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Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 1 of 81 Page ID #:18

JANET I. SWERDLOW (State Bar No. 155396)

E-Mail: jswerdlow swerdlowlaw.com

SWERDLOW FLO NCE

SANCHEZ SWERDLOW & WIMMER

A Law Corporation
9401 Wilshire Blvd., Suite 828
Beverly Hills, California 90212
Telephone: (310) 288-3980

Attorneys for Defendant
Warner Bros. Theatrical Enterprises, LLC
and Warner Bros. Entertainment Inc.

c~ s.

JUL ~° ~

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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JASON ROSENBERG,

(CASE NO.

Plaintiff,

NOTICE OF REMOVAL

vs.

WARNER BROS ENTERTAINMENT,
INC., a Delaware corp oration,
WARNER BROS. THEATRICAL
ENTERPRISES, a Delaware limited
liability company; and DOES 1 through
25,

Defendants.

28 U.S.C. §§ 1331, 1441 (a)(b) and (c))
Los Angeles Count Superior Court
ase No. EC060718~

[.Filed concurrently with the
Supporting Declarations and.
Certificate of Interested Parties]

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II TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE

II CENTRAL DISTRICT OF CALIFORNIA:

PLEASE TAKE NOTICE that Defendant Warner Bros. Theatrical Enterprises

LLC ("Defendant" or "WBTE"), hereby invokes this Court's jurisdiction for

removal of the above-referenced action from the Superior Court in the State of

California for the County of Los Angeles to the ~Jnited States District Court for the

Central District of California. This removal is based on 28 U.S.C. §§ 1331, 1367(a),

1441 and 1446 and, specifically, on the following grounds:

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261549.4 / 3532-012

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 2 of 81 Page ID #:19

STATEMENT OF JURISDICTION

1.

This action is a civil action over which this Court has original

~ jurisdiction based on the existence of a federal question because Plaintiff's claims

~ substantially depend upon the interpretation of a collective bargaining agreement

~ and are preempted under Section 301 of the Labor Management Relations Act

~ ("LMRA"). See 28 U.S.C. § 1331; 29 U.S.C. § 185(a).

III.

VENUE

2.

The action was filed in Superior Court of California for the County of

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Los Angeles. Thus, venue properly lies in the United States District Court for the

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Central District of California. See 28 U.S.C. § § 84(c), 1391(a), 1441(a).

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III. PLEADINGS, PROCESS AND ORDERS

3.

This lawsuit arises out of Plaintiff Jason Rosenberg's ("Plaintiff's")

employment with WBTE. On May 15, 2013, Plaintiff filed a Complaint in the

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Superior Court of the State of California, County of Los Angeles, entitled "JASON

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ROSENBERG v. WARNER BROS. ENTERTAINMENT, INC., a Delaware

corporation, WARNER BROS. THEATRICAL ENTERPRISES, a Delaware limited

liability company; and DOES 1 through 25, Case No. EC060718" (the

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~ "Complaint").

4.

The Complaint sets forth four (4) alleged claims for relief: (1) Failure

~ to Accommodate [California Fair Employment and Housing Act ("FEHA")];

~ (2) Retaliatory Termination [FEHA] and Failure to Take Corrective Action;

~ (3) Wrongful Termination in Violation of Public Policy; and (4) Intentional

Infliction of Emotional Distress.

5.

Plaintiff served a copy of the Summons and Complaint on WBTE on

~ June 3, 2013. A true and correct copy of the Summons and Complaint served on

WBTE is attached to this Notice as Exhibit 1. Plaintiff served a copy of the

Summons and Complaint on Warner Bros. Entertainment Inc. ("WBEI") on or about

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261549.4 / 3532-012

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NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 3 of 81 Page ID #:20

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June 3, 2013. A true and correct copy of the Summons and Complaint served on

WBEI is attached to this Notice as Exhibit 2.

6.

Defendants WBTE and WBEI each filed an answer to the Complaint on

June 27, 2013, true and correct copies of which are attached hereto as Exhibits 3 and

~ 4, respectively.

7.

As of the date of this Removal, no other defendants have been named

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~ or served with a copy of the Complaint.

8.

To WBTE's knowledge, no further process, pleadings, or orders related

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(to this case have been filed in Los Angeles County Superior Court.

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IV. TIMELINESS OF REMOVAL

9.

This Notice of Removal is timely, in that 28 U.S.C. ~ § 1446(b) requires

that a notice of removal in a civil action must be filed within thirty (30) days after

service of the summons and complaint. 28 U.S.C. § 1446(b); see also Mur~hX

Bros., Inc. v. Michetti Pipe Stringing Inc., 526 U.S. 344, 354, 119 S. Ct. 1322, 143

L. Ed. 2d 448 (199.9) (holding that the 30-day removal period begins to run upon

service of the summons and complaint). Given the service date of June 3, 2013, this

Notice of Removal is timely.

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1~ FEDERAL QUESTION JURISDICTION

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10. This Court has jurisdiction over this matter because it presents a federal

question,~pursuant to 28 U.S.C. § 1331, in that Plaintiff's alleged claims

substantially depend upon the interpretation of a collective bargaining agreement

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~ and are therefore preempted under Section 301 of the LMRA. See 28 U.S.C.

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~ § 1331, 29 U.S.C. § 185(a).

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11. The United States Supreme Court has made clear that, where the

~ resolution of state-law claims would require the interpretation of a collective

bargaining agreement, those claims are preempted by Section 301 of the LMRA,

29 U.S.C. § 185 et sec . See Lingle v. Nome Division of Magic Chef, 486 U.S. 399,

405-06, 108 S. Ct. 1877, 100 L. Ed. 2d 410, 418-19 (1988) ("[I]f the resolution of a

261549.4 / 3532-012

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NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 4 of 81 Page ID #:21

~ state-law claim depends upon the meaning of acollective-bargaining agreement, the

~ application of state law ... is pre-empted[,] and federal labor-law principles —

~ necessarily uniform throughout the Nation —must be employed to resolve the

~ dispute."). To be sure, "[t]he preemptive force of Section 301 is so powerful as to

~ displace entirely any state claim based on a collective bargaining agreement and any

state claim whose outcome depends on analysis of the terms of the agreement."

Young v. Anthony's Fish Grottos, Inc., 803 F.2d 993, 999 (9th Cir. 1987) (emphasis

added). Accordingly, preemption exists where interpretation is required to evaluate

the employer's defense to a state-law claim of action. Audette v. Int'1

Longshoremen's and Warehousemen's Union, Local 24, 195 F.3d 1 107, 1113 (9th

Cir. 1999) (civil rights claims preempted where interpretation of agreement required

in evaluating employer's defense that it had a legitimate, non-retaliatory business

reason for its action).

A. Plaintiff s Employment Was Governed By A Collective Bar~ainin~

Agreement At All Times Relevant To His Alleged Claims.

12. This action is a civil action over which this Court has original

jurisdiction under 28 U.S.C. § 1331, and is one which maybe removed to this Court

pursuant to the provisions of 28 U.S.C. § 1441(a). This is because Plaintiff s

~ alleged claims require interpretation of a collective bargaining agreement ("CBA")

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~ between an employer and a union and of the practices of the Company in applying

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~ the terms of that agreement. See~e•~., Steelworkers v. Warrior & Gulf Navi ag tion

~ Co., 363 U.S. 574, 581-82 (1960) ("The labor arbitrator's source of law is not

~ confined to the express provisions of the contract as the industrial common law —the

practices of the industry and the shop — is equally part of the collective bargaining

agreement, although not expressed in it."). Therefore, the action is entirely

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preempted by Section 301 of the LMRA, 29 U.S.C. § 185.

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13. At all relevant times, Defendant WBTE has been, and is, a company

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~ engaged in commerce and in an industry affecting commerce within the meaning of

261549.4 / 3532-012

nv

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 5 of 81 Page ID #:22

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~ Sections 2(2), 2(6), and 2(7) of the National Labor Relations Act ("NLRA") and

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~ section 301(a) of the LMRA, 29 U.S.C. §§ 152(2), (6), (7) and 185(a). (Declaration

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~ of Ruby Little in Support of Removal, filed concurrently herewith ("Little Decl.")

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14. Plaintiff was hired by WBTE to work as a print operator in or around

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~ December 2005. (Declaration of Ron Bailey in Support of Removal (Bailey Decl.")

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~ ~(¶ 1-3 and offer letter attached thereto as Exhibit 1, Bates Nos. 3-4.) Plaintiff's

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offer letter expressly provided, "[T]he terms and conditions of your employment

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will be governed by the collective bargaining agreement between the Company and

the OPEIU, Local #174." (Id.) When Plaintiff was promoted to the position of Data

Center Coordinator in November 2010, his offer letter reiterated, "[F]ollowing this

promotion, the terms and conditions of your employment will continue to be

governed by the collective bargaining agreement between the Company and the

OPEIU, Local # 174." (Bailey Decl. ¶¶ 1-3 and offer letter attached thereto as

Exhibit 2, Bates No. 5.) At all times during his employment with WBTE, Plaintiff

was a member of a bargaining unit represented by the Office and Professional

Employees International Union Local 174 ("the Union"). (Bailey Decl. ¶¶ 1-3;

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~ Little Decl. ¶¶ 1, 2 & 4.) In fact, Plaintiff's Complaint acknowledges his Union

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~ membership in alleging he submitted complaints "to his employee Union, which

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~ advocated on his behalf." (Complaint ~ 12.)

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15. The Union is a labor organization in which certain employees of

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~ WBTE participate and which exists for the purpose of dealing with employees

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~ concerning grievances, labor disputes, wages, rates of pay, hours of employment,

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and conditions of work. (Little Decl. ~(¶ 1-3 & 6)

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16. The terms and conditions of Plaintiff's employment with WBTE have

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', ~ been governed by collective bargaining agreements ("CBAs") entered into by and

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between the Union and WBTE. (Little Decl. ¶¶ 1-4.) A true and correct copy of the

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'~ most recent CBA that governed Plaintiff's employment at all times relevant to this

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NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 6 of 81 Page ID #:23

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action is attached to the Declaration of Ruby Little, as Exhibit 1. The CBA contains

provisions regarding "management rights," "job substitutions," "filling vacancies,"

~ "seniority," and "non-discrimination," among numerous other provisions as to the

terms and conditions of employment. (Id. ¶¶ 1-3.) In addition to the express

(provisions of the CBA, the terms and conditions of Union members' employment

with WBTE are also governed by the Company's practices in applying the terms of

conditions of the Agreement, including but not limited to those provisions regarding

seniority and filling of vacancies. (Bailey Decl. ¶¶1-3; Little Decl. ¶¶ 1, 2 & 7; see

Steelworkers, 363 U.S. at 581-82 (recognizing that Company practices become part

of the agreement between the parties).) Union-represented employees, such as

Plaintiff, are subject to Warner Bros. Entertainment Group of Companies'

"Standards of Business Conduct" ("SBC"). (Bailey Decl. ¶~ 1-3 and copy of

"Standards of Business Conduct" attached thereto as Exhibit 3 (noting at page 5

(Bates No. 14), "As employees, we are responsible for understanding and following

the principles of SBC, and for following all laws, regulations and, consistent with

collective bargaining agreement, Company policies that apply to our jobs.").) Per

the doctrine articulated in Steelworkers, supra, the SBC — as WBTE has

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~ incorporated it into its policies and practices — pertains to Union-represented

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~ employees of WBTE and therefore constitutes an implicit part of the CBA between

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WBTE and the Union.

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Plaintiff s Claims Are Preempted By The LMRA Because They Require

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Interpretation Of The Collective Bar~ainin~ Agreement.

17. It is well-settled that Section 301 of the LMRA "preempts all state-law

~ causes of action that require interpretation of a labor contract's terms." Ha_ d

Reickerd, 957 F.2d 1506, 1508-09 (9th Cir. 1991) (quoting Miller v. AT&T

Network Ste, 850 F.2d 543, 545 (9th Cir. 1988)). To be sure, "[e]ven suits based

~ on torts, rather than on breach of collective bargaining agreements, are governed by

federal law if their evaluation is `inextricably intertwined with consideration of the

261549.4 / 3532-012

D

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 7 of 81 Page ID #:24

terms of [a] labor contract."' Cook v. Lindsay Olive Growers, 911 F.2d 233, 237

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~ (9th Cir. 1990) (citing Miller v. AT& T Network Ste, 850 F.2d 543, 545 (9th Cir.

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1988)).

18. Here, Plaintiff's state-law claims — including those under the Fair

~ Employment and Housing Act ("FEHA") —are preempted because the resolution of

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~ those purported claims "requires the interpretation of acollective-bargaining

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~ agreement." Gulden v. Crown Zellerbach Corp., 890 F.2d 195, 198 (9th Cir. 1989)

(quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 3.94, 107 S. Ct. 2425, 96 L. Ed.

2d 318 (1987)); see also Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th

Cir. 1990) ("Federal law exclusively governs ... any state claim whose outcome

depends on analysis of the terms of the [collective bargaining] agreement.").1

19. Plaintiff's first cause of action for alleged failure to accommodate a

disability in violation of the FEHA is preempted by section 301 because its

resolution substantially depends upon the interpretation of the CBA's express and

implied terms. See,e•~., Audette, 195 F.3d at 1113; Bachilla v. Pac. Bell Tel. Co.,

2007 U.S. Dist. LEXIS 71232 (E.D. Cal. Sept. 25, 2007) (finding female plaintiffs'

1 Notably, the fact that Plaintiff s Complaint does not reference the applicable

collective bargaining agreement does not and cannot preclude removal. See Cook,
911 F.2d at 237 ("For preemption analysis, it is not dispositive that [plaintiff s] first
amended complaint is framed without reference to the CBA."). Rather, the Ninth
Circuit has explained that "preemption is required if [Plaintiff's] claims can be
resolved only by referring to the terms of the agreement." Id. (citing Newberry v.
Pacific Racing Assn, 854 F.2d 1142, 1146 (9th Cir. 1988)). Indeed, Plaintiff must
not be permitted to "artfully plead" his alleged claims "to conceal the true nature of
the complaint." Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th
Cir. 1983), overruled on other grounds by Moore-Thomas v. Alaska Airlines, Inc.,
553 F.3d 1241, 1246 (9th Cir. 2009). Instead, the Court properly looks beyond the
face of the Complaint, including to facts contained within the Notice of Removal, to
determine whether the claims actually require interpretation of a collective
bargaining agreement, but have been "artfully pleaded" to avoid federal jurisdiction.
See Lippitt v. Raymond James Fin. Servs., Inc., 340 F.3d 1033, 1041 (9th Cir.
2003).

261549.4 / 3532-012

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NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 8 of 81 Page ID #:25

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~ FEHA claims "inextricably intertwined" with the CBA and preempted because the

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~ actions plaintiffs complained of — promotions given to less senior males in alleged

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~ violation of seniority —were governed by the CBA); McGowen v. Nestle Food Co.,

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~ 2007 U.S. Dist. LEXIS 50926, at * 1 (E.D. Cal. Jan. 19, 2007) (disability

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discrimination claim preempted where elimination of position and reassignment of

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(tasks purportedly required pursuant to CBA). Specifically, Plaintiff's failure-to-

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accommodate claim rests on his assertion that the Company's failure to re-assign

him to a different shift than that into which he was hired violated the FEHA's

requirement to reasonably accommodate qualified individuals with a disability.

(Complaint at ~(¶ 13-22 and 29-37.)

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20.

Assessing the merits of Plaintiff's first cause of action will inevitably

require examination of the Company's policies and practices of assigning shifts to

see if either the desired transfer was within those policies and practices and, if not, if

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a change to those policies and practices would have been a "reasonable"

accommodation required by the FEHA. See Ross v. Ra_~in~wire

Telecommunications, Inc., 42 Cal. 4th 920, 938 (2008) (opinion of Justice Kennard,

concurring and dissenting) ("[U]nder the FEHA, determining whether an employee-

proposed accommodation is reasonable requires consideration of its benefits to the

~ employee ... ,the burdens it would impose on the employer and other employees,

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~ and the availability of suitable and effective alternative forms of accommodation.");

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U. S . Airways v. Barnett, 5 3 5 U. S . 3 91, 3 94 (2002) (holding that under the

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(Americans with Disabilities Act, a showing that a requested accommodation

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~ conflicts with the rules of a seniority system, collectively bargained or otherwise,

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will ordinarily establish the accommodation is not a "reasonable" one). In this case,

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because examination of the policies and practices that form the "baseline" against

which the requested accommodation is to be judged can be derived only through

interpretation of the CBA's provisions regarding filling vacancies, seniority, etc. (as

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261549.4 / 3532-012

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 9 of 81 Page ID #:26

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~ well as the Company's established practices in implementing those provisions), the

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~ claim is preempted.

21. Likewise, Plaintiff's second cause of action for retaliatory termination

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(and "failure to take corrective action" in violation of the FEHA is preempted.

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~ Plaintiff in this cause of action alleges that his termination constitutes retaliation for

having purportedly complained to management regarding alleged anti-Semitic

insults and/or for having requested accommodation. of a purported medical

disability. (Complaint ¶~ 38-46.) The Company contends that, to the contrary,

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Plaintiff was terminated because he violated WBTE policies and the SBC by

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engaging in an ongoing pattern of misconduct, failing to fully and truthfully

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cooperate in Company investigations, and failing. to comply with the terms of an

earlier final written warning Plaintiff received for similar misconduct. These

policies and practices thereunder, under Steelworkers, constitute part of the CBA.

In this regard, the Eastern District of California's decision in Bachilla is instructive.

Bachilla, 2007 U.S. Dist. LEXIS 71232. There, the plaintiff asserted a claim of sex

discrimination under FEHA, based on her employer's promotion of less senior male

co-workers, which she contended was in violation of company policy to promote

~ based on seniority. Id. at *23. The court explained that resolution of this claim was

substantially dependent on an analysis of the CBA because the terms of plaintiff's

employment, including eligibility for promotions, were governed by the CBA. Id. at

*26. The court fu~the~ noted that, because the employes would undoubtedly rely

upon its compliance with the procedures set forth in the applicable CBA, the

ultimate Yesolution of the plaintiff's discrimination claim would turn on defendant's

offer of legitimate non-discriminatory reasons —which would necessarily require

interpretation of the CBA. Id. Accordingly, the court found that jurisdiction existed

based upon federal preemption under Section 301. The same result should ensue

here. Determining whether, and to what extent, WBTE's adherence to the

applicable CBA was actually non-discriminatory and non-retaliatory (or was

261549.4 / 3532-012

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 10 of 81 Page ID #:27

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pretextual, as Plaintiff is likely to contend) will necessarily require interpretation of

the CBA and the practices thereunder, such that resolution of Plaintiff's alleged

FEHA retaliation claim is "inextricably intertwined" with an interpretation of the

CBA between WBTE and the Union.

22. Finally, Plaintiff's claims for wrongful termination in violation of

public policy and intentional infliction of emotional distress are preempted by

section 301. These claims are premised on the same purported actions that form the

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basis for his FEHA "failure to accommodate" and retaliatory discharge claims.3

(Complaint ~ 47-55.) Because resolution of these claims will require interpretation

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~ of the same CBA provisions as the FEHA claims will require (as explained above),

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these claims are also preempted by Section 301. See Newberry v. Pacific Racing

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Assn, 854 F.2d 1142, 1147 (9th Cir. 1988) (holding that claims for intentional

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~ infliction of emotional distress and breach of implied covenant of good faith were

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incidental to wrongful discharge claim, and that whether discharge was "wrongful"

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depended on whether the collective bargaining agreement provided ground for

discharge).

While it is less than ideally clear what Plaintiff means to allege in the

"failure to take corrective action" aspect of this second cause of action (Complaint
¶ 44), the preemption of the wrongful-termination aspect of this single cause of
action makes the issue irrelevant for present purposes.

In pleading the wrongful termination claim, Plaintiff's Complaint makes
reference to Labor Code section 132a (which prohibits discrimination against an
employee because he or she has suffered a workplace injury or made a workers'
compensation claim). (Complaint x(48.) Given the absence of related allegations
elsewhere in the Complaint, it is unclear if this was included by mistake or is truly
intended to be pleaded in this matter. In any event, this issue is irrelevant for the
preemption analysis, as whatever the purported illegal motivations) advanced by
Plaintiff, the Company's defense as to its legitimate, non-discriminatory motives
(examination of which will require interpretation of the CBA and incorporated
practices) is the same.

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NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 11 of 81 Page ID #:28

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23. Supplemental Jurisdiction. While WBTE maintains that all of

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~ Plaintiff's claims are preempted by Section 301, as set forth above, to the extent the

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~ Court concludes otherwise, any claims that may not be completely preempted are

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~ nevertheless removable under 28 U.S.C. § 1441(c). This is because the Court

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~ properly exercises supplemental jurisdiction over any such claims under 28 U.S.C.

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(§ 1367; see also Executive Software N. Am., Inc. v. U.S. Dist. Court for the Cent.

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~ Dist. of Cal., 24 F.3d 1545, 1552-61 (9th Cir. 1993); Young v. Anthon_y's Fish

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13.

Grottos, Inc., 803 F.2d 993, 999. (9th Cir. 1987).

VI. ALL DEFENDANTS PROPERLY SERVED WITH PLAINTIFF' S

COMPLAINT HAVE JOINED IN THIS PETITION FOR REMOVAL.

24. Under 28 U.S.C. § 1446, a Notice of Removal of an action to the

United States District Court must be filed by the "defendant or the defendants"

within 30 days after receipt of the Complaint. Ordinarily, such removal is

permissible only if all defendants who are named in the state action "join" in the

~~0~015
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petition. Chicago, Rock Island &Pacific Ry. Co. v. Martin, 178 U.S. 245, 248, 20

S. Ct. 854, 855, 44 L. Ed. 1055, 1056 (1900); lA J. Moore, Moore's Federal

Practice 0.168 [3.-2], at 547-48 (2d ed. 1993) ("Defendants, then, are to be treated

18

~ collectively; and as a general rule, all defendants, who may properly j oin in the

19

20

~ removal petition must join."). Pursuant to 28 U.S.C. § 1446(b), the consent of non-

~ petitioning defendants to the removal "must be manifested within the thirty day

21

period beginning from the date upon which the non-petitioning defendant is served

22

~ with the complaint." Hernandez v. Six Flags Magic Mountain, Inc., 688 F. Supp.

23

~ 560 (C.D. Cal. 1988). The non-petitioning defendant (WBEI's) consent within the

24

25

26

27

28

261549.4 / 3532-012

11

NOTICE OF REMOVAL

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 12 of 81 Page ID #:29

statutory period is evidenced by its Joinder in the Notice of Removal filed

concurrently with this Notice.4

25. "Doe" defendants need not join in the removal when it is grounded

upon federal question jurisdiction. Fristoe v. Reynolds Metals Co., 615 F.2d 1209,

~ 1213 (9th Cir. 1980).

26. Thus, all necessary defendants have joined in the Notice of Removal,

~ and removal to this Court is proper under 28 U.S.C. § § 1441(a) and 1446(a) and (b).

VII. NOTICE TO THE COURT AND PARTIES

27. Promptly upon filing of this Notice of Removal in the United States

District Court for the Central District of California, written notice of such filing will

be given by the undersigned to Plaintiff's counsel of record and a copy of the Notice

of Removal will be filed with the Clerk of the Court for the Superior Court of the

County of Los Angeles, California.

DATED: July 2, 2013

SWERDLOW FLORENCE

SANCHEZ SWERDLOW & WIMMER

By:

" JANET I. SWERDLOW
Attorneys for Defendant
Warner Bros. TheatricalEnterprises, LLC
and Warner Bros. Entertainment Inc.

4 For the record, we note that WBTE —not WBEI —was Plaintiff's employer
(see offer letters attached as Exhibits 1 and 2 to the Bailey Decl., at Bates Nos. 3-5);
ultimately, then, WBEI is not a proper defendant in this matter.

261549.4 / 3532-012

12

NOTICE OF REMOVAL

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Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 13 of 81 Page ID #:30

EXHIBIT "1"

62563.2 / 1224-001

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 14 of 81 Page ID #:31
sunn-goo

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SUMMONS
,,

(CITACIO,lV JUDICIAL)

~

NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
WARNER BROS ENTERTAINMENT, INC. , a Delaware
corporation, WARNER BROS. THEATRICAL ENTERPRISES a
Delaware limited is ility company; and DOES 1 through 25
---.
YOU ARE BEING SUED BY PLAfNTIFF:
(LO ESTA DEMANDANDD EL DEMANDANTE):
JASON ROSENBERG

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FOR COURT USE ONLY

(SQLO PAR.4 USO DE LA COR7~

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NOTICEt You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the inforrriation
below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy

served on the pEaintiff. A lefter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form That you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county iaw library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. if you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from fhe court.

There are other legal requirerrienfs. You may want to call an attorney righf away. 1f you do not know an attorney, you may want to call an attorney

referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Qnline Self-Help Center
(www.courtinfo.ca.gov/selfheJp), or by contacting your focal court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more. in a civil case. The court's lien must be paid before the court will dismiss the case.
~A V/SD! Lo han demandado. Si no responde dentro de 30 Bias, /a torte puede deCidir en su contra sin escuchar su versi6n. Lea la informaCion a
continuacibn.

Tiene 30 D(AS DE CALENDARIO despues de que le sntreguen seta citacidn y papetes legates Para presenfar una respuesta por escrita en esta
torte y hater que se entregue una copra al demandante. Una Carta o una Ilamada telefdnica no !o profegen. Su respuesta por escrito tierre que esfar
en formato legal CorreCto si desea que procesen su caso en la torte. Es posible que haya un farmulario que usted pueda usarPara su respuesta.
Puede encontraresfos formularios de la torte y mks information en eI Centro deAyuda de las Codes de California (www.sucorte.ca.gov), en la
biblrofeca de !eyes de su condado o en la torte que le quede mks cerca. Si no puede pagan la cuota de presentation, plda al secretario de !a code
que !e de un formulario de exencion de pogo de cuofas. Si no presenfa su respuesta a fiempo, puede perder el caso por incumplimiento y !a torte le
podgy guitar su sueldo, dinero y bienes sin mks advertencia.

Hay otrns requisitos legates. Es recomendabte que !lame a un abogado inmediafamente. Si no conoce a un abogado, puede Ilamar a un servicio de

remisidn a abogados. Sf no puede pagan a un abogado, es posible que cumpla con los requisifos pars obtener servicios legates gratuifos de un
programa de servicios legates sin fines de lucro. Puede encontrar esfos grupos sin fines de lucro en el sitio web de California Legal Services,
{www.lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, {vwvw.suco~te.ca.gav} o poni~ndose enconfacto con la code o el
colegio de abogados locales. AV1S0: Por ley, la torte tiene derecho a reclamar !as cuotas y Ios costos exenfos por imponer un gravamen sobre
cualquier recuperacrdn de $10,0 0 d mks de valor recibida mediante un acuerd~ o una concesion de arbitraje en un caso de derecho civil. Tens que
pa_gar eI gravamen de la code antes de que Ja torte pueda desechar el caso.

~

The name and address of the court is:
(Ef Hombre y direction de la code es):
LOS ANGELES SUPERIOR COURT
300 E. Olive Ave,
Burbank, CA 91502
The name, address, and telephone number at plaintiffs attorney, ar plaintiff without an attorney, is:
(Fl Hombre, la direction y elnumero de telefona del abogado del demandante, o del demandante que no liens abogado, es):
DONALD E . KAPREL, ESQ . (SBN : 6167 8 } ag
9777 Wilshire Blvd., Suite 1000
Beverly Hill~,~~ 90212
DATE: ~~ 1 ~,

(310) 2? 3-844 4

~_ ~~~~

Clerk, by

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CASE NUMBER (NG~ser~bel (~st~ O ~] ~ Q
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(nor proor ~t service or tnrs summons, use rroot at service of Summons ~~orm rue-v~uJ.~
(Para pn,~eba de entrega de esfa citation use e! formulario Proof of Service of Summons, (POS-010)).

~S~'~~

NOTICE TO THE PERSON SERVED: You are served
7. Q as an individual defendant.
2. a as the person sued under the fictitious name of (specify):

3. Q on behalf of (specify):

under:

CCP 416.10 (corporation)
CCP 416.20 (defunct corporation)
CCP 416.40 (association or partnership)
other (specify):

CCP 416.60 {minor)
CCP 416.70 (conservatee)
CCP 416.9a (authorized perso A
~t g

~CL

4. (~ by personal delivery on (date):

O

Page 1 of 1

=orm Adopled for Mandatory Use
Judicial Council of Cal'rfomia

SUM-100 [Rev. July 1.2409, ~ ~SEHTIA! FORMS`

Mm~tinAmn~

13

Code of Civil Procedure §§ 412.20, 465

'`~"l~~~nfo.ca.gov

EXHIBIT
Page 1 of 23

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Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 15 of 81 Page ID #:32

'~ DONALD E. KARPEL, ESQ., SBN 61678
ZELNER & KARPEL
9777 Wilshire Boulevard; Suite 1000
Los Angeles, CA 90212
Telephone {310) 273-8444
Facsimile {310) 273-6937

Attorneys for Plaintiff,
JASON ROSENBERG

(~f tip: ~ 15 20 l 3

base ~S~i~~~d to
~. ~~~s~w~ ~°'r#h Cen#rai GIe
proceedings, G~e~daie, ~~ for ~

SUPERIOR COURT OF THE STATE OF C.ALIFORNYA

FOR THE CO'[JNTY OF LOS ANGELES

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06p71~

JASON ROSENBERG,

j [UNLIMITED CIVIL CASE]

Plaintiff,

COMPLAINT FOR DAMAGES

v.

WARNER BROS ENTERTAINMENT,
INC., a Delaware corporation, W~?~RNER
BROS. THEATRICAL ENTERPRISES, a
Delaware limited liability company; and
DOES 1 thxough 25,

Defendants.

l.. FAILURE TO ACCOMMODATE "

[CALIFORNIA FAIR
EMPLOYMENT AND HOUSING
ACT ("FEHA"))

2. RETALYATORY TER;MiNATION
[FEHA] AND FAILURE TO TAKE
CORRECTIVE ACTION;

3. WRONGFUL TERMINATI4I~I IN

VIOLATION OF PYJBLIC POLICY;
4. INTENTIONAL INFLICATION OF

EMOTIQNAL DISTRESS.

JCJRY T12IAL DEMANDED

Plaintiff JASON ROSENBERG {"ROSENBERG") alleges as foiiows:

THE PARTIES

1.

At all times mentioned in this complaint, plaintiff JASON ROSENBERG

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2~ ("ROSENBERG"} was and is an individual residing and working in the County of Los Angeles,

27 California.

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l

1

COMPLAINT FOR DAMAGES

~ 4

EXHIBIT "1"
Page 2 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 16 of 81 Page ID #:33

i~

2.

At all times mentioned in this complaint, defendant WA~ZNER BROS.

ENTERTAI]:~TMENT, INC. ("WAR3~TER BROS. ENTERTAI~~TMENT"), was and is a

corporation organized and existing under the laws of the State of Delaware, authorized to do

business in the State of California, with its principal place of business in Los Angeles County, at

4000 Warner Blvd., Burbank, California 91522.

3. ~

At all times mentioned in this complaint, defendant W~LRNER BROS. ,

THEATRICAL ENTERPRISES ("W~~RNER BROS. THEATRICAL"), was and is a limited

liability company organized and existing under the laws of the State of Delaware, authorized to

do business in the State of California, with its principal place of business in Los Angetes County,

at 4000 Warner Blvd., Burbank, California 91522, and is a subsidiary of defendant WARNER

:' •

4.

Defendants WARNER BROS. THEATRICAL and WARNER BROS.

ENTERTAINMENT shall hereinafter, collectively, be referred to as "WARNER BROS."

5.

ROSENBERG is informed and believes, and fihereon alleges that Defendants

DOES 1-25 were at ail times relevant hereto employees, officers, agents, owners, subsidiaries,

managers, shareholders, partners, members and/or related entities to die other defendants named

herein. ROSENBERG is ignorant of the txue names and capacities of defendants sued herein as

DOES 1-25, inclusive, and therefore sues these defendants by such fictitious names.

ROSENBERG will pray leave of this Court to amend this complaint to atle~e the true names and

capacities when ascertained. ROSENBERG is informed and believes and thereon alleges that

each of the fictitiously named defendants is responsible in some manner for the occurrences

herein alleged, and ghat ROSENBERG's damages as herein alleged were proximately caused by

their conduct.

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COMPLAINT FOR DAMAGES

15

EXHIBIT "1"
Page 3 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 17 of 81 Page ID #:34

6.

ROSENBERG is informed and believes, and thereon alleges, that each of the

defendants herein was, at a1l.times relevant to this action the managing agent, officer, agent

andlor employee, and or the owner, subsidiary, managers, shareholder, partners, member, joint

venturer, alter ego andlor otherwise related entity as to the other defendants named herein, and

was at all times relevant hereto acting partly within and partly without the course and scope of

that relationship. ROSENBERG is further informed and believes, and thereon alleges, that each

of the defendants herein gave consent to, ratified, and authorized the acts alleged herein to each

of the remaining defendants.

';

FACTUAL ALLEGATIONS

7.

In or about December 12, 2005, RQSENBERG took a job working for WARNER

BROS. in its "Data Center." ROSENBERG worked the "graveyard" shift. At alI times herein

mentioned, ROSENBERG performed his duties and obligations as a WARNER BROS.

employee.

8.

9.

ROSENBERG is a member of a legally protected class; specifically he is Jewish.

At all times herein mentioned, Defendant W~~RNER BROS. regularly employed

five or more persons, bringing defendant employer within the provisions of Gov. Code § I2900 et

seq. prohibiting employers or their agents from discriminating or retaliating against employees

on the basis of religion.

The Anti-Semitic Comments

subjected to anti-Semitic comments and insults.

11.

RC)SENBERG went to his superiors, including manager Hector Vasquez to

.complain about the anti-Semitic insults, but his superiors took no remedial action and the insults

continued. R~SENBERG was the only Jewish person in his department.

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COMPLAINT FOR DAMAGES

16

EXHIBIT ~ ~ I ~ ~
Page 4 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 18 of 81 Page ID #:35

12: ROSENBERG also submitted complaints of these anti-Semitic insults to his

employee Union, which advocated on his behalf.

The Fazlure to Accommodate

13.

After approximately S years of working the graveyard shift, ROSENBERG

developed several physical symptoms for which he sought medical help. Those symptoms

included high blood pressure, chest pains, headaches and difficulty sleeping. ROSENBERG's

doctor told him that working the graveyard shift was causing these adverse medical symptoms

and recommended that ROSENBERG seek a change in his work schedule. On information and

belief, ROSENBERG's medical symptoms constituted a physical disability under Government

Code Sec 12926(1)(1), v+~rhich limited his ability to participate in a major life activity, to wit,

work.

14.

On or about April 1, 2011, ROSENBERG's shift was changed, although not in

accordance with what he had requested. Specifically, ROSENBERG had asked to be moved

peYmanently to the day-shift (which also should have been allowed to him based on his

seniority). What ROSENBERG got, instead, was a "cross-training" rotation which was to be 4

months on day-shift, 4 months on swing-shift, and then 4 months on graveyard-shift.

Nonetheless, at least while ROSENBERG was on the day-shift, his health did begin to improve.

15.

In June of 2011, ROSENBERG brought in paperwork from his primary health

care provider. Dr. Selwn Bleifer, instructing WARNER BROS. that ROSENBERG should have

~ remained permanently on the day-shift, and that doing so was important for ROSENBERG's

physical and general well being.

16. On or about June 27, 2011 Wl~~IZNER BROS.'s Jeanette Avedissian, Manager of

II Benefits, responded with a letter asking questions of Dr. Bleifer concerning ROSENBERG's

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COMPLAINT FOR DAMAGES

17

EXHIBIT "I"
Page 5 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 19 of 81 Page ID #:36

medical condition.

17.

On or about Tiny 12, 2011, Dr Bieifer filled out a first set of forms, which were

turned back~in to Avedissian.

18.

On or about July 21,2011, ROSENBERG received a second letter from

Avedissian confumi:ng that she had received the requested information (first fozm}, but stating

that W~?RNER BROS. still needed some additional verifications.

19.

Therefore, on or about August 2,2011 Dr. Bleifer filled out a second set of forms,

which ROSENBERG in turn passed onto Avedissian. The latter then called to let

ROSENBERG know that she would update him once W~~NER BROS. made a determination

as to ally accommodation for ROSENBERG.

20. 4n or about September 26, 2011, without ever having heard back from WARNS

BROS. concex-ning the requested accommodation, ROSENBERG received a Shift Schedule

Change letter stating that the recently-implemented shift rotation system was being cancelled,

and that all of the workers in the Data Control Center (including ROSENBERG} were going to

return to their last shift schedule prior to the rotation. This meant that ROSENBERG was going

to be r~~oved back to the graveyard-shift (10pm to 7 am) beginning on October 23, 2011.

21. On or about October 23, 201 1, ROSENBERG was moved back to the graveyard

shift, without any explanation from WARNER BRAS. as to why he was denied the workplace

After a few months of the new shift-rotation schedule, RO SENBERG's superiors

not only failed to put ROSENBERG permanently on a day-shift schedule (per his and his

doctor's specific written requests), but they also rescinded the rotation-shift schedule change

completely, and returned R~SENBERG to the ~ravevard shift.

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COMPLAINT FAR DAMAGES

~ g

. ~

EXHIBIT "1"
Page 6 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 20 of 81 Page ID #:37

The "Investigation" and Retaliatory Ternunation

I!

23.

In January of 2012, ROSENBERG told the Employee Relations Department at

W~~RNER BROS. that he felt he was being singled out for bad treatment by his co-workers due

to the fact that he was .the only Jewish person in his department, and told them about the anti-

Semitic insults he had experienced. The Employee Relations Deparfiment investigated

ROSENBERG's claun.

24. On or about February 23, 2012, ROSENBERG was called into a meeting

regarding the results of the Employee Relations Department's investigation. During the meeting,

ROSENBERG was told that no action was going to be taken on his complaints. Instead,

RUSENBERG was informed by the head of Human Resources, Ron Bailey, that he was being

temunated from WARNER BROS. for the vague, disingenuous and wholly unfounded reason of

"disruption in the workplace." ROSENBERG was escorted off the studio lot, without ever

(even to this day) receiving any paperwork concerning his termination.

25. ROSENBERG had never been reprimanded. He worked well with everybody in

his department (even during those times when he kept silent on his feelings about the anti-

Semitic remaxks leveled at him, or made in his presence). In fact, ROSENBERG was promoted

in November of 2010. It was only when ROSENBERG pressed the issue of moving to the day-

shift (based on medical need) that he became perceived, suddenly, as a "problem employee"

(despite that ROSENBERG's seniority should have given him even more leverage to have his

medical need actually accommodated).

26.

To illusfirate, just under three months into ROSENBERG's new work schedule, a

co-worker of his~(who had been assigned to take on ROSENBERG's original graveyard shift)

made false and absurd accusations of derogatory anti-gay remarks against ROSENBERG

j

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COMPLAINT FOR DAMAGES

~g

EXHIBIT '~ I"
Page 7 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 21 of 81 Page ID #:38

supposedly made a year prior to the co-worker's complaint. Shockingly, ROSENBERG is give

a "Final Warning" -- a form of written discipline to be placed in his personnel file, despite the

suspicious and flagrant delay marking the co-worker's complaint, despite the fact that

ROSENBERG had been given no previous discussion, disciplinary actzon oz other write-ups .in

all his dears at WA,IZNER BROS. (let alone for making inappropriate remarks oz slurs), and

despzte the fact that there were no witnesses ox any other corroboration of the co-worker's claims

(R4SENBERG was given his "Final Warning" based solely on the co-worker's severely belated

allegations).

27. On ox about November 19, 2012; R~SENBERG filed a charge of discrimination

with the California Department of Fair Employment and Housing (the "DFEH"}.

~

2$.

Also on or about November I9, 2012 (the same day as the discrimination charge

was filed), ROSENBERG received a Notice of Case Closure and Right To Sue from the DFEH,

allowing a civil action to be brought under the Fair Employment and Housing Act pursuant to

Government Code Sec 12965{b}.

FIRST CAUSE OF ACTION

FAILURE TO ACCOMMODATE IN VIOLATION OF

THE CALIFOn:NIA FAIR EMPL~YIVXENT AND HOUSING ACT

(Government Code Section 12940, et seq.)

~a~ainst ALL defendants)

29. ROSENBERG incorporates herein by this reference Paragraphs 1-28 above.

30. ROSENBERG was at all times willing and able to perform his job duties at

WARNER BROS. with a reasonable accommodation of his physical disability, to wit, being-re-

assigned away from the graveyeard shift. WARNER BR4S. was reasonably able to

accommodate said disabilifiy, notwithstanding its false assertions to the contrary and the fact that,

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COMPLAIl~T FOR DAMAGES

20

EXHIBIT "1'~
Page 8 of 23

Case 2:13-cv-04793-GW-E Document 1 Filed 07/02/13 Page 22 of 81 Page ID #:39

instead of doing so, it failed to accommodate ROSENBERG's disability and ultimately

terminated his employment.

31.

At no time would the performance of the fiznctions of the employment position,

with a reasonable accommodation for ROSENBERG's mental disabilifiy have been a danger to

ROSENBERG or any other person's health or safety, nor would it have created. an undue

hardship to the operation of defendants' business.

32.

Defendants obviously were aware of ROSENBERG's disability during his stint on

the day-shift before deciding to capriciously rescind the accommodation.

33.

At all times mentioned herein, ROSENBERG was willing and able to perform the

duties and functions of lus job position, even when (and after) the accommodation of his

disability was rescinded.

34.

Furthermore, defendants faile