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EMPLOYMENT LAW ASSIST, APC
Kasim Idrees (SBN 316196)
kasim@employmentlawassist.com
21777 Ventura Blvd., Suite 224
Woodland Hills, CA 91364
Telephone: (424) 234-5229
Attorney for Plaintiff,
ANDRE VILLAGOMEZ
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF ALAMEDA
ANDRE VILLAGOMEZ,
Plaintiff,
Case No.
COMPLAINT FOR DAMAGES FOR:
v.
1. VIOLATION OF CALIFORNIA LABOR
CODE § 98.6 – RETALIATION
TESLA, INC., dba TESLA MOTORS, INC., a
Delaware entity; and DOES 1 through 50,
inclusive,
2. VIOLATION OF CALIFORNIA LABOR
CODE § 1102.5 – RETALATION
Defendants.
3. VIOLATION OF CALIFORNIA LABOR
CODE § 6310 – RETALATION
15
4. VIOLATION OF CALIFORNIA
PUBLIC POLICY - WRONGFUL
DISCHARGE
16
17
5. VIOLATION OF CALIFORNIA LABOR
CODE § 1182.12 - UNPAID WAGES
18
6. VIOLATION OF CALIFORNIA LABOR
CODE § 510 - FAILURE TO PAY
OVERTIME
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7. VIOLATION OF CALIFORNIA LABOR
CODE § 204 - FAILURE TO PAY
TIMELY WAGES
21
22
8. VIOLATION OF CALIFORNIA LABOR
CODE § 226 - FAILURE TO PROVIDE
ACCURATE, ITEMIZED WAGE
STATEMENTS
23
24
25
9. VIOLATION OF CALIFORNIA LABOR
CODE § 203 - WAITING TIME
PENALTY
26
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10. VIOLATION OF CALIFORNIA LABOR
CODE § 226(b) and § 1198.5 - FAILURE
TO PERMIT INSPECTION OF
PERSONNEL AND PAYROLL
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-1COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 2 RECORDS
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[DEMAND FOR JURY TRIAL]
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Plaintiff Andre Villagomez (“Mr. Villagomez” or “Plaintiff”), hereby submits this Complaint
6
against TESLA, INC., dba TESLA MOTORS, INC., a Delaware entity, and DOES 1 through 50
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(collectively, “DEFENDANTS”), and each of them, and alleges as follows:
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JURISDICTION AND VENUE
1.
This Court is the proper court, and this action is properly filed in Alameda County,
10
because DEFENDANTS’ obligations and liability arise therein, because DEFENDANTS maintain
11
offices and transact business within Alameda County, and because the work that is the subject of this
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action was performed by Plaintiff in Alameda County.
13
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2.
Subject matter in this action is properly heard in this Court, as the action incorporates
an amount in controversy as set forth in the Complaint, which exceeds $25,000.00.
15
16
THE PARTIES
3.
Plaintiff, Andre Villagomez (“Mr. Villagomez” or “Plaintiff”), is an adult natural
17
person who is a resident of the State of California. At all times relevant to this Complaint, he worked
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for DEFENDANTS in the County of Alameda, State of California.
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4.
At all material times alleged herein, Plaintiff was a “person” within the meaning of
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Government Code §§ 12925(d) and 12940(a), and an “employee” within the meaning of Government
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Code § 12926(c).
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5.
Defendant TESLA, INC., dba TESLA MOTORS, INC., (“Defendant TESLA”) is a
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Delaware entity, registered with the California Secretary of State to do business in California under
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the name TESLA MOTORS, INC. (with a registered “Foreign Name” of TESLA, INC.), in fact doing
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business in the County of Alameda, and is an entity subject to suit before this Court. At times during
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his employment, Plaintiff was paid by “TESLA MOTORS,” however, upon information and belief, in
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2017, TESLA MOTORS, INC. became TESLA, INC.; the Delaware Department of State no longer
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-2COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 3 1
reflects any entity by the name “TESLA MOTORS” or “TESLA MOTORS, INC.” Defendant
2
TESLA acted by and through its officers, managers, owners, and/or other agents.
3
6.
The true names and capacities, whether individual, corporate, associate, or otherwise of
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DEFENDANTS named herein as DOES 1-50, inclusive, are unknown to Plaintiff at this time and
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therefore said DEFENDANTS are sued by such fictitious names. Plaintiff will seek leave to amend
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this Complaint to insert the true names and capacities of said DEFENDANTS when the same become
7
known to Plaintiff.
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fictitiously named DEFENDANTS is responsible for the wrongful acts alleged herein and is therefore
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liable to Plaintiff as alleged hereinafter.
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7.
Plaintiff is informed and believes and thereupon alleges that each of the
Plaintiff is informed and believes, and based thereupon alleges, that at all times
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relevant hereto, DEFENDANTS, and each of them, were the agents, employees, managing agents,
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supervisors, conspirators, parent corporation, joint employers, alter ego, and/or joint ventures of the
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other DEFENDANTS, and each of them, and in doing the things alleged herein, were acting at least in
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part within the course and scope of said agency, employment, conspiracy, joint employment, alter ego
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status, and/or joint venture and with the permission and consent of each of the other DEFENDANTS.
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8.
Plaintiff is informed and believes, and based thereupon alleges, that DEFENDANTS,
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and each of them, including those DEFENDANTS named DOES 1-50, acted in concert with one
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another to commit the wrongful acts alleged therein, and aided, abetted, incited, compelled, and/or
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coerced one another in the wrongful acts alleged herein, and/or attempted to do so. Plaintiff is further
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informed and believes, and based thereupon alleges, that the DEFENDANTS, and each of them,
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including those DEFENDANTS named as DOES 1-50, formed and executed a conspiracy or common
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plan pursuant to which they would commit the unlawful acts alleged herein, with all such acts alleged
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herein done as part of and pursuant to said conspiracy, intended to and actually causing Plaintiff harm.
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9.
Whenever and wherever reference is made in this Complaint to any act or failure to act
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by a defendant or co- defendant, such allegations and references shall also be deemed to mean the acts
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and/or failures to act by each defendant acting individually, jointly and severally.
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-3COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 4 1
10.
At all material times alleged herein, DEFENDANTS were an “employer” within the
2
meaning of Government Code §§ 12940(j)(4) and 12926(d), and regularly employed five (5) or more
3
persons.
4
11.
Pursuant to Labor Code § 558.1, any person acting on behalf of an employer (limited to
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a natural person who is an owner, director, officer, or managing agent of the employer) who violates,
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or causes to be violated, any provision regulating minimum wages or hours and days of work in any
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order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226,
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226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.
FACTUAL ALLEGATIONS
9
10
12.
In or about December of 2020, DEFENDANTS hired Mr. Villagomez to serve as a
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production associate at DEFENDANTS’ facility located in Fremont, California, as an hourly, or non-
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exempt employee (with an approximate rate of pay of $21.50 per hour).
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13.
Mr. Villagomez generally worked full-time on varying days of the week and his duties
14
included, but were not limited to, locating parts and materials, assisting with product assembly,
15
cleaning, and ensuring quality control. Throughout his time of employment, Mr. Villagomez was a
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reliable employee and was given bonuses in recognition of his positive work performance; he had no
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known official disciplinary action (prior to being terminated, described infra).
18
14.
On or about August 14, 2021, DEFENDANTS distributed new badges to employees
19
which were required to clock in and out for shifts. Mr. Villagomez’s new badge apparently did not
20
function properly, as he noticed his hours were not properly recorded on DEFENDANTS’ time
21
clocking system (Kronos).
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Villagomez’s timesheets. Due to the inaccurate timesheets caused by persistent badge issues, Mr.
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Villagomez frequently experienced issues with receiving all of his earned wages in a timely manner,
24
despite repeatedly notifying DEFENDANTS’ management of the issue.
25
15.
In addition, absences which did not occur were reflected on Mr.
On August 18, 2021, Mr. Villagomez reached out to a manager named Jabori via text
26
regarding the badge issues and missing hours that resulted, writing in part: “my badge hasn’t been
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working for the past couple days for me to clock in at Kronos b[u]t I haven’t missed any days this pay
28
period.” Jabori responded stating that he would investigate it “tomorrow”; however, the issue was not
-4COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 5 1
properly corrected, and DEFENDANTS failed to pay Mr. Villagomez his full earned wages for a
2
number of subsequent pay periods.
3
16.
On August 26, 2021, Mr. Villagomez reached out to a manager named Carlos Cruz
4
(“Cruz”) via text to address the malfunctioning badge issues stating, “I believe I’m missing Alottt of
5
hours again,” but the issue remained uncorrected, and wages owed to Mr. Villagomez were not paid
6
when due.
7
17.
DEFENDANTS often required Mr. Villagomez to clean large robots in a particular
8
room which was subject to a safety protocol called “lock out - tag out,” during which locks given to
9
each employee would be implemented to disable the moving robots to ensure their safety while
10
11
cleaning (“safety lock”).
18.
During his employment, Mr. Villagomez worked for an extended period of time
12
without a safety lock. Mr. Villagomez complained to manager Cruz that he felt unsafe without the use
13
of a lock. Cruz responded: “Well, you have to go in there anyways.”
14
19.
In or about August of 2021, Mr. Villagomez was forced to attempt to clean an
15
approximately 12-foot-tall robot of DEFENDANTS without the proper safety lock (described supra)
16
and a moving part of the robot almost struck him.
17
20.
Mr. Gomez complained to DEFENDANTS’ Human Resources Manager about the
18
safety violations regarding the robot and lack of safety lock, in addition to the ongoing issue of
19
outstanding pay due to badge malfunctions (described supra). DEFENDANTS’ Human Resources
20
Manager failed to address or remedy Mr. Villagomez’s concerns (and would later terminate Mr.
21
Villagomez for a blatantly pretextual reason, described infra). After Mr. Villagomez’s complaints of
22
safety violations, DEFENDANTS’ supervisors and Human Resources managers became increasingly
23
avoidant in addressing his wage complaints.
24
21.
On August 20, 2021, Mr. Villagomez received an email from DEFENDANTS which
25
promised a $500.00 bonus to non-exempt production employees at his location for each weekend
26
worked until September 30, 2021 (“weekend bonus period”).
27
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22.
Mr. Villagomez worked two weekends during the weekend bonus period, yet his
promised bonus pay was not reflected in his wages.
-5COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 6 1
23.
Between August and December of 2021, Mr. Villagomez complained about his
2
persistent unpaid wages (due to incorrectly logged hours related to badge malfunctioning) as well as
3
his unpaid bonus pay (described supra) to numerous managers of DEFENDANTS, including Jabori,
4
Cruz, Martier, Human Resources Manager Dominique Alley, Human Resources Manager Jacklyn
5
Nguyen, Human Resources Manager Kitty Kha, and Human Resources Manager Ellen Welty.
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DEFENDANTS’ late wage payments, unpaid owed wages, and unpaid owed bonus pay persisted. As
7
reflected in many email and text correspondences between Mr. Villagomez and DEFENDANTS’
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managers, Mr. Villagomez expressed the urgency of the situation and the impact on his financial well-
9
being; however, he was consistently either referred to other managers or dismissed without resolution.
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11
12
24.
By way of example, on November 19, 2021, Mr. Villagomez emailed Human
Resources Manager Dominique Alley:
Good morning Dominique,
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I spoke with you earlier this week about missing hours and how it’s been a couple
14
months and I still haven’t gotten paid. I was really hoping to have this problem resolved no
15
later than today. unfortunately for whatever reason. It still hasn’t be resolved and at this point
16
I’m very disappointed because this is regular pay and Bonus pay. I’ve mentioned my lively
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hood is at stake & that I’ve been waiting for over a couple months now. I’ve brought it to my
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managers attention on multiple occasions via email via text and in person and had already
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brought this up to HR. If you can please contact me today ASAP. It would be greatly
20
appreciated thank you hope you have a wonderful day.
Andre Villagomez
21
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25.
Through December of 2021, Mr. Villagomez continued to make complaints and
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request assistance from DEFENDANTS’ Human Resources regarding his unresolved work and wage
24
issues (described supra).
25
26.
On or about December 14, 2021, DEFENDANTS accused Mr. Villagomez of
26
falsifying timecards for a pay period in September of 2021, then abruptly terminated Mr.
27
Villagomez’s employment over the allegation.
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-6COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 7 1
2
27.
The accusation that Mr. Villagomez falsified timecards three months prior was
unquestionably a pretext to wrongfully terminate him, considering:
3
A.
Also present when Mr. Villagomez was accused of falsifying timecards was
4
manager Juan Carlos (“Carlos”), who immediately admitted that the timecard
5
discrepancies were no fault of Mr. Villagomez and were simply due to Carlos
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incorrectly entering his hours;
7
B.
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was false, Human Resources Manager Anthony Martier (“Martier”) proceeded with the
9
employment termination, saying, “This is not a Q and A. You’re still being terminated
Despite Mr. Villagomez’s protest and Carlos’ confirmation that the accusation
10
for falsifying timecards”;
11
C.
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and safety issues, and after Martier failed to fully correct the issues, Mr. Villagomez
13
had to elevate his complaints to other members of DEFENDANTS’ Human Resources
14
(described supra);
15
D.
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warning for the alleged infraction he was being terminated for (which was false); and
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E.
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for unpaid wages from months prior, which Mr. Villagomez had repeatedly complained
19
about to Human Resources, most recently less than two weeks before being terminated.
20
28.
Mr. Villagomez had previously complained to Martier about his unpaid wages
Mr. Villagomez had no history of disciplinary actions and never received a
At the time of Mr. Villagomez’s termination, DEFENDANTS still owed him
Accordingly, Mr. Villagomez believes and avers DEFENDANTS wrongfully
21
terminated him in retaliation for him opposing and complaining about DEFENDANTS’ failure to pay
22
proper wages and safety issues.
23
24
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29.
Additionally, DEFENDANTS failed to provide Mr. Villagomez with his wage records,
despite multiple requests in writing from Mr. Villagomez immediately following his termination.
FIRST CAUSE OF ACTION
26
VIOLATION OF CALIFORNIA LABOR CODE § 98.6 – RETALIATION
27
AGAINST ALL DEFENDANTS
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-7COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 8 30.
1
2
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
31.
3
Labor Code §98.6 states that: “a person shall not discharge an employee or in any
4
manner discriminate, retaliate, or take any adverse action against any employee or applicant for
5
employment because the employee or applicant engaged in any conduct delineated in this chapter,
6
including…[filing] a bona fide complaint or claim or instituted or caused to be instituted any
7
proceeding under or relating to his or her rights that are under the jurisdiction of the Labor
8
Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the
9
employee has initiated any action or notice pursuant to §2699, or has testified or is about to testify in a
10
proceeding pursuant to that section, or because of the exercise by the employee or applicant for
11
employment on behalf of himself, herself, or others of any rights afforded him or her.”
32.
12
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DEFENDANTS’ management and Human Resources about his earned but unpaid wages and bonuses.
14
15
33.
DEFENDANTS failed to properly address Plaintiff’s concerns and never fully resolved
34.
Plaintiff suffered an adverse employment action when DEFENDANTS terminated him
them.
16
17
Plaintiff engaged in protected activity on many occasions by complaining to
after he engaged in protected activity.
35.
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DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
19
which he had engaged in less than two weeks before the blatantly pretextual termination (described
20
supra).
36.
21
22
§ 98.6. Such violations were a proximate cause in Plaintiff’s damage as stated below.
37.
23
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DEFENDANTS’ conduct constitutes retaliation in violation of California Labor Code
Labor Code § 98.6 provides, “[i]n addition to other remedies available…a civil penalty
not exceeding ten thousand dollars ($10,000)” for each violation.
38.
25
As a result, DEFENDANTS are liable to Plaintiff for statutory damages, and other
26
damages as set forth below.
27
///
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///
-8COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 9 SECOND CAUSE OF ACTION
1
2
VIOLATION OF CALIFORNIA LABOR CODE § 1102.5 – RETALATION
3
AGAINST ALL DEFENDANTS
39.
4
5
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
40.
6
Labor Code §1102.5 states that: “An employer, or any person acting on behalf of the
7
employer, shall not retaliate against an employee for disclosing information, or because the employer
8
believes that the employee disclosed or may disclose information, to a government or law
9
enforcement agency, to a person with authority over the employee or another employee who has the
10
authority to investigate, discover, or correct the violation or noncompliance, or for providing
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information to, or testifying before, any public body conducting an investigation, hearing, or inquiry,
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if the employee has reasonable cause to believe that the information discloses a violation of state or
13
federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation,
14
regardless of whether disclosing the information is part of the employee’s job duties.”
41.
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Plaintiff engaged in protected activity on many occasions by complaining to
16
DEFENDANTS’ management and Human Resources about his earned but unpaid wages and bonuses,
17
as well as safety concerns.
18
19
DEFENDANTS failed to properly address Plaintiff’s concerns and never fully resolved
43.
Plaintiff suffered an adverse employment action when DEFENDANTS terminated him
them.
20
21
42.
after he engaged in protected activity.
44.
22
DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
23
which he had engaged in less than two weeks before the blatantly pretextual termination (described
24
supra).
25
45.
Labor Code § 1102.5 also provides, “[i]n addition to other penalties, an employer that
26
is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand
27
dollars ($10,000) for each violation of this section.”
28
-9COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 10 1
46.
The actions of DEFENDANTS against Plaintiff constitutes unlawful retaliation, in
2
violation of Labor Code § 1102.5. Such violations were a proximate cause in each Plaintiff’s
3
damages as stated below.
4
THIRD CAUSE OF ACTION
5
VIOLATION OF CALIFORNIA LABOR CODE § 6310 – RETALATION
6
AGAINST ALL DEFENDANTS
7
8
9
47.
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
48.
Labor Code § 6310 prohibits employers from firing or discriminating against any
10
employee, or the employee’s family member, because the employee has informed their employer
11
about unsafe working conditions or practices.
12
49.
Plaintiff engaged in protected activity by complaining about unsafe working conditions
13
in connection with DEFENDANTS’ failure to provide Plaintiff a safety lock and, subsequently, the
14
dangerous circumstances it created (described supra).
15
16
17
18
19
50.
DEFENDANTS failed to properly address Plaintiff’s concerns and instead insisted that
Plaintiff proceed with unsafe working conditions.
51.
DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
terminating him for blatantly pretextual reasons (described supra).
52.
The actions of DEFENDANTS against Plaintiff constitutes unlawful retaliation, in
20
violation of Labor Code § 6310. Such violations were a proximate cause in Plaintiff’s damages as
21
stated below.
22
FOURTH CAUSE OF ACTION
23
VIOLATION OF CALIFORNIA PUBLIC POLICY
24
WRONGFUL DISCHARGE
25
AGAINST ALL DEFENDANTS
26
27
53.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
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-10COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 11 1
54.
At all times mentioned in this complaint, it was a fundamental policy of the State of
2
California that DEFENDANTS cannot discriminate and/or retaliate against any employee on the basis
3
of engagement in legally protected activity.
4
55.
As described in Causes of Action One through Three (supra), DEFENDANTS’
5
terminated Plaintiff for engaging in protected activity, in violation of California Labor Code §§ 98.6,
6
1102.5, and 6310.
7
56.
DEFENDANTS’ actions were in violation of California public policy.
8
57.
As a proximate result of the acts of DEFENDANTS, and each of them, Plaintiff has
9
suffered and will continue to suffer damages, as stated below.
10
FIFTH CAUSE OF ACTION
11
VIOLATION OF CALIFORNIA LABOR CODE § 1182.12
12
UNPAID WAGES
13
AGAINST ALL DEFENDANTS
14
15
16
58.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
59.
Under California Labor Code § 1182.12 and the Industrial Welfare Commission (IWC)
17
Minimum Wage Order for 2021, the minimum wage for all industries shall not be less than the
18
amount of $13.00 per hour for any employer who employs 25 or less employees, and $14.00 if the
19
employer employs more than 26 employees. The minimum wage for the year 2020 was $12.00 for
20
employers who employ 25 or less employees and $13.00 if the employer employs more than 26
21
employees. The minimum wage for the year 2019 was $11.00 for employers who employ 25 or less
22
employees and $12.00 if the employer employs more than 26 employees.
23
24
25
60.
Labor Code § 1194.2 provides the amount of unpaid regular wages as a penalty as
liquidated damages equal to the amount of the unpaid minimum wages incurred.
61.
DEFENDANTS’ failed to compensate Plaintiff for all hours worked, including failing
26
to compensate for a 12-hour shift worked on or about August 28, 2021 and failing to compensate
27
Plaintiff for the agreed-upon bonus ($500) for working at least one weekend.
28
62.
DEFENDANTS’ conduct was willful.
-11COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 12 1
2
63.
DEFENDANTS are liable to Plaintiff in the amount of Plaintiff’s unpaid wages plus an
additional sum for liquidated damages, in the amount of unpaid wages.
3
SIXTH CAUSE OF ACTION
4
VIOLATION OF CALIFORNIA LABOR CODE § 510 - FAILURE TO PAY OVERTIME
5
AGAINST ALL DEFENDANTS
6
7
8
64.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
65.
Pursuant to California Labor Code §§ 510, 1194, 1198 and IWC Wage Orders,
9
employers are required to compensate non-exempt employees for all overtime, which is calculated at
10
one and one-half (1½) times the regular rate of pay for all hours worked in excess of eight (8) hours
11
per day and/or forty (40) hours per week, and for the first eight (8) hours on the seventh consecutive
12
workday, with double time for all hours worked in excess of twelve (12) hours in any workday and for
13
all hours worked in excess of eight (8) hours on the seventh consecutive day of work in any
14
workweek.
15
66.
16
IWC Wage Orders.
17
67.
Plaintiff is entitled to the protections of California Labor Code §§ 510, 1194, 1198, and
DEFENDANTS failed to compensate Plaintiff for all overtime hours worked as
18
required under the foregoing provisions of the California Labor Code and IWC Wage Order because
19
DEFENDANTS failed to pay for at least one 12 hour shift worked by Plaintiff, on or about August 28,
20
2021, which included at least 4 hours of overtime pay.
21
68.
DEFENDANTS’ conduct described herein violates California Labor Code §§ 510,
22
1194, 1198 and IWC Wage Orders. Therefore, pursuant to California Labor Code 28 §§ 200, 203,
23
226, 558, 1194, 1197.1, and other applicable provisions under the California Labor Code and IWC
24
Wage Orders, Plaintiff is entitled to recover the unpaid balance of wages owed by DEFENDANTS,
25
plus interest, liquidated damages, penalties, attorneys' fees, expenses, and costs.
26
SEVENTH CAUSE OF ACTION
27
VIOLATION OF CALIFORNIA LABOR CODE § 204
28
FAILURE TO PAY TIMELY WAGES
-12COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 13 AGAINST ALL DEFENDANTS
1
2
3
4
69.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
70.
Labor Code § 204 provides in pertinent part “all wages,…, earned by any person in any
5
employment are due and payable twice during each calendar month, on days designated in advance by
6
the employer as the regular paydays.”
7
71.
Under Labor Code § 210, employees are entitled to recover a penalty of $100 for the
8
initial failure to timely pay the employee all of the wages earned, $200 for each subsequent failure to
9
pay in compliance with Labor Code § 204, and employees are entitled to recover an additional amount
10
11
12
13
14
15
16
equal to 25% of the unlawfully withheld wages.
72.
DEFENDANTS failed to timely pay all of Plaintiff’s earned wages for each pay period
from August of 2021 until termination in December of 2021.
73.
For DEFENDANTS’ initial violation and subsequent violations of the Labor Code,
DEFENDANTS are liable to Plaintiff for unpaid compensation and statutory penalties.
74.
Plaintiff believes he is owed approximately $1,900.00 for DEFENDANTS
approximately 10 violations ($100 (initial violation) + $1800 (9 subsequent violations)).
17
EIGHTH CAUSE OF ACTION
18
VIOLATION OF CALIFORNIA LABOR CODE § 226
19
FAILURE TO PROVIDE ACCURATE, ITEMIZED WAGE STATEMENTS
20
AGAINST ALL DEFENDANTS
21
22
23
75.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
76.
California Labor Code § 226 requires every employer, semi-monthly or at the time of
24
each payment of wages, to furnish each of its employees, either as a detachable part of the check,
25
draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check
26
or cash, an accurate itemized statement in writing showing, among other things, (1) gross wages
27
earned, (2) total hours worked by the employee, (3) all deductions, (4) net wages earned, and (5) all
28
-13COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 14 1
applicable hourly rates in effect during each respective pay period and the corresponding number of
2
hours worked at each hourly rate by each respective individual.
3
77.
Employees are entitled to $50 for the first pay period in which a violation occurs and
4
$100 for any subsequent pay period in which violations occur, per employee, up to a maximum
5
penalty of $4,000.
6
78.
Plaintiff did not receive wage statements containing all requirements under California
7
Labor Code § 226, such as all regular and overtime hours worked from August of 2021 through
8
December of 2021.
9
79.
As a result, DEFENDANTS are liable for statutory penalties to Plaintiff.
10
80.
Plaintiff is owed approximately $950.00 ($50 (initial violation) + (9 paystubs x $100))
11
for DEFENDANTS’ violations.
12
NINTH CAUSE OF ACTION
13
VIOLATION OF CALIFORNIA LABOR CODE § 203
14
WAITING TIME PENALTY
15
AGAINST ALL DEFENDANTS
16
17
18
81.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
82.
Labor Code § 203 imposes a waiting time penalty on an employer that willfully fails to
19
pay any earned, but unpaid, wages of an employee who is discharged or quits at a rate of one normal
20
day’s worth of pay up to a maximum of 30 days.
21
83.
DEFENDANTS failed to pay Plaintiff all wages due at the time his employment ended.
22
84.
DEFENDANTS subsequently failed to pay Plaintiff all earned, but unpaid, wages due,
23
for over thirty (30) days.
24
85.
As a result, DEFENDANTS are liable for statutory penalties to Plaintiff.
25
86.
Plaintiff is owed approximately $5,160.00 ($21.50 per hour x 8 hours x 30 days).
26
TENTH CAUSE OF ACTION
27
VIOLATION OF CALIFORNIA LABOR CODE § 226(b) and § 1198.5
28
FAILURE TO PERMIT INSPECTION OF PERSONNEL AND PAYROLL RECORDS
-14COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 15 AGAINST ALL DEFENDANTS
1
2
3
4
87.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
88.
Labor Code § 226 (b) requires an employer to afford current and former employees the
5
right to inspect or copy records pertaining to their employment, upon reasonable request to the
6
employer.
7
89.
Labor Code §1198.5 requires an employer, within thirty (30) days of a written request
8
thereof, to allow an employee to inspect or receive a copy of an employee’s personnel and payroll
9
records. An employer’s failure to do so subjects the employer to a $750.00 penalty, payable to the
10
employee.
11
90.
On or about December 17 and 20, 2021, Plaintiff made a written request to
12
DEFENDANTS to inspect or receive a copy of his wage statements from August 2021 through the
13
end of his employment.
14
91.
DEFENDANTS failed and refused to permit Plaintiff’s inspection of personnel and
15
payroll records, and failed to provide a copy of Plaintiff’s personnel and payroll records within the
16
time required by Labor Code §1198.5.
17
18
92.
As a result of DEFENDANTS’ failure and refusal to comply with Labor Code §1198.5,
Plaintiff is entitled to recover from DEFENDANTS a civil penalty of $750.00.
19
PRAYER FOR RELIEF
20
21
22
WHEREFORE, Plaintiff Andre Villagomez seeks judgment against DEFENDANTS, and each
of them, in an amount according to proof but estimated to be no less than $1,000,000, as follows:
23
1. For all special, incidental, and/or compensatory damages, including but not limited to lost
24
wages, earnings, commissions, employee benefits, lost earning capacity and future
25
benefits, and all other sums of money to make Plaintiff whole, together with interest on
26
these amounts;
27
28
2. For all general damages, including for mental pain and anguish and emotional distress and
loss of earning capacity;
-15COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 16 1
3. For any and all available statutory penalties;
2
4. For a declaratory judgment reaffirming Plaintiff’s equal standing under the law and
3
condemning DEFENDANTS’ discriminatory practices;
4
5. For injunctive relief barring DEFENDANTS’ discriminatory employment policies and
5
practices in the future, and restoring Plaintiff to Plaintiff’s former position with
6
DEFENDANTS;
7
6. For punitive damages, pursuant to Civil Code §§3294 in amounts sufficient to punish
8
DEFENDANTS for the wrongful conduct alleged herein and to deter such conduct in the
9
future;
10
11
12
13
14
15
7. For exemplary and punitive damages, in amounts sufficient to punish DEFENDANTS for
the wrongful conduct alleged herein and to deter such conduct in the future;
8. For costs of suit, attorneys’ fees, and expert witness fees pursuant to the Labor Code,
FEHA and/or any other basis;
9. For prejudgment interest on each of the foregoing at the legal rate from the date the
obligation became due through the date of judgment in this matter;
16
10. For post-judgment interest; and
17
11. For any and all other available relief that is just and proper.
18
19
20
DATED: June 22, 2023
EMPLOYMENT LAW ASSIST, APC
21
22
______________________________
23
Kasim Idrees
Attorney for Plaintiff
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-16COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIALPage 17 JURY TRIAL DEMAND
1
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Plaintiff hereby demands a trial by jury on all applicable claims in this case.
DATED: June 22, 2023
EMPLOYMENT LAW ASSIST, APC
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7
______________________________
Kasim Idrees
Attorney for Plaintiff
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-17COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
PDF Page 1
PlainSite Cover Page
PDF Page 2
1
2
3
4
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EMPLOYMENT LAW ASSIST, APC
Kasim Idrees (SBN 316196)
kasim@employmentlawassist.com
21777 Ventura Blvd., Suite 224
Woodland Hills, CA 91364
Telephone: (424) 234-5229
Attorney for Plaintiff,
ANDRE VILLAGOMEZ
6
SUPERIOR COURT OF THE STATE OF CALIFORNIA
7
8
9
10
11
12
13
14
FOR THE COUNTY OF ALAMEDA
ANDRE VILLAGOMEZ,
Plaintiff,
Case No.
COMPLAINT FOR DAMAGES FOR:
v.
1. VIOLATION OF CALIFORNIA LABOR
CODE § 98.6 – RETALIATION
TESLA, INC., dba TESLA MOTORS, INC., a
Delaware entity; and DOES 1 through 50,
inclusive,
2. VIOLATION OF CALIFORNIA LABOR
CODE § 1102.5 – RETALATION
Defendants.
3. VIOLATION OF CALIFORNIA LABOR
CODE § 6310 – RETALATION
15
4. VIOLATION OF CALIFORNIA
PUBLIC POLICY - WRONGFUL
DISCHARGE
16
17
5. VIOLATION OF CALIFORNIA LABOR
CODE § 1182.12 - UNPAID WAGES
18
6. VIOLATION OF CALIFORNIA LABOR
CODE § 510 - FAILURE TO PAY
OVERTIME
19
20
7. VIOLATION OF CALIFORNIA LABOR
CODE § 204 - FAILURE TO PAY
TIMELY WAGES
21
22
8. VIOLATION OF CALIFORNIA LABOR
CODE § 226 - FAILURE TO PROVIDE
ACCURATE, ITEMIZED WAGE
STATEMENTS
23
24
25
9. VIOLATION OF CALIFORNIA LABOR
CODE § 203 - WAITING TIME
PENALTY
26
27
10. VIOLATION OF CALIFORNIA LABOR
CODE § 226(b) and § 1198.5 - FAILURE
TO PERMIT INSPECTION OF
PERSONNEL AND PAYROLL
28
-1COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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RECORDS
1
2
[DEMAND FOR JURY TRIAL]
3
4
5
Plaintiff Andre Villagomez (“Mr. Villagomez” or “Plaintiff”), hereby submits this Complaint
6
against TESLA, INC., dba TESLA MOTORS, INC., a Delaware entity, and DOES 1 through 50
7
(collectively, “DEFENDANTS”), and each of them, and alleges as follows:
8
9
JURISDICTION AND VENUE
1.
This Court is the proper court, and this action is properly filed in Alameda County,
10
because DEFENDANTS’ obligations and liability arise therein, because DEFENDANTS maintain
11
offices and transact business within Alameda County, and because the work that is the subject of this
12
action was performed by Plaintiff in Alameda County.
13
14
2.
Subject matter in this action is properly heard in this Court, as the action incorporates
an amount in controversy as set forth in the Complaint, which exceeds $25,000.00.
15
16
THE PARTIES
3.
Plaintiff, Andre Villagomez (“Mr. Villagomez” or “Plaintiff”), is an adult natural
17
person who is a resident of the State of California. At all times relevant to this Complaint, he worked
18
for DEFENDANTS in the County of Alameda, State of California.
19
4.
At all material times alleged herein, Plaintiff was a “person” within the meaning of
20
Government Code §§ 12925(d) and 12940(a), and an “employee” within the meaning of Government
21
Code § 12926(c).
22
5.
Defendant TESLA, INC., dba TESLA MOTORS, INC., (“Defendant TESLA”) is a
23
Delaware entity, registered with the California Secretary of State to do business in California under
24
the name TESLA MOTORS, INC. (with a registered “Foreign Name” of TESLA, INC.), in fact doing
25
business in the County of Alameda, and is an entity subject to suit before this Court. At times during
26
his employment, Plaintiff was paid by “TESLA MOTORS,” however, upon information and belief, in
27
2017, TESLA MOTORS, INC. became TESLA, INC.; the Delaware Department of State no longer
28
-2COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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1
reflects any entity by the name “TESLA MOTORS” or “TESLA MOTORS, INC.” Defendant
2
TESLA acted by and through its officers, managers, owners, and/or other agents.
3
6.
The true names and capacities, whether individual, corporate, associate, or otherwise of
4
DEFENDANTS named herein as DOES 1-50, inclusive, are unknown to Plaintiff at this time and
5
therefore said DEFENDANTS are sued by such fictitious names. Plaintiff will seek leave to amend
6
this Complaint to insert the true names and capacities of said DEFENDANTS when the same become
7
known to Plaintiff.
8
fictitiously named DEFENDANTS is responsible for the wrongful acts alleged herein and is therefore
9
liable to Plaintiff as alleged hereinafter.
10
7.
Plaintiff is informed and believes and thereupon alleges that each of the
Plaintiff is informed and believes, and based thereupon alleges, that at all times
11
relevant hereto, DEFENDANTS, and each of them, were the agents, employees, managing agents,
12
supervisors, conspirators, parent corporation, joint employers, alter ego, and/or joint ventures of the
13
other DEFENDANTS, and each of them, and in doing the things alleged herein, were acting at least in
14
part within the course and scope of said agency, employment, conspiracy, joint employment, alter ego
15
status, and/or joint venture and with the permission and consent of each of the other DEFENDANTS.
16
8.
Plaintiff is informed and believes, and based thereupon alleges, that DEFENDANTS,
17
and each of them, including those DEFENDANTS named DOES 1-50, acted in concert with one
18
another to commit the wrongful acts alleged therein, and aided, abetted, incited, compelled, and/or
19
coerced one another in the wrongful acts alleged herein, and/or attempted to do so. Plaintiff is further
20
informed and believes, and based thereupon alleges, that the DEFENDANTS, and each of them,
21
including those DEFENDANTS named as DOES 1-50, formed and executed a conspiracy or common
22
plan pursuant to which they would commit the unlawful acts alleged herein, with all such acts alleged
23
herein done as part of and pursuant to said conspiracy, intended to and actually causing Plaintiff harm.
24
9.
Whenever and wherever reference is made in this Complaint to any act or failure to act
25
by a defendant or co- defendant, such allegations and references shall also be deemed to mean the acts
26
and/or failures to act by each defendant acting individually, jointly and severally.
27
28
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1
10.
At all material times alleged herein, DEFENDANTS were an “employer” within the
2
meaning of Government Code §§ 12940(j)(4) and 12926(d), and regularly employed five (5) or more
3
persons.
4
11.
Pursuant to Labor Code § 558.1, any person acting on behalf of an employer (limited to
5
a natural person who is an owner, director, officer, or managing agent of the employer) who violates,
6
or causes to be violated, any provision regulating minimum wages or hours and days of work in any
7
order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226,
8
226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.
FACTUAL ALLEGATIONS
9
10
12.
In or about December of 2020, DEFENDANTS hired Mr. Villagomez to serve as a
11
production associate at DEFENDANTS’ facility located in Fremont, California, as an hourly, or non-
12
exempt employee (with an approximate rate of pay of $21.50 per hour).
13
13.
Mr. Villagomez generally worked full-time on varying days of the week and his duties
14
included, but were not limited to, locating parts and materials, assisting with product assembly,
15
cleaning, and ensuring quality control. Throughout his time of employment, Mr. Villagomez was a
16
reliable employee and was given bonuses in recognition of his positive work performance; he had no
17
known official disciplinary action (prior to being terminated, described infra).
18
14.
On or about August 14, 2021, DEFENDANTS distributed new badges to employees
19
which were required to clock in and out for shifts. Mr. Villagomez’s new badge apparently did not
20
function properly, as he noticed his hours were not properly recorded on DEFENDANTS’ time
21
clocking system (Kronos).
22
Villagomez’s timesheets. Due to the inaccurate timesheets caused by persistent badge issues, Mr.
23
Villagomez frequently experienced issues with receiving all of his earned wages in a timely manner,
24
despite repeatedly notifying DEFENDANTS’ management of the issue.
25
15.
In addition, absences which did not occur were reflected on Mr.
On August 18, 2021, Mr. Villagomez reached out to a manager named Jabori via text
26
regarding the badge issues and missing hours that resulted, writing in part: “my badge hasn’t been
27
working for the past couple days for me to clock in at Kronos b[u]t I haven’t missed any days this pay
28
period.” Jabori responded stating that he would investigate it “tomorrow”; however, the issue was not
-4COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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1
properly corrected, and DEFENDANTS failed to pay Mr. Villagomez his full earned wages for a
2
number of subsequent pay periods.
3
16.
On August 26, 2021, Mr. Villagomez reached out to a manager named Carlos Cruz
4
(“Cruz”) via text to address the malfunctioning badge issues stating, “I believe I’m missing Alottt of
5
hours again,” but the issue remained uncorrected, and wages owed to Mr. Villagomez were not paid
6
when due.
7
17.
DEFENDANTS often required Mr. Villagomez to clean large robots in a particular
8
room which was subject to a safety protocol called “lock out - tag out,” during which locks given to
9
each employee would be implemented to disable the moving robots to ensure their safety while
10
11
cleaning (“safety lock”).
18.
During his employment, Mr. Villagomez worked for an extended period of time
12
without a safety lock. Mr. Villagomez complained to manager Cruz that he felt unsafe without the use
13
of a lock. Cruz responded: “Well, you have to go in there anyways.”
14
19.
In or about August of 2021, Mr. Villagomez was forced to attempt to clean an
15
approximately 12-foot-tall robot of DEFENDANTS without the proper safety lock (described supra)
16
and a moving part of the robot almost struck him.
17
20.
Mr. Gomez complained to DEFENDANTS’ Human Resources Manager about the
18
safety violations regarding the robot and lack of safety lock, in addition to the ongoing issue of
19
outstanding pay due to badge malfunctions (described supra). DEFENDANTS’ Human Resources
20
Manager failed to address or remedy Mr. Villagomez’s concerns (and would later terminate Mr.
21
Villagomez for a blatantly pretextual reason, described infra). After Mr. Villagomez’s complaints of
22
safety violations, DEFENDANTS’ supervisors and Human Resources managers became increasingly
23
avoidant in addressing his wage complaints.
24
21.
On August 20, 2021, Mr. Villagomez received an email from DEFENDANTS which
25
promised a $500.00 bonus to non-exempt production employees at his location for each weekend
26
worked until September 30, 2021 (“weekend bonus period”).
27
28
22.
Mr. Villagomez worked two weekends during the weekend bonus period, yet his
promised bonus pay was not reflected in his wages.
-5COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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1
23.
Between August and December of 2021, Mr. Villagomez complained about his
2
persistent unpaid wages (due to incorrectly logged hours related to badge malfunctioning) as well as
3
his unpaid bonus pay (described supra) to numerous managers of DEFENDANTS, including Jabori,
4
Cruz, Martier, Human Resources Manager Dominique Alley, Human Resources Manager Jacklyn
5
Nguyen, Human Resources Manager Kitty Kha, and Human Resources Manager Ellen Welty.
6
DEFENDANTS’ late wage payments, unpaid owed wages, and unpaid owed bonus pay persisted. As
7
reflected in many email and text correspondences between Mr. Villagomez and DEFENDANTS’
8
managers, Mr. Villagomez expressed the urgency of the situation and the impact on his financial well-
9
being; however, he was consistently either referred to other managers or dismissed without resolution.
10
11
12
24.
By way of example, on November 19, 2021, Mr. Villagomez emailed Human
Resources Manager Dominique Alley:
Good morning Dominique,
13
I spoke with you earlier this week about missing hours and how it’s been a couple
14
months and I still haven’t gotten paid. I was really hoping to have this problem resolved no
15
later than today. unfortunately for whatever reason. It still hasn’t be resolved and at this point
16
I’m very disappointed because this is regular pay and Bonus pay. I’ve mentioned my lively
17
hood is at stake & that I’ve been waiting for over a couple months now. I’ve brought it to my
18
managers attention on multiple occasions via email via text and in person and had already
19
brought this up to HR. If you can please contact me today ASAP. It would be greatly
20
appreciated thank you hope you have a wonderful day.
Andre Villagomez
21
22
25.
Through December of 2021, Mr. Villagomez continued to make complaints and
23
request assistance from DEFENDANTS’ Human Resources regarding his unresolved work and wage
24
issues (described supra).
25
26.
On or about December 14, 2021, DEFENDANTS accused Mr. Villagomez of
26
falsifying timecards for a pay period in September of 2021, then abruptly terminated Mr.
27
Villagomez’s employment over the allegation.
28
-6COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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1
2
27.
The accusation that Mr. Villagomez falsified timecards three months prior was
unquestionably a pretext to wrongfully terminate him, considering:
3
A.
Also present when Mr. Villagomez was accused of falsifying timecards was
4
manager Juan Carlos (“Carlos”), who immediately admitted that the timecard
5
discrepancies were no fault of Mr. Villagomez and were simply due to Carlos
6
incorrectly entering his hours;
7
B.
8
was false, Human Resources Manager Anthony Martier (“Martier”) proceeded with the
9
employment termination, saying, “This is not a Q and A. You’re still being terminated
Despite Mr. Villagomez’s protest and Carlos’ confirmation that the accusation
10
for falsifying timecards”;
11
C.
12
and safety issues, and after Martier failed to fully correct the issues, Mr. Villagomez
13
had to elevate his complaints to other members of DEFENDANTS’ Human Resources
14
(described supra);
15
D.
16
warning for the alleged infraction he was being terminated for (which was false); and
17
E.
18
for unpaid wages from months prior, which Mr. Villagomez had repeatedly complained
19
about to Human Resources, most recently less than two weeks before being terminated.
20
28.
Mr. Villagomez had previously complained to Martier about his unpaid wages
Mr. Villagomez had no history of disciplinary actions and never received a
At the time of Mr. Villagomez’s termination, DEFENDANTS still owed him
Accordingly, Mr. Villagomez believes and avers DEFENDANTS wrongfully
21
terminated him in retaliation for him opposing and complaining about DEFENDANTS’ failure to pay
22
proper wages and safety issues.
23
24
25
29.
Additionally, DEFENDANTS failed to provide Mr. Villagomez with his wage records,
despite multiple requests in writing from Mr. Villagomez immediately following his termination.
FIRST CAUSE OF ACTION
26
VIOLATION OF CALIFORNIA LABOR CODE § 98.6 – RETALIATION
27
AGAINST ALL DEFENDANTS
28
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30.
1
2
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
31.
3
Labor Code §98.6 states that: “a person shall not discharge an employee or in any
4
manner discriminate, retaliate, or take any adverse action against any employee or applicant for
5
employment because the employee or applicant engaged in any conduct delineated in this chapter,
6
including…[filing] a bona fide complaint or claim or instituted or caused to be instituted any
7
proceeding under or relating to his or her rights that are under the jurisdiction of the Labor
8
Commissioner, made a written or oral complaint that he or she is owed unpaid wages, or because the
9
employee has initiated any action or notice pursuant to §2699, or has testified or is about to testify in a
10
proceeding pursuant to that section, or because of the exercise by the employee or applicant for
11
employment on behalf of himself, herself, or others of any rights afforded him or her.”
32.
12
13
DEFENDANTS’ management and Human Resources about his earned but unpaid wages and bonuses.
14
15
33.
DEFENDANTS failed to properly address Plaintiff’s concerns and never fully resolved
34.
Plaintiff suffered an adverse employment action when DEFENDANTS terminated him
them.
16
17
Plaintiff engaged in protected activity on many occasions by complaining to
after he engaged in protected activity.
35.
18
DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
19
which he had engaged in less than two weeks before the blatantly pretextual termination (described
20
supra).
36.
21
22
§ 98.6. Such violations were a proximate cause in Plaintiff’s damage as stated below.
37.
23
24
DEFENDANTS’ conduct constitutes retaliation in violation of California Labor Code
Labor Code § 98.6 provides, “[i]n addition to other remedies available…a civil penalty
not exceeding ten thousand dollars ($10,000)” for each violation.
38.
25
As a result, DEFENDANTS are liable to Plaintiff for statutory damages, and other
26
damages as set forth below.
27
///
28
///
-8COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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SECOND CAUSE OF ACTION
1
2
VIOLATION OF CALIFORNIA LABOR CODE § 1102.5 – RETALATION
3
AGAINST ALL DEFENDANTS
39.
4
5
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
40.
6
Labor Code §1102.5 states that: “An employer, or any person acting on behalf of the
7
employer, shall not retaliate against an employee for disclosing information, or because the employer
8
believes that the employee disclosed or may disclose information, to a government or law
9
enforcement agency, to a person with authority over the employee or another employee who has the
10
authority to investigate, discover, or correct the violation or noncompliance, or for providing
11
information to, or testifying before, any public body conducting an investigation, hearing, or inquiry,
12
if the employee has reasonable cause to believe that the information discloses a violation of state or
13
federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation,
14
regardless of whether disclosing the information is part of the employee’s job duties.”
41.
15
Plaintiff engaged in protected activity on many occasions by complaining to
16
DEFENDANTS’ management and Human Resources about his earned but unpaid wages and bonuses,
17
as well as safety concerns.
18
19
DEFENDANTS failed to properly address Plaintiff’s concerns and never fully resolved
43.
Plaintiff suffered an adverse employment action when DEFENDANTS terminated him
them.
20
21
42.
after he engaged in protected activity.
44.
22
DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
23
which he had engaged in less than two weeks before the blatantly pretextual termination (described
24
supra).
25
45.
Labor Code § 1102.5 also provides, “[i]n addition to other penalties, an employer that
26
is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand
27
dollars ($10,000) for each violation of this section.”
28
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1
46.
The actions of DEFENDANTS against Plaintiff constitutes unlawful retaliation, in
2
violation of Labor Code § 1102.5. Such violations were a proximate cause in each Plaintiff’s
3
damages as stated below.
4
THIRD CAUSE OF ACTION
5
VIOLATION OF CALIFORNIA LABOR CODE § 6310 – RETALATION
6
AGAINST ALL DEFENDANTS
7
8
9
47.
Plaintiff re-alleges and incorporates by reference the foregoing paragraphs as though
set forth in full herein.
48.
Labor Code § 6310 prohibits employers from firing or discriminating against any
10
employee, or the employee’s family member, because the employee has informed their employer
11
about unsafe working conditions or practices.
12
49.
Plaintiff engaged in protected activity by complaining about unsafe working conditions
13
in connection with DEFENDANTS’ failure to provide Plaintiff a safety lock and, subsequently, the
14
dangerous circumstances it created (described supra).
15
16
17
18
19
50.
DEFENDANTS failed to properly address Plaintiff’s concerns and instead insisted that
Plaintiff proceed with unsafe working conditions.
51.
DEFENDANTS wrongfully terminated Plaintiff in retaliation for his protected activity,
terminating him for blatantly pretextual reasons (described supra).
52.
The actions of DEFENDANTS against Plaintiff constitutes unlawful retaliation, in
20
violation of Labor Code § 6310. Such violations were a proximate cause in Plaintiff’s damages as
21
stated below.
22
FOURTH CAUSE OF ACTION
23
VIOLATION OF CALIFORNIA PUBLIC POLICY
24
WRONGFUL DISCHARGE
25
AGAINST ALL DEFENDANTS
26
27
53.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
28
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1
54.
At all times mentioned in this complaint, it was a fundamental policy of the State of
2
California that DEFENDANTS cannot discriminate and/or retaliate against any employee on the basis
3
of engagement in legally protected activity.
4
55.
As described in Causes of Action One through Three (supra), DEFENDANTS’
5
terminated Plaintiff for engaging in protected activity, in violation of California Labor Code §§ 98.6,
6
1102.5, and 6310.
7
56.
DEFENDANTS’ actions were in violation of California public policy.
8
57.
As a proximate result of the acts of DEFENDANTS, and each of them, Plaintiff has
9
suffered and will continue to suffer damages, as stated below.
10
FIFTH CAUSE OF ACTION
11
VIOLATION OF CALIFORNIA LABOR CODE § 1182.12
12
UNPAID WAGES
13
AGAINST ALL DEFENDANTS
14
15
16
58.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
59.
Under California Labor Code § 1182.12 and the Industrial Welfare Commission (IWC)
17
Minimum Wage Order for 2021, the minimum wage for all industries shall not be less than the
18
amount of $13.00 per hour for any employer who employs 25 or less employees, and $14.00 if the
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employer employs more than 26 employees. The minimum wage for the year 2020 was $12.00 for
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employers who employ 25 or less employees and $13.00 if the employer employs more than 26
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employees. The minimum wage for the year 2019 was $11.00 for employers who employ 25 or less
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employees and $12.00 if the employer employs more than 26 employees.
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60.
Labor Code § 1194.2 provides the amount of unpaid regular wages as a penalty as
liquidated damages equal to the amount of the unpaid minimum wages incurred.
61.
DEFENDANTS’ failed to compensate Plaintiff for all hours worked, including failing
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to compensate for a 12-hour shift worked on or about August 28, 2021 and failing to compensate
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Plaintiff for the agreed-upon bonus ($500) for working at least one weekend.
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62.
DEFENDANTS’ conduct was willful.
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63.
DEFENDANTS are liable to Plaintiff in the amount of Plaintiff’s unpaid wages plus an
additional sum for liquidated damages, in the amount of unpaid wages.
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SIXTH CAUSE OF ACTION
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VIOLATION OF CALIFORNIA LABOR CODE § 510 - FAILURE TO PAY OVERTIME
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AGAINST ALL DEFENDANTS
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64.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
65.
Pursuant to California Labor Code §§ 510, 1194, 1198 and IWC Wage Orders,
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employers are required to compensate non-exempt employees for all overtime, which is calculated at
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one and one-half (1½) times the regular rate of pay for all hours worked in excess of eight (8) hours
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per day and/or forty (40) hours per week, and for the first eight (8) hours on the seventh consecutive
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workday, with double time for all hours worked in excess of twelve (12) hours in any workday and for
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all hours worked in excess of eight (8) hours on the seventh consecutive day of work in any
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workweek.
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66.
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IWC Wage Orders.
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67.
Plaintiff is entitled to the protections of California Labor Code §§ 510, 1194, 1198, and
DEFENDANTS failed to compensate Plaintiff for all overtime hours worked as
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required under the foregoing provisions of the California Labor Code and IWC Wage Order because
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DEFENDANTS failed to pay for at least one 12 hour shift worked by Plaintiff, on or about August 28,
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2021, which included at least 4 hours of overtime pay.
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68.
DEFENDANTS’ conduct described herein violates California Labor Code §§ 510,
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1194, 1198 and IWC Wage Orders. Therefore, pursuant to California Labor Code 28 §§ 200, 203,
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226, 558, 1194, 1197.1, and other applicable provisions under the California Labor Code and IWC
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Wage Orders, Plaintiff is entitled to recover the unpaid balance of wages owed by DEFENDANTS,
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plus interest, liquidated damages, penalties, attorneys' fees, expenses, and costs.
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SEVENTH CAUSE OF ACTION
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VIOLATION OF CALIFORNIA LABOR CODE § 204
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FAILURE TO PAY TIMELY WAGES
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69.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
70.
Labor Code § 204 provides in pertinent part “all wages,…, earned by any person in any
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employment are due and payable twice during each calendar month, on days designated in advance by
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the employer as the regular paydays.”
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71.
Under Labor Code § 210, employees are entitled to recover a penalty of $100 for the
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initial failure to timely pay the employee all of the wages earned, $200 for each subsequent failure to
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pay in compliance with Labor Code § 204, and employees are entitled to recover an additional amount
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equal to 25% of the unlawfully withheld wages.
72.
DEFENDANTS failed to timely pay all of Plaintiff’s earned wages for each pay period
from August of 2021 until termination in December of 2021.
73.
For DEFENDANTS’ initial violation and subsequent violations of the Labor Code,
DEFENDANTS are liable to Plaintiff for unpaid compensation and statutory penalties.
74.
Plaintiff believes he is owed approximately $1,900.00 for DEFENDANTS
approximately 10 violations ($100 (initial violation) + $1800 (9 subsequent violations)).
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EIGHTH CAUSE OF ACTION
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VIOLATION OF CALIFORNIA LABOR CODE § 226
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FAILURE TO PROVIDE ACCURATE, ITEMIZED WAGE STATEMENTS
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AGAINST ALL DEFENDANTS
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75.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
76.
California Labor Code § 226 requires every employer, semi-monthly or at the time of
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each payment of wages, to furnish each of its employees, either as a detachable part of the check,
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draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check
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or cash, an accurate itemized statement in writing showing, among other things, (1) gross wages
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earned, (2) total hours worked by the employee, (3) all deductions, (4) net wages earned, and (5) all
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applicable hourly rates in effect during each respective pay period and the corresponding number of
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hours worked at each hourly rate by each respective individual.
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77.
Employees are entitled to $50 for the first pay period in which a violation occurs and
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$100 for any subsequent pay period in which violations occur, per employee, up to a maximum
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penalty of $4,000.
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78.
Plaintiff did not receive wage statements containing all requirements under California
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Labor Code § 226, such as all regular and overtime hours worked from August of 2021 through
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December of 2021.
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79.
As a result, DEFENDANTS are liable for statutory penalties to Plaintiff.
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80.
Plaintiff is owed approximately $950.00 ($50 (initial violation) + (9 paystubs x $100))
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for DEFENDANTS’ violations.
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NINTH CAUSE OF ACTION
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VIOLATION OF CALIFORNIA LABOR CODE § 203
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WAITING TIME PENALTY
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AGAINST ALL DEFENDANTS
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81.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
82.
Labor Code § 203 imposes a waiting time penalty on an employer that willfully fails to
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pay any earned, but unpaid, wages of an employee who is discharged or quits at a rate of one normal
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day’s worth of pay up to a maximum of 30 days.
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83.
DEFENDANTS failed to pay Plaintiff all wages due at the time his employment ended.
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84.
DEFENDANTS subsequently failed to pay Plaintiff all earned, but unpaid, wages due,
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for over thirty (30) days.
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85.
As a result, DEFENDANTS are liable for statutory penalties to Plaintiff.
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86.
Plaintiff is owed approximately $5,160.00 ($21.50 per hour x 8 hours x 30 days).
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TENTH CAUSE OF ACTION
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VIOLATION OF CALIFORNIA LABOR CODE § 226(b) and § 1198.5
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FAILURE TO PERMIT INSPECTION OF PERSONNEL AND PAYROLL RECORDS
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AGAINST ALL DEFENDANTS
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87.
Plaintiff re-alleges and incorporates by reference herein the foregoing paragraphs in
their entirety as if set forth in full.
88.
Labor Code § 226 (b) requires an employer to afford current and former employees the
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right to inspect or copy records pertaining to their employment, upon reasonable request to the
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employer.
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89.
Labor Code §1198.5 requires an employer, within thirty (30) days of a written request
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thereof, to allow an employee to inspect or receive a copy of an employee’s personnel and payroll
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records. An employer’s failure to do so subjects the employer to a $750.00 penalty, payable to the
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employee.
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90.
On or about December 17 and 20, 2021, Plaintiff made a written request to
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DEFENDANTS to inspect or receive a copy of his wage statements from August 2021 through the
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end of his employment.
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91.
DEFENDANTS failed and refused to permit Plaintiff’s inspection of personnel and
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payroll records, and failed to provide a copy of Plaintiff’s personnel and payroll records within the
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time required by Labor Code §1198.5.
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92.
As a result of DEFENDANTS’ failure and refusal to comply with Labor Code §1198.5,
Plaintiff is entitled to recover from DEFENDANTS a civil penalty of $750.00.
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PRAYER FOR RELIEF
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WHEREFORE, Plaintiff Andre Villagomez seeks judgment against DEFENDANTS, and each
of them, in an amount according to proof but estimated to be no less than $1,000,000, as follows:
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1. For all special, incidental, and/or compensatory damages, including but not limited to lost
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wages, earnings, commissions, employee benefits, lost earning capacity and future
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benefits, and all other sums of money to make Plaintiff whole, together with interest on
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these amounts;
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2. For all general damages, including for mental pain and anguish and emotional distress and
loss of earning capacity;
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3. For any and all available statutory penalties;
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4. For a declaratory judgment reaffirming Plaintiff’s equal standing under the law and
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condemning DEFENDANTS’ discriminatory practices;
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5. For injunctive relief barring DEFENDANTS’ discriminatory employment policies and
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practices in the future, and restoring Plaintiff to Plaintiff’s former position with
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DEFENDANTS;
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6. For punitive damages, pursuant to Civil Code §§3294 in amounts sufficient to punish
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DEFENDANTS for the wrongful conduct alleged herein and to deter such conduct in the
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future;
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7. For exemplary and punitive damages, in amounts sufficient to punish DEFENDANTS for
the wrongful conduct alleged herein and to deter such conduct in the future;
8. For costs of suit, attorneys’ fees, and expert witness fees pursuant to the Labor Code,
FEHA and/or any other basis;
9. For prejudgment interest on each of the foregoing at the legal rate from the date the
obligation became due through the date of judgment in this matter;
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10. For post-judgment interest; and
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11. For any and all other available relief that is just and proper.
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DATED: June 22, 2023
EMPLOYMENT LAW ASSIST, APC
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______________________________
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Kasim Idrees
Attorney for Plaintiff
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JURY TRIAL DEMAND
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Plaintiff hereby demands a trial by jury on all applicable claims in this case.
DATED: June 22, 2023
EMPLOYMENT LAW ASSIST, APC
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______________________________
Kasim Idrees
Attorney for Plaintiff
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-17COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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