No Answer to Age Discrimination Complaint

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seniorjudge said:
None of your answer is correct.

I'd be careful of following the advice of wisemans_voyage.
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suppose you tell me exactly what is wrong with my post Ms./Mr. Know-it-all.

Judicial Notice does in fact point out case law that has been decided. It could even point out a prior case that can support a Motion to Strike or Demurrer. I have experienced the Defendant's "Please take Judicial Notice" of a prior litigated matter in a subsequent lawsuit that I filed. It did in fact involve Res Judicata.

I understand that my example of Judicial Notice doesn't allude to the fact that like the law professor says, it could be any well known documented event that could be Judicially Noticed and therefore could have been misleading, but it WAS an example of Judicial Notice non-the-less so it really wasn't like my answer/post was not correct.

I even mentioned to the Op that if this wasn't the case, then for sure, they could still oppose the Demurrer/Motion to Strike by bringing up the fact Defendants responded past the 30 day period in which to respond. So SeniorJudge, looks like your post is extremely inaccurate.
 
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aviddiver said:
Thank you for the heads-up, seniorjudge. I have been researching judicial notice all day and wisemans_voyage does not seem to agree with anything. However, he raised a good point and for me to research on and is this:

Can I introduce exhibits to support my allegations in the opposition to demurrer to complaint? My evidence are printouts of email messages to support allegations which might be attacked on its authenticity and so on.

Thank you, sir.

by the way, I am also attacking the untimely response as such (case law):
THE DEMURRER SHOULD BE STRICKEN BECAUSE IT WAS NOT FILED WITHIN THE TIME FOR FILING SUCH PLEADINGS.
The summons served on the defendant must contain a direction that the defendant file or cause to be entered on the docket a pleading in response to the complaint within 30 days of service of the complaint (Code Civ. Proc. § 412.20(a)(3); see Code Civ. Proc. § 430.40(a) (time to demur)).
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Thanks for at least pointing out the fact I brought up a good point. Now as far adding exhibits to the Opposition to the Demurrer/Motion to Strike, yes, of course you can add exhibits. Please note also, that there will be a tentative ruling before the Hearing takes place and this ruling is almost always the final decision. If it goes against you and gets dismissed with prejudice, to continue, you would have to Appeal. I hope this is not the case.
 
Hmmmm!

Mmmmmm, mmmmmmmmm, mmmmmmmmm!

Lions, tigers, and bears, oh my!!!
 
Let's chill out guys!!! wisemans_voyage - I think that army judge's point is a good one, just take it as a constructive thought that's all!

Unless you are specifically clear about the law, what you write could be misinterpreted and perhaps used erroneously as a result of what is written -- although I or others may understand what you mean to say. It is of paramount importance to be clear here because some people may rely on what you write and use it in their case. As such, perhaps we can continue in the spirit of respect that is usually found in these parts understanding that there are differences of opinion and sometimes a need for greater clarity.
 
Professor, I think you mean seniorjudge. I never responded or commented on anyone's post.
 
AVIDDIVER:

No, you cannot and "judicial notice" is not a basis to oppose a demurrer and, do not, whatever you do, argue or even attempt to remotely signal arguing any disputed facts or the causes of action. Simply because a demurrer is not taken to dispute, deny, or otherwise disclaim any of the plaintiff's claims, and is in fact exactly the opposite.

A demurrer goes to the legal deficiencies of the writing of the complaint itself and only to matters appearing on the FACE of the complaint; matters that are obvious, in your face, prima fasciae. By taking a demurrer, the defendant is basically saying that O.K., fine, we admit for this purpose to have done what you say we have done, but the way the complaint is laid out there are not enough facts given to constitute a cognizable cause of action.

Now, I remind you again not to argue any facts of the case in your opposition to the demurrer and check the demurrer itself to make sure that the defendant has not done a "speaking demurrer" where he has argued a point or two, either inadvertently or intentionally, in which case the proceeding changes by operation of the C.C.C.P. from a demurrer to a motion for "Summary Judgment."

Your opposition to the demurrer should be limited to arguing that there are in fact enough factual allegations contained in the complaint as to constitute the causes of action inserted, and do not refer to yourself as "I, my, or me" in any of your pleadings but instead use the third party "plaintiff," and of course use "defendant" for the opposing side instead of "he, his, or him!"

By the way, did you know that the filing of a First Amended Complaint by the plaintiff renders the demurrer moot and therefore the hearing will be taken off calendar? And you do not need leave of court (judge's permission) to file a first amended complaint any time before an answer is given by the defendant.

Something to think about.

fredrikklaw
 
No offense to wisemans_voyage. At the time, I didn't realize that judicial notice can be another case or case law. If so, I can request the McDonnell Douglas analysis (used in both fed and state cases) for disparate treatment theory in discrimination cases where there are no direct evidence. But how do I do the request or should I even make the request?

Good points, fredrikklaw. I didn't that a voluntary FAC would moot the demurrer. To go this route, I would modify my complaint and specifically say and include the McDonnell Douglas argument, includes exhibits, and basically say that they discriminate against me in addition to describing the events that took place.

Thank you all. This is very educational and validates the things I've read at the law library.
 
Hello to everyone. 300+ views tells a lot.

I have received good advise here and I am hoping to get some more help in preparing for my hearing this Friday. In return, I will also post some things I have gotten through my research from books like CA Civil Practice (Employment Litigation; CA Civil Actions (Pleading and Practice) by LexisNexis; and CA Employment Law by Wilcox. These are interesting readings. I hope it will help those who cannot and do not have access to public law library.

But for now, I have a hearing this Friday and I am hoping to get some advise on how to handle, what to bring, and what to expect before, during and after the hearing.

This is how things are moving based on the court's Register of Actions (ROA). This threads started regarding demurrer and opposition to demurrer but I will start from the filing:
01/26: Filed my complaint package (Cover sheet, complaint, summons, ADR) - Plaintiff
01/29: 3rd party mailed (served) the complaint package to defendant's registered agent. - Plaintiff
Here, defendant argued that I didn't include ntice of acknowledgment. However, the complaint was served via registered
with return receipt.
02/03: Complaint received and signed for by registered agent.
03/02: Mailed to court the Proof of Service - Plaintiff
03/14: Demurrer / Motion to Strike scheduled for 04/22/2011
03/17: Notice of Motion and Supporting Declarations filed - Defendant
04/11: Opposition to Noticed Motion and Supporting Declarations filed - Plaintiff
I also filed a Motion to Strike Demurrer because they did not file Demurrer on time (30 days from service of complaint)
but I don't see this motion in the ROA. The clerk also told me that because this is a motion, a hearing date should be
scheduled. I do not know if the court will allow this on Friday.
I also filed an Opposition to Motion to Strike because this was also untimely as with Demurrer but the clerk says that if
there was no papers exactly saying Motion to Strike filed by defendant, then, this is not necessary.
All 3 pleading papers were mailed on this day to defendant.
04/12: Defendant received Opposition to Demurrer.
04/12: Mailed to court Proof of Service of Opposition to Demurrer
04/13: Court received Proof of Service of Opposition to Demurrer
04/15: Reply to Opposition of Noticed Motion and Supporting Declarations filed - Defendant
I didn't know they can reply before the hearing?????
04/15: Opposition to Noticed Motion and Supporting Declarations filed - Defendant
So, what are they opposing?
04/18: OSC - Failure to File Certificate of Service scheduled for 05/06/2011 at 09:15:00 AM.
Now, I don't know what this is? Who failed? What was scheduled for 05/06?

I would appreciate any help to prepare for the hearing this Friday. I will now read their opposition and reply and post again.

Thank you.
 
aviddiver said:
Hello to everyone. 300+ views tells a lot.

I have received good advise here and I am hoping to get some more help in preparing for my hearing this Friday. In return, I will also post some things I have gotten through my research from books like CA Civil Practice (Employment Litigation; CA Civil Actions (Pleading and Practice) by LexisNexis; and CA Employment Law by Wilcox. These are interesting readings. I hope it will help those who cannot and do not have access to public law library.

But for now, I have a hearing this Friday and I am hoping to get some advise on how to handle, what to bring, and what to expect before, during and after the hearing.

This is how things are moving based on the court's Register of Actions (ROA). This threads started regarding demurrer and opposition to demurrer but I will start from the filing:
01/26: Filed my complaint package (Cover sheet, complaint, summons, ADR) - Plaintiff
01/29: 3rd party mailed (served) the complaint package to defendant's registered agent. - Plaintiff
Here, defendant argued that I didn't include ntice of acknowledgment. However, the complaint was served via registered
with return receipt.
02/03: Complaint received and signed for by registered agent.
03/02: Mailed to court the Proof of Service - Plaintiff
03/14: Demurrer / Motion to Strike scheduled for 04/22/2011
03/17: Notice of Motion and Supporting Declarations filed - Defendant
04/11: Opposition to Noticed Motion and Supporting Declarations filed - Plaintiff
I also filed a Motion to Strike Demurrer because they did not file Demurrer on time (30 days from service of complaint)
but I don't see this motion in the ROA. The clerk also told me that because this is a motion, a hearing date should be
scheduled. I do not know if the court will allow this on Friday.
I also filed an Opposition to Motion to Strike because this was also untimely as with Demurrer but the clerk says that if
there was no papers exactly saying Motion to Strike filed by defendant, then, this is not necessary.
All 3 pleading papers were mailed on this day to defendant.
04/12: Defendant received Opposition to Demurrer.
04/12: Mailed to court Proof of Service of Opposition to Demurrer
04/13: Court received Proof of Service of Opposition to Demurrer
04/15: Reply to Opposition of Noticed Motion and Supporting Declarations filed - Defendant
I didn't know they can reply before the hearing?????
04/15: Opposition to Noticed Motion and Supporting Declarations filed - Defendant
So, what are they opposing?
04/18: OSC - Failure to File Certificate of Service scheduled for 05/06/2011 at 09:15:00 AM.
Now, I don't know what this is? Who failed? What was scheduled for 05/06?

I would appreciate any help to prepare for the hearing this Friday. I will now read their opposition and reply and post again.

Thank you.
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Okay...off the top of my head and based on my experience in California concerning self-litigated claims in Superior and Federal Court, I'd say first that I'm not aware that you can rightfully serve the Defendants through the mail by a 3rd party, so that might be part of the reason for the 5-06-2011 hearing. From what I understand, a 3rd party can serve your complaint in person or a Marshall can serve it in person. After the Complaint is served IN PERSON, then subsequent papers (motions, responses, briefs...etc., can be served through the mail by someone who is not a party to the action.

As far as the reply by the Defendants, that is a brief that probably targets something you said in your Opposition Papers that supports Defendants Demurrer/Motion to Strike. If you wanted, you could have responded to that brief with your own brief so that the judge can see it when he studies all the other papers before he makes his decision via his "tentative ruling".
 
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TENTATIVE RULING:

1. Standard for Demurrer.
A demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 810 (2005); McCall v. PacifiCare of Cal.,Inc., 25 Cal.4th 412, 415 (2001); Aubry v. Tri-City Hospital Dist., 2 Cal.4th 962, 967 (1992). Moreover, "[r]egardless of whether a request therefor was made, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion." Roman v. County of Los Angeles, 85 Cal.App.4th 316, 322 (2000). The courts of appeal give the complaint a reasonable Interpretation,
"treat[ing] the demurrer as admitting all material facts properly pleaded," but do not "assume the truth of contentions, deductions or conclusions of law." Aubry, 2 Cal. 4th at 967; accord, Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1126 (2002). Courts must liberally construe the pleading with a view to substantial justice between the parties. CCP § 452; Kotlar v. Hartford Fire Ins. Co., 83 Cal.App.4th 1116, 1120 (2000).

The court notes that the opposition brief includes several exhibits consisting of emails and other documents apparently relating to plaintiff's employment. The court has not considered those documents, as the court's review at this stage is restricted to the four corners of the complaint and matters which are appropriate for judicial notice. The exhibits to the opposition brief are not in either category. The court is mindful that Plaintiff represents himself. However, his status as a party appearing in propria persona does not provide a basis for preferential consideration. "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater[,] consideration than other litigants and attorneys.' [Citation.] Indeed, '"the in propria persona litigant is held to the same restrictive rules of procedure as an attorney."' [Citation.]" (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

2. Ruling on Demurrer.
The demurrer is sustained with 10 days leave to amend to correct (if possible) the pleading deficiencies identified in the moving papers.

Now, I shall amend my complaint - but how? Do I send this amended complaint to the same court/dept.?
 
I know your case is about age discrimination, but let us know more specifically why you believe you were discriminated against because of your age? I for one am very curious. I really believe that there is lots of age discrimination out there, but it is very hard to prove! What have you got that can show you can win such litigation? Let us know.
 
This is my entire Complaint with modified names. Part 1
----------------
COME NOW Plaintiff for his Complaint in the above-captioned action and state to this Honorable Court as follows:
PRELIMINARY STATEMENT
1. PLAINTIFF, former Project Manager/Technical Lead for DEPENDANT, brings this action against DEPENDANT for discriminating against him based on age, for discriminating against him based on national origin, and, ultimately, for wrongful termination in violation of public policy.
Specifically, PLAINTIFF alleges the following causes of action:
I. Age discrimination in violation of FEHA;
II. National origin discrimination in violation of FEHA;
III. Retaliation in violation of the California Fair Employment and Housing Act ("FEHA"), California Government Code §§ 12940, et seq.
IV. Wrongful termination in violation of public policy of the State of California.
2. PLAINTIFF was hired as a Project Manager/Technical Lead at DEFENDANT on May of 2005 with responsibilities including mapping development, testing, and implementation based on customer requirements as provided by the Business Users. At that time, PLAINTIFF's Sr. Manager was MGR1. Sometime between late 2006 and early 2007, MGR1 left DEFENDANT and soon MGR2 assumed the position of Sr. Manager. MGR2, eventually, divided the group into 2 teams, System Integration (webMethods) Team and Partner Integration (EDI) Team. MGR2 denied PLAINTIFF to manage several projects for which PLAINTIFF is qualified for, but instead, MGR2 hires outside resources who are less knowledgeable and less qualified than PLAINTIFF. These resources are also significantly younger than PLAINTIFF. In early part of 2008, MGR2 hired INTERIM as the interim EDI Manager. INTERIM does not have any experience in programming languages on mainframe including JCL and mapping on Gentran. On or around September 5, 2008, MGR2 puts PLAINTIFF on Performance Improvement Plan (PIP) claiming that it is an effort to help PLAINTIFF improve his performance during the fiscal year 2008. PLAINTIFF believed that the PIP was authored by MGR2 and was designed for PLAINTIFF to fail. PLAINTIFF believed that the PIP was a way to force him out of DEFENDANT. One requirements of the PIP is to train INTERIM on everything he (PLAINTIFF) knows that will help INTERIM do his job. On February 9th of 2009, PLAINTIFF was fired from DEPENDANT.
PARTIES
3. At all material times, PLAINTIFF was a resident of the County of Counties and the State of California, who was employed by DEFENDANT from May 2005 until February 2009. PLAINTIFF is a "person" within the meaning of 42 U.S.C. § 2000e-(a).
4. Plaintiff is informed and believes that DEFENDANT is a California corporation, doing business at 111111 Somewhere Dr. in the County of Somecounty and the State of California, and is an employer who regularly employs fifteen or more persons.
5. In addition to the Defendant named above, Plaintiff sues fictitious Defendants DOES 1 through 10, inclusive, pursuant to Code of Civil Procedure § 474, because their names, capacities, status, or facts showing them to be liable are not presently known. Plaintiff will amend this complaint to show their true names and capacities, together with appropriate charging language, when such information has been ascertained.
6. Plaintiff is informed and believes, and therefore, alleges that each of the Defendants was, at all times relevant here, the agent and representative of the other Defendants and was acting, at least in part, within the course and scope of such relationship. Therefore, Defendants, and each of them, including all fictitious Defendants sued, are liable to Plaintiff for the acts of the other Defendants.
JURISDICTION AND VENUE
7. All events referred to in the allegations contained herein occurred within the boundaries of the County of Counties, State of California. Therefore, both jurisdiction and venue properly lie with this court.
EXHAUSTION OF ADMINISTRATIVE AND INTSRVPL REMEDIES
8. On or around the end of November, PLAINTIFF filed a complaint with the EEOC of discrimination based on National Origin.
9. PLAINTIFF spoke with a SrVP, about the PIP being unjust and had nothing to do with improving his skills. PLAINTIFF was reprimanded by SrVP. MGR2 reports to SrVP.
10. On or about February 29, 2009, PLAINTIFF submitted a complaint to the California Department of Fair Employment and Housing ("DFEH") against DEFENDANT. The DFEH issued an immediate Right to Sue Notice to the Plaintiff on February 29, 2009.
 
PART 2:

FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTIONS
Discrimination Based on Age
11. PLAINTIFF was born on January 7th of 1960. PLAINTIFF was 45 years old when he was hired at DEFENDANT under Sr. Manager MGR1, who is not a party to this action.
12. PLAINTIFF was hired as a Project Manager/Technical Lead at DEFENDANT on May of 2005.
13. PLAINTIFF was 49 years old when he was fired on February of 2009 under a different Sr. Manager, MGR2.
14. PLAINTIFF has over 20 years of experience as a computer programmer for business applications running on mainframe. The last 15 years, PLAINTIFF was a Business Applications Programmer/Analyst with expertise on Electronic Data Interchange (EDI) System , writing COBOL programs, JCL's and Gentran Sub-system mapping. PLAINTIFF has the expertise to manage the Gentran Sub-system. PLAINTIFF has been the Subject Matter Expert on Gentran and have performed mapping and/or version conversion for companies like ETC.
15. At all material times, PLAINTIFF fully, adequately and completely performed all of the functions, duties and responsibilities of his employment with DEFENDANT.
16. At all material times, PLAINTIFF is a member of the EDI Team reporting to MGR2, Sr. Manager in charge of System Integration (webMethods) Team and Partner Integration (EDI) Team.
17. PLAINTIFF requested to MGR2, but was denied, the opportunity to manage a project to create a proto-type for migrating EDI processes from mainframe to webMethods platform. Instead, MGR2 hired an outside resource named CON1 to manage the project. On information and belief, CON1 is significantly younger than PLAINTIFF, with no experience on Gentran System, mainframe applications, and webMethods applications, therefore, less qualified to manage an EDI migration project than PLAINTIFF.
18. PLAINTIFF believes that he was denied another opportunity to manage the EDI Data Feeds to CreditCard and Marketing Group Project. MGR2 assigned EMP3, an employee, to manage the project in spite of Plaintiff's request. EMP3 is significantly younger than PLAINTIFF and with less EDI experience than PLAINTIFF.
19. PLAINTIFF believes that he was denied another opportunity to manage the Hawaii Project in spite of repeated requests. Furthermore, PLAINTIFF assured MGR2 that he is willing to work overtime if necessary without cost to DEFENDANT. PLAINTIFF initiated the project, developed the necessary mapping of data, and processed testdata allowing SAP Group to develop the necessary screens requested. However, MGR2 hired another outside resource named CON2 who lives in another State and is not knowledgeable of and have no experience on mainframe, JCL, and EDI/Gentran. Upon information and belief, CON2 is significantly younger than PLAINTIFF and less qualified than PLAINTIFF. PLAINTIFF assisted onshore resources while performing his day-to-day duties and responsibilities.
20. Upon information and belief, MGR2 gave PLAINTIFF the wrong impression of managing the Gentran Version Upgrade Project. PLAINTIFF started performing the necessary project analyses, program changes, JCL changes, and testing. At the same time, PLAINTIFF was also performing his day-to-day duties and responsibilities as an EDI Team member.
21. As PLAINTIFF works on the Gentran Version Upgrade Project, MGR2 hired another resource, INTERIM, as an interim EDI Manager. Upon information and belief, INTERIM does not have any experience with mainframe, with Gentran mapping, or project management. A week after the completion of the Hawaii Project, MGR2 had INTERIM takeover the Gentran Version Upgrade Project from PLAINTIFF without advance notice to PLAINTIFF nor was given any reason. INTERIM is significantly younger than Plaintiff.
22. On or around September 5, 2008, MGR2 puts PLAINTIFF on Performance Improvement Plan (PIP). MGR2 claims that the PIP is an effort to help PLAINTIFF improve his performance during fiscal year 2008. However, PLAINTIFF believes that the PIP was intended as a setup to terminate his employment.
23. PLAINTIFF believes that the Performance Improvement Plan (PIP) was an aCON6e for the defendants to harass PLAINTIFF and create a hostile work environment.
24. PLAINTIFF was indeed harassed by MGR2 and INTERIM. The workplace has become a hostile environment for PLAINTIFF.
25. PLAINTIFF was required to have two one-hour meeting a week - one with MGR2 and another with INTERIM. During such meetings, MGR2 and INTERIM, separately, repeatedly questioned and criticized PLAINTIFF's professionalism.
26. During a one-on-one meeting, INTERIM asked PLAINTIFF if he thinks he earned his pay for the days he didn't work on a specific project, insinuating that Plaintiff was not doing his job, thereby, stealing money from the company.
27. During a one-on-one meeting, INTERIM told PLAINTIFF about his previous job wherein he resigned because of his disagreement with his superior, insinuating that Plaintiff should quit if he disagrees with how things are.
28. On several occasions in SrVP's office, MGR2 criticized PLAINTIFF of being paid too much for poor performance in spite of the number of years of experience PLAINTIFF has, insinuating incompetence.
29. The PIP Task for Goal 2.4 calls for PLAINTIFF to, "Seek out technical challenges in assignments". On or around September 16, 2008, WRPC Business Unit based in OTHER City wants to establish new EDI transactions with their vendors. PLAINTIFF volunteered in accordance to the PIP Task but MGR2 indicated that he is ineligible to manage this project since he is on PIP. MGR2 contradicts the PIP requirement he authored. PLAINTIFF had worked numerous times with WRPC.
30. PLAINTIFF believes that there are several other projects that can be considered as technically challenging but were not assigned to him by INTERIM. As the interim EDI Manager, INTERIM takes instructions from MGR2. Instead, INTERIM would assign task or project to a non-EDI member.
31. The PIP Task 1 for Goal 1.3 calls for PLAINTIFF to study 3 webMethods Training Manuals and pass a verbal test conducted by a person of MGR2's choice. PLAINTIFF asked to attend a seminar but was denied. By December of 2008, PLAINTIFF has not completed this task and MGR2 told PLAINTIFF that he would recommend to HR to proceed with the recommendation indicated in the PIP citing termination. However, on January 27, 2009, INTERIM sent an email message to EMPWB, considered expert on webMethods with the System Integration Team, to conduct webMethods training for the Partner Integration (EDI) Team. On February 9 of 2009, PLAINTIFF was terminated.
32. The PIP Task 2 for Goal 1.3 calls for PLAINTIFF to "Research secure mainframe file transmission methods (sFTP), reviewing accessibility (cost), level of security, and suitability to company's goals – through discussions with data security, and present findings to the Team Leads". This requirement is out-of-scope of PLAINTIFF's expertise and duties as an applications programmer since sFTP is an Operating System software. SCA1, a System's Programmer with PARENTCo, has installed the software and had asked PLAINTIFF's assistance with testing. According to SCA1, it is the System Programmer who installs software and not application programmers. Furthermore, PARENTCo owns the mainframe machine and PLAINTIFF is not an PARENTCo employee, therefore, not authorized to install any software on the mainframe.
33. The PIP Task for SEL 6 calls for PLAINTIFF to train each member of the team on subjects he has substantial knowledge of, including INTERIM. INTERIM cancelled in the morning of the scheduled training day. CON6, another EDI Team member, asked for out-of-scope topics. Only EMP3 worked with Plaintiff.
34. CON6, an EDI team member, was going on vacation and INTERIM asked CON6 to give the project he was working on to PLAINTIFF. CON6 did not provide a written requirement for the project. When PLAINTIFF missed a portion of the project, he was reprimanded and demeaned during his one-on-one meetings with MGR2 and INTERIM. Both accused PLAINTIFF for failing to follow the flowchart and documentations, however, INTERIM cannot produce the flowchart and documentation he was referring to. CON6 insisted on providing the requirements, however, failed to provide any documentation or Definition of Work. MGR2 further accused PLAINTIFF to be careless and unprofessional in the presence of SrVP and HRMgr. SrVP supported MGR1's accusation and reprimanded PLAINTIFF. CON6 refers to the project, "the one PLAINTIFF' messed up" to other team members before and after Plaintiff's termination.
35. INTERIM criticized PLAINTIFF's recommended process of implementing the AAFES 856 Project. MGR2 accused PLAINTIFF's email messages to be combative and claimed to cause the project requestor to ask if he needs "Pay-per-View". However, the requestor mentioned this the day after as a joke in the hallway. MGR2 used this to harass PLAINTIFF and reported to SrVP who reprimanded PLAINTIFF and stated, "we are not asking you to kill somebody". PLAINTIFF believes that his decision was based on his years of experience and knowledge of common practices on EDI. PLAINTIFF proceeded with his plan and avoided the anticipated error.
36. PLAINTIFF believes that on or around November 10, 2008, INTERIM told EMP3 not to speak on behalf of PLAINTIFF or support PLAINTIFF with his projects. However, PLAINTIFF is the one supporting EMP3 with the Disney 850 Project. Furthermore, PLAINTIFF does not have a full load of projects because INTERIM, as the interim EDI Manager who assigns projects to team members, was not assigning projects to PLAINTIFF. This issue was brought up with HRMgr, MGR2, and SrVP. HRMgr claimed that EMP3 did not have a witness that INTERIM and was supported by MGR2 and SrVP.
 
PART 3:

Discrimination Based on National Origin
37. PLAINTIFF is a Filipino male of Ethnic background and with all the physical characteristics of a Filipino who was born in the Philippines.
38. Upon information and belief, PLAINTIFF is the only Filipino employee in the entire Department of more than 100 personnel.
39. Upon information and belief, DEFENDANT adopted a practice of hiring technical resources for the Department from a single vendor, AGENCY. AGENCY is based in Banglore, India.
40. Upon information and belief, positions filled with AGENCY consultants were never announced to the American public.
41. Upon information and belief, that by the end of year 2008, 23 out of 24 employees reporting to MGR2 are from India. PLAINTIFF was aware that another offshore team of 6 to 8 people reports to MGR2 when PLAINTIFF participated in after-work teleconference meetings.
42. Upon information and belief, MGR2 promoted EMP5 (female African-American) to Project Manager although she is not a webMethods expert with the System Integration Team, whereas, PLAINTIFF is an expert in EDI with the Partner Integration Team but not given the same promotion.
43. Upon information and belief, MGR2 denied PLAINTIFF and hired CON1to manage the proto-type project (paragraph 16). CON1is Caucasian.
44. Upon information and belief, MGR2 denied PLAINTIFF to manage the EDI Data Feeds (paragraph 17) but assigned it to EMP3. EMP3 is from India.
45. Upon information and belief, MGR2 denied PLAINTIFF and hired CON2 to manage the Hawaii project (paragraph 18). CON2 is from India.
46. Upon information and belief, MGR2 denied to promote PLAINTIFF and instead, hired INTERIM to be the interim EDI Manager. INTERIM is African-American.
Termination and Subsequent Events
47. After Plaintiff's departure, INTERIM was hired as a permanent employee of DEPENDANT as the EDI Manager. Upon information and belief, INTERIM has no prior experience as a manager.
///
 
PART 4:

FIRST CAUSE OF ACTION
Age Discrimination in Violation of California Government Code § 12940, et seq.
48. Plaintiff hereby incorporates by reference all other paragraphs in this Complaint, as though fully set forth herein.
49. Defendant DEPENDANT is an "employer" within the meaning of the FEHA.
50. Plaintiff is an "employee" within the meaning of the FEHA.
51. Under the "Respondeat superior" doctrine, DEFENDANT is responsible for the actions of its employees performed within the course of their employment, specifically, by MGR2 and INTERIM.
52. Plaintiff is a member of a protected class of employees who are over the age of 40.
53. Plaintiff suffered an adverse employment action.
54. Plaintiff was performing his duties and responsibilities fully and satisfactorily at the time of his termination.
55. Plaintiff was replaced by persons less knowledgeable and less qualified and, upon information and belief, are also significantly younger.
56. Defendant's discriminatory conduct caused Plaintiff to suffer harm, including emotional distress and economic loss.
57. Defendant's discriminatory conduct, through its employees, was a substantial factor in causing Plaintiff's harm.
58. Plaintiff's age was the motivating factor in Defendant's subjecting Plaintiff to discrimination and terminating Plaintiff's employment.

SECOND CAUSE OF ACTION
National Origin Discrimination in Violation of California Government Code § 12940, et seq.
59. Plaintiff hereby incorporates by reference all other paragraphs in this Complaint, as though fully set forth herein.
60. Plaintiff is a member of a protected class whose national origin is Filipino.
61. Upon information and belief, MGR2 is aware that PLAINTIFF was from the Philippines.
62. Defendant's discriminatory and harassing conduct caused Plaintiff to suffer harm, including emotional distress and economic loss.
63. The harassing conduct of MGR2 and INTERIM was a substantial factor in causing Plaintiff's harm.
64. Defendant, through its employees, committed the acts alleged herein maliciously, fraudulently, and oppressively with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice and in conscious disregard of Plaintiff's rights, entitling Plaintiff to recover punitive damages in amounts to be proven at trial.

THIRD CAUSE OF ACTION
Retaliation in Violation of California Government Code §§ 12940, et seq.
65. Plaintiff hereby incorporates by reference all other paragraphs in this Complaint, as though fully set forth herein.
66. Plaintiff engaged in protected activity by opposing what he reasonably and in good faith believed to be discriminatory treatment he was receiving from MGR2 and INTERIM on a regular basis even though Plaintiff fully performed his duties and responsibilities, and even assisted others with their tasks while being harassed. Such disparate treatment violates Government Code section 12940, et seq.
67. Following this complaint, Defendant, through its employees, subjected Plaintiff to retaliation. The retaliatory acts included, but mot limited to, denying Plaintiff projects, different expectations, greater scrutiny than other less experienced and younger team members, and terminating Plaintiff's employment.
68. Defendant's retaliatory conduct, through its employees, created a hostile, intimidating, and offensive work environment, which adversely affected the terms and conditions of Plaintiff's jobs on the basis of his age and national origin causing Plaintiff to suffer harm, including emotional distress and economic loss.
69. Defendant's retaliatory conduct was a substantial factor in causing Plaintiff's harm.

FOURTH CAUSE OF ACTION
Wrongful Termination in Violation of Public Policy
70. Plaintiff hereby incorporates by reference all other paragraphs in this Complaint, as though fully set forth herein.
71. Plaintiff was employed by DEFENDANT
72. Plaintiff was terminated from his employment by Defendant.
73. Plaintiff's age was the motivating factor for Plaintiff's termination from his employment.
74. Defendant's unlawful termination of Plaintiff's employment caused Plaintiff harm, including emotional distress and economic loss.
75. Defendant's unlawful termination of Plaintiff's employment was a substantial factor in causing Plaintiff harm.
DAMAGES
The conduct of the above-named Defendant, through its employees, as set forth herein, in violating PLAINTIFF's rights under California Fair Employment and Housing Act (FEHA) caused injuries, damages, and harm including, but not limited to, past and future economic losses and non-economic losses, including extreme emotional distress, loss of reputation, humiliation, pain and sufferings, inconvenience, mental and health anguish, impairment in the quality of life, and consequential losses.
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This is a very well-worded and "to the point" Complaint Aviddiver! However, how are you going to prove age discrimination? Just because the Company hired people younger than you doesn't mean there WAS age discrimination. There has to be a higher degree of evidence to show that age discrimination exists. For instance, is there a co-worker that would testify that management made any comments asserting that they were only going to hire younger employees from now on.

How many employees worked where you worked? Are they all (except you) younger? Have there been other applicants as old as you who have been denied employment there?

Also, Discrimination due to your origin? The company hired Afro-Americans! This could show that the company doesn't discriminate! You need more evidence or you will be very disappointed if your Discovery doesn't produce the evidence you need to prevail.

If you have glaring evidence to support these causes (and it don't seem like you do), of course, it will support a Wrongful Termination in violation of Public Policy! If not, there is no Wrongful Termination.

Obviously, you've spent a lot of time on this. I'm afraid Defendants will prevail based solely on what you posted thus far! It is already apparent Defendants will waste money as indicated by their hiring of uneducated employees (if what you say is true). So Defendants might just continue to spend this money defending your action. If so, it looks like they will prevail. The only thing you could hope for is to force a settlement out of court due to the costs of such defense of your Complaint. However, since it looks like they don't care about the money they spend, it's not going to happen.

I sympathize with your situation and really hope I'm wrong, because you do indeed sound like you've been wronged, however not to the extent that you will be able to prevail if it goes to trial.
 
Thank you, wisemans_voyage, for your post. I appreciate such constructive criticism which will help me prepare for a more vicious argument from the defendant.

I understand that my case does not have any direct evidence to suggest any age discrimination and that is why I am relying on a disparate treatment case. Per your post:

[I]"For instance, is there a co-worker that would testify that management made any comments asserting that they were only going to hire younger employees from now on."[/I]
Unfortunately, none have heard anything about the company hiring young people. However, another team member who was currently laid-off is aware that the company decided to hire technical people from Wi-Pro (from India). In fact, I know one was flown from India to US and was delayed because of his visa. Another was from East Coast.
This company is one of those multi-nationals who manufactures consumer electronics and are in the entertainment industry.

"How many employees worked where you worked?" There are over 500 employees.
Are they all (except you) younger? Not all but I see most. Our department has over 100 employees and contractors. I don't kknow how many are around my age but the people hired to take positions I qualified for are significantly younger tan I am and less qualified.

Have there been other applicants as old as you who have been denied employment there?
Tis, I don't know.

"Also, Discrimination due to your origin? The company hired Afro-Americans! This could show that the company doesn't discriminate! You need more evidence or you will be very disappointed if your Discovery doesn't produce the evidence you need to prevail."
The only black lady in the department that I know of was with the company before I joined and certainly before MGR2. I believe and suspect that MGR2 hired the black guy INTERIM to push his agenda with me. INTERIM is not knowledgeable of mainframe and previous to this company, he was an EDI coordinator and not a manager. So, in my opinion, he is less qualified than I am. Perhaps MGR2 thought that having a black guy lean on me will shield his origin discriminatory motives against me.

"If you have glaring evidence to support these causes (and it don't seem like you do), of course, it will support a Wrongful Termination in violation of Public Policy! If not, there is no Wrongful Termination."
I have email messages supporting allegations in Part 2 especially the PIP items. And I put down are supported in email messages.

The demurrer says that there are insufficient facts to support any cause of actions. How do you think I amend this complaint?

Again, thank you.
 
Hello,

I am now a bit confuse and wondering if I can get some advise.
The demurrer was sustained and I was given 10 days to amend my complaint. I have submitted my first amended complaint (FAC) on time. What happens now? I have sent a request for production of documents before the demurrer and the defendant refuted. My understanding is that the FAC is like going back to square 1. So, do I send another request for production of documents to the defendant?

Thank you in advance.
 
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