2115654 Mark C. Le Clerc (SBN 184531) \0 00?4 LII DJ Christogher R. Le Clerc (SBN 233479) LE CL RC LE CLERC LLP 155 MONTGOMERY ST., STE. 1004 SAN FRANCISCO, CA 94104 PHONE: 415; 445-0900 FAX: 415 445-9977 Attorne for PLAINTIFF CARL RAMIREZ 53 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA UNLIMITED JURISDICTION CASE NO. . CARLOS RAMIREZ, 965;;8908005 Plaintiff, COMPLAINT FOR DAMAGES, DECLARATORY RELIEF AND vs. INJUNCTIVE RELIEF FOR: 1. Discrimination and Retaliation in TESLA: I Violation of Labor Code 6310 and DOES incluswe, 6311; Retaliation in Violation of Labor Code Defendants. g? 98.6 and and etaliation in Violation of the Discrimination in Violation of the Harassment in Violation of the Failure to Prevent Harassment, Discrimination, and Retaliation in the Workplace in Violation of 7. Wrongful Termination in Violation of Public Policy 3 95" JURY TRIAL DEMANDEQ COMPLAINT Plaintiff CARLOS RAMIREZ alleges: PARTIES 1. Plaintiff CARLOS RAMIREZ (?Plaintiff?) is a Mexican-American, Hispanic individual at all relevant times residing in the State of California. Plaintiff worked for defendant TESLA, INC. in Alameda County, California. 2. Defendant TESLA, INC. (?Tesla?) is, on information and belief, a corporation doing business and headquartered in the State of California. Tesla is an employer as that term is de?ned by the California Labor Code (?Labor Code?) and the California Fair Employment Housing Act Tesla employed Plaintiff from in or about February 2017 until it wrongfully terminated him on June 8, 2017. 3. The true names and capacities of defendants sued herein under the ?ctitious name of DOES 1 through 50, inclusive, are unknown to Plaintiff who therefore sues those defendants by such ?ctitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, and thereon alleges, that each of said ?ctitiously named defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff?s injuries as herein alleged were proximately caused by such unlawful conduct. 4. Tesla and Does 1 through 50 are hereafter collectively referred to as ?Defendants.? 5. Whenever reference is made in this complaint to any act of any corporate or other entity defendant, such allegations shall mean that such defendant did the acts alleged in the complaint through its of?cers, directors, employees, agents and/or representatives while they were acting within the actual or ostensible scope of their authority. Each employee of each defendant was acting within the course and scope of his or her agency. 6. Plaintiff is informed and believes and thereon alleges that at all relevant times, each defendant acted as an agent, representative, employer and/0r employee of COMPLAINT - 2 each of the other defendants and acted within the course and scope of said agency or representation or employment with respect to the causes of action in this complaint. JURISDICTION AND VENUE 7. Plaintiff brings this action pursuant to and under the California Fair Employment and Housing Act the California Labor Code, and other common and statutory laws of the State of California. . 8. Venue is proper in this Court because Plaintiff was employed by, and worked for, Defendants in Alameda County and Defendants? alleged misconduct occurred in Alameda County. 9. The amount in controversy exceeds the minimum jurisdictional threshold of this Court. MIAUSTION OF ADMINISTRATIVE REMEDIES 10. Plaintiff has discharged all necessary administrative remedies and this matter is ripe for adjudication before this Court. Plaintiff has timely ?led his charge of discrimination with the California Department of Fair Employment and Housing and has received his Notice of Right to Sue from the DFEH. COMMON FACTUAL ALLEGATIONS 11. Plaintiff commenced employment with Tesla and Does 1-25 in approximately February 2017. Tesla wrongfully terminated Plaintiff on June 8, 2017. 12. Tesla employed Plaintiff as a Director of Environmental, Health, Safety, and Sustainability Plaintiff?s supervisor was Seth Woody, the Global Director of EHSS. Seth Woody was a supervisor as that term is de?ned by the FBI-IA. 13. During his employment, Plaintiff discovered and reported workplace safety issues and problems to Tesla. As Plaintiff and his team identi?ed safety issues, they brought them to the attention of Seth Woody. Seth Woody told Plaintiff multiple times to be cautious about communicating safety issues. - 3 14. Among other duties, Plaintiff was assigned the responsibility of helping to create a safety program at the Tesla Fremont manufacturing facility. Plaintiff was tasked with assisting the Tesla safety team with identifying and resolving safety issues at the Fremont factory. To accomplish this, Plaintiff became familiar with the Tesla Fremont manufacturing plant. In addition, Plaintiff and his team audited the Tesla Incident Reporting System, in which workplace accidents/injuries are recorded and managed. 15. Plaintiff had reasonable cause to believe, and on information and belief alleges, that the audit of the Tesla Incident Reporting System revealed numerous instances of lack of treatment of Tesla employees that suffered workplace injuries, recordkeeping violations, and improper classi?cation of workplace injuries to avoid treating and reporting workplace injuries. Plaintiff reported and complained about this to Tesla and Does 1-25. On information and belief, Tesla made allegedly untrue statements to the state and the public based on incorrect OSHA 300 records and incident rate numbers. 16. Plaintiff attended a meeting of Tesla employees on or about May 19, 2017, in which Plaintiff reported unsafe and unhealthy working conditions and practices, and disclosed information he had reasonable cause to believe disclosed a violation of a state or federal statute(s), or a violation of noncompliance with a local, state, or federal rule(s) or regulation(s), including but not limited to information regarding allegedly inaccurate Tesla OSHA 300 records, incident rate numbers, and imprOper classi?cation of workplace injuries. Seth Woody was in attendance. 17. After the meeting, Seth Woody told Plaintiff never to ambush him again and that Plaintiff?s presentation constituted a separation between the two. Seth Woody told Plaintiff that Plaintiff made him, and others, look like fools and that Plaintiff was not working well with the team. Seth Woody warned Plaintiff that he should watch his back. 18. Throughout Plaintiff?s employment with Tesla, Plaintiff made bona fide complaints to Tesla of unsafe and unhealthy working conditions and work practices. COMPLAINT - 4 p?l 000?deth l9. Throughout Plaintiff?s employment with Tesla, Plaintiff disclosed information to Tesla, to a person with authority over Plaintiff, and/or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, that Plaintiff had reasonable cause to believe disclosed a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. 20. During Plaintiff?s employment with Tesla, Plaintiff refused to participate in activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. 21. Plaintiff?s complaints, disclosures, and re?isals to participate concerned, without limitation: chemical exposures; chemical and oil spills; improper disposal of items and liquids; improper storage and placement of certain parts and equipment in the factory; oil and waste accumulation; chemical ?res; permit noncompliance; unavailability of permits and licenses for review; employee workplace injury rate discrepancies and inaccuracies; employee workplace injury reporting discrepancies and inaccuracies; employee workplace injury classi?cation discrepancies and inaccuracies; inaccurate OSHA 300 records and workplace injury incident rate numbers; employees not receiving treatment for workplace injuries; failures to report or document workplace injuries; failures to document treatment or observation notes of workplace injuries; failures to change work process and/or procedure regarding employees experiencing multiple workplace injuries. This list is not intended to be exhaustive. 22. In or about early to mid-May 2017, Plaintiff complained to Seth Woody about two Tesla employees being racially biased towards Plaintiff and harassing Plaintiff, including but not limited to making derogatory comments and unfounded complaints about Plaintiff because of his ancestry, race, and national origin. Seth Woody asked Plaintiff if Plaintiff really needed to send the e-mail that contained a complaint and report of such unlawful conduct. He told Plaintiff that his complaint would just create COMPLAINT - 5 problems. On information and belief, Tesla did not take any action in response to Plaintiffs complaint, except to retaliate against Plaintiff for making the complaint. 23. Before Plaintiff was employed by Tesla, he was employed by SolarCity Corporation (?SolarCity?). While Plaintiff was employed by SolarCity, Plaintiff disclosed information to SolarCity, to a person with authority over Plaintiff at SolarCity, and/or another employee of SolarCity who hasth??afuthority to investigate, discover, or correct the violation or noncompliance, that Plaintiff had reasonable cause to believe disclosed a violation of state or federal statute(s), or a violation of or noncompliance with a local, state, or federal rule(s) or regulation(s). After Plaintiff became employed by Tesla, he continued to make such disclosures regarding SolarCity to Tesla, a person with authority over Plaintiff at Tesla, and/or another employee of Tesla who has the authority to investigate, discovery, or correct the violation or noncompliance. 24. Among other adverse employment actions, Tesla wrongfully accused Plaintiff of bullying, brought unfounded complaints against him, and terminated Plaintiff?s employment on June 8, 2017. First Cause of Action Discrimination and Retaliation in Violation of Labor Code 6310, 6311 Against TESLA and DOES 1-25 25. Plaintiff re-alleges and incorporates herein by reference each paragraph contained in this complaint as though fully set forth herein. 26. Plaintiff was an employee of Tesla and Does 1-25. 27. Plaintiff exercised his rights to workplace health and safety and. complained to Tesla and Does 1-25, about unsafe and unhealthy working conditions. Plaintiff refused to perform work, the performance of which would violate an occupational, safety, or health standard set forth in Labor Code 6300 et seq. and 6400 et seq. 28. Tesla and Does 1-25 discharged Plaintiff, among the other adverse employment actions alleged above. COMPLAINT - 6 p?a 29. Plaintiff?s exercise of his rights to workplace health and safety, complaints about unsafe and unhealthy working conditions, and refusals to perform work that would violate an occupational, safety, or health standard, were substantial motivating reasons for Tesla?s and Does l-25?s decision to discharge Plaintiff. 30. Plaintiff was harmed and Tesla?s and Does l-25?s conduct was a substantial factor in causing Plaintiff harm. 31. Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and oppressively with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for his rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. Second Cause of Action Retaliation in Violation of Labor Code 98.6 and and Against TESLA and DOES 1-25 32. Plaintiff re-alleges and incorporates herein by reference each paragraph contained in this complaint as though frilly set forth herein. 33. Plaintiff was employed by Defendants Tesla and Does 1-25. 34. Plaintiff had reasonable cause to believe that Tesla and Does 1-25 were engaged in a pattern of violations of state and/or federal statute(s), and/or were in violation of or noncompliance with a local, state and/or federal rule(s) or regulation(s). Plaintiff also had reasonable cause to believe that he was being asked to produce and/or ratify inaccurate OSHA 300 record information and incident rate numbers that would result in violation(s) of a state and/or federal statute(s), and/or a violation of or noncompliance with a local, state and/or federal rule(s) or regulation(s). 35. On information and belief, Tesla and Does l?25 believed that Plaintiff disclosed or might disclose such information to a government or law enforcement COMPLAINT - 7 h-u-l agency, based upon his opposition to such conduct. Plaintiff also reported such violations to a person(s) with authority over him, and who had the authority to investigate, discover, and/or correct the legal violations and/or noncompliance. Further, Plaintiff refused to produce, ratify, or be otherwise associated with OSHA 300 record information and incident rate numbers alleged to be incorrect. 36. California Labor Code 1102.5(d) provides that an employer, or any person acting on behalf of the employer, shall not retaliate against an employee for having exercised his or her rights under Labor Code 1102.5 subdivision or in any former employment. On information and belief, Tesla and Does 1-25 retaliated against Plaintiff, including but not limited to terminating him, because of his engagement in protected activities as an employee of SolarCity and thereafter as an employee of Tesla. 37. Plaintiff is infomed and believes and thereon alleges that Tesla and Does 1?25 terminated his employment, among the other adverse employment actions taken against him as alleged herein, in retaliation for his disclosing the information, and re?ising to participate in the activities, as alleged above. 38. Tesla?s and Does 1-25?s adverse employment actions taken against Plaintiff, including but not limited to his termination, have caused him economic and noneconomic harm in an amount to be proven at trial. Plaintiff?s damages include, but are not limited to, loss of earnings and benefits, humiliation, embarrassment, mental and emotional distress and discomfort. 39. Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and Oppressively with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for his rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. COMPLAINT - 8 ALAN Third Cause of Action Retaliation in Violation of the FEHA Against TESLA and DOES 1-25 40. Plaintiff re-alleges and incorporates herein by reference each paragraph contained in this complaint as though fully set forth herein. 41. Among other protected activities, Plaintiff protested activity prohibited by the FEHA, including but not limited to complaining about his colleagues harassing him at work based on his ancestry, race, and national origin. 42. Defendants Tesla and Does 1-25 subjected Plaintiff to adverse employment actions, including but not limited to termination of employment. 43. Plaintiff engaging in protected activities, including but not limited to protesting activities prohibited by the FEHA (including but not limited to complaining about his colleagues harassing him at work based on his ancestry, race, and national origin), among other protected activities, were substantial motivating reasons for the adverse employment actions taken by Defendants against Plaintiff, including but not limited to terminating his employment. 44. Plaintiff was harmed and Defendants Tesla?s and Does 1-25?s conduct was a substantial factor in causing Plaintiff?s harm. 45. Defendants Tesla and Does 1-25 caused Plaintiff economic and non- economic harm in an amount to be proven at trial, but which is more than the minimum jurisdiction of this Court. Plaintiff?s damages include, but are not limited to, loss of earnings and bene?ts, humiliation, embarrassment, mental and emotional distress and discomfort. 46. Defendants Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and Oppressively with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for Plaintiff? 3 rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. COMPLAINT - 9 WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. Fourth Came of Action Discrimination in Violation of the EHA Against TESLA and DOES 1-25 47. Plaintiff re?alleges and incorporates herein by reference each paragraph contained in this complaint as though fully set forth herein. 48. Tesla and Does 1-25 undertook adverse employment actions against Plaintiff because of his ancestry, race, national origin, and engagement in protected activity, including but not limited to the following: harassing him based on these characteristics, wrongfully accusing him of bullying, making unfounded complaints against him, and terminating Plaintiff?s employment. 49. Tesla and Does 1?25 were aware of Plaintiff?s ancestry, race, and national origin, and that he had engaged in protected activity. 50. Plaintiff ancestry, race, national origin, and engagement in protected activity were substantial motivating reasons for Teslais and Does 1-25?s termination of Plaintiff?s employment as well as administration of the other adverse employment actions discussed herein. 51. Plaintiff was harmed and Tesla?s and Does l-25?s conduct was a substantial factor in causing Plaintiff?s harm. 52. Defendants Tesla and DOes 1-25 caused Plaintiff economic and non- economic harm in an amount to be proven at trial, but which is more than the minimum jurisdiction of this Court. Plaintiff?s damages include, but are not limited to, loss of A earnings and bene?ts, humiliation, embarrassment, mental and emotional distress and discomfort. 53. Defendants Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and oppressively with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious COMPLAINT - 10 p?n disregard for Plaintiff?s rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. WHEREFORE, Plaintiff prays forjudgment, including punitive damages, as set forth below. Fifth Cause of Action Harassment in Violation of the FEHA Against TESLA and DOES 1-25 54. Plaintiff re-alleges and incorporates herein by reference each paragraph contained in this complaint as though fully set forth herein. 55. Plaintiff was subjected to unwanted harassing conduct because of ancestry, national origin, race, and engaging in protected activity, about which Defendants Tesla and Does 1-25 were aware at all relevant times. 56. The harassing conduct was severe or pervasive. 57. A reasonable person of Plaintiff?s ancestry, national origin, and- race would have considered the work environment to be hostile or abusive. Plaintiff considered the work environment to be hostile or abusive. 58. A supervisor, including but not limited to Seth Woody, engaged in the misconduct. Defendants Tesla and Does l-25 were aware of the harassment because Plaintiff complained about it to his supervisor. 59. Plaintiff was harmed and Defendants Tesla?s and Does 1425?s misconduct was a substantial factor in causing Plaintiff?s harm. 60. Defendants Tesla and Does 1-25 caused Plaintiff economic and non? economic harm in an amount to be proven at trial, but which is more than the minimum jurisdiction of this Court. Plaintiff?s damages include, but are not limited to, loss of earnings and bene?ts, humiliation, embarrassment, mental and emotional distress and discomfort. 61. Defendants Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and oppressively with the wrongful intention of injuring COMPLAINT - ll t?e Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for Plaintiff?s rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. Sixth Cause of Action Failure to Prevent Retaliation, Discrimination, and Harassment in the Workplace Against TESLA and DOES 1-25 62. Plaintiff re-alleges and incorporates herein by reference each paragraph contained in this complaint as though fully set forth herein. 63. Plaintiff was subjected to harassing conduct, discrimination, and retaliation for the following reasons, including but not limited to: his ancestry, national origin, race, and he engaged in protected activities and protested activity prohibited by the FEHA. 64. Tesla and Does 1-25 failed to take reasonable steps to prevent the discrimination, retaliation and harassment. 65. Plaintiff was harmed and Tesla?s and Does 1-25?s failure to take reasonable steps to prevent discrimination, retaliation, and harassment was a substantial factor in causing Plaintiff?s harm. 66. Defendants Tesla and Does 1-25 caused Plaintiff economic and non- economic harm in an amount to be proven at trial, but which is more than the minimum jurisdiction of this Court. Plaintiff?s damages include, but are not limited to, loss of earnings and bene?ts, humiliation, embarrassment, mental and emotional distress and discomfort. 67. Defendants Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and oppressiver with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for Plaintiff?s rights and thus an award of exemplary and punitive damages is justi?ed. Plaintiff is therefore entitled to recover and herein prays for punitive damages. COMPLAINT - 12 p-n WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. Seventh Cause of Action Wrongful Termination in Violation of Public Policy Against TESLA and DOES 1-25 68. Plaintiff incorporates by reference all the allegations in the preceding paragraphs. 69. California has fundamental, substantial, and well?established public policies prohibiting an employer from taking adverse employment actions, including but not limited to termination of employment, against an employee for exercising his or her rights to workplace health and safety, complaining to his or her employer about unsafe and unhealthy working conditions, and refusing to perform work, the performance of which would violate an occupational, health or safety standard. Additionally, these fundamental, substantial, and well-established public policies require employers to accurately document and report workplace injuries. These policies were in effect at all relevant times hereto. 70. California has fundamental, substantial, and well-established policies against an employer discriminating against and/or retaliating against, including but not limited to terminating an employee, for that employee?s disclosing improper, illegal, unethical or unsafe practices which affect the public at large. These policies were in effect at all relevant times hereto. 71. California has fundamental, substantial, and well-established policies against an employer discriminating against and/or retaliating against, including but not limited to terminating an employee, for that employee?s disclosure of, and/or the employer?s belief that the employee might disclose, information that the employee had reasonable cause to believe disclosed a violation of a state and/or federal statute(s), and/or a violation of or noncompliance with a local, state and/or federal rule(s) or regulation(s). These policies were in effect at all relevant times hereto. COMPLAINT - 13 72. California has fundamental, substantial, and well-established public policies against harassing, discriminating and retaliating against an employee based on ancestry, race, national origin, or for engaging in protected activities or protesting activity made illegal by the EHA. These policies were in effect at all relevant times hereto. 73. Plaintiff was employed by Tesla and Does 1-25. 74. Plaintiff is informed and believes and thereon alleges that one or more of the substantial motivating reasons for Tesla?s and Does 1-25?s termination of Plaintiff?s employment was, without limitation: (1) Plaintiff?s exercising his rights to workplace health and safety, complaining to his employer about unsafe and unhealthy working conditions and recordkeeping and reporting violations, and refusing to perform work, the performance of which would violate an occupational, health or safety standard; (2) Plaintiff disclosing illegal, unethical or unsafe practices which affect the public at large; (3) Plaintiff?s disclosure of, and/or Tesla?s and Does 1-25?s belief that Plaintiff might disclose, information that Plaintiff had reasonable cause to believe disclosed a violation of a state and/or federal statute(s), and/or a violation of or noncompliance with a local, state and/or federal rule(s) or regulation(s); (4) Plaintiffs ancestry, race, national origin, and/or engaging in protected activities or protesting activity made illegal by the FEHA. 75. Plaintiffs termination has caused him economic and noneconomic harm in an amount to be proven at trial. Plaintiff damages include, but are not limited to, loss of earnings and bene?ts, humiliation, embarrassment, mental and emotional distress and discomfort. 76. Tesla and Does 1-25 committed the acts herein alleged maliciously, fraudulently, and oppressively with the wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, in conscious disregard for Plaintiff? 3 rights and this an award of exemplary and punitive damages is justified. Plaintiff is therefore entitled to recover and herein prays for punitive damages. WHEREFORE, Plaintiff prays for judgment, including punitive damages, as set forth below. COMPLAINT - l4 PRAYER FOR RELIEF WHEREFORE, Plaintiff makes the following demands: a) For general, special, actual, compensatory and/or nominal damages, as against Defendants, and each of them, in an amount to be determined at trial; I b) For front and back pay and other bene?ts Plaintiff would have been afforded but-for Defendants?, and each of their, unlawful conduct; c) For punitive damages against all Defendants in an amount to be determined at trial suf?cient to punish, penalize and/or deter Defendants, and each of them, from further engaging in the conduct described herein, and to deter others from engaging in the same or similar acts; d) For costs and eXpenses of this litigation; e) For Labor Code statutory penalties, fees, and damages; f) For reasonable attorneys? fees and costs, including expert witness fees, where appropriate, pursuant to, without limitation, Gov?t Code 12965(b); g) For pre- and post-judgment interest on all damages and other relief awarded herein from all entities against Whom such relief may be properly awarded; h) For a declaration that Defendants engaged in the improper conduct herein aHeged; i) For an order enjoining Defendants from engaging in the unlawful conduct alleged herein, and/or an order directing such other affirmative action as may be appropriate; and COMPLAINT - 15 hFor all such other relief as the Court deems just and appropriate. DATED: June 16 ,2018 LE CLERC LE CLERC LLP By: (.(Cocwc, MARK C. Le CLERC, Counsel for Plaintiff CARLOS RAMIREZ PLAINTIFF DEMANDS A TRIAL BY JURY. DATED: June 2 2018 LE CLERC LE CLERC LLP By: HAM. . L: Cum, MARK C. Le CLERC, Counsel for Plaintiff CARLOS RAMIREZ COMPLAINT l6