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Martin Enal, An Individual v. Hms Host Usa

January 3, 2011

MARTIN ENAL, AN INDIVIDUAL,
PLAINTIFF,
v.
HMS HOST USA, INC., A DELAWARE
CORPORATION, ET AL., [DOCKET NO. 9] DEFENDANTS.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

This case comes before the Court on Defendant's motion to dismiss. Plaintiff filed an opposition to the motion, and Defendant filed a reply. For the reasons discussed below, the Court grants in part and denies in part the motion to dismiss.

I.

BACKGROUND Plaintiff Martin Enal is employed as a utility man for Defendant Host International, Inc. (Compl. ¶ 9.) He has been employed by Defendant since October 5, 1985. (Id.)

Plaintiff alleges that he "enjoyed good working relationships with his co-workers, and received favorable job performance reviews from his managers and supervisors" until sometime in 2008. (Id.

¶ 11.) At that time, he began experiencing problems with the utility man from another shift, Armando de Guzman. (Id. ¶ 12.) Plaintiff alleges that Mr. de Guzman would not complete his work, and that Plaintiff would have to complete Mr. de Guzman's work in addition to performing his own work. (Id.)

Plaintiff complained about this situation to his immediate supervisor, Adriana Mejia. (Id. ¶ 13.) Ms. Mejia did not resolve the issue to Plaintiff's satisfaction, therefore Plaintiff complained to Jennifer Lakin in Human Resources about the situation. (Id. ¶ 14.) Ms. Lakin said she would discuss the issue with Ms. Mejia. (Id.)

The following day, Ms. Mejia assigned Plaintiff additional job duties. (Id. ¶ 15.) Plaintiff alleges this was in retaliation for his complaints about Mr. de Guzman. (Id. ¶ 16.)

In September 2008, Plaintiff alleges he was forced to bid on and accept a less desirable shift while the more preferred shift went to Mr. de Guzman. (Id. ¶ 17.)

Plaintiff alleges he was subject to other retaliatory and discriminatory employment practices, including being falsely accused and written up for failing to abide by workplace rules and regulations, and being ordered and forced to work overtime without pay. (Id. ¶ 18.) Plaintiff alleges he complained about these practices only to have them increase in rate, degree and intensity, creating "an increasingly hostile work environment." (Id. ¶ 19.)

On April 2, 2009, Ms. Mejia gave Plaintiff a written reprimand for leaving perishable merchandise unattended. (Id. ¶ 21.) Plaintiff was forced to seek the intervention of his Union to represent him in that matter. (Id.)

On May 29, 2009, Ms. Mejia ordered Plaintiff to the office of the General Manager, Joe Niknam, where Plaintiff was given a verbal warning against insubordination and fighting in the workplace. (Id. ¶ 24.) Plaintiff alleges the discrimination, harassment and retaliation continued through this time.

On July 6, 2010, Plaintiff filed a complaint with the Department of Fair Employment and Housing ("DFEH") alleging claims of discrimination and harassment based on his race and national origin,*fn1 and retaliation. The DFEH issued its Right-To-Sue Notice on July 20, 2010.

On August 19, 2010, Plaintiff filed the present case in San Diego Superior Court alleging claims for employment discrimination based on race and national origin, harassment and retaliation under California's Fair Employment and Housing Act, failure to pay overtime wages, and intentional and negligent infliction of emotional distress. ...


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