1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16

LAWRANCE A. BOHM, (SBN 208716) Bohm Law Group 4600 Northgate Blvd. Suite 210 Sacramento, CA 95834 Phone (916) 927-5574 Fax (916) 927-2046 Attomey for Plaintiff SOKPHY TIN

Superior Court Of Californiaj Sacramento 11/04/2(110 jrover J Deputy Cz&a Numbur:

34-2010-00090959

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO

Department Assignments Case Management 44 Law and Motion 53 Minors Compromise 38

SOKPHY TIN, Case No. Plaintiff,

PLAINTIFF'S COMPLAINT FOR DAMAGES PANDA EXPRESS, INC., PANDA EXPRESS LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., HIBACHISAN, INC. and DOES 1-100, inclusive, Defendants. 1. PREGNANCY/SEX DISCRIMINATION 2. RETALIATION (CFRA) 3. FAILURE TO PREVENT DISCRIMINATION AND/OR RETALIATION 4. ADVERSE ACTION IN VIOLATION OF PUBLIC POLICY DEMAND FOR JURY TRIAL Plaintiff, SOKPHY TIN, respectfully submits the instant Complaint for Damages and Demand for Jury Trial and alleges as follows: PARTIES AND JURISDICTION 1. Plaintiff SOKPHY TIN (hereafter "TIN" or "Plaintiff) was at all times relevant

17 18 19 20 21 22 23 24 25 26 27 28
1
PlaintifFs Complaint for Damages TIN V PANDA EXPRESS, INC , et al

to this action, a recruit, employee, or wrongfully terminated employee of Defendants PANDA EXPRESS, INC., PANDA EXPRESS LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., and HIBACHI-SAN, INC., (hereafter "PANDA EXPRESS" or "Defendant"). While employed by PANDA EXPRESS and at all times relevant to this action. Plaintiff resided

Lawrance A Bohm, Esq Bohm Law Group

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

in Sacramento County. 2. Venue and jurisdiction are proper because the majority ofthe events giving rise

to this action took place in Sacramento; because Defendants were doing business in the Coimty of Sacramento; because Plaintiffs employment was entered into in Sacramento Coimty; because Plaintiff worked for Defendants in Sacramento; because the damages sought exceed the jurisdictional minimum of this Court; and because the majority of witnesses and events occurred in Sacramento County. 3. Defendant PANDA EXPRESS, INC. was at all times relevant to this action a

business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times relevant employers as defined by Govemment Code 12926(d). 4. Defendant PANDA EXPRESS LLC was at all times relevant to this action a

business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times relevant employers as defined by Govemment Code 12926(d). 5. Defendant PANDA INN, INC. was at all times relevant to this action a business

corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times relevant employers as defined by Govenmient Code 12926(d). 6. Defendant PANDA RESTAURANT GROUP, INC. was at all times relevant to

this action a business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times relevant employers as defined by Govemment Code 12926(d). 7. Defendant HIBACHI-SAN, INC. was at all times relevant to this action a

business corporation, operating a fast food restaurant in Sacramento, CA. Defendants were at all times relevant employers as defined by Govemment Code 12926(d). 8. Plaintiff is ignorant of the tme names and capacities of the Defendants sued

herein as DOES 1 through 100. Defendants Does 1 through 100 are sued herein under fictitious names pursuant to Califomia Code of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges, that each Defendant sued under such fictitious names is in some marmer responsible for the wrongs and damages as alleged herein. Plaintiff does not at this time know the tme names or capacities of said Defendants, but prays that the 2
Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, INC, et al Lawrance A Bohm, Esq Bohm Law Group

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

same may be inserted herein when ascertained. 9. At all times relevant, each and every Defendant was an agent and/or employee

of each and every other Defendant. In doing the things alleged in the causes of action stated herein, each and every Defendant was acting within the course and scope of this agency or employment, and was acting with the consent, permission and authorization of each remaining Defendant. All actions of each Defendant as alleged herein were ratified and approved by every other Defendant or their officers or managing agents. STATEMENT OF FACTS 10. On or around July 20, 2004, SOKPHY TIN (TIN) was hired with PANDA

EXPRESS as counter help. TIN was hired at the 735 Harbor Point Place location in West Sacramento, CA 95605. 11. 12. pay increase. 13. On or around October 22, 2004, recruiter George Chu (Chu) emailed regional In or around October 2004, TIN became pregnant with her fifth child. On or around October 17, 2004, TIN was promoted to lead counter help with a

director of operations Chris Fung (Fung) requesting approval to promote TIN to assistant manager in training. On or around the same day, Fung approved TIN'S promotion. 14. On or around October 25, 2004, TIN was promoted to assistant manager in

training and transferred to 545 Downtown Plaza, Sacramento, CA 95814 with a pay increase. 15. On or around October 30, 2004, TESf received her first manager in training

weekly assessment from certified trainer Cindy Lu (Lu). TIN achieved a ninety percent rating overall. 16. On or around November 6, 2004, TIN received her second manager in training

weekly assessment from Lu. TIN achieved a ninety-three percent rating overall. 17. On or around November 18, 2004, TIN received her third manager in training

weekly assessmentfi-omLu. TIN achieved a ninety percent rating overall. 18. In or around the third week of training, TIN was absent for three days due to

pregnancy related sickness. 3

PlamtifTs Complaint for Damages TIN V PANDA EXPRESS, INC , et al Lawrance A Bohm, Esq Bohm Law Group

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

19.

On or around November 23, 2004, TIN completed her fourth week of training

and received a fmal manager in training evaluation. TIN received points based on her job knowledge, personal ability, floor operations performance, and final exam score. TESf'S combined score was 415 points out of 445, giving her a ninety-seven percent passing rating. A score of 405 or more was considered passing. Upon completion, TIN eamed an assistant manager completion certificate. 20. On or around November 24, 2004, TIN was transferred back to West

Sacramento as an assistant manager. 21. In or around January 2005, TIN notified West Sacramento general manager Yan

Hua Liu (Liu) ofher pregnancy. Liu responded by asking TIN why she has so many children and why she continues having more babies. 22. In or around January 2005, TIN overheard Lu comment that had she known of

TIN'S pregnancy earlier, PANDA EXPRESS would not have trained her to become an assistant manager. 23. On or around January 25, 2005, TIN received a call from Fung regarding

concems with her work performance. 24. On or around January 27, 2005, TIN was emailed a final performance review

reinforcing the telephone discussion that took place a few days prior. 25. In or around Febmary 2005, TIN gave Liu a doctor's note stating that she could

not lift over fifty pounds. In or around the same time period, TIN spoke with the area coach of operations Chris Cheng to follow up about her pregnancy accommodations. 26. On or around March 19, 2005, TIN receive a disciplinary acfion report from

supervisor Wen Hao Cheng for poor work performance. As a result, TIN was demoted and given goals for improvement. A follow-up review was scheduled for March 20, 2005; at which time, TIN would have needed to show improvement or would be faced with termination. 27. On or around March 20, 2005, TIN was demoted to lead counter help for poor

work performance with a pay decrease. 28. In or around the end of March 2005, TIN left on maternity leave. 4
Lawrance A. Bohm, Esq Bohm Law Group

Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, INC , et al

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

29. 30. 31. 32.

On April 27, 2005, TIN's fifth child was bom. In or around June 2005, TIN retumed to work from matemity leave. On or around October 15, 2006, TIN received a pay increase. In or around May 2007, area coach of operation David Chandiawhata

(Chandiawhata) requested that TIN be given another opportunity to become an assistant manager. 33. On or around May 20, 2007, TIN was promoted to assistant manager in training

and transferred to 1491 West Covell Blvd., Davis, CA 95616 with a pay increase. 34. On or around May 21, 2007, TIN received her first manager in training weekly

assessment from certified trainer Helen Chan (Chan). TIN achieved a ninety-seven percent rating overall. 35. On or around May 28, 2007, TIN received her second manager in training

weekly assessment from Chan. TIN achieved a ninety-three percent rating overall. 36. On or around June 4, 2007, TIN received her third manager in training weekly

assessment from Chan. TIN achieved an eighty-five percent rating overall. 37. On or around June 16, 2007, TIN received a fourth manager in training weekly

assessment from Chan. TIN achieved a ninety-four percent rating overall. 38. On or around the same day, TIN received a final manager in training evaluation.

TIN'S combined score was 406 points out of 445, giving her a ninety-seven percent passing rating. Upon completion, TIN eamed an assistant manager completion certificate. 39. In or around the end of June 2007, TIN was transferred to 2940 Del Paso Road

Sacramento, CA 95834 as an assistant manager. 40. 41. 42. In or around August 2007, TIN became pregnant with her sixth child. In or around November 2007, TIN notified Chandiawhata of her pregnancy. In or around the end of January 2008, TIN notified Sacramento general manager

Maria Vasquez that her doctor was placing her early matemity leave due to pregnancy complications. 43. On March 28, 2008, TIN gave birth to her sixth child. 5
Plaintiffs Complaint for Damages TINv PANDA EXPRESS, INC , et al Lawrance A Bohm, Esq Bohm Law Group

1 2

44. 45.

On or around June 15, 2008, TIN retumed to work after matemity leave. On or around August 2, 2008, TIN was transferred back to Davis as an assistant

3 front manager. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 46. In or aroimd August 2008, TIN discussed with area coach of operations Kai-Yi

Wang (Wang) about permanently becoming the general manager of the Davis location. Wang responded by telling TIN that she should just worry about taking care of her children since she had so many. 47. In or around October 2008, TfN had to leave work thirty minutes early due to an

emergency with her daughter being bumed. TIN notified her counter lead ofher emergency. In or around the same day, Wang called TfN and reprimanded her for not immediately calling to notify him of her emergency. 48. On or around November 1, 2008, TIN was transferred to 2220 Lake Washington

Blvd., Ste. 100, West Sacramento, CA 95691 as an assistant manager. 49. 50. In or around November 2008, TIN became pregnant with her seventh child. In or around November 2008, TIN informed general manager Tony lyamu

(lyamu) of her pregnancy. lyamu responded by asking TIN why she had so many kids. Furthermore, lyamu questioned TIN about her financial circumstances and asked if she received welfare benefits. 51. In or November 2008, TIN was called into help out at 735 Harbor Point Place

West Sacramento, CA 95605 by general manager Justin Gen (Gen). TIN reported as instmcted. lyamu later called and questioned TIN about not showing up to work. TIN was confused and explained to lyamu that Gen was supposed to call and let him know that TIN'S assistance was needed. lyamu, told TIN that she was scheduled to work at 2220 Lake Washington Blvd., Ste. 100, West Sacramento, CA 95691 and that he was writing her up as a no-call, no-show for the day. 52. On or around November 13, 2008, TIN received a written waming from lyamu.

lyamu wamed TIN that if another incident occurred where she didn't call nor show, she would be terminated no questions asked. 6
Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, FNC, et al Lawrance A Bohm, Esq Bohm Law Group

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 shift.

53.

On or around January 22, 2009, TIN emailed Wang asking for permission to

take Friday, November 29, 2009 off from work. 54. In or around January 2009, lyamu was transferred to another store and Nicolas

(last name unknown) took over as general manager. 55. TIN asked Nicolas for permission to take Friday, January 30, 2009 off from

work. Nicolas approved TIN's request. 56. On or around January 31, 2009, TEST retumed to work and worked her scheduled

57.

On or around Febmary 2, 2009, TIN was suspended for three days from

PANDA EXPRESS due to absences. In addition, Wang asked TIN for her store keys and sent her home. TIN was four months pregnant at the time of her termination. 58. On or around Febmary 6, 2009, TIN retumed to work and was informed that she

had been terminated and was given her final check. TIN'S termination papers listed February 2, 2009 as her termination date and the reason given was for attendance issues. 59. 60. On or around Febmary 21, 2009, TIN applied for unemployment benefits. On or around March 25, 2009, TIN was contacted by an Employment

Development Department (EDD) representative. TIN was informed that PANDA EXPRESS was claiming that TIN had not in fact been terminated, but was out on matemity leave. TIN explained that she had been terminated on Febmary 2, 2009 when she was four months pregnant. 62. 64. On June 15, 2009, TIN gave birth to her seventh child. On or around November 5, 2009, TIN filed a complaint with the Department of

Fair Employment and Housing (DFEH). On or around the same day, TIN received a right to sue notice from DFEH. // // // // 7
Plaintiffs Complaint for Damages TfN V PANDA EXPRESS, INC , et al Lawrance A Bohm, Esq Bohm Law Group

FIRST CAUSE OF ACTION (Pregnancy/Sex Discrimination, Govemment Code 12940 (a)) 65. reference. 66. Plaintiff is a female. During her employment with Defendants, Plaintiff became All factual allegations ofthis complaint are hereby re-alleged and incorporated by

^ ^ ^ " ^ ^ 10 11 1^ 1-^ 1^ 1^ 1" 1' 1 1^ ^0 ^1 22 23 24 25

pregnant. As such, pursuant to Govemment Code 12926 subdivision (p) allegations in this complaint on the basis of "sex" refer to Plaintiffs gender, including but not limited to pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. 67. Defendants conduct violated Govemment Code 12940(a) and consistent with Title

2 ofthe Califomia Code of Regulafions 7293.7 and 7291.5 by: (1) terminafing Plaintiff because of her pregnancy, (2) refiising to provide pregnancy accommodation (3) failing to investigate discrimination, (4) disparate application of company practices, procedures and policies, and (5) otherwdse discriminating against Plaintiff with regard to the terms and conditions of her employment. 68. The unlawful and discriminatory conduct was perpetrated or ratified by a Defendants' actions were perpetrated with malice,

managing agent of PANDA EXPRESS.

oppression and/or fraud. As such. Plaintiff seeks punitive damages from Defendants in an amount according to proof. 69. As a proximate result of the aforementioned violations. Plaintiff has been

damaged in an amount according to proof, but in an amount in excess of the jurisdiction ofthis Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by

Govemment Code 12926(a). SECOND CAUSE OF ACTION (Retaliation; Government Code 12945(2)) 70. All factual allegations of this Complaint are hereby re-alleged and incorporated

26 herein by reference. 2g 71. At all times relevant to this matter. Plaintiff exercised her right to request time off 8
Plaintiffs Complaint for Damages TFNv PANDA EXPRESS, INC , et al Lawrance A Bohm, Esq Bohm Law Group

1 from work due to her pregnancy condition pursuant to the Califomia Family Rights Act. 72. 3 12945(2)) and Title 2 ofthe Califomia Code of Regulafions 7297.7. 4 73. 5 6 7 8 9 10 11 12 13 75. 14 damaged in an amount according to proof, but in an amount in excess of the jurisdiction ofthis 15 Court. 16 Govemment Code 12926(a). 17 THIRD CAUSE OF ACTION 18 (Failure to Prevent Discrimination and Retaliation; Govemment Code 12940(k).) 19 76. 20 77. 21 discrimination and retaliation of Plaintiff set forth above. Defendants breached their duty to 22 prevent the discrimination and retaliation of Plaintiff. 23 Govemment Code 12940(k) and Titie 2 ofthe Califomia Code of Regulations 7287.6(3). 24 25 26 27 28 78. The unlawful failure to prevent discrimination and retaliation was perpetrated or ratified by a managing agent of PANDA EXPRESS. Defendants' actions were perpetrated with malice, oppression and/or fraud. As such. Plaintiff seeks punitive damages from Defendants in an amoimt according to proof. Accordingly, Defendant violated Defendants knew or should have known about the unlawful pregnancy All factual allegations are re-alleged and incorporated herein by reference. Plaintiff also seeks "affirmative relief or "prospective relief as defined by As a proximate result of the aforementioned violations. Plaintiff has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by Govemment Code 12926(a). 74. The unlawful and discriminatory conduct was perpetrated or ratified by a Defendants' actions were perpetrated with malice, As a proximate result of the aforementioned violations. Plaintiff has been Defendant termination of Plaintiffs employment violated Govemment Code

managing agent of PANDA EXPRESS.

oppression and/or fraud. As such. Plaintiff seeks pimitive damages from Defendants in an amount according to proof

Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, FNC , et al

Lawrance A Bohm, Esq Bohm Law Group

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

79.

As a proximate result of the aforementioned violations. Plaintiff has been

damaged in an amount according to proof, but in an amoimt in excess ofthe jurisdiction ofthis Court. Plaintiff also seeks "affirmative relief or "prospective relief as defined by

Govemment Code 12926(a). FOURTH CAUSE OFACTION (Adverse Employment Action in Violation of Public Policy) 80. 81. All factual allegations are hereby re-alleged and incorporated herein by reference. The foregoing adverse employment actions were perpetrated in violation of public

policy codified in Govemment Code 12940 (a), (k) and section 12945(2); and Titie 2 ofthe Califomia Code of Regulations 7291.5, 7293.7,7297.7, and 7287.6(3). 82. The adverse employment action in violation ofpublic policy was perpetrated or

ratified by a managing agent of PANDA EXPRESS. Defendants' actions were perpetrated with malice, oppression and/or fraud. As such. Plaintiff seeks punitive damages from Defendant SCOTT's SEAFOOD in an amount according to proof 83. As a proximate result of the aforementioned violations. Plaintiff has been damaged

in an amount according to proof, but in an amount in excess of the jurisdiction ofthis Court.

PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against Defendants and any other defendants who may be later added to this action as follows: 1. For compensatory damages, including, but not limited to lost wages and

22 emotional distress in an amoimt according to proof; 23 2. 24 principles; 25 3. 26 4. 27 5. 28 10

Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, INC , et al Lawrance A Bohm, Esq Bohm Law Group

For attomeys' fees and costs pursuant to all applicable statutes or legal

For cost of suit incurred; For punitive damages; For prejudgment interest on all amounts claimed pursuant to Civil Code section

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

3287 and/or 3288; 6. For injimctive relief preventing further harassment, discrimination, retaliation

and as otherwise deemed appropriate; 7. For such other and further relief as the court may deem proper.

Dated: November 3, 2010

By: ^ Ji^:\VRANCE A. BOHM, ESQ. Attomey for Plaintiff SOKPHY TIN

DEMAND FOR JURY TRIAL Plaintiff hereby demands trial by jury for this matter.

Dated: November 3, 2010 LAWRANCE A. BOHM, ESQ. Attomeys for Plaintiff SOKPHY TIN

11
Plaintiffs Complaint for Damages TIN V PANDA EXPRESS, fNC, et al. Lawrance A Bohm, Esq Bohm Law Group