Free Amended Complaint - District Court of California - California

Case 5:07-cv-04973-JW

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WILLIAM R. TAMAYO ­ #084965 (CA) DAVID OFFEN-BROWN - #063321 (CA) EVANGELINA FIERRO HERNANDEZ -#168879 (CA) EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105 Telephone: (415) 625-5622 Facsimile: (415) 625-5657 Attorneys for Plaintiff Equal Employment Opportunity Commission UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

EQUAL EMPLOYMENT OPPORTUNITY ) ) COMMISSION, ) ) Plaintiff, ) ) v. ) ) BAHAMA BILLY'S, INC., ) ) ) Defendant. ) _______________________________________ )

Civil Action No. C07-4973-JW/PVT COMPLAINT Civil Rights - Employment Discrimination DEMAND FOR JURY TRIAL

NATURE OF THE ACTION This action is brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of sex and retaliation and to provide appropriate relief to Charging Party Wynne Dauernheim ("Charging Party") who was adversely affected by such practices. Defendant Bahama Billy's, Inc., ("Bahama Billy's") subjected the Charging Party to unlawful harassment based on her sex, created a hostile work environment based on her sex, and subjected her to retaliation for engaging in protected activity under Title VII, which caused the constructive discharge of Charging Party. JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331,

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1337, 1343 and 1345. This action is authorized and instituted pursuant to §706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e-5(f)(1) and (3) ("Title VII") and §102 of the Civil Rights Act of 1991, 42 U.S.C. §1981a. 2. The employment practices alleged to be unlawful were and are now being

committed within the jurisdiction of the United States District Court for the Northern District of California, San Jose division. INTRADISTRICT ASSIGNMENT 3. This action is appropriate for assignment to San Jose because the unlawful

employment practices alleged were and are being committed within Monterey County. PARTIES 4. Plaintiff, the Equal Employment Opportunity Commission

("Commission") is the agency of the United States of America charged with the administration, interpretation and enforcement of Title VII, and is expressly authorized to bring this action by §706(f)(1) and (3) of Title VII, §2000e-(f)(1) and (3). 5. At all relevant times, Defendant Bahama Billy's has continuously been a

California company, doing business in the State of California, in the County of Monterey, and has continuously had at least 15 employees. 6. At all relevant times, Defendant Bahama Billy's has continuously been an

employer engaged in an industry affecting commerce, within the meaning of Section 701(b), (g) and (h) of Title VII, 42 U.S.C. §2000e(b), (g) and (h). STATEMENT OF CLAIMS Violations of Title VII of Civil Rights Act : Sex Discrimination, Sexual Harassment and Retaliation 7. More than thirty days prior to the institution of this lawsuit, Charging

Party filed her charge with Plaintiff Commission alleging violations of Title VII by Defendant. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least April of 1998, Defendant has engaged in unlawful practices

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of sex discrimination in violation §703(a) of Title VII, 42 U.S.C. §2000e-2(a) by subjecting the Charging Party to a sexually hostile, abusive, intimidating and offensive work environment which culminated in tangible employment actions. These practices include, but are not limited to, employees and customers subjecting Charging Party to sexual harassment creating a hostile, abusive and intimidating work environment by, among other things, calling her sexually tainted names creating an atmosphere at Bahama Billy's which allowed for sexual harassment to occur with no protection or recourse for the servers who worked there. Defendant had no anti-harassment policy in place, nor did it provide training to its employees. Despite Charging Party's efforts to complain to management about the harassment no prompt or effective action was taken to end the harassment, leading to the tangible employment action of constructive discharge in April 2005. 9. Since at least April 2005, Defendant has engaged in unlawful practices of

retaliation, in violation of §704(a) of Title VII, 42 U.S.C. §2000e-3(a), by subjecting Charging Party to adverse actions for engaging in protected activity, including disciplinary actions and ultimately wrongfully discharging her. These practices include, but are not limited to, suspending Charging Party, based on a fabricated customer complaint, two days after she complained to Bill Lee, the then owner of Bahama Billy's, about being sexually harassed by customers she was serving. This improper suspension was imposed because of Charging Party's complaint two days earlier. 10. The effect of the actions complained of in Paragraphs 8 and 9 above has

been to deprive the Charging Party of equal employment opportunities and otherwise adversely affect her status as an employee because of her sex and protected activity. 11. The unlawful employment practices complained of in Paragraphs 8 and 9

above were intentional. 12. The unlawful employment practices complained of in Paragraphs 8 and 9

above were done with malice or with reckless indifference to the federally protected

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rights of the Charging Party. PRAYER FOR RELIEF Wherefore, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Defendant, its officers, successors,

assigns, and all persons acting in concert or participation with Defendant, from engaging in discrimination against its employees including harassment based on sex and retaliation. B. Order Defendant to institute and carry out policies, practices, and

programs which prohibit harassment based on sex and retaliation and which eradicate the effects of its unlawful employment practices. C. Order Defendant to make whole Charging Party by providing appropriate

back pay and benefits with prejudgment interest, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to reinstatement and/or front pay and other appropriate relief to be determined at trial. D. Order Defendant to make whole Charging Party by providing

compensation for past and future pecuniary losses resulting from the unlawful employment practices complained of above, including but not limited to such out-ofpocket expenses as medical care necessitated by Defendant's unlawful conduct, in amounts to be determined at trial. E. Order Defendant to make whole Charging Party by providing

compensation for past and future nonpecuniary losses resulting from the unlawful practices complained of above including, but not limited to emotional pain and suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial. F. Order Defendant to pay Charging Party punitive damages for the

malicious and reckless conduct described above, in amounts to be determined at trial. G. Grant such further relief as the Court may deem just and proper in the

public interest.

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H.

Award the Commission its costs of this action. DEMAND FOR JURY TRIAL

Pursuant to the provisions of Federal Rule of Civil Procedure 38(b), Plaintiff

4 hereby demands a jury trial. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Date: December 4, 2007 21 22 23 Date: December 4, 2007 24 25 26 27 28 /s/ ___________________________________ EVANGELINA FIERRO HERNANDEZ Senior Trial Attorney /s/ __________________________________ DAVID OFFEN-BROWN Supervisory Trial Attorney Date: December 4, 2007 RONALD S. COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel Equal Employment Opportunity Commission 1801 L Street, N.W. Washington, DC 20507 /s/ _____________________________ WILLIAM R. TAMAYO Regional Attorney

Equal Employment Opportunity Commission San Francisco District Office 350 The Embarcadero, Suite 500 San Francisco, California 94105
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COMPLAINT FOR DISCRIMINATION

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