Richardson v. Apple Inc., et. al.

Filing 1

NOTICE of REMOVAL from the Superior Court of the State of California, County of Sacramento, case number 34-2012-00125838 by Apple Inc., Rhonda Hess-Beavers. (Ratshin, Todd) Modified on 8/2/2012 (Michel, G).

______________________________________

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_____________

BENJAMIN L. WEBSTER, Bar No. 132230
TODD M. RATSHIN, Bar No. 245450
LITTLER MENDELSON, P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200
Telephone:
916.561.0828
Fax No.:

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Attorneys for Defendants
APPLE INC. and RHONDA HESS-BEAVERS
(sued erroneously herein as “RHONDA HESSBREWER”)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DWAYNE RICHARDSON, an individual,

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Plaintiff,
v.
APPLE 1NC., a California corporation;
RHONDA HESS-BREWER, an individual;
and DOES 1 through 20, inclusive,
Defendants.

Case No.
NOTICE OF REMOVAL OF CIVIL
ACTION TO FEDERAL COURT FROM
STATE COURT BY DEFENDANTS
COMPLAINT FILED: June 13, 2012
TRIAL DATE: No date set.
(Sacramento County Superior Court
Case No. 34-2012-00125838)

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TO THE CLERK OF THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT

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OF CALIFORNIA:

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PLEASE TAKE NOTICE that Defendants APPLE INC. (“Apple”) and RHONDA

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HESS-BEAVERS (erroneously sued herein as “RHONDA HESS-BREWER”) (“Hess-Beavers”),

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hereinafter collectively referred to as “Defendants,” hereby remove this action from the Superior

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Court of the State of California, County of Sacramento, to the United States District Court for the

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Eastern District of California, pursuant to 28 U.S.C.

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original jurisdiction of the district court pursuant to 28 U.S.C.

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of Title VII of the Civil Rights Act of 1964 (“Title VII”), codified at 42 U.S.C.

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the following grounds:

TLER MENDELSON PC.
500 Capito MaU
SuSe 2000
Sac CA 95014

§

1441(a) and 1446. Removal is based on the

§

1331 and 1337(a) and

§

§

2000e-5(f)

2000e et seq., on

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NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT FROM STATE COURT BY DEFENDANTS

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I.
STATEMENT OF JURISDICTION

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1.

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Removal jurisdiction exists because this Court has original jurisdiction over

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“all civil actions arising under the Constitution, laws, or treaties of the United States” (28 U.S.C.

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§

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28 U.S.C.

1331), as well as civil actions “arising under any Act of Congress regulating commerce.”

§

1337(a). Removal jurisdiction further is proper in this Court because an action alleging

unlawful employment practices in violation of Title VII, such as this one, may be maintained in
2000e-5(f(3) (“Each United States district court

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federal district court. 42 U.S.C.

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jurisdiction of actions brought under this subchapter”).

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II.
VENUE

§

...

shall have

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2.

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Venue is proper in the United States District Court for the Eastern District of

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California because Plaintiff DWAYNE RICHARDSON (“Plaintiff’) filed his Complaint in the

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Superior Court of the State of California, County of Sacramento. 28 U.S.C.

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28 U.S.C.

§

84(b), 1391(b)(2); 42 U.S.C.

§ 2000e-5(f)(3); E.D. Cal. R.

§

1446(a); see also

120(d).

III.
PLEADINGS AND PROCESS

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3.

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On June 13, 2012, Plaintiff filed an unverified Complaint in Sacramento

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County Superior Court, entitled Dwayne Richardson v. Apple Inc., a Calfornia corporation; Rhonda

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Hess-Brewer [sic], an individual; and Does 1 through 20, inclusive, and designated as Case No.

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34-2012-00125838.
4.

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On July 3, 2012, Plaintiff served a copy of the Summons and Complaint on

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Apple. True and correct copies of the Summons and Complaint served on Apple on July 3, 2012,

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are attached hereto as Exhibit A.

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constitute all the pleadings, process, and orders served on Apple by Plaintiff.

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§

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TLER MENDELSON, P.C.
500 CapSol Mall
Suite 2000
95814

SacramentCA

The Summons and Complaint attached hereto as Exhibit A

See 28 U.S.C.

1446(a).
5.

Plaintiffs Complaint alleges claims for wrongful termination and retaliation,

including a claim of retaliation under Title VII, against Apple. Plaintiffs Complaint alleges a claim
Firmwide: 113189196.1 043907.1139

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NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT FROM STATE COURT BY DEFENDANTS

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for intentional infliction of emotional distress against Hess-Beavers. See Complaint,
6.

¶ 25-48.

Plaintiff admits in his Complaint that federal jurisdiction exists in this action

based on “federal question jurisdiction.” Complaint, ¶ 1.
7.

On August 1, 2012, Apple filed its Answer to Plaintiffs Complaint in

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Sacramento County Superior Court.

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Complaint is attached hereto as Exhibit B.

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8.

A true and correct copy of Apple’s Answer to Plaintiffs

Also on August 1, 2012, Hess-Beavers filed her Answer to Plaintiffs

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Complaint in Sacramento County Superior Court. A true and correct copy of Hess-Beavers’ Answer

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to Plaintiffs Complaint is attached hereto as Exhibit C.

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9.

Although Plaintiff failed to serve Hess-Beavers with a copy of the Summons

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and Complaint, Defendant Hess-Beavers’ Answer constitutes a general appearance in the action.

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Cal. Code Civ. Proc.

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App. 4th 1135, 1145, 1147 (2004).

§

410.50(a); Fireman’s Fund Ins. Co. v. Sparks Construction, Inc., 114 Cal.

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iv.
TIMELINESS OF REMOVAL

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10.

This Notice of Removal is timely filed within 30 days of the date Apple was

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served with the Summons and Complaint and within 30 days of the date Hess-Beavers filed her

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Answer to Plaintiffs Complaint.

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Stringing, Inc., 526 U.S. 344, 354 (1999).

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§ 1446(b);

Murphy Bros., Inc.

V.

Michetti Pipe

V.
JOINDER OF ALL DEFENDANTS IN REMOVAL

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28 U.S.C.

11.

Although Plaintiffs claim of retaliation in violation of Title VII is alleged

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only as against Apple, Hess-Beavers consents to, and joins in, the removal of this civil action from

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state court to federal court on the basis of federal question jurisdiction.

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§ 1446(b)(2)(A); Proctor v.

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See 28 U.S.C.

Vishay Intertechnology Inc., 584 F.3d 1208, 1224-1225 (2009).
VI.
BASIS FOR REMOVAL

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12.

Original, federal question jurisdiction exists in this Court pursuant to

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TLERMENDEL5ONPC.
500 Cap5o MaI’
Suite 2000
Sacrame CA 95814

Firmwide:1 13189196.1 043907.1139

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NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT FROM STATE COURT BY DEFENDANTS

1331 and 1337(a), as well as 42 U.S.C.

§

2000e-5(f), because Plaintiffs complaint

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28 U.S.C.

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alleges a claim of retaliation under Title VII in violation of 42 U.S.C.

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¶J 25-30;

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federal question presented on face ofplaintiffs complaint).

§

§

2000e-3(a). See Complaint,

cf Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) (federal jurisdiction exists when

13.

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Plaintiffs Complaint alleges a total of four causes of action, including the
The remaining three causes of action alleged in

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cause of action for retaliation under Title VII.

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Plaintiffs Complaint are based on the same factual allegations giving rise to Plaintiffs Title VII

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retaliation cause of action and generally assert state law claims for retaliation in violation of

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California Government Code Section 12940 et seq., wrongful termination, and intentional infliction

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of emotional distress.
14.

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This Court has supplemental jurisdiction over Plaintiffs state law causes of

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action for retaliation, wrongful termination, and intentional infliction of emotional distress, because

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those claims are so related to Plaintiffs claim for retaliation under Title VII, which presents a

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federal question and is within this Court’s original jurisdiction, that they form part of the same case

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or controversy. 28 U.S.C.

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156, 164-165 (1997); Green v. Ralee Eng. Co., 19 Cal.4th 66, 71-72 (1998) (recognizing that the

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basis for a claim of wrongful termination must be “tethered to” fundamental policies delineated in

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constitutional or statutory provisions); Wong v. Jing, 189 Cal.App.4th 1354, 1378-1389 (2010)

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(cause of action for infliction of emotional distress claims is duplicative in nature and merely

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provides an “alternative legal theor[y] for holding defendants liable for the same conduct”

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underlying other claims).
15.

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§

1367(a); City of Chicago v. International College ofSurgeons, 522 U.S.

Plaintiffs state law claims expressly are based on the same operative facts

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that comprise the basis for the federal retaliation claim. Complaint, ¶j 25, 31, 38, 42. In fact,

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Plaintiff admits in his Complaint that supplemental jurisdiction exists over his state law claims. See,

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e.g., id.,

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wrongful termination from his employment with Apple was based upon Defendants’ violation of

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public policy, including but not limited to the following: the fundamental public policies against

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discrimination, harassment, and retaliation as expressed in the Civil Rights Act of 1964 and
Firrnwide: 113189196.1 043907.1139
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TLEP MENDEL505, P.C
500 Capttot Mati
SuSe 2000
Sacramento, CA 95814

¶

39 (“Jurisdiction is invoked pursuant to 28 U.S.C. Section 1367”),

¶

40 (“Plaintiffs

NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT FROM STATE COURT BY DEFENDANTS

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subsequent amendments thereto

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16.

....“).

Accordingly, Plaintiff’s state law claims are based on the same factual

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allegations as, and will necessarily involve common issues of law and fact to, Plaintiffs claim for

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retaliation under Title VII. Plaintiff’s state law causes of action do not involve any novel or complex

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issue of state law and do not substantially predominate over Plaintiffs cause of action for retaliation

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under Title VII, and no exceptional or compelling circumstances exist for this Court to decline

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jurisdiction. 28 U.S.C.

§ 1367(c).

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vii.
NOTICE TO PLAINTIFF AND STATE COURT

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17.

Pursuant to 28 U.S.C.

§ 1446(d), Defendants concurrently are providing

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written notice of this removal to Plaintiff, through his counsel.

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§ 1446(d), Defendants concurrently are filing a copy of such Notice with the clerk of the Sacramento

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County Superior Court.

Also pursuant to 28 U.S.C.

WHEREFORE, Plaintiffs Complaint is removable to this Court pursuant to

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§ 1331, 1337(a), and 42 U.S.C. § 2000e-5(f), and Defendants hereby remove this action

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28 U.S.C.

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from the Superior Court of the State of California, County of Sacramento, to the United States

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District Court for the Eastern District of California and respectfully request this Court proceed with

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the matter as if it had been filed originally herein.

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Dated: August 2, 2012

ER
T
BPS
TODD M. RATSHIN
LITTLER MENDELSON, P.C.
Attorneys for Defendants
APPLE INC. and RHONDA HESSBEAVERS (sued erroneously herein as
“RHONDA HESS-BREWER”)

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1LER MENDELSON. PC
500 CaptoI Mall
Suite 2000
Sacraruent CA 95814

Firrnwide: 113189196.1 043907.1139

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NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT FROM STATE COURT BY DEFENDANTS

V IIHIHXJ

7*copy
BY FAX
cwr Lea

SUMMONS

5L.0 PA&4 tao ae L.a COA1E)

(CITAC1ON JUDiCIAL)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):

APPLE INC., a California corporaüon REONDA HESS-BREWER, an
ndividua1; and DOES I through 20, inclusive,
• YOU AREBEING SUED BY PLAINTiFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):

DWAYNE RiCHARDSON
NO11CJ You have been sued, The court may decide against you without yoir being heard unless you respond withIn 30 days. Reed the Informati6n
below
You have 30 CALENDAR DAYS after the summons and legal papers are served on you to file a written response at this court and have a copy
served on the plslnttff. A letter or phone call wit not protod you. Your wrItten response must be In proper legal form If you want the cowl to hear your
case. There may be a cowl form that you can use for your responae You can find these court forms and more Information at the CalIforde Courts
y
t
Online Self-Help Center (w .counInfocagov/se#heip), your coix lew library, or the courthouse nearest you. It you cannot pay the tIling toe, ask
the oourt dertc tmr a fee waIver form. if you do not file your response on ilne, you may lose the case by default, and your wages, money, and property
may be taken wlthorA Further warning iforn the court,
There are other legal requlementa. You may want to cell an attorney right away. if you do not know an attorney, you may want to call an attorney
referral aorvk. if you cannot afford an attorney, you may be eligible for free legal serlces from a nonprofit legal sensoes program. You can locale
these nonprofit gros at the California Legal Services Web ate ( w.iaWrelpceIifcn1Ie.ori), the California Courts Online Soft-Help Center
(e414wcow#nfl,.caowhefflr04,), or by contading your local cowl or county bar assodation. NO?E The court baa a statutory ten fbi waived lees arid
costa on any aefflement or arbitration award of $10,000 or niora in a Ivt case. The court’s Ian must be paid before the court will dtsrbisa the case.
jAt4SOI Lo han demandado. Si no m,’oode dentro do 30 dlas, (a code puede deddfr en su contra sin escudta.’ en vsraldn. Lea La mformaciOn a

coo’uacJOn.

Tiene 30 VIAS OS CALENDARIO despuds do que Ic Ontrequen 83W ofaIdn y p&8a Wgales pare presenter tine reepuea p esno an 03W
code y hacer quo se ottrogue tine nopie &demanderrte. one cone o tine 11am edo toleidnive flO Ic psotegen. .Su mspuesta por ursito liene quo esiar
en (o#rnefo Ieg& corm4o si desea quo procesen su caso en (a code. Es posible quo haye un fomiularfb quo ustedpuode user pare en laspuesfa.
Ptiode encontrar eatos muledos do Is code y ms infomiacldn on & Cenfr do Ayuda do los ConIes do C&ffomie ww.aucorte.ca,gov), en Ia
b/btIotece de toes do su corriedo o en Ia code quote quede niâs ce,ca. St no puede pager Ia cuoto do preswmtacidn, pida at aec.’et&o cIa Ia code
quo Ic do an formulado do arendon do pego do codas. Si no presenta en respuesta a Itemnpo, puede penio.r ci ceso por Inwmpilmlento yla code to

po guitar gi su&cb, doero y blonea a’n mâs adebitenqa.
Hay does ,aqufstos legatos. Es recomendeble quo tianie a un abogado Iiimedlata’rrento. SI no conoco a an abcgado, puode U5mar a mar vko do
,e,nia’de a abogados. SI no pueo’e pager a an abogado, os posible qua cumpIe con los regalaltos pare oblane, seiviclos legatos gsstuitosde an
proprama do saivitios legates Iar fines do Iuao. Puedo errcontmr e3los gnipos an Cries do Iucio en at altlo eab do Cattfoinie Legal Serviuos.
Www.lawhetpditibrn1a.oroJ, en 01 Cenhro CIa Ayuda do (as ConIes do California, (www,aucorte.ca.gne) o ponmiendoso err conto m (0 codeo em’
coleqio cIa abngados hlea. A V1SO.’ F’or lay, hi code done dereciro a redamer lee cUCAas y los costos ekentos pon unpormer un grevamnen wfre
cualquler mcuperacktn do 310,0(106 más do valor rccibkla medianle an aouonlo o una concesldn do ertmltrejo en un ceso do demch cW rw.ne quo
pager am’ grovemen do to cede entoa do quo (a de pueda desochar 8aI cas

ctan ra.merrr.
lw1a.me c.*

The name and address of the court Is:
w nomore yoriowunao ma corw os:

Th

34 Z O’2 /25

Gordon D. Schaber County Courthouse
720 9th Street Sacramento, CA 95814

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, 1s
(El nombro, Ia dijeccidn ye! ntmem do told lbno del ebogado del demandarne, 0 del demandante quo no tieno abouac1o, os):

SMTI’N PA1TEN, Spencer F. Smiths Esq,, 353 Sacramento Street, Suite 1120, San Francisco, CA 94111
DATE: 6/13/12
Clerl,by
hiM
(Feha)
(Secietano)
M.
(For pmof of service of this summons, use Proof of Seivico of Sumrnoma (fonn POS-Q10).)
(Pam prueba do eritrega do esto citation use 0! lbsmutonlo Proof of Service of Summons, (POS-O10)).
NO11CE TO ThE PERSON SERVED: You are served
as an hdividual defendant
1.
as the person sued under the fictibous name of (eciO4:
2

132012

RCEft
11
P

,Deput
(Adjunto)

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on behalf of (,ecby):

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under

CE]
[E]
4.
FdfrrMwyte
Caad Cib
6iJim’mr.O lRa. ,l’ I, )
‘

CCP4I6.10(corporation)
CCP 416.20 (defr.nict corporation)
CCP 416.40 (assoaattoqi or partnership)

other (eat’y):
by personal delivery on (date):

SUMMONS

CE]
[]
[E]

CCP416.60(n’mlnor)

CCP 416.70 (conservatee)
CCP 416.90 (authorized person)

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ae m’ea- 0 412.Z, S

copy
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3
4
5

FILED

SMITH PATIEN
SPENCER F. SMITH, ESQ. (SBN: 236587)
DOW W. PATTEN, £SQ. (SBN: 135931)
BETI-LANV 3. SELVA, ESQ. (SBN: 273195)
353 Sacramento St., Suite 1120
San Francisco, California 94111
Telephone [phone]
Facsimile [phone]

Superior Court 0 California,
Srmento

Ofihl3)2012
rnpur.ll
-,

Deputy

Ca Numb.ir:

34-2012-001 2583

Attorneys for Plaintiff
DWAYNE RICHARDSON

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF SACRAIvEENTO

to

0.
As&gnm.nt.

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DWAYNE RICHARDSON, an individual,
Plaintiff,

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V.
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APPLE INC., a California corporation;
RHONDA HESS-BREWER, an individual;
and DOES I through 20, inc1usivc,
Defendants.

)
) Case No.

c Managafflelt 36

Law and Motion 83
)
1nots campcnie 24
) COMPLAINT
-J
)
(1) RETALIATION; 42 U.S.C. 20023(a)
(2) RETALIATION; CAL. GOY. CODE
112940 ET SEQ.
(3) WRONGFUL TERMINATION
(4) INTENTIONAL INFLICTION. OF
EMOTIONAL DISTRESS

JURY TRIAL DEMANDED

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Plaintiff DWAYNE RICHARSON (hereinafter “PIAlNTIFF’ alleges as follows;

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JURISDICTION AND VENUE
1. This Court has federal question jurisdiction over this action pursuant to the California
Constitution, Article VI, Section 10 and under the California Fair Employmentand Housing

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Act, California Governmclt Code Sion 12940,

seq.

2. Venue is proper in Sacramento County as a substantial part of the events and ofnisaions
gtving rise to this claim occurred in the County of Sacramento, State of Califontia, Defendant
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RHONDA HESS-BREWER (hereinafter 4 HESS-BREWFR”) is a resident of the
MS.

z
cOMFtAIN? I
-

1

County of Sacramento, and Defendant, APPLE [NC. (hereinafter “APPLE”) operates and

2

maintains an office as part of its business in the County of Sacramento, State of California.

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3. PLAINTIFF has been damaged in excess of the jurisdictional amount of this court.

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INTRODUC1ION

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4. This is an action for damages for Retaliation, Wrongful Termination, and Sexual

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Harassment. This action arises out of events involving PLAINTIFF, Defendant APPLE.

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THE PARTIES

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5. PLAINTIFF is African-American male currently employed by APPLE as an “Area

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Manager”, and is a resident of Sacramento County, California.
6. Defendant APPLE is a corporation organized and existing under the laws of the State of
California with its primary place of business in the County of Santa Clara, California.

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7. Defendant MS. HESS-BREWER is an individual and APPLE employee, located and residing

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in the County of Sacramento, California. To the best of PLAINTIFFs knowledge, MS.

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HESS-BREWER is currently an Area Manager APPLE.

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8. PLA1NITFF is ignorant of the true names and capacities of defendants sued herein as DOES

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1 through 10, inclusive, and therefore PLAINTIFF sues such defendants by such fictitious

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names. PLAINTIFF will amend this complaint to allege their true names and capacities

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when ascertained. PLAiNTIFF is informed and believes and thereon alleges that each of

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these fictitiously named defendants is responsible in some manner for the occurrences, acts,

and omissions alleged herein and that PLAINTIFFa injuries, as alleged herein, were
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proximately caused by such aforementioned defendants.
9. PLAINTIFF is informed and believes and thereon alleges that at all times mentioned herein,
each of the defendants was acting as the partner, agent, servant, and employee of each
remaining defendants, and in doing the things alleged herein, was acting within the course
and scope of such agency and with the knowledge of the remaining defendants, and that each

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defendant is responsible for the occurrences, acts, and omissions of each other defendant

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complained of herein.

cOMPLAJNF -2

FACTS COMMON TO ALL CAUSES OF ACTION

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2
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4

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6
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10. On or about June 23, 2003 PLAINTIFF was hired by Defendant APPLE as a “Support
Specialist”.
II. PLAINTIFF continued his employment with APPLE for nearly (9) years, uninterrupted and
without incident. In fact, to the contrary, PLAINTIFF was consistently promoted.
12. PLAINTIFFs job title at APPLE at the time of his termination was “Area Manager”
APPLE’s Apple Care department at APPLE’s Elk Grove office.

8

13. On or about February 9, 2012 APPLE employees from various APPLE departments and

9

offices, including PLAINTIFF and his co-workers, went to TGI Friday’s in Elk Grove,

‘a

California for a work party. While there, many APPLE employees became intoxicated,

ii

including PLAINTIFF, Defendant MS. HESS-BREWER and another Area Manager named

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Janine Hicks (hereinafter “Ms. Hicks”). Throughout the evening, MS. HESS-BREWER was

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extremely flirtatious with PLAINTIFF and made numerous inappropriate sexual advances

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toward PLAINTIFF. When the party was over, Lisa Butler, a Senior Business Manager at

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APPLE directed some of PLAINTIFFs co-workers to ensure that he got a taxi home. While

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waiting for a taxi, MS. HESS-BREWER began rubbing PLAINTIFF’s leg and genital area,

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thereby sexually assaulting him, in violation of APPLE’s policies and procedures.

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physical contact was unwelcomed by PLAINTIFF and he became embarrassed and

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uncomfortable by it PLAINTIFF was then aware that there were witnesses to MS. HESS-

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BREWER’s assault, including Ms. Hicks, who witnessed the entirety of the sexual assault

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PLAWWF was also then aware that he was the only African-American male Area Manager

The

and the only person subjected to MS. HESS-BREWER’s assaulting behavior. When the taxi
arrived, the driver refused to take PLAINTIFF home. According to MS. HESS-BREWER
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and Ms. Hicks, the taxi driver did not speak English and thus was the reason he refused to

take PLAINTIFF home. The two women then insisted on driving PLAINTIFF home in Ms.
Hicks’ vehicle. MS. HESS-BREWER Insisted on riding with them, even though it was not
necessary for her to do so. Upon arrival at PLAINTIFFs home, PLAINTIFF exited Ms.
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Hicks’ vehicle and went to his apartment where his fiance was waiting for him.
cOMPLAINF -3

a

14. In or around March 2012, MS. HESS-BREWER asked PLAINTIFF to take on one of her

2

employees since PLAINTIFF was in charge of implementing the hiring program for the

3

AHA Mentoring Group. PLAINTIFF refused to hire said employee because the employee’s

4

record showed discipline for unexcused absences from work. MS. HESS-BREWER became

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angry that PLAINTIFF would not take on her employee and commented something to the

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effect that PLAINTIFF was just mad” that she allegedly rejected him at the February 9,

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2012 APPLE work party at TGI Friday’s.

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BREWER’s comment but did decided not to make an issue of it.

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eventually took on the above-mentioned employee because MS. HESS-BREWER cleared his

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O0F

PLAINTIFF was confused by MS. HESSInstead, PLAINTIFF

attendance record.

ii

15. In or around March or April 2012, much to PLAINTIFFs surprise, APPLE informed

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PLAiNTIFF that MS. HESS-BREWER had complained that PLAINTIFF sexually harassed

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her at APPLE’s TGI Friday’s work party on February 9, 2012. In so doing, MS. HESS-

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BREWER alleged that PLAINTIFF had asked her and Ms. Hicks to come up to his apartment
to have sexual intercourse with him when they dropped him off at home at the conclusion of

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the February 9,2012 work party. PLAINITFF made no such proposition at anytime and his

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position is substantiated by the fact that his fiance was in his apartment waiting for him that

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evening.

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16. Tn response to MS. HESS-BREWER’s false accusations, PLAINTIFF felt compelled to set

20

the record straight and therefore made a complaint of his own regarding MS. HESS-

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BREWER’s unwelcorned sexual advancements on February 9,2012.

17. As a result of PLAINTIFF and MS. HESS-BREWER’s complaints, APPLE’s Human
Resources Department conducted what it claimed to be a full investigation of the matter, but
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said investigation was insincere and can only be charactaizçd as a sub-stanfard and cursory

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investigation. For example, the investigation was conducted by Phyllis Mman7a (hereinafter

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“Ms. Almanza”) who had long-standing relationships with PLAINTIFF and MS. HESS-

27

BREWER. thereby preventing Ms. Alnianza from being impartial. Additionally, and proving

2$

her partiality, Ms. Almanza only interviewed three people: PLAINTIFF, MS. HESS.

OMPLA1NF -4

a

BREWER and Ms. Hicks. Ms. Alnianza made no attempt to locate other witnesses or

2

evidence regarding the incident, despite PLAINTIFFs recommendation that she interview

3

the bartender at TGI Friday’s on February 9, 2012 and the security tapes of the same date,

4

each of which PLAINTIFF is confident would prove his version of the incident to be true.

5

18. On or about April 4, 2012 PLAINTIFF was placed on paid suspension.

APPLE cited

6

“inappropriate activity’ as the reason for PLAINTIFFs suspension. MS. HESS-BREWER

7

was not placed on paid suspension nor did she receive any other form of disciplinary action.

8

19. On or about April 5, 2012 Ms. Almanza called PLAINTIFF for purposes of her investigation.

g

PLAINTIFF informed Ms. Ahnanza that he is represented by counsel and therefore could not

10

discuss the incident with her. On or about April 6, 2012, APPLE tenninatcd PLAINTIFF, to

ii

become effective on April 16,2012.

12

20. On or about April 13, 2012 PLAINTIFFs counsel sent a demand letter to APPLE which

13

outlined the facts alleged above and demanded PLAINTIFFs reinstatement after a period of

14

medical leave. It was also demanded that PLAINTIFF be assigned to a manager other than

15

Tracy Simmons and an assurance that APPLE will cease sending company-wide

to

communications concerning PLAINTIFFs status in the company, as said communications

17

were tarnishing PLAINTIFFs reputation.

18

21. On or about April 16, 2012, corporate counsel for APPLE, Kwang Kim sent PLAINTIFFs

19

counsel a letter stating that APPLE would not be terminating PLAINTIFF as originally
planned, but would instead keep him on paid suspension while APPLE continued its

21

investigation.
22. Sometime

on

or

around

APPLEs

April

16,

2012

“re-opened” its investigation of the February 9, 2012 incident
24

letter,

APPLE

However, instead of

interviewing additional witnesses or obtaining other relevant evidence to that evening,
APPLE turned its investigation to the contents of PLAINTIFFs Time Machine backup of his

z

personal iPhone and the private information contained therein.

27

investigation into MS. HESS-BREWER’s personal information.

c0MPLAJN’r -5

APPLE made no such

i
2
3
4

23. On or about April 11, 2012 PLAINTIFF tiled an FEHA complaint and obtained a “right to

sue” letter on the same date.
24. On or about May 8, 2012 APPLE terminated PLAINTIFFs employment, claiming
“inappropriate activity” as the reason for termination.

5
6
7
8

FIRST CAUSE OF ACTION
AGAINST DEFENDANTS APPLE INC. AND DOES 1-10
42 U.S.C. SECTION 20002-3(a)
RETALIATION
25. The factual allegations of paragraphs 1 through 24 above are re-alleged and incorporated
herein by this reference.

26. Title Vi! of the Civil Rights Act of 1964, codified as 42 U.S.C. Section 2000e, makes it
unlawful for an employer to discriminate against any employee because “he has made a
charge, testified, assisted, or participated
13
14

in

any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. Section 2000e-3(a).
27. Defendants retaliated against PLAINTIFF, after PLANTf1FF engaged in activities and
conduct protected by 42 U.S.C. Section 2000e. Specifically, PLAINTIFF alleged an instance
of sexual harassment by a co-work.er at APPLE and sought an investigation into such

17
18

unlawful behavior.

Consequently, Defendant APPLE subjected PLAINTIFF to adverse

employment actions, including, but not limited to, harassment, suspension, and discharge.
These adverse actions were meant to dissuade PLAINTIFF, or any other reasonable

20
21

employees from making or supporting charges of sexual harassment and were causally
connected to PLAINTIFFs protected activities and conduct, as evidenced by Defendants’

conduct at the time which is stated in the facts set forth above.
28. Defendants retaliated against PLAINTIFF by ratifying, condoning or approving the acts
alleged in if 17 through 19 above.
29. Defendants retaliated against PLAINTIFF by ratifying, condoning or approving the acts
alleged in 11 21 through 22 above.

30. Defendants retaliated against PLAINTIFF by ratifying, condoning or approving the acts
alleged in ¶24 above.
CO?.*WLAINT -6

WHEREFORE, Plaintiff prays for relief as set forth below.
2

SECOND CAUSE OF ACTION
AGAINST DEFENDANTS APPLE INC. AND DOES 1.10
CALIFORNIA GOVERNMENT CODE SECTION 12940 ET SEQ.
RETALIATION

4

31. The factual allegations of paragraphs 1 through 30 above are re-alleged and incorporated
6

herein by this reference.
32. Jurisdiction is invoked pursuant to Section 12965, as amended, of the Government Code of

8

the State of California, seeking damages for violations of PLAiNTIFFs employment rights
as protected by the Fair Employment and Housing Act (hereinafter “FEHA”), Government

10

Code Section 12940, et seq., which prohibits retaliation against an employee for protecting
against or refusing to participate in discriminatory employment actions prohibited by said

33. PLAINTIFF was an employee of Defendant APPLE and is a person protected by said
14
15
18

provisions of the FEHA.
During PLAINTIFFs employment, Defendants subjected him to egregious retaliatory actions
and conduct, as alleged herein, because of his complaint that he was the victim of sexual
harassment by a co-worker, which said harassment, when unaddressed, is an unlawful

18
19

discriminatory employment practice in violation of the FEHA.
35. As a direct result of the acts and conduct of Defendants as alleged herein, PLAINTIFF has
suffered and continues to suffer substantial loss of earnings and related employment benefits

21

in an amount to be proven at trial.

36. In doing the acts and engagmg in the conduct alleged herein, Defendants intended to an did
vex, harass, annoy and cause PLAINTIFF to suffer and continue to suffer severe emotional
24

ansi ph

caI distress.

37. Defendants committed the abusive actions alleged herein maliciously, fraudulently, and
oppressively, with the wrongful intention of injuring PLAINTIFF and from an improper arid
evil motive amounting to malice, and in conscious and reckless disregard of Plaintiffs rights

COMPLAINT-?

i

as an employee. PLAINTIFF is thus entitled to recover punitive damages from Defendants

2

commensurate with its conduct as alleged.

3

5

WHEREFORE, Plaintiff prays for relief as set forth below.

THIRD CAUSE OF ACTION
AGAINST DEFENDANTS APPLE [NC. AND DOES 1-10
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
38. The factual allegations of paragraphs 1 through 37 above arc re-alleged and incorporated
herein by this reference.

8

39. Jurisdiction is invoked pursuant to 28 U.S.C. Section 1367.

40. PLAINTIFFS wrongful termination from his employment with APPLE was based upon
10
II
12
‘3
14
15
16

Defendants’ violation of public policy, including but not limited to the following: the
fundamental public policies against discrimination, harassment, and retaliation as expressed

in the Civil Rights Act of 1964 and subsequent amendments thereto and the California Fair
Employment Act, as set forth above.
41. As a proximate result of Defendants’ wrongful acts, PLAINTIFF has suffered and continues

to suffer substantial losses incurred in seeking substitute employment and in earnings,
bonuses, defeued compensation, stock options, seniority, and other employment benefits;
and has suffered and continues to suffer emotional distress in an amount according to proof

18

at the timeof trial.
WHEREFORE, Plaintiff prays for relief as set forth below.

21

FOURTH CAUSE OF ACTION
AGAINST DEFENDANTS RHONDA HESS-BREWER AND DOES 11-20
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
42. The factual allegations of paragraphs 1 through 41 above are re.alleged and incorporated

24

herein by this reference.
43. Defendants intentionally and with malicious motive and bad faith, engaged in the
aforementioned conduct in

27

fl 13 through

iS above whith which was calculated to cause and

did cause PLAINTIFF to suffer severe pshologica1 harm, humiliation and anxiety,

28

O1.’WLA1NF -8

particularly since Defendants intentionally caused the actions and conduct against
2

PLAINTIFF as described herein.

3

44. Defendants’ conduct was done with the knowledge that it would cause PLAINTIFF severe

4

psychological harm and was done with a wanton and reckless disregard of the consequences

5

to PLAINTIFF and with evil design and a malignant heart.

6

45. Defendants’ conduct was extreme, outrageous and unlawful.

7

4. As a direct and proximate cause of Defendants’ conduct, PLAINTIFF has suffered and

s
9

10

continues to suffer severe psychological harm.
47. As a result of said actions and conduct of Defendants, PLAINTIFF has suffered damages for
loss of earnings, loss of future earnings, and related employment benefits and opportunities.

ii

48. The foregoing conduct by Defendants was intentional, willful, wrongful, malicious and done

12

in bad faith, and PLAINTIFF is entitled to punitive damages in an amount commensurate

13

with said wrongdoing and Defendants’ financial ability.

‘4

WHEREFORE, Plaintiff prays for relief as set forth below.

15

PUNITIVE DAMAGES

18

49. The foregoing conduct by Defendants and Does I through 20 was intentional, willful,

‘7

wrongful, malicious and done in bad faith, and PLAINTIFF is entitled to punitive damages in

18

an amount commensurate with said wrongdoing and Defendants’ financial ability.

19

o
21

PRAYER FOR REIIFW
WHEREFORE, Plaintiff prays for relief as follows:
1. For general damages in amounts according to proof and in no event in an amount
less than the jurisdictional limit of this court;
2. For back pay and front pay and special damages in amounts according to proof

24

3. For attorneys’ fees as provided by law;
4. For interest as provided by law;
5. Forcostsofsuhherein

27

6. For punitive damages in an amount sufficient to punish Defendants and deter
future unlawful conduct; and
cOMPLAI!blr 9

1

7. For such other and further relief as the Court deems fair and just.

JURY DEMAND

2
3

PLAINTIFF hereby demands trial by jury of all matters so triable.

4
5

Dated: June 13, 2012

SMiTH PATTEN

6
7
8
9
10
11

DOW W. PATEN
BETHANY I. SILVA
Attorneys for Plaintiff
DWAYNE RICHARDSON

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OMPLAIN- 10

H Ji[HIHXJ

___________________________________

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4

BENJAMIN L. WEBSTER, Bar No. 132230
TODD M. RATSHIN, Bar No. 245450
LITTLER MENDELSON, P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200
Telephone:
916.561.0828
Fax No.:

5
6
7

Attorneys for Defendants
APPLE INC. and RHONDA HESS-BEAVERS
(sued erroneously herein as “RHONDA HESSBREWER”)

8

SUPERIOR COURT OF CALIFORNIA

9
COUNTY OF SACRAMENTO
10
DWAYNE RICHARDSON, an individual,

Case No. 34-2012-00 125838

11
DEFENDANT APPLE INC.’S ANSWER TO
PLAINTIFF’S COMPLAINT

Plaintiff,
12
V.

13
14

APPLE INC., a California corporation;
RHONDA HESS-BREWER, an individual;
and DOES 1 through 20, inclusive,

Complaint Filed: June 13, 2012

15
Defendants.
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17
18
19

Defendant APPLE INC., hereafter “Defendant,” hereby answers the unverified
Complaint of Plaintiff DWAYNE RICHARDSON (“Plaintiff’) and alleges as follows:
GENERAL DENIAL

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Pursuant to California Code of Civil Procedure section 431.30, subdivision (d),

22

Defendant generally and specifically denies each and every allegation contained in Plaintiffs

23

Complaint, conjunctively and disjunctively. Defendant further denies that Plaintiff has sustained, or

24

will sustain, any injury, loss, or damage in any manner or amount whatsoever by reason of any act or

25

omission, or any other conduct or absence thereof, on the part of Defendant.

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28
LITThER MENOELSON, RC
5OCaçto4M
Swt 2O
Sa,,ento,CA 95814
916.8307258

Firmwide: 113317865.3 043907.1139

DEFENDANT APPLE INC ‘S ANSWER TO PLAINTIFF’S COMPLAINT

DEFENSES
2

Without waiving or excusing Plaintiff’s burden of proof, or admitting that Defendant

3

has any burden of proof, Defendant asserts the following separate and distinct defenses to Plaintiffs

4

Complaint and each cause of action set forth therein:
FIRST DEFENSE

5
6

1.

As a first separate and distinct defense, Defendant alleges that Plaintiff’s

7

Complaint, and each cause of action set forth therein, is barred to the extent it fails to state facts

8

sufficient to constitute a cause of action against Defendant.
SECOND DEFENSE

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10

2.

As a second separate and distinct defense, Defendant alleges that Plaintiffs

11

Complaint, in whole or in part, is barred to the extent that Plaintiff failed to exhaust his available

12

administrative remedies pursuant to 42 U.S.C.

13

sections 12960, subdivision (b), as well as any other applicable statute, and this Court thus lacks

14

jurisdiction over Plaintiffs Complaint.
THIRD DEFENSE

15
16

§ 2000e-5(e)(l) and California Government Code

3.

As a third separate and distinct defense, Defendant alleges that, to the extent

17

Plaintiff seeks recovery for his alleged emotional andlor physical injuries, such claims and damages

18

are barred by the exclusivity provisions of the Workers’ Compensation Act, codified at California

19

Labor Code section 3600 et seq.
FOURTH DEFENSE

20
21
22

4.

claims are barred, in whole or in part, by the doctrine of unclean hands.
FIFTH DEFENSE

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24
25

5.

28
LITRER MENOELSON, PC.
500 C4 Mall
Swto 2000
SienoCA 95614
916 8307200

As a fifth separate and distinct defense, Defendant alleges that Plaintiffs

claims are barred, in whole or in part, by the doctrines of estoppel, waiver, and/or laches.
SIXTH DEFENSE

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27

As a fourth separate and distinct defense, Defendant alleges that Plaintiffs

6.

As a sixth separate and distinct defense, Defendant alleges that even assuming

any unlawful or other wrongful acts by any officer, director, or employee of Defendant were taken as
Firmwide: 11331 7865.3 043907.1139
2
DEFENDANT APPLE INC ‘S ANSWER TO PLAINTIFF’S COMPLAINT

I

against Plaintiff (which Defendant denies), Plaintiff’s claims are barred to the extent Plaintiff

2

consented to any and all actions by Defendant.
SEVENTH DEFENSE

3
4

7.

As a seventh separate and distinct defense, Defendant alleges that at all times

5

relevant herein, all actions taken with regard to Plaintiff’s employment were just, fair, reasonable,

6

honest, in good faith, privileged, without discrimination andlor retaliation, based on legitimate and

7

lawful business reasons and needs, and based upon all relevant facts and circumstances known by

8

Defendant at the time of taking such actions.

9

EIGHTH DEFENSE
8.

10

As an eighth separate and distinct defense, Defendant alleges that Plaintiff’s

11

Complaint is barred, in whole or in part, based on the doctrine of after-acquired evidence and to the

12

extent any and all actions would have been taken against Plaintiff based on such after-acquired

13

evidence.
NINTH DEFENSE

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15

9.

As a ninth separate and distinct defense, Defendant alleges that, even

16

assuming any unlawful or other wrongful acts by any officer, director, or employee of Defendant

17

were taken as against Plaintiff (which Defendant denies), any such unlawful or other wrongful acts,

18

if any, were not authorized, ratified, or condoned by Defendant, and Defendant neither knew nor

19

reasonably should have known of such conduct.

20
21

TENTH DEFENSE
10.

As a tenth separate and distinct defense, Defendant alleges that, even

22

assuming the occurrence of any conduct, act, andJor failure to act by any employee of Defendant or

23

anyone purporting to act on Defendant’s behalf as alleged by Plaintiff (which Defendant denies), any

24

such conduct, act, andJor failure to act was outside and beyond the scope and course of any such

25

agent’s employment with Defendant and contrary and in disregard of Defendant’s interest, and

26

Defendant is thus not vicariously liable for any such acts andlor omissions of any other person by

27

way of respondeat superior, agency, or otherwise.

28
LIITI.ERMENDELSONPC
500 CapUd Mdl
Suits 2000
Saant CA 95014

Firmwidel 13317865 3043907.1139

3

DEFENDANT APPLE INC.’S ANSWER TO PLAINTIFF’S COMPLAINT

ELEVENTH DEFENSE
11.

2

As an eleventh separate and distinct defense, Defendant alleges that, even

3

assuming any decision concerning Plaintiff was based, in part, on discriminatory, harassing or

4

retaliatory grounds (which Defendant denies), Defendant would have reached same decision absent

5

any alleged discrimination, harassment, or retaliation.
TWELFTH DEFENSE

6
12.

7

As a twelfth separate and distinct defense, Defendant alleges that Plaintiff’s

8

claims and any requested relief as against Defendant are barred, inter a/ia, under the doctrine of

9

avoidable consequences, because Defendant exercised reasonable care to prevent and promptly

10

correct any alleged discriminatory, harassing, retaliatory, andJor other wrongful conduct from

11

occurring, and Plaintiff unreasonably failed to complain or otherwise take advantage of any

12

preventive or corrective measures or opportunities.
THRITEENTH DEFENSE

13
13.

14

As a thirteenth separate and distinct defense, Defendant alleges that the

15

Complaint, and each cause of action alleged therein, is barred to the extent any harm or damage

16

allegedly suffered by Plaintiff was caused by his own intentional andlor negligent acts andlor

17

omissions.
FOURTEENTH DEFENSE

18
14.

19

As a fourteenth separate and distinct defense, Defendant alleges that

20

Plaintiff’s claim(s) for special damages is barred by his failure to state such claim(s) with sufficient

21

specificity.
FIFTEENTH DEFENSE

22
23

15.

As a fifteenth separate and distinct defense, Defendant alleges that if Plaintiff

24

has suffered any emotional distress (which Defendant denies), any such claim by Plaintiff is barred

25

to the extent such emotional distress was proximately caused by factors other than Plaintiff’s

26

employment andlor the actions of Defendant or anyone acting on Defendant’s behalf.

27

SIXTEENTH DEFENSE

28

As a sixteenth separate and distinct defense, Defendant alleges that to the
Firmwide: I 13317865.3 043907.1139
4

LiTTLER MENOELSON, PC.
5CapdoIM&I
Sto 2000
CA 95814
Saa

16.

DEFENDANT APPLE INC.’S ANSWER TO PLAINTIFF’S COMPLAINT

1

extent Plaintiff has suffered any emotional andJor physical injuries (which Defendant denies), any

2

such claims by Plaintiff are barred to the extent such emotional andlor physical injuries were

3

incurred or sustained outside the course and scope of his employment with Defendant.
SEVENTEENTH DEFENSE

4
17.

5

As a seventeenth separate and distinct defense, Defendant alleges that at no

6

time did Defendant act maliciously, oppressively, fraudulently, or with reckless indifference with

7

respect to Plaintiff or Plaintiff’s rights or employment, or otherwise authorize, consent to, andlor

8

ratify any malicious, oppressive, fraudulent, or recklessly indifferent conduct of any employee or

9

agent of Defendant toward Plaintiff.
EIGHTEENTH DEFENSE

10
18.

11

As an eighteenth separate and distinct defense, Defendant alleges that Plaintiff

12

is prohibited from recovering any punitive or exemplary damages, including any damages pursuant

13

to 42 U.S.C.

§

1981a, California Civil code section 3294, or any similar statute, against Defendant.
NINETEENTH DEFENSE

14
15

19.

As a nineteenth separate and distinct defense, Defendant alleges, to the extent

16

it is determined Plaintiff is entitled to any recovery against Defendant (which Plaintiff is not), any

17

such recovery is precluded and barred, in whole or in part, by virtue of Plaintiff’s failure to exercise

18

reasonable diligence or care to mitigate any injury, loss, or damage allegedly sustained by him.
TWENTIETH DEFENSE

19
20

20.

As a twentieth separate and distinct defense, Defendant alleges that even

21

assuming Plaintiff is entitled to any recovery against Defendant (which Defendant denies), any

22

damages recoverable by Plaintiff must be reduced and offset against any income obtained by

23

Plaintiff from other employment or from other sources.
TWENTY-FIRST DEFENSE

24
25

21.

As a twenty-first separate and distinct defense, Defendant alleges that a

26

reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that

27

Plaintiff’s claims are unreasonable, pursued in bad faith, andlor frivolous so as to justify an award of

28

attorney’s fees and costs and against Plaintiff and his attorneys. Defendant reserves the right to
Firmwide:I 13317865.3043907,1139
5

LITftERMENDELSONPC
500 CaØo1 MaO
Sta 2000
Sac,ier0o,CA
9168207200

DEFENDANT APPLE INC ‘S ANSWER TO PLAINTIFF’S COMPLAINT

I

amend its answer upon further investigation and discovery of facts supporting this defense.
RESERVATION OF RIGHTS AND ADDITIONAL DEFENSES

2
3

Defendant alleges that the Complaint does not describe the claims or facts with

4

sufficient particularity, and is couched in conclusory terms, so as to permit Defendant to ascertain

5

what other defenses may exist. Accordingly, Defendant reserves the right to assert and rely on any

6

and all further defenses that become available or appear during discovery in this action, and

7

Defendant expressly reserves the right to amend this Answer for the purpose of asserting such

8

additional defenses.

9

Defendant later discover facts demonstrating the existence of new and/or additional defenses, and/or

10

Defendant additionally reserves the right to amend this Answer should

should a change in the law support the inclusion of new and/or additional defenses.
PRAYER

11
12

WHEREFORE, Defendant prays for judgment as follows:

13

1.

That Plaintiff take nothing by his Complaint;

14

2.

That Plaintiffs Complaint be dismissed, in its entirety, with prejudice, with

15

judgment entered against Plaintiff and in favor of Defendant on all causes of action;
3.

17

That Defendant be awarded such other and further relief as the Court deems just

and

18
19

That Defendant be awarded its costs of suit and attorney’s fees incurred herein;

4.

16

and proper.

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21

Dated: August 1, 2012

ENJAMTN L. EBSTER
TODD M. RATSHTN
LITTLER MENDELSON, P.C.
Attorneys for Defendants
APPLE INC. and RHONDA HESSBEAVERS (sued erroneously herein as
“RHONDA HESS-BREWER”)

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27
28
LITTLERMENDELSON,PC
500 Capid Mall
SuiEa 2000
Sacrnent CA 95814

Firmwide:I 13317865.3 043907.1139

6

DEFENDANT APPLE INC.’S ANSWER TO PLAINTIFF’S COMPLAINT

_________________________________________________________________________________

_______________

1

PROOF OF SERVICE

2

3

I am a resident of the State of California, over the age of eighteen years, and not a

4

party to the within action. My business address is 500 Capitol Mall, Suite 2000, Sacramento,

5

California 95814. On August 1, 2012, I served the within document(s):

6

DEFENDANT APPLE INC.’S ANSWER TO PLAINTIFF’S
COMPLAINT

7
8
9
10

on that date. This document
by facsimile transmission at or about
complies with California Rules
was transmitted by using a facsimile machine that
of Court Rule 2003(3), telephone number 916.561.0828. The transmission was
reported as complete and without error. A copy of the transmission report, properly
issued by the transmitting machine, is attached. The names and facsimile numbers
of the person(s) served are as set forth below.

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12
13
14
15

by placing a true copy of the document(s) listed above for collection and mailing
following the firm’s ordinary business practice in a sealed envelope with postage
thereon fully prepaid for deposit in the United States mail at Sacramento,
California addressed as set forth below.
by depositing a true copy of the same enclosed in a sealed envelope, with delivery
fees provided for, in an overnight delivery service pick up box or office designated
for overnight delivery, and addressed as set forth below.

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17
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by personally delivering a copy of the document(s) listed above to the person(s) at
the address(es) set forth below.
Based on a court order or an agreement of the parties to accept service by e-mail or
electronic transmission, I caused the documents to be sent to the persons at the e
mail addresses on the attached service list on the dates and at the times stated
thereon. I did not receive, within a reasonable time after the transmission, any
electronic message or other indication that the transmission was unsuccessful. The
electronic notification address of the person making the service is
@ljttler0m.
Spencer F. Smith, Esq.
Dow W. Patten, Esq.
Bethany J. Silva, Esq.
SMITH PATTEN
353 Sacramento Street, Suite 1120
San Francisco, CA 94111
Fax: [phone]
I am readily familiar with the firm’s practice of collection and processing

28
LITTLER MENDELSON, P.C.
500 Captd MaH
Suite 2000
Sacramento, CA 95814
916.820 7200

Firmwide:I 13188723.1 043907.1139

PROOF OF SERVICE

_________________________________________________________________________________

I

correspondence for mailing and for shipping via overnight delivery service. Under that practice it

2

would be deposited with the U.S. Postal Service or if an overnight delivery service shipment,

3

deposited in an overnight delivery service pick-up box or office on the same day with postage or fees

4

thereon fully prepaid in the ordinary course of business.

5
6

I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on August 1, 2012, at Sacramento, California.

Geri Prevatt

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UmERMENOELsON, Pc.
500 Capit Mall
SacramentcA 95814
9168 7200

Firmwide: 113188723.1 043907.1139

2.
PROOF OF SERVICE

3 IIHIHXJ

_____________________________________

I
2
3
4

BENJAMIN L. WEBSTER, Bar No. 132230
TODD M. RATSHIN, Bar No. 245450
LITTLER MENDELSON, P.C.
500 Capitol Mall
Suite 2000
Sacramento, CA 95814
916.830.7200
Telephone:
916.561.0828
Fax No.:

5
6
7

Attorneys for Defendants
APPLE INC. and RHONDA HESS-BEAVERS
(sued erroneously herein as “RHONDA HESSBREWER”)

8

SUPERIOR COURT OF CALIFORNIA

9

COUNTY OF SACRAMENTO

10
DWAYNE RICHARDSON, an individual,
11

Case No. 34-2012-00125838
DEFENDANT RIIONDA HESS-BEAVERS’
ANSWER TO PLAINTIFF’S COMPLAINT

Plaintiff,

12
V.

13
14

APPLE INC., a California corporation;
RHONDA HESS-BREWER, an individual;
and DOES 1 through 20, inclusive,

Complaint Filed: June 13, 2012

15
Defendants.
16
17
18

Defendant RHONDA HESS-BEAVERS, sued erroneously herein as RHONDA

19

HESS-BREWER, hereafter “Defendant,” hereby answers the unverified Complaint of Plaintiff

20

DWAYNE RICHARDSON (“Plaintiff”) and alleges as follows:
GENERAL DENIAL

21
22

Pursuant to California Code of Civil Procedure section 431.30, subdivision (d),

23

Defendant generally and specifically denies each and every allegation contained in Plaintiff’s

24

Complaint, conjunctively and disjunctively. Defendant further denies that Plaintiff has sustained, or

25

will sustain, any injury, loss, or damage in any manner or amount whatsoever by reason of any act or

26

omission, or any other conduct or absence thereof, on the part of Defendant.

27
28
LITTt.ERMENOELSON, PC
500 Cap50 MaO
Suite 2000
SaaanCA 95814

Firmwide:1 13318803.4 043907.1139

DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO PLAINTIFF’S COMPLAINT

DEFENSES

1
2

Without waiving or excusing Plaintiff’s burden of proof, or admitting that Defendant

3

has any burden of proof Defendant asserts the following separate and distinct defenses to Plaintiff’s

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Complaint and each cause of action set forth therein:
FIRST DEFENSE

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1.

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As a first separate and distinct defense, Defendant alleges that Plaintiff’s

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Complaint is barred to the extent it fails to state facts sufficient to constitute a cause of action against

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Defendant.
SECOND DEFENSE

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2.

As a second separate and distinct defense, Defendant alleges that Plaintiff’s

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Complaint, in whole or in part, is barred to the extent that Plaintiff failed to exhaust his available

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administrative remedies pursuant to 42 U.S.C.

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sections 12960, subdivision (b), as well as any other applicable statute, and this Court thus lacks

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jurisdiction over Plaintiff’s Complaint.

2000e-5(e)(1) and California Government Code

THIRD DEFENSE

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§

3.

As a third separate and distinct defense, Defendant alleges that, to the extent

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Plaintiff seeks recovery for his alleged emotional andlor physical injuries, such claims and damages

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are barred by the exclusivity provisions of the Workers’ Compensation Act, codified at California

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Labor Code section 3600 etseq.
FOURTH DEFENSE

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4.

claims are barred, in whole or in part, by the doctrine of unclean hands.
FIFTH DEFENSE

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5.

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LITT1.ERMENDELSON,PC.
500 Capi50 MaI
Suite2

SaanCA 95814

As a fifth separate and distinct defense, Defendant alleges that Plaintiff’s

claims are barred, in whole or in part, by the doctrines of estoppel, waiver, andlor laches.
SIXTH DEFENSE

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As a fourth separate and distinct defense, Defendant alleges that Plaintiff’s

6.

As a sixth separate and distinct defense, Defendant alleges that even assuming

any unlawful or other wrongful acts by Defendant were taken as against Plaintiff (which Defendant
Firmwide:1 13318803.4 043907.1139
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DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO PLAINTIFF’S COMPLAINT

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denies), Plaintiff’s claims are barred to the extent Plaintiff consented to any and all actions by

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Defendant.
SEVENTH DEFENSE

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4

7.

As a seventh separate and distinct defense, Defendant alleges that at all times

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relevant herein, all actions taken with regard to Plaintiff or Plaintiff’s rights or employment were

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just, fair, reasonable, honest, in good faith, privileged, without discrimination and/or retaliation,

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based on legitimate and lawful business reasons and needs, and based upon all relevant facts and

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circumstances known by Defendant at the time of taking such actions.
EIGHTH DEFENSE

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8.

As an eighth separate and distinct defense, Defendant alleges that Plaintiff’s

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Complaint is barred, in whole or in part, based on the doctrine of after-acquired evidence and to the

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extent any and all actions would have been taken against Plaintiff based on such after-acquired

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evidence.
NINTH DEFENSE

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9.

As a ninth separate and distinct defense, Defendant alleges that the Complaint,

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and each cause of action alleged therein, is barred to the extent any harm or damage allegedly

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suffered by Plaintiff was caused by his own intentional and/or negligent acts and/or omissions.
TENTH DEFENSE

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10.

As a tenth separate and distinct defense, Defendant alleges that Plaintiff’s

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claim(s) for special damages is barred by his failure to state such claim(s) with sufficient specificity.

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ELEVENTH DEFENSE

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11.

As an eleventh separate and distinct defense, Defendant alleges that if Plaintiff

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suffered any emotional distress (which Defendant denies), Plaintiff contributed to any such

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emotional distress through his own failure to pursue or avail himself of any internal procedures or

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preventive measures available to him.
TWELFTH DEFENSE

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LITTLER MENOELSON, PC.
500 Capitot Mat!
Suite 2000
SacramentCA 90814

12.

As a twelfth separate and distinct defense, Defendant alleges that if Plaintiff

has suffered any emotional distress (which Defendant denies), any such claim by Plaintiff is barred
Firmwide’ 113318803.4 043907.1139
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DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO PLAINTIFF’S COMPLAINT

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to the extent such emotional distress was proximately caused by factors other than the actions of

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Defendant or anyone acting on Defendant’s behalf.
THIRTEENTH DEFENSE

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13.

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As a thirteenth separate and distinct defense, Defendant alleges that at no time

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did Defendant act maliciously, oppressively, fraudulently, or with reckless indifference with respect

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to Plaintiff or Plaintiff’s rights or employment, or otherwise authorize, consent to, and/or ratify any

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malicious, oppressive, fraudulent, or recklessly indifferent conduct of any employee or agent of

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Defendant toward Plaintiff.
FOURTEENTH DEFENSE

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14.

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As a fourteenth separate and distinct defense, Defendant alleges that Plaintiff

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is prohibited from recovering any punitive or exemplary damages, including any damages pursuant

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to 42 U.S.C.

§

1981a, California Civil code section 3294, or any similar statute, against Defendant.
FIFTEENTH DEFENSE

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15.

As a fifteenth separate and distinct defense, Defendant alleges, to the extent it

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is determined Plaintiff is entitled to any recovery against Defendant (which Plaintiff is not), any such

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recovery is precluded and barred, in whole or in part, by virtue of Plaintiff’s failure to exercise

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reasonable diligence or care to mitigate any injury, loss, or damage allegedly sustained by him.
SIXTEENTH DEFENSE

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16.

As a sixteenth separate and distinct defense, Defendant alleges that even

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assuming Plaintiff is entitled to any recovery against Defendant (which Defendant denies), any

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damages recoverable by Plaintiff must be reduced and offset against any income obtained by

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Plaintiff from other employment or from other sources.
SEVENTEENTH DEFENSE

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17.

As a seventeenth separate and distinct defense, Defendant alleges that a

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reasonable opportunity for investigation and discovery will reveal, and on that basis alleges, that

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Plaintiff’s claims are unreasonable, pursued in bad faith, and/or frivolous so as to justify an award of

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attorney’s fees and costs and against Plaintiff and his attorneys. Defendant reserves the right to

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amend her answer upon further investigation and discovery of facts supporting this defense.
Firmwide:1 13318803.4043907.1139
4

LIflLERMENDELSONPC.
500 Cautc4
Suite 2000
SacamenbCA 95014

DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO PLAINTIFF’S COMPLAINT

_________

RESERVATION OF RIGHTS AND ADDITIONAL DEFENSES
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Defendant alleges that the Complaint does not describe the claims or facts with

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sufficient particularity, and is couched in conclusory terms, so as to permit Defendant to ascertain

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what other defenses may exist. Accordingly, Defendant reserves the right to assert and rely on any

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and all further defenses that become available or appear during discovery in this action, and

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Defendant expressly reserves the right to amend this Answer for the purpose of asserting such

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additional defenses.

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Defendant later discover facts demonstrating the existence of new and/or additional defenses, and/or

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should a change in the law support the inclusion of new and/or additional defenses.

Defendant additionally reserves the right to amend this Answer should

PRAYER

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WHEREFORE, Defendant prays for judgment as follows:

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1.

That Plaintiff take nothing by his Complaint;

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2.

That Plaintiff’s Complaint be dismissed, in its entirety, with prejudice, with

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judgment entered against Plaintiff and in favor of Defendant;
3.

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That Defendant be awarded such other and further relief as the Court deems just

and

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That Defendant be awarded her costs of suit and attorney’s fees incurred herein;

4.

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and proper.

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Dated: August 1, 2012

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BENJAMIN L. WEBSTER
TODD M. RATSHIN
LITTLER MENDELSON, P.C.
Attorneys for Defendants
APPLE INC. and RHONDA HESSBEAVERS (sued erroneously herein as
“RHONDA HESS-BREWER”)

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LITTLERMENOELSONPC
500 Captd MaO
Swte 2000
Saa CA 05814

Firmwide:1 13318803.4 043907.1139

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DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO PLAINTIFF’S COMPLAINT

_______________

PROOF OF SERVICE

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I am a resident of the State of California, over the age of eighteen years, and not a

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party to the within action. My business address is 500 Capitol Mall, Suite 2000, Sacramento,

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California 95814. On August 1, 2012, I served the within document(s):

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DEFENDANT RHONDA HESS-BEAVERS’ ANSWER TO
PLAINTIFF’S COMPLAINT

7.

on that date. This document
by facsimile transmission at or about
machine that complies with California Rules
was transmitted by using a facsimile
of Court Rule 2003(3), telephone number 916.561.0828. The transmission was
reported as complete and without error. A copy of the transmission report, properly
issued by the transmitting machine, is attached. The names and facsimile numbers
of the person(s) served are as set forth below.

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by placing a true copy of the document(s) listed above for collection and mailing
following the firm’s ordinary business practice in a sealed envelope with postage
thereon fully prepaid for deposit in the United States mail at Sacramento,
California addressed as set forth below.

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by depositing a true copy of the same enclosed in a sealed envelope, with delivery
fees provided for, in an overnight delivery service pick up box or office designated
for overnight delivery, and addressed as set forth below.

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by personally delivering a copy of the document(s) listed above to the person(s) at
the address(es) set forth below.
Based on a court order or an agreement of the parties to accept service by e-mail or
electronic transmission, I caused the documents to be sent to the persons at the e
mail addresses on the attached service list on the dates and at the times stated
thereon. I did not receive, within a reasonable time after the transmission, any
electronic message or other indication that the transmission was unsuccessful. The
electronic notification address of the person making the service is
@littler.com.

Spencer F. Smith, Esq.
Dow W. Patten, Esq.
Bethany J. Silva, Esq.
SMITH PATTEN
353 Sacramento Street, Suite 1120
San Francisco, CA 94111
Fax: [phone]
I am readily familiar with the firms practice of collection and processing

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LLTILERMENDELSONPC.
500 Capi50 MaO
Suite 2000
Scrnlo,CA 95814
9168307200

Frmwide:1 13188723.1 043907.1139

PROOF OF SERVICE

________________________________________________________________________________________

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correspondence for mailing and for shipping via overnight delivery service. Under that practice it

2

would be deposited with the U.S. Postal Service or if an overnight delivery service shipment,

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deposited in an overnight delivery service pick-up box or office on the same day with postage or fees

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thereon fully prepaid in the ordinary course of business.

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I declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on August 1, 2012, at Sacramento, California.

Geri Prevatt

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urn.ER MENDELSON, PC.
500 Captc Mall
Saaamento,CA 95814
916.820.7200

Firmwide: 113188723.1 043907.1139

2.
PROOF OF SERVICE

_______________

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PROOF OF SERVICE

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3

I am a resident of the State of California, over the age of eighteen years, and not a

4

party to the within action. My business address is 500 Capitol Mall, Suite 2000, Sacramento,

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California 95814. On August 2, 2012, I served the within document(s):

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NOTICE OF REMOVAL OF CIVIL ACTION TO FEDERAL
COURT FROM STATE COURT BY DEFENDANTS

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8

E1

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on that date. This document
by facsimile transmission at or about
facsimile machine that complies with California Rules
was transmitted by using a
of Court Rule 2003(3), telephone number 916.561.0828. The transmission was
reported as complete and without error. A copy of the transmission report, properly
issued by the transmitting machine, is attached. The names and facsimile numbers
of the person(s) served are as set forth below.

11
by placing a true copy of the document(s) listed above for collection and mailing
following the firm’s ordinary business practice in a sealed envelope with postage
thereon fully prepaid for deposit in the United States mail at Sacramento,
California addressed as set forth below.

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13
14
15

U

by depositing a true copy of the same enclosed in a sealed envelope, with delivery
fees provided for, in an overnight delivery service pick up box or office designated
for overnight delivery, and addressed as set forth below.

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by personally delivering a copy of the document(s) listed above to the person(s) at
the address(es) set forth below.
Based on a court order or an agreement of the parties to accept service by e-mail or
electronic transmission, I caused the documents to be sent to the persons at the e
mail addresses on the attached service list on the dates and at the times stated
thereon. I did not receive, within a reasonable time after the transmission, any
electronic message or other indication that the transmission was unsuccessful. The
electronic notification address of the person making the service is
(1ittler.com.
Spencer F. Smith, Esq.
Dow W. Patten, Esq.
Bethany J. Silva, Esq.
SMITH PATTEN
353 Sacramento Street, Suite 1120
SanFrancisco,CA 94111
Fax: [phone]
I am readily familiar with the firm’s practice of collection and processing

28
ILER MENDELSON,
500 Capitd Mall

pc.

SacramantpcA 95814
916,830.7200

Firmwide: 1131 88723.1 043907.1139

PROOF OF SERVICE

I

correspondence for mailing and for shipping via overnight delivery service. Under that practice it

2

would be deposited with the U.S. Postal Service or if an overnight delivery service shipment,

3

deposited in an overnight delivery service pick-up box or office on the same day with postage or fees

4

thereon fully prepaid in the ordinary course of business.

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1 declare under penalty of perjury under the laws of the State of California that the
above is true and correct. Executed on August 2, 2012, at Sacramento, California.

Geri Prevatt
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TLERMENDELSON,PC
500 CapIoI MaI
SacrameniocA 95814
916,830.7200

Firmwide:1 13188723.1 043907.1139

2.
PROOF OF SERVICE