foderaro second amended complaint filed

7/31/2019 Foderaro Second Amended Complaint Filed

1/27


2/27

COMARLAW PLAINTIFFSSECONDAMENDEDCOMPLAINTFORDAMAGES

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMAR LAWD. INDER COMAR (State Bar No. 243732)901 Mission Street, Suite 105San Francisco, California 94103Telephone: +1.415.640.5856Facsimile: +1.415.513.0445

Attorney for PlaintiffCHARISE FODERARO

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ALAMEDA HAYWARD CIVIL COURT

UNLIMITED CIVIL CASE

CHARISE FODERARO,

Plaintiff,

v.

ASSOCIATED ORTHOPAEDICSURGEONS SERVICE CORP., acorporation, dba Associated OrthopedicSurgeons and Associated OrthopedicSurgeons of Hayward; GREGG T.POTTORFF, M.D., an individual, andROBERT E. MARTIN, M.D., anindividual,

Defendants.

CASE NO. HG11599071

PLAINTIFFS SECOND AMENDEDCOMPLAINT FOR

(1) AGE HARASSMENT(2) AGE DISCRIMINATION(3) SEX HARASSMENT(4) SEX DISCRIMINATION(5) RETALIATION(6) FAILURE TO PREVENT HARASSMENT,DISCRIMINATION AND RETALIATION(7) INTENTIONAL INFLICTION OFEMOTIONAL DISTRESS AGAINST ROBERTE. MARTIN, M.D.(8) WRONGFUL TERMINATION

- and -

DEMAND FOR JURY TRIAL


3/27

1COMARLAW PLAINTIFFSSECONDAMENDEDCOMPLAINTFORDAMAGES

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiff CHARISE FODERARO hereby alleges against Defendants ASSOCIATED

ORTHOPAEDIC SURGEONS SERVICE CORP., GREGG T. POTTORFF, M.D., and

ROBERT E. MARTIN, M.D. (collectively Defendants) as follows:

INTRODUCTION

1. CHARISE FODERARO (Plaintiff or Ms. Foderaro), former office managerand medical assistant at ASSOCIATED ORTHOPAEDIC SURGEONS SERVICE CORP.

(AOS) seeks redress from this Court in response to a months-long, retaliatory campaign by

AOS, ROBERT E. MARTIN, M.D. (her supervisor at AOS) and GREGG T. POTTORFF, M.D.

(the President of AOS), to force Ms. Foderaro to retire so that AOS could continue to violate

California law and replace Ms. Foderaro with a younger woman who would not interfere with

sexual harassment in the workplace.

2. While working at AOS, Ms. Foderaro received complaints from other employeesabout sexual harassment in the workplace. Pursuant to her obligations as office manager, Ms.

Foderaro requested that AOS cease the sexual harassment in the workplace and institute policies

and procedures to prevent harassment from occurring in the future.

3. In response to these requests, Ms. Foderaro was subjected to an aggressivecampaign of harassment, discrimination and retaliation so that she would retire. This

campaign, beginning in and around November of 2010, was so bad that other employees took

notice and have since given recorded interview statements in which they confirm this campaign

of harassment, discrimination and retaliation. Relevant quotations from these recorded

statements, including admissions by ROBERT E. MARTIN, M.D. regarding his liability and the

liability of AOS, are incorporated in this Complaint where appropriate. Defendants are fully

aware of and have in their possession copies of these recorded statements.

4. After being subjected to months of harassing, discriminatory and retaliatorytreatment, Ms. Foderaro was finally confronted by ROBERT E. MARTIN, M.D. on March 3,

2011, who told her that a younger woman who used to work for him called and wanted her job

back; that this younger woman would maybe bring in a breath of fresh air; and that this

younger woman would maybe make [him] happy.


4/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5. Ms. Foderaro was told she would be replaced despite the fact that she has beendescribed as an exemplary worker and an extremely dedicated, efficient, productive, reliable

employee.

6. After being the subject of this termination, constructive termination and adverseemployment action by ROBERT E. MARTIN, M.D., AOS changed its locks a few days later to

prevent Ms. Foderaro from accessing its office, confirming its termination of her the previous

Thursday.

7. The actions of Defendants are tortious and illegal under California law.THE PARTIES

8. Ms. Foderaro is a resident of the County of Tuolumne. At all relevant timesreferenced herein Ms. Foderaro was a resident of the County of Alameda, California.

9. Ms. Foderaro is informed and believes and thereupon alleges that AOS is acorporation doing business in the County of Alameda, California.

10. Ms. Foderaro is informed and believes and thereupon alleges that at all relevanttimes referenced herein, AOS employed more than five people and thus fell within the

jurisdiction of California law related to harassment and discrimination. Cal. Gov. Code

12926(d).

11. Ms. Foderaro is informed and believes and thereupon alleges that ROBERT E.MARTIN, M.D., is a California resident doing business in the County of Alameda, California,

and is an employee, an officer and a director of AOS. At all relevant times referenced herein,

ROBERT E. MARTIN, M.D., acted as a supervisor to Ms. Foderaro. ROBERT E. MARTIN,

M.D. is sued as an individual.

12. Ms. Foderaro is informed and believes and thereupon alleges that GREGG T.POTTORFF, M.D., is a California resident doing business in the County of Alameda, California,

and is an employee, an officer and a director of AOS. At all relevant times referenced herein,

GREGG T. POTTORFF, M.D was President of AOS. GREGG T. POTTORFF, M.D. is sued as

an individual.

//


5/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

VENUE AND JURISDICTION

13. Venue and jurisdiction are proper in this court pursuant to California Code ofCivil Procedure Section 395.

GENERAL ALLEGATIONS AGAINST ALL DEFENDANTS

I. MS. FODERARO WAS A TRUSTED EMPLOYEE OF AOS

14. Ms. Foderaro began working for AOS and ROBERT E. MARTIN, M.D. inapproximately 2005. Initially, Ms. Foderaro worked as a medical assistant to ROBERT E.

MARTIN, M.D. She earned $20.50 per hour. In 2010, she was given a raise to $22 per hour.

15. Upon information and belief, Ms. Foderaro was hired to replace ROBERT E.MARTIN, M.D.s former assistant, Suzanne Ratinho.

16. In January 2010, AOS and ROBERT E. MARTIN, M.D. added to Ms. Foderarosjob responsibilities by naming her office manager of AOS. In her capacity as office manager,

Ms. Foderaro was responsible (among other things) for handling administrative duties with the

accounts payable company, supervising other staff and technicians and being the point of first

contact for office problems. Ms. Foderaro was given $1500 a month by AOS as compensation

for her office manager duties (this being in addition to her work as a medical assistant to

ROBERT E. MARTIN, M.D.).

17. From 2005 and through her entire period of employment up until the illegalharassment, discrimination, retaliation, emotional distress and wrongful termination she

experienced from AOS, GREGG T. POTTORFF, M.D. and ROBERT E. MARTIN, M.D., Ms.

Foderaro was only given positive reviews of her work. For example, ROBERT E. MARTIN,

M.D. would often compare Ms. Foderaro to his former assistant, Suzanne Ratinho. ROBERT E.

MARTIN, M.D. would comment that Ms. Foderaro was far more independent than Suzanne

Ratinho and that Ms. Foderaro knew how the practice wanted to be run. ROBERT E. MARTIN,

M.D., told Ms. Foderaro that she was the complete opposite of Suzanne [Ratinho] because

Suzanne could not make a decision on her own of any kind. ROBERT E. MARTIN, M.D. told

Ms. Foderaro that she should have become a physicians assistant and not a medical assistant.

18. In a March 31, 2011 taped interview, ROBERT E. MARTIN, M.D. admitted that


6/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

he had a very professional relationship with Ms. Foderaro. He described Ms. Foderaro as an

extremely dedicated, efficient, productive, reliable employee. He described Ms. Foderaro as

his best advocate, and someone who was extremely loyal. Ms. Foderaro did her job well.

19. ROBERT E. MARTIN, M.D. came to heavily rely and trust the judgment of Ms.Foderaro in her duties as his medical assistant. Ms. Foderaro did far more than a typical medical

assistant in exercising her independent judgment with regard to the care and treatment of

ROBERT E. MARTIN, M.D.s patients, all with his blessings. For example, ROBERT E.

MARTIN, M.D. would often ask Ms. Foderaro to triage his patients while he was away. On one

occasion, ROBERT E. MARTIN, M.D. asked Ms. Foderaro to change the dressing on one of his

patients who had had a knee surgery.

20. At the end of every year Ms. Foderaro worked for ROBERT E. MARTIN, M.D.and AOS, she received a bonus. At the end of 2009, Ms. Foderaro received a $400 bonus for her

work as an office manager and medical assistant. At the end of 2010, Ms. Foderaro received a

$1000 bonus for her work as an office manager and medical assistant.

II. PRESIDENT OF AOS GREGG T. POTTORFF M.D. CREATES A

SEXUALLY HARASSING WORK ENVIRONMENT

21. During the summer of 2010, Ms. Foderaro, as office manager of AOS, beganreceiving complaints from other employees at AOS regarding sexual harassment created by

president of AOS GREGG T. POTTORFF, M.D. Specifically, employees were complaining to

Ms. Foderaro of sexual favoritism between GREGG T. POTTORFF, M.D. and GREGG T.

POTTORFF, M.D.s medical assistant.

22. On one occasion, ROBERT E. MARTIN, M.D. himself expressed to Ms.Foderaro that he could not stand the behavior between GREGG T. POTTORFF, M.D. and

GREGG T. POTTORFF, M.D.s medical assistant because he thought their banter was

inappropriate.

23. In a March 31, 2011 interview, an employee at AOS confirmed that GREGG T.POTTORFF, M.D. has been inappropriate in his actions with his assistant. This employee

stated that the behavior was along the lines of sexual harassment. The sexual harassment was


7/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

irritating and agitating to everyone.

24. This employee stated that the sexual favoritism was so extreme at AOS that otheremployees would comment, Why dont they get a room and get it done and over with, those

types of things.

25. This employee stated that Ms. Foderaro was specifically on the same page as meabout the harassment portion, the sexual harassment, that we all felt a little uncomfortable about

the relationship that GREGG T. POTTORFF, M.D. had with his medical assistant. There was an

uncomfortable kind of sexual undertone that was happening and it was inappropriate in the

office.

26. This employee confirmed, We have so much drama in that office its ridiculous.27. In her March 30, 2011 interview, Ms. Foderaro confirmed that GREGG T.

POTTORFF, M.D. had a very strange relationship with his assistant. Ms. Foderaro confirmed

that other employees and office staff had been complaining to [her] about GREGG T.

POTTORFF, M.D.s relationship with his assistant. [T]hey felt very uncomfortable with Dr.

Pottorffs behavior with his assistant. [T]hey would get upset at the blatant favoritism that he

was showing.

III. AOS REFUSES TO IMPLEMENT ANTI-HARASSMENT AND

DISCRIMINATION POLICIES AND PROCEDURES

28. Pursuant to her duties as office manager, Ms. Foderaro brought to the attention ofAOS and ROBERT E. MARTIN, M.D. the complaints about sexual harassment in the

workplace.

29. Ms. Foderaro requested that AOS implement appropriate policies and proceduresso that the harassment would cease and to prevent future instances of harassment.

30. In her March 30, 2011 interview, Ms. Foderaro confirmed that when GREGG T.POTTORFF, M.D. was confronted about his behavior, he got upset that it was even mentioned,

because he wasnt now able to show favoritism to his assistant. Ms. Foderaro stated that

GREGG T. POTTORFF, M.D. dismissed these concerns because he thought that Ms. Foderaro

was jealous of his relationship with his medical assistant.


8/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31. Despite numerous requests by Ms. Foderaro, AOS refused to take steps toinstitute appropriate policies and procedures with regard to the prevention of harassment,

discrimination and retaliation in the workplace.

III. ROBERT E. MARTIN, M.D. AND AOS RETALIATE AGAINST MS.

FODERARO BY HARASSING HER BASED ON HER AGE

32. Beginning in March 2010, ROBERT E. MARTIN, M.D. had started asking Ms.Foderaro about her retirement plans. ROBERT E. MARTIN, M.D. would specifically use the

word retire when speaking about Ms. Foderaros future.

33. Beginning in approximately the fall of 2010, ROBERT E. MARTIN, M.D.ssuggestions about Ms. Foderaros retirement accelerated and became malicious, harassing, and

calculated to force Ms. Foderaro to leave the company. ROBERT E. MARTIN, M.D. would

suggest that Ms. Foderaro retire at least once a week and sometimes more.

34. In conjunction with his verbal campaign to force Ms. Foderaro to retire, ROBERTE. MARTIN, M.D. initiated a campaign to create distressing, harassing and toxic working

conditions. ROBERT E. MARTIN, M.D. began to treat Ms. Foderaro with hatred, disdain and

contempt.

35. ROBERT E. MARTIN, M.D. initiated this campaign of harassment in responseand in retaliation to Ms. Foderaros attempts to have AOS comply with California law.

36. In her March 30, 2011 interview, Ms. Foderaro confirmed that the fall of 2010 iswhen it started to get really bad up there. She confirmed, November is when I started to really

feel sick.

37. In her March 30, 2011 interview, Ms. Foderaro confirmed that in approximatelyNovember 2010, ROBERT E. MARTIN, M.D.s requests about Ms. Foderaros retirement

progressively got worse. She confirmed that the entire staff started noticing his bad behavior,

you know, he just was nasty, gloom, short-tempered. ROBERT E. MARTIN, M.D. would talk

to me with such disdain, such hatred.

38. In her March 30, 2011 interview, Ms. Foderaro confirmed that she thought thatROBERT E. MARTIN, M.D. hates my guts.


9/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

39. In her March 30, 2011 interview, Ms. Foderaro confirmed that around this time,ROBERT E. MARTIN, M.D. told Ms. Foderaro that GREGG T. POTTORFF, M.D. basically

wanted me out of the office . . . because he wanted to blame me for the sexual harassment. Ms.

Foderaro stated that in a previous instance, GREGG T. POTTORFF, M.D. had referred to Ms.

Foderaro as a caged bear in an email he circulated.

40. During this period, Ms. Foderaro never received any complaints about the qualityof her work. On the contrary, Ms. Foderaro received a record bonus for her work that year.

41. In a March 31, 2011 interview, an employee at AOS stated that on one occasionshe observed Ms. Foderaro asking a routine question to ROBERT E. MARTIN, M.D. In

response, ROBERT E. MARTIN, M.D. snapped, Why do you have to be such a bitch?

42. In an April 8, 2011 interview, a different employee at AOS stated that on oneoccasion, ROBERT E. MARTIN, M.D. told Ms. Foderaro, Why cant you be more like

[GREGG T. POTTORFF, M.D.s assistant]? This is the same assistant who was at the center of

GREGG T. POTTORFF, M.D.s sexual favoritism, which was the source of sexual harassment at

AOS.

43. In the April 8, 2011 interview, this employee described Ms. Foderaro as someonewho took care of [ROBERT E. MARTIN, M.D.] with a golden spoon.

44. ROBERT E. MARTIN, M.Ds conduct was intentional and malicious and donefor the purpose of causing Ms. Foderaro to suffer humiliation, mental anguish, and emotional

and physical distress.

45. As a result of ROBERT E. MARTIN, M.Ds intentional, malicious and harassingconduct, predicated on Ms. Foderaros age and gender and done for the purpose of making Ms.

Foderaro retire so that ROBERT E. MARTIN, M.D. could bring in a younger woman, Ms.

Foderaro experienced physical and mental pain and suffering.

IV. ROBERT E. MARTIN, M.D. SUBJECTS MS. FODERARO TO A

TERMINATION, CONSTRUCTIVE TERMINATION AND ADVERSE

EMPLOYMENT ACTION BY TELLING HER SHE WILL BE FIRED

46. Ms. Foderaros treatment at the hands of ROBERT E. MARTIN, M.D. continued


10/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to get worse and worse. ROBERT E. MARTIN, M.D. would speak with disdain and hatred,

sometimes in front of the patients. Ms. Foderaro continued to act professionally. No mention

was ever made to Ms. Foderaro that the quality of her work was ever an issue.

47. On March 3, 2011, at approximately 4:45 p.m., ROBERT E. MARTIN, M.D.again asked Ms. Foderaro, Are you sure you cant retire? He had already asked her once that

morning if she had any plans to retire. ROBERT E. MARTIN, M.D. then told Ms. Foderaro that

his former assistant Suzanne Ratinho the same Suzanne Ratinho who could not make a

decision on her own of any kind had called and wanted her job back. ROBERT E.

MARTIN, M.D. told Ms. Foderaro that her work was exemplary and that her termination was

not due to job performance. However, ROBERT E. MARTIN, M.D. explained to Ms. Foderaro

that his previous, younger assistant would maybe bring in a breath of fresh air and that his

previous, younger assistant would maybe make [him] happy. ROBERT E. MARTIN, M.D.

also told Ms. Foderaro that he wasnt sure when [the younger assistant] could start, but that he

wouldnt drop the ball on Ms. Foderaro and expected the younger assistant to start by after

the summer.

48. ROBERT E. MARTIN, M.D. admitted in his March 31, 2011 taped interview thathe wanted to replace Ms. Foderaro with this younger woman. He admitted that he, agonized

how to present this to her, because, in my mind, its something that I wanted to have done.

Because having her work here was not working out for me and the rest of the office.

49. ROBERT E. MARTIN, M.D. admitted on tape, I didnt know how to present it.There was no easy way. And in hindsight, the only way would have been to just fire her and

say Adios.

50. ROBERT E. MARTIN, M.D. admitted on tape that by having a discussion, Iwould give her time, whether it was six months or three months or whatever.

51. When asked if he had been questioning Ms. Foderaro on several occasions whenshe was going to retire, ROBERT E. MARTIN, M.D., admitted on tape, Yea Ive been asking

her, trying to get a feel, what are your plans?

52. In a March 31, 2011 taped interview, an employee at AOS stated that the day after


11/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

his conversation with Ms. Foderaro, ROBERT E. MARTIN, M.D. admitted that he told Ms.

Foderaro that she was going to be terminated. Specifically, this employee stated, [ROBERT E.

MARTIN, M.D.] admitted to me that essentially he had mentioned to her that Suzanne was

looking to come back to work and he asked [Ms. Foderaro] if it was time for her to retire. And he

admitted that directly to me. And I was flabbergasted. But I was like, are you kidding me?

53. This employee confirmed, I wouldnt want to come back, after being said that. Iwould be devastated. I would be humiliated and I would be devastated by, how could my

physician do that to me?

54. This employee stated that what happened to Ms. Foderaro was nothing new. Ms.Foderaro was the second person whos gone out, because of this. This employee stated,

Thats a whole other story.

55. This employee stated, the added stress of Dr. Martin in that situation and Dr.Pottorff was overwhelming. I saw it. I heard it from her. And I felt for her. And I was so thankful

that I didnt push to get that position [of office manager].

56. This employee stated, the situation in the office was pretty unbearable. Theemployee expressed surprise that [Ms. Foderaro] lasted as long as she did, putting up with some

of the stuff that happened.

57. This employee concluded, They couldnt pay me a million dollars to do thatjob that Charise [Foderaro] did, at all.

58. Upon information and belief, ROBERT E. MARTIN, M.D. brought in SuzanneRatinho the following Monday, March 7, 2011, to replace Ms. Foderaro.

59. Ms. Foderaro was 52 years old at the time of this adverse employment action,constructive termination and termination.

60. Upon information and belief, Suzanne Ratinho was 38 years old at the time of thisadverse employment action, constructive termination and termination.

V. AOS CHANGES THE LOCKS TO CONFIRM MS. FODERAROS

TERMINATION, CONSTRUCTIVE TERMINATION AND ADVERSE

EMPLOYMENT ACTION


12/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

61. The Monday after the conversation between ROBERT E. MARTIN, M.D. andMs. Foderaro, AOS confirmed its termination, constructive termination and adverse employment

action against Ms. Foderaro by changing its locks to prevent Ms. Foderaro from coming to AOS.

62. In an April 8, 2011 interview, a second employee of AOS confirmed that noreason was given for changing the locks. First of all I was telling [ROBERT E. MARTIN,

M.D.] how much the locks were going to cost to get changed and I was like, I wouldnt do it.

63. This employee stated that changing the locks was a waste of money. Thisemployee concluded, They kind of went to the extreme.

64. This employee stated that ROBERT E. MARTIN, M.D. admitted to this employeethat he was getting emails from someone related to changing the locks, which this employee

thought were coming from GREGG T. POTTORFF, M.D.

65. To date, these emails have never been identified or disclosed by defendants,despite at least four requests by Ms. Foderaro to disclose these emails.

66. This employee stated, I dont look at them as being perfect, but, I would thinkthat, you know, at this time, as long as theyve been employers, that they should kinda know

certain things and not to do certain things.

FIRST CAUSE OF ACTON

(Age Harassment in violation of FEHA against

defendants ROBERT E. MARTIN, M.D. and AOS)

67. The allegations set forth in Paragraphs 1 through 66 are realleged andincorporated here by reference.

68. At all times mentioned in this Complaint, Ms. Foderaro was employed by AOS,and AOS employed more than five people, as described per Government Code 12926(d).

69. At all times mentioned in this Complaint, Government Code 12940 and 12941were in full force and effect and were binding on AOS and ROBERT E. MARTIN, M.D. These

sections required AOS and ROBERT E. MARTIN, M.D. to refrain from harassing any employee

on the basis of age, among other things (see Government Code 12940(j)(1) and 12940(j)(3)).

Within the time provided by law, Ms. Foderaro filed a complaint with the California Department


13/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of Fair Employment and Housing, in full compliance with these sections, and received a right-to-

sue letter.

70. At all times mentioned in this Complaint, ROBERT E. MARTIN, M.D. acted asMs. Foderaros supervisor at AOS.

71. During the course of Ms. Foderaros employment, AOS and ROBERT E.MARTIN, M.D. created and allowed to exist a hostile work environment based on Ms.

Foderaros age and harassed Ms. Foderaro on the basis of her age. Such harassment was in

violation of Government Code 12940 and 12941 and the public policy embodied therein, and

has resulted in damage and injury to Ms. Foderaro as alleged herein.

72. The hostile work environment created by AOS and ROBERT E. MARTIN, M.D.was severe or pervasive. Accordingly, AOS is strictly liable for any and all harassment caused by

ROBERT E. MARTIN, M.D.

73. A reasonable person over 40 in Ms. Foderaros circumstances would haveconsidered the work environment to be hostile or abusive, and Ms. Foderaro considered the work

environment to be hostile or abusive.

74. Ms. Foderaro was harmed by this prohibited age harassment, and this ageharassment was a substantial factor in causing her harm. As an actual and proximate result of

AOS and ROBERT E. MARTIN, M.D.s conduct, Ms. Foderaro has suffered and continues to

suffer humiliation, emotional distress, and mental and physical pain and anguish, all to her

damage in a sum according to proof.

75. In light of AOS and ROBERT E. MARTIN, M.D.s willful, knowing andintentional harassment against Ms. Foderaro, Ms. Foderaro seeks an award of punitive and

exemplary damages in an amount according to proof.

76. Ms. Foderaro has incurred and continues to incur legal expenses and attorneyfees. Ms. Foderaro is presently unaware of the precise amount of said expenses and fees and

prays leave of court to amend this Complaint when said amounts are more fully known.

//

//


14/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SECOND CAUSE OF ACTON

(Age Discrimination in violation of FEHA against defendant AOS)

77. The allegations set forth in Paragraphs 1 through 76 are realleged andincorporated herein by reference.


79. At all times mentioned in this Complaint, Government Code 12940 and 12941were in full force and effect and were binding on AOS and ROBERT E. MARTIN, M.D. These

sections required AOS and ROBERT E. MARTIN, M.D. to refrain from discriminating against

any employee over the age of 40. Within the time provided by law, Ms. Foderaro filed a

complaint with the California Department of Fair Employment and Housing, in full compliance

with these sections, and received a right-to-sue letter.

80. Beginning in the fall of 2010 and continuing and accelerating through March2011, AOS and ROBERT E. MARTIN, M.D. initiated an aggressive and malicious campaign to

create toxic and hostile working conditions, including but not limited to repeated and

inappropriate requests related to her retirement plans, so that Ms. Foderaro would retire from

the company.

81. On March 3, 2011, after five years of wholly satisfactory, competent, diligent andexemplary performance to the profit of AOS and ROBERT E. MARTIN, M.D., Ms. Foderaro

was notified by AOS and ROBERT E. MARTIN M.D. that she was the subject of a termination,

constructive termination and adverse employment action in favor of a younger woman who

would maybe bring in a breath of fresh air and maybe make [ROBERT E. MARTIN, M.D]

happy.

82. Ms. Foderaro believes and thereon alleges that the motivating reason for thistermination, constructive termination and adverse employment action was her age. This

discrimination was in violation of the public policy of the State of California as reflected in

Government Code 12940 and 12941 and resulted in damage and injury to Ms. Foderaro as

alleged herein.


15/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

83. At the time of Ms. Foderaros termination, constructive termination and adverseemployment action, Ms. Foderaro was performing her job duties in an exemplary manner and

had just received a record bonus in December 2010. Ms. Foderaro was replaced by a younger

woman who ROBERT E. MARTIN, M.D. had indicated was not nearly as competent as Ms.

Foderaro and who could not make a decision on her own of any kind.

84. AOS and ROBERT E. MARTIN, M.D. intentionally created or knowinglypermitted working conditions to exist that were so intolerable that a reasonable person in Ms.

Foderaros position would have had no reasonable alternative except to resign or leave the

company. Ms. Foderaro went on disability leave for stress on March 4, 2011, the day after she

was notified by ROBERT E. MARTIN, M.D. and AOS that she was the subject of a termination,

constructive termination and adverse employment action in favor of a younger worker who


happy.

85. Ms. Foderaro was harmed by this prohibited age discrimination, and this agediscrimination was a substantial factor in causing her harm. As an actual and proximate result of

AOS and ROBERT E. MARTIN, M.D.s willful, knowing and intentional discrimination against

Ms. Foderaro, she has sustained and continues to sustain substantial losses in earnings and other

employment benefits.

86. As an actual and proximate result of AOS and ROBERT E. MARTIN, M.D.swillful, knowing and intentional discrimination against Ms. Foderaro, she has suffered and

continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all

to her damage in a sum according to proof.

87. In light of AOS and ROBERT E. MARTIN, M.D.s willful, knowing andintentional discrimination against Ms. Foderaro, Ms. Foderaro seeks an award of punitive and





16/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

THIRD CAUSE OF ACTON

(Sex Harassment in violation of FEHA against

defendants GREGG T. POTTORFF, M.D. and AOS)



91. At all times mentioned in this Complaint, Government Code 12940 was in fullforce and effect and was binding on AOS and ROBERT E. MARTIN, M.D. This section

required AOS and ROBERT E. MARTIN, M.D. to refrain from harassing any employee on the

basis of sex, among other things (see Government Code 12940(j)(1) and 12940(j)(3)). Within

the time provided by law, Ms. Foderaro filed a complaint with the California Department of Fair

Employment and Housing, in full compliance with these sections, and received a right-to-sue

letter.

92. During the course of Ms. Foderaros employment, AOS and GREGG T.POTTORFF, M.D. created and allowed to exist a hostile work environment based on sex. Such

harassment was in violation of Government Code 12940 and the public policy embodied

therein, and has resulted in damage and injury to Ms. Foderaro as alleged herein.

93. The hostile work environment created by AOS and GREGG T. POTTORFF,M.D. amounted to impermissible sexual favoritism in the work environment, which was

widespread and also severe or pervasive.

94. A reasonable woman in Ms. Foderaros circumstances would have considered thework environment to be hostile or abusive, and Ms. Foderaro considered the work environment

to be hostile or abusive.

95. GREGG T. POTTORFF, M.D., as President of AOS, participated in, assistedcreated or encouraged this widespread sexual favoritism.

96. Accordingly, AOS knew or should have known of the widespread sexualfavoritism and failed to take immediate and appropriate corrective action. Ms. Foderaro brought


17/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

to the attention of AOS complaints from other employees regarding this sexual favoritism.

97. Ms. Foderaro was harmed by this prohibited sex harassment, and this sexharassment was a substantial factor in causing her harm. As an actual and proximate result of

AOS and GREGG T. POTTORFF, M.D.s conduct, Ms. Foderaro has suffered and continues to

suffer humiliation, emotional distress, and mental and physical pain and anguish, all to her

damage in a sum according to proof.

98. In light of AOS and GREGG T. POTTORFF, M.D.s willful, knowing andintentional harassment against Ms. Foderaro, Ms. Foderaro seeks an award of punitive and




FOURTH CAUSE OF ACTON

(Sex Discrimination in violation of FEHA against defendant AOS)



102. At all times mentioned in this Complaint, Government Code 12940 was in fullforce and effect and was binding on AOS and ROBERT E. MARTIN, M.D. This section

required AOS to refrain from discriminating against any employee based on gender. Within the

time provided by law, Ms. Foderaro filed a complaint with the California Department of Fair


letter.

103. Beginning in the fall of 2010 and continuing and accelerating through March2011, AOS and ROBERT E. MARTIN, M.D. initiated an aggressive and malicious campaign to

create toxic and hostile working conditions, including but not limited to repeated and

inappropriate requests related to her retirement plans, so that Ms. Foderaro would retire from


18/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the company.

104. On March 3, 2011, after five years of wholly satisfactory, competent, diligent andexemplary performance to the profit of AOS and ROBERT E. MARTIN, M.D., Ms. Foderaro

was notified by AOS and ROBERT E. MARTIN M.D. that she was the subject of a termination,



happy.

105. Ms. Foderaro believes and thereon alleges that the motivating reason for thistermination, constructive termination and adverse employment action was her gender.

Specifically, Ms. Foderaro believes and thereon alleges that ROBERT E. MARTIN, M.D.

wanted a female assistant who would fit obsolete gender stereotypes of being docile and

subservient, and who would make ROBERT E. MARTIN, M.D. happy in the same way that

GREGG T. POTTORFF, M.D.s assistant was making GREGG T. POTTORFF, M.D. happy.

This discrimination was in violation of the public policy of the State of California as reflected in

Government Code 12940 and resulted in damage and injury to Ms. Foderaro as alleged herein.

106. At the time of Ms. Foderaros termination, constructive termination and adverseemployment action, Ms. Foderaro was performing her job duties in an exemplary manner and

had just received a record bonus in December 2010. Ms. Foderaro was replaced by a younger

worker who ROBERT E. MARTIN, M.D. had indicated was not nearly as competent as Ms.

Foderaro and who could not make a decision on her own of any kind.

107. AOS and ROBERT E. MARTIN, M.D. intentionally created or knowinglypermitted working conditions to exist that were so intolerable that a reasonable person in Ms.

Foderaros position would have had no reasonable alternative except to resign or leave the

company. Ms. Foderaro went on disability leave for stress on March 4, 2011, the day after she

was notified by ROBERT E. MARTIN, M.D. and AOS that she was the subject of a termination,



happy.


19/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

108. Ms. Foderaro was harmed by this prohibited sex discrimination, and this sexdiscrimination was a substantial factor in causing her harm. As an actual and proximate result of

AOS and ROBERT E. MARTIN, M.D.s willful, knowing and intentional discrimination against

Ms. Foderaro, she has sustained and continues to sustain substantial losses in earnings and other

employment benefits.

109. As an actual and proximate result of AOS and ROBERT E. MARTIN, M.D.swillful, knowing and intentional discrimination against Ms. Foderaro, she has suffered and

continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all

to her damage in a sum according to proof.

110. In light of AOS and ROBERT E. MARTIN, M.D.s willful, knowing andintentional discrimination against Ms. Foderaro, Ms. Foderaro seeks an award of punitive and




FIFTH CAUSE OF ACTON

(Retaliation against defendant AOS)



114. At all times mentioned in this Complaint, Government Code 12940(h) was infull force and effect and was binding on AOS. This section provides that it is unlawful for an

employer to retaliate against a person because the person has opposed any practice forbidden

under [the FEHA] or because the person has filed a complaint, testified, or assisted in any

proceeding under [the FEHA]. Within the time provided by law, Ms. Foderaro filed a complaint

with the California Department of Fair Employment and Housing, in full compliance with these

sections, and received a right-to-sue letter.


20/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

115. Ms. Foderaro brought to the attention of AOS the existence of sexual harassmentin the workplace. Specifically, Ms. Foderaro brought to the attention of AOS that the behavior of

the President of AOS, GREGG T. POTTORFF, M.D., with his assistant was creating an

environment filled with sexual harassment and sexual favoritism. Ms. Foderaro brought to the

attention of AOS that other employees at AOS were complaining to Ms. Foderaro about this

sexual harassment and sexual favoritism and asked that it cease. Sexual harassment and sexual

favoritism are forbidden by the FEHA, specifically under Government Code 12940(j).

116. Ms. Foderaro asked that AOS take action against GREGG T. POTTORFF, M.D.,and to specifically make him cease the sexual harassment and sexual favoritism.

117. Ms. Foderaro also asked that AOS institute policies and procedures to preventfuture harassment in the office as required by the FEHA, specifically under Government Code

12940(k).

118. In response to Ms. Foderaros attempts to have AOS comply with California law,AOS, through the actions of GREGG T. POTTORFF, M.D. and ROBERT E. MARTIN, M.D.,

began a campaign to cause unbearable and intolerable working conditions at AOS to force Ms.

Foderaro to retire. Taken as a whole, the actions of GREGG T. POTTORFF, M.D., ROBERT

E. MARTIN, M.D. and AOS materially and adversely affected the terms and conditions of Ms.

Foderaros employment.

119. In response to Ms. Foderaros attempts to have AOS comply with California law,and after five years of wholly satisfactory, competent, diligent and exemplary performance to

the profit of AOS, on March 3, 2011, AOS subjected Ms. Foderaro to a termination, constructive

termination and adverse employment action in favor of a younger woman who would maybe

bring in a breath of fresh air and maybe make [ROBERT E. MARTIN, M.D] happy.

120. AOS intentionally created or knowingly permitted working conditions to existthat were so intolerable that a reasonable person in Ms. Foderaros position would have had no

reasonable alternative except to resign or leave the company. Ms. Foderaro went on disability

leave for stress on March 4, 2011, the day after she was notified by ROBERT E. MARTIN, M.D

and AOS that she was the subject of a termination, constructive termination and adverse


21/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

employment action in favor of a younger woman who would maybe bring in a breath of fresh

air and maybe make [ROBERT E. MARTIN, M.D] happy.

121. Ms. Foderaros attempts to have AOS comply with California law was amotivating reason for AOSs decision to create unbearable and intolerable working conditions

that materially and adversely affected the terms and conditions of Ms. Foderaros employment,

and was a motivating reason for AOSs March 3, 2011 termination, constructive termination and

adverse employment action of Ms. Foderaro in favor of a younger woman who would maybe

bring in a breath of fresh air and maybe make [ROBERT E. MARTIN, M.D] happy.

122. Ms. Foderaro was harmed by this prohibited retaliation, and this retaliation was asubstantial factor in causing her harm. As an actual and proximate result of AOS willful,

knowing and intentional retaliation against Ms. Foderaro, she has sustained and continues to

sustain substantial losses in earnings and other employment benefits.

123. As an actual and proximate result of AOS willful, knowing and intentionalretaliation against Ms. Foderaro, she has suffered and continues to suffer humiliation, emotional

distress, and mental and physical pain and anguish, all to her damage in a sum according to

proof.

124. In light of AOS willful, knowing and intentional retaliation against Ms. Foderaro,Ms. Foderaro seeks an award of punitive and exemplary damages in an amount according to

proof.



SIXTH CAUSE OF ACTON

(Failure To Prevent Harassment, Discrimination or Retaliation

in violation of FEHA against defendant AOS)


127. At all times mentioned in this Complaint, Ms. Foderaro was employed by AOS,


22/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and AOS employed more than five people, as described per Government Code 12926(d).

128. At all times herein mentioned, Government Code 12940(k) was in full force andeffect and binding on AOS. This section makes it an unlawful employment practice in California

for an employer to fail to take all reasonable steps necessary to prevent discrimination,

harassment or retaliation. Within the time provided by law, Ms. Foderaro filed a complaint with

the California Department of Fair Employment and Housing, in full compliance with these

sections, and received a right-to-sue letter.

129. As alleged herein, AOS, through the actions of its President GREGG T.POTTORFF, M.D., created and allowed to exist a hostile work environment based on sex. The

hostile work environment created by AOS and GREGG T. POTTORFF, M.D. amounted to

impermissible sexual harassment and sexual favoritism in the work environment, which was

widespread and also severe or pervasive.

130. On numerous occasions, Ms. Foderaro requested that AOS implement appropriatepolicies and procedures in conformity with California law so that the sexual harassment and

sexual favoritism would cease and to prevent future instances of harassment. These requests

were repeatedly ignored and denied.

131. Ms. Foderaro was also subjected to harassing and discriminatory conduct byAOS, GREGG T. POTTORFF and ROBERT E. MARTIN, M.D. on the basis of her age and

gender.

132. Ms. Foderaro was subject to retaliation because she opposed AOSs unlawfulemployment practices in creating a workplace with sexual harassment.

133. Ms. Foderaro was subject to retaliation because she opposed AOSs unlawfulemployment practice in refusing to implement policies and procedures to prevent harassment

from occurring in the workplace.

134. AOS failed to take reasonable steps to prevent this harassment, discrimination andretaliation against Ms. Foderaro.

135. Ms. Foderaro was harmed by this prohibited failure to take reasonable steps toprevent harassment, discrimination, or retaliation, and this failure to take reasonable steps to


23/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

prevent harassment, discrimination or retaliation was a substantial factor in causing her harm. As

an actual and proximate result of AOSs failure to prevent harassment, discrimination, or

retaliation, Ms. Foderaro suffered and continues to suffer humiliation, emotional distress, and

mental and physical pain and anguish, all to her damage in a sum according to proof.

136. In light of AOSs willful, knowing and intentional failure to prevent harassmentand discrimination Ms. Foderaro, Ms. Foderaro seeks an award of punitive and exemplary

damages in an amount according to proof.

SEVENTH CAUSE OF ACTON

(Intentional Infliction of Emotional Distress

against defendant ROBERT E. MARTIN, M.D.)


138. At all times mentioned in this Complaint, Ms. Foderaro was employed by AOS.139. After five years of wholly satisfactory, competent, diligent and exemplary

service to the profit of AOS and ROBERT E. MARTIN, M.D., and after requesting that AOS

comply with California law, Ms. Foderaro was subject to a campaign of harassment,

discrimination and retaliation by ROBERT E. MARTIN, M.D. Eventually, this campaign of

harassment, discrimination and retaliation culminated in Ms. Foderaro experiencing a

termination, constructive termination and adverse employment action in favor of a younger

woman because this younger woman would maybe bring in a breath of fresh air and maybe

make [ROBERT E. MARTIN, M.D.] happy.

140. The conduct of ROBERT E. MARTIN, M.D. was outrageous.141. The conduct of ROBERT E. MARTIN, M.D. was intentional and malicious

insofar as his actions were taken with knowledge that Ms. Foderaro would experience severe

emotional suffering as a result of his conduct, but he nevertheless undertook and continued such

conduct with a wanton and reckless disregard of the consequences to Ms. Foderaro.

142. As an actual and proximate result of ROBERT E. MARTIN, M.D.s willful,knowing and intentional conduct against Ms. Foderaro, she has suffered and continues to suffer


24/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

severe emotional distress and suffering, all to her damage in a sum according to proof.

143. As a further actual and proximate result of the conduct alleged herein, Ms.Foderaro has incurred and will incur, sundry expenses in the examination and care and treatment

of her physical and emotional injuries, all to her damage in a sum according to proof.

144. In light of ROBERT E. MARTIN, M.D.s willful, knowing and intentionalconduct against Ms. Foderaro, Ms. Foderaro seeks an award of punitive and exemplary damages

in an amount according to proof.

EIGHTH CAUSE OF ACTON

(Wrongful Termination against defendants AOS,

GREGG T. POTTORFF M.D. and ROBERT E. MARTIN, M.D.)


146. At all times mentioned in this Complaint, Ms. Foderaro was employed by AOS.147. At all times mentioned in this Complaint, Government Code 12940(a) and

12941 were in full force and effect and were binding on AOS and ROBERT E. MARTIN, M.D.

These sections required AOS and ROBERT E. MARTIN, M.D. to refrain from harassing and

discriminating against any employee on the basis of age, among other things. Within the time

provided by law, Ms. Foderaro filed a complaint with the California Department of Fair


letter.

148. As alleged herein, AOS subjected Ms. Foderaro to a termination, contructivetermination and adverse employment action on March 3, 2011, when ROBERT E. MARTIN,

M.D. informed her she was to be replaced by a younger worker who would maybe bring in a

breath of fresh air and would maybe make [him] happy.

149. As alleged herein, this termination, constructive termination and adverseemployment action was the result of AOS and ROBERT E. MARTIN, M.D. harassing and

discriminating against Ms. Foderaro on the basis of her age and gender. Such harassment and

discrimination was in violation of Government Code 12940(a) and 12941 and the public


25/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

policy of the State of California embodied therein, and has resulted in damage and injury to Ms.

Foderaro as alleged herein.

150. As alleged herein, AOS retaliated against Ms. Foderaro after she brought to itsattention the sexually harassing conduct of the president of AOS, GREGG T. POTTORFF, M.D.

and asked that the harassment cease and that AOS institute measures to prevent harassment from

happening in the future. Ms. Foderaro objected and opposed behavior by AOS forbidden by the

FEHA and was accordingly subject to a termination, constructive termination and adverse

employment action as a result of her opposition and objection. Ms. Foderaros refusal to engage

in illegal employment practices at AOS was a motivating reason for its termination, constructive

termination and adverse employment action of Ms. Foderaro.

151. AOS intentionally created or knowingly permitted working conditions to existthat were so intolerable that a reasonable person in Ms. Foderaros position would have had no

reasonable alternative except to resign or leave the company. Ms. Foderaro went on disability

leave for stress on March 4, 2011, the day after she was notified by ROBERT E. MARTIN, M.D.

and AOS that she was the subject of a termination, constructive termination and adverse

employment action in favor of a younger worker who would maybe bring in a breath of fresh

air and maybe make [ROBERT E. MARTIN, M.D] happy.

152. As alleged herein, and as an actual and proximate result of this termination,constructive termination and adverse employment action in violation of California law and the

public policy embodied therein, Ms. Foderaro has suffered and continues to suffer humiliation,

emotional distress, and mental and physical pain and anguish, all to her damage in a sum

according to proof.

153. In light of AOS and ROBERT E. MARTIN, M.D.s willful, knowing andintentional harassment, discrimination and retaliation against Ms. Foderaro, Ms. Foderaro seeks

an award of punitive and exemplary damages in an amount according to proof.

154. GREGG T. POTTORFF, M.D. and ROBERT E. MARTIN, M.D. are subject toliability from this cause of action on account of their status as shareholders of AOS who directly

ordered, authorized or participated in the tortious conduct or specifically directed or authorized


26/27


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the wrongful act.Filet Menu, Inc. v. CCL & G, Inc. (Cal. Ct. App. 2000) 94 Cal.Rptr.2d 438,

447 (citing Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 785).

PRAYER FOR RELIEF

WHEREFORE, CHARISE FODERARO prays for judgment against AOS, GREGG T.

POTTORFF, M.D. and ROBERT E. MARTIN, M.D. as follows:

1. For compensatory damages, including lost wages, lost employee benefits,bonuses, vacation benefits, and other special and general damages according to

proof, on each cause of action;

2. For mental and emotional distress damages on each cause of action;3. For punitive damages on each cause of action;4. For an award of interest, including prejudgment interest, at the legal rate;5. For an award of attorneys fees on the First, Second, Third, Fourth, Fifth and

Sixth Causes of Action;

6. For costs of suit; and7. For such other and further relief as the court deems appropriate.

Respectfully submitted,

Dated: May __, 2012

COMAR LAW

ByD. Inder ComarAttorney for Plaintiff

CHARISE FODERARO


27/27

foderaro second amended complaint filed

Documents