Case 3:21-cv-01206-DMS-LL Document 1 Filed 07/01/21 PageID.1 Page 1 of 15
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`Eric K. Yaeckel [CSB No. 274608]
`yaeckel@sullivanlawgroupapc.com
`Ryan T. Kuhn [CSB No. 324538]
`ryan@sullivanlawgroupapc.com
`SULLIVAN & YAECKEL LAW GROUP, APC
`2330 Third Avenue
`San Diego, California 92101
`(619) 702-6760 * (619) 702-6761 FAX
`
`Attorneys for Plaintiff EVELYN DESSAMERO-SISON, Individually and on behalf
`of other members of the general public similarly situated
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`CASE NO.
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`'21CV1206
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`DMS
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`LL
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`[Proposed Class Action]
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`COMPLAINT FOR:
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`1.
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`2.
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`3.
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`VIOLATION OF FAIR LABOR
`STANDARDS ACT;
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`VIOLATION OF BUSINESS
`AND PROFESSIONS CODE §
`17200 ET SEQ.;
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`D I S C R I M I N A T I O N
`PURSUANT TO CAL. GOV’T.
`Code § 12940(a)]
`
`Demand for Jury Trial
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`
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`EVELYN DESSAMERO-SISON,
`Individually and on behalf of other
`members of
`the general public
`similarly situated
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`Plaintiff,
`
`v.
`
`PALOMAR HEALTH, a business
`entity, form unknown; PALOMAR
`MEDICAL CENTER ESCONDIDO,
`a business entity, form unknown, and
`DOES 1-10, inclusive
`
`Defendants
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`_______________________________________________________________________________
`Proposed Class Action Complaint
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`COMES NOW Plaintiff EVELYN DESSAMERO-SISON, (“Plaintiff” or
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`“SISON”), individually and on behalf of all other members of the general public
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`similarly situated, and alleges for her Complaint as follows:
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`PARTIES, JURISDICTION, AND VENUE
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`1.
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`At all relevant times herein, SISON was and is an individual working in the
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`County of San Diego, State of California.
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`2.
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`Plaintiff is informed and believes and thereon alleges that at all relevant times
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`mentioned herein, Defendant PALOMAR HEALTH was and is a business entity,
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`form unknown, doing business throughout the state, including the County of San
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`Diego, state of California. Defendant PALOMAR MEDICAL CENTER
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`ESCONDIDO was and is a business entity, form unknown, doing business
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`throughout the state, including the County of San Diego, state of California.
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`(Collectively, PALOMAR HEALTH and PALOMAR MEDICAL CENTER
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`ESCONDIDO and are referred to collectively as Defendants, or “PALOMAR”).
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`3.
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`Venue is proper because certain acts constituting the below violations were
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`committed in San Diego County.
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`4.
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`Plaintiff is presently unaware of the true names, capacities, and liability of
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`defendants named herein as DOES 1 through 10, inclusive. Accordingly,
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`Plaintiff will seek leave of court to amend this complaint to allege their true
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`names and capacities after the same have been ascertained.
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`5.
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`Plaintiff is informed and believes, and thereon alleges, that each of the
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`fictitiously named defendants is responsible in some manner for the wrongs and
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`damages as herein alleged, and in so acting was functioning as the agent,
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`servant, partner, and employee of the co-defendants, and in doing the actions
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`mentioned below, was acting within the course and scope of his or her authority
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`as such agent, servant, partner, and employee with the permission and consent
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`of the co-defendants. Plaintiff’s injuries as herein alleged were proximately
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`caused by said defendants. Wherever it is alleged herein that any act or omission
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`was done or committed by any specially named defendant or defendants,
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`Plaintiff intends thereby to allege and does allege that the same act or omission
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`was also done and committed by each and every defendant named as a DOE,
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`both separately and in concert or conspiracy with the named defendant or
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`defendants.
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`6.
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`Plaintiff is informed and believes, and thereon alleges, that Defendants, and each
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`of them, including DOES 1 through 10, are and at all times herein mentioned
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`were either
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`individuals, sole proprietorships, partnerships, registered
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`professionals, corporations, alter egos or other legal entities which were licensed
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`to do and/or were doing business in (among others) the County of San Diego, in
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`the State of California, at all times relevant to the subject matter of this action.
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`7.
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`The Fair Labor Standards Act of 1938 (“FLSA”) authorizes Court actions by
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`private parties to recover damages for violations of the FLSA’s wage and hour
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`provisions. Jurisdiction over Plaintiff’s FLSA claims is based upon 29 U.S.C.
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`section 216(b) and 28 U.S.C. section 1331.
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`8.
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`Under 28 U.S.C. section 1367, this Court has supplemental jurisdiction over
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`Plaintiff’s state law claims because the state claims are so related to the FLSA
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`claims that they form part of the same case of controversy. Additionally,
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`jurisdiction over Plaintiff’s state law claims is based upon the Class Action
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`Fairness Act, 28 U.S.C. section 1332(d)(2)(A), because the amount in
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`controversy exceeds five-million dollars ($5,000,000.00), exclusive of interest
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`and costs, and because the parties are diverse.
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`COLLECTIVE AND CLASS ACTION ALLEGATIONS
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`9.
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`Plaintiff SISON brings Count I, the FLSA claim, as a statewide “opt-in”
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`collective action pursuant to 29 U.S.C. section 216(b), on behalf of herself and
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`the following persons:
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`All current and former nonexempt employees of PALOMAR who
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`have worked for PALOMAR in the state of California at any time
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`_______________________________________________________________________________
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`during the last three years.
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`10.
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`SISON brings Count II (violation of California Business & Professions Code
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`section 17200 et seq.) as an “opt-out” class action pursuant to Fed.R.Civ.P. 23,
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`on behalf of herself and as the Class Representative of the following persons:
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`All current and former nonexempt employees of PALOMAR who have
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`worked for PALOMAR in the state of California within the last four
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`years.
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`11.
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`The FLSA claim is pursued on behalf of those who opt-in to this case, pursuant
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`to 29 U.S.C. section 216(b).
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`12.
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`The count two state law claims, if certified for class-wide treatment, are pursued
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`on behalf of all similarly situated persons who do not opt-out of the Class.
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`13.
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`Plaintiff, individually and on behalf of all other similarly situated employees,
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`seeks relief on a collective basis challenging, among other FLSA violations,
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`PALOMAR’S uniform practice of: (1) failing to pay employees for all overtime
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`compensation due, as a result of PALOMAR’ failure to properly calculate the
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`“Regular Rate of Pay” for purposes of calculating the Overtime rate of pay; (2)
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` the Class was not compensated for hours they worked before and after they
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`clocked in/out of Defendant’s time keeping, and during the times that they
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`working while they were clocked out for a lunch break, but were still working,
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`as evidenced by Defendant’s other computerized and/or electronic systems. The
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`facts for these allegations are set forth below in Count I. The number and
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`identity of other plaintiffs may be determined from PALOMAR’s records and
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`potential class members may easily and quickly be notified of the pendency of
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`this action.
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`14.
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`Plaintiff’s count two state law claims satisfy the numerosity, commonality,
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`typicality, adequacy and superiority requirements of a class action pursuant to
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`Fed.R.Civ.P. 23.
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`15.
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`The class on whose behalf the action is brought is so numerous that joinder of
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`_______________________________________________________________________________
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`all parties individually would be impracticable. Plaintiff brings this action on
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`behalf of approximately Three Thousand (3,000) non-exempt, current and former
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`employees of Defendant who work or worked facilities located in California, and
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`who share a common or general interest, and it would be impracticable for those
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`employees to bring the action individually. Any variations in job activities
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`between the individual class members are legally insignificant to the issues
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`presented by this action since the central facts remain, to wit, Plaintiff and all
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`other class members were improperly denied the benefits and protections of the
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`FLSA, by and through Defendants’ standard and institutionalized practices, and
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`were therefore victims or the illegal and/or unfair acts and practices of
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`PALOMAR.
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`16.
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`The approximately Three Thousand (3,000) member class is ascertainable via
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`their experience as current or former employees of Defendants, designated by
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`PALOMAR as “non-exempt” and thus entitled to Overtime Compensation, who
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`work or worked in facilities located in California.
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`17.
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`This action involves questions of law and fact common to the Class that
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`predominate over any questions affecting only individual members in that
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`Plaintiff brings this action on behalf of a class of Defendant’s current and former
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`nonexempt employees who work or worked in facilities located in California and
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`who were and/or are denied the benefits and protections of the FLSA. The
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`questions of law and fact common to the Class arising from PALOMAR’s
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`actions include, without limitation, the following:
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`a. Whether PALOMAR deprived Class Members of proper and complete
`compensation (including overtime compensation) in violation of, inter
`alia, sections 207(a) and 207(e) of the FLSA, and 29 C.F.R. section
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`778.207 in that PALOMAR failed to properly calculate the Regular Rate
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`of Pay (for purposes of calculating the proper Overtime Rate of Pay) for
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`those employees who received a shift differential. Employers must include
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`shift differential pay when determining an employee’s Regular Rate of
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`Pay. 29 CFR §778.207(b). The proper method to calculate the Overtime
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`Compensation under the FLSA is to include all remuneration in any given
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`work week and divide by the total hours worked to get the Regular Rate
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`of Pay. 29 CFR § 778.109. PALOMAR failed to properly perform such
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`an action, to Plaintiff’s, and class members’, monetary loss.
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`b. Whether PALOMAR deprived Class Members of proper and complete
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`compensation (including overtime compensation) in violation of, inter
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`alia, section 207(a) of the FLSA, and 29 C.F.R. sections 778.106 and
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`785.11 in that PALOMAR uses a illegal method of calculating time
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`worked, where PALOMAR does not pay employees for the number of
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`hours they actually worked, but rather through a standard compensation
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`policy which (1) does not take into account (a) the employees' actual
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`electronic log-in and log-out times; (b) the hours employees worked
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`before and after they clocked in/out of Defendants’ time keeping system
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`but were still working, as evidenced by Defendants’ other electronic
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`systems and emails, and (2) PALOMAR systematically redacts 30 minutes
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`of recorded time worked, without any knowledge as to whether employees
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`were performing work during this time.
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`18.
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`The questions set forth above predominate over any questions affecting only
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`individual persons, and a class action is superior with respect to considerations
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`of consistency, economy, efficiency, fairness and equity to other available
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`methods for the fair and efficient adjudication of the state law claims.
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`19.
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`Plaintiff’s claims in this action are typical of the class whom Plaintiff generally
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`represents. The claims result from Defendant’s standard and institutionalized
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`practices, experienced by Plaintiff and all other class members. Any differences
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`in job titles are immaterial, as Defendant used (and uses) a standard system to
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`compensate the class members.
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`20. A class action is the appropriate method for the fair and efficient adjudication
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`of this controversy. PALOMAR has acted or refused to act on grounds generally
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`applicable to the Class. The presentation of separate actions by individual Class
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`Members could create a risk of inconsistent and varying adjudications, establish
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`incompatible standards of conduct of PALOMAR, and/or substantially impair
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`or impede the ability of Class Members to protect their interests.
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`21.
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`Plaintiff is an adequate representative of the Class because she is a member of
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`the Class and her interests do not conflict with the interests of Class Members
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`whom he seeks to represent. The interests of the Class Members will be fairly
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`and adequately protected by Plaintiff and the undersigned counsel, who have
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`extensive experience prosecuting complex wage and hour, employment and class
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`action litigation.
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`22. Maintenance of this action as a class action is a fair and efficient method for
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`adjudication of this controversy. It would be impracticable and undesirable for
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`each Class Member who suffered harm to bring a separate action. In addition,
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`the maintenance of separate actions would place a substantial and unnecessary
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`burden on the courts and could result in inconsistent adjudications, while a
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`single class action can determine, with judicial economy, the rights of all Class
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`Members.
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`FACTUAL BACKGROUND
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`23.
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`In December 2014, Plaintiff DESSAMERO-SISON commenced working for
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`Defendants as a nursing supervisor. She continued working for Defendants until
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`through May of 2019. Throughout her employment with Defendants, Plaintiff
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`performed her job in a capable and competent manner and was commended for
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`doing so.
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`24.
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`Throughout the term of their employ, Plaintiff and all other class members were
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`and are currently denied the benefits and protections of the FLSA, due to the
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`institutionalized pay practices of Defendant, standard as to all Defendant’s non-
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`exempt employees.
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`COUNT I
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`VIOLATION OF FAIR LABOR STANDARDS ACT OF 1938 - Class Action
`(Brought against PALOMAR and DOES 1-50 by SISON,
`individually and on behalf of all others similarly situated)
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`25.
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`Plaintiff reasserts and re-alleges the allegations set forth in paragraphs 1-24.
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`26. At all times material herein, Plaintiff has been entitled to the rights, protections
`and benefits provided under the FLSA, 29 U.S.C. section 201 et seq.
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`27.
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`The FLSA regulates, among other things, the payment of overtime pay by
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`employers whose employees are engaged in interstate commerce, or engaged in
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`the production of goods for commerce, or employed in an enterprise engaged in
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`commerce or in the production of goods for commerce. 29 U.S.C. section
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`207(a)(1).
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`28.
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`PALOMAR is subject to the overtime pay requirements of the FLSA because it
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`is an enterprise engaged in interstate commerce and its employees are engaged
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`in commerce.
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`29.
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`PALOMAR violated the FLSA by failing to provide proper and complete
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`compensation (including overtime compensation) to Plaintiff and all other
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`employees similarly situated. In the course of perpetrating these unlawful
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`practices, PALOMAR also willfully failed to keep accurate records of all hours
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`worked by its employees and the wages due to employees.
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`30.
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`Specifically, PALOMAR failed to properly calculate the Regular Rate of Pay
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`(for purposes of calculating the proper Overtime Rate of Pay) for those
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`employees who worked certain shifts (e.g. “Evng” or “nght”) and received a shift
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`bonus or or other non-discretionary pay for such work, in violation of sections
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`207(a) and 207(e) of the FLSA, and 29 C.F.R. section 778.207, which requires
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`employers to include shift differential pay and other non-discretionary income
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`when determining an employee’s Regular Rate of Pay for purposes of calculating
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`the Overtime Rate of Pay. The proper method to calculate the Overtime
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`Compensation under the FLSA is to include all remuneration in any given
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`workweek and divide by the total hours worked to get the Regular Rate of Pay.
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`29 CFR § 778.109. Overtime compensation must be calculated at a rate that is
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`as one and one half of the Regular Rate of Pay, which will exceed the hourly rate
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`when shift differentials are paid. 29 CFR §778.107. PALOMAR failed to
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`properly perform such an action, to Plaintiffs’ monetary loss. Simple math
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`confirms that any calculations by PALOMAR failed to comply with the FLSA
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`requirements and fully pay for all overtime worked, to the detriment of Plaintiff
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`and the Class.
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`31.
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`Further, PALOMAR deprived Class Members of proper and complete
`compensation (including overtime compensation) in violation of, inter alia,
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`section 207(a) of the FLSA, and 29 C.F.R. sections 778.106 and 785.11 by not
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`paying employees for all hours actually worked. To wit, PALOMAR paid its
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`employees pursuant to a standard compensation policy that systematically
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`underpays employees, in an unfair and non-neutral manner. PALOMAR policy:
`(1) does not pay employees according to their actual electronic and/or computer
`log-in and log-out times; (2) does not pay employees for the hours worked
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`before and after they clocked in/out of Defendant’s time keeping system but
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`were still working, as evidenced by Defendant’s other computerized systems;
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`and (3) systematically redacts 30 minutes of recorded time work, the result being
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`that Class Members were compensated for less time than actually worked.
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`32.
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`Lastly, PALOMAR failed to maintain accurate records of wages due to
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`employees and their hours worked each day, as a result of perpetrating the
`unlawful practices discussed, supra, as required by the FLSA. 29 C.F.R. 516.2.
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`33.
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`Section 13 of the FLSA, codified at 29 U.S.C. section 213, exempts certain
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`categories of employees from overtime pay obligations. None of the FLSA
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`exemptions apply to Plaintiff nor any other similarly situated employees.
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`34.
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`Plaintiff and all other similarly situated employees are victims of a uniform and
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`company wide compensation policy. Upon information and belief, PALOMAR
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`applies/applied this uniform policy to all current and former nonexempt
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`employees, employed within the last three years.
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`35.
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`Plaintiff and all other similarly situated employees are entitled to damages equal
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`to the mandated overtime premium pay within the three years preceding the
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`filing of this Complaint, plus periods of equitable tolling, because PALOMAR
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`acted willfully and knew, or showed reckless disregard of whether, its conduct
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`was prohibited by the FLSA.
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`36.
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`PALOMAR has acted neither in good faith nor with reasonable grounds to
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`believe that its actions and omissions were not a violation of the FLSA, and as
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`a result thereof, Plaintiff and all other similarly situated employees are entitled
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`to recover an award of liquidated damages in an amount equal to the amount of
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`unpaid overtime pay described pursuant to Section 16(b) of the FLSA, codified
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`at 29 U.S.C. section 216(b). Alternatively, should the Court find PALOMAR
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`did act with good faith and reasonable grounds in failing to pay overtime
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`compensation, Plaintiff and all other similarly-situated employees are entitled to
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`an award of prejudgment interest at the applicable legal rate.
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`37. As a result of the aforementioned willful violations of the FLSA’s overtime pay
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`provisions, overtime compensation has been unlawfully withheld by PALOMAR
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`from Plaintiff and all other similarly situated employees. Accordingly,
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`PALOMAR is liable for compensatory damages pursuant to 29 U.S.C. section
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`216(b), together with an additional amount as liquidated damages, prejudgment
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`and post-judgment interest, reasonable attorney’s fees and costs of this action.
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`COUNT II
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`VIOLATION OF BUSINESS & PROFESSIONS CODE SECTION
` 17200 et seq. - Class Action
`(Brought against PALOMAR and DOES 1-50 by SISON,
`individually and on behalf of all others similarly situated)
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`38.
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`Plaintiff reasserts and re-alleges the allegations set forth in paragraphs 1-37.
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`39. Business & Professions Code section 17200, et seq., prohibits any unlawful,
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`unfair or fraudulent business act or practice.
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`26.
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`Plaintiff’s allegations herein are based upon Defendant’s institutional business
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`acts and practices.
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`27. Defendant’s acts and practices, as described herein, are unlawful and unfair, in
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`that they violate the FLSA.
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`40.
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`PALOMAR’ actions, including but not limited to the failure to properly
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`calculate the “Regular Rate of Pay” (for purposes of subsequently calculating the
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`proper Overtime Rate of Pay), the failure to provide proper and complete
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`compensation (including overtime compensation), and the failure to keep
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`accurate record of wages due to employees, constitute fraudulent and/or
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`unlawful and/or unfair business practices in violation of California’s Unfair
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`Competition Laws, codified under Business and Professions Code section 17200
`et seq. (“UCL”).
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`41. Beginning at an exact date unknown to Plaintiff, but at least since four years
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`prior to the filing date of this action, and as set forth above, PALOMAR
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`committed acts of illegal and unfair competition, as defined by Bus. & Prof.
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`Code § 17200, by failing to adequately and properly compensate its employees
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`for work performed on behalf of PALOMAR. These acts and practices violate
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`the UCL in that:
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`1.
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`The above-described failure to pay wages owed to Plaintiff and all other
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`Class Members constituted an illegal, unfair and fraudulent and/or
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`deceptive business act or practice within the meaning of the UCL;
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`2.
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`The above-described failure to pay wages owed to Plaintiff and all other
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`Class Members constituted an unlawful and/or unfair business practice
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`under the UCL in that the failure violates the FLSA as described herein;
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`and California Civil Code section 1770(a)(5), which bars “[r]epresenting
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`that goods or services have sponsorship, approval, characteristics,
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`ingredients, uses, benefits, or quantities which they do not have...”; and
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`3.
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`The harm of the above-described failure to pay wages owed to Plaintiff
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`and all other Class Members outweighs the utility of the practices by
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`PALOMAR and, consequently, constitutes an unfair business act or
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`practice within the meaning of the UCL.
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`42. Upon information and belief, PALOMAR continues its fraudulent and/or
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`unlawful and/or unfair conduct as previously described. As a result of said
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`conduct, PALOMAR has fraudulently and/or unlawfully and/or unfairly
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`obtained monies due to Plaintiff and all other Class Members and are unfairly
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`competing in the marketplace.
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`43.
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`Plaintiff and all other Class Members are entitled to restitution of monies due,
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`as well as disgorgement of the ill-gotten gains obtained by PALOMAR, for a
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`period of four years predating the filing of this Complaint.
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`44. As a direct and proximate result of PALOMAR conduct, Plaintiff is entitled to
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`a preliminary and permanent injunction enjoining PALOMAR from continuing
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`its fraudulent and/or unlawful and/or unfair practices alleged herein, and to such
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`other relief as is appropriate under California Business and Professions Code
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`section 17202.
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`45.
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`Plaintiff is entitled to attorneys’ fees and costs for promoting the interests of the
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`general public in causing PALOMAR to cease its fraudulent and/or unlawful
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`and/or unfair business practices, in an amount according to proof, pursuant to
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`California Code of Civil Procedure section 1021.5 and any other applicable law.
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`COUNT III
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`DISCRIMINATION [Cal. Gov't Code § 12940(a)]
`(Brought against PALOMAR and DOES 1-50 by SISON, in an individual
`capacity only)
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`46.
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`Plaintiff hereby incorporates by reference paragraphs 1 through 45 as though
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`fully set forth herein.
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`47.
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`Plaintiff was at all times material hereto an employee covered by Cal. Gov't.
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`Code § 12940 et seq., which prohibits harassment in employment on the basis
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`of race, national origin and/or disability.
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`48. Defendant is, and at all times material hereto was, an employer and/or person
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`within the meaning of the Fair Employment and Housing Act and, as such,
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`barred from harassing Plaintiff on the basis of her race, national origin and
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`disability, as set forth in Cal. Gov't. Code § 12940(a).
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`49. Defendant or its employees discriminated against and/or harassed Plaintiff on the
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`basis of race, national origin and disability in violation of Cal. Gov't Code §
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`12940(a).
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`50.
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`Plaintiff believes and thereon alleges that her race, national origin and disability
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`was a motivating factor in Defendant's decision to discriminate against her, pass
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`over her for advancement and eventually led to her termination. Additionally,
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`Ms. Sison was invited to apply for a new position, but was passed over for a
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`Caucasian candidate with less experience.
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`51. Within one year of the last discriminatory act, on June 27, 2019, Plaintiff
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`provided notice of her discrimination claims to the Department of Fair
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`Employment and Housing (“DFEH”) and the Equal Employment Opportunity
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`Commission (“EEOC”). On July 27, 2021, Plaintiff was provided with a “right
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`to sue” notice authorizing Plaintiff to proceed with formal litigation. To confirm,
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`a charge of discrimination has a one year statute of limitations following the
`issuance of a “right to sue” notice. Cal. Gov. Code § 12900 (d); See also Downs
`v. Department of Water & Power (1997) 58 Cal. App. 4th 1093 (Court held
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`employee's FEHA action was not time barred because the one-year period was
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`equitably tolled while employee pursued his federal administrative remedies
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`with EEOC.)
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`52. As a direct, foreseeable and proximate result of Defendant's conduct, Plaintiff
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`has sustained and continues to sustain substantial losses in earnings, employment
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`benefits, employment opportunities, and other economic losses in an amount to
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`be determined at time of trial.
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`53. As a direct, foreseeable, and proximate result of Defendant's conduct, Plaintiff
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`has suffered and continues to suffer humiliation, emotional distress, loss of
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`reputation, and mental and physical pain and anguish, all to his damage in a sum
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`to be established according to proof.
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`54.
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`In addition to such other damages as may properly be recovered herein, Plaintiff
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`is entitled to recover attorney fees and costs pursuant to Cal. Gov't. Code §
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`12965.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, on her own behalf and on behalf of the members of the
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`class, prays for relief as follows:
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`1.
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`An order certifying that Count I of the action may be maintained as a collective
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`action pursuant to 29 U.S.C. section 216(b);
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`2.
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`An order certifying that Count II of the action may be maintained as an “opt-out”
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`class action pursuant to Fed.R.Civ.P. 23.
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`3.
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`Compensatory and statutory damages, penalties and restitution, as appropriate
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`and available under each cause of action, in an amount to be proven at trial;
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`4.
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`An order enjoining PALOMAR from engaging in the illegal practices alleged,
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`and to ensure compliance with, among other employee protections, 29 C.F.R.
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`sections 778.106, 778.207, and 785.11.
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`5.
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`An order enjoining PALOMAR from pursuing the fraudulent and/or unlawful
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`and/or unfair policies, acts and practices complained of herein;
`Attorneys’ fees pursuant to, inter alia, 29 C.F.R. 216(b) and Cal. Gov't. Code
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`§ 12965;
`Costs of this suit pursuant to, inter alia, 29 C.F.R. 216(b) and Cal. Gov't. Code
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`§ 12965;
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`Pre- and post-judgment interest;
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`An order reinstating Plaintiff to the position (and level of benefits) she would
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`6.
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`7.
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`8.
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`9.
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`have held had there been no wrongdoing by Defendants;
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`10. An injunction prohibiting any further acts of discrimination or retaliation; and
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`11.
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`Such other and further relief as the Court deems just and proper.
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`DEMAND FOR JURY TRIAL
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`Plaintiff hereby requests that this matter be heard and decided by trial by jury.
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`Dated: July 1, 2021
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`
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`SULLIVAN & YAECKEL LAW GROUP, APC
`/s/ Eric K. Yaeckel
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`Eric K. Yaeckel
`Ryan T. Kuhn
`Attorneys for Plaintiff EVELYN DESSAMERO-
`SISON, Individually and on behalf of other members
`of the general public similarly situated
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