2013.07.15 gray complaint final
TRANSCRIPT
Complaint for Damages
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Daniel A. Reisman (SBN 250819) REISMAN & REISMAN 5900 Wilshire Blvd., Suite 2600 Los Angeles, CA 90036 Tel: (323) 330-0580 Fax: (323) 389-0694 Email: John J. Perlstein (SBN 149948) LAW OFFICE OF JOHN J. PERLSTEIN 5900 Wilshire Blvd., Suite 2600 Los Angeles, CA 90036 Tel: (213) 252-1070 Fax: (213) 252-1077 Email: [email protected] Attorneys for Plaintiff, JEFF GRAY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
JEFF GRAY, an individual, Plaintiff, v. FOX CABLE NETWORK SERVICES, LLC, a Delaware limited liability company; FOX SPORTS NET, INC., a Delaware corporation; FOX SPORTS, INC., a Delaware corporation; FOX NETWORKS GROUP, INC., a Delaware corporation; JANINE KERR, an individual; and DOES 1 through 50, inclusive, Defendants.
Case No.: COMPLAINT FOR DAMAGES:
(1) DISCRIMINATION BASED ON DISABILITY IN VIOLATION OF FEHA;
(2) FAILURE TO ACCOMMODATE DISABILITY IN VIOLATION OF FEHA;
(3) FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS IN VIOLATION OF FEHA;
(4) RETALIATION IN VIOLATION OF FEHA;
(5) FAILURE TO REMEDY AND PREVENT DISCRIMINATION AND HARASSMENT IN VIOLATION OF FEHA;
(6) HARASSMENT BASED ON DISABILITY IN VIOLATION OF FEHA
(7) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
JURY TRIAL DEMANDED
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Complaint for Damages
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Plaintiff Jeff Gray alleges causes of action against Defendants FOX Cable Network Services,
LLC, FOX Sports Net, Inc., FOX Networks Group, Inc., Janine Kerr, and Does 1 through 50,
inclusive, as follows:
Parties
1. Defendant FOX Cable Network, LLC is a Delaware limited liability company with
its principal place of business in Los Angeles, California. Defendant is an entity subject to suit
under the Fair Employment and Housing Act, Government Code section 12900, et seq. (“FEHA”).
2. Defendant FOX Sports Net, Inc. is a Delaware corporation with its principal place of
business in Los Angeles, California. Defendant is an entity subject to suit under FEHA.
3. Defendant FOX Sports, Inc. is a Delaware corporation with its principal place of
business in Los Angeles, California. Defendant is an entity subject to suit under FEHA.
4. At all time relevant to the allegations in this complaint, Defendants FOX Cable
Network Services, LLC, FOX Sports Net, Inc., FOX Sports, Inc., and FOX Networks Group, Inc.,
(collectively, “FOX Sports”), were a single employer, joint employer and/or integrated enterprise.
Facts supporting such conclusion include, among other things, that: (a) all or several of such
entities shared the same business location – 10201 West Pico Boulevard, Los Angeles, CA 90035 –
and operations and tools of trade (e.g., shared computers and other equipment, etc.); (b) employees
performed business activities directly or indirectly for, or on behalf of, all or several of such
entities; (c) all or several of such entities shared a common human resources department at FOX
Networks Group, Inc.; and (d) such entities were all owned and controlled, directly or indirectly, by
FOX Entertainment Group, Inc. and/or The News Corporation. In brief, they share an interrelation
of operations, common management, centralized control of labor relations, and common ownership
or financial control.
5. Plaintiff Jeff Gray is an individual who resides in Los Angeles County, California.
He is currently employed by FOX Sports.
6. Defendant Janine Kerr is an individual who, on information and belief, resides in
Los Angeles County, California. Kerr is employed by FOX Sports as Vice President of Music and
is Plaintiff’s direct supervisor.
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Complaint for Damages
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7. Plaintiff is ignorant of the true names and capacities of the defendants sued as Does
1 through 50, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will
amend this complaint to allege their true names and capacities when ascertained. On information
and belief, each of these fictitiously named defendants is responsible in some manner for the
occurrences alleged in the complaint, and said defendants proximately caused Plaintiff’s injuries.
Venue
8. This court is the proper venue because the unlawful employment practices and other
tortious acts alleged in this complaint occurred in Los Angeles County, California.
Factual Allegations
9. FOX Sports hired Plaintiff in 2010 as a Music Administrator. Essentially, Plaintiff’s
job responsibilities included clearing and licensing music for use in broadcast, negotiating
payment, and preparing cue sheets. Plaintiff has worked in music licensing for over a decade.
10. Plaintiff also has a disability. Specifically, Plaintiff is diagnosed with attention
deficit disorder or ADD. Often those who suffer from ADD are easily distractible and thus have
trouble concentrating on specific time-consuming tasks when subjected to various distractions. In
other words, multitasking can present a unique challenge from one who suffers from ADD.
11. In this case, Plaintiff sought to improve his job performance and requested a
reasonable accommodation for his disability. He requested that he be allowed time in half hour or
hour-long blocks where he could send phone calls straight to voicemail and not check his email so
he could focus on one task at times during the workday. Plaintiff requested the accommodation in
July 2012. Plaintiff initially made a written request directly to Kerr. Kerr acted dismissive and
hostile. She told Plaintiff that she didn’t even know what ADD was, and then tried to hand back the
request. Plaintiff told her that he was going to make the request directly to human resources, which
he did. Finally, in September 2012, Plaintiff received a formal response to his request.
12. Rather than engage in a good faith interactive process with Plaintiff, Defendants
began treating him differently from other employees in similar positions. First, Plaintiff was given
a regimented schedule specifying exactly how he was to spend his time while at work—no one else
at FOX Sports in similar positions is subjected to such a schedule. Similarly, Defendants required
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Complaint for Damages
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Plaintiff to keep a detailed log of how he spent all of his time each day – another requirement that
no other employee in a similar position must meet. Next, when Plaintiff complained that FOX
Sports’ odd version of an accommodation was insufficient, Defendants demoted Plaintiff on or
about November 26, 2012. Although Plaintiff’s title is still Music Administrator, he was stripped of
all job responsibilities except preparing cue sheets.
13. Kerr informed Plaintiff that the reason for his demotion was that he was not good at
music licensing, and he was too slow, and vendors had negative things to say about him.
Additionally, Defendant Kerr forbade Plaintiff from communicating with anyone outside the
company and outside Plaintiff’s department when Plaintiff’s job used to entail consistent
communication with clients and vendors outside of FOX Sports. Kerr even forbid Plaintiff him
from telling anyone his job description had changed; thus, Plaintiff continued to receive emails and
phone calls that he couldn’t return, which damaged his reputation within and without the company.
14. Around the same time, Kerr gave Plaintiff a hostile and unwarranted performance
review, criticizing him for all the same things and giving him the lowest score possible in every
category. By contrast, Plaintiff’s performance review for the prior year had been primarily positive.
Nothing significant had changed in Plaintiff’s job performance other than asking for a reasonable
accommodation for a disability, which he was ultimately denied.
15. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Department of Fair Employment and Housing (“DFEH”) on or
about December 19, 2012. A true and correct copy is attached as Exhibit A. After FOX Sports
received the complaint, it failed to take any corrective action, and the discriminatory and harassing
conduct directed toward Plaintiff escalated.
16. For example, Kerr subjected Plaintiff to ongoing unwarranted discipline. On or
about January 24, 2013, Kerr gave Plaintiff a “final warning” because he had responded to email
that was directed to him from an employee of FOX Sports, a FOX Sports producer. The email
Plaintiff sent consisted of two words: “thank you.” Apparently, that warranted putting Plaintiff one
step away from being terminated.
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Complaint for Damages
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17. As a further example, on or about March 5, 2013, Plaintiff, who was off the clock at
the time, attended a showcase featuring Leanne Rimes. Kerr approached Plaintiff in front of other
co-workers, pulled him aside and reprimanded him for failing to obtain her permission to go to the
event. When Plaintiff explained that he was not there in his capacity as an employee of FOX
Sports, but rather that he was invited by the Guild of Music Supervisors, Kerr became livid and
screamed at Plaintiff. She shouted, “you’re not a Music Supervisor” (meaning that Plaintiff
couldn’t possibly belong to the Guild) in a hostile and demeaning way. And she did it in front of
Plaintiff’s co-workers, which humiliated Plaintiff.
18. The following day, Kerr held a meeting with two of Plaintiff’s co-workers. She
instructed them to be her “eyes and ears” and report about Plaintiff’s behavior as much as possible
both when at work and when at off-the-clock events. She even wanted to know when Plaintiff
laughed.
19. Adding insult to injury, while in a meeting about two months later with Kerr and a
human resources representative, Plaintiff was reprimanded for being rude to Kerr at the event on
March 5.
20. Being on final warning also meant that Plaintiff would not be considered for a
promotion.
21. Next, on May 14, 2013, Defendants decreased Plaintiff’s job responsibilities even
further. They informed Plaintiff that he would no longer be handling “speed cues,” which was
always a part of his job description.
22. Most recently, on July 3, 2013, Kerr called Plaintiff into her office just to tell him
that he would not receive his regular yearly pay raise along with everyone else because Plaintiff is
on “final warning” and that Plaintiff has not improved at all. These are just a few examples of how
Defendants are engaging in discrimination, harassment, and creating an openly hostile work
environment for Plaintiff.
Exhaustion of Administrative Remedies
23. Plaintiff has exhausted his administrative remedies. Prior to the initiation of this
lawsuit, Plaintiff filed a complaint with the EEOC and DFEH, alleging claims in this complaint, on
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Complaint for Damages
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December 19, 2012. The DFEH immediately issued a right to sue letter on the same day. (True and
correct copies of the DFEH complaint the right to sue letter are attached as Exhibit A.) On July 15,
2013, Plaintiff filed another complaint with the DFEH alleging claims in this complaint. The DFEH
immediately issued a right to sue letter. (True and correct copies are attached as Exhibit B.)
First Cause of Action (Discrimination in Employment Based on Disability in Violation of FEHA)
(Against All Entity and Doe Defendants)
24. Paragraphs 1 through 23 are incorporated by this reference.
25. As detailed in the allegations above, during Plaintiff’s employment, Defendants, and
each of them, engaged in conduct and continue to engage in conduct that resulted in and continues
to result in Plaintiff being treated less favorably because of his disability. Additionally, Plaintiff has
been subject to several adverse employment actions, including but not limited to (a) demotion, (b)
unwarranted discipline, (c) reduction in job responsibilities, (d) being denied the opportunity for
promotion or advancement, and (e) being denied a regular increase in pay.
26. As a direct and proximate result of the discrimination of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and
additional amounts of money Plaintiff would have received if Plaintiff had not been subject to
adverse employment actions. As a result, Plaintiff has suffered such damages in an amount
according to proof.
27. As a further direct and proximate result of the discrimination of Defendants, and
each of them, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of
employment-related opportunities. As a result, Plaintiff has suffered such damages in an amount
according to proof.
28. As a further direct and proximate result of discrimination of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and
emotional distress, and has been harmed in mind and body. As a result, Plaintiff has suffered such
damages in an amount according to proof.
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Complaint for Damages
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29. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
Second Cause of Action (Failure to Accommodate Disability in Violation of FEHA)
(Against All Entity and Doe Defendants)
30. Paragraphs 1 through 29 are incorporated by this reference.
31. Government Code section 12940 required Defendants, and each of them, to make
reasonable accommodations for Plaintiff’s disability.
32. On information and belief, rather than accommodate Plaintiff’s disability,
Defendants, and each of them, demoted Plaintiff and subjected him to other adverse employment
actions as alleged above.
33. As a direct and proximate result of the conduct of Defendants, and each of them,
Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and
additional amounts of money Plaintiff would have received. As a result, Plaintiff has suffered such
damages in an amount according to proof.
34. As a further direct and proximate result of the conduct of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of employment-
related opportunities. As a result, Plaintiff has suffered such damages in an amount according to
proof.
35. As a further direct and proximate result of the conduct of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and
emotional distress, and has been harmed in mind and body. As a result, Plaintiff has suffered such
damages in an amount according to proof.
36. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
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Complaint for Damages
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Third Cause of Action (Failure to Engage in the Interactive Process in Violation of FEHA)
(Against All Entity and Doe Defendants)
37. Paragraphs 1 through 36 are incorporated by this reference.
38. Government Code section 12940(n) makes it unlawful “[f]or an employer or other
entity covered by this part to fail to engage in a timely, good faith interactive process with the
employee or applicant to determine effective reasonable accommodations, if any, in response to a
request for reasonable accommodation by an employee or applicant with a known physical or
mental disability or known medical condition.”
39. Government Code section 12926.1(e) states “The Legislature affirms the importance
of the interactive practice between the applicant or employee and the employer in determining a
reasonable accommodation, as the requirement has been articulated by the Equal Employment
Opportunity Commission in its interpretive guidance of the Americans with Disabilities Act.”
40. As set forth in the allegations above, Defendants, and each of them, were aware of
Plaintiff’s disability; Plaintiff requested blocks of time to focus on individual tasks as needed as an
accommodation.
41. Further, Defendants, and each of them, refused to engage in a timely good faith
process with Plaintiff to determine effective reasonable accommodations as required by California
Government Code sections 12940(n) and 12926.1(e).
42. Had Defendants, and each of them, engaged in a timely good faith interactive
process, there were reasonable accommodations that would have accommodated Plaintiff’s
disability.
43. As a direct and proximate result of the conduct of Defendants, and each of them,
Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and
additional amounts of money Plaintiff would have received if Plaintiff had been afforded a good
faith interactive process. As a result, Plaintiff has suffered such damages in an amount according to
proof.
44. As a further direct and proximate result of the conduct of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of employment-
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Complaint for Damages
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related opportunities. As a result, Plaintiff has suffered such damages in an amount according to
proof.
45. As a further direct and proximate result of the conduct of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and
emotional distress, and has been harmed in mind and body. As a result, Plaintiff has suffered such
damages in an amount according to proof.
46. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
Fourth Cause of Action (Retaliation in Violation of FEHA)
(Against All Entity and Doe Defendants)
47. Paragraphs 1 through 46 are incorporated by this reference.
48. Defendants, and each of them, retaliated against Plaintiff for engaging in the
protected activity of exercising his rights in seeking accommodation and for pursuing his claims
with a government agency in violation of FEHA through numerous acts as detailed above.
49. As a direct and proximate result of the retaliation of Defendants, and each of them,
Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and
additional amounts of money Plaintiff would have received but for the conduct of Defendants, and
each of them. As a result, Plaintiff has suffered such damages in an amount according to proof.
50. As a further direct and proximate result of the retaliation of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of employment-
related opportunities. As a result, Plaintiff has suffered such damages in an amount according to
proof.
51. As a further direct and proximate result of retaliation of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and
emotional distress, and has been harmed in mind and body. As a result, Plaintiff has suffered such
damages in an amount according to proof.
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Complaint for Damages
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52. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
Fifth Cause of Action (Failure to Remedy and Prevent Discrimination and Harassment in Violation of FEHA)
(Against All Entity and Doe Defendants)
53. Plaintiff incorporates paragraphs 1 through 52 by this reference.
54. FEHA requires employers to take “all reasonable steps necessary to prevent
discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).)
55. As alleged above, Plaintiff was and is subjected to severe and pervasive harassment
and discrimination based on his and disability.
56. Defendants, and each of them, failed to take all reasonable steps necessary to
prevent discrimination and. In addition, Defendants, and each of them, failed to remedy such
discrimination and harassment when they realized and were informed that it was occurring.
Defendants, and each of them, further failed to train, supervise, and monitor their employees and
agents.
57. The failure of Defendants, and each of them, to prevent discrimination and
harassment created and encouraged an environment where such discrimination and harassment was
condoned, encouraged, tolerated, sanctioned, and/or ratified.
58. As a direct and proximate result of the unlawful conduct of Defendants, and each of
them, Plaintiff has been harmed in that Plaintiff has suffered the loss of wages, salary, benefits, and
additional amounts of money Plaintiff. As a result, Plaintiff has suffered such damages in an
amount according to proof.
59. As a further direct and proximate result of the unlawful conduct of Defendants, and
each of them, Plaintiff has been harmed in that Plaintiff has suffered the intangible loss of
employment-related opportunities. As a result, Plaintiff has suffered such damages in an amount
according to proof.
60. As a further direct and proximate result of the unlawful conduct of Defendants, and
each of them, Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish,
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Complaint for Damages
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and emotional distress, and has been harmed in mind and body. As a result, Plaintiff has suffered
such damages in an amount according to proof.
61. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
Sixth Cause of Action (Harassment Based On Disability in Violation of FEHA)
(Against All Defendants)
62. Paragraphs 1 through 60 are incorporated by this reference.
63. As detailed above, Plaintiff was and continues to be subject to abusive conduct by
his supervisor and other co-workers due to his disability that was and is severe and pervasive,
altering the conditions of Plaintiff’s employment. The conduct was and is unreasonably abusive
and created an offensive and hostile work environment for Plaintiff and for any reasonable person
in Plaintiff’s position.
64. As a direct and proximate result of the harassment and abusive conduct of
Defendants, and each of them, Plaintiff has been harmed in that Plaintiff has suffered the loss of
wages, salary, benefits, and additional amounts of money Plaintiff would have received. As a
result, Plaintiff has suffered such damages in an amount according to proof.
65. As a further direct and proximate result of the harassment and abusive conduct of
Defendants, and each of them, Plaintiff has been harmed in that Plaintiff has suffered the intangible
loss of employment-related opportunities. As a result, Plaintiff has suffered such damages in an
amount according to proof.
66. As a further direct and proximate result of the harassment and abusive conduct of
Defendants, and each of them, Plaintiff has been harmed in that Plaintiff has suffered humiliation,
mental anguish, and emotional distress, and has been harmed in mind and body. As a result,
Plaintiff has suffered such damages in an amount according to proof.
67. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights under FEHA. Accordingly, Plaintiff
is entitled to an award of punitive damages.
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Complaint for Damages
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Seventh Cause of Action (Intentional Infliction of Emotional Distress)
(Against All Defendants)
68. Paragraphs 1 through 67 are incorporated by this reference.
69. By the conduct alleged above, Defendants, and each of them, acted outrageously,
with the intention to cause, or with reckless disregard of the probability of causing, Plaintiff severe
emotional distress.
70. This conduct, which was unprivileged and unwanted by Plaintiff, caused Plaintiff
severe emotional distress.
71. As a direct and proximate result of the conduct of Defendants, and each of them,
Plaintiff has been harmed in that Plaintiff has suffered humiliation, mental anguish, and emotional
distress. As a result, Plaintiff has suffered and will continue to suffer damages in an amount
according to proof.
72. The above-recited actions of Defendants, and each of them, were done with malice,
fraud, oppression, and in reckless disregard of Plaintiff’s rights. Accordingly, Plaintiff is entitled to
an award of punitive damages.
Prayer for Relief
WHEREFORE Plaintiff prays for judgment against Defendants, and each of them, as follows:
(a) For back pay, front pay, and other monetary relief according to proof;
(b) For general and special damages according to proof;
(c) For prejudgment interest according to proof;
(d) For reasonable attorneys’ fees and costs, including expert fees, pursuant to
Government Code section 12965(b), Code of Civil Procedure section 1021.5, and other
applicable laws;
(e) For punitive damages in an amount appropriate to punish Defendants, and each of
them, and deter others from engaging in similar misconduct;
(f) For costs of suit incurred herein;
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Complaint for Damages
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(g) For any other and further relief as the court deems just and proper.
DATED: July 15, 2013 REISMAN & REISMAN
By:_______________________________ Daniel A. Reisman Attorneys for Plaintiff, JEFF GRAY