Laidlaw v. City & County of San Francisco, 3:14-cv-02640

Laidlaw v. City & County of San Francisco

3:14-cv-02640

N.D. Cal.

Aug 13, 2014

Check Treatment

Docket

Case Information

DENNIS J. HERRERA, State Bar #139669 City Attorney ELIZABETH S. SALVESON, State Bar #83788 Chief Labor Attorney TERENCE J. HOWZELL, State Bar #140822 Deputy City Attorney Fox Plaza 1390 Market Street, $5^{th}$ Floor San Francisco, California 94102-5408 Telephone: (415) 554-3960 Facsimile: (415) 554-4248 E-Mail: terence.howzell@sfgov.org Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA WINIFRED C. LAIDLAW, Plaintiff, vs. CITY &; COUNTY OF SAN FRANCISCO AND DOES 1 AND 2,

Defendants.

Case No. CV-14 2640 JCS

STIPULATION FOR FILING OF AMENDED COMPLAINT

Date Action Filed: May 15, 2014

*2 IT IS HEREBY STIPULATED by and between the parties hereto through their respective attorneys of record that Plaintiff may file an Amended Complaint, a copy of which is attached hereto.

IT IS FURTHER STIPULATED that the Defendant waives notice and service of the amended complaint and shall not be required to answer to the amendment, and that all denials, responses and affirmative defenses contained in the answer filed by Defendant to the original complaint shall be responsive to the amended complaint.

Dated: August 11, 2014 LAW OFFICE OF RICHARD M. ROGERS By: s/ Richard M. Rogers RICHARD M. ROGERS Attorney for Plaintiff WINIFRED C. LAIDLAW

Dated: August 11, 2014 DENNIS J. HERRERA City Attorney ELIZABETH S. SALVESON Chief Labor Attorney TERENCE J. HOWZELL Deputy City Attorneys By: s/ Terence J. Howzell TERENCE J. HOWZELL Attorneys for Defendant CITY &; COUNTY OF SAN FRANCISCO

ATTACHMENT

RICHARD M. ROGERS, #045843
LAW OFFICE OF RICHARD M. ROGERS

100 Bush Street, #1980 San Francisco, CA 94104 Telephone: 415/981-9788 Facsimile: 415/981-9798 Email: RogersRMR@yahoo.com Attorneys for Plaintiff Winifred C. LAIDLAW

United States District COURT

NORTHERN District of CALIFORNIA

WINIFRED C. LAIDLAW, and alleges:

JURISDICTION

The Court has jurisdiction over Plaintiff's Title VII (42 USC §2000e) and ADEA (29 USC §§621-634) claims. 28 USC §1331. The Court has supplemental jurisdiction over Plaintiff's related state claims. 28 USC §1367.

VENUE

Venue is proper in this Court because the employment is in the City and County of San Francisco. 42 USC §2000e-5(f)(3).

ChARGING AlLEGATIONS

Plaintiff WINIFRED C. LAIDLAW has been employed by Defendant for twenty years; since May 10, 2004, she has been employed at the San Francisco Public Utilities Commission (SFPUC) as an Apprentice Stationary Engineer.
In December, 2011, Plaintiff applied for a promotion to Stationary Engineer Journeyperson. On August 5, 2012, Plaintiff learned that she had not been promoted.
In 2009, Plaintiff graduated from a training curriculum. All of the younger males who graduated with Plaintiff were promoted prior to January 1, 2013.
At all times pertinent Plaintiff performed her job competently and received good performance evaluations.
Defendant refused to promote Plaintiff because of her age and/or gender. Plaintiff was born in 1949.
As a direct result of Defendant's said conduct, Plaintiff has suffered loss of earnings and will continue to suffer such losses in future, all to her damage in a sum within the jurisdiction of this Court.
As a further direct result of Defendant's said conduct, Plaintiff has suffered and will continue to suffer severe emotional distress to her general damage in an amount within the jurisdiction of this Court.
Plaintiff complained of age and gender discrimination, both internally and externally. A copy of her first EEOC complaint, also filed with the DFEH, is attached hereto as Exhibit 1 and fully incorporated herein by this reference.
Plaintiff received a right-to-sue letters from the DFEH dated August 14, 2013, Exhibit 2 hereto.
Plaintiff received right-to-sue letters from the EEOC dates January 30, 2014, Exhibits 3 and 4 hereto.
On or about January 13, 2014, Plaintiff's supervisor told her that she was being promoted. She ranked sixth after a written exam on or about January 10. Because of this notification, Plaintiff did not file suit after receipt of the EEOC right-to-sue letters.

When Plaintiff heard nothing further, she followed up through her Union in March, 2014. On April 19, 2014, her Union Representative, Gil Rojas, was told by Tony Flores, a manager with SFPUC, that there was a glitch in the paperwork and the promotion was, in fact, in process.
Defendant's said notification and assurance were false, and Plaintiff relied thereon to her detriment by not filing suit within 90 days of receipt of the EEOC letters, Exhibits 3 and 4 hereto.
On April 19, 2014, Plaintiff interviewed for two positions.
On or about April 22, 2014, Plaintiff learned that she did not pass the interviews.
The interviews were a sham implemented to deny Plaintiff promotion. Plaintiff correctly answered the interview questions and was more qualified than the persons promoted.
The persons promoted were substantially younger than Plaintiff. One of them is female. She was promoted instead of Plaintiff to make it appears that gender discrimination was not a factor.
Plaintiff has exhausted her administrative remedies with respect to the events after August 1, 2013. A copy of her second Charge of Discrimination is attached hereto as Exhibit 5 and fully incorporated herein by this reference.
Plaintiff has received a right-to-sue letter from the state agency, Exhibit 6 hereto, and has requested a right-to-sue letter from the EEOC.

FIRST CAUSE OF ACTION [AGE DISCRIMINATION: FEHA]

Defendant discriminated against Plaintiff because of her age in violation of Gov't Code section 12940(a).

SECOND CAUSE OF ACTION [Sex Discrimination: FEHA]

Defendant discriminated against Plaintiff because of her sex in violation of Gov't Code section 12940(a).

THIRD CAUSE OF ACTION [AGE DISCRIMINATION: ADEA]

Defendant discriminated against Plaintiff because of her age in violation of the Age

Discrimination in Employment Act, 29 USC §§621-634.

FOURTH CAUSE OF ACTION [SEX DISCRIMINATION: TITLE VII]

Defendants discriminated against Plaintiff because of her gender in violation of 42 USC §2000e.

FIFTH CAUSE OF ACTION [RETALIATION: DFEH]

Defendant failed and refused to promote Plaintiff in 2014 because she had filed internal and external complaints of discrimination in violation of Gov't Code section 12940(h).

SIXTH CAUSE OF ACTION [FAILURE TO PREVENT DISCRIMINATION]

Defendant failed to take all reasonable steps to prevent discrimination and retaliation in violation of Gov't Code section 12940(k).

WHEREFORE, Plaintiff prays for:

Injunctive relief requiring Defendant to refrain from further discriminatory acts and remedying past discrimination;
Actual damages in a sum to be ascertained at trial;
General damages in an amount within the jurisdiction of this Court;
Costs of suit, prejudgment interest, reasonable attorney's fees; and
Such further relief as the Court deems just and proper.

Respectfully submitted, Dated: $- 12 - 141$

Law Office of Richard M. Rogers

USDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JOIEY TRIAL

DEMAND FOR JURY TRIAL

Plaintiff hereby demands trial by jury.

LAIDLAWY

COMPLAR 1AM

EXHIBIT 1

GSDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*10

*11

EXHIBIT 2

USDC NO. C14-02648 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*12

DEPARTMENT OF FAIR EMPLOYMENT &; HOUSING

(800) 884-1684 | TDD (800) 700-2320 | Videophone for the DEAF (918) 228-5285 www.dfeh.ca.gov | email: contact.center@dfeh.ca.gov

EIOC Number: 550-2013-00737

Case Name: WINIFRED LAIDLAW v. CITY AND COUNTY OF SAN FRANCISCO Filing Date: August 14, 2013

NOTICE TO COMPLAINANT AND RESPONDENT

This is to advise you that the above-referenced complaint is being dual filed with the California Department of Fair Employment and Housing (DFEH) by the U.S. Equal Employment Opportunity Commission (EEOC). The complaint will be filed in accordance with California Government Code section 12960. This notice constitutes service pursuant to Government Code section 12962.

The EEOC is responsible for the processing of this complaint and the DFEH will not be conducting an investigation into this matter. Please contact EEOC directly for any discussion of the complaint or the investigation.

NOTICE TO COMPLAINANT OF RIGHT-TO-SUE

This letter is also your Right to Sue notice. This Right-To-Sue Notice allows you to file a private lawsuit in State court. According to Government Code section 12965, subdivision (b), you may bring a civil action under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The lawsuit may be filed in a State of California Superior Court. Government Code section 12965, subdivision (b), provides that such a civil action must be brought within one year from the date of this notice. Pursuant to Government Code section 12965, subdivision (d)(1), this one-year period will be tolled during the pendency of the EEOC's investigation of your complaint. You should consult an attorney to determine with accuracy the date by which a civil action must be filed. This right to file a civil action may be waived in the event a settlement agreement is signed.

If you have questions about the right to file under federal law, please contact the EEOC using the contact information below.

EEOC Northern California 350 The Embarcadero, Suite 500 San Francisco, CA 94106 (415) 825-5600

EEOC Southern California 255 East Temple Ste., $4^{th}$ Floor Los Angeles, CA 90012 (213) 894-1100

*13

EXHIBITS

LIBDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE KELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*14 CERTIFIED MAIL 20198845

Ms. Winifred C. Laidlaw 222 Alta Vista Drive South San Francisco, CA 94080 Re: EEOC Charge Against City &; County of San Francisco, Public Utilities Commission No. 550201300737

Dear Ms. Laidlaw: Because you filed the above charge with the Equal Employment Opportunity Commission, and more than 180 days have elapsed since the date the Commission assumed jurisdiction over the charge, and no suit based thereon has been filed by this Department, and because you have specifically requested this Notice, you are hereby notified that you have the right to Institute a civil action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., against the above-named respondent.

If you choose to commence a civil action, such suit must be filed in the appropriate Court within 90 days of your receipt of this Notice. If you cannot afford or are unable to retain an attorney to represent you, the Court may, at its discretion, assist you in obtaining an attorney. If you plan to ask the Court to help you find an attorney, you must make this request of the Court in the form and manner it requires. Your request to the Court should be made well before the end of the time period mentioned above. A request for representation does not relieve you of the obligation to file suit within this 90 -day period.

The investigative file pertaining to your case is located in the EEOC San Francisco District Office, San Francisco, CA.

This Notice should not be taken to mean that the Department of Justice has made a judgment as to whether or not your case is meritorious.

Sincerely, Jocelyn Samuels Acting Assistant Attorney General

CC: San Francisco District Office, EEOC City &; County of San Francisco, Public Utilities Commission

*15

EXHIBIT 4

USDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*16

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

NOTICE OF RIGHT TO SUE (ISSUED ON REQUEST)

Tac Winifred C. Laddsw 222 Alta Vista Drive South San Francisco, CA 94080

From: San Francisco District Office 450 Golden Gate Avenue 5 West, P.O. Box 36025 San Francisco, CA 94102

On behalf of pormotid aggrfived whose identity is COWIDENTIAL (29 CFW 51601.75d)

EEOC Charge No.

EEOC Reprasentative

Eric C. Darius, Intake Supervisor (1415) 522-3185 (See also the additional information enclosed with this item.)

NOTICE TO THE PERSON ANGREVISE:

Title VII of the Civil Rights Act of 1954, the Americans with Disabilities Act (ADA), or the Genetic Information Nondiscrimination Act (GINA): This is your Notice of Right to Sue, issued under Title VII, the ADA or GINA based on the above-numbered charge. It has been issued at your request. Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different.)

Note than 180 days have passed since the filing of this charge. Less than 180 days have passed since the filing of this charge, but I have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the filing of this charge.

The EEOC is terminating its processing of this charge. The EEOC will continue to process this charge. Age Discrimination in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was filed until 60 days after you receive notice that we have completed action on the criege. In this regard, the paragraph marked below applies to your case:

The EEOC is closing your case. Therefore, your lawsuit under the ADEA must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above-numbered charge will be lost.

The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the filing of the charge, you may file suit is federal or state court under the ADEA at this time.

Equal Pay Act (EPA): You already have the right to sue under the EPA (fing an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years ( 3 years for willful visitations) of the alleged EPA underpayment. This means that backpay due for any visitations that occurred more than 2 years ( 3 years) before you file suit may not be collectible.

If you file suit, based on this charge, please send a copy of your court complaint to this office.

*17

EXHIBIT 5

USDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*18 THE PARTICULARS ARE (If additional paper is needed, eliech extra sheets)! The respondent hired me on or about May 10, 2004. My most recent job title is Apprentice Stationary Engineer and my immediate supervisor is Bob Matchem (Male, 60's). In March 2013, I Tiled EEOC 40 2/13 Charge No. 550-2013-00737 against the respondent alleging age discrimination. In December 2013, I applied for a promotion to Journeyperson Stationary Engineer-a position that I was well qualified for. Out of all of the eligible individuals, only males were placed into the Journeyperson positions. At least one younger male with inferior qualifications was selected.

I believe that I have been discriminated against because of my sex (Female) in violation of Title VII of the Civil Rights Act of 1964, as amended. I believe that I have been discriminated against because of my age (64) in violation of the Age Discrimination in Employment Act of 1967, as amended. Furthermore, I believe that the respondent retaliated against me, in violation of the Age Discrimination in Employment Act of 1967, as amended.

*19

EXHIBIT 6

GSDC NO. C14-02640 JCS - FIRST AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES - DEMAND FOR JURY TRIAL

*20

EEOC Number: 550-2014-00742C Case Name: Winifred C. Laidlaw vs. CITY AND COUNTY OF SAN FRANCISCO Filing Date: June 4, 2014

NOTICE TO COMPLAINANT AND RESPONDENT

NOTICE TO COMPLAINANT OF RIGHT-TO-SUE

If you have questions about the right to file under federal law, please contact the EEOC using the contact information below.

EEOC Northern California 450 Golden Gate Ave 5-West PO Box 36025 San Francisco, CA 94102 (415) 522-3000

EEOC Southern California 255 East Temple Ste., $4^{th}$ Floor

Los Angeles, CA 90012 (213) 894-1100