Today, the plaintiff begs the Superior Court for a continuance.
December 18, 1012
The plaintiff asserts that his complaint is sufficient against a demurrer
because the pleading is reasonably specific.
(California Code of Civil Procedure, Section 602)
OF THE STATE OF CALIFORNIA
SAN MATEO COUNTY
David Arthur Dailey
California Department of Public Health,
Human Resources Chief Sandra Cornwell,
Life Safety Code Unit Chief Colleen Kwappenberg Reeves, and Legal Counsel Belinda Whitsett, et. al.
OF DAVID A. DAILEY
This amended brief clarifies the original complaint that was filed on October 24, 2011. This is filed subsequent to the Case Management Conference on April 27, 2012.
I, David A. Dailey, ask for the Court’s relief and resolution about numerous harmful acts and violations of: A) The Americans with Disabilities (ADA) Act (United States Code, Title 42, Sections 12101-12202), B) The California Fair Employment and Housing Act (FEHA) (California Government Code, Sections 12900-12976), C) The Unruh Civil Rights Act (California Civil Code, Sections 51 and 52), D) the federal Equal Employment Opportunity Commission (EEOC) statutes and regulations, and E) the employer’s written standard operating procedures and Supervisors’ Personnel Manual.
I, the plaintiff, assert that the Department of Public Health (CDPH) and Department of Health Services (CDHS) of the State of California is subject to a plaintiff’s recovery of damages under the ADA, California Civil Code, and California Government Code. My employer unlawfully terminated me, and in the process, caused medical and psychological harm as well as damaged my professional career as a certified safety specialist in California since May 1980 (28 years).
The provisions of the ADA, Unruh Civil Rights Act, and Fair Employment and Housing Act apply to all persons working, including those employed by the State of California, within California. There is no exemption for public servants’ compliance.
At least three managers, co-defendants Belinda Whitsett, Sandra Cornwell, and Colleen Kwappenberg Reeves, working in the CDPH and CDHS Legal, Human Resources, and Life Safety Code Unit divisions, not only violated the aforementioned laws (items A through D) in paragraph two, lines 20 through 26, as well as the Department’s internal procedures (E), but also acted in bad faith. Management knew the plaintiff had at least one disability and failed to act lawfully or fair toward David Arthur Dailey.
The parties can agree to the validity of the facts as follows:
- The disabled plaintiff’s work as a Health Facilities Evaluator within the Life Safety Code Unit was unlawfully terminated on or about November 6, 2008, after over sixty-one (61) months of satisfactory employment within the California Department of Public Health (CDPH), once known as the California Department of Health Services. A termination letter was handed on October 30, 2008, to the plaintiff David A. Dailey in San Jose by co-defendant Colleen KwappenbergReeves immediate subordinate. That letter was signed by co-defendant Sandra Cornwell of Human Resources. Legal terms and jargon indicate that it was reviewed directly by co-defendant Belinda Whitsett or her Legal Division staff.
- Although the plaintiff initially received a reasonable accommodation for medically recognized disabilities when hired on April 22, 2003, and re-hired on March 9, 2005, the Life Safety Code Unit Manager co-defendant Colleen Kwappenberg Reeves took away the plaintiff’s reasonable accommodations without any agreement on the plaintiff’s part. This action was taken in conflict with The Americans with Disabilities (ADA) Act, Title 29, Code of Federal Regulations, Sections 1630.2 (k), 1630.9, and 1630.12, and the California Government Code (FEHA) Section 12940 (m).
- Co-defendant Sandra Cornwell was in-charge as the CDPH Human Resources Division Chief during this unlawful activity that occurred during 2007 and 2008. She is responsible for directing adherence to all employment laws and especially EEOC compliance throughout the Department. This complaint alleges violations of FEHA Sections 12921 (a), 12926 (a), 12940 (a), (h), (k), (m), (n), 12946, and 12948.
- Colleen Kwappenberg Reeves was in-charge as the CDPH Licensing and Certification Life Safety Code Unit Chief since May 2007. The Chief works from the San Bernardino District Office and has never been working in the field with David Dailey during a life safety code survey; thus has no first-hand knowledge of his work performance.
- The plaintiff received a Masters of Science degree in Health Education and Safety Management (1979), became a Certified Manager by examination (1987) from the Institute of Professional Certified Managers, and earned Certified Safety Professional credentials from the Board of Certified Safety Professionals (1984 and 1985). Co-defendant Colleen Kwappenberg Reeves is a Registered Nurse with no graduate college degree and should be held accountable as the immediate manager implementing unethical, harassing, unprofessional, onerous, unfair, and unlawful activity upon the plaintiff during 2007, 2008, and 2009.
- Belinda Whitsett was the supervising lawyer with the CDPH during 2007 and 2008 when this unlawful activity, specified in this complaint that took place. She is responsible for her subordinates’ actions and should be held accountable. Legal actions were taken contrary to FEHA Sections 12920, 12921 (a), 12926 (a), 12940 (a), (h), (k), (m), (n), and 12948.
- Upon termination, the plaintiff was prohibited from receiving continuing health and dental insurance benefits, and his COBRA rights, pursuant to the federal Comprehensive Omnibus Budget Reconciliation Act of 1985, were revoked by the Human Resources Division in January 2009. As a result, the plaintiff’s health suffered and his costs of medical care were very high and much had to be paid out-of-pocket. Co-defendant Sandra Cornwell manages the CDPH’s Human Resources Division that made the determination.
- During December 2007, issues of the eroding of reasonable accommodation again were discussed directly with the unit manager/Unit Chief, Colleen Kwappenberg Reeves. No affirmative action was taken by the Department of Public Health as required by The Americans with Disabilities (ADA) Act (United States Code, Title 42, Sections 12101-12202), and the California Fair Employment and Housing Act (FEHA) (California Government Code, Sections 12900-12976).
- The events of December 27 through December 31, 2007, between Dailey and Reeves, when he pursued employment rights as a disabled worker previously issued a reasonable accommodation that should have been honored, preceded a series of work restrictions, retaliation, harassment, investigation, and other discriminatory actions against the plaintiff between January and October 2008. These actions are contrary to FEHA Sections 12940 (h) and (k) and 12948, US Title 29, Sections 1630.4, 1630.9, 1630.12, and California Civil Code Section 51(b).
- The Unit/Department Chief, co-defendant Colleen Kwappenberg Reeves, wrote up and reprimanded the plaintiff unjustly for infractions about which he was not guilty. Discipline was also issued for behavior related to his disability. Termination adverse action documents used the terms “insubordination”, “discourteous”, and “failure of good behavior” incorrectly.
- Co-defendant Sandra Cornwell’s Human Resources Division staff failed to file the disciplined employee’s memos of explanation, nor allowed the plaintiff a review of his personnel file as requested in July and August 2008. This may be a violation of FEHA Section 12946.
- The plaintiff’s original supervisor within the Life Safety Code Unit, Peter Rivera, retired on April 30, 2007. Management allowed a reasonable accommodation (time for medical treatment between the hours of 8 a.m. to 5 p.m. as long as the assigned work was completed) at the time of rehire in 2005. Since that point in-time, reasonable accommodations were lost under the management of co-defendant Colleen Kwappenberg Reeves.
- The plaintiff alleges that the unit’s discriminatory; harassment, investigation, and retaliation actions were subsequent to his 2007 pursuit of employment rights as a citizen with a disability. A two-and-a-half inch stack of allegations and related documents were handed to the plaintiff in the San Jose district office on October 30, 2008. Under ADA Title V, “those exercising their rights are protected from retaliation.” Furthermore, U.S.C. Title 42, Chapter 126, specifies that “the state shall not be immune” to comply with ADA provisions.
- The plaintiff’s confidential medical records were compromised in the San Jose and San Bernardino offices of the Life Safety Code Unit. Prior to October 30, 2008, medical statements, diagnoses, and prognoses were received, mishandled, intercepted via fax from Dr. Belcadi of Santa Rosa and Dr. Anderson of Healdsburg, California.
- The plaintiff was ordered not to go into his assigned Santa Rosa office after January 15, 2008, by co-defendant Colleen Kwappenberg Reeves. He was told to report to San Jose, which is at a distance greater than 125 miles from where the plaintiff had been receiving medical treatment for his disabilities. The plaintiff for a length of time, 2006-2008, had been able to work out of the CDPH’s Richmond Facility, which is significantly closer to Santa Rosa and Healdsburg. Reasonable accommodations are required per Title 29, Section 1630.9 and FEHA Section 12940 (m).
- The working conditions and climate within the San Jose District office were not suitable and were onerous and harassing toward the plaintiff. This action was contrary to FEHA 12940 (k).
- The defendant issued discipline, unfair work restrictions, and adverse counseling memos on multiple occasions after the events between the Unit Chief Colleen Kwappenberg Reeves and plaintiff during March 2007 and December 2007. These written reprimands were issued during 2008, even when the plaintiff was on medical leave. Co-defendant Belinda Whitsett’s legal division was clearly involved with these formal written counseling memos. Although signed by the plaintiff’s immediate supervisor, the memos included legal terms and jargon and vocabulary beyond the supervisor. In addition, no union representative was present during any disciplinary conference as dictated by the CDPH’s own internal policies and procedures. These events were contrary to FEHA 12921 (a), 12926 (a), 12940 (a), (h), (k), (m), (n), and 12948.
- Although out on medical leave during the winter and spring of 2007-2008, the Department performed a sub-rosa investigation including for the use of a dated Dell laptop computer issued to the plaintiff’s care, custody, and control. These acts of bad faith and the following incident were collaborated with co-defendant Belinda Whitsett’s Legal Division. The assigned computer and state-issued auto were confiscated on January 25, 2008, in an embarrassing episode by co-defendant Colleen Kwappenberg Reeves’ immediate subordinate Supervisor Michael Gonzales, accompanied by two California Highway Patrol squad cars, into the plaintiff’s quiet, urban Healdsburg residential neighborhood. This is contrary to FEHA Section 12940(k).
- Co-defendant Life Safety Code Unit Chief Colleen Kwappenberg Reeves refused to reimburse the plaintiff for a leased Honda used for work activities north of Redding. Due to the disabled condition of the plaintiff’s back and the poor condition of state-provided auto’s drivers seats, David Dailey procured a new car with back support to provide relief. The Honda was repossessed in 2008 because the plaintiff could not make payments. The non-provision of a reasonable accommodation is a violation of FEHA Section 12940 (m) and US Title 29, Section 1630.9,
- Co-defendant Life Safety Code Unit Chief Colleen Kwappenberg Reeves ordered on two occasions in 2008 to take the plaintiff’s state-provided automobile away. All other unit employees had a state auto for work activities. After the second incident, the plaintiff was ordered and burdened to use his own vehicle to perform daily inspections across Northern California. ADA Title V specifies that a disabled worker “cannot be limited in an adverse way.” This action is also contrary to FEHA Sections 12940 (k) and (n).
- Plaintiff David Dailey was ordered by his immediate supervisor and co-defendant unit manager Colleen Kwappenberg Reeves to work at distances away from the plaintiff’s home base–office. He was not reimbursed for mileage and travel expenses as other Health Facilities Evaluators are. Unit management knew his vehicle, a 2008, 32-foot motor home was expensive to operate (i.e. 11 miles per gallon at a cost of over $4.00 per gallon, $260 for an oil change). These actions are contrary to FEHA Sections 12940 (h), (k) and (n).
- Not all charges against the plaintiff adversely affecting a routine 2008 annual merit raise and receiving multiple disciplinary memos were true or valid. He was denied an annual raise in January 2008 by co-defendant Colleen Kwappenberg Reeves while on medical leave. These actions were contrary to FEHA Sections 12940 (k) and (n), and US Title 29, Sections 1630.4 (ii) and (vi).
- The plaintiff suffered food poisoning and later long-term gastrointestinal illnesses while on a business trip to ClearLake Hospital during November 2007. Co-defendant Colleen Kwappenberg Reeves did nothing to help David Dailey. Time away from usual work duties exceeded 12 business days. He did not receive any workers’ compensation, state disability, or department catastrophic leave benefits. These actions were contrary to FEHA Sections 12940 (a), (k) and (n), and US Title 29, Section 1630.4 (vi).
- Unit Chief Colleen Kwappenberg Reeves ignored two requests for catastrophic leave assistance by the plaintiff from the Department. Many department employees utilize this benefit. The plaintiff’s pleas were not acted upon. The plaintiff’s accrued sick leave time was used up. The second formal proposal was submitted on March 12, 2008. This inaction is contrary to Title 29, Section 1630.4 (vi).
- Union grievances were filed on May 29 and July 1, 2008, yet no affirmative action was taken by the Department of Public Health. Co-defendant Colleen Kwappenberg Reeves ordered her subordinate Michael Gonzales to write a memo telling the plaintiff that plaintiff’s two grievances were invalid. These actions are contrary to FEHA Sections 12940 (h) and (n).
- On September 8, 2007, a letter from the plaintiff’s physician was faxed to unit management regarding a back disability accommodation. No reimbursement was received for an assistive device needed during driving commute hours between inspection visits. This inaction was contrary to Title 29, Sections 1630.2 (k) and 1630.9 and FEHA Section 12940 (m).
- Formal and verbal requests to the CDPH Human Resources Division, managed by co-defendant Sandra Cornwell, from the plaintiff were ignored. The plaintiff was never allowed to view his personnel file and records as was requested during the summer of 2008. In retrospect, this would have “tipped off” David Dailey of the length and breath of the subrosa investigation in-progress. This may be a violation of FEHA Section 12940 (n).
- Information was sent to the California Department of Public Health’s Office of Civil Rights during the summer and fall of 2008. This office is managed by co-defendant Sandra Cornwell. No affirmative action was taken. The inaction is contrary to FEHA Section 12940 (k).
- Life Safety Code Unit management, co-defendant Chief Colleen Kwappenberg Reeves, did not inform the plaintiff until September 2008 that certain forms needed to be filled out by the disabled employee and where to send them. No assistance was offered or the process explained by the Unit. The department’s Office of Civil Rights is managed by co-defendant Sandra Cornwell. The Department took no affirmative action. These actions were contrary to FEHA Sections 12921 (a), 12940 (a), (h), (m), and (n).
- Subsequent to termination in November 2008, the plaintiff was refused jobs both with the State of California because of CDPH action instituted by co-defendant Sandra Cornwell’s Human Resources Division. This is contrary to FEHA Section 12940 (k) and Section 12948. As of October 2011, David Dailey remains unemployed. As of March 2012, the plaintiff has not yet found work; even though assistance since June 2011 is currently being given by the California Department of Rehabilitation and the San Mateo County Vocational Resource Services in San Carlos.
- During a proceeding in Oakland, the legal representative of the CDPH, Sharon Simms, supervised by co-defendant Belinda Whitsett, accompanied by a CDPH Human Resource Division representative, supervised by co-defendant Sandra Cornwell, told the administrative judge during the preliminary State Personnel Board (SPB) hearing that a monetary award would be given to the plaintiff if he withdrew his appeal to the SPB and ceased taking further legal action against the CDPH including pursuit of due process for rights under the Americans with Disabilities Act. This action is contrary to FEHA Section 12940 (n).
- Prior to April 18, 2010, the legal representative of the CDPH, Sharon Simms, supervised by co-defendant Belinda Whitsett, wrote and presented a Stipulation for Settlement that offered the plaintiff a “voluntary resignation” rather than a “termination” if he dropped further action against the CDPH filed with the federal EEOC. This action is contrary to FEHA Section 12940 (n).
- Actions of the defendant were proprietary, as distinct from governmental, since the CDPH receives funds from the federal Department of Health and Human Services for performing each Medicare-compliance inspection. In much the same way as a business subcontracts, the activities of the CDPH Licensing and Certification units, where the plaintiff worked for over 5 years, are paid for by the federal government.
- On or about March 11, 2011, the plaintiff received a right-to-sue letter from the United States Equal Employment Opportunity Commission.
- The plaintiff asserts that both federal and more stringent California laws apply in this case. On the state’s webpage (www.accessdisabilityinfo.ca.gov) it states, that “public entities must adhere with all non-discrimination laws and regulations regarding the employment of people with disabilities” under both the federal Americans with Disabilities Act and its Amendments (Public Law 101-336 and Public Law 110-325).”
- The California Unruh Civil Rights Act (California Civil Code 51-52), enacted in 1959, supports the employment and recovery rights of the disabled. The State Fair Employment and Housing Act (California Government Code 12900-12976) laws have also been violated. No government entity is exempted from compliance. Furthermore, Civil Code Section 51 states: “required doctor visits are not to be held against anyone with a disability.”
California Civil Code Section 51 states that, “Whoever denies rights or makes any discrimination contrary to the civil rights act is liable for each and every offense.”
- California Civil Code Section 52(a) states that monetary damages up to three-times the amount of actual damages may be awarded. Section 52(b) specifies that whoever denies rights guaranteed under Section 51 of the California Unruh Civil Rights Act may be liable to pay exemplary damages.
The plaintiff asks the Court for appropriate resolution, judgment, and relief.
- Back wages paid to the plaintiff from the inception of the defendant’s Adverse Action was enforced on November 6, 2008, to the date of the Court’s judgment.
- Payment to the plaintiff of medical costs incurred since November 2008.
- Recovery of all litigation costs from the defendant.
- Punitive and exemplary damages awarded to the plaintiff and non-profit advocacy groups for workers with disabilities, as the Court deems appropriate.
- Sanctions against the California Department of Public Health so that another employee with a disability is not denied a reasonable accommodation and other civil rights.
- Written statements affirming the state department’s future compliance submitted to the San Francisco Chronicle, Los Angeles Times, San Jose Mercury News, and the Sacramento Bee.
I declare under penalty of perjury that the foregoing statements are true and correct.
I reserve the right for a trial by jury.
Executed May 3, 2012, at Redwood City, California.
David Arthur Dailey
Plaintiff and pro per attorney