Arkady Itkin (SBN 253194)
`Law Office of A. Itkin
`57 Post Street, Suite 812
`San Francisco, CA 94104
`Telephone: (415) 640-6765
`Fax: (415) 422-9367
`arkadv@arkadvlaw.corn
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`Attorney for Plaintiff,
`DESMOND BARCA,
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`ELECTRONICALLY
`F I L E D
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`Superior Court of California,
`County of San Francisco
`04/19/2024
`Clerk of the Court
`BY: JAMES FORONDA
`Deputy Clerk
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`SUPERIOR COURT OF CALIFORNIA
`COUNTY OF SAN FRANCISCO - UNLIMITED CIVIL JURISDICTION
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`DESMOND BARCA,
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`CASE NO.:
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`CGC-24-614084
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`Plaintiff,
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`vs.
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`CITY AND COUNTY OF SAN
`FRANCISCO PUBLIC UTILITIES
`COMMISSION, AND DOES 1 TO 100,
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`Defendants
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`COMPLAINT FOR DAMAGES AND
`REQUEST FOR JURY TRIAL
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`1. FAILURE TO PROVIDE
`REASONABLE RELIGIOUS
`ACCOMMODATIONS AND
`TERMINATION IN VIOLATION OF
`FKHA
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`2. VIOLATION OF TITLE VII OF THE
`CIVIL RIGHTS ACT OF 1964 FOR
`FAILURE TO ACCOMMODATE ON
`THE BASIS OF RELIGION
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`3. VIOLATION OF FREE EXERCISE
`CLAUSE OF THK FIRST AMENDMENT
`OF THK UNITED STATES
`CONSTITUTION
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`4. VIOLATION OF FREE EXERCISE
`CLAUSE OF THE CALIFORNIA
`CONSTITUTION
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`COMES NOW PLAINTIFF DESMOND
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`BARCA and complains and alleges as follows:
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`-I-
`Complaint for Damages and Demand of Jury Trial;
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`NATURE OF THE ACTION
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`1.
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`This is an individual action brought by an employee against his former employer City
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`and County of San Francisco Public Utilities Commission. Plaintiff Desmond Barca (hereinafter
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`"Plaintiff') alleges violations of the Fair Employment and I lousing Act (hereinafter *'FEHA") and
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`violations of Title VII, based upon the Defendants'ailure to accommodate his religion by refusing
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`to grant exemption fiom the Covid-19 vaccination mandate and terminate his employment as a
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`result, as well as related violations of the California and US Constitutions.
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`10 Mateo.
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`2.
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`3.
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`PARTIES
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`Plaintiff is and at all material times alleged herein, was a resident of County of San
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`At all material times alleged herein, Plaintiff was employed by Defendant the City
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`and County of San Francisco Public Utilities Commission.
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`4.
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`In addition to the Defendant named above, Plaintiff sues fictitiously Defendants
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`14 DOES I through 100, pursuant to Code of Civil Procedure $474, because their names, capacities,
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`status, or facts showing them to liable are not presently known. Plaintiff will amend this complaint
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`to show their true names and capacities, together with appropriate charging language, when such
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`information has been ascertained.
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`JURISDICTION AND VENUE
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`5.
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`The acts of Defendants that form the basis for the causes of action in this complaint
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`occurred in the County of San Francisco. Therefore, the San Francisco venue is proper.
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`EXHAUSTION OF ADMINISTRATIVE REMEDIES
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`6.
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`Plaintiff timely obtained a Right to Sue letter from EEOC, a true and correct copy of
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`23 which is attached hereto as Exhibit A.
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`FACTUAL ALLEGATIONS
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`7.
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`Plaintiff started working for the Defendants around March 19, 2012 as an Apprentice
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`Stationary Engineer. Plaintiff s most recent position was Senior Stationary Engineer. Plaintiff also
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`Complaint for Damages and Demand of Jury Trial;
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`held the title of Acting Chief Stationary Engineer for about two years of the last three years of his
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`employment with the Defendants.
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`8.
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`On September 30, 2021, Plaintiff applied for religious exemption from the
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`requirement to be vaccinated Covid-19, which the Defendants had in place. Plaintiff informed the
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`5 Defendants that he identified as Christian and submitted information about how his faith precluded
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`him from getting the vaccine.
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`9.
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`Plaintiff's request for religious exemption from the requirement to be vaccainated
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`against Covid-19 has been denied due to allegedly not providing sufficient information as to how his
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`religion and the Defendants'accination requirement were in conflict.
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`10.
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`On May 3, 2022, Plaintiff s employment was terminated after his dismissal was
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`upheld following the Skelli hearing. As a result of his termination, Plaintiff has and continues to
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`suffer loss of wages and emotional distress.
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`FIRST CAUSE OF ACTION
`FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS OE EEHA
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`11.
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`Plaintiff hereby incorporates by reference paragraphs 1 through 10, as though fully set
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`forth herein.
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`12.
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`At all times material to this complaint, Plaintiff was a person who held a sincerely
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`religious belief within the meaning of FEHA, and he identified as Christian.
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`13.
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`14.
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`Defendant is an employer within the meaning of the FEHA
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`On information and belief, Plaintiff alleges that, during times material here,
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`the Defendant violated the FEHA by failing to provide reasonable accommodations to Plaintiff's
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`religious beliefs and by denying his request to be exempt from the Covid-19 vaccine mandate.
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`15.
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`The effect of the above actions and omissions have been to deprive Plaintiff of equal
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`employment opportunities and otherwise adversely affect his status as an employee because of his
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`religion.
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`16.
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`As a direct and further proximate result of the above violations of his rights under the
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`Complaint for Damages and Demand of Jury Trial;
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`FEHA, Plaintiff has suffered compensatory damages in the form of past and future wage loss, and
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`emotional distress.
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`17.
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`As a result of Defendant's unlawful acts, Plaintiff is entitled to compensatory
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`damages, equitable relief, and attorney's fees and costs.
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`SECOND CAUSE OF ACTION
`VIOLATION OF TITLE VH OF THE CIVIL RIGHTS ACT OF 1964 FOR FAILURE TO
`ACCOMMODATE ON THE BASIS OF RELIGION
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`18.
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`Plaintiff hereby incorporates by reference paragraphs 1 through 17, as though fully set
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`forth herein.
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`19.
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`Title Vll forbids an employer from refusing a job to someone because of his need for
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`religious accommodation absent proof that granting the accommodation would cause it undue
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`hardship. 42 USC $ tj 2000e(j), 2000e-2(a)(1); EEOC v Abercrombie k Fitch Stores. Inc.. 575 US
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`768. 774 (2015).
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`20.
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`The Defendants denied Plaintiff s request for religious accommodation, providing
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`which would not have imposed an undue hardship on the Defendants. Further, the Defendants did
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`not propose any alternative reasonable accommodations to Plaintiff.
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`21.
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`As a result of the Defendants'iolations, Plaintiff suffered lost income and other
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`economic and non-economic damages.
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`THIRD CAUSE OF ACTION
`VIOLATION OF FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT
`TO THE UNITED STATES CONSTITUTION
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`22.
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`Plaintiff hereby incorporates by reference paragraphs 1 through 21, as though fully set
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`forth herein.
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`23.
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`The First Amendment's Free Exercise Clause provides that "Congress shall make no
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`law respecting an establishment of religion or prohibiting the free exercise thereof."
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`Complaint for Damages and Demand of Jury Trial;
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`24.
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`Defendants'accination policy substantially burdened Plaintiff s religious exercise by
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`punishing him for seeking religious exemption to the Covid-19 vaccination requirement.
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`25.
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`Defendants'accination policy, on its face as applied, was not generally applicable
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`because, as the Supreme Court recently reaffirmed, a policy that provides a "mechanism for
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`individualized exemptions" is not generally applicable. Fulton v City ofPhiladelphia, 141 S. Ct.
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`1868, 1877 (2021).
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`26.
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`Here, the Defendants'accination policy provided medical and religious exemptions
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`on an individualized basis, and the Defendants maintain the right to extend exemptions in whole or
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`in part or change their vaccination policy at any time.
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`27.
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`Defendants'accination policy also violated the First Amendment because it denied a
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`benefit or penalized an employee for exercising a constitutional right. See 1Coontz v St. Johns River
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`Water Mgmt. Dist., 570 US 595, 604 (2013).
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`28.
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`Defendants'accination policy fails strict scrutiny because it was not narrowly
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`tailored to meet any compelling government interest.
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`29.
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`As a direct and proximate result of the Defendants'iolation of the First Amendment,
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`Plaintiff has suffered, and will suffer, irreparable harm, including the loss of their fundamental
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`constitutional rights, entitling him to declaratory and injunctive relief. Additionally, Plaintiff is
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`entitled to nominal damages, compensatory damages in an amount to be provide at trial, and
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`attorneys fees under 42 USC 1988.
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`FOURTH CAUSE OF ACTION
`VIOLATION OF FREE EXERCISE CLAUSE OF THE CALIFORNIA CONSTITUTION
`(ARTICLE 1, SECTION 4)
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`30.
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`Plaintiff hereby incorporates by reference paragraphs 1 through 29, as though fully set
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`Complaint for Damages and Demand of Jury Trial;
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`forth herein.
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`31.
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`Article 1, Section 4 of the California Constitution states "Free exercise and enjoyment
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`of religion without discrimination or preference are guaranteed."
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`32.
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`The religion clauses of the California Constitution are read more broadly than their
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`counterparts in the federal Constitution. Carpenter v City and County ofSan Francisco, 93 F.3d 627,
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`629 (1996).
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`33.
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`The vaccination policy imposed a substantial bruden on Plaintiff s free exercise of
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`religion by punishing him for not taking a religiously objectionable vaccine.
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`34.
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`As a direct and proximate result of the Defendants'iolation of the above section of
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`California Constitution, Plaintiff has suffered, and will suffer, irreparable harm, including the loss of
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`their fundamental constitutional rights, entitling him to declaratory and injunctive relief.
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`proven at trial, and attorneys fees under CCP 1021.5.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment against the Defendants as follows:
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`7.
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`For nominal damages for violation of his civil rights;
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`For compensatory damages;
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`For declaratory judgment that the Defendants'accination policy at issue violates the
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`Free Exercise Clause of the California and United States Constitutions;
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`For declaratory judgment that the Defendants'accination policy at issue violates the
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`FEHA.
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`For equitable relief, including but not limited to full reinstatement with full backpay;
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`For statutory attorneys'ees and costs of suit, for any applicable interest;
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`For such other and further relief as is just and proper.
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`Complaint for Damages and Demand of Jury Trial;
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`5
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`//
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`6 DATED: April 19, 2024
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`RESPECTFULLY SUBMITTED,
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`BY:
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`Arkady Itkin
`Attorney for Plaintiff,
`DESMOND BARCA
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`DEMAND FOR JURY TRIAL
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`Plaintiff hereby demands a trial for each and every claim for which he has a right to a jury
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`trial.
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`16 DATED: April 19, 2024
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`RESPECTFULLY SUBMITTED,
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`BY:
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`Arkady Itkin
`Attorney for Plaintiff,
`DESMOND BARCA
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`-7-
`Complaint for Damages and Demand of Jury Trial;
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`EXHIBIT A
`EXHIBIT A
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`

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`STATE DF CALIFORNIA i Business, Consumer Services ena Housing Agency
`
`Civil Rights Department
`2218 Kausen Drive, Suile 100 i Elk Grave i CA i 95288
`800 884-1 884 (voice) ( SOD 700 2320 (TTY) ( Cagfomirys Relay Service ai 711
`calcivsrlghts.ca.gov i contact.center@cafcivilrights.ca.gov
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`GAVIN NEWSDK, GOIIERNOR
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`KEVIN KISH, DNIECTOR
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`April 16, 2024
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`Desmond Barca
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`RE: Notice of Case Closure and Right to Sue
`CRD Matter Number: 202404-24370516
`Right to Sue: Barca / City and County of San Francisco
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`Dear Desmond Barca:
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`This letter informs you that the above-referenced complaint filed with the Civil Rights
`Department (CRD) has been closed effective April 16, 2024 because an immediate
`Right to Sue notice was requested.
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`This letter is also your Right to Sue notice. According to Government Code section
`12965, subdivision (b), a civil action may be brought under the provisions of the Fair
`Employment and Housing Act against the person, employer, labor organization or
`employment agency named in the above-referenced complaint. The civil action must be
`filed within one year from the date of this letter.
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`To obtain a federal Right to Sue notice, you must contact the U.S. Equal
`Employment Opportunity Commission (EEOC) to file a complaint within 30 days
`of receipt of this CRD Notice of Case Closure or within 300 days of the alleged
`discriminatoiy act, whichever is earlier.
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`Sincerely,
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`Civil Rights Department
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`CRD - ENF 80 RS (Revised 02/23)
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