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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

VICTOR COLE v. ACE AMERICAN INSURANCE COMPANY et al

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
2:12-cv-06568 Search Pacer
ACE Group party(s): 
Opposing Party: 
Victor Cole
Court Type: 
Federal
US District Court: 
Central District of California
Date Filed: 
Jul 30 2012

"FIRST CAUSE OP ACTION
(FAILURE TO ACCOMMODATE/ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF GOVERNMENT CODE SECTIONS 12900 ET SEQ. AGAINST ALL DEFENDANTS)

5. Plaintiff hereby incorporates paragraphs 1 through 4 as though set forth in full herein. Complaint

6. Plaintiff alleges as an employee of Defendant ACE, a private company with five or more employees, Plaintiff was entitled to the protections set forth in Government Code Sections 12900 etseq.

7. Plaintiff alleges that at all relevant times herein, he was an employee of Defendant ACE working as a senior claims representative. Plaintiff was at all times qualified, for his position and received positive evaluation of his performance. In or about September 2009, Plaintiff suffered a stroke and went out on medical leave through November 2009.

8. On or around November 12,2009, Plaintiff attempted to return to work. Defendant ACE, having reviewed Plaintiff's doctor's notes and recommendations, knew that Plaintiff had suffered a stroke and required a modified work schedule.

9. ACE recognized that Plaintiff was having difficulties performing his work duties but rather than adjust Plaintiffs work duties to accommodate his physical disability, as required by FEHA, ACE advised Plaintiff that he should take time off or else he would be terminated.

10. Due to the stress of the possible termination, Plaintiff suffered a major set back in his recovery and requested medical leave in or around July 2010. Plaintiffs request was approved by Defendant ACE. Plaintiff also applied for and was approved for short-term disability benefits by Defendant ACE on or around November 2010.

11. In or around early 2011, Plaintiff felt ready to return to work. He received authorization from his doctor and contacted Defendant ACE to discuss a return date. But instead of engaging in a good faith interactive process to determine whether Plaintiff could return to work with or without a reasonable accommodation, Plaintiff was notified by Defendant ACE that Plaintiff had been terminated.

12. Plaintiff alleges that at all times herein, he was qutJified to do the work as a senior claims representative, and with reasonable accommodations could continue to work in the same position as he had before. However, Defendant ACE discriminated against Plaintiff and refused to engage in a good faith interactive process and Defendant ACE failed to provide him with a reasonable accommodation.

13. As a direct and proximate result of ACE's conduct, Plaintiff has suffered, emotional and mental distress, hospital bills, as well as lost wages and benefits, all in a sum to be determined at the time of trial.

14. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physicallydisabled, Defendant ACE acted with malice when terminating Plaintiffs employment, retaliating against him for seeking-a reasonable accommodation, requesting medical leave and applying for and receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

15. Plaintiff has exhausted all administrative remedies and obtained his right to sue letter against all Defendants, a copy of which is attached hereto as Exhibit A.

SECOND CAUSE OF ACTION
(PHYSICAL DISABILITY DISCRIMINATION IN VIOLATION OF GOVERNMENT CODE SECTIONS 12900 ET SEQ. AGAINST ALL DEFENDANTS)

16. Plaintiff hereby incorporates paragraphs 1 through 14 as though set forth in full herein.

17. Plaintiff alleges as an employee of Defendant ACE, a private company with five or more employees, Plaintiff was entitled to the protections set forth in Government Code Sections 12900 et seq., which prohibit discrimination, retaliation, harassment or termination on the basis of physical disability, seeking a reasonable accommodation for a disability or for protesting against related unlawful practices. 4

18. Plaintiff alleges he was discriminated against by Defendant ACE's acts or its ratification/acceptance of the acts of its employees and/or agents, among other acts:
a. Notifying Plaintiff that he would be terminated in or around July 2010, rather than engaging in a good faith interactive process to find a reasonable accommodation, when Defendant ACE knew that Plaintiff had suffered a stroke and was still recovering.
b. Selecting Plaintiff for termination based on his physical disability and his request for a reasonable accommodation.
c. Failing to engage in a good faith interactive process to determine whether Plaintiff could continue performing his work duties as a senior claims representative with a reasonable accommodation when Plaintiff was cleared to return to work by his Doctor in or around early 2011.
d. Terminating Plaintiffbased on bis physical disability and requesting medical leave, requesting short-term disability benefits, and requesting a reasonable accommodation.

19. As a direct and proximate result of Defendant ACE's unlawful discrimination, Plaintiff suffered and continues to suffer damages in the form of mental and emotional distress, lost job opportunities, lost wages and benefits, and hospital bills, all in an amount to be proven at the time of trial.

20. Defendant ACE's foregoing acts were in violation of the prohibitions set form in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physically disabled, Defendant ACE acted with malice when tenninating Plaintiffs employment, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

THIRD CAUSE OF ACTION
(RETALIATION IN VIOLATION OF GOVERNMENT CODE SECTIONS 12900 ET SEQ. AGAINST ALL DEFENDANTS) *

21. Plaintiff hereby incorporates paragraphs 1 through 20 as though set forth in full herein.

22. Plaintiff alleges as an employee of Defendant ACE, Plaintiff was entitled to the protections set forth in Government Code Sections 12900 et seq., which prohibit disaimination, Complaint retaliation, harassment or termination on the basis of physical disability, seeking a reasonably accommodation for a disability or for protesting against related unlawful practices.

23. Plaintiff alleges he was retaliated against by Defendant ACE's acts or its ratification/acceptance of the acts of its employees and/or agents, among other acts, discrimination and termination. Plaintiff alleges that these acts were taken against him on account of his request for a reasonable accommodation, medical leave, and short-term disability benefits.

24. As a direct and proximate result of Defendant ACE's unlawful discrimination, Plaintiff suffered and continues to suffer damages in the form of mental and emotional distress, lost job opportunities, lost wages and benefits, and hospital bills, all in an amount to be proven at the time of trial.

25. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physically disabled, Defendant ACE acted with malice when terminating Plaintiffs employment, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

FOURTH CAUSE OF ACTION
(FAILURE TO PREVENT DISCRIMINATION AGAINST ALL DEFENDANTS)

26. Plaintiff hereby incorporate paragraphs 1 through 24 as though set forth in full herein.

27. Plaintiff alleges that Defendant ACE foiled to prevent discrimination and retaliation based on Plaintiffs physical disabilities and requests for a reasonable accommodation.

28. Plaintiff was subjected to retaliation and discrimination based on his physical disability and requesting a reasonable accommodation, requesting medical leave , and short term-disability benefits. Defendant ACE failed to take reasonable steps to protect Plaintiff from discrimination and retaliation.
 
29. As a direct and proximate result of Defendant ACE's failure to prevent discrimination and/or retaliation, Plaintiff has suffered emotional and mental distress, hospital bills, lost wa$es and benefits, as well as lost job opportunities all in a sum to be dete rrnined at the time of trial.

30. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physically disabled, Defendant ACE acted with malice when terminating Plaintiffs employment, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and receiving short term "disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

FIFTH CAUSE OF ACTION
(FAILURE TO REINSTATE AFTER MEDICAL LEAVE IN VIOLATION OF THE CALIFORNIA FAMILY RIGHTS ACT AGAINST ALL DEFENDANTS *

31. Plaintiff hereby incorporate paragraphs 1 through 30 as though set forth in full herein.

32. Plaintiff was employed by Defendant ACE for a period longer than 12 months and had at least 1,250 hours of service with Defendant ACE prior to requesting medical leave, based on PlaintifFs stroke. Plaintiff was eligible for medical leave.

33. Plaintiff took leave for Plaintiff's own serious health condition. Plaintiff provided reasonable notice to Defendant ACE that he needed leave to tend to his serious health condition. Defendant ACE approved Plaintiffs request for medical leave.

34. When Plaintiff attempted to return to work for Defendant ACE, Defendant ACE refused to return Plaintiff to the same or a comparable job when his medical leave ended.

35. As a direct and proximate result of Defendant ACE's refusal to reinstate Plaintiff, Plaintiff has suffered emotional and mental distress, hospital bills, lost wages and benefits, aawell as lost job opportunities all in a sum to be determined at the time of trial.

36. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physically Complaint disabled, Defendant ACE acted with malice when refusing to reinstate Plaintiff, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and* receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

SIXTH CAUSE OF ACTION
(WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AGAINST ALL DEFENDANTS)

37. Plaintiff hereby incorporate paragraphs 1 through 36 as though set forth in full herein.

38. Plaintiff alleges that significant policies exist in the State of California -which prohibit discrimination and termination of an employee based on being physically disabled, and requesting a reasonable accommodation. Among others, the right to be free from discrimination and retaliation are codified in the California and United States Constitutions, the provisions of Government Code Section 12900 et seq., as well as various Labor Code Sections. ^

39. Plaintiff alleges that during the course and scope of his employment, Plaintiff suffered discrimination and retaliation by Defendant ACE's employees and/or agents.

40. Plaintiff all eges that at all relevant times herein, he was an employee of Defendant ACE working as a senior claims representative. Plaintiff was at all times qualified for his position and received positive evaluation of his performance. In or about September 2009, Plaintiff suffered a stroke and went out on medical leave through November 2009.

41. On or around November 12,2009, Plaintiff attempted to return to work. Defendant ACE, having reviewed Plaintiffs doctor's notes and recommendations, knew that Plaintiff had suffered a stroke and required a modified work schedule.

42. ACE recognized that Plaintiff was having difficulties performing his work duties but rather than adjust Plaintiffs work duties to accommodate his physical disability, as required by FEHA, ACE advised Plaintiff that he should take time off or else he would be terminated.

43. Due to the stress of the possible termination, Plaintiff suffered a maj or set back in his recovery and requested medical leave in or around July 2010. Plaintiffs request was approved by Defendant ACE. Plaintiff also applied for and was approved for short-term disability benefits by Defendant ACE on or around November 2010.

44. In or around early 2011, Plaintiff felt ready to return to work. He received authorization from his doctor and contacted Defendant ACE to discuss a return date. But instead of engaging in a good faith interactive process to determine whether Plaintiff could, return to work with or without a reasonable accommodation, Plaintiff was notified by Defendant ACE that Plaintiff had been terminated, while Plaintiff was on medical leave and short-term disability.

45. Plaintiff alleges that he was wrongfully terminated in violation of public policies which prohibit: physical discrimination, refusing to accommodate a disabled employee, and terminating an employee for requesting a reasonable accommodation. As a direct and proximate result of Defendant ACE's wrongful conduct, Plaintiff has suffered damages including but not limited to lost earnings, health care bills, pain, suffering, lost future wages, mental and emotional distress, humiliation, in a sum of no less than $100,000.

46. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiff s situation, being physically disabled, Defendant ACE acted with malice when terminating Plaintiffs employment, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE.

SEVENTH CAUSE OF ACTION
(WRONGFUL DEMOTION IN VIOLATION OF FEHA AGAINST ALL DEFENDANTS)

47. Plaintiff hereby incorporate paragraphs 1 through 46 as though set forth in full herein.

48. This cause of action is brought pursuant to the provisions of the California Fair Employment Practices Act, Government Code Sections 12940 et seq., and the corresponding
regulations of the California Department of Fair Employment and Housing, which prohibit discriminatory treatment or termination of an employee on the basis of physical disability and Complaint engaging in protected activities, requesting a reasonable accommodation, medical leave and shortterm disability benefits.

49. At all times mentioned herein, Defendant ACE, was an employer with five or more employees, bringing it within the provisions of section 12900 et sec., of the Government Code which prohibits employers or their agents from discriminatory treatment of employees on the basis of physical disability, and further prohibits termination of an employee who engages in protected activities.

50. Plaintiff timely filed his administrative charge with the Department of Fair Employment and Housing and received a right to sue notice.

51. Plaintiff alleges that at all relevant times herein, he was an employee of Defendant ACE working as a senior claims representative. Plaintiff was at all times qualified for his position and received positive evaluation of his performance. In or about September 2009, Plaintiff suffered a stroke and went out on medical leave through November 2009.

52. On or around November 12,2009, Plaintiff attempted to return to work. Defendant ACE, having reviewed Plaintiffs doctor's notes and recommendations, knew that Plaintiff had suffered a stroke and required a modified work schedule.

53. ACE recognized that Plaintiff was having difficulties performing his work duties but rather than adjust Plaintiffs work duties to accommodate his physical disability, as required by FEHA, ACE advised Plaintiff that he should take time off or else he would be terminated.

54. Due to the stress of the possible termination, Plaintiff suffered a major set back in his recovery and requested medical leave in or around My 2010. Plaintiffs request was approved by Defendant ACE. Plaintiff also applied for and was approved for short-term disability benefits by Defendant ACE on or around November 2010.

55. In or around early 2011, Plaintiff felt ready to return to work. He received authorization from his doctor and contacted Defendant ACE to discuss a return date. But instead of engaging in a good faith interactive process to determine whether Plaintiff could return to work with or without a reasonable accommodation, Plaintiff was notified by Defendant ACE that Plaintiff had been terminated, while Plaintiff was on medical leave and short-term disability.

56. Plaintiff alleges that he was wrongfully terminated in violation of the prohibitions in FEHA which prohibit: discrimination and terminating an employee for engaging in protected activities. *

57. As a direct and proximate result of Defendant ClTY's wrongful conduct, Plaintiffhas suffered damages including but not limited to including but not limited to lost earnings, health care bills, pain, suffering, permanent injury, lost future wages, mental and emotional distress, humiliation, in a sum of no less than $100,000.

58. Defendant ACE's foregoing acts were in violation of the prohibitions set forth in the Government Code, and constituted an act of oppression, conducted with willful and conscious disregard for Plaintiffs rights. With actual knowledge of Plaintiffs situation, being physically disabled, Defendant AGE acted with malice when terminating Plaintiffs employment, retaliating against him for seeking a reasonable accommodation, requesting medical leave and applying for and receiving short term disability benefits, thereby justifying the imposition of punitive damages against Defendant ACE. *

PLAINTIFF PRAYS FOR JUDGMENT AGAINST DEFENDANTS AND BACH OF THEM AS FOLLOWS:
ON ALL CAUSES OF ACTION: •
1. For compensatory damages;
2. For punitive damages;
3. For attorneys fees pursuant to Statute;
4. For all just and reasonable relief as the court deems appropriate;
5. For costs of suit."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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