Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 1 of 27 1 2 3 4 5 6 Fulvio F. Cajina (SBN 289126) LAW OFFICE OF FULVIO F. CAJINA 311 Oak Street Suite 108 Oakland, CA 94607 Tel: (415) 601-0779 Fax: (510) 225-2636 Email: fulvio@cajinalaw.com Attorneys for Plaintiff HENRY MCKENZIE 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 -San Francisco- 10 11 12 HENRY G. MCKENZIE, Plaintiffs, 13 14 15 16 17 vs. CITY AND COUNTY OF SAN FRANCISCO; GEORGE GASCON; JERRY RODRIGUEZ; DAVID CREW; and DOES 1-10. 18 19 20 21 22 23 24 Defendants. Case No.: 4:18-cv-07141-DMR FIRST AMENDED COMPLAINT FOR DAMAGES 1. California Labor Code § 1102.5 and 6310 violations against all Defendants; 2. 42 U.S.C. § 1983 against all Defendants (First Amendment Violation); 3. FEHA Violations/Title VII Violations – Age discrimination against CCSF; 4. FEHA – Failure to Take Reasonable Steps against CCSF; 5. Intentional Infliction of Emotional Distress; and 6. 42 U.S.C. § 1983 (Fourteenth Amendment Violation). DEMAND FOR JURY TRIAL Amount in controversy exceed $75,000 25 26 27 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -1- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 2 of 27 1 2 3 COMES NOW, Plaintiff HENRY G. MCKENZIE and hereby alleges and avers the following based upon personal knowledge as to facts known to him and upon information and belief as to all other matters against Defendants CITY AND COUNTY of SAN FRANCISCO; GEORGE GASCON; JERRY RODRIGUEZ; DAVID CREW and DOES 1-10 as follows: 4 5 I. INTRODUCTION 1. This is a case of utmost public concern. On or about 2017, several executive 6 members of the San Francisco District Attorney’s Office Investigators Association (the 7 “Union”) discussed the need to blow the whistle on potential criminal violations by the Office 8 of the District Attorney. Specifically, the Union’s executive members, including Plaintiff 9 HENRY G. MCKENZIE, a Senior Investigator in the Office of the District Attorney and 10 11 12 13 14 member-at-large for the association, discussed allegations that Defendant GEORGE GASCON, the District Attorney, had traveled on many occasions by plane while carrying a firearm in violation of federal law. The executive members of the Union discussed the need to raise their concerns regarding Defendant GASCON with the Transportation Security Administration (the “TSA”) and the Department of Homeland Security on multiple occasions. 2. At or around the time of those meetings and after an investigator at the Office of 15 the District Attorney contacted the TSA regarding Defendant GEORGE GASCON, Defendants 16 engaged in pattern of retaliation and harassment meant to punish personnel who had discussed 17 and/or raised allegations of impropriety by the District Attorney. Plaintiff, an investigator in 18 good standing, was terminated by Defendants in retaliation for his participation in the Union 19 and Defendants’ belief that Plaintiff had either been a whistleblower or had aided a 20 21 22 23 24 whistleblower. Not content only to terminate Plaintiff, Defendants went further, sullying Plaintiff’s reputation by accusing him of having Brady issues in an effort to destroy his career – a move that not only impacted Plaintiff personally and financially, but that also put San Franciscans at risk given Plaintiff’s ability to testify in criminal cases was jeopardized, which could result in violent suspected criminals to avoid prosecution. 3. In fact, since the filing of this Complaint, the Office of the District Attorney has 25 gone further in retaliating against Plaintiff to the detriment of residents of the City of San 26 Francisco, informing Plaintiff that he has potential Brady issues arising from the federal 27 Complaint filed by Plaintiff’s attorneys against the District Attorney. See the Office of the 28 District Attorney’s Brady Notice dated January 8, 2019 attached hereto as Exhibit 1. Said _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -2- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 3 of 27 1 2 3 action by the Office of the District Attorney is obviously retaliatory, not in conformity with any case law or statute, and clearly meant to punish Plaintiff for bringing forth this Complaint. Additionally, and more troubling still, because of said action by the Office of the District Attorney, Plaintiff may not be called to testify in a criminal trial and/or his testimony may be 4 undermined, which could damage efforts to bring to justice persons involved in a double 5 homicide, imperiling the safety of the community. Upon information and belief, these actions 6 against Plaintiff are being undertaken at the behest and pursuant to the instructions of the San 7 Francisco District Attorney – a named defendant in this action. 8 II. JURISDICTION 9 10 4. 1343(3) as the controversy arises under “the constitution, laws or treaties of the United States.” 11 12 5. III. VENUE 14 16 17 18 19 20 21 22 23 This Court has supplemental jurisdiction over Plaintiff’s California state law claims pursuant to 28 U.S.C. § 1367. 13 15 This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 6. Venue is proper in the Northern District of California pursuant to 28 U.S.C § 1391(b) because the acts, events or omissions giving rise to this action occurred in this District. This action is also brought pursuant to 42 U.S.C. §§ 1981, 1983 and 1988, Title VII of the Civil Rights Act of 1964, and the First Amendment to the United States Constitution, made applicable to Defendants through the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction over Plaintiff’s claims under 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a). This Court has further jurisdiction over Plaintiff’s state law claims under 28 U.S.C. § 1367 as those claims form part of the same case and controversy under Article III of the United States Constitution. 7. 24 Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the events 25 giving rise to this action occurred in the City and County of San Francisco, which is located in 26 this district. 27 /// 28 /// _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -3- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 4 of 27 IV. PARTIES 1 2 8. At all times material to this Complaint, Plaintiff HENRY G. MCKENZIE 3 (“MCKENZIE”) was and is a resident of the County of Sonoma in the State of California. 4 Between 2010 through October 2017, Plaintiff MCKENZIE was an investigator and then 5 senior investigator in the Office of the District Attorney for the CITY AND COUNTY OF 6 SAN FRANCISCO. 7 8 9 9. Plaintiff is informed and believes that Defendant CITY AND COUNTY OF SAN FRANCISCO is a public entity (“CCSF”). 10. Defendant GEORGE GASCON is an individual employed by Defendant CITY 10 AND COUNTY OF SAN FRANCISCO. Plaintiff is informed and believes that Defendant 11 GASCON is a resident of the City and County of San Francisco in the State of California. At 12 all times relevant to this Complaint, GASCON was the District Attorney for the CITY AND 13 COUNTY OF SAN FRANCISCO and Plaintiff’s supervisor with the authority to alter the 14 Plaintiffs’ employment status and working conditions. 15 11. Defendant JERRY RODRIGUEZ is an individual employed by Defendant 16 CITY AND COUNTY OF SAN FRANCISCO. Plaintiff is informed and believes that 17 Defendant RODRIGUEZ is a resident of the State of California. At all times relevant to this 18 Complaint, RODRIGUEZ was the Chief of Investigations for the CITY AND COUNTY OF 19 SAN FRANCISCO and Plaintiff’s supervisor with the authority to alter the Plaintiffs’ 20 employment status and working conditions. 21 12. Defendant DAVID CREW is an individual employed by Defendant CITY 22 AND COUNTY OF SAN FRANCISCO. Plaintiff is informed and believes that Defendant 23 CREW is a resident of the State of California. At all times relevant to this Complaint, CREW 24 was the Captain of Investigations for the CITY AND COUNTY OF SAN FRANCISCO and 25 Plaintiff’s supervisor with the authority to alter the Plaintiffs’ employment status and working 26 conditions. 27 13. 28 Plaintiff is ignorant of the true names and capacities of the Defendants sued herein as DOES 1 to 10, inclusive, and therefore sues those Defendants by such fictitious _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -4- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 5 of 27 1 names. Plaintiff will amend the Complaint to allege their true names and capacities when 2 ascertained. 3 14. Plaintiff is informed and believes, and thereon alleges, that Defendants and each 4 of them are responsible under the law in some manner for the unlawful actions and unlawful 5 practices complained of herein. 6 15. Plaintiff is informed and believes, and thereon alleges, that at all times material 7 hereto and mentioned herein, each Defendant sued (both named and DOE Defendants) was the 8 successor in interest, predecessor in interest, agent, servant, employer, joint-employer, joint 9 venture, contractor, contractee, partner, division owner, co-owner, subsidiary, division, alias, 10 and/or alter ego of each of the remaining defendants and was, at all times, acting within the 11 purpose and scope of such agency, servitude, employment, contract, ownership, subsidiary, 12 alias and/or alter ego and with the authority consent, approval, control, influence and 13 ratification of each remaining Defendants sued herein. 14 16. Plaintiff is informed and believes, and thereon allege, that each and all of the 15 acts and omissions alleged herein were performed by, and/or are attributed to, all Defendants, 16 each acting as agents, employees, and/or co-conspirators, and/or under the direction and 17 control, of each of the other Defendants; and that said acts and failures to act were within the 18 course and scope of said agency, employment, conspiracy and/or direction and control. 19 17. Defendants, and each of them, were at all times an “employer” within the 20 meaning of Title VII (42 U.S.C. § 2000e(b)) and the Fair Employment and Housing Act (Cal. 21 Gov. §12926(d).) Therefore, Defendants were prohibited from engaging in acts of 22 discrimination, harassment and/or retaliation against employees based on age and sexual 23 orientation. Defendants are further required to take all reasonable steps necessary to prevent 24 discrimination and harassment from occurring, including taking immediate and appropriate 25 corrective action in response to unlawful conduct. 26 27 18. Defendants, and each of them, were acting under color of law at all times as it pertains to the matters contained in this Complaint. 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -5- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 6 of 27 1 2 19. The unlawful employment practices complained of herein occurred within the County of San Francisco, State of California. 3 V. EXHAUSTION OF ADMINISTRATIVE REMEDIES 4 5 20. On October 30, 2017 Defendants terminated Plaintiff MCKENZIE. 6 21. Plaintiff MCKENZIE timely requested an administrative review of his 7 termination by the Office of the District Attorney pursuant to the Public Safety Officers 8 Procedural Bill of Rights Act (the “POBRA”) and, on December 6, 2017, Plaintiff filed a pre- 9 hearing brief stating, among other things, that he had been terminated in violation of “[p]ublic 10 policy” as a result of exercising his “First Amendment rights and for providing information 11 that is protected by the Common Interest Privilege (as well as Cal. Civ. Code § 47(c)), and in 12 violation of Labor Code § 1102.5(b).” 13 22. On or about February 19, 2018, following an administrative review of the 14 District Attorney’s decision by the Office of the District Attorney itself, Plaintiff’s termination 15 was upheld. 16 23. Thereafter, on or about April 20, 2018, Plaintiff timely filed a Government Tort 17 Claim alleging violation of public policy, violation of Title VII of the Civil Rights Act, the Fair 18 Employment and Housing Act, and several other state causes of action against the Defendants. 19 20 21 24. On or about May 25, 2018, Defendant CITY AND COUNTY OF SAN FRANCISCO denied Plaintiff’s Government Tort Claim. 25. Thereafter, Plaintiff filed a claim of discrimination with California Fair 22 Employment and Housing Commission (Case No. 201808-03217813) on or about August 13, 23 2018 and received a right to sue notice on the same date. Plaintiff cross-filed the claim with 24 the Equal Employment Opportunity Commission (“EEOC”) and requested a right to sue on 25 August 24, 2018 (EEOC Charge No. 550201801763). The EEOC referred the matter to the 26 Department of Justice (the “DOJ”). The DOJ issued a right to sue notice on or about November 27 19, 2018. 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -6- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 7 of 27 1 26. Plaintiff is informed and believes that, to the extent that administrative 2 exhaustion is necessary, he has satisfied all private, administrative and judicial prerequisites to 3 the institution of this action. 4 27. This action is not preempted by the California Workers’ Compensation Act 5 because civil rights violations, Whistleblower-statute violations, and discrimination, 6 harassment, failure to investigate and retaliation are not risks or conditions of employment 7 under the California Workers’ Compensation Act. 8 VI. CONTINUING VIOLATIONS/EQUITABLE TOLLING 9 10 28. The wrongful acts and omissions giving rise to the Defendants’ liability in this 11 action commenced in or about summer/spring 2017 and are “continuing” in nature to the 12 present time. At all times, Plaintiff endeavored to resolve his disputes through an internal 13 grievance/administrative review process directly with Defendant CITY AND COUNTY OF 14 SAN FRANCISCO. Accordingly, Plaintiff asserts the doctrine of “equitable tolling” on all his 15 claims during the period that he was endeavoring to resolve his disputes internally. 16 SUBSTANTIAL MOTIVATING REASONS 17 18 29. The unlawful actions alleged directed against the Defendants as alleged here 19 herein were substantial factors motivating the adverse employment decisions directed against 20 Plaintiff MCKENZIE up to and including his termination. 21 VII. FACTUAL DISCUSSION 22 23 24 A. THE WHISTLE BLOWING 30. Defendant CITY AND COUNTY OF SAN FRANCISCO hired Plaintiff 25 MCKENZIE as an Investigator for the Office of the District Attorney’s Bureau of Investigation 26 in 2010. At the time, current United States Senator Kamala Harris was San Francisco’s District 27 Attorney. 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -7- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 8 of 27 31. 1 On or about 2011, the Mayor of the City and County of San Francisco appointed 2 Defendant GASCON to fill the District Attorney position following Senator Harris’s election 3 to Attorney General for the State of California. 32. 4 In his capacity as investigator, Plaintiff MCKENZIE performed investigative 5 work in the most difficult and complex criminal investigations under the jurisdiction of the 6 District Attorney’s Office – the vast majority of which dealt with homicides and violent 7 crimes. 8 9 33. Within a short time frame, on or about 2012, Plaintiff MCKENZIE was promoted to Senior District Attorney Investigator. In that capacity, Plaintiff MCKENZIE 10 continued to perform investigative work and was tasked with supervisorial responsibilities, 11 including, but not limited to, becoming a working supervisor in difficult field investigations; 12 assisting in training lower level investigators and other members of the District Attorney’s 13 staff; and directing subordinate investigators in the field. 14 34. Because Plaintiff MCKENZIE was a first-level supervisor within the Office of 15 the District Attorney, between 2011 and 2017, Defendant CITY AND COUNTY OF SAN 16 FRANCISCO sent Plaintiff MCKENZIE to receive further supervisory training at (i) the POST 17 Supervisorial School in California, and (ii) the Sherman Block Supervisory Leadership 18 Institute (SBSLI) – a nine-month long training class for “first-level supervisory peace 19 officer[s].” Plaintiff MCKENZIE completed both supervisory trainings. 20 35. Between 2010 and 2017, Plaintiff MCKENZIE received numerous honors from 21 Defendant CITY AND COUNTY OF SAN FRANCISCO. During that time, Plaintiff 22 MCKENZIE worked on hundreds of cases and helped incarcerate dozens – if not hundreds – of 23 criminals, making the streets of San Francisco safer for its residents and visitors. 24 36. Plaintiff MCKENZIE developed a strong reputation within the Office of the 25 District Attorney of being a hard working, committed, and excellent senior district attorney 26 investigator. Most precious to Plaintiff McKenzie, personally and professionally, was his 27 reputation for honesty and integrity. 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -8- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 9 of 27 1 37. On or around 2014, Plaintiff was elected by fellow Union members to be a 2 member-at-large for the San Francisco District Attorney’s Office Investigators Association – 3 the union equivalent for District Attorney investigators. The Union, which would work with 4 the San Francisco Police Officers Association (the “SF POA”) on occasion, had a seven- 5 member governing body, comprised of a Union president, vice president, treasurer, secretary, 6 and three members-at-large. The Union’s governing body would meet during non-work hours 7 to discuss Union business including lobbying efforts (e.g., to try to obtain civil service 8 protection for investigators), working conditions for investigators, and any concerns regarding 9 the Office of the District Attorney. 10 38. Starting in late 2016/early 2017, the Union’s governing body discussed 11 allegations that the District Attorney, Defendant GASCON, was committing felonies when 12 traveling while armed in violation of federal law on several occasions. The Union’s governing 13 body, including Plaintiff, discussed their legal obligation to report these potential crimes to the 14 United State of America Transportation Security Administration (the “TSA”) and/or the 15 Department of Homeland Security and/or other federal law enforcement agencies. 16 39. Upon information and belief, by 2017 Defendants were aware that the Union’s 17 governing body, including Plaintiff, was discussing potential illegal conduct by Defendant 18 GASCON and the other Defendants and was considering reporting Defendants’ perceived 19 unlawful conduct (especially by Defendant GASCON) to outside government agencies (i.e., 20 “blowing the whistle on behavior they believed to be criminal”.) 21 40. Around the same time in spring 2017, and upon information and belief, an 22 investigator at the District Attorney’s Office contacted federal authorities to blow the whistle 23 on Defendant GASCON. Upon information and belief, the investigator informed the TSA that 24 Defendant GASCON had been unlawfully traveling by plane while armed with a firearm on 25 many instances – a violation of federal law, which requires peace officers traveling while 26 armed to state they are doing so for a lawful and specific reason under penalty of perjury. Upon 27 information and belief, Defendant GASCON, while serving as District Attorney, was neither 28 an active peace officer nor had any need to travel while armed. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL -9- Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 10 of 27 41. 1 Upon information and belief, federal authorities have launched a criminal 2 investigation into Defendant GASCON regarding the investigator’s allegations of unlawful 3 travel practices, which investigation is still ongoing as of the writing of this Complaint. 42. 4 Upon information and belief, weeks after the investigator blew the whistle on 5 Defendant GASCON with the TSA, an unknown person also began to circulate anonymous 6 letters within the Office of the District Attorney that, among many other things, stated that 7 Defendant GASCON had violated federal law when flying armed. 43. 8 9 10 Upon information and belief, Defendants know the identity of the investigator that contacted the TSA regarding Defendant GASCON. Plaintiff will refer to that investigator as Investigator Doe. 44. 11 Upon information and belief, Defendants were aware that the Union’s 12 governing body, including Plaintiff, had also met to discuss the need to blow the whistle on 13 Defendant GASCON and would likely blow the whistle on Defendant GASCON. 45. 14 Upon information and belief, Defendants believe that Plaintiff was the author of 15 the anonymous whistleblower letters that appeared following Investigator Doe’s report to the 16 TSA. 17 18 B. DEFENDANT GASCON’S AGENTS AND THE ESCALATION OF A DISCRIMINATORY AND 19 HOSTILE WORK ENVIRONMENT 20 46. Around the same time that Defendant GASCON’s alleged unlawful travel with 21 a concealed weapon was being considered by the Union in late 2016, Defendant GASCON, a 22 former officer and director at the Los Angeles Police Department, hired a close friend and 23 former Los Angeles Police Department captain, Defendant JERRY RODGRIGUEZ, to become 24 a lieutenant at the Office of the District Attorney’s Bureau of Investigations where Plaintiff 25 worked. 26 27 47. Plaintiff MCKENZIE recalls that one of the first things that Defendant RODRIGUEZ told him upon meeting him was, in connection with RODRIGUEZ’s 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 10 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 11 of 27 1 relationship to GASCON, “I would do anything for that man.” At the time, in late 2016, 2 Plaintiff MCKENZIE considered that comment to be very odd. 3 48. Within a short time of being brought into the Office of the District Attorney, on 4 or about March 2017, Defendant GASCON promoted Defendant RODRIGUEZ to become the 5 Chief of the Bureau of Investigations. 6 49. At or about the same time, Defendant GASCON promoted Defendant DAVID 7 CREW to Captain of the Bureau of Investigations. Defendant CREW was known also to be 8 very loyal to Defendant GASCON and RODRIGUEZ. 9 50. Shortly after the promotions of Defendants RODRIGUEZ and CREW, it 10 became apparent that Defendant GASCON was “cleaning house” at the Office of the District 11 Attorney. Normally, that would be considered a good thing if it was to clear bad actions. But in 12 this case, it was apparent that Defendant GASCON was using the shield of “good intent” for 13 his own political purposes; to cull out those who did not show allegiance to Defendant 14 GASCON and who were not willing to cover up his misdeeds and/or apparent illegal actions. 15 51. Over the course of the next several months, nearly half to the investigative 16 department was wiped out; approximately 14 staff members were either terminated or forced to 17 resign under intense pressure within a short-time span. All the separated employees were either 18 over 40 years old and/or were members of the Union – many of whom knew of the allegations 19 concerning Defendant GASCON’s violations of federal law. 20 52. Typically, the separated employees were either reprimanded or pressured by 21 Defendants RODRIGUEZ and CREW at the behest of Defendant GASCON. For example, of 22 the Union’s seven-member governing body, four of the executive members were either 23 terminated or reprimanded in some way in the following months, with the District Attorney, by 24 and through Defendant RODRIGUEZ, brining an Internal Affairs investigation against the 25 Union president, for instance. 26 27 53. Over the course of the next several months, after Investigator Doe reported Defendant GASCON to the TSA and that other staff-persons were believed to either be leaking 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 11 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 12 of 27 1 said information to the press and/or federal authorities, a cloud descended on many of the 2 upper managers at the Office of the District Attorney. 54. 3 On September 5, 2017, Defendant GASCON engaged in the most chilling and 4 egregious act of bulling and intimidation. While addressing the entire staff for the District 5 Attorney’s Bureau of Investigations department at a training day at the shooting range at Lake 6 Merced, Defendant GASCON threatened the staff that he perceived there was “cancer” 7 growing in the Bureau of Investigations and he was going to cut it out. In his tirade, Defendant 8 GASCON compared this “cancer” to incidences of corruption he was aware of while serving 9 Los Angeles Police Department, including an alleged police officer murder-for-hire scheme. 10 Defendant GASCON threatened three times that if anyone was going to talk to Matier & Ross 11 (newspaper journalists), “they better make sure they had their facts straight” and that he 12 (defendant Gascon) would “be around a lot longer than anyone else” at the Bureau. 55. 13 Plaintiff MCKENZIE understood the references made by Defendant GASCON 14 on September 5, 2017 meeting referred to the anonymous whistleblowing letters that had been 15 circulating the department given that the whistleblowing letters referenced two San Francisco 16 Chronicle reporters – Phil Matier and Andy Ross. 56. 17 18 Upon information and belief, Defendant GASCON believed Plaintiff to be the author of those whistleblower letters. 57. 19 The very next day, on September 6, 2017, Plaintiff was called into Defendant 20 CREW’s office. Plaintiff was informed that he was being placed on administrative leave and 21 that an Internal Affairs investigation was pending. Given the timing of this action and the 22 comments made by Defendant GASCON, this action defamed Plaintiff professionally before 23 his colleagues as it lumped Plaintiff in with the people Defendant GASCON referred to as the 24 “cancer” in the Bureau of Investigations who were engaging in purported illegal conduct. 25 Specifically, Plaintiff was informed that he was being placed on leave for providing false 26 information to a federal agency. That allegation against Plaintiff itself was false. 27 /// 28 /// _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 12 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 13 of 27 1 C. THE PURPORTED FALSE INFORMATION 58. 2 Plaintiff MCKENZIE supervised Investigator Doe while serving as a senior 3 district attorney investigator within the District Attorney’s Office. Unbeknownst to Plaintiff, 4 Investigator Doe contacted the TSA to report Defendant GASCON’s unlawful travel on or 5 about spring 2017. 59. On or about early summer 2017, Defendant GASCON terminated Investigator 8 60. Plaintiff was not privy to the facts leading to Investigator Doe’s termination. 9 61. Because Plaintiff MCKENZIE had been Investigator Doe’s supervisor, on or 6 7 Doe. 10 about August 2017, Investigator Doe reached out to Plaintiff MCKENZIE and requested a 11 personal reference letter from Plaintiff given that Investigator Doe was applying for a federal 12 law enforcement job. 13 62. Plaintiff MCKENZIE agreed to provide a personal reference letter. On or about 14 August 2017, Plaintiff received a form – INV FORM 41 – from the federal government 15 addressed to Plaintiff in his personal capacity and requesting him to fill the form out on behalf 16 of Investigator Doe. The form contained six or seven multiple-choice questions, which were 17 supposed to be answered out by filling out a Scantron form. One of the questions asked if the 18 information on the form, stating that Plaintiff MCKENZIE had been Investigator Doe’s 19 “supervisor” was correct. Plaintiff MCKENZIE bubbled in “Yes.” 20 63. Another question asked if Investigator Doe was eligible for rehire. Plaintiff 21 MCKENZIE, relying solely on the facts that he knew, opined and bubbled in the box for 22 “Yes.” Nonetheless, Plaintiff also stated on the reference form that Investigator Doe had been 23 terminated. Plaintiff MCKENZIE expected that the hiring agency would reach out to him with 24 any questions regarding Investigator Doe’s separation from the department. Plaintiff 25 MCKENZIE filled out the personal reference form truthfully and to the best of his knowledge. 26 64. Unbeknownst to Plaintiff, Defendants obtained a copy of the reference letter 27 that Plaintiff had filled out on behalf of Investigator Doe in his personal capacity. Believing 28 that Plaintiff was the anonymous whistleblower and believing that Plaintiff was knowingly _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 13 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 14 of 27 1 assisting Investigator Doe, the TSA whistleblower, Defendants retaliated against Plaintiff. 2 Specifically, Defendants contended that Plaintiff had intentionally misled federal authorities 3 because (i) Plaintiff was not Investigator Doe’s supervisor, and (ii) Investigator Doe was not 4 eligible for rehire. Based on those allegations, Defendant GASCON, acting by and through 5 Defendants CREW and RODRIGUEZ, terminated Plaintiff from the District Attorney’s on 6 October 30, 2017. 7 65. Plaintiff appealed his termination and provided evidence showing that (i) he was 8 Investigator Doe’s supervisor, and (ii) he had not in any way misled federal authorities by 9 submitting a reference letter. (In fact, the federal agency in question ultimately offered 10 11 Investigator Doe a position.) Despite such showing, Defendants upheld Plaintiff’s termination. 66. During the course of the review, Plaintiff also informed/blew the whistle on 12 Defendants by informing them that they had violated Investigator Doe’s right to privacy by 13 sharing with Plaintiff and his counsel the rationale for the decision to terminate Investigator 14 Doe – private personnel matters to which Plaintiff was not privy. In fact, Plaintiff informed 15 Defendants that such revelation was a crime – a violation of Penal Code § 832.7. 16 67. Upon information and belief, the purported reason for Plaintiff’s termination 17 was pretextual. Plaintiff was fired in retaliation for his perceived whistleblowing (and support 18 thereof) and to chill his First Amendment rights of free speech. In fact, several Defendants 19 have engaged in very serious and even unlawful conduct and have faced no disciplinary action. 20 68. To exacerbate matters, following Plaintiff’s termination, Defendants informed 21 multiple third parties, following Plaintiff’s termination on October 30, 2017 through early 22 2018, that Plaintiff was being investigated for so-called Brady issues – concerns about 23 Plaintiff’s honesty that have to be disclosed to defense attorneys in criminal prosecutions. 24 69. Plaintiff has no Brady issues; instead, Defendants have made such statements in 25 a further effort to retaliate and injure Plaintiff. Said efforts have been successful given that 26 Plaintiff sought other employment following his termination and was rejected for employment 27 on several occasion due to Defendants’ statements. Plaintiff continues to suffer injuries arising 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 14 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 15 of 27 1 from Defendants’ tortious actions in violation of the state law and the United States 2 Constitution. 3 70. In a further act of retaliation, Defendant CCSF has recently informed Plaintiff 4 that he has a Brady issue arising from his federal Complaint filed on November 24, 2018. 5 Because of that action, Plaintiff is not being asked to testify in a criminal matter, which could 6 potentially result in a murderer’s acquittal. Moreover, by virtue of this action, Plaintiff now has 7 a black mark on an otherwise stellar law enforcement record. 8 VIII. CAUSES OF ACTION 9 10 FIRST CLAIM 11 VIOLATION OF CALIFORNIA LABOR CODE § 1102.5; 6310 12 (Against All Defendants and Does 1 to 10) 13 71. Plaintiff incorporates by reference as though fully set forth herein, each and 14 every allegation set forth above in this Complaint. As a separate and distinct cause of action for 15 relief, Plaintiff complains against Defendants CCSF and Does 1 through 20 only as follows: 16 72. Cal. Labor Code § 1102.5(b) prevents an employer from retaliating against an 17 employee for “disclosing information, or because the employer believes that the employee 18 disclosed or may disclose information, to a government or law enforcement agency, to a person 19 with authority over the employee or another employee who has the authority to investigate, 20 discover, or correct the violation or noncompliance, or for providing information to, or 21 testifying before, any public body conducting an investigation” relating to a violation of state 22 and/or federal law. 23 73. 24 25 Cal. Labor Code § 6310. Provides: (a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: 26 (1) Made any oral or written complaint to the division, other governmental agencies 27 having statutory responsibility for or assisting the division with reference to employee 28 safety or health, his or her employer, or his or her representative. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 15 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 16 of 27 1 (2) Instituted or caused to be instituted any proceeding under or relating to his or her 2 rights or has testified or is about to testify in the proceeding or because of the exercise 3 by the employee on behalf of himself, herself, or others of any rights afforded him or 4 her. 5 (3) Participated in an occupational health and safety committee established pursuant to 6 Section 6401.7. 7 (b) Any employee who is discharged, threatened with discharge, demoted, suspended, 8 or in any other manner discriminated against in the terms and conditions of 9 employment by his or her employer because the employee has made a bona fide oral or 10 written complaint to the division, other governmental agencies having statutory 11 responsibility for or assisting the division with reference to employee safety or health, 12 his or her employer, or his or her representative, of unsafe working conditions, or work 13 practices, in his or her employment or place of employment, or has participated in an 14 employer-employee occupational health and safety committee, shall be entitled to 15 reinstatement and reimbursement for lost wages and work benefits caused by the acts of 16 the employer. Any employer who willfully refuses to rehire, promote, or otherwise 17 restore an employee or former employee who has been determined to be eligible for 18 rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by 19 law, is guilty of a misdemeanor. 20 72. As herein above alleged, Plaintiff was subjected retaliation for participating in 21 Union meetings discussing federal law violations, for writing a personal reference letter to a 22 whistleblower, for informing Defendants that they had violated state penal law, and for being 23 believed to have been a whistleblower or future whistleblower. 24 73. Defendants CCSF and, acting through its various employees, including the other 25 Defendants retaliated against Plaintiff, as hereinabove alleged, including a continuing, 26 connected series of retaliatory acts that continue to this date including terminating Plaintiff. 27 Such actions by Defendants CCSF violated Labor Code §§ 1102.5 and 6310 in that they 28 constituted retaliation. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 16 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 17 of 27 1 74. As a direct, foreseeable and legal result of Defendants’ conduct, Plaintiff has 2 suffered and continues to suffer substantial damages including losses in earnings, seniority, 3 work credits, retirement and other employment benefits in an amount to be proven at trial. 4 75. As a direct, foreseeable and legal result of Defendants’ conduct, Plaintiff has 5 suffered and continues to suffer humiliation, embarrassment, mental, emotional distress and 6 discomfort, all to Plaintiff Faith’s detriment in an amount to be proven at trial. 7 76. By reason of Defendants’ unlawful conduct, and in order to enforce his 8 important rights, Plaintiff has incurred and will incur legal expenses including attorneys’ fees 9 and costs to remedy the wrongs perpetrated by Defendants and each of them. Plaintiff is 10 therefore entitled to reasonable attorneys’ fees and costs as a matter of law pursuant to, inter 11 alia California Code of Civil Procedure § 1021.5, California Labors Code §§ 1102.5 and 6310; 12 Government Code § 12900 et seq. and California Labor Code § 2968. Additionally, Plaintiff is 13 entitled to punitive damages as to the individual defendants. 14 WHEREFORE, Plaintiff requests relief as herein set forth in the Prayer. 15 SECOND CLAIM FOR RELIEF 16 17 CIVIL RIGHTS VIOLATION -- (42 U.S.C. § 1983 18 First Amendment Violation Against all Defendants and Does 1-10) 19 77. Plaintiff incorporates by reference as though fully set forth herein, each and 20 every allegation set forth above in this Complaint. As a separate and distinct claim for relief, 21 Plaintiff complains against all Defendants as follows: 22 78. Plaintiff alleges that Defendants, including Does 1-10, acting under color of 23 law, jointly and/or severally, deprived Plaintiff of those rights, privileges and immunities 24 secured by the United States Constitution as incorporated and applied to the states by and 25 through the Fourteenth Amendment: Through the foregoing acts, and each of them, the 26 Defendants sought to and did retaliate, chill and suppress Plaintiff’s exercise of his 27 constitutional right of free speech and did so under color of their authority as law enforcement 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 17 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 18 of 27 1 officers. Defendants’ efforts in this regard were also intended to protect Defendant GASCON’s 2 federal violations under color. 3 79. Plaintiff’s targeted speech (which includes discussing potential criminal 4 violations by Defendant GASCON by and through Plaintiff’s union activity, providing 5 Investigator Doe a personal reference letter, and the filing of the instant complaint) was done in 6 his capacity as a private citizen, outside his chain of command, and outside work hours; 7 80. The subject matter of Plaintiff’s speech was not typical of his job duties; 8 81. Defendants took adverse employment actions against Plaintiff due to his speech, 9 10 11 12 13 14 15 including, most recently, opening a Brady inquiry into Plaintiff arising from the allegations contained in his Complaint; 82. Plaintiff’s speech was a substantial or motivating factor for the adverse employment actions and retaliatory behavior by Defendants; 83. As a result of the foregoing, Plaintiff has been damaged economically and non- economically in an amount unknown to him, but to be proven at time of trial. 84. By reason of Defendants’ unlawful conduct, and in order to enforce his 16 important rights, Plaintiff has incurred and will incur legal expenses including attorneys’ fees 17 and costs to remedy the wrongs perpetrated by Defendants and each of them. Plaintiff is 18 therefore entitled to reasonable attorneys’ fees and costs as a matter of law. Additionally, 19 Plaintiff is entitled to punitive damages as to the individual defendants. 20 21 THIRD CLAIM FOR RELIEF 22 DISCRIMINATION ON THE BASIS OF AGE IN VIOLATION OF TITLE VII AND THE FEHA 23 (AGAINST DEFENDANT CCSF) 24 25 26 27 85. Plaintiff incorporates herein by reference the preceding Paragraphs of this Complaint as fully set forth herein. This cause of action is alleged against Defendant CCSF. 86. Title VII and the FEHA prohibit an employer from discriminating against an employee on the basis of age. Specifically, Title VII and the FEHA provide that it is unlawful 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 18 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 19 of 27 1 to “discriminate against any individual with respect to his compensation, terms, conditions, or 2 privileges of employment,” based on the individual’s age. 3 87. Defendant CCSF’s actions negatively affected the terms and conditions of 4 Plaintiff’s employment. A substantial motivating factor for Defendant’s unlawful actions was 5 discrimination based on Plaintiff age. 6 7 8 9 10 88. Plaintiff sustained an adverse employment action by Defendant as heretofore alleged. 89. As a direct and proximate result of Defendant’s discriminatory actions, Plaintiff has suffered, embarrassment, loss of dignity, great humiliation, and emotional distress. 90. As a direct, foreseeable and proximate result of Defendant’s acts, Plaintiff has 11 suffered and continues to suffer loss of promotional opportunities, training opportunities, 12 economic losses, lost benefits, and other consequential and foreseeable damages. 13 91. By reason of Defendant’s unlawful conduct, and to enforce the important right 14 to a discrimination and harassment-free workplace, for Plaintiff and the public at large, 15 Plaintiff has incurred and continues to incur legal expenses and attorney fees. Plaintiffs are 16 therefore entitled to reasonable attorneys’ fees and litigation expenses pursuant to 29 U.S.C. § 17 216(b) and C.C.P. §1021.5 and Government Code §§ 12940(a) and 12965(b). 18 WHEREFORE, Plaintiffs pray for relief as set forth herein. 19 20 FOURTH CLAIM FOR RELIEF 21 FAILURE TO INVESTIGATE AND PREVENT DISCRIMINATION 22 VIOLATION OF CALIFORNIA GOVERNMENT CODE § 12940(K) 23 (AGAINST DEFENDANT CCSF) 24 25 26 92. Plaintiff incorporates herein by reference the preceding Paragraphs of this Complaint as fully set forth herein. This cause of action is alleged against Defendant CCSF. 93. California Government Code § 12940(k) provides that it is an unlawful 27 employment practice for an employer to fail to take all reasonable steps necessary to prevent 28 discrimination, retaliation, and harassment from occurring in the workplace. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 19 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 20 of 27 1 94. Defendant violated Government Code §12940 with regard to Plaintiff when 2 Defendant knowingly and recklessly failed to investigate Plaintiff’s concerns and complaints 3 regarding discrimination and retaliation against Plaintiff on the basis of age discrimination. 4 Defendant failed to conduct a meaningful, effective, reasonable and impartial investigation 5 when Plaintiff complained about discriminatory conduct and failed to take reasonable steps 6 necessary to investigate the misconduct and prevent it from occurring and continuing. 7 8 9 95. Defendant's conduct toward Plaintiff as alleged above, constitutes an unlawful employment practice in violation of California Government Code §12940 et. seq. 96. As a direct and proximate result of Defendant’s unlawful actions, Plaintiff 10 suffered loss of employment opportunities, loss of dignity, great humiliation, and emotional 11 injuries and emotional distress. 12 97. Defendant's actions have caused and continue to cause Plaintiff substantial 13 losses in earnings, significant reputation and professional injury, loss of promotional 14 opportunities and other employment benefits, lost wages, attorneys' fees, medical expenses, 15 loss of future earnings and benefits, loss of benefits, cost of suit, humiliation, embarrassment 16 and anguish, all to his damage in an amount according to proof. 17 18 19 98. As a direct and proximate result of Defendant's retaliatory conduct, Plaintiff has suffered loss of employment, indignity, great humiliation and emotional distress. 99. By reason of Defendant's unlawful conduct, and in order to enforce the 20 important right to a discrimination and harassment-free workplace, both for Plaintiff and the 21 public at large, Plaintiff has incurred and continues to incur legal expenses and attorney fees. 22 Plaintiff is therefore entitled to reasonable attorneys' fees and litigation expenses per C.C.P. 23 §1021.5 and Cal. Gov. Code §12965(b). 24 WHEREFORE, Plaintiffs pray for relief as set forth herein. 25 26 FIFTH CLAIM FOR RELIEF 27 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 28 (AGAINST ALL DEFENDANTS) _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 20 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 21 of 27 1 2 3 100. Plaintiff incorporates herein by reference the preceding Paragraphs of this Complaint as fully set forth herein 101. Upon information and belief, Defendants GASCON, CREW and RODRIGUEZ, 4 and each of them, have represented that Plaintiff has Brady issues to Plaintiff and third parties 5 – i.e., an accusation that Plaintiff is guilty of peace officer misconduct. Said representation is 6 false and made in direct retaliation for Plaintiff’s perceived whistleblowing and support 7 thereof. More troubling, since the filing of Plaintiff’s initial Complaint, Defendants GASCON 8 and CCSF have selectively targeted Plaintiff by initiating a formal Brady inquiry into Plaintiff 9 by the Office of the District Attorney’s Trial Integrity Unit in response to the allegations 10 contained in Plaintiff’s civil complaint against Defendants. (See Exhibit 1). Said actions are 11 outrageous, an abuse of power, arbitrary and capricious, and obviously retaliatory. 12 102. Defendants’ actions have proximately harmed Plaintiff and his career and 13 reputation, including his ability to serve as a witness in criminal proceedings. Moreover, 14 Defendants’ statements were made to cause Plaintiff emotional distress or, at the very least, 15 were undertaken with a reckless disregard of the probability that Plaintiff would suffer 16 emotional distress therefrom. 17 18 19 103. Plaintiff has in fact suffered emotional distress as a proximate result of Defendants’ actions. 104. Defendants’ conduct, as described above was willful, malicious, oppressive, 20 knowing, and intentional; accordingly, Plaintiff seeks an award of punitive and exemplary 21 damages in an amount according to proof for damages caused by the individual defendants’ 22 conduct. 23 SIXTH CLAIM FOR RELIEF 24 FOURTEENTH AMENDMENT VIOLATION 25 (AGAINST DEFENDANTS CCSF AND GASCON) 26 27 105. Plaintiff incorporates herein by reference the preceding paragraphs of this complaint as fully set forth herein. 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 21 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 22 of 27 1 106. Defendants CSSF and GASCON, acting both individually and as a final 2 policymaker for the Office of the District Attorney, acted in an arbitrary and capricious manner 3 in violation of Plaintiff’s Fourteenth Amendment’s procedural and substantive due process and 4 equal protection clauses by: initiating a Brady inquiry into Plaintiff arising from the allegations 5 contained in Plaintiff’s federal civil complaint. Said actions – the Brady inquiry – were not in 6 the public interest, taken in an arbitrary and capricious manner without any justifications and in 7 violation of procedural and substantive due process and equal protection as prescribed and 8 applied to all government agencies by and through the Fourteenth Amendment. (See Exhibit 9 1). Said actions, taken to selectively target and retaliate against Plaintiff, are conscience 10 11 12 13 shocking and an abuse of power. 107. As a direct result of Defendants’ actions, Plaintiff’s fourteenth amendment constitutional rights and federally protected rights pursuant to 42 U.S.C §1983 were violated. 108. The conduct of the above individual Defendants was willfully intended to cause 14 injury to Plaintiff. Because the above acts by the above individual defendants were performed 15 in an intentional and willful manner, Plaintiff is entitled to recover punitive damages from 16 named individual Defendants in an amount according to proof. 17 IX. DAMAGES 18 19 109. As a legal result of the conduct by Defendants of which Plaintiff complains, 20 Plaintiff suffered and continues to suffer substantial losses in earnings, service credit, 21 retirement benefits, health benefits and other employee benefits. Plaintiff will seek leave to 22 amend this Complaint to state the amount or will proceed according to proof at trial. 23 24 25 110. Plaintiff suffered general emotional distress as a legal result of the conduct by Defendants of which Plaintiff complain. 111. At all material times, Defendants, and each of them, knew that Plaintiff 26 depended on his wages and other employee benefits as a source of earned income. At all 27 material times, Defendants were in a position of power over Plaintiff, with the potential to 28 abuse that power. _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 22 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 23 of 27 1 X. PRAYER FOR RELIEF 2 3 4 5 6 7 Wherefore Plaintiff prays for judgment against Defendants, and each of them, as follows: 1. Reinstatement with full back pay, benefits, service credits and retirement contributions; 2. For a money judgment representing compensatory damages including medical 8 expenses, both past and future, lost wages, earnings, lost retirement benefits and other 9 employee benefits, and all other sums of money, and all other special and general damages 10 according to proof, together with interest on these amounts, according to proof; 11 3. For an award of money judgment for emotional distress, according to proof; 12 4. For prejudgment and post-judgment interest; 13 5. For declaratory and affirmative and injunctive relief as follows: 14 (a) for an injunction restraining Defendants, and each of them, from continuing 15 or maintaining any policy, practice, custom or usage which discriminates 16 against any employee in violation of FEHA, Cal. Gov. Code §§ 12900 et seq.; 17 (b) for an injunction restraining Defendants, and each of them, along with their 18 supervising employees, agents and all those subject to its control or acting in 19 concert with it from causing, encouraging, condoning or permitting the practice 20 of discrimination, retaliation or willful violations of FEHA, Cal. Gov. Code §§ 21 12900 et seq.; 22 (c) for affirmative relief requiring Defendants, and each of them, to develop 23 clear and effective policies and procedures for employees complaining of 24 retaliation or violations of FEHA, Cal. Gov. Code §§ 12900 et seq., so they may 25 have their complaints promptly and thoroughly investigated (by a neutral fact 26 finder) and informal as well as formal processes for hearing, adjudication and 27 appeal of the complaints; and, 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 23 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 24 of 27 1 2 6. For attorney fees and costs including those allowed pursuant to federal law as wells as C.C.P. § 1021.5, Gov. Code § 12965(b), and 29 U.S.C. § 216(b). 3 7. For any other relief that is just and proper. 4 8. For punitive damages as set forth above. 5 6 Dated: January 19, 2019 LAW OFFICE OF FULVIO F. CAJINA 7 By: 8 9 /s/ FULVIO F. CAJINA Attorney for Plaintiff 10 11 12 13 JURY TRIAL DEMANDED Plaintiff hereby demands a jury trial on all causes of action and claims to which he has a right to jury trial. 14 15 Dated: January 19, 2019 LAW OFFICE OF FULVIO F. CAJINA 16 17 18 By: /s/ FULVIO F. CAJINA Attorney for Plaintiff 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 24 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 25 of 27 1 2 3 4 EXHIBIT 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _____________________________________________________________________________________________ FIRST AMENDED COMPLAINT FOR DAMAGES/ REQUEST FOR JURY TRIAL - 25 - Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 26 of 27 Case 4:18-cv-07141-DMR Document 8 Filed 01/19/19 Page 27 of 27