UNITED STATES DISTRICT COURT

Transcription

1 WALTER L. ELLIS Plaintiff IN PRO PER FrLED 01 FEB AM : 0 BY " UNITED STATES DISTRICT COURT WAL TER L. ELLIS, an individual, on behalf of the State of California, as a private attorney general, Vs. CENTRAL DISTRICT OF CALIFORNIA Plaintiff, SWIFT TRANSPORTATION COMPANY INC.; CENTRAL REFRIGERATED SERVICES, LLC., and DOES 1 through 0, inclusive, Defendants. 0 c,&ypa REPRESENTATIVE ACTION COMPLAINT FOR: 1. Violation of Title VII of the Civil Rights Act of, And Title 1 of the Civil Rights Act of 1;. Violation of Business & Professions Code 1 00;. Violation of the Unruh Act (Th, 1:_;;; '

2 1 1 0 Plaintiff WALTER ELLIS, on behalf of the people of the State of California and as an "aggrieved employee" acting as a private attorney general under the Labor Code Private Attorneys General Act of 00,, et seq. ("PAGA") complains of Defendant(s) CENTRAL REFRGERATED SERVICES, INC. and SWIFT TRANSPORTATION COMPANY INC.; ("Defendants") and each of them, as follows: I. INTRODUCTION 1. Defendant SWIFT TRANSPORTATION COMPANY, INC. ( collectively "Swift") is a publicly owned company incorporated in Arizona. Swift is a multi-faceted transportation services company and the largest truckload carrier in North America.. Defendant CENTRAL REFRIGERATED SERVICES, INC. is and at all times relevant hereto, a corporation doing business in the State of California. In 01, Defendant Central Refrigerated Services, Inc. was acquired by Defendant Swift Transportation Company, Inc..). Plaintiff brings is action pursuant to Labor Code, et seq., ("PAGA") on behalf of the State of California, Plaintiff and all other individuals who hold or held the position of employee currently employed by or formerly employed by Defendants and any subsidiaries or affiliated companies and Does 1 through 0 within the State of California who worked one or more pay periods (hereafter "aggrieve employees"). The PAGA gives a private citizen the right to pursue fines that would normally only be available to the State of California. As such, it is truly allowing a private citizen to act as an attorney general. Cal. Lab. Code (a). Any resulting civil penalties are split between the Labor and Workforce Development Agency

3 1 1 0 ("L WDA") and the employee with the LWDA receiving % of the penalties and the employee receiving %. Cal. Lab. Code (i).. Plaintiff brings this cause under Title VII of the Civil Rights Act of (Title VII) la\.v makes it illegal to discriminate against someone on the basis of race. color, religion. national origin. or sex. The law also makes it illegal to retaliate against a person because the person complained about discrimination, filed a charge of discrimination. or pa1ticipated in an employment discrimination investigation or lawsuit. The law also requires that employers reasonably accommodate applicants' and employees sincerely held religious practices. unless doing so would impose an undue hardship on the operation of the employer's business.. Plaintiff brings this action under Business and Professions Code 00 as encompassing any one of the following five types of business "wrongs"; (1) an "unlawful" business act or practice; () an "unfair" business act or practice; () a "fraudulent" business act or practice; ( ) "unfair, deceptive, untrue or misleading advertising"; and ( ) any act prohibited by Sections Plaintiff brings this action under Unruh Act which states "[ a ]ll persons within the jurisdiction of this state are free and equal, and no matter what their... race... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of any kind whatsoever." (Civ. Code. 1.).. Plaintiff, on behalf of himself and all aggrieved employees presently or formerly employed by Defendant during the liability period, brings this representative action pursuant to Labor Code, et seq., Business and Professions Code 00, and Unruh Act, seeking penalties for Defendant's violation of Title VII of the Civil Rights Act of. II.

4 JURISDICTION AND VENUE. This Court has subject matter jurisdiction over any and all causes of action asserted herein pursuant to Article VI, of the California Constitution and California Code of Civil Procedure. by virtue of the fact that this is a civil action in which the matter in controversy, exclusive of interest, exceeds $,000, and because such cause of action asserted arises under the laws of the State of California or is subject to adjudication in the courts of the State of California. 1. This Court has personal jurisdiction over Defendant because Defendant has caused injuries in this State of California, County of Riverside, through their acts, and by their violation of the California Labor Code and California state common law.. Venue is property in this District under U.S.C. 1 because Defendants transact business in this judicial district and because this District is a District in which a 1 substantial part of the events or omissions giving rise to the Complaint occurred. Venue is proper in the Central District of California. III. THE PARTIES 0. Plaintiff, WALTER ELLIS is a resident of Riverside, California, in Riverside County.. Plaintiff was an employee of Defendant Central Refrigerated Services, Inc. from about August, 00 to January 00 at which time the claims alleged were violated and as a result resulted in a "wrongful" termination of the Plaintiff. 1. Defendant Swift Transportation Company, Inc. is an Arizona business corporation having an office and place of business in Phoenix, Arizona. Defendant Swift Transportation

5 Company, Inc. lists its headquarters and principal office address as 00S. th Ave., Phoenix, Arizona 0-.. Defendant Swift Transportation Company, Inc. is engaged in interstate shipment of freight and provides its customers transportation solutions.. Defendant Central Refrigerated Services, LLC, is located in West Valley City, Utah, 0, United States.. Defendant Central Refrigerated Services, LLC, is one of the largest temperature- controlled truckload carriers in the United States. The Defendant serves North-America with multiple terminals.. Defendant Central Refrigerated Services, LLC was acquired by truckload canier 1 Defendant Swift Transportation Company, Inc. in Defendants and each of them conduct business throughout the country, including in Arizona, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Michigan, Minnesota, Nevada, New Mexico, New York, Ohio, Oklahoma, Oregon, Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.. Defendants and each of them are enterprises engaged in interstate commerce for 0 purposes of the Fair Labor Standards Acts and Fair Labor Regulations. 0. Defendants and each of them have common control and a common business purpose and are operated as a single enterprise, within the meaning of U.S.C. 0(f)(l).. All actions and omissions described in this complaint were made by Defendant Central Refrigerated Services directly or through it supervisory employees, and agents. ///

6 DOE DEFENDANTS The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants sued herein as DOES 1 to 0, inclusive, are currently unknown to Plaintiff, who therefore sues Defendants by such fictitious names under Code of Civil Procedure. Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants designated herein as a DOE is legally responsible in some manner for the unlawful acts referred to herein. Plaintiff will seek leave of court to amend this Complaint to reflect the true names and capacities of the Defendants designated hereinafter as DOES when such identities become known.. Plaintiff is informed and believes, and based thereon alleges, that each Defendant acted in all respects pertinent to this action as the agent of the other Defendants, carried out a joint scheme, business plan or policy in all respects pertinent hereto, and the acts of each Defendant are legally attributable to the other Defendants. Furthermore, Defendants in all respects acted as the employer and/or joint employer of Plaintiff. FACTUAL ALLEGATIONS. At all times set forth, Defendant Central Refrigerated Services, LLC, (hereinafter o "CRS") employed Plaintiff in August 00, in the capacity as "over the road" trucker.. Plaintiff was employed by CRS from on or about August, 00 to January 00, at which time CRS terminated Plaintiff in retaliation for Plaintiff's complaints regarding CRS discrimination and numerous other state and federal violations to various Government agencies.

7 During Plaintiffs employment with CRS he obtained first-hand knowledge of CRS' s employment practices with respect to terms and conditions of employment for many of CRS's drivers, including their termination process pursuant to company policy.. Plaintiff, Walter Ellis (African-American, born in the United States) was employed as an over-the-road trucker at CRS' operation commencing on or about August, 00in Riverside, California.. CRS's managing officials, including high-level company officials subjected Plaintiff to a hostile work environment on the basis of race (Black), national origin (African- American) in violation of Section 0(a) of Title VII.. Since 00, Plaintiff and other African-Americans similarly situated employees with like and related claims were treated less favorably by CRS. More specifically, CRS subjected Plaintiff and other African-American employees to disparate terms and conditions of employment on the basis of national origin in violation of Section 0( a) of Title VII. 0. As a commercial trucking business, CRS was required to follow the U.S. Department of Transportation's Federal regulations. For example: Under these regulations, truck drivers such as Plaintiff had (1) a right to be paid equally as White drivers, () to not be retaliated against an employee for complaining about race discrimination, and/or () unfair driving assignments. Based on the totality of the circumstances, this harassment was (a) objectively and subjectively hostile, (b) found unwelcome by Plaintiff and other similarlysituated individuals, and ( c) sufficiently severe and pervasive which altered the employment conditions and created an abusive work environment. 1. The Department of Transportation required at the time of the Plaintiffs employment with CRS as follow:

8 a. b. Maximum hours prior to July 1, 01; Maximum 0 hours commencing on July 1, The drivers for CRS were required to falsify their log books before leaving for their destination. Example: (1) Only clock in on log book after work. In order to only work hours per day per the Department of Transportation, CRS required that Plaintiff and other similarly situated come to work at :0 a.m., do inspection of truck and other administrative duties, then start trip at :00 a.m., thereby showing that each driver only worked hours....,...,.).). Plaintiff's route, for instance, to Sacramento, California took 0- hours round trip, travelling at the highway stated speed it would be impossible for Plaintiff to leave Fontana, California and drive to Sacramento, California and return in hours. Therefore, it was required by CRS to "doctor" the log books.. Plaintiff complained to employees and agents of CRS regarding the improper logging of trucker books. Retaliation by employees and agents of CRS stated against Plaintiff.. Plaintiff, at the commencement of his employment with CRS recognized that there were few if any African-American employees, particularly in management and allowed to driver preferred freight routes. Plaintiff begin to question CRS higher employees as well as complain about CRS disparity in hiring minorities in all positions of the company. employees.. Plaintiff further offered solutions to CRS 's disparity in the hiring of minority. CRS did not correct it's discriminatory hiring practices and Plaintiff filed a complaint alleging racial discrimination with the United States Department of Transportation in December 00. Plaintiff was discharged on or about January of 00. On or about September, 00, Plaintiff filed an amended complaint with EEOC alleging retaliatory discharge.

9 During the Plaintiff's employment in 00, CRS engaged in a discriminatory practice subjecting harsher treatment to minority drivers if they did not abide to undesirable "improper log books." CRS would discharge a driver if he would not agree to such improper logging and/or runs. CRS treated White drivers more favorably than Black or Hispanic drivers if they refused to perform "improper log books." If a White driver refused to make a run based on improper logging, CRS would merely not assign them a "run" that day.. Plaintiff was required to travel to other states pursuant to the requirements of his employment with CRS. On one occasion Plaintiff was in Tacoma, Washington. While Plaintiff was waiting for his truck to be unloaded another Trucker walked over to his truck and made the racial slur "how you doing sunshine." Plaintiff contacted dispatch and informed CRS of this racist behavior. CRS did nothing. On another trip from Phoenix to Salt Lake City, Utah, Plaintiff was approached by a white trucker and asked Plaintiff if he wanted to go to lunch with him, Plaintiff agreed. The white driver was a Swift employee. The white driver asked Plaintiff if he wanted to drive for Swift in order for Swift to keep the Mexican truck drivers out of the United States. Plaintiff told him no he had nothing against Mexican truck drivers and did not want to work for Swift. The white Swift employee then became irate and insulting with Plaintiff and asked Plaintiff if he was married, the Plaintiff said yes. Then the white Swift employee ask Plaintiff "does your wife ha ve a big pussy?" Plaintiff did not respond. The white Swift driver continued with his racist and pervasive talk with the Plaintiff. Plaintiff, at this time was placed in a defense mode and made a remark to the white Swift employee that his wife's pussy was probably big due to his wife having sex with black dicks. Plaintiff thereafter contacted CRS dispatch and informed the CRS employee how he was being verbally assaulted by a white Swift driver's racist rampage. The dispatch driver told Plaintiff that Plaintiffs remarks to the Swift

10 1 1 0 employee would be reported to CRS and that was his concern, not the fact that the Swift employee initiated insulting racist remarks to Plaintiff. 0. Plaintiff put CRS on notice on several occasions regarding overt discriminatory practices, but CRS failed to take prompt and effective remedial action to prevent and correct the discriminatory practices as described in paragraphs through above. 1. The effect of the practices complained of as described in paragraphs through where made in various manners and at various times to Plaintiff and other CRS employees and were made to deprive Plaintiff and others similarly situated drivers of equal employment opportunities.. The unlawful employment practices in paragraphs through above were intentional.. The unlawful employment practices complained of above were done with malice or with reckless indifference to the federally protected rights of the Plaintiff. Punitive damages are warranted given the discriminatory practices were committed in the face of a perceived risk that such actions will violate federal law because (I) high company officials themselves engaged in discrimination, and () despite prior notice, Defendants Swift Transportation Company, Inc., and Central Refrigerated Services, LLC repeatedly failed to engage in effective and prompt remedial action to correct and prevent the unlawful employment practices as described in paragraphs through. Ill

11 . IV. FIRST CAUSE OF ACTION Violation of Title VII of the Civil Rights Act of & Title I of the Civil Rights Act of 1 Plaintiff hereby incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through.. Title VII of the Civil Rights Act, as codified, opens by stating that the purpose of Title VII of the Civil Rights Act is: "To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes". Title VII of the Civil Rights Act has its main purpose in prohibiting discrimination in employment by employers based on race, color, religion, sex or national origin. Section 000e- states that it shall be unlawful for an employer" (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or () to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."

12 . A separate section of Title VII of the Civil Rights Act is its anti-retaliation provision -forbids an employer from "discriminating against an employee or job applicant because that individual "opposed any practice" made unlawful by Title VII or "made a charge, testified, assisted, or participated in" a Title VII proceeding or investigation.. Plaintiff on numerous occasions complained to CRS and its employees and agents regarding the discrimination as alleged herein. As a result of Plaintiff's complaints to CRS and to numerous Government Agencies, Plaintiff was terminated in January 00 from his job as truck driver for defendant CRS. CRS failed to pay Plaintiff all wages due at termination and maliciously breached the terms of his employment contract.. Defendant CRS 's actions in terminating Plaintiff amounted to unlawful retaliation 1 in violation of Title VII 000e-(a) Title VII's anti-retaliation provision forbids employer actions that "discriminate against" an employee ( or job applicant) because he has "opposed" a practice that Title VII forbids or has "made a charge, testified, assisted, or participated in" a Title VII "investigation, proceeding, or hearing." 000e-(a).. The Supreme Court - Ninth Circuit, in following EEOC guidance, has said that the plaintiff must simply establish "adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." Ray v. Henderson, F.d, - (CAO 000). 0. In the above allegations as set forth in paragraphs through, the Plaintiff has clearly and legally set forth the discriminatory and retaliatory conditions which existed at CRS. 1. Section 0a) sets forth Title VII's core anti-discrimination provision in the following terms:

13 "It shall be an unlawful employment practice for an employer-- "( 1) to fail to refuse to hire or to discharge any individual, or Otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or "()" to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 000e-(a). Section 0(a) sets forth Title VII's anti-retaliation provision in the following terms: "It shall be an unlawful employment practice for an Employer to discriminate against any of his employees Or applicants for employment... because he has opposed Any practice made an unlawful employment practice By this subchapter, or because he has made a charge, Testified, assisted, or participated in any manner in An investigation, proceeding, or hearing under this Subchapter." 000e-(a). The anti-retaliation provision seeks to secure that primary objective by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or 0 advance enforcement of the Act's basic guarantees. The substantive provision seeks to prevent injury to individuals based on who they are, i.e., their status. The anti-retaliation provision seeks to prevent harm to individuals based on what they do, i.e., their conduct.. CRS violated the anti-retaliation provision of the Act by taking actions that directly related to the Plaintiffs employment, and then by causing Plaintiff harm outside the workplace. Rochon v. Gonzales, F. d, at 1. REPRESENTATIVE ACTION COMPLAlNT

14 The National Labor Relations Act... in other Title VII cases, Hishon v. King & Spalding, U.S., n. (), provides an illustrative example. Comparing U.S.C. l (a)() (substantive provision prohibiting employer "discrimination in regard to... any term or condition of employment to encourage or discourage membership in any labor organization") with (a)() (retaliation provision making it unlawful for an employer to "discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this subchapter") also Bill Johnson's Restaurants, Inc. v. NLRB, 1 U.S. 1, 0 () ( construing anti-retaliation provision to "prohibit a wide variety of employer conduct that is intended to restrain, or that has the likely effect of restraining, employees in the exercise of protected activities," including the retaliatory filing of a lawsuit against an employee); NLRB v. Scrivener, 0 U.S., 1- () (purpose of the anti-retaliation provision is to ensure that employees are "completely free from coercion against reporting" unlawful practices).. Plaintiff defends that CRS terminated him solely because he filed actions complaining to Government agencies and State agencies about CRS discriminatory and retaliatory actions against him.. The anti-retaliation provision protects this Plaintiff from retaliation that produces an injury or harm. CRS's retaliation, the termination of Plaintiff has caused extensive harm and continues to injure and harm the Plaintiff.. The Plaintiff has shown that a reasonable employee, similarly situated, would have found the challenged action materially adverse, which in this particular case, it would have dissuaded a reasonable worker from making or supporting a charge of discrimination against CRS. Rochon, / JD, AT. 1

15 This Plaintiff believes and alleges that he has presented sufficient evidence to support Plaintiff's claims that CRS was and is in Violation of Title VII of the Civil Rights Act of and the anti-retaliation provision of Title VII. CRS's termination, and is failure to pay Plaintiff his wages at the time of the termination was materially adverse to the Act. SECOND CAUSE OF ACTION Violation of California Business & Professions Code 00 et seq.. Plaintiff hereby incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through.. California Business and Professions Code 00 et seq., reads as follows: 0. "(1) any unlawful, unfair or fraudulent business act or practice () an "unfair" business act or practice, () a "fraudulent" business act or practice; () "unfair, deceptive, untrue or misleading advertising and () any act prohibited by Chapter 1 (commencing with 00) of Part of Division of the Business and Professions Code." Defendants' conduct, as alleged in this complaint, has been, and continues to be, unfair, unlawful, and harmful to the Plaintiff, and the general public. Plaintiff seeks to enforce important rights affecting the public interest within the meaning of Code of Civil Procedure.. 1. Defendants' activities as alleged herein are violation of California law, and constitute unlawful business acts and practices in violation of California Business & Professions Code 00, et seq.. Plaintiff has been personally aggrieved by Defendants' unlawful business acts and practices alleged herein by the loss of money or property.. Plaintiff is entitled to restitution of the wages withheld and retained by Defendants at the time of his termination up and into the time of the filing of this complaint.

16 Plaintiff is entitled to an award of attorneys' fees pursuant to California Code of Civil Procedure. and other applicable law; and an award of costs.. A violation of California Business & Professions Code 1 00, et seq. may be predicated on the violation of any state or federal law. In the instant case, Defendants' policy and practice of discrimination, and retaliation of this plaintiff is a violation of the Title VII of the Civil Rights Act of and the Anti-retaliation provision of Title VII. In addition to violation of the Department of Transportation and California Labor Code Violations Plaintiff is entitled to punitive damages and other damages in an amount to be determined at trial. THIRD CAUSE OF ACTION Violation of the Unruh Act. Plaintiff hereby incorporates by reference and re-alleges as if fully stated herein the material allegations set out in paragraphs 1 through... The Unruh Act provides that: "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their... race... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of any kind whatsoever." When CRS officials subjected Plaintiff to a hostile work environment on the basis of race (Black), national origin (African-American) in violation the Unruh Act.. When CRS subjected Plaintiff and other African-American employees to disparate terms and conditions of employment on the basis of national origin they were in violation of the Unruh Act.

17 When CRS subjected Plaintiff and other African-American employees to disparate terms and conditions of employment on the basis of national origin, CRS was in violation of the Unruh Act. 1. When CRS paid Plaintiff and other African American drivers different than they paid White drivers, CRS was in violation of the Unruh Act. When CRS gave Plaintiff and other African American drivers the "catfish run" the average week wages on this run was $100 per week. CRS would give the white drivers the "crab run" the average week wages on this run was $,00 per week. Under these regulations, truck drivers such as Plaintiff had (1) a right to be paid equally as White drivers, this was a violation of the Unruh Act.. Liability for a violation of the Unruh Act attaches to "[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction." (Civ. Code,.) FEHA makes it unlawful to "deny, aid, incite, or conspire in the denial of rights" protected by the Unruh Act. The Unruh Act makes illegal an intentional failure to prevent discrimination. Thus, "an inadequate response to complaints of [discrimination]" can violate the Unruh Act.. The plaintiff declares that based on this matter and the facts, laws and evidence presented, and are true and accurate, Defendants and each of them have violated the Unruh Act and should face liability for violations of the Unruh Act. REQUEST FOR JURY TRIAL. Plaintiff requests a trial by jury of all issues which may be tried by a jury pursuant to Rule of the Federal Rules of Civil Procedure. RELIEF REQUESTED Plaintiff requests that the Court enter judgment against Defendants, as follows:

18 (a) For penalties and other relief allowable under Labor Code, et seq. for Plaintiff and all other employees similarly situated because of Defendants' violation of Title VII of the Civil Rights Act of, and Title 1 of the Civil Rights Act of 1, violation of Business and Professions Code 00 et seq. and violation of Unruh Act; (b) Violation of Title VII of the Civil Rights Act of, and Title 1 of the Civil Rights Act of 1, 1 1 (c) Violation of Business and Professions Code 00 et seq.; (d) Violation of Unruh Act; (e) An award of statutory, compensatory, special, general, and punitive damages according to proof against the Defendants; (f) An award of appropriate equitable relief, including but not limited to an injunction forbidding Defendants from engaging in further unlawful conduct in violation of Title VIII of the Civil Rights Act of, and Title 1 of the Civil Rights Act of 1, violation of Business and Professions Code 00 et seq. and violation of Unruh Act; (g) An award of pre-judgment and post-judgment interest, as provided by law; (h) Leave to amend the Complaint to conform to the evidence produced at 0 trial; (i) An award of attorneys' fees and costs, as allowed by law, G) Such other relief as may be appropriate under the circumstances. Dated: February f, 01 ubmitted, WALTER L. ELLIS Plaintiff IN PRO PER