaining of LISA TEDESCO’S “African Booty Snatcher” remark, when TIFFANY A. KENDRICK came into work one morning, there was a big hand written note posted on the bulletin board. The note was posted on a board that was visible for everyone to read. The note stated “Tiffany Do This Immediately” and it was followed with a list of janitorial jobs for TIFFANY A. KENDRICK to perform, which were not part of her normal job duties.

14. Within weeks of complaining of LISA TEDESCO’S “African Booty Snatcher” remark, TIFFANY A. KENDRICK was also accused of failing to clock in and out for lunch. Thereafter, she was accused of falsifying her timecard. At TIFFANY A. KENDRICK’S California Unemployment Insurance Appeals Board hearing, she introduced evidence, under oath, she had in fact clocked in and out appropriately.

15. On Saturday mornings, TIFFANY A. KENDRICK was scheduled to arrive at 7:30 a.m. Her supervisor began to harass her by waiting at the gate in a car. When TIFFANY A. KENDRICK would arrive punctually, her supervisor would say “I was just making sure you made it on time.”

16. TIFFANY A. KENDRICK was warned about LISA TEDESCO’S perception that TIFFANY A. KENDRICK was behaving inappropriately with a co-worker, SERGIO SOLRZANO. LISA TEDESCO told TIFFANY KENDRICK that she was not permitted to have any contact with SERGIO SOLRZANO outside of work.

17. TIFFANY A. KENDRICK was terminated in February 2003. TIFFANY A. KENDRICK still held the same position as Customer Service Team Leader when she was terminated.

18. LISA TEDESCO told TIFFANY A. KENDRICK her employment was terminated due to “personal reasons.”

19. Thereafter, TIFFANY A. KENDRICK applied for California Unemployment Insurance Benefits.

20. TRADER PUBLISHING COMPANY told California’s Employment Development Department (EDD) that TIFFANY A. KENDRICK had been terminated for cause. Therefore, EDD denied TIFFANY A. KENDRICK unemployment benefits.

21. TIFFANY A. KENDRICK appealed denial of benefits. On appeal, TIFFANY A. KENDRICK was granted unemployment insurance benefits. TRADER PUBLISHING COMPANY appealed that decision. The grant of benefits was affirmed.

SERGIO SOLRZANO

22. The Defendant, TRADER PUBLISHING COMPANY, employed Plaintiff SERGIO SOLRZANO from June 2000 to February 2003.

23. The Defendant, TRADER PUBLISHING COMPANY, employed Plaintiff as an “exempt employee.”

24. Plaintiff SERGIO SOLRZANO is Hispanic, has dark skin and dark hair, and speaks fluent Spanish.

25. Before Plaintiff worked for LISA TEDESCO, his reviews were uniformly good. Plaintiff received frequent raises.

26. LISA TEDESCO assumed the position of Private Party Sales Manager at Trader Publishing Company in approximately late October 2002.

27. LISA TEDESCO told employees of TRADER PUBLISHING COMPANY that she did not like working with individuals speaking Spanish.

28. Plaintiff also applied for the position of Private Party Sales Manager but the position was given to LISA TEDESCO. After TRADER PUBLISHING COMPANY promoted LISA TEDESCO she demanded that Plaintiff assume the duties she had handled before being promoted. Plaintiff SERGIO SOLRZANO assumed those duties, in addition to his own duties.

29. TRADER PUBLISHING COMPANY offered Plaintiff no additional compensation for the increased workload Plaintiff assumed by taking over LISA TEDESCO’S prior duties.

30. In 2002, LISA TEDESCO fired ILIANA CANTAVELLA, another Hispanic employee. LISA TEDESCO then demanded that Plaintiff assume ILIANA CANTAVELLA’S duties. Plaintiff SERGIO SOLRZANO did so.

31. After assuming the two additional jobs LISA TEDESCO assigned to him, Plaintiff worked at three different TRADER PUBLISHING COMPANY locations: Ontario, California; Arcadia, California; and Torrance, California. Plaintiff SERGIO SOLORZANO’S duties included inspection of Express Photo Centers at various Southern California locations.

32. Even though SERGIO SOLORZANO was an exempt employee assigned to three different locations, LISA TEDESCO demanded that SERGIO SOLORZANO report to the Ontario location on a daily basis.

33. In January 2002, Plaintiff was given a warning arising from LISA TEDESCO’S perception that SERGIO SOLORZANO had an inappropriate relationship with a co-worker. He was falsely accused of having a sexual relationship with TIFFANY A. KENDRICK. SERGIO SOLORZANO denied, and continues to deny, LISA TEDESCO’S accusations. LISA TEDESCO informed him that it was a serious matter and could lead to disciplinary action, including termination. LISA TEDESCO told SERGIO SOLORZANO that he was not permitted to contact TIFFANY A. KENDRICK outside of work.

34. In February 2003, the Plaintiff’s wife, Linda Solorzano, notified him that a cherished family pet had escaped.

35. Linda Solorzano is a childcare provider. Because of State of California laws about the ratio of child care providers to children, Linda Solorzano could not leave work. Linda Solorzano informed Plaintiff SERGIO SOLRZANO when a construction crew located the missing dog in Downey, California. Linda Solorzano asked SERGIO SOLORZANO to get the dog at mid-afternoon.

36. Plaintiff made repeated attempts to locate LISA TEDESCO to tell her about the problem with the dog before leaving the Ontario, California, TRADER PUBLISHING COMPANY office. Plaintiff meticulously checked LISA TEDESCO’S office several times to see if she was present; she was not. Plaintiff left a voice mail message on LISA TEDESCO’S voice line explaining the problem. Plaintiff called LISA TEDESCO’S cell phone to tell her about the problem, but she did not answer her cell phone. Finally, Plaintiff SERGIO SOLRZANO left a message with Kay Pulliam, LISA TEDESCO’S

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assistant, that he had a family problem that needed immediate attention. He told the assistant he needed to leave the office immediately.

37. LISA TEDESCO was not in the office during the time Plaintiff was attempting to locate her. LISA TEDESCO later indicated that she was in another area of the building. That area of the building was not visible from Plaintiff’s work area.

38. Plaintiff was available by cell phone at all times after he left the TRADER PUBLISHING COMPANY office on February 3, 2003.

39. At 2:00 p.m. Plaintiff left the Ontario, California TRADER PUBLISHING COMPANY to pick up the dog. At 3:30 p.m. LISA TEDESCO telephoned Plaintiff on his cell phone asking if he was returning to the Ontario office. Plaintiff asked LISA TEDESCO if there was any particular task he needed to complete. LISA TEDESCO said there was not anything that needed to be completed.

40. Thereafter, on February 4, 2003 LISA TEDESCO told Plaintiff that his employment at TRADER PUBLISHING COMPANY was terminated. Plaintiff was not given his final check upon termination for several days, in violation of California’s Labor Code.

41. SERGIO SOLORZANO’S termination was pre-textual, and arose from the mixed motives of TRADER PUBLISHING COMPANY.

ILIANA CANTAVELLA

42. On Plaintiff ILIANA CANTAVELLA is Hispanic. She is a legal immigrant from South America. She speaks Spanish fluently.

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43. Plaintiff timely filed a Complaint with the California Department of Fair Employment and Housing (DFEH) for the actions described herein. The DFEH issued a “Right to Sue” letter to Plaintiff. Therefore, this action is timely filed.

44. Plaintiff moved from Northern California, when she agreed to accept employment with TRADER PUBLISHING COMPANY.

45. The Defendant, TRADER PUBLISHING COMPANY from April 2002 employed plaintiff until December 2002. Plaintiff was classified as an exempt employee.

46. Plaintiff ILIANA CANTAVELLA worked as the Van Nuys Field Manager for TRADER PUBLISHING COMPANY. Although she was classified as an exempt employee, TRADER PUBLISHING COMPANY paid her an hourly rate of $17.00/hour, and required her to track her time.

47. ILIANA CANTAVELLA became pregnant in or around July 2002. In or around September 2002, ILIANA CANTAVELLA told her employer that she was expecting her first child.

48. A month later, LISA TEDESCO assumed the position of Private Party Sales Manager at Trader Publishing Company in approximately late October 2002. At that time, she became ILIANA CANTAVELLA’S manager.

49. After LISA TEDESCO became ILIANA CANTAVELLA’S supervisor, TRADER PUBLISHING COMPANY refused to make any accommodations whatsoever for her pregnancy, even those recommended by ILIANA CANTAVELLA’S doctor. For example, LISA TEDESCO required that ILIANA CANTAVELLA report to the Ontario office of TRADER PUBLISHING COMPANY and then drive more than 50 miles to the Van Nuys office of TRADER PUBLISHING COMPANY.

50. LISA TEDESCO also told employees of TRADER PUBLISHING COMPANY that she did not like working with individuals speaking Spanish.

51. Before Plaintiff worked for LISA TEDESCO, her reviews were uniformly good.

52. LISA TEDESCO eventually discharged ILIANA CANTAVELLA allegedly because she left work early.

53. At the time Plaintiff was terminated, she was in her third trimester of pregnancy. Despite COBRA laws, TRADER PUBLISHING COMPANY attempted to deny her the right to receive medical benefits.

54. Thereafter, TRADER PUBLISHING COMPANY continued its pattern and course of discrimination and harassment by attempting to deny ILIANA CANTAVELLA unemployment insurance benefits.

55. ILIANA CANTAVELLA was awarded unemployment insurance benefits. TRADER PUBLISHING COMPANY appealed that award of benefits, and it was affirmed. The benefits award was affirmed again on TRADER PUBLISHING COMPANY’S second appeal of the award of unemployment insurance benefits.

BEATRIZ GAMBOA-MARTY

56. Plaintiff BEATRIZ GAMBOA-MARTY is Hispanic. She speaks Spanish fluently.

57. The Defendant, TRADER PUBLISHING COMPANY from July 2002 to April 2003 employed plaintiff.

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58. Plaintiff timely filed a Complaint with the California Department of Fair Employment and Housing (DFEH) for the actions described herein. The DFEH issued a “Right to Sue” letter to Plaintiff. Therefore, this action is timely filed.

59. LISA TEDESCO assumed the position of Private Party Sales Manager at Trader Publishing Company in approximately late October 2002. LISA TEDESCO told employees of TRADER PUBLISHING COMPANY that she did not like working with individuals speaking Spanish.

60. Plaintiff’s supervisor was LISA TEDESCO.

61. Plaintiff BEATRIZ GAMBOA-MARTY worked as a Courier for the Defendant TRADER PUBLISHING COMPANY.

62. Plaintiff was forced to quit because she was only being paid for three hours of working a day, despite the fact that she was required to be available, on call, for eight hours a day. This was a violation of California’s Labor Laws.

FIRST CAUSE OF ACTION

VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT- RACE

(PLAINTIFFS TIFFANY KENDRICK AND SERGIO SOLORZANO AGAINST DEFENDANTS TRADER PUBLISHING COMPANY, LISA TEDESCO,
AND DOES 1-100, INCLUSIVE)

63. Plaintiffs hereby incorporate paragraphs 1 through 62 by reference.

64. TIFFANY KENDRICK is Black and Hispanic.

65. SERGIO SOLORZANO appears to be Black, and is Hispanic.

66. California’s Fair Employment and Housing Act prohibits discrimination in all aspects of employment including hiring, termination and terms and conditions.

67. California’s Fair Employment and Housing Act prohibits harassment of employees or applicants and requires employers to take all reasonable steps to prevent harassment from occurring. Specifically, Government Code section 12940, subdivision (i), requires an entity to take "all reasonable steps to prevent harassment from occurring."

68. As described above, LISA TEDESCO falsely accused TIFFANY KENDRICK and SERGIO SOLORZANO of a sexual relationship.

69. As described above, TRADER PUBLISHING COMPANY and LISA TEDESCO referred to Black people as “African Booty Snatchers.”

70. As described above, TRADER PUBLISHING COMPANY and LISA TEDESCO discussed the “nappy” hair of Black people.

71. As described above, TIFFANY KENDRICK filed a complaint with the TRADER PUBLISHING COMPANY personnel office regarding these offensive remarks.

72. Because TRADER PUBLISHING COMPANY terminated TIFFANY KENDRICK and attempted to deny her unemployment benefits, TIFFANY KENDRICK was able to obtain and review her entire personnel file as part of those Administrative Law proceedings.

73. That review showed that TRADER PUBLISHING COMPANY had not even recorded TIFFANY KENDRICK’S complaint about the offensive remarks, much less conducted any investigation whatsoever.

74. Shortly after TIFFANY KENDRICK complained about these remarks, both she and SERGIO SOLORZANO, who appears to be Black, were terminated.

75. TRADER PUBLISHING COMPANY failed to take any action, whatsoever, to stop its supervisor from harassing TIFFANY KENDRICK or SERGIO SOLORZANO.

76. Thereafter, TRADER PUBLISHING COMPANY terminated both employees.

77. In accordance with California’s Fair Employment and Housing laws, TIFFANY KENDRICK and SERGIO SOLARZANO are entitled to all damages arising from TRADER PUBLISHING COMPANY’S violation of California’s Fair Employment and Housing laws, including but not limited to:

(a) Compensatory damages, including back pay from the time of TIFFANY KENDRICK’S and SERGIO SOLORZANO’S termination until the time she found new employment;

(b) Damages for Emotional Distress;

(d) Expert Witness Fees;

(e) And Punitive Damages

78. In addition, and in accordance with California’s Fair Employment & Housing Act, on behalf of all Black TRADER PUBLISHING COMPANY employees, TIFFANY KENDRICK and SERGIO SOLORZANO request that this Court order that TRADER PUBLISHING COMPANY cease and desist from its discrimination based on race, or perceived race.

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SECOND CAUSE OF ACTION

VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT- ANCESTRY/NATIONAL ORIGIN

(ALL PLAINTIFFS AGAINST DEFENDANTS TRADER PUBLISHING COMPANY, LISA TEDESCO, AND DOES 1-100, INCLUSIVE)

79. Plaintiffs hereby incorporate paragraphs 1 through 62 by reference.

80. TIFFANY KENDRICK is Black and Hispanic. She speaks Spanish. At the time she was employed by TRADER PUBLISHING COMPANY, she was a non-exempt Customer Care Team Leader.

81. SERGIO SOLORZANO appears to be Black, and is Hispanic. He speaks Spanish. At the time he was employed by TRADER PUBLISHING COMPANY, he was in an exempt management position.

82. ILIANA CANTAVELA is a legal immigrant from South America and his Hispanic. . She speaks Spanish. At the time she was employed by TRADER PUBLISHING COMPANY, she was in an exempt management position.

83. BEATRIZ GAMBOA-MARTY is a legal immigrant from South America and is Hispanic.

84. California’s Fair Employment and Housing Act prohibits discrimination in all aspects of employment including hiring, termination and terms and conditions.

85. California’s Fair Employment and Housing Act prohibits harassment of employees or applicants and requires employers to take all reasonable steps to prevent harassment from occurring. Specifically, Government Code section 12940, subdivision (i), requires an entity to take "all reasonable steps to prevent harassment from occurring."

86. TIFFANY KENDRICK, SERGIO SOLORZANO, ILIANA CANTAVELLA, and BEATRIZ GAMBOA-MARTY all received uniformly good reviews before LISA TEDESCO became their supervisor.

87. As described above, LISA TEDESCO repeatedly stated that she did not like working with employees who spoke Spanish.

88. As described above, LISA TEDESCO instituted a campaign of harassment. Plaintiffs are informed and believe that TRADER PUBLISHING COMPANY did so, to eliminate Hispanic employees in supervisory positions.

89. Thereafter, TRADER PUBLISHING COMPANY terminated TIFFANY KENDRICK, SERGIO SOLORZANO and ILIANA CANTAVELLA.

90. BEATRIZ GAMBOA-MARTY was constructively terminated when TRADER PUBLISHING COMPANY required her to be available 8 hours a day, but only paid her for 3 hours a day.

91. In accordance with California’s Fair Employment and Housing laws, Plaintiffs are entitled to all damages arising from TRADER PUBLISHING COMPANY’S violation of California’s Fair Employment and Housing laws, including but not limited to:

(a) Compensatory damages, including back pay from the time of each Plaintiff’s termination until each Plaintiff found new employment;

(b) Damages for Emotional Distress;

(d) Expert Witness Fees;

(e) And Punitive Damages

92. In addition, and in accordance with California’s Fair Employment & Housing Act, on behalf of all Hispanic TRADER PUBLISHING COMPANY employees, Plaintiffs request that this Court order that TRADER PUBLISHING COMPANY cease and desist from its discrimination based on race, or perceived race.

THIRD CAUSE OF ACTION

VIOLATION OF CALIFORNIA’S FAIR EMPLOYMENT & HOUSING ACT

- PREGNANCY DISCRIMINATION
(BY ILIANA CANTAVELLA AGAINST DEFENDANTS TRADER PUBLISHING COMPANY, LISA TEDESCO, AND DOES 1-100, INCLUSIVE)

93. ILIANA CANTAVELLA hereby incorporates paragraphs 1 to 62 herein by reference.

94. California’s Fair Employment & Housing Act requires an employer to provide reasonable accommodations requested by an employee, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.

95. It is illegal for an employer to discriminate against or harass an employee because of her pregnancy. Furthermore, when an employee has a disability, the employer must explore all possibilities of reasonable accommodation prior to rejecting the person for a job or making any employment-related decision.

96. As described above, ILIANA CANTAVELLA, around September 2002, notified TRADER PUBLISHING COMPANY that she was pregnant.

97. Thereafter, TRADER PUBLISHING COMPANY began harassing ILIANA CANTAVELLA, demanding she begin making long, uncompensated drives between

facilities on a daily basis. Those duties were not part of her job before ILIANA CANTAVELLA told TRADER PUBLISHING COMPANY she was pregnant.

98. TRADER PUBLISHING COMPANY failed to provide reasonable accommodations for that pregnancy, or any accommodations at all.

99. Therefore, ILIANA CANTAVELLA is entitled to all damages arising from TRADER PUBLISHING COMPANY’S pregnancy discrimination, including, but not limited to:

(a) Compensatory damages, including back pay from the time of ILIANA CANTAVELLA’S termination until the time she found new employment;

(b) Damages for Emotional Distress;

(d) Expert Witness Fees;

(e) And Punitive Damages

100. In addition, and in accordance with California’s Fair Employment & Housing Act, on behalf of all TRADER PUBLISHING COMPANY employees, ILIANA CANTAVELLA requests that this Court order that TRADER PUBLISHING COMPANY cease and desist from its pregnancy discrimination.

FOURTH CAUSE OF ACTION

BREACH OF ORAL EMPLOYMENT CONTRACT
(BY ILIANA CANTAVELLA AGAINST DEFENDANT TRADER PUBLISHING AND DOES 1-100, INCLUSIVE)

101. ILIANA CANTAVELLA hereby incorporates paragraphs 1 to 62, 80 to 92, and 94 to 100 by reference.

102. ILIANA CANTAVELLA moved herself, and her family, from Northern California to Southern California in order to take the position of Van Nuys Field Manager for TRADER PUBLISHING COMPANY.

103. ILIANA CANTAVELLA disrupted her family and made the costly move from Northern California to Southern California, at her own cost, based on TRADER PUBLISHING COMPANY’S assurances that she would be employed by TRADER PUBLISHING COMPANY on a long-term basis. ILIANA CANTAVELLA understood that as part her acceptance of employment with TRADER PUBLISHING COMPANY, she would not be terminated from employment without good cause.

104.