18CV323651 Santa Clara – Civil A. Hwang 1 2 3 4 5 6 7 8 HOYER & HICKS Richard A. Hoyer (SBN 151931) rhoyer@hoyerlaw.com Sean D. McHenry (SBN 284175) smchenry@hoyerlaw.com Nicole B. Gage (318005) ngage@hoyerlaw.com 4 Embarcadero Center, Suite 1400 San Francisco, CA 94114 tel (415) 766-3539 fax (415) 276-1738 Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/23/2018 10:59 AM Reviewed By: A. Hwang Case #18CV323651 Envelope: 1343183 Attorneys for Plaintiff LORETTA LEE, on behalf of herself and all others similarly situated 9 SUPERIOR COURT OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SANTA CLARA 11 12 LORETTA LEE, on behalf of herself and all others similarly situated, 13 Plaintiff, 14 vs. 15 GOOGLE, INC. and DOES 1-25, Case No. 18CV323651 FIRST AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF AND DAMAGES FOR VIOLATIONS OF THE FAIR EMPLOYMENT AND HOUSING ACT 16 Defendants. 17 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT (1) Disparate Impact Discrimination in Violation of FEHA (2) Hostile Work Environment Harassment in Violation of FEHA (3) Gender Discrimination in Violation of FEHA (4) Failure to Prevent Sexual Harassment in Violation of FEHA (5) Retaliation in Violation of FEHA (6) Disability Discrimination in Violation of FEHA (7) Failure to Accommodate in Violation of FEHA (8) Failure to Engage in the Interactive Process in Violation of FEHA (9) Wrongful Termination in Violation of 1 1 3 FEHA (10) Interference in Violation of FMLA (11) Retaliation in Violation of FMLA (12) Interference in Violation of CFRA (13) Retaliation in Violation of CFRA 4 DEMAND FOR JURY TRIAL 2 5 Plaintiff Loretta Lee, (hereinafter “Lee” or “Plaintiff”) brings this action against 6 Defendant Google, Inc. (“Google” and/or “Defendant”) and DOES 1-25 (collectively 7 “Defendants”) alleging individual causes of action for hostile work environment harassment, 8 gender discrimination, failure to prevent sexual harassment, retaliation, disability 9 discrimination, failure to accommodate, failure to engage in the interactive process, and 10 wrongful termination in violation of the Fair Employment and Housing Act (“FEHA”), 11 interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”), and 12 interference and retaliation in violation of the California Family Rights Act (“CFRA”). Plaintiff 13 also alleges disparate impact discrimination on behalf of herself and a Class of similarly 14 situated current and former female Googlers subject to unlawful sexual harassment by 15 Google and subject to forced secret arbitration of those claims (“the Class”), in order to end 16 Google’s discriminatory policies and practices and to make the Class whole. Plaintiff alleges 17 as follows: 18 NATURE OF THE ACTION 19 1. 20 She performed well in her position and was regarded as an excellent engineer, receiving 21 many commendations over the years. 22 2. 23 harassment as her male co-workers engaged in inappropriate behavior and made lewd 24 remarks to her. Defendant failed to prevent this severe and pervasive sexual harassment. Plaintiff worked as a Software Engineer for Defendant Google for over seven years. In a male-dominated workplace, Plaintiff was frequently subjected to sexual FIRST AMENDED COMPLAINT 2 1 3. After one particularly troubling incident when Plaintiff found a male co-worker hiding 2 under her desk, refusing to explain himself, Human Resources pressured Plaintiff to file a 3 report against him. When Plaintiff refused to file the report for fear of being labeled an 4 informer, Human Resources wrote her up and failed to take any remedial action regarding 5 the incident. 6 4. 7 the harasser nor anyone else in her group would approve her code and she did not receive 8 appropriate feedback on her work. 9 5. Over the next few weeks, Plaintiff was, as she feared, labeled an informer. Neither Also around this time, Plaintiff took a medical leave to treat for her mental health 10 after working extreme hours for many years. Shortly after she returned, Plaintiff also 11 requested time to attend physical therapy appointments for a car accident injury. Defendant 12 failed to grant her requests for accommodation or engage in an interactive process to 13 accommodate her disability. 14 6. 15 termination came shortly after she asked for disability accommodations and once again fell 16 victim to sexual harassment. 17 7. 18 and gender discrimination, for which Google failed to take corrective action. Additionally, 19 Google discriminated against Plaintiff on the basis of her disability, failed to accommodate 20 her, retaliated against her, and terminated her. 21 8. 22 mandating secret arbitration of all sexual harassment claims. Defendant claims Plaintiff 23 signed this agreement as a condition of her employment when she began working for 24 Google in 2008. In February 2016, Google terminated Plaintiff for “performance issues.” The Google’s bro culture contributed to Plaintiff’s suffering frequent sexual harassment Google has a policy of forcing employees to sign an arbitration agreement FIRST AMENDED COMPLAINT 3 1 9. As a result of Google’s forced secret arbitration of sexual harassment claims, female 2 Googlers subject to sexual harassment are disparately impacted. Women bring the vast 3 majority of sexual harassment claims. Furthermore, women fare worse in arbitration than 4 men, though both fare about the same in litigation. Harassment victims in particular face 5 recover two-thirds less in arbitration than in litigation, which is substantially less than the 6 reduction in recovery for other employment claims. 7 10. 8 to silence victims of harassment and goes against the company motto of “Don’t be Evil.” 9 Even Google’s so-called “evil” competitor, Microsoft, has banned such policies, recognizing Google’s unlawful forced secret arbitration of sexual harassment claims also serves 10 the serious underlying public policy concerns. 11 11. 12 in 2009, it would have been prohibited by the Franken Amendment, which limits 13 government contractors like Google from entering into or enforcing any new employment 14 agreement with an employee that would require the arbitration of a sexual harassment 15 claim. In fact, had Plaintiff signed a forced secret arbitration agreement just one year later, 16 PARTIES 17 12. 18 employed by Defendant Google to work as a Software Engineer at its Los Angeles campus, 19 and later at its Mountain View campus. 20 13. 21 California. At all relevant times, Defendant was Plaintiff’s employer. Plaintiff was, at all relevant times herein, a resident of the State of California and Defendant Google is a technology company headquartered in Mountain View, 22 JURISDICTION AND VENUE 23 14. 24 the unlimited jurisdiction of this Court. The amount of damages herein is greater than $25,000. This case is therefore within FIRST AMENDED COMPLAINT 4 1 15. This Court has jurisdiction over the parties and claims involved in this action because 2 Plaintiff is a resident of California and Defendant is headquartered in Mountain View, 3 California. 4 16. 5 §395.5 because the unlawful acts alleged herein occurred in Santa Clara County. Venue is proper in Santa Clara County pursuant to California Code of Civil Procedure 6 EXHAUSTION OF ADMINISTRATIVE REMEDIES 7 17. Plaintiff filed a timely charge of discrimination against Defendant with the California 8 Department of Fair Employment and Housing (“DFEH”). Plaintiff received a right-to-sue 9 notice from DFEH dated February 18, 2017, and has commenced this action in a timely 10 manner. On March 23, 2018, Plaintiff amended the DFEH charge to include a disparate 11 impact theory as alleged below. FACTUAL ALLEGATIONS 12 13 18. Plaintiff began working at Google’s Los Angeles campus as a Software Engineer in 14 2008, and later moved to its Mountain View campus. 15 19. 16 In less than four weeks in 2015, she singlehandedly wrote the code for Google’s first ever 17 company-wide internal contest, Product Excellent Fit. Thousands of Googlers participated. 18 The contest is now a biannual event, run by a 10-person team. Plaintiff also placed first and 19 third place in 2011 and 2013 hackathons at Google. She consistently received excellent 20 performance reviews and feedback until shortly before her termination. Plaintiff excelled at her job and was considered a talented and rising star at Google. 21 Gender Discrimination, Sexual Harassment, and Retaliation 22 20. Plaintiff was one of very few female Software Engineers working for Google. For 23 many years, she endured a male-dominated work environment permeated by sexual 24 harassment. FIRST AMENDED COMPLAINT 5 1 21. At Google, Plaintiff was harassed on a daily basis. She was the subject of lewd 2 comments, pranks, and even physical violence. Some examples are as follows: Male 3 colleagues spiked her drinks with whiskey and laughed about it. Male engineers shot nerf 4 balls and darts at her almost every day. On occasion, male colleagues sent Plaintiff 5 disturbing and bizarre messages. One colleague sent her a text message asking if she 6 would like a “horizontal hug.” Another showed up at her apartment with a bottle of liquor 7 and offered to work with her to fix a problem she was having with one of her devices. 8 Plaintiff asked him to leave but he refused. During a holiday party, Plaintiff was slapped in 9 the face by an intoxicated male co-worker for no apparent reason. Men in the workplace 10 ogled at her constantly. Plaintiff worked at Google beginning when she was 26 years old, 11 and this bro culture was the only professional environment she knew. 12 22. 13 desk after a short break, she found a male co-worker on all fours, underneath her desk. 14 When he noticed Plaintiff approaching, he jumped up and shouted “You’ll never know what 15 I was doing!” 16 23. 17 various forms of sexual harassment. However, the incident with the co-worker under her 18 desk unnerved her. Plaintiff had never spoken to that co-worker before. She was frightened 19 by his comment and believed he may have installed some type of camera or similar device 20 under her desk. 21 24. 22 hung on a lanyard around her neck, and asked “What’s your name?” As he grabbed the 23 lanyard, his hand grazed her breasts. 24 25. In January 2016, Plaintiff was working late one night and when she returned to her In large part, Plaintiff had grown accustomed to the inappropriate comments and The next day, the co-worker approached Plaintiff, grabbed the name badge that When Human Resources and the Senior Engineering Director learned of the FIRST AMENDED COMPLAINT 6 1 incident, they began scheduling weekly meetings with Plaintiff in an attempt to get her to file 2 a report against the co-worker. Human Resources explained that it would take action 3 against the co-worker. Specifically, they would notify his supervisor, talk to him, and he 4 might be required to watch additional sexual harassment video training. 5 26. 6 Many inappropriate workplace relationships at Google have been unearthed over the past 7 years, including one involving the co-creator of Android, Andy Rubin (“Rubin”). Plaintiff was 8 warned that Rubin has “a thing for Asian chicks” and Rubin would invite Plaintiff and other 9 employees to parties at his mansion, where Plaintiff was also subject to sexual harassment. Plaintiff reasonably feared complaining about the culture of objectification at Google. 10 27. On another occasion around June 2015, Plaintiff was invited to a dinner in Palo Alto 11 to celebrate the success of a project she had just written. She ended up driving one of the 12 director’s home to San Francisco that night, and he invited her into his place, claiming his 13 wife was out of town. Plaintiff politely declined and reported the incident to her manager the 14 next day. Her manager say “No he didn’t [do that]. He is a family man. You misinterpreted 15 the situation.” Plaintiff was offended by the situation, but not surprised, as such occurrences 16 were commonplace at Google. 17 28. 18 claimed they would take would change the sexually charged environment that she endured 19 for years. In fact, she believed filing a report would make her life worse as she would be 20 labeled an “informer.” As a team member, she knew her own performance relied upon the 21 cooperation of others, specifically their approval of the code she wrote. She also knew that 22 being ostracized could effectively end her career at Google. She expressed these views to 23 Human Resources, but they did not relent. They continued to schedule frequent meetings 24 during which they encouraged Plaintiff to file a report against the co-worker. Given Google’s bro culture, Plaintiff knew none of the actions Human Resources FIRST AMENDED COMPLAINT 7 1 29. At this time, video had apparently surfaced depicting the incident. Despite this, 2 Human Resources continued to pressure Plaintiff, the victim and one of only a few women 3 in a group of 100-200 Googlers, to make a sexual harassment complaint. Google was fully 4 aware of what was transpiring and had no real plan to combat it. More egregiously, Human 5 Resources wrote Plaintiff up again for “not cooperating” when she failed to report the sexual 6 harassment incident. 7 30. 8 not thoroughly investigate Plaintiff’s claims. Instead, they simply alleged that her claims 9 were unsubstantiated. Her colleagues’ inappropriate behavior continued unabated. Eventually, Human Resources convinced Plaintiff to file the report; however, they did 10 31. Over the next few weeks, Plaintiff’s fears were realized. Though she diligently wrote 11 code, no one in her group would approve it, which stalled the entire project. This also led to 12 Plaintiff being labeled a “poor performer,” despite her explaining that the team would not 13 approve her code. Plaintiff’s code reviewer also requested questionable changes to the 14 code she had written. The two debated it, and ultimately Plaintiff made the changes. 15 However, her code reviewer then came back and told Plaintiff to return the code to its 16 original version, causing an unnecessary delay of several weeks. 17 32. 18 only a couple of months after she fell victim, once again, to sexual harassment. Plaintiff’s 19 failure to report the sexual harassment did not prevent colleagues from retaliating against 20 her. Not only did Google fail to prevent severe and pervasive sexual harassment in 21 Plaintiff’s workplace, but the repeated and awkward meetings that Human Resources 22 forced Plaintiff to attend led her group to retaliate against her in the very way she feared. 23 33. 24 practice of ignoring sexual harassment in the workplace, making no significant efforts to On February 22, 2016, Plaintiff was terminated for “poor performance.” This came Google’s failure to take appropriate remedial action is consistent with its pattern and FIRST AMENDED COMPLAINT 8 1 take corrective action, and punishing the victim. 2 Disability Discrimination, Failure to Accommodate, Failure to Engage in the Interactive 3 Process, and Wrongful Termination 4 34. 5 engineer. She often worked long hours, up to 16 hours per day on occasion. 6 35. 7 Plaintiff take time off to assess her mental state. Coming shortly after a particularly 8 sleepless work marathon, she believed that the time off was a reward for all of her efforts 9 and an attempt to get her to de-stress. For the next several months, Plaintiff sought and During her employment with Google, Plaintiff was a productive an talented software After working extreme hours for many years, in July 2015, Google insisted that 10 obtained treatment for her mental health. Plaintiff returned to work on November 3, 2015. 11 36. 12 by a drunk driver and her car was totaled. She began experiencing severe back pain, which 13 required physical therapy. The pain made it painful to sit or stand in one place for several 14 hours. 15 37. 16 outpatient treatment and follow up therapy appointments as the appointments were only 17 available during work hours. At first, Google human resources said it would accommodate 18 Plaintiff. However, instead of doing so, the Senior Engineering Director told Plaintiff she 19 “better be doing that on [her] own time.” 20 38. 21 flexible start time to adjust to her medication. Google claimed it would honor this request, 22 however, her managers continued to reprimand her for arriving late. 23 39. 24 and erratic sleep schedule so that she could continue to deliver a high volume of quality On November 15, 2015, shortly after Plaintiff returned to work, she was rear ended To manage her pain and heal, Plaintiff requested time off during the day to attend Plaintiff also took medication that made her sleep schedule erratic. She asked for a Out of fear of losing her job, Plaintiff attempted to suffer through the physical pain FIRST AMENDED COMPLAINT 9 1 software code, in-line with her work prior to the onset of her disability. As a result, Plaintiff’s 2 back and mental conditions progressively worsened. 3 40. 4 began to receive negative feedback for the first time. Plaintiff received a negative two-word 5 performance review – Needs Improvement – which was the first negative review of her 6 career and in spite the fact that she was still producing the same caliber work. Plaintiff was 7 also written up for absences, which caused her to stop attending her therapy sessions. 8 41. 9 she was producing a high volume of work for the company, but it would not adjust her Shortly after Plaintiff notified her supervisors of her need for accommodations, she Google had previously allowed Plaintiff to work from home and late at night when 10 schedule when she required accommodations to care for herself. 11 42. 12 had “communication” issues, Human Resources gave Plaintiff three options: (1) exit Google 13 with a severance package; (2) agree to maintain regular attendance, meet performance 14 expectations, and exhibit professional behavior with others, all of which would be outlined in 15 a Final Written Warning; or (3) take a medical leave to address the mental health issues 16 she had been dealing with, such as adjusting to her medications, but that her return would 17 be conditioned upon her agreement with the expectations set forth in a Final Written 18 Warning. 19 43. 20 returned to work on February 22, 2016 and was given a Final Written Warning. The next 21 day, she was terminated. This termination came shortly after she requested reasonable 22 accommodations. 23 44. 24 and then using her absence against her. Upon her return, Google also retaliated against After some time, alleging they were “unsatisfied” with her performance and that she Plaintiff chose the third option and commenced a leave on February 4, 2016. She Google retaliated against Plaintiff by suggesting that she go out on medical leave FIRST AMENDED COMPLAINT 10 1 Plaintiff for requesting accommodations when it used them as a basis for write-ups and 2 poor performance reviews. Google’s retaliation eventually led to Google’s three-option 3 ultimatum and Plaintiff’s unlawful termination. 4 45. 5 were willful, oppressive and in conscious disregard of Plaintiff’s rights, and were designed 6 and intended to cause and did, in fact, cause and continue to cause Plaintiff to suffer 7 severe emotional distress, pain and suffering, and substantial economic damage and, 8 therefore, justify the awarding of exemplary and punitive damages. Defendant’s actions were undertaken for improper purposes as alleged above and 9 Disparate Impact Discrimination 10 46. Google has a policy and practice of forcing employees to secretly arbitrate sexual 11 harassment claims. 12 47. 13 condition of her employment when she began working for Google in 2008. 14 48. 15 harassment. 16 49. 17 16.5% of all sexual harassment charges in FY 2017. This means women filed 83.5% of all 18 charges. In 2016, the EEOC released a study of workplace harassment concluding that 19 “anywhere from 25% to 85% of women report having experienced sexual harassment in the 20 workplace.” While this is a large gap, even the lower end means that 1 in 4 women 21 experiences sexual harassment in the workplace. Furthermore, when asked about specific 22 instances of sexual harassment as opposed to “sexual harassment” generally, the reports 23 of harassment rose to 40% among women. When respondents were asked in surveys 24 using convenience samples (samples of people who are easy to reach, such as shoppers Defendant purports that Plaintiff signed a forced secret arbitration agreement as a This policy has a disparate impact on female Googlers subject to unlawful sexual According to the Equal Employment Opportunity Commission (“EEOC”), men filed FIRST AMENDED COMPLAINT 11 1 at a grocery store) about such behaviors, the incidence rate rose to 75%, or in the case of 2 one convenience sample, 90%. On the other hand, only about 10% of men have 3 experienced workplace sexual harassment. Given these statistics, it is indisputable that 4 women bring the majority of all sexual harassment claims. 5 50. 6 percentage of the time. In arbitration for the same types of disputes, women prevail 7 significantly less than men. In addition, harassment victims in particular recover only one- 8 third as much in arbitration on average as compared to litigation. 9 51. In California courts, men and women bringing employment claims prevail the same Furthermore, a jury pool is likely to be equally divided by gender as it is chosen from 10 a random subset of the population. Arbitrators for the Google arbitration provider are 11 disproportionately white men. This not only contributes to a bias against women in 12 arbitration proceedings, but for sexual harassment claims in particular, since the use of a 13 male arbitrator further isolates women who most often bring claims of sexual harassment 14 perpetrated by men. This secretive proceeding in large part run by men and protecting male 15 harassers is inconsistent with public policy. 16 52. 17 be Evil” policy. Even its proclaimed “evil” competitor, Microsoft, has banned such 18 agreements throughout the company, recognizing the unfairness of the tactics to its 19 employees. 20 53. 21 objectification of women. Various stories have come to light that demonstrate how female 22 employees at Google are subject to a hostile environment. According to one source, there 23 is an internal culture at Google that has “virtually normalized inappropriate relationships.” 24 The press has recently given attention to inappropriate relationships between high-level Forced secret arbitration of sexual harassment claims violates Google’s own “Don’t It is commonly understood throughout Google that there is a culture sexual FIRST AMENDED COMPLAINT 12 1 male employees and lower-level female employees. It is no secret that there are 2 widespread complaints about harassment, verbal, and even physical assault on women 3 throughout the company. Still, knowing that this bro culture permeates the company, 4 Google makes its employees sign agreements that force females subject to unlawful sexual 5 harassment to secretly arbitrate their claims. 6 54. 7 that has had a disparate impact on herself and all female Googlers who have been subject 8 to unlawful sexual harassment. This includes all current and former employees who have 9 signed Google’s forced secret arbitration agreement. Plaintiff now seeks to end Google’s discriminatory policy of forced secret arbitration 10 55. The above allegations are incorporated by reference in each and every cause of action 11 stated below. 12 CLASS ACTION ALLEGATIONS 13 56. 14 behalf of a Class of all current and former female Googlers subject to unlawful sex 15 harassment and subject to Google’s forced secret arbitration agreement. Plaintiff and 16 members of the Class she seeks to represent were, on the basis of their sex, disparately 17 impacted by Google’s policy to force secret arbitration of sexual harassment claims. 18 Women bring the vast majority of sexual harassment claims and women fare worse than 19 men in arbitration, particularly in harassment claims, though both fare the same in litigation. 20 57. 21 members is impracticable. Although the precise number of female Googlers subject to 22 unlawful sex harassment and subject to Google’s forced secret arbitration agreement is 23 currently unknown, it is far greater than can be feasibly addressed through joinder. 24 58. Plaintiff brings the First Cause of Action pursuant to Cal. Code Civ. Pro. §382 on The members of the Class identified herein are so numerous that joinder of all Common questions of law and fact exist with regard to Class Members, including, FIRST AMENDED COMPLAINT 13 1 without limitation, the following: 2 3 a. employees subject to sex harassment and a forced secret arbitration agreement; 4 5 Whether Google’s policies or practices discriminate against female b. Whether Google has failed to implement policies and practices to prevent discrimination against women employees; 6 c. Whether Google’s policies and practices violate FEHA; and 7 d. Whether equitable remedies, injunctive relief, and damages for the Class 8 members are warranted. 9 59. Common methods of proof exist, including, without limitation, the following: 10 a. Employee personnel data; 11 b. Company policies and/or handbooks; and 12 c. Statistical evidence; 13 60. Plaintiff’s claims are typical of Class Members’ claims. Plaintiff, like other Class 14 Members, was subjected to Defendant’s common policy, plan, or practice requiring forced 15 secret arbitration of sexual harassment claims. 16 61. 17 members. 18 62. 19 and in employment discrimination litigation. Plaintiff’s counsel intends to commit the 20 necessary resources to prosecute this action vigorously for the benefit of all Class 21 Members. 22 63. 23 Google has acted and/or refused to act on grounds generally applicable to the class, 24 making appropriate declaratory judgment and injunctive relief with respect to Plaintiff and Plaintiff will fairly and adequately represent and protect the interests of the class Plaintiff has retained counsel competent and experienced in complex class actions Class certification is appropriate pursuant to Cal. Code Civ. Pro. §382 because FIRST AMENDED COMPLAINT 14 1 the Class as a whole. The Class members are entitled to injunctive relief to end Google’s 2 unfair and discriminatory policies and practices. Furthermore, common questions of law 3 and fact predominate over questions relating only to individual Class Members and class 4 certification will obviate the need for unduly duplicative litigation. 5 FIRST CAUSE OF ACTION 6 Disparate Impact Discrimination in Violation of FEHA 7 (On Behalf of Plaintiff and the Class) 8 64. California’s Fair Employment and Housing Act (“FEHA”) provides in pertinent part 9 that it is an unlawful practice for an employer to maintain an employment practice that 10 appears neutral but has an adverse impact on members of a protected group and cannot 11 be justified by business necessity. 12 65. Defendant is an employer within the meaning of FEHA. 13 66. Plaintiff was an employee of Defendant. 14 67. Defendant had an employment practice of mandating secret arbitration of sexual 15 harassment claims that had a disproportionate adverse effect on women. 16 68. Plaintiff is a woman. 17 69. Plaintiff was harmed. 18 70. Defendant’s policy to mandate secret arbitration of sexual harassment claims was a 19 substantial factor in causing Plaintiff’s harm. 20 71. 21 be justified by business necessity. Even if it could be justified by business necessity, there 22 exist other, less discriminatory alternatives that could equally serve such alleged necessity. 23 /// 24 /// Defendant’s policy to mandate secret arbitration of sexual harassment claims cannot FIRST AMENDED COMPLAINT 15 1 SECOND CAUSE OF ACTION 2 Hostile Work Environment Harassment in Violation of FEHA 3 (On Behalf of Plaintiff Lee Individually) 4 72. 5 subject an employee to harassment based on his or her sex and/or gender, causing a 6 hostile work environment. 7 73. Defendant is an employer within the meaning of FEHA. 8 74. Plaintiff was an employee of Defendant. 9 75. Plaintiff has been subjected to unwanted harassing conduct and a hostile work FEHA provides in pertinent part that it is an unlawful practice for an employer to 10 environment because of her sex and/or gender. 11 76. The harassing conduct was severe or pervasive. 12 77. A reasonable woman in Plaintiff’s circumstances would consider the work 13 environment to be hostile or abusive. 14 78. Plaintiff considered the work environment to be hostile or abusive. 15 79. Plaintiff has been harmed. 16 80. The harassing conduct was a substantial factor in causing Plaintiff’s harm. 17 THIRD CAUSE OF ACTION 18 Gender Discrimination in Violation of FEHA 19 (On Behalf of Plaintiff Lee Individually) 20 81. 21 discriminate against any individual on the basis of the individual’s gender. 22 82. 23 discrimination on the basis of gender against Plaintiff, in violation of FEHA. 24 83. FEHA provides in pertinent part that it is an unlawful practice for an employer to The actions and conduct of Defendant, as alleged hereinabove, constitute As a direct result of the unlawful employment practices of Defendant as alleged FIRST AMENDED COMPLAINT 16 1 hereinabove, Plaintiff has been deprived of a discrimination-free work environment, lost 2 income and benefits, and suffered other damages to be determined at trial. 3 84. 4 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, 5 and injuries in an amount to be proven at trial. 6 85. 7 employ attorney’s fees and is entitled to attorney’s fees pursuant to Gov. Code §12965 and 8 CCP §1021.5. As a further and direct result of the unlawful employment practices of Defendant as As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to 9 FOURTH CAUSE OF ACTION 10 Failure to Prevent Sexual Harassment in Violation of FEHA 11 (On Behalf of Plaintiff Lee Individually) 12 86. FEHA provides in pertinent part that employers must take all reasonable steps to 13 prevent harassment. Cal. Gov. Code §12940(k). 14 87. 15 prevent sexual harassment, in violation of FEHA. 16 88. 17 hereinabove, Plaintiff has lost income and benefits, and suffered other damages to be 18 determined at trial. 19 89. 20 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, 21 and injuries in an amount to be proven at trial. 22 90. 23 employ attorney’s fees and is entitled to attorney’s fees pursuant to Cal. Gov. Code §12965 24 and CCP §1021.5. The actions and conduct of Defendant, as alleged hereinabove, constitute failure to As a direct result of the unlawful employment practices of Defendant as alleged As a further and direct result of the unlawful employment practices of Defendant as As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to FIRST AMENDED COMPLAINT 17 1 FIFTH CAUSE OF ACTION 2 Retaliation in Violation of FEHA 3 (On Behalf of Plaintiff Lee Individually) 4 91. 5 retaliate against an employee for opposing discriminatory activity that she reasonably 6 believes to be unlawful. 7 92. 8 against Plaintiff, in violation of FEHA. 9 93. FEHA provides in pertinent part that it is an unlawful practice for an employer to The actions and conduct of Defendant, as alleged hereinabove, constitute retaliation As a direct result of the unlawful employment practices of Defendant as alleged 10 hereinabove, Plaintiff has lost income and benefits, and suffered other damages to be 11 determined at trial. 12 94. 13 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, 14 and injuries in an amount to be proven at trial. 15 95. 16 employ attorney’s fees and is entitled to attorney’s fees pursuant to Gov. Code §12965 and 17 CCP §1021.5. As a further and direct result of the unlawful employment practices of Defendant as As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to 18 SIXTH CAUSE OF ACTION 19 Disability Discrimination in Violation of FEHA 20 (On Behalf of Plaintiff Lee Individually) 21 96. FEHA provides in pertinent part that it is an unlawful practice for an employer to 22 discriminate against any individual on the basis of the individual’s physical or mental 23 disability. 24 97. The actions and conduct of Defendant, as alleged hereinabove, constitute FIRST AMENDED COMPLAINT 18 1 discrimination on the basis of physical and/or mental disability against Plaintiff, in violation 2 of FEHA. 3 98. 4 hereinabove, Plaintiff has been deprived of a discrimination-free work environment, lost 5 income and benefits, and suffered other damages to be determined at trial. 6 99. 7 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, 8 and injuries in an amount to be proven at trial. 9 100. 10 As a direct result of the unlawful employment practices of Defendant as alleged As a further and direct result of the unlawful employment practices of Defendant as As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to employ attorney’s fees pursuant to Gov. Code §12965 and CCP §1021.5. 11 SEVENTH CAUSE OF ACTION 12 Failure to Accommodate in Violation of FEHA 13 (On Behalf of Plaintiff Lee Individually) 14 101. FEHA provides in pertinent part that employers must make reasonable 15 accommodations for employees’ known physical or mental disabilities. Employers must 16 engage in a timely, good faith, interactive process with the employee to determine effective 17 reasonable accommodations. Cal. Gov. Code §12940(n). 18 102. 19 accommodate Plaintiff, in violation of FEHA. 20 103. 21 hereinabove, Plaintiff has lost income and benefits, and suffered other damages to be 22 determined at trial. 23 104. 24 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, The actions and conduct of Defendant, as alleged hereinabove, constitute failure to As a direct result of the unlawful employment practices of Defendant as alleged As a further and direct result of the unlawful employment practices of Defendant as FIRST AMENDED COMPLAINT 19 1 and injuries in an amount to be proven at trial. 2 105. 3 employ attorney’s fees and is entitled to attorney’s fees pursuant to Cal. Gov. Code §12965 4 and CCP §1021.5. As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to 5 EIGHTH CAUSE OF ACTION 6 Failure to Engage in the Interactive Process in Violation of FEHA 7 (On Behalf of Plaintiff Lee Individually) 8 106. FEHA provides in pertinent part that it is an unlawful practice for an employer not to 9 engage in the interactive process with an employee. 10 107. Defendant’s conduct, as alleged herein, constitutes failure to engage in the 11 interactive process, in violation of FEHA. 12 108. 13 above, Plaintiff has been deprived of a discrimination-free work environment, lost income 14 and benefits, and suffered other damages to be determined at trial. 15 109. 16 alleged hereinabove, Plaintiff has suffered emotional distress, physical pain and suffering, 17 and injuries in an amount to be proven at trial. 18 110. 19 employ attorney’s fees and is entitled to attorney’s fees pursuant to Gov. Code §12965 and 20 CCP §1021.5. As a direct result of the unlawful employment practices of Defendant, as alleged As a further and direct result of the unlawful employment practices of Defendant as As a further result of Defendant’s violation of FEHA, Plaintiff has been compelled to 21 NINTH CAUSE OF ACTION 22 Wrongful Termination in Violation of Public Policy 23 (On Behalf of Plaintiff Lee Individually) 24 111. Defendant’s conduct, as alleged herein, constitutes wrongful termination in violation FIRST AMENDED COMPLAINT 20 1 of public policy against Plaintiff in violation of the common law principles explained in Tameny 2 v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 and its progeny. 3 112. 4 above, Plaintiff has suffered lost wages, lost benefits, and emotional distress in an amount 5 to be proven at trial. As a direct result of the unlawful employment practices of Defendant, as alleged 6 TENTH CAUSE OF ACTION 7 Interference in Violation of FMLA 8 (On Behalf of Plaintiff Lee Individually) 9 113. The Family and Medical Leave Act (“FMLA”) provides in pertinent part that it is an 10 unlawful practice for an employer to interfere with, restrain, or deny the exercise or the 11 attempt to exercise any right provided by the FMLA. 12 114. Defendant is an employer covered by the FMLA. 13 115. Plaintiff suffered from a serious health condition. 14 116. Plaintiff was eligible for medical leave under the FMLA. 15 117. Plaintiff notified Defendant of her serious health condition and her need for medical 16 leave. 17 118. Defendant interfered with Plaintiff’s FMLA rights. 18 119. Plaintiff was harmed. 19 120. Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. 20 ELEVENTH CAUSE OF ACTION 21 Retaliation in Violation of FMLA 22 (On Behalf of Plaintiff Lee Individually) 23 121. 24 terminate and/or discriminate against an employee for the exercise or attempt to exercise FMLA provides in pertinent part that it is an unlawful practice for an employer to FIRST AMENDED COMPLAINT 21 1 any right provided by the FMLA. 2 122. Plaintiff was eligible for medical leave under the FMLA. 3 123. Plaintiff requested and took medical leave. 4 124. Defendant discriminated against and terminated Plaintiff. 5 125. Plaintiff’s request to take medical leave and her taking of the medical leave was a 6 negative factor in Defendant’s decision to terminate and/or discriminate against Plaintiff. 7 126. Plaintiff was harmed. 8 127. Defendant’s retaliatory conduct was a substantial factor in causing Plaintiff’s harm. 9 TWELFTH CAUSE OF ACTION 10 Interference in Violation of CFRA 11 (On Behalf of Plaintiff Lee Individually) 12 128. The California Family Rights Act (“CFRA”) provides in pertinent part that it is an 13 unlawful practice for an employer to interfere with an employee’s exercise or attempt to 14 exercise any right provided by CFRA. 15 129. Defendant is an employer covered by CFRA. 16 130. Plaintiff suffers from a serious health condition. 17 131. Plaintiff was eligible for medical leave under CFRA. 18 132. Plaintiff notified Defendant of her serious health condition and her need for medical 19 leave. 20 133. Defendant interfered with Plaintiff’s CFRA rights. 21 134. Plaintiff was harmed. 22 135. Defendant’s conduct was a substantial factor in causing Plaintiff’s harm. 23 /// 24 /// FIRST AMENDED COMPLAINT 22 1 THIRTEENTH CAUSE OF ACTION 2 Retaliation in Violation of CFRA 3 (On Behalf of Plaintiff Lee Individually) 4 136. 5 terminate and/or discriminate against an employee for the exercise or attempt to exercise 6 any right provided by CFRA. 7 137. Defendant is an employer covered by CFRA. 8 138. Plaintiff was eligible for medical leave under CFRA. 9 139. Plaintiff requested and took medical leave. 10 140. Defendant discriminated against and terminated Plaintiff. 11 141. Plaintiff’s request to take medical leave and her taking of the medical leave 12 motivated Defendant’s decision to terminate and/or discriminate against Plaintiff. 13 142. Plaintiff was harmed. 14 143. Defendant’s retaliatory conduct was a substantial factor in causing Plaintiff’s harm. 15 CFRA provides in pertinent part that it is an unlawful practice for an employer to ALLEGATIONS REGARDING RELIEF 16 144. 17 secret arbitration of sex harassment claims have a disparate impact on female Googlers 18 subject to unlawful sex harassment and forced secret arbitration of their claims. Plaintiff 19 contends that Google has denied her the opportunity to be heard by a jury of her peers and 20 instead forced her to resolve her claims privately in a setting in which women statistically 21 fare worse. Plaintiff further contends that Google’s forced secret arbitration policy resulted 22 in her, as a victim, being silenced in violation of public policy. Plaintiff requests the Court 23 declare that Google’s forced secret arbitration of sex harassment claims is invalid and 24 unlawful and that it permanently enjoin the implementation of the policy. An actual and justiciable controversy exists regarding whether Google’s forced FIRST AMENDED COMPLAINT 23 1 145. Plaintiff and the Class she seeks to represent has no plain, adequate, or complete 2 remedy at law to address the wrongs alleged herein; so the injunctive relief sought in this 3 action is an appropriate means of securing complete and adequate relief. Plaintiff and the 4 Class she seeks to represent are now suffering, and will continue to suffer, irreparable 5 injury from Defendant’s discriminatory acts and omissions. 6 146. 7 and distress, all to their damage in an amount according to proof. Plaintiff and the Class have suffered and continue to suffer victim-silencing, anguish 8 9 PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment against Defendants as follows: 10 1. Certification of a class action on behalf of the proposed Class; 11 2. Designation of Plaintiff Loretta Lee as representative of the Class; 12 3. Designation of Plaintiff’s counsel as Class counsel; 13 4. A declaratory judgment that the practices complained of herein are unlawful 14 15 and violate FEHA, and Cal. Gov’t Code §12940, et seq.; 5. A preliminary and permanent injunction against Defendant and its officers, 16 agents, successors, employees, representatives, and any and all persons acting in concert 17 with them, from engaging in each of the unlawful policies, practices, customs, and usages 18 set forth herein; 19 6. An order that Defendant institute and carry out policies, practices, and 20 programs that provide equal claim resolution opportunities for all employees regardless of 21 sex, and that it eradicate the effects of its past and present unlawful employment practices; 22 7. An award of damages to Plaintiff against Defendant for its termination of 23 Plaintiff, including compensatory damages, economic damages, emotional and physical 24 distress, and for any punitive or penalty damages allowed under California law; FIRST AMENDED COMPLAINT 24 1 8. All applicable statutory penalties; 2 9. Costs and expenses of this action incurred herein, including reasonable 3 4 5 6 7 attorneys’ fees and expert fees; 10. A declaratory judgment that Defendant discriminated against and retaliated against Plaintiff in violation of FEHA; 11. For an order awarding Plaintiff liquidated damages pursuant to 29 U.S.C. §2617(a)(1)(A)(iii); 8 12. Pre- and post-judgment interest, as provided by law; 9 13. Exemplary damages; and 10 14. Any and all such other and further legal and equitable relief as this Court deems 11 necessary, just and proper. 12 13 DEMAND FOR JURY TRIAL Plaintiff and Class members hereby demand a jury trial on all causes of action and 14 claims to which they have a right to jury trial. 15 Date: March 23, 2018 HOYER & HICKS 16 17 Richard A. Hoyer Attorneys for Plaintiff LORETTA LEE, on behalf of herself and all others similarly situated. 18 19 20 21 22 23 24 FIRST AMENDED COMPLAINT 25