Case 4:21-cv-00510-CWD Document 1 Filed 12/22/21 Page 1 of 7
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`Law Offices of
`Barton Atkinson & Murdoch, P.C.
`70 N. Center, Ste. 2
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`P.O. Box 100
`Rexburg, ID 83440
`Breck Barton, Idaho State Bar #2006
`Steven Atkinson, Idaho State Bar #10047
`Marcia Murdoch, Idaho State Bar #8198
`(208) 356-4880
`icourts@bamattorneys.com
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`Attorney for Plaintiff
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF IDAHO
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`MICHAEL DO,
` Plaintiff
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` v.
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`BASIC AMERICAN, INC. d/b/a BASIC
`AMERICAN FOODS
` Defendant
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`Case No.: 4:21-cv-510
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`COMPLAINT FOR EMPLOYMENT
`DISCRIMINATION AND
`SUPPLEMENTAL MATTERS
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`Jury Trial Demanded
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`COMES NOW Plaintiff, Michael Do, by and through Steven A. Atkinson of Barton
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`Atkinson & Murdoch, P.C., and hereby complains and alleges as follows.
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`Parties:
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`I.
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`A. Plaintiff is a resident of the State of Idaho with her principal domicile in Madison
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`County.
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`B. Defendant Basic American, Inc. (hereinafter referred to as “BAF”) is a Delaware
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`Corporation incorporated pursuant to the laws of that state and doing business in
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`Idaho as Basic American Foods. Defendant’s principal place of business is located in
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`Walnut Creek, Contra Costa County, California. Defendant conducts regular business
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`in Idaho and maintains a registered agent in Nampa, Canyon County, Idaho.
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`II.
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`Jurisdiction: This action is brought for discrimination in employment pursuant to Title
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`VII of the Civil Rights Act of 1964, as codified, 42 U.S.C. §§ 2000e to 2000e-17 (race, color,
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`gender, religion, national origin). Additionally, the Plaintiff respectfully requests this court
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`exercise its supplemental jurisdiction pursuant to 28 U.C.S. § 1367 over Plaintiff’s claim under
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`Idaho law that Defendant terminated him in contravention of public policy (See Jackson v.
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`Minidoka Irrigation Dist., 98 Idaho 330, 563 P.2d 54 (Idaho 1977).
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`III.
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`Background
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`A. Plaintiff began employment for BAF on or about August 18, 2007.
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`B. During the period when Plaintiff was employed at BAF, Defendant employed more than
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`four hundred (400) employees.
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`Statement of Claims
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`IV.
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`Claim I: Discharged from Employment on the Basis of Race/National Origin
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`Plaintiff is an Asian-American man of Vietnamese Origin. On April 3, 2020, he was terminated
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`from employment on the basis that he had allegedly engaged in violations of the Employee
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`Handbook. He was terminated during a meeting wherein Benjamin Johnson, the plant manager
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`for BAF, and Sonya Johns, Plaintiff’s immediate supervisor at BAF, indicated to him that he was
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`done at the company. Thereafter, Benjamin Johnson escorted Plaintiff from the premises in the
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`manner in which Plaintiff has witnessed other terminated employees be escorted from the
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`premises. The discriminatory conduct which led to Plaintiff’s termination is as follows:
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`A. Sometime in late December 2019 or early 2020, Plaintiff slipped while working with a
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`white female co-worker. As he slipped, the co-worker caught his hand. By February 26,
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`2020, this incident had been reported to Human Resources for BAF as an incident of
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`sexual harassment. Plaintiff defended himself against the allegation, but Human
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`Resources personnel at BAF took the word of a white employee over the denial of
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`Plaintiff, an individual of Vietnamese origin. Plaintiff was reprimanded for the incident.
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`When Plaintiff refused to sign an acknowledgement form in connection with this
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`incident, he was terminated.
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`Case 4:21-cv-00510-CWD Document 1 Filed 12/22/21 Page 3 of 7
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`B. On or about December 13, 2019, Plaintiff reported a violation of the employee handbook
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`when he witnessed a white male coworker reach down and tip back the chair of a female
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`coworker, while the female coworker was currently sitting in the chair. Plaintiff reported
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`the incident as a violation of company policy against horseplay and/or harassment to
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`Human Resources at BAF. On of about December 18, 2019, Plaintiff met a representative
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`from Human Resources at BAF. While not denying that the incident had occurred, the
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`representative told Plaintiff that he could not have witnessed it and accused him of filing
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`a false allegation against a coworker. He was reprimanded for providing false
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`information on January 9, 2020. This reprimand has been used by BAF as an excuse for
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`his treatment during the February 26, 2020 harassment complaint against Plaintiff.
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`C. In May 2019, Plaintiff was with a group of white coworkers. The coworkers were
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`engaged in a game wherein they would pull name tags and gloves out of one another’s
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`pockets. When Plaintiff engaged in the game and pulled the gloves out of another
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`employee’s pocket, the play stopped. A co-worker took Plaintiff aside and told him that
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`he had engaged in harassment. This matter was referred to Human Resources, and
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`Plaintiff was reprimanded for engaging in the same conduct in which the white
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`employees had engaged. This incident was referred to in the investigation of the February
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`26, 2020 harassment complaint which provided a basis for Plaintiff’s termination.
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`V.
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`Claim II: Suspended from Work without pay on the Basis of Race/National Origin
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`While employed at BAF, Plaintiff suffered a work-related injury on or about October 15, 2019.
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`Following the injury, he was placed on paid leave for a time and work limitations for a time.
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`During this period, Plaintiff took sixty-four (64) hours of vacation time to visit family in
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`Vietnam. He alerted BAF that he was going to be out of the country during this time. Upon his
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`return, a representative from BAF told him he would be suspended because he had not obtained a
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`work release or doctor’s note as he was required to do. Representative of BAF claimed that some
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`employees had left messages about the requirement; however, such messages would have been
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`sent while Plaintiff was on vacation in Vietnam and unable to receive such messages, if sent.
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`Upon his return, BAF suspended Plaintiff without pay on February 27, 2020. BAF did not offer a
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`grace period based on the missed communication. BAF held Plaintiff to an unrealistic standard
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`that he should be able to receive notice from work while on vacation abroad. Plaintiff was unable
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`to find a doctor to examine him who was approved by worker’s compensation for some time.
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`BAF refused to offer any additional grace period on the basis that Plaintiff encountered difficulty
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`scheduling a doctor’s appointment. Consequently, he was suspended until March 20, 2020
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`without pay. BAF’s conduct during this episode was based at least in part on Plaintiff’s race and
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`national origin as he had been in Vietnam and could not be reached.
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`VI.
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`Claim III: Hostile Work Environment on the Basis of Race/National Origin
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`Plaintiff filed his discrimination complaint with the Idaho Human Rights Commission on July
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`13, 2020. During the 365 days prior to filing the complaint, Plaintiff suffered the following
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`conduct as an employee of BAF:
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`A. In 2017, Plaintiff began to experience an allergic reaction while at work. The allergic
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`reaction resulted in itchy, watery eyes and skin rashes/dermatitis. Plaintiff consulted with
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`a doctor who determined he was allergic to cardboard. Plaintiff had to handle cardboard
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`boxes whenever he worked on the “dry” part of the BAF food processing plant. Plaintiff
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`requested an accommodation to work on the “wet” side of the plant where he would not
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`have to work with dry cardboard. The representative from BAF told him that he would be
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`terminated if he could not work on the “dry” part of the plant. However, BAF is capable
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`of hiring employees that work only in the “wet” part of the plant, and BAF has hired
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`white employees that work exclusively in one part of the plant. Plaintiff withdrew his
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`requested accommodation in order to keep his job. When the representative of BAF heard
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`this, she claimed that Plaintiff had lied to her about the allergy despite the fact that
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`Plaintiff had a doctor’s note indicating that he would have an allergic reaction near
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`cardboard. Since 2017 including that period from July 14, 2019 forward, Plaintiff had to
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`deal with itchy eyes and rashes whenever he worked on the “dry” part of the plant. The
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`rashes are painful and the itchy eyes makes it difficult for him to work. Working with
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`cardboard also made it difficult for him to breathe. Plaintiff’s supervisor from at least
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`July 14, 2019 forward (Sonya Johns) would frequently require him to work with
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`cardboard despite his obvious discomfort and multiple requests to work elsewhere.
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`B. Plaintiff was a certified forklift operator. His certification expired in February 2017. He
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`routinely asked his supervisors including Sonya Johns after July 14, 2019 to be allowed
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`to recertify. Sonya Johns and other supervising employees from BAF would always deny
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`him his ability to recertify. White co-workers with significantly less experience and
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`history with BAF than Plaintiff were frequently allowed to certify or re-certify as forklift
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`operators while Plaintiff was not. On occasion, white supervisors would expect Plaintiff
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`to operate a forklift without certification. Later, Plaintiff would be reprimanded to
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`operating without proper certification. This untenable situation put Plaintiff under a great
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`deal of stress.
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`C. Since July 14, 2019, white co-workers would call Plaintiff a slacker or lazy. Some white
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`co-workers would imply that he was engaging in inappropriate conduct toward female
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`co-workers. These comments were hurtful and cause Plaintiff personal distress.
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`D. Since July 14, 2019, white co-workers would frivolously accuse Plaintiff of untoward
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`sexual conduct toward white female co-workers. Theses claims were baseless but caused
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`Plaintiff a great deal of personal distress.
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`E. Since July 14, 2019, human resources employees and managers at BAF would
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`automatically take the side of white employees against Plaintiff when reviewing
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`harassment complaints. These same employees and managers would call Plaintiff a liar or
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`imply that he was dishonest despite a lack of evidence that he had engaged in sexual
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`harassment. Being accused of untruthfulness and generally treated unfairly as compared
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`to white co-workers caused Plaintiff a great deal of emotional and mental distress.
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`VII.
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`Claim IV: Wrongful Termination in Contravention of Public Policy under Idaho Law
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`At the time of his discharge from BAF, Plaintiff was still under some work limitations with
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`respect to the workplace injury he sustained on or about October 15, 2021. BAF supervisors
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`were noticeably upset by this worker’s compensation claim. BAF sent a human resources
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`employee to a doctor’s appointment with Plaintiff on January 10, 2020. This person interfered
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`with Plaintiff’s ability to communication freely with the doctor. On February 27, 2020, Plaintiff
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`was suspended from work for failing to provide a doctor’s note in relation to his worker’s
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`compensation claim. Plaintiff was only able to return to work on March 20, 2020. He was
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`terminated two-weeks later. To the extent that Plaintiff’s discharge was not solely discriminatory
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`based on his race and/or national origin, Plaintiff alleges that his firing was related to his filing of
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`a worker’s compensation claim and the extensive treatment for a workplace injury. Termination
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`of employee’s for filing worker’s compensation claims or taking advantage of worker’s
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`compensation benefits is contravenes Idaho public policy as it would have a necessary chilling
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`affect on the willingness of workers to take advantage of the worker’s compensation system.
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`VIII.
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`Attorney’s Fees and Costs: As a consequence of pursuing this action, Plaintiff has
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`incurred and expects to incur attorney’s fees and other costs of litigation.
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`IX..
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`Exhaustion of Administrative Remedies: Plaintiff filed a charge with the Idaho Human
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`Rights Commission regarding Defendant’s alleged discriminatory conduct. The Idaho Human
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`Rights Commission has since issued right to sue on September 30, 2021. Attached as Exhibit 1.
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`The U.S. Equal Employment Opportunity Commission has also issued a right to sue on
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`September 29, 2021. Attached as Exhibit 2.
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`WHEREFORE, Plaintiff prays for judgment against the Defendant as follows:
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`1. For trial by jury on all issues triable by jury;
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`2. For an award of back pay damages in the amount of $65,000 for the wages Plaintiff could
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`have earned had he hours not been suspended without pay in February and March 2020
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`or been terminated on April 3, 2021;
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`3. For compensatory damages as permitted by 42 U.S.C. § 1981a (b) in the amount of
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`$130,000 for his pecuniary losses, emotional pain, suffering, inconvenience, mental
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`anguish and loss of enjoyment of life;
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`4. For punitive damages as permitted by U.S.C. 42 § 1981a (b) in the amount of $50,000 for
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`the Defendants’ malice and/or reckless indifference demonstrated by their discriminatory
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`conduct;
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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`5. For damages for loss of wages, loss of retirement benefits, and loss of accrued vacation
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`time for state law claims;
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`6. For a reasonable attorney’s fee, costs, and expert’s fees as provided by U.S.C. 42 §
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`2000e-5 (k) and Idaho Code § 12-121 for state law claims.
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`7. For such further relief the court deems just and equitable.
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`Certification and Closing: Under Federal Rule of Civil Procedure 11, I certify to the
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`best of my knowledge, information, and belief that this complaint: (1) is not being presented for
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`an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost
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`of litigation; (2) is supported by existing law or by a nonfrivolous argument for extending,
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`modifying, or reversing existing law; (3) the factual contentions have evidentiary support or, if
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`specifically so identified, will likely have evidentiary support after a reasonable opportunity for
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`further investigation or discovery; and (4) the complaint otherwise complies with the
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`requirements of Rule 11.
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`Dated: December 22, 2021
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`_________________________________
`Steven Atkinson
`Attorney for Plaintiff
`Barton Atkinson & Murdoch, P.C.
`70 N. Center, Suite 2
`PO Box 100
`Rexburg, ID 83440
`Telephone: (208) 356-4880
`Fax: (208) 356-4882
`icourts@bamattorneys.com
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`COMPLAINT FOR EMPLOYMENT DISCRIMINATION
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