SHELLEY G.

BRYANT - #222925
AMANDA B. WHITTEN - #251160
2 BRYANT WHITTEN, LLP
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8050 North Palm Avenue, Suite 210

Fresno, California 93711
(559) 494-4910 Telephone
(559) 421-0369 Facsimile

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Attorneys for Plaintiff, LUCELINA ARIAS-MELENDEZ

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO

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LUCELINA ARIAS-MELENDEZ,

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Plaintiff,
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vs.
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BOARD OF TRUSTEES OF THE )
CALIFORNIA STATE UNIVERSITY, and )
Does 1 through 20, inclusive,
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Defendants.
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COMPLAINT FOR RETALIATION IN

VIOLATION OF LABOR CODE 98.6
AND 1102.5, RETALIATION IN
VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT,
AND ATTORNEYS FEES
REQUEST FOR JURY TRIAL

COMES NOW, Plaintiff, Lucelina Arias-Melendez, and alleges as follows:

GENERAL ALLEGATIONS

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Case No.

1.

Plaintiff, Lucelina Arias-Melendez (hereinafter referred to as Plaintiff), is an adult

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Hispanic female residing in Sacramento County, California, and was an employee of Defendant,

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Board of Trustees of the California State University, commencing employment on or about March 2,.

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2015, until on or about August 11, 2016, when she was wrongfully discharged.

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2.

Defendant, Board of Trustees of the California State University (hereinafter referred

to as CSU), is a California State agency operating in Sacramento County, California.

3.

The true names and capacities of the Defendants named herein as Does 1 through 20,

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inclusive, whether individual, corporate, associate or otherwise, are unknown to the Plaintiff who,

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therefore, sues such Defendants by fictitious names pursuant to California Code of Civil Procedure

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474. Plaintiff is informed and believes, and on that basis alleges that each Defendant sued under
PLAINTIFFS COMPLAINT

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such fictitious name is in some manner responsible for the wrongs and the damages as alleged below,

and in so acting was functioning as the owner, shareholder, agent, servant, partner, joint venturer,

alter-ego, employee, proxy, managing agent, and principal of the co-Defendants, and in doing the

actions mentioned below was acting, at least in part, within the course and scope of his authority as

such agent, servant, proxy, partner, joint venturer, employee, alter-ego, managing agent, and principal

with the permission and consent of the co-Defendants.

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Plaintiff is informed and believes, and thereupon alleges, that each of the Defendants

sued herein was, at all times relevant hereto, the employer, owner, shareholder, principal, joint

venturer, proxy, agent, employee, supervisor, representative, manager, managing agent, joint

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employer and/or alter-ego of the remaining Defendants, and was acting, at least in part, within the

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course and scope of such employment and agency, with the express and implied permission, consent

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and knowledge, approval and/or ratification of the other Defendants. The above Co-Defendants and

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managing agents and supervisors aided, abetted, condoned, permitted, wilfully ignored, approved,

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authorized and/or ratified the unlawful acts described herein.

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5.

Venue is proper in this county because the employment relationship between Plaintiff

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and Defendant arose and was performed in Sacramento County, California. This court is the proper

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court because the amount at issue exceeds the jurisdictional minimum of this court.
6.

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At all times herein, Plaintiff was duly qualified and performed her employment duties

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in a satisfactory manner. Plaintiff performed and was willing to continue to perform all duties and

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responsibilities on her part to be performed, which duties and responsibilities were part of the

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employment relationship between Defendant, CSU, and Plaintiff.

7.

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Plaintiff was at all times an employee covered by Government Code 12940

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prohibiting retaliation against employees who report discrimination in the workplace and was

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therefore a member of the group sought to be protected by this statute.

8.

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Defendant, CSU, was an employer within the meaning of the California Government

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Code 12926(d) and, as such, was and is barred from unlawfully discriminating in employment

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decisions on the bases set forth in Government Code 12940.

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PLAINTIFFS COMPLAINT

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9.

As an employee of Defendant, CSU, Plaintiff was entitled to all of the benefits

provided by CSUs personnel policies, procedures and practices.

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This action is brought to remedy retaliation against Plaintiff for reporting and opposing

unlawful employment practices.

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Plaintiff began working for Defendant, CSU, on or about March 2, 2015, as an

Administrative Support Assistant (ASA II) for its Sacramento campus.

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Plaintiff reported to her manager, Julia Tomassilli, about the conduct of her supervisor,

Jessica Gollaher, who had made discriminatory and offensive remarks on the basis of race against

Hispanics in a meeting which Plaintiff attended. Plaintiff also complained to Ms. Tomassilli that

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leads such as herself were not being paid overtime correctly and that CSU guidelines regarding wages

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were not followed.

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Plaintiff complained to Ms. Tomassilli about a coworker who was making racial slurs

about African Americans.

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Plaintiff also complained about favoritism shown to a Caucasian male employee over

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Hispanic female employees who held the same position (ASA II). The Caucasian male employee was

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given a more favorable work schedule than the Hispanic female employees even though he was hired

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at the same time and performed the same job.

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15.

A male coworker acted in a threatening manner toward Plaintiff.

When she

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complained to Ms. Tomassilli about his conduct, Ms. Tomassilli refused to take any action to protect

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Plaintiff. Ms. Tomassilli took the male employees side. Ms. Tomassilli did suggest that Plaintiff

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contact CSUs EEOC Department and Plaintiff did so. The EEOC Department told Plaintiff that it

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could not do anything for her. Ms. Tomassilli continued to have Plaintiff work with the man who

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threatened her.

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16.

After Plaintiff complained about the discriminatory remarks that were made, about the

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favoritism shown to a male employee and about CSUs failure to pay overtime correctly in accordance

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with CSU guidelines, Ms. Tomassilli began to retaliate against Plaintiff. Ms. Tomassilli called

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Plaintiff into her office on a regular basis and told Plaintiff that other employees were complaining

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about her conduct. Ms. Tomassilli told Plaintiff that she needed to make changes to work well with
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others though Ms. Tomassilli never gave Plaintiff any specifics about what she was accused of doing

or how to improve.

employment.

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Plaintiff was concerned that Ms. Tomassilli intended to terminate her

On or about August 11, 2016, Defendant, CSU, abruptly terminated Plaintiffs

employment. Ms. Tomassilli refused to give Plaintiff a reason for her termination. Plaintiff was

extremely distressed.

18.

Plaintiff is informed and believes that reasons for Plaintiffs termination are that she

complained about discrimination in the workplace and about Defendant, CSUs failure to pay ASA

IIs correctly for overtime.

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This conduct by Defendant, CSU, violated the California Fair

Employment and Housing Act and California Labor Code 98.6 and 1102.5.
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Plaintiff filed a charge of discrimination with the Department of Fair Employment and

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Housing (DFEH). On or about November 8, 2016, the DFEH issued a right-to-sue letter, a true and

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correct copy of which is attached hereto as Exhibit A and incorporated by reference. Plaintiff has

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complied with all prerequisites to jurisdiction of this Court under California Government Code

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12900, et seq.

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20.

On or about November 2, 2016, Plaintiff notified the California Labor and Workforce

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Development Agency (LWDA) regarding Defendant, CSUs violation of the Labor Code. As of

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the date of filing this Complaint, LWDA had not responded. Therefore, Plaintiff has exhausted her

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administrative remedies.

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21.

As a direct and proximate result of the Defendants acts of discrimination and

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retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest

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thereon, in earnings and other employment benefits which Plaintiff would have received. She has

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suffered and continues to suffer both physical and non-physical injuries, including emotional distress,

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humiliation, embarrassment and mental anguish all to her damage in an amount according to proof.

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22.

California Code of Civil Procedure 1021 provides that attorneys fees are recoverable

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in an action for which they are specifically provided by statute. California Government Code 12965

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and Labor Code 2699 provide that reasonable attorneys fees and costs are recoverable herein by the

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prevailing party, within the discretion of the court. Plaintiff has retained an attorney for the
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prosecution of this action. As a result, Plaintiff is entitled to her reasonable attorneys fees and costs

herein incurred.

FIRST CAUSE OF ACTION

Retaliation in Violation of Labor Code 98.6

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reference.

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The allegations of paragraphs 1 through 22 are re-alleged and incorporated herein by

Labor Code 98.6 prohibits employers such as Defendant, CSU, from discriminating

against employees such as Plaintiff who complain about an employer that disregards employees

rights under the Labor Code, such as the employers failure to pay overtime wages.

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25.

Plaintiff complained to Defendant, CSU, about its failure to pay her overtime correctly,

among other things. In retaliation, Defendant terminated Plaintiffs employment.

26.

Plaintiff suffered physical, emotional and economic harm, which was proximately

caused by CSUs wrongful conduct.

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Code of Civil Procedure 1021 provides that attorneys fees are recoverable in an

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action for which they are specifically provided by statute. Labor Code 2699 provides that, in

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addition to penalties, reasonable attorneys fees and costs are recoverable herein by the prevailing

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party, within the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this

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action. As a result, Plaintiff is entitled to her reasonable attorneys fees and costs herein incurred.

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28.

Pursuant to Labor Code 98.6 and 2699, Plaintiff is entitled to reinstatement and

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reimbursement for all lost wages and benefits caused by the acts of Defendant, CSU. Plaintiff will

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amend the complaint to invoke these provisions.

SECOND CAUSE OF ACTION
Retaliation in Violation of Labor Code 1102.5

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29.

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reference.

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30.

The allegations of paragraphs 1 through 28 are re-alleged and incorporated herein by

Labor Code 1102.5 provides protection for whistle blowers such as Plaintiff.

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Defendant, CSU, is prohibited from retaliating against Plaintiff for disclosing information to a

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government agency or another employee who has authority to investigate the violation if the employee
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has reasonable cause to believe that the information discloses a violation of or noncompliance with

a state rule or regulation.

31.

Plaintiff reasonably believed that Defendant, CSU, was in violation of California labor

laws which pertain to wages and hours because it did not pay her and other employees correctly for

overtime work. Plaintiff reported Defendants unlawful conduct to her managers and supervisors.

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32.

Defendant, CSU, retaliated against Plaintiff for reporting and complaining about its

unlawful activities by terminating her employment.

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Plaintiff suffered physical, emotional and economic harm, which was proximately

caused by Defendants wrongful conduct.

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Code of Civil Procedure 1021 provides that attorneys fees are recoverable in an

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action for which they are specifically provided by statute. Labor Code 2699 provides that, in

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addition to penalties, reasonable attorneys fees and costs are recoverable herein by the prevailing

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party, within the discretion of the Court. Plaintiff has retained an attorney for the prosecution of this

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action. As a result, Plaintiff is entitled to her reasonable attorneys fees and costs herein incurred.

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Plaintiff will amend the complaint to invoke these provisions.

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THIRD CAUSE OF ACTION

Retaliation in Violation of Government Code 12940(h)

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35.

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reference.

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36.

The allegations of paragraphs 1 through 34 are re-alleged and incorporated herein by

The California Government Code 12940 provides, in pertinent part:

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It shall be an unlawful employment practice . . .

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(h) For any employer ... or person to discharge, expel, or otherwise

discriminate against any person because the person has opposed
practices forbidden under this part or because the person has filed a
complaint, testified, or assisted in any proceedings under this act.

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37.

Plaintiff alleges on information and belief that Defendant, CSU, discharged her from

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her employment in retaliation for her complaints about gender discrimination in the workplace and

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about offensive statements made on the basis of race. Defendant, CSU, subjected Plaintiff to

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unwarranted criticism and, then, discharged her from her job. These acts were done in retaliation for
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her reports of and complaints about discrimination.

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38.

As a direct and proximate result of the Defendants acts of discrimination and

retaliation, Plaintiff has suffered and continues to suffer substantial economic losses and interest

thereon, in earnings and other employment benefits which Plaintiff would have received. She has

suffered and continues to suffer both physical and non-physical injuries, including emotional distress,

humiliation, embarrassment and mental anguish all to her damage in an amount according to proof.

39.

California Code of Civil Procedure 1021 provides that attorneys fees are recoverable

in an action for which they are specifically provided by statute. California Government Code 12965

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provides that reasonable attorneys fees and costs are recoverable herein by the prevailing party,

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within the discretion of the court. Plaintiff has retained an attorney for the prosecution of this action.

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As a result, Plaintiff is entitled to her reasonable attorneys fees and costs herein incurred.
REQUEST FOR JURY TRIAL

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Plaintiff, Lucelina Arias-Melendez, hereby requests a trial by jury.

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PRAYER FOR RELIEF

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WHEREFORE, Plaintiff prays as follows:

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1.

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For general damages in excess of the jurisdictional minimum of this Court,

according to proof;

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2.

For special damages according to proof;

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3.

For interest on the amount of losses incurred in earnings, deferred compensation

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and other employee benefits at the prevailing rate;

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4.

For reinstatement to her job with Defendant, CSU;

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5.

For costs of suit, including reasonable attorneys fees; and

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6.

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

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Dated: December 9, 2016

BRYANT WHITTEN, LLP

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SHELLEY G. BRYANT, Attorneys for Plaintiff,
LUCELINA ARIAS-MELENDEZ

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PLAINTIFFS COMPLAINT

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EXHIBIT A

STATE OF CALIFORNIA | Business, Consumer Services and Housing Agency

DEPARTMENT OF FAIR EMPLOYMENT & HOUSING

GOVERNOR EDMUND G. BROWN JR.

DIRECTOR KEVIN KISH

2218 Kausen Drive, Suite 100 I Elk Grove I CA I 95758

800-884-1684 I TDD 800-700-2320
www.dfeh.ca.gov I email: contact.center@dfeh.ca.gov

November08,2016

LucelinaAriasMelendez
8050NorthPalmAveSuite210
Fresno,California93711
RE:NoticeofCaseClosureandRighttoSue
DFEHMatterNumber:2500261434

RighttoSue:AriasMelendez/

DearLucelinaAriasMelendez,
ThisletterinformsyouthattheabovereferencedcomplaintwasfiledwiththeDepartmentofFair
EmploymentandHousing(DFEH)hasbeenclosedeffectiveNovember08,2016becauseanimmediate
RighttoSuenoticewasrequested.DFEHwilltakenofurtheractiononthecomplaint.
ThisletterisalsoyourRighttoSuenotice.AccordingtoGovernmentCodesection12965,subdivision
(b),acivilactionmaybebroughtundertheprovisionsoftheFairEmploymentandHousingActagainst
theperson,employer,labororganizationoremploymentagencynamedintheabovereferenced
complaint.Thecivilactionmustbefiledwithinoneyearfromthedateofthisletter.
ToobtainafederalRighttoSuenotice,youmustvisittheU.S.EqualEmploymentOpportunity
Commission(EEOC)tofileacomplaintwithin30daysofreceiptofthisDFEHNoticeofCaseClosure
orwithin300daysoftheallegeddiscriminatoryact,whicheverisearlier.
Sincerely,

DepartmentofFairEmploymentandHousing