IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 0 Christopher Ho, SBC No. Marielena Hincapié, SBC No. Donya Fernandez, SBC No. 0 The EMPLOYMENT LAW CENTER, A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO Mission Street, Suite 00 San Francisco, CA 0 Telephone: ( - Facsimile: ( - William J. Smith, SBC No. 0 Melvin M. Richtel, SBC No. 00 RICHTEL & SMITH 0 West Shaw Avenue, Suite Fresno, CA Telephone: ( -0 Facsimile: ( - Attorneys for Plaintiffs Edward M. Chen, SBC No. 0 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA Mission Street, Suite 0 San Francisco, CA 0 Telephone: ( - Facsimile: ( - IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 0 MARTHA RIVERA, MAO HER, ALICIA ALVAREZ, EVA ARRIOLA, PEUANG BOUNNHONG, ROSA CEJA, CHHOM CHAN, BEE LEE, PAULA MARTINEZ, MARIA MEDINA, MAI MEEMOUA, MARGARITA MENDOZA, BAO NHIA MOUA, ISIDRA MURILLO, MARIA NAVARRO, VATH RATTANATAY, OFELIA RIVERA, SARA RIVERA, MARIA RODRIGUEZ, MARIA RUIZ, MARIA VALDIVIA, SY VANG, YOUA XIONG, SEE YANG, and XHUE YANG, on behalf of themselves and all those similarly situated, Plaintiffs, v. NIBCO, INC., an Indiana corporation, and R. M. WADE & CO., an Oregon corporation, Defendants. No. CIV F-- AWI SMS [PROPOSED] FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND MONETARY RELIEF FOR [JURY TRIAL DEMANDED] [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

2 0 0 JURISDICTION. Jurisdiction of the subject matter of this action is established under U.S.C., U.S.C., U.S.C. (, U.S.C. 0, U.S.C. 0, and Section 0(f( of Title VII of the Civil Rights Act of, as amended, U.S.C. 000e et seq. ( Title VII, inasmuch as the allegations of this complaint state a claim for employment discrimination on the basis of plaintiffs national origin in violation of Title VII.. This Court has supplemental jurisdiction over the related state law claim asserted herein under the doctrine of pendent jurisdiction and pursuant to U.S.C.. Supplemental jurisdiction over the state law claim asserted herein is appropriate because it arises from a common nucleus of operative fact from which the federal claim arises.. This is the proper venue for this action in that the unlawful employment practices alleged herein were committed within this Court s judicial district. NATURE OF THIS ACTION. This is an action brought pursuant to Title VII to obtain relief for plaintiffs MARTHA RIVERA, MAO HER, ALICIA ALVAREZ, EVA ARRIOLA, PEUANG BOUNNHONG, ROSA CEJA, CHHOM CHAN, BEE LEE, PAULA MARTINEZ, MARIA MEDINA, MAI MEEMOUA, BAO NHIA MOUA, ISIDRA MURILLO, MARIA NAVARRO, VATH RATTANATAY, OFELIA RIVERA, SARA RIVERA, MARIA RODRIGUEZ, MARIA RUIZ, MARIA VALDIVIA, SY VANG, YOUA XIONG, SEE YANG, and XHUE YANG, and the class of all persons similarly situated.. In addition, plaintiffs invoke this Court s supplemental jurisdiction over pendent state law claims to assert violations of the California Fair Employment and Housing Act ( FEHA, California Government Code 00 et seq.. This action is brought by plaintiffs to secure redress for violations by defendants NIBCO, INC. and R. M. WADE & CO. of plaintiffs civil right to be free from employment discrimination because of their national origin. [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

3 0 0 PARTIES. Plaintiff MARTHA RIVERA, a resident of Fresno, California, is Latina and speaks production worker for approximately 0 years at the manufacturing facility, located at East Florence Avenue in Fresno, California, at which the events complained of herein occurred (the Fresno facility.. Plaintiff MAO HER, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff ALICIA ALVAREZ, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff EVA ARRIOLA, a resident of Fresno, California, is Latina and speaks Spanish as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility. 0. Plaintiff PEUANG BOUNNHONG, a resident of Fresno, California, is Laotian and speaks Lao as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff ROSA CEJA, a resident of Fresno, California, is Latina and speaks Spanish as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff CHHOM CHAN, a resident of Fresno, California, is Cambodian and speaks Cambodian as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately 0 years at the Fresno facility.. Plaintiff BEE LEE, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility. [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

4 0 0. Plaintiff PAULA MARTINEZ, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff MARIA MEDINA, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff MAI MEEMOUA, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff BAO NHIA MOUA, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff MARGARITA MENDOZA, a resident of Fresno, California, is Latina and speaks Spanish as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff ISIDRA MURILLO, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility. 0. Plaintiff MARIA NAVARRO, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff VATH RATTANATAY, a resident of Fresno, California, is Laotian and speaks Lao as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff OFELIA RIVERA, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility. [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

5 0 0. Plaintiff SARA RIVERA, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff MARIA RODRIGUEZ, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff MARIA RUIZ, a resident of Fresno, California, is Latina and speaks Spanish as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff MARIA VALDIVIA, a resident of Fresno, California, is Latina and speaks production worker for approximately years at the Fresno facility.. Plaintiff SY VANG, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff YOUA XIONG, a resident of Clovis, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility.. Plaintiff SEE YANG, a resident of Fresno, California, is Hmong and speaks Hmong as her primary language. Her proficiency in English is limited. She was employed as a production worker for approximately years at the Fresno facility. 0. Plaintiff XHUE YANG, a resident of Sacramento, California, is Hmong and speaks Hmong as his primary language. His proficiency in English is limited. He was employed as a production worker for approximately years at the Fresno facility.. Defendant NIBCO, Inc. ( NIBCO is an Indiana corporation headquartered in Elkhart, Indiana and doing business in California. At all times relevant herein during which it owned and operated the Fresno facility, defendant NIBCO employed in excess of fifteen persons there, and was [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

6 0 0 an employer within the meaning of Title VII and the FEHA.. Defendant R. M. WADE & CO. ( Wade is an Oregon corporation headquartered in Portland, Oregon and doing business in California. At all times relevant herein during which it owned and operated the Fresno facility, defendant Wade employed in excess of fifteen persons there, and was an employer within the meaning of Title VII and the FEHA.. Prior to defendant Wade s acquisition of the Fresno facility on or about August,, the Fresno facility was owned and operated by defendant NIBCO for all purposes relevant herein. CLASS ACTION ALLEGATIONS. Plaintiffs bring this action as a class action pursuant to Fed.R.Civ.P. (b on their own behalf and on behalf of all those similarly situated. The plaintiff class is composed of all limited-english-proficient production workers who have been terminated from or otherwise disadvantaged in the terms and conditions of employment at the Fresno facility as a result of the practices complained of herein.. Plaintiffs are informed and believe and thereon allege that the plaintiff class defined in the foregoing paragraph is sufficiently numerous and geographically dispersed such that joinder is impracticable. class.. The claims of the plaintiffs are typical of the claims of the members of the plaintiff. Plaintiffs will fairly and adequately protect the interests of the plaintiff class. The named plaintiffs have no interest which is now or may be potentially antagonistic to the interests of the plaintiff class. The attorneys representing the plaintiffs and the plaintiff class have substantial experience in litigating federal and state law claims of employment discrimination.. Defendants have acted on grounds generally applicable to the plaintiffs and the plaintiff class, thereby making appropriate final injunctive relief and corresponding declaratory relief with respect to the plaintiff class as a whole.. Questions of law and fact common to the members of the plaintiff class predominate [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

7 0 0 over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. GENERAL ALLEGATIONS 0. At all times relevant herein, defendants owned and operated the Fresno facility for the purpose of producing irrigation systems and their components for commercial sale and distribution.. At all times relevant herein, plaintiffs were employed as production workers at the Fresno facility. Although plaintiffs performed different functions in the production process, their duties were routine and repetitive in nature.. Plaintiffs did not need to be proficient in English in order to perform their jobs successfully. Indeed, plaintiffs were hired to work at the Fresno facility, either by defendant NIBCO or by prior owners of the Fresno facility, with full knowledge of their lack of proficiency in English.. In or about late or early, defendant NIBCO required all employees at the Fresno facility to take examinations that were administered only in English (the written English examinations.. Although the written English examinations purported to concern matters relating to plaintiffs employment at NIBCO, they consisted of questions that were written only in English. Moreover, defendant NIBCO required plaintiffs to submit their responses to those questions only in writing and in English.. When defendant NIBCO informed plaintiffs that they would be required to submit to the written English examinations, it represented to them that their performance on the examinations would not jeopardize their continued employment at the Fresno facility.. Defendant NIBCO administered the written English examinations in the abovedescribed manner even though it was fully aware that plaintiffs proficiency in English was limited.. Defendant NIBCO administered the written English examinations in the abovedescribed manner even though plaintiffs did not need to be proficient in English in order to perform their jobs successfully. To the contrary, each of the plaintiffs had worked without incident at the Fresno facility for at least several years, and in some cases for nearly 0 years. All had performed [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

8 0 0 their jobs satisfactorily. Some had been formally recognized for lengthy and meritorious service at the Fresno facility. In some cases, plaintiffs had received merit pay raises in addition to general salary increases.. Each of the named plaintiffs was required to take the written English examinations. Because of their limited proficiency in English, however, each of the plaintiffs had great difficulty understanding the contents of the examinations and responding thereto in written English.. In taking their first or second examinations, many of the plaintiffs were expressly assured by defendant NIBCO that there would be no negative consequences if they simply wrote their names on the examinations and did not submit answers to the questions. Many of the plaintiffs in fact did so in reliance on those assurances. 0. After being judged by defendant NIBCO to have failed one or more of the written English examinations, however, defendant NIBCO told many of the plaintiffs that they should enroll in English as a second language classes. Several plaintiffs were demoted and reassigned to different and more onerous job duties, and were informed that their demotions were a result of their performance on the examinations. Still others were admonished that they would have to become proficient in English in order to receive any pay raises in the future.. Several plaintiffs were also instructed by supervisors of defendant NIBCO that they should speak only in English while at work, even though they spoke English only with great difficulty, if at all.. In a series of firings commencing on or about July 0, and continuing through on or about September,, each of the plaintiffs was terminated from their employment with defendant NIBCO. Defendant NIBCO represented to them that it was terminating them due to a lack of work at the Fresno facility.. Plaintiffs are informed and believe and thereon allege, however, that defendant NIBCO fired them on the basis of their performance on the written English examinations.. Plaintiffs are informed and believe and thereon allege that other members of the plaintiff class may have been terminated or otherwise disadvantaged under similar circumstances on [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

9 0 0 the same or additional dates.. Plaintiffs are informed and believe and thereon allege that virtually all, if not all, of those who were terminated or otherwise disadvantaged on the basis of the written English examinations were Latinos or Asians whose proficiency in English is limited, inasmuch as their primary languages, which are a direct function and manifestation of their respective national origins, are languages other than English.. Defendant NIBCO s use of the policies and practices complained of herein, including but not limited to its termination of plaintiffs on the basis of the written English examinations, adversely and disproportionately impacted them on the basis of their national origin.. Defendant NIBCO s use of the policies and practices complained of herein, including but not limited to its termination of plaintiffs on the basis of the written English examinations, was not justified by any business necessity.. For example, plaintiff María Medina, a highly experienced employee who had worked for over nineteen years at the Fresno facility, was terminated by defendant Nibco in September, after having been deemed to have failed the examination on three separate occasions. Less than two months later, however, Nibco asked Medina to return to her previous job duties after it invited her to take a fourth examination and thereupon informed her that, on this particular occasion, she had now been judged to have passed the examination.. Plaintiffs are informed and believe and thereon allege that any allegedly necessary business purpose which may be asserted for the practices complained of herein, including but not limited to defendant NIBCO s termination of plaintiffs, could have been achieved through less discriminatory means. 0. Defendant NIBCO terminated plaintiffs even though they were fully qualified to perform their jobs.. Plaintiffs are informed and believe and thereon allege that immediately before and after defendant NIBCO terminated them, it sought and hired other persons to do the same work plaintiffs had been performing. Plaintiffs are further informed and believe and thereon allege that [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

10 0 0 defendant NIBCO sought for that purpose only persons whom it believed to be proficient in English. SUCCESSOR LIABILITY ALLEGATIONS. Plaintiffs are informed and believe and thereon allege that when defendant Wade acquired the Fresno facility from defendant NIBCO, defendant Wade had notice of the pendency of the above administrative charges of discrimination relating to the Fresno facility. Plaintiffs are further informed and believe and thereon allege that defendant Wade has not disavowed or rescinded the policies, practices, procedures, and actions complained of herein. Substantial continuity of business operations at the Fresno facility was maintained by defendant Wade, and defendant Wade is able to provide the relief requested of it herein.. For these reasons, plaintiffs are informed and believe and thereon allege that defendant Wade is liable in at least significant part for the matters alleged herein.. At present, only four of the plaintiffs have been rehired by defendant Wade to work at the Fresno facility, in some cases at less than their former hourly rates of pay.. Five of the other plaintiffs have been hired to work at the Fresno facility, not as employees of defendant Wade, but as temporary employees of a local personnel agency. Most of these plaintiffs are receiving less than their former hourly rates of pay, and none are receiving employment benefits. EXHAUSTION OF ADMINISTRATIVE REMEDIES. Plaintiffs timely filed charges of discrimination with the U.S. Equal Employment Opportunity Commission ( EEOC respecting the above allegations as to defendant NIBCO. Those charges were cross-filed with the California Department of Fair Employment and Housing ( DFEH.. Plaintiffs have received notifications from EEOC and DFEH of their right to bring suit herein, and this action is timely filed. DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS. An actual and substantial controversy currently exists between plaintiffs and defendants in that plaintiffs are informed and believe that defendants claim they are not liable to [PROPOSED] FIRST AMENDED COMPLAINT FOR Page 0

11 0 0 plaintiffs for violations of Title VII and the FEHA. Plaintiffs contend the opposite. Declaratory relief is therefore appropriate and necessary to resolve this controversy.. Plaintiffs have no adequate remedy at law with which to secure relief for the deprivation of their rights pursuant to Title VII and the FEHA. Injunctive relief including, but not limited to, an order enjoining defendants from future such discriminatory actions is therefore appropriate and necessary to effectuate the purposes of Title VII and the FEHA. FIRST CLAIM FOR RELIEF [Discrimination Because Of National Origin -- Title VII] 0. Plaintiffs incorporate by reference the allegations contained in paragraphs through above as though fully contained herein.. Defendant NIBCO s use of the policies and practices complained of herein, including but not limited to its termination of plaintiffs, constituted unlawful discrimination in employment on the basis of national origin in violation of Title VII of the Civil Rights Act of.. As a direct and proximate result of the above-described actions of defendant NIBCO, plaintiffs were terminated from their employment and suffered a loss of wages.. As a further direct and proximate result of the above-described actions of defendant NIBCO, plaintiffs have suffered and/or continue to suffer emotional distress, humiliation and dignitary harms, and other injuries.. Defendant NIBCO undertook the above-described actions willfully and with disregard for plaintiffs rights under Title VII. SECOND CLAIM FOR RELIEF [Discrimination Because Of National Origin -- FEHA]. Plaintiffs incorporate by reference the allegations contained in paragraphs through above as though fully contained herein.. Defendant NIBCO s use of the policies and practices complained of herein, including but not limited to its termination of plaintiffs, constituted unlawful discrimination in employment on the basis of national origin in violation of the California Fair Employment and Housing Act. [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

12 . As a direct and proximate result of the above-described actions of defendant NIBCO, plaintiffs were terminated from their employment and suffered a loss of wages.. As a further direct and proximate result of the above-described actions of defendant NIBCO, plaintiffs have suffered and/or continue to suffer emotional distress, humiliation and dignitary harms, and other injuries.. Defendant NIBCO undertook the above-described actions with malice, oppression, and willful and conscious disregard for plaintiffs rights under the FEHA. 0 0 PRAYER FOR RELIEF WHEREFORE, plaintiffs pray for judgment against defendants as follows:. For an injunction restraining defendants and their officers, agents, directors, successors, employees, attorneys, or representatives from further violations of Title VII and the FEHA, including but not limited to enjoining defendants from the use of policies and practices such as those complained of herein, and requiring the establishment of appropriate and effective means to prevent future such violations;. For an injunction requiring defendants and their officers, agents, directors, successors, employees, attorneys, or representatives to expunge, from the personnel files of all plaintiffs and the members of the class they represent, all adverse references and other materials relating to the matters alleged herein;. For an order requiring defendant Wade to make offers to plaintiffs of reinstatement to their former positions or positions substantially comparable thereto at the Fresno facility, at their former rates of pay and levels of benefits, and with full and retroactive seniority;. For a declaration that defendants policies, practices, procedures, and actions complained of herein violated the rights of plaintiffs and the members of the class they represent to be free from discrimination under Title VII and the FEHA;. For an award of back pay, in amounts according to proof;. For an award of front pay to plaintiffs and class members not electing to accept the [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

13 above-described offers of reinstatement, in amounts according to proof;. For an award of compensatory damages and punitive damages, in amounts according to proof;. For plaintiffs reasonable attorneys fees and costs of suit; and. For such other and further relief which this Court deems just, equitable, and proper. 0 Dated: January, 000 Respectfully submitted, Christopher Ho Marielena Hincapié Donya Fernandez The EMPLOYMENT LAW CENTER, A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO William J. Smith Melvin M. Richtel RICHTEL & SMITH Edward M. Chen AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 0 By: DONYA FERNANDEZ Attorneys for Plaintiffs [PROPOSED] FIRST AMENDED COMPLAINT FOR Page

14 0 DEMAND FOR JURY TRIAL Plaintiffs hereby request a trial by jury pursuant to Fed.R.Civ.P (b. Dated: January, 000 Respectfully submitted, Christopher Ho Marielena Hincapié Donya Fernandez The EMPLOYMENT LAW CENTER, A Project of the LEGAL AID SOCIETY OF SAN FRANCISCO William J. Smith Melvin M. Richtel RICHTEL & SMITH Edward M. Chen AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA 0 By: DONYA FERNANDEZ Attorneys for Plaintiffs [PROPOSED] FIRST AMENDED COMPLAINT FOR Page