L05 Dallas SKIERMONT DERBY PAH. B. [)liRllY 211352] 130113111} (1 HAJIR ARDEBIIJ 23-1624] ltardcbili 't_t skiermontderby .com DREW E. ANDERSON 288065] SKIERMONT DERBY LLP 800 Wilshirc Boulevard. Suite 1450 Los Angcles. California 90017 '['elcphonc: {213) 7'88-4500 Facsimile: (213) 788-4545 Attomeys for Plaintiff DAVID KUCK SUPERIOR COURT OF THE STATIC OF CALIFORNIA FOR THE COUNTY OF LOS DAVID KUCK. an individual. Plaintiff. V. CANYONS AQUATIC CLUB. INC. 3 California corporation: and 1 through 20. inclusive. Defendant; 1151: N0. COMPLAINT FOR 1. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AGAINST WHISTLEBLOWER RETALIATION VIOLATION OF LABOR CODE SECTION 1102.5 BREACH OF CONTRACT BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING NONPAYMENT 0F WAGES (CAL. LAB. CODE 201, 2112, 21s) FAILURE TO PROVIDE ACCURATE ITEMIZED WAGE STATEMENTS (CAL. LAB. CODE 226) FAILURE TO PAY WAGES UPON DISCHARGE (CAL. LAB. CODE 201?203) WAITING-TIME PENALTIES (CAL. LAB. CODE 201?203) DEMAND FOR JURY TRIAL COMPLAINT SKIERMONT DERBY Los Angcles Dallas L.) l3 Plaintiff David Kuck ("Plaintiff?) hereby complains against Defendants Can} ons Aquatic Club. Inc. (the ?Club"} and Does 1 through 20. inclusive (collectively. as follows: INTRODUCTION AND SUMMARY OF CLAIMS 1. This lawsuit arises out Defendants? shameless campaign to silence Plaintiff?a swim coach and whistleblower who persistently tried to persuade the Club to (3) protect its members from a predatory fellow coach whose rampant verbal and sexual abuse of the lub's young athletes had been largely ignored by the Club and its governing bodies (including USA Swimming and Southern California Swimming): comply with California labor laws that the Club had been systematically violating for years: and investigate and address discrepancies between the Club's bank records and ?nancial reports presented to the Board of Directors (the ?Board?). of which Plaintiff was a member. As the lub?s Head Coach. Plaintiff personally obserx ed coach Jeremy Anderson's (?Anderson") abusive behavior toward certain members (including young swimmers and their families). and diligently investigated Anderson?s known history of inappropriate behavior towards. and molestation and sexual abuse of. athletes. Plaintiff reported his concerns, verbally and in writing. to the Club?s Board (of which he was a member) and the governing bodies charged with the oversight ofthe Club and protection of member athletes. in the hopes of garnering the Club's support for Anderson?s termination. The Club refused to terminate Anderson, however. instead maintaining that it would only take such action when directed to do so by USA Swimming. Only when the U.S. Center for SafeSport ("SafeSport") and the sheriffs department expressed grave concerns regarding Anderson to the Club did the Club ?nally begin to acknowledge the danger that Anderson posed to its young members and ultimately accede to Plaintiff's termination of Anderson. Still. the Board barred Plaintiff from discussing the reasons for Anderson's termination after the fact, which left much of the Club?s membership in the dark. and allowed those Board members who had long resisted Plaintiffs calls to oust Anderson to portray Plaintiffas having acted out of personal animosity toward Anderson. which undermined Plaintiff in his roles as Head Coach and Board member. Only a year and a half later?after Anderson had been investigated by the authorities and criminally charged. then fled the country. only to be apprehended in Costa Rica before dying while in custody ?-did the Club begin to grapple with questions about how the abuse could have gone on so long. When Plaintiff identified the Club's failures to monitor, report. and timely respond to misconduct as fostering an environment where abuses could continue. Plaintiff suffered an immediate backlash from staff, parents, and other Board members. 2. The Clubs adverse treatment of Plaintiff only became more pronounced over time. as the Board resisted Plaintiff's urging the Board to bring the Club's employment practices into 1 COMPLAINT SKIERMONT DERBY L05 Angelcs Dallas L.) Li.? compliance with California labor law (including the proper classi?cation of. record-keeping for. and compensation ofhourly employees). to observe corporate formalities (like preparing a budget and regular ?nancial statements. and ?ling required documents with the California Secretary of State). and to look into discrepancies between the lub's bank records and ?nancial reports presented to the Board. The Club denied Plaintiff the full bonus compensation and payment ofhealth insurance bene?ts to which he was entitled under his employment contract. excluded him from communication regarding the Club's operations. sought to remove him from the Board. and ultimately. in July 2019. terminated him without explanation. At the same time. the Club summarily terminated Plaintiff 5 wife. who was also employed by the Club. and the memberships of the couple's three children. Plaintiff and his wife suddenly found themselves out of work. their family expelled from the SWimming community that they had moved across the county to join and sen e, and facing difficult financial circumstances. By this action. Plaintiff seeks redress for the Club's wrongful termination of him, brazenly carried out in retaliation for his reporting of systematic unlawful conduct. and for the Club?s denial of the ?nancial bene?ts to which he was entitled under his employment agreement. JURISDICTION AND VENUE 3. This Court has subject matterjurisdiction over this dispute because Plaintiff brings claims under the statutory and common law of the State ofCalifomia for acts occurring in this jurisdiction. This Court has general personal jurisdiction over Defendants because each is a citizen and resident ofthe State of California. andlor regularly conducts business in the State of California. 4. Venue is proper in this Court pursuant to California Code of Civil Procedure section 395 et seq.. because the acts and omissions alleged in this Complaint took place, and Plaintiff suffered damages, in the State of California. County of Los Angeles. THE PARTIES 5. Plaintiff David Kuck (?Plaintiff") is. and at all relevant times was, an individual residing in the State of California. County of Los Angeles. 6. Plaintiff is informed and believes and based thereon alleges that Defendant Canyons Aquatic Club. Inc. [the "Club?) is. and at all relevant times was. a California corporation. with its principal place of business in the State of Califomia. County of Los Angeles. located at 26455 Rockwell Canyon Road. Santa Clarita. California 91355. 7. Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as Does 1 through 30, inclusive, and therefore sues those Defendants by such fictitious names. Plaintiff ill amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named Defendants is COMPLAINT SKIERMONT DERBY Los Angeles DUIIOS IJ Lu responsible in some tnanner for the occurrences lterein alleged. and that Plaintiffs damages as alleged herein were proximately caused by those Defendants. 8. Plaintiff is informed and believes and thereon alleges that at all times material to this Complaint. each Defendant. whether expressly or fictitiously named. in addition to acting for himself. herself. or itself and on his. her. or its own behalfindividually. is and was acting as the agent. servant. employee. partner. joint-venturer. or representatit of. and with the knowledge. consent. and permission of. and in conspiracy with. each and all ofthe Defendants and within the course. scope. and authority of that agency. service. employment. partnership. joint venture. and conspiracy. Plaintiff further alleges on information and beliefthat the acts ofeach ofthe Defendants were fully rati?ed by each and all ofthe Defendants. Speci?cally. and without limitation. Plaintiff alleges on information and beliefthat the actions. failures to act. breaches, and conspiracy alleged herein and attributed to one or more specific Defendants were approx ed. rati?ed, and done with the cooperation and knowledge of each and all of the Defendants. GENERAL ALLEGATIONS 9. Plaintiff has nearly three decades ofexperience as a swim instructor and coach. He fell in love with the sport as a cltild and swam competitively through his early youth. high school. and college. He began swim instruction and coaching at the age of 14 and has continued that work for the 28 years since then. He earned a college degree in Physical Education and Leisure Management from The Ohio State l'niversity. where he was a four-year Big Ten Championship ?nalist. He has coached 8 competitive teams and has run about as many swim instruction programs. He has taught swimmers at all levels. from introductory instruction through the training ofmultiple Olympic gold medalists. Plaintiffs prior experience includes working as the North Senior Lead Coach and Masters Coach at in Charlotte. North Carolina. 10. In 2017, Plaintiff learned that the Club had an opening for the position of Head Coach. lie applied for the position. and following two telephone interviews and an in-person interview in Santa Clarita. California. was offered?and accepted?the position. At that time. Plaintiff and his family were living in Charlotte. North Carolina. 1 1. On or about July 12. 2017. Plaintiff entered into a mitten employment agreement with the Club (the ?Employment Agreement"). The Employment Agreement provided that Plaintiff would occupy the position ofthe Club?s Head Coach. and that Plaintiff would also be a member of the Club's Board. COMPLAINT SKIERMONT DERBY 1 05 An 9 eles DOIICJS INJ wN?ocmuambwtuwocmqomhwtua 12. The Employment Agreement provided. among other things. as follou >1 a. That the Club would pay Plaintiffa base salary at a gross annual rate of $90.000.00. b. That the Club would pay Plaintiff an annual bonus equal to ten percent of Plaintiffs base salary $9000.00) no later than December of each year. c. That the Club would pay Plaintiffthirty percent ofthe Club swim school?s pro?ts calculated on an annual basis. subject only to Plaintiff?s continuous service through each ?scal year. to be paid no later than December of each year. d. That the Club would provide Plaintiff and his family paid medical bene?ts upon commencement of his employment. 13. On or about August 17. 2017. Plaintiff arrived in Santa Clarita. California. having moved his family from Charlotte. North Carolina so that Plaintiff could start work at the Club. In accordance with the terms of the Employment Agreement, Plaintiff commenced full-time employment on or about August 21, 3017. In his capacity as Head Coach. Plaintiff was ultimately responsible for the Club's instruction and coaching of .000 individuals per year. including without limitation children as young as 4 years old just learning to swim, as well as competitive swimmers primarily between the ages of 7 and 18. 14. After taking over as the Club's Head Coach, Plaintiff became aware ofcettain behavior on the part of Anderson. another coach. that deeply concerned him. Plaintiff observed Anderson's verbal abuse of swimmers and their families, and over time learned of Anderson's sexual abuse of, and other inappropriate behavior toward. younger male athletes. often when Anderson was alone with them in isolated areas of Club buildings. in his car. or on camping trips. Plaintiff reported Anderson?s behavior to the lub's Board on numerous occasions, in the hope that the Club would take action to protect its members by removing Anderson from his position. The Club, however, consistently resisted Plaintiffs efforts, and insisted that it would not act without direction or guidance from USA Swimming. the national goveming body for the sport of swimming in the United States. 15. In August 2017. very shortly after Plaintiff's employment began, Plaintiff observed Anderson verbally assaulting a family at the Club. Plaintiff later learned that the family had previously reported Anderson's behavior but was warned to back off or else the Club would strip them of their membership privileges. Plaintiff personally observed further instances of Anderson's abusive behavior toward other families in the weeks thereafter. 4 COMPLAINT SKIERMONT DERBY Los Angeles Dallas COMMONUILW 16. Anderson?s pattern ofabusc prompted Plaintiff to have a meeting ith Anderson. in early September 2017?. to express his concems and lay out a plan for the improvement of .\nderson's behavior. Plaintiff presented Anderson and the Board with a written mcmorialization of that meeting. 17. In October 2017. Plaintiff and the Board?s then-President. (tarry Helgeson ("Helgeson"). held a meeting regarding Anderson's misconduct. Notwithstanding Plaintiffs reporting (including in writing} of Anderson's inappropriate behavior. Helgeson refused to support Anderson?s removal. instead issuing him a wan-ting. 18. Throughout October and November of 20 7. a number of the swimmers? parents met directly with Plaintiffto discuss voicing their concerns about Anderson to governing bodies that oversee the Club. given the Club?s history of inaction in response to previous complaints. Up to that point. most of the member families had been afraid to go on record, for fear of retaliation by the Club and coaching staff. A small group of parents agreed to prepare written statements regarding their observed instances of Anderson's misconduct. Armed with those written statements. Plaintiff contacted Kim O'Shea the Executive Director of Southern California Swimming. a local swimming committee affiliated with USA Suimming. l9. On or about November 15, 2017. Plaintiff met with O'Shea to discuss the Board's unwillingness to terminate Anderson and to seek O'Shea?s advice about how to proceed in the absence of Board support. O?Shea suggested that Plaintiff contact Susan Woessner ("Woessner"). a senior director of SafeSport. an independent nonpro?t committed to ending abuse in sport. A troubling, anonymous report had been made that same day of Anderson helping a young boy put on his swimsuit. Through his contact ith Woessner. Plaintiff served as a conduit for families to share their past experiences with Anderson and present specific instances of misconduct. Plaintiff also contacted the Club?s former Head Coach. Coley Stickels ("Stickels"). to learn about complaints regarding Anderson that were made prior to and during Stickels' tenure, and then connected \k'oessner and Stickels so that SafeSport could record that additional information. 20. Plaintiff continued to communicate with the Club's former coaches to further investigate Anderson?s prior misconduct. Through those discussions. Plaintiff learned that Anderson. on multiple occasions. had been seen alone with young male swimmers in private areas of rental buildings and in Anderson?s car. Plaintiff also learned that Anderson had taken a group of boys on a camping trip. during which it is believed that he had inappropriate contact with one of the boys. although the former coach was unable to determine precisely what had happened because the boy and his mother declined to discuss the matter on the record. 5 COMPLAINT SKIERMONT DERBY Los A eles Dallas L) Lo) 21. or about December 5. 2017. Plaintiff sent the Board another email reiterating his discomfort with Anderson's presence around team members. 22. The lollowing day. December 6. 2017. a former Board member. Mark Osou ski ("Osowski"}. replied to Plaintiffs email (without copying other Board members) to share his knowledge of additional past incidents involving Anderson. Osowski indicated that USA Swimming was aware ofthose incidents. but had refused to act because the complainants were anonymous. On or about that same date. the Club announced the addition oftwo new Board members. Carole Horst ("Horst") and Jason Grant Grant. in particular. was closely aligned with Anderson. which signaled the Board?s further resistance to removing Anderson. While other Board members acknowledged that Plaintiffs concerns regarding Anderson (as reiterated in Plaintiff?s December 5. 2017 email) appeared to be legitimate. the Board again chose not to take immediate action. 23. Throughout December 2017. Plaintiff communicated ith ()?Shea and Woessner. seeking prompt action by Southern California Swimming or SafeSport that would. in turn. convince the Board to suspend or terminate Anderson. Yet neither Southem California Swimming nor SafeSport took any decisive action to prompt the Board?s suspension or termination ofAnderson. 24. In or around mid-December 2017. SafeSport received a fonnal complaint that led Woessner to contact the Santa Clarita Sheriff. Woessner advised Plaintiffthat imminent action was likely at College of the Canyons. where the Club was based. Plaintiffnoti?ed the Board that he would no longer delay acting to protect the Club's young swimmers. Although the Board members indicated that they would no longer stand in Plaintiffs way. they insisted that Plaintiff refrain from terminating Anderson before Christmas. so as not to appear heartless. The Board members steadfastly refused to join Plaintiff when it came time to notify Anderson of his termination. until on or about December 27. 2017. when another Board member. John Morici ("Morici"). agreed to accompany Plaintiff That afternoon. Plaintiff. accompanied by Morici. terminated Anderson. 25. Pursuant to the Employment Contract, Plaintiff was entitled to an annual incentive bonus. calculated as thirty percent of the swim school's pro?ts. as well as a separate annual bonus often percent of his base salary. both to be paid no later than December of each year. Despite the Club's con?rmation that Plaintiff was to receive those bonuses in December 2017. the Club failed to pay Plaintiffthose bonuses. with the exception of one annual bonus paid belatedly in or about June 20] 9. 26. On or about January 3. 2018. Woessner noti?ed Anderson and the Board that USA So imming had commenced an investigation of Anderson?s misconduct. Despite that notification. the Board mandated that Plaintiff remain silent as to the reasons for Anderson's termination for fear 6 COMPLAINT SKIERMONT DERBY LLP Los Angeles Dallas I.) of attracting Ian suits or prompting additional victims to come forward. l?laintiffliosted multiple staff meetings where he was precluded from revealing any information regarding Anderson's termination. which created the appearance that Anderson had been ?red either for no reason or because Plaintiff personally did not like him. That misimpression caused Plaintiff to lose staff support. and influential parent members and athletes began protesting Anderson?s ?ring. In the months that followed. Plaintiff and his family found themselves increasingly under fire from staff. parents. and youth?a result of being forbidden by the Board from explaining the circumstances surrounding Anderson's firing. 27. In addition to Plaintiffs reporting of Anderson?s rampant misconduct and abuse. he also observed and reported to the Board the Club's failure and refusal to comply with California law in several material respects. with the goal of having the Board take corrective action. In or about February 2018. Plaintiff raised with the Board that the Club's hourly employees had been working overtime (including weekends and 10-hour shifts). yet those same employees were not being paid overtime wages in compliance with California law. Plaintiff proposed that the Board seek further advice in order to appropriately address this issue. including the potential reclassi?cation of employees in accordance with the Labor Code. Plaintiffs concerns were largely disregarded. In Board meetings that followed. Plaintiff reiterated his concerns. and each time. his concerns were disregarded. In June 2018. Plaintiff suggested installing time clocks that would allow employees to record their hours worked. because Plaintiff had no ability to track or con?rm reported employee hours. Plaintiffs suggestion was not pursued. 28. Plaintiff also sought to have the Board direct the Club to observe corporate formalities. including those required under California law. but was likewise met with resistance on that front. and instead instructed to stick to "wet side responsibilities." Beginning in February 2018. and at each Board meeting that followed. he asked that the Board prepare a budget. as well as regular ?nancial statements. Plaintiffs requests were denied. 29. In April 2018, a number of inappropriate text messages from Anderson were discovered on a young athlete's telephone. The athlete?s mother took his phone to the police and contacted the Board. The chain of text messages between Anderson and the boy revealed the names of other athletes who had apparently been victimized by Anderson. That discovery in Spring 2013 revealed to membership that Anderson?s behavior was a widespread problem and not limited to isolated incidents. As a result. more and more young athletes and their families became willing to share their personal experiences with investigators. Plaintifflater learned. through the police 7 COMPLAINT SKIERMONT DERBY Los Angelo: Dallas L.) Lu investigation. that Anderson's abuse affected many young boys at the Club. some of hom were willing to testify. and others who were not willing amidst growing complaints from membership. the Club held two general meetings. In one meeting (for families with athletes aged 13 years or younger). Plaintiff answered a question regarding Anderson?s termination during which he stated that he had been investigating Anderson's misconduct since Fall 2017. that Anderson?s misconduct was the reason for his termination. and that a police investigation ofAnderson was underway. 31. In December 2018. as was the case in 2017. the Club again failed to pay Plaintiffthe l0% annual and 30% incentive bonuses to which he was entitled. then-President of the Board. and Grant. the Treasurer. advised Plaintiff that they intended to change the process of calculating bonuses. and that under the new method. Plaintiff would not be receiving any bonus. Notably. the Board continued to use its original methods of calculation of bonuses for other employees. In or around early January 2019. Plaintiff noti?ed the Board?s new President, Horst. in writing. of the material breaches of his Employment Contract. yet the Club failed to cure those breaches. with the exception of one annual bonus belatedly paid in June 2019. 32. In January 2019. the Club stopped paying for Plaintiff's health insurance, in violation of the Employment Agreement. 33. In late-January 2019. Plaintifflearncd that the Los Angeles County District Attomey's o?ice was criminally prosecuting Anderson. and that a warrant was issued for his arrest. 34. After several months ofthe Club?s insurance carrier having noti?ed the Club of its failure to pay employee health insurance costs, Plaintiff health insurance was cancelled. without noti?cation to Plaintiff. in March 2019. 35. In April 2019. Plaintiff Icamed that the lub's corporate status had been suspended by the California Secretary ofState. and that the Club had unpaid fees and bills. Plaintiff sought to have the Board address these issues. along with the labor practices that he had ?agged for correction on numerous prior occasions and demanded that the Board create a human resources body to actively address those and other concerns. Although the Board did temporarily create such a human resources body. which con?rmed Plaintiff's existing concerns and identi?ed additional ones, the Board failed to take corrective action prior to Plaintiffs termination. 36. In June 20] 9. Anderson. who had successfully evaded the authorities for six months. was apprehended in Costa Rica. Before he could be extradited to the United States, however, Anderson was hospitalized in Costa Rica. and died while in custody. Hi 8 COMPLAINT SKIERMONT DERBY L05 Angelo: Dallas 37. Shortly after Anderson?s capture and demise. the (?lub sent a bricl?cmail to its membership merely notifying them ol'Anderson's death. without providing any further information regarding the circumstances surrounding Anderson?s tennination from the Club or the criminal investigation ofAnderson. Given this lack ot?substantive information in the Club?s email. Plaintiff felt compelled to send a further email offering some additional context. The Clubs members ere shocked that Anderson?s behavior had gone on for years without the Club taking action to stop it. At least one staff member suggested that although he was aware of Anderson's generally abusive behavior and had not reported it. he was unaware of any sexual abuse. ()ther staff admitted to having refrained from reporting Anderson?s behavior (including suspected sexual misconduct). 38. On or about the same date as the announcement of Anderson's death. three ofthe Board members?Horst. Grant. and Scott Blietz surreptitiously. without notifying Plaintiff or the other remaining board member. Vance Brower (?Bro?er? to appoint a new Board member. Sachi Yokoyama (?Yokoyama?). Immediately thereafter. Plaintiff was effectively removed from Board. When he sought to confinn whether he had indeed been removed from the Board and stripped ofhis voting rights. he received no reply. From that point forward. Plaintiffwas removed from all staff emails. 39. In July 20] 9. in response to several instances of bullying and other athlete misconduct that were brought to Plaintiffs attention. Plaintiff reiterated his view that the previous failures to report. monitor. and address Anderson's abuse appeared to have created a culture of non-reporting of abuse and inaction. which was unacceptable. Plaintiff?s statement triggered angry responses from staff members who were responsible for supervising and responding to the misbehavior at issue. 40. Also in .luly 20l9. Plaintiffidenti?ed a number of ?nancial discrepancies in the Club?s bank records. Plaintiffs credit card for business expenses had been declined on several occasions. yet the funds in the account were simultaneously being depleted. Plaintiff also observed that the posted balance in that account as of the end of May 2019 was $55,000.00 less than what had been reported at the Board's June 2019 meeting. Plaintiff reported this discrepancy to Board members Horst and Brower. expressing concern about possible ?nancial malfeasance, to no avail. Funher. hen Plaintiffexpressed his concerns about ongoing abuse and the possibility of ?nancial malfeasance to George Ward USA Swimming's Director of Risk Management. Ward suggested to Plaintiff that he should leave and start his own swim club. 41. On July IS. 2019. Horst. Grant. Blietz. and Yokoyama noti?ed Plaintiffthat he was being terminated from his position as Head Coach and handed Plaintiffa letter confirming his lemtination. effective immediately. The Club did not offer Plaintiff any explanation for its 9 COMPLAINT SKIERMONT DERBY los Angeles Dallas 0 V0 00 *4 J2- UJ mqomeN?OOMQmm-pwm?- termination decision. at that time or any time thereafter. The Board sent an additional letter to Plaintiffdemanding that he stay away front the Club's practices and pool deck. and advising that Plaintiffs wife. Heather Kuck. who had also been employed as a swim coach at the Club for approximately one year. was also being relieved of her duties. The Club did not directly notify Ms. Kuck?at any time?that she was being terminated. The Club also terminated the memberships of Plaintiffs three children. without explanation. At the time ofhis termination. the Club did not present Plaintiff with his final paycheck. pay him the bonuses or the unused vacation time that he was owed. or issue a ?nal wage statement. In contrast to what the Club told Plaintiff privately. that he was being terminated. the Club publicly stated that it ?made the decision not to extend [Plaintiff's] contract." FIRST CAUSE OF ACTION Wrongful Termination In Violation Of Public Policy (California Labor Code 1102.5) (Against All Defendants) 42. Plaintiff re-alleges Paragraphs 1 through 4] as if set forth fully herein. 43. The public policy of the State of California. as provided by statute Califomia Labor Code section 1 102.5). prohibits retaliation on the basis of an employee's disclosing information of. or refusing to participate in. an unlawful act. 44. Defendants termination of Plaintiff is in violation ofthe policy of the State of California identi?ed abox e. hecattsc Plaintiffs disclosure of information regarding an unlawful act to a person with authority to investigate, discover. or correct the violation, and/or refusing to participate in the unlawful act. was a substantial motivating reason for Plaintiff?s termination. By way of example. Plaintiffs reporting of Anderson?s abuse and related misconduct (and the Club?s failure to address it). the Club's apparent failure to comply with the California Labor Code with respect to the classi?cation and compensation ofits employees, the discrepancies between the lub's bank records and ?nancial reports presented to the Board. and/or the Club?s failure to observe corporate formalities required under California law. was a substantial motivating reason for the Club's termination of Plaintiffs employment. 45. As a result of Defendants? wrongful termination of Plaintiff's employment. Plaintiff has suffered monetary damages in sums according to proof. 46. As a proximate result ofDefendants' termination of Plaintiffs employment in iolation ofthe fundamental public policy ofthe State of California. Plaintiff has suffered and IO COMPLAINT SKIERMONT DERBY Los Ang ole: Dallas DJ 0 00 U: continues to suffer humiliation. emotional distress. and mental and physical pain and anguish. all to his damage in a sum aCCording to proof. 47. Plaintiff has incurred and continues to incur legal expenses and attorneys? fees in connection with pursuing this claim for wrongful termination. and is entitled to recover reasonable attorneys' fees and costs in an amount according to proof. 48. Defendants' conduct was intended to harm Plaintiff and did harm him. Defendants? conduct was willful. wanton. and malicious. and Defendants are guilty of malice. oppression. and/or fraud. Defendants? conduct warrants an assessment of punitive and exemplary damages in an amount appropriate to punish Defendants. to deter Defendants from engaging in further acts ofthis nature. and to make an example of Defendants in the community such that others will not engage in similar misconduct in the future. SECOND CAUSE OF ACTION Violation Of California Labor Code 1102.5 (Against All Defendants) 49. Plaintiff re-alleges Paragraphs 1 through 4] as if set forth fully herein. 50. California Labor Code section I 102.5 prohibits an employer from retaliating against any employee for disclosing infomiation of. or refusing to participate in, an unlawful act. 51. Defendants believed that Plaintiff had disclosed to a person with authority to investigate. discover. or correct the iolation the Club. its Board. SafeSport. Southern California Swimming and/or USA Swimming). andfor might further disclose. Anderson's abuse and related misconduct (and the Club's failure to address it). the Club?s apparent failure to comply with the California Labor Code with respect to the classi?cation and compensation of its employees. the discrepancies between the Club's bank records and financial reports presented to the Board. and/or the Club's failure to observe corporate formalities required under California law. Defendants further understood that Plaintiff refused to participate in the foregoing unlawful conduct. 52. At the time that Plaintiff voiced his coneems to the Club, Board and others. he had reasonable cause to believe that Anderson and the Board's conduct constituted violation(s) oflaw. Plaintiff repeatedly expressed his concerns. verbally and in writing. that Anderson was engaged in unlawful abuse ofyoung athletes and that the Club had a duty to remove him. that the Club's employment practices failed to comply with California law. and that there were troubling discrepancies between the Club's bank records and ?nancial reports that could be a sign of ?nancial mal feasancc. Ni 11 COMPLAINT IJ bJ Los Ange It: 5 Dallas SKIERMONT DERBY 53. Defendants look adverse employment actions against Plaintiff. including failing to pay for his health insurance in violation ofhis Employment Agreement. stripping him of his Board seat and corresponding voting rights. and ultimately terminating his employment. 54. Plaintiffs disclosure ofAnderson's abuse (and the Board's failure to remove Anderson from his position with the Club on that basis). the Club?s failure to follow Califomia labor laws and investigate possible ?nancial malfeasance. and his refusal to participate in the unlaxx ful activity. were contributing factors in Defendants' decision to take adverse employment actions against Plaintiff. including but not limited to his termination. 55. As a result of Defendants' tcmiination of Plaintiffs employment. Plaintiff has suffered monetary damages in sums according to proof. 56. As a proximate result of Defendants' willful, knowing. and intentional violations of California Labor Code section 1 102.5. Plaintiff has suffered and continues to suffer humiliation. emotional distress, and mental and physical pain and anguish. all to his damage in a sum according to proof. Defendants conduct was intended to harm Plaintiffand did harm him. Defendants conduct was willful. wanton. and malicious. and Defendants are guilty of malice. oppression. and/or fraud. Defendants conduct warrants an assessment of punitive and exemplary damages in an amount appropriate to punish Defendants. to deter Defendants from engaging in further acts of this nature. and to make an example of Defendants in the community such that others will not engage in similar misconduct in the future. 58. Plaintiff has incurred and continues to incur legal expenses and attorneys? fees in connection with pursuing this claim for whistleblower retaliation. Pursuant to California Code of Civil Procedure sections 1021.5 and 11133 et seq., Plaintiff is entitled to recover reasonable attomeys' fees and costs in an amount according to proof. THIRD CAUSE OF ACTION Breach of Contract (Against All Defendants) 59. Plaintiff re?alleges Paragraphs 1 through 41 as if set forth fully herein. 60. Plaintiff and the Club entered into a written contract governing. among other things. Plaintiffs employment and compensation?Le. the Employment Agreement. The Employment Agreement provided. among other things. that Plaintiff would occupy the position ofthe Club?s Head Coach and be a member ofthe Board. It further provided that the Club would pay Plaintiffa base salary at a gross annual rate of$90.000.00. an annual bonus equal to ten percent of 12 COMPLAINT SKIERMONT DERBY LLP Los Angeles Dallas IJ Plaintiff?s base salary $9000.00] by December ofeach year. and an bonus equal to thirty percent ol?thc Club's swim school profits calculated on an annual basis. subject only to Plaintiffs continuous service through each ?scal year. also to be paid no later than December of each year. Under the Employment Agreement. the Club was also obligated to provide Plaintiff and his family paid tnedical benefits. 61. Plaintiff performed all. or substantially all. ol?his obligations under the Employment Agreement. except to the extent that his performance of any obligation was excusud. 62. Any and all conditions that were required for the Club's performance of its obligations under the contract were satis?ed. waived. or excused. 63. The Club breached the Employment Agreement by. among other things. failing to pay Plaintiffthe compensation to which he was entitled. including but not limited to his 10% annual bonus and 30% incentive bonus; and failing to provide Plaintiffand his family paid medical bene?ts. 64. As a proximate result of the Club's breaches ofthe Employment Agreement. Plaintiff has suffered damages in an amount to be proven at trial. FOURTH CAUSE OF ACTION Breach of the Implied Covenant of Good Faith and Fair Dealing (Against All Defendants) 65. Plaintiff re-alleges Paragraphs 1 through 41 as if set forth fully herein. 66. Plaintiff and the Club entered into a written contract governing. among other things. Plaintiff?s employment and compensation?Le, the Employment Agreement. 67. Implied into every agreement. including the Employment Agreement between Plaintiff and the Club. is a covenant of good faith and fair dealing that neither party to the agreement will do anything to injure the rights of the other to receive the benefits of the agreement. 68. Plaintiff performed all, or substantially all, of his obligations under the Employment Agreement, except to the extent that his performance of any obligation was excused. 69. Any and all conditions that were required for the Club's performance ofits obligations under the contract were satisfied. waived, or excused. 70. The Club unfairly interfered with Plaintiff's right to receive the benefits ofthe Employment Agreement. Among other things. the Club purported to unilaterally change the process of calculating incentive bonuses?in violation of the Employment Agreement?and claimed that under the new method. Plaintiff would not receive any bonus. COMPLAINT SKIERMONT DERBY L05 Angelcs Dallas Lu As a proximate result ofthc Club?s breaches of the implied covenant ol?good faith and fair dealing. Plaintiff has suffered damages in an amount to be proven at trial. FIFTH CAUSE OF ACTION Nonpayment of Wages (Cal. Lab. Code 201, 202. 218) (Against All Defendants) T2. Plaintiff re-alleges Paragraphs I through 4] as if set forth fully herein. 73. Plaintiifalleges that Defendants owe him unpaid wages?including but not limited to the bonuses to which Plaintiff was entitled. 74. Pursuant to the terms of his Employment Agreement. Plaintiff performed work for Defendants. 75. Under the terms of Plaintiffs Employment Agreement. Defendants owe Plaintiff wages for all of the work that he performed. including but not limited to the bonuses to which he was contractually entitled. 76. Defendants owe Plaintiff unpaid wages in an amount to be determined at trial. 77. As a result of Defendants? conduct. Plaintiff has been damaged in an amount according to proof. including without limitation lost compensation and penalties. SIXTH OF ACTION Failure to Provide Accurate Itemized Wage Statements (Cal. Lab. Code 226) (Against All Defendants) 18. Plaintiff re-alleges Paragraphs 1 through 41 as if set forth fully herein. 79. Labor Code section 226(a} requires an employer to provide accurate wage statements to an employee. Plaintiff was a non-exempt employee, entitled to protections under the Labor Code and applicable Industrial \K?age Orders. At all relevant times, Defendants failed to provide any. let alone accurate. properly itemized. wage statements to Plaintiff as required by Labor Code section 226. 80. Plaintiff suffered injury as a result of Defendants' knowing and intentional failure to provide him with properly itemized wage statements as required by law. 8 1. Labor Code section 226(c)(1) provides: ?An employee suffering injury as a result ofa knowing and intentional failure by an employer to comply with subdivision is entitled to recover the greater of all actual damages or ?fty dollars for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period. not to exceed an aggregate penalty of four thousand dollars and is entitled to an award of costs and reasonable attorney's fees.? 14 COMPLAINT 60 U) L.) Los Angeles Dallas SKIERMONT DERBY 82. As a proximate result of Defendants' conduct. Plaintiff has incurred and continues to incur and is therefore entitled to recover penalties pursuant to tlte Labor Code and reasonable attorneys fees in order to enforce his rights and to obtain bene?ts due to him. all to his further damage in an amount according to proof. SEVENTH CAUSE OF ACTION Failure to Pay Wages Upon Discharge (Cal. Lab. Code 201?203) (Against All Defendants) 83. Plaintiff re?alleges Paragraphs 1 through -ll as if set forth fully herein. 84. Labor Code section 201(a) provides: "It?an employer discharges an employee. the wages earned and unpaid at the time of discharge are due and payable immediately." 85. Defendants violated Labor Code section 20] when Defendants failed to pay all wages due to Plaintiff at the time of his termination. To date. Defendants lime not paid all wages due and owing to Plaintiff. 86. As a proximate result of Defendants? conduct. Plaintiff has incurred and continues to incur and is therefore entitled to recover unpaid wages. waiting penalties pursuant to Labor Code section 203. penalties and damages permitted by the Labor Code. interest under the Labor Code. necessary and reasonable attorneys' fees in order to enforce his rights and to obtain bene?ts due to him. all to his further damage in an amount according to proof. Defendants" failure to pay Plaintiff?s wages due and owing was willful because Defendants have failed to pay portions ofthe amounts due and owing to Plaintiff, despite Defendants' kno? ledge ofthe illegality of failing to pay Plaintiffs wages and promises to pay. 88. Pursuant to Labor Code section 203. Plaintiff is entitled to wages at his same rate of pay until paid or until suit is filed. for a period of up to thirty (30) days. EIGHTH CAUSE OF ACTION Waiting-Time Penalties (Cal. Lab. Code 201?203) (Against All Defendants) 89. Plaintiff re-alleges Paragraphs 1 through 41 as if set forth fully herein. Labor Code sections 201 and 202 require that Defendants pay employees all wages due immediately if Defendants discharge an employee. and within 72 hours if an employee quits his or her employment. Labor Code section 203 provides that if an employer willfully fails to timely pay such wages. then the employer must, as a sanction and amount owed. continue to pay that employee's ages until the back wages are paid in full or an action is commenced. not exceeding thirty (30) days. 1 5 COMPLAINT SKIERMONT DERBY LLP Los Angeles Dallas Defendants violated Labor Code section 20] when Defendants failed to pay all wages due to Plaintiff at the titne of his termination on or about July 15. 2019. To date. Defendants have not paid all wages due and owing to Plaintiff. 92. Defendants' failure to pay Plaintiffs wages due and on ing was willful because Defendants have failed to pay any portion of the amounts due and owing to Plaintiff. despite Defendants' knowledge ofthe illegality of failing to pay Plaintiffs wages and promises to pay. 93. Pursuant to Labor Code section 203. Plaintiff is entitled to wages at his same rate of pay until paid or until suit is ?led. for a period of up to thirty (30) days. PRAYER FOR RELIEF WHEREFORE. Plaintiff prays forjudgment against Defendants as follows: 1. Forjudgment in favor of Plaintiff and against Defendants; 2. For an award of compensatory damages in an amount to be proven at trial; 3. For penalties and wages under the California Labor Code; 4. For an award of punitive damages: 5. For pre-judgment and post-judgment interest on all damages awarded: 6. For reasonable attorneys fees; 7. For costs of suit incurred; and 8. For such other and further relief as the Court may deem just and proper. andfor any other recovery or matter allowed under law. DATED: October 16. 2019 SKIERMONT DERBY LLP aft) PAUL B. DERBY HAJIR ARDEBILI DREW E. ANDERSON Attorneys for Plaintiff DAVID KUCK 16 COMPLAINT SKIERMONT DERBY Los Dallas DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury in this action. DATED: October 16. 2019 SKIERMONT DERBY L1.P \u?g By PAUL B. DERBY HAJIR ARDEBILI DREW E. ANDERSON Attorneys for Plaintiff DAVID KUCK 17 COMPLAINT