19 20 an 22 23 24 25 26 27 28 ae VELEZ, AW FIRM,PC] sorneys at Law| eta hbues, FILER Superior Court OF Gaitforala MARK P. VELEZ, ESQ. (SBN 163484) Sacramento NATALYA GRUNWALD-VELEZ, ESQ. (SBN265084) ozogrzan3 THE VELEZ LAW FIRM, PC tethers 3010 Lava Ridge Court, Suile 120 Roseville, California 95661 By... ‘Telephone: (916) 774-2720 Sase Hanber, Facsimile: (916) 774-2730 yelezlaw@live.com Attorneys for Plaintif? BATTALION CHIEF JONATHAN BURGESS BATTALION CHIEF JONATHAN BURGE! CITY OF SACRAMENTO, and DOES 1-50, inclusive, Plait Defendants. SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SACRAMENTO, FOR DAMAGES et seq.: Retaliation; JURY DEMANDED PLAINTIFF'S COMPLAINT. {UNLIMITED CIVIL CASE] Boputy 24-2023-00834271 1, Breach of Cal. Govt. Code §12900, et seq.: Race Discrimination; 2, Breach of Cal. Govt. Code §12940 3. Breach of Cal. Govt. Code §12900, et seq. Failure to Prevent Discrimination, Retaliation, Plaintiff's Complaint for Damages 128 WE VELEZ AW FIRM,PC| sttorneys at Lav Plaintiff BATTALION CHIEF JONATHAN BURGESS states his complaint against Defendants and each of them as follows: PARTIES Plaintiff BATTALION CHIEF JON BURGESS (hereinafter “Plaintif?* or “Plaintiff BURGESS is a current employee of Defendants CITY OF SACRAMENTO, FIRE DEPARTMENT hereinafter referred to as “Defendants SFD or SACRAMENTO FIRE DEPARTMENT), Defendants CITY OF SACRAMENTO, FIRE DEPARTMENT was atall times herein relevant, the PlaintifPs “employer” as that ean is defined inthe California Fair Employment and Housing Act, California Government Code Section 12900, et. seq. Defendantshad actual and constructive notice of the wrongful conduct, discrimination, harassment and retaliation perpetrated upon plaintiff set forth below, had both the authority and the duty to prevent and correct the same, failed to take reasonable action to prevent and correct the same and, by its conduct, condoned, supported and ratified such wrongful conduct Atall times herein relevant, Deputy Fite Chief of Operations and Human Resources, Niko King was an agent, supervisor, and supervisor to Plaintiff with authority to act and bind Defendant SED. From December 2015 through about July 2022, Deputy Fire Chief Niko King bound Defendants SFD to the wrongful acts, violations of law stated herein the complaint. Atall times herein relevant, Deputy Fite Chief Michael Taylor was an agent, supervisor, and supervisor to Plaintiff with authority to act and bind Defendant SED. From December 2016 and thereafter, Deputy Fire Chief Michael Taylor bound Defendants SFD to the wrongful acts, violations of law stated herein the complaint, ‘The true names and capacities, whether individual, corporate, associate, or otherwise of defendants named herein as DOES I through 50 are unknown to Plaintiff, who therefore sues said defendants by such fictitious names. Plaintiffs will amend this Complaint to show their true names, involvement and capacities when the same have been ascertained. DOES | through 50 are residents of the State of Califomia and/or are authorized to do business in the State of California and/or have their principal place of business in the State of California, Plaintiffs are informed and believe, and on that basis alleges that each of the defendants named herein as aDOE ‘plz, Plaintiff's Complaint for Damages 2em ao 10 i 2 13 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 AE VELEZ, AW FIRM,PC) ftomneys at La ata was, in some manner, responsible for the injuries and losses suffered by Plaintiff. At all times herein mentioned, each of the Defendants were the actual and apparent agents, servants, and employees of each of the remaining Defendants and, in doing the things herein after alleged, cach was acting within the course and scope of his/her actual and apparent agency and employment and with the knowledge, notification, consent and subsequent ratification of each of the other defendants, GENERAL ALLEGATIONS At all times herein relevant, Dofendants owed Plaintiff a duty to take all reasonable action to Provide Plaintiff with a workplace free from unlawful discrimination, harassment and retaliation, and to takeall reasonable action to prevent and comect discrimination, harassment, and retaliation in the workplace. Specifically, Defendants owed Plaintiff a duty: (1) to promulgate, inan effective way, policies, practices and guidelines regarding employment discrimination, harassment and retaliation; (2) to provide effective and adequate trining to managers, supervisors and employees regarding employment discrimination, harassment and retaliation, how to take effective, timely and reasonable action to prevent employment diserimination, harassment and retaliation and, particularly, how to handle, in areasonable, prompt and effective manner, complaints and noticed situations raising issues of employment discrimination, harassment and retaliation; (3) to provide realistic assurance to employees that defendants were serious about enforcing such policies against discrimination, harassment and retaliation; (4) to protect from retaliation employees who made or supported discrimination, harassment or retaliation complaints; (5) to conduct, in Tesponse {0 a complaint or actual or constructive notice of disctimination, harassment and retaliation, a good faith, reasonable, fair and prompt investigation of such complaint or in response to such notice; (6) to bring such investigation to @ conclusion in a timely manner; (7) to take prompt and effective remedial action, where appropriate, to prevent and correct discrimination, harassment and retaliation; (8) to maintain reasonably thorough and adequate Tecords regarding discrimination, harassment and retaliation complaicts, investigations, conclusions and remedial action; and (9) to avoid engaging in and promoting actions which have Plaintiff's Complaint for Damages 328 WE VELEZ AW FIRM,PC] torneys at La {ign rieo. 10, the intended purpose and foreseeable effect of silencing and quashing the voices of discrimination, harassment or retaliation complainants and others who support or have supported discrimination, harassment or retaliation complaints Defendants, and each of them, breached the above-mentioned dutics in that, at all times herein relevant, defendants acted ina manner which they knew, should have known, and did not care to know, condoned and supported discrimination, harassment and retaliation in the workplace. Defendants failed and refused to take reasonable action to publish and promulgate, in an effective manner, policies, practices and guidelines regarding discrimination, harassment and retaliation, Defendants failed and refused to take reasonable action o provide adequate and effective training to managers, supervisors and employees regarding discrimination, harassment and retaliation, failed to effectively train managers, supervisors and employees regarding how to prevent employment discrimination, harassment and retaliation, and failed to adequately train managers, supervisors and employees in how to reasonably, promptly and effectively handle complaints and notice situations raising issues of employment, discrimination, harassment and retaliation Defendants responded to actual and constructive notice of and complaints regarding discrimination harassment and retaliation in a manner calculated to defendant and detay, rather than fairly and timely investigate situations noticed and complaints regarding discrimination, harassment and retaliation, with the intended purpose and foreseeable effect of supporting management at all costs, condoning and supporting discrimination, harassment and retaliation, Defendants engaged in the above acts and omissions knowingly and as a matter of general business practice, without regard to the rights of employees, including Plaintiff Atall times herein mentioned, cach of the Defendants was the actual and apparent agent, servant and employee of cach of the remaining defendants and in doing the things herein after alleged were acting within the course and scope of their actual and apparent agency and employment and with the knowledge, notification, consent and subsequent ratification of each of the other defendants, Defendants engaged in the above acts and omissions knowingly and as a matter of general business practice, without regard to the rights of employees, including Plaintiff, Plaintif's Compl 4 t for DamagesHE VELE: AW FIRM,PC} ttorneys at. Cer ana 28 Z. La I 12. 14. FACTUAL ALLEGATIONS Plaintiff Battalion Chief Burgess began working for Defendant SED in about 1994 as an paramedic interim, He subsequently worked as a fire fighter and later as SED Public Information Officer. In about 2002 he promoted to Captain, Thereafter, on about 2013 he promoted to Battalion Fire Chief Defendant SFD has been accused of racism when it comes to its Aftican American workforce in their efforts to move up within the City's Fire Department, In Jenvary 2021, Sacramento City Councilman Eric Guerra said that the City’s fire departmenthas been under constant scrutiny for complaints of racism and creating a “toxic culture.” According to the “2017 Audit of the City’s Gender and Ethnic Diversity report, 72 % of SED’s employees are White while 4% are Black Latinos make up 13% of department personnel and Asians 6%, Plaintiff Jon Burgess has always strived to stand up for equality within SED. For example, in 2017, Plaintiff served witness in support ofa White fire fighter, Adam Blankenship, during fact finding investigation. Plaintiff provided witness statements in support of FE Blankenship. FF Blankenship sought promotion into SED’s as an arson investigator, The position is a quasi-law enforcement position. The allegations brought against FF Blankenship were “spurious” and appeared ridiculous on their face. Plaintiff opposed the sham investigation making it cleat to Deputy Chief King, Thereafter, Deputy Chief Niko King and Deputy Chief Chad Augustine began a series of retaliatory acts against Plaintiff. Thereafter, in a separate meeting with DC: King, King informed Plaintiff that Blankenship would never become an arson investigator within the SFD, Despite DC King’s harbored animus towards FF Blankenship, Blankenship committed his personal funds for training and certification, then applied taking the investigator's exam He ranked third on two separate occasions. Under SFD’s protocols the top three ranking test takers £80 onto the next phase. However, DC King unilaterally caused the changed the testing protocols sto Blankenship and only the top two went onto the next phase. When Blankenship leamed of this change, he filed an EEO complaint. Plaintiff Burgess provided supporting testimony at the ERO. ~PlaintifP's Complaint for Damages 519 20 21 22 2B 24 25 26 a 28 HE VELEZ AW FIRM,PC| Homeys at La 15. ‘Thereafter, DC King continued with his wrongfirl employment pattern of conduct adverse to Plaintiff Burgess, In July 2018, DC King usurped Plaintiff's authority to discipline a White FE who violated SED policy by leaving an emergency response call for a structural fire, Plaintiff Burgess orally counseled the White Captain, The Captain committed the same policy violations on two other occasions. DC King would not support Plaintiff's disciplinary recommendations to the Captain. Around this time, Plaintiff leamed that Assistant Chief Taylor referred to plaintiff as a “cancer in the department.” 16__On about June 2019, Assistant Chief Michael Taylor removed Plaintiff Burgess tom the 18, Battalion Chief Exam Committee, Plaintiff had served as a subject the only African American Battalion Chief on the exam committee. He served as a subject matter expert on the fire committee, Upon learning of his removal from the committee, Plaintiff fought back to get on the committee, Plaintiff ascertained that the removal was recially motivated by DC King and DC Augustine, Plaintiff felt it was important to have an Aftican American on the exam committee for diversity and to ensure that the questions were not unintentionally biased, On about May 10, 2020 Plaintiff received a complaint from FF Julie Vang that Captain Shawn Wolf bad kicked her safety gear in a sexist manner. Plaintiff escalated FF Vang’s complaint and sought an investigation into Captain Wolf's inappropriate conduet, Plaintiff investigated the incident, obtained corroboration from a witness, and disciplined Captain Wolf, a White SFD Captain. Thereafter, Plaintiff learned from FF Vang that he wes referred to as the “Black Chief” in a derogatory manner. Ultimately, no formal discipline was given to Capt, Wolf, Instead, FF Vang was referred to as a “snitch”. Capt, Wolf received a promotion shortly thereafter, which included a 9.5% pay rise. Plaintiff subsequently leamed that Deputy Chief Augustin “white- washed” the complaint against Capt. Wolf FF Vang was transfered out of the station against Plaintiff's recommendations. Previously, on about July 9, 2019, Plaintiff served as an expert witness at FF Bankenship’s civil service board hearing, FF Blankenship made an BEO complaint and followed with a EEOC Title VII complaint of Retaliation due to his participation in protected activity. Plaintiff Burgess was identified as a witness in Blankenship’s internal complaint and in his EEOC Title VII complaint. Plaintiff's Complaint for Damages 6HE VELEZ AW FIRMPC| ttomeys at: 1f19. 20. 13 21 15 | 22. 21 | 23. 26 | 24, 28 Lav Next, on about February 17, 2021, Plaintiff was interviewed by outside counsel over his internal complaints of Racism, Disparate’Treatment Discrimination against Deputy Fire Chiefs Niko King and Chad Augustia, and his complaint o prevent Racism and Disparate Treatment Discrimination ageinst Fire Chief Gary Loesh, Also, in February 2021, Plaintiff applied for the open position of Deputy Chief. Plaintiff was qualified for the position and made it to the final round. However, while Plaintiff Burgess was awaiting the results of his Deputy Chief promotion application, he was levied with 6 complaints of misconduct. On March 2021 Plaintiff was served with those complaints. Next, on about August 5, 2021 Chief Niko King and newly eppointed Deputy Chief Michael Taylor served Plaintiff at fire house 56 with a letter of intent to suspend. Plaintiff filed an EEO complaint and a subsequent grievance over the in person service instead of being called to the administration office. On about, March 2022, Plaintiff Burgess provided a statement to the EEOC in regards to supporting FF Blankenship’s Title VII employment retaliation case against Defendant SED. On about, June 20, 2022, Plaintiff made a formal complaint against DC King and DC Taylor concerning the 2021 personal service at Fire House 56. Next, in May 2021, Defendants SED's Fire Chief, Gary Loesch was terminated after complaints of harassment and retaliation within the department, Chris Costamagna became the new Fire Chief. Shortly thereafter, his brother Pat Costamagna wes promoted to Assistant Chief. DC Pat Costamagna informed another Captain that Jon Burgess would never get promoted. Plaintit¥ did not receive the Deputy Chief promotion. On August 6, 2021 Plaintiff got severe Covid-19 with Acute Respiratory Distress Syndrome (ARDS). Plaintiff was off from work for 8 months with severe Covid-19. On about, April 2022, Plaintiff returned to work and was immediately sent to the training division and informed he was now required to pass the agility test in order to retum, As a Battalion Chief, this was irregular ‘On about, October 2022, Plaintiff again applied for an open Deputy Chief position as two had become open. Plaintiff again made it to the interview process. Plaintiff including one other African American candidate did not make it to the final round of interviews. Only the non Plaintiff's Complaint for Damages 7HE VELEZ, AW FIRM,PC| orneys at ta itr 4 5 6 7/25. 8 9 0 28, 29, 28 Law African American moved onto the final round, Two Caucasians were promoted. Tilden Billiter and John Daniart, both Caucasians were promoted. When Plaintiff Burgess went to his final round of oral interviews, DC Michael Taylor was on the panel. This was alarming as Plaintiff already had an open EEO complaint against DC Taylor. By this time, Plaintiff had also participated in a federal EEOC action against Defendant SFD. The Caucasian was selected over Plaintiff as the new Deputy Chief. Within the time provided by law, Plaintiff has filed a complaint with the California Department of Fair Employment and Housing, in full compliance with the FEHA and has received a“tight-to- sue” letter. FIRST CAUSE OF ACTION Breach of Cal. Govt. Code §12900, et seq.: Race Discrimination (Against Defendants SED) Plaintiff BURGESS incorporates by reference the allegations set forth above and below. Defendants and each of them have breached their statutory and self-imposed duties owed to Plaintiff as a result of Defendant's representation, policies and procedures, and under California mn, 12940 et. seq, of the California Government Code by: (1) ratifying and low, including Se tacitly approving race discrimination; and (2) not disciplining Defendant's Deputy Chiefs Niko King, Chad Augustine, Michael Taylor, Tilden Billter, and former Fite Chief Gary Loesch for engaging in Race Discrimination against Plaintiff based on his Race as an African American, Plaintiff alleges on information and belief that Fire Chief Chris Costamagna also harbors a discriminatory animus against Plaintiff, Plaintiff was subjected to Race Discrimination which created a hostile work environment. Plaintiff was shunned, ridiculed, had his authority as a Battalion Chiefundermined, Plaintiff was also referred to as the “Black Chief.” Plaintif?'s authority has beea undermined, and he was denied promotional opportunities due to his protected status as an Aftican American, Indeed, he has been labeled as non-promotional despite having superior qualifications, As a result of the conduct of Defendants and each of them and defendants’ breach of the code section, Plaintiff has suffered damages, the exact emount of which has not yet been fully Plaintiff's Compiaint for Damages 828 HE VELEZ. AW FIRM,PC tomeys a En 2a i ascertained but is within the jurisdiction of this court. Plaintiff s entitled to damages including, but not limited to, lost wages, salary, benefits and certain other incidental and consequential expenses and damages in an amount to be shown at the time of trial. In addition, Plaintiff has been forced as a result of Defendants’ breach to retain a law fim to enforce her tights, and has incurred and will continue to incur costs and reasonable attorneys* fees in connection herewil recovery of which Plaintiff'is entitled to according to proof. WHEREFORE, Plaii prays judgment against Defendants, and each of them, as hereinafter set forth, 30. 32. Pa Retain ONT EAC a ag Another In a federal EEOC Claim (Against Defendants SFD) Plaintiff BURGESS incorporates by reference the allegations set forth above and below. Defendants and each of them have breached their statutory and self imposed duties owed to Plaintiff as a result of Defendants’ representations, policies and procedures, and under California law, including Section 12940 et seq,, and 12840(f), of the California Government Code by: (1) ratifying and tacitly approving the race discrimination; and (2) for retaliating against Plaintiff by denying him promotional opportunities within Defendant SPD. When Plaintiff. complained and ‘opposed the ongoing Race harassment to Defendants SED, he was engaged in protected activity as set forth in the California Supreme Court case of Yanowite v, L'Oreal USA, Inc, However, in direct contravention to the laws of the State of California which form the public policy of this state, Defendants SFD instead of adhering to these laws, retaliated against Plaintiff and took a series of adverse employment actions including suspending plaintiff's employment. Defendant ‘SED condoned a pattern of shunning Plaintiff, undermining his authority, not taking his internal complaints of racial discrimination seriously, requiring him to go through an agility test, and ‘wrongfully denying him promotional opportunities while promoting less qualified Caucasians, Additionally, Plaintiff has engaged in protected activity in opposing Race Discrimination within the department as to himself and others of color. As a result, he has been retaliated against Additionally, Defendants SFD retaliated against Plaintiff over his protected activity participation Plaintiff's Complaint for Damages 91 u 2 B 14 15 16 7 18 19 20 2 2 23 24 25 26 27 28 “HE VELEZ AW FIRMPC| itomneys at Lav 33, in an federal EOC retaliation investigation brought by FF Adam Blankenship. Defendants SFD’s retaliation against Plaintiff due him adhering to his duties as a Battalion Chief and supporting Blankenship was well known to Deputy Chiefs King, Taylor, Augustin and Fire Chief Loesch. Due to Plaintiff's participation in protected activity, he was denied promotions to the position of Deputy Chief in 2021 and again in 2022, ‘As aresuit to Defendants" conduct and breach of the code section, Plaintiff has suffered damages, the exact amount of which has not yet been fully ascertained but is within the jurisdiction of this court, Plaintiff is entitled to damages including, but not limited to, lost wages, salary, benefits and certain other incidental and consequential expenses and damages in an amount to be shown al the time of trial. In addition, Plaintiff has been forced as a result to Defendants” breach to retain a law firm to enforce her rights, and has incurred and will continue to incur costs and reasonable attorneys’ fees in connection herewith, recovery of which Plaintiff is entitled to according to proof, WHEREFORE, Plaintiff prays judgment against Defendants, and each of them, as hereinafter set for below. 34, 35. THIRD CAUSE OF ACTION Breach of Cal. Govt. Code §12940 et seq.: Failure fo Prevent Retaliation, Discrimination (Against Defendants FD) Plaintiff incorporates by reference the allegations sot forth above and below. Defendants, and each of them, have breached their statutory and sel{-imposed duties owed to plaintiff under defendants’ representations, policies and procedures, and under California law, including Section 12940(K), et seq., of the California Government Code. Section 12940(k), in pertinent part, provides that itis an unlawful employment practice to fail to take all reasonable steps necessary to prevent discrimination and retaliation from occurring. At all times herein, Defendants SPD had actual knowledge that its employees including, the individual defendant was engaging in inappropriate Race Discrimination and Retaliation towards Plaintiff. Defendants SED acted in a manner which it knew, should have known, condoned and/or supported the discrimination and retaliation in the workplace. Defendants SFD's training and continuation of Plaintiff's Complaint for Damages 10: 1 training of its managers and supervisors was cursory. In reality, Defendants SED supported a 2 custom and practice of condoning Race harassment, discrimination and retaliation in the 3 workplace, Defendants SFD failed to take all reasonable steps necessary to prevent 4 discrimination and retaliation from occurring. 5]36. Asa result of defendants conduct and breach of the code section, plaintiff has suffered and will 6 continucto suffer damages, the exact amount of which has not been fully ascertained but is within 7 the jurisdiction of this Court. Plaintfi'is entitled to damages, including, but not limited to lost 8 wages, salary, benefits and certain other incidental and consequential expenses and damages in 9 an amount to be shown at the time of trial. In addition, plaintiff has been forced as a result to 10 defendant’s breach to retain a law firm to enforce her rights, and has incurred and will continue Hl to incur costs and reasonable attorneys’ fees in connection herewith, recavery of which plaintiff 2 is entitled to according to proof. 13 WHEREFORE, plaintiff prays forjudgment ageinst defendants, and each ofthem, as hereinafter 14 } set forth. 15 WHEREFORE, Plaintiff JON BURGESS prays judgment against Defendants, and each of them, 16 || as hereinafter set forth. "7 8, For general, special and consequential damages in an amount of excess of the 18 jurisdictional imits of this Court, according to proof, 9 b. For reasonable attorney's fees under the FEHA and under any appliceble statute, costs 20 and expenses of litigation, according to proof a e, For prejudgment and post-judgment interest; 2 4, For Injunctive relief to abate physical disability discrimination; including all reasonable 23 attomey’s fees under the holding of Harris v, City of Sania Monica, (2013) 56 Cal4th 2 203; 25 e _ Foreconomic damages; 26 £ _ Fornon-economie damages; n g — Forall breach of contract damages including attomey fees, lost economic damages; 28 h. _ Forsuch other and further relief as the Court may deem proper. aE veuez AW FiRM.ec| ttormeys at Lay oe Plaintifs Complaint for Damages iaAwnuon 10 iL 12 B 14 15 16 W 18 19 20 21 22 23 24 25 26 a7 28 HE VELEZ AW FIRM.PC| ttorneys at La DATED: February 2, 2023 THE VELEZ LAW FIRM, PC A By MakP. Velez, Esa, Natalya Grunwald-Velez, Esq., Attomeys for Plaintiff JON BURGESS URY DEMAND Plaintiff hereby demand trial by jury. DATED: February 2, 2023 ‘THE VELEZ LAW FIRM, PC 1 Fi l Uf bec l Mark P. Velez\Esq., peer Natalye Grunwald-Velez, Esq. Attomeys for Plaintiff JON BURGESS Plaintiff's Complaint for Damages,