Here is the Discovery that Fishel Cohen’s counsel was given, including correspondence that spanned over years between Diane Polonsky and Philip Cohen. Diane Polonsky Responds Diane Polonsky Responds 2 Diane Polonsky Responds 3 Diane Polonsky 4 Diane Polonsky 5
Here is a letter sent on Diane Polonsky’s behalf from the Law Offices of Kesluk & Silverstein:
July 26, 2013
via Certified & First Class Mail Evidence Code§ 1152
Phillip Cohen
Mansfield Equities, Inc.
1999 Avenue of the Stars, Suite 1100
Los Angeles, CA 90067
Dana Cole
Cole & Loeterman
1925 Century Park East, Suite 2000
Los Angeles, CA 90067
Re: Diane Polonsky v. Phillip Rishel Cohen, Mansfield Equities, et al
Dear Sir/Madam:
Please be advised that this firm represents Diane Polonsky for any and all claims arising from her employment with Phillip Cohen and Mansfield Equities. (hereinafter referred to as “the Company”). Please direct any and all further communication regarding this matter directly to this office.
Based upon our initial investigation, we believe that Ms. Polonsky was a victim of sexual harassment and failure to prevent harassment, resulting in her wrongful constructive termination from the Company. Additionally, Ms. Polonsky is owed significant wages and penalties for the Company’s violations of the labor code.
I. Facts of Ms. Polonsky’s Claim
Ms. Polonsky began working for the Company from June of 2009 until she was forced to constructively terminate in October of2012. During her employment with the Company, she was not compensated for a single hour of work. There is no denying that Ms. Polonsky performed work for the Company, because she has Cohen’s written confirmation of her $12 an hour compensation offer, and numerous documents and emails evidencing the work she performed for the Company. There are also witnesses to her showing up on the Company’s property and performing work.
During her employment, Ms. Polonsky was subjected to severe and pervasive sexual harassment by Phillip Cohen. When she refused his advances, she was subjected to retaliatory actions like threatening to show up at her house when her abusive husband was home. Cohen sent numerous sexual pictures and text messages to Ms. Polonsky, in addition to forcing her to have sex with him. Cohen preyed on Ms. Polonsky because he knew Ms. Polonsky was struggling to get away from her violent husband and feared for her safety. Finally, Ms. Polonsky got the courage to quit working for the Company.
II. FEHA Discrimination
The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination and harassment motivated in any part by sex.1 Even if there is some legitimacy to the proffered reason for termination (work slowdown/reduction in force/performance, insubordination), a plaintiff can prevail by proving that discrimination was a motivating factor in the adverse action, even though other nondiscriminatory reasons may have been involved.2
Cases have held that even a single incident of harassment can be sufficiently severe as to constitute harassment. Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th
142, 149. Also see Birchstein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994 [leering may be sufficient], Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 607,610.
Furthermore, “[ujnder FEHA and California case law, employers are strictly liable for the harassing conduct of supervisors, even though the employer did not know, and did not have reason to know, of the conduct. State Department of Health Services v. Superior Court (2001) 94 Cal.App.4th 14,31-32 (emphasis added).
1 California Government Code§ 12940, Hope v. California Youth Authority (2005) 134
Cal.App.4th 577, 587.
2 42 USCA § 2000e-2(m), Desert Palace, Inc. v. Costa (2003) 539 U.S. 90,91: 123 S.Ct. 2148,
2149 ["Plaintiff need only 'demonstrate' that an employer used a forbidden consideration with respect to any employment practice."], see also Sheffield v. Dept. of Soc. Serv., (2003) 109 Cal. App. 4th 153, 160-161
KESLUK & SILVERSTEIN
July 26. 2013
Page 3 of5
III. The Company’s Failure To Pay Wages
Ms. Polonsky was strung along for years, based on the promise that the Company would pay her for her work in a time where she was desperately in need of funds. Ms. Polonsky never received a single check for the work she did. Not only is this a violation of the minimum wage laws, but also a violation of Labor Code section 1194.2 which provides “(a) In any action under . . . Section 1194 to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon …”
Labor Code sections 201, 202, and 203 provide that an employer must pay all compensation to an employee upon the culmination of employment. Pursuant to these sections, an employee is entitled to one day’s wages for each day he or she was not timely paid wages due on and after the end of her employment, up to a maximum of thirty (30) days’ wages. Ms. Polonsky will also be entitled to thirty days’ wages under the Labor Code.
Labor Code section 226(e) provides for a recovery of the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($1 00) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,000) (per employee). The Company never gave Ms. Polonsky a pay check or a pay stub.
Labor Code section 204 provides that all wages earned by any person are due and payable twice during each calendar month, on days designated in advance by the employer as the regular paydays. Because Defendant regularly failed to pay Plaintiffs the wages that were due on these days, Defendant violated Labor Code section 204. Labor Code section 210 provides, that in addition to the other penalties provided by the Code, every person who fails to pay the wages of each employee as provided in Sections 204, shall be subject to a civil penalty as follows: (a) For any initial violation, one hundred dollars ($100) for each failure to pay each employee, (b) For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld.
Labor Code section 558 provides a civil penalty of $50 for any pay period in which an employee is underpaid, and $100 per employee for every subsequent violation, plus an amount sufficient to recover the underpaid wages — i.e., attorney’s fees. This amount is to be assessed in addition to the unpaid wages.
California Labor Code § 2699 provides in relevant part that “an aggrieved employee” can bring “a civil action” on any provision of the Labor Code “that provides for a civil penalty.” To be subject to the Act, the employee’s cause of action must allege a violation of one of the provisions listed in section 2699.5 (§ 2699.3, subd. (a)) and seek recovery of a “civil penalty” assessable by the LWDA (§ 2699, subds.(a) & (f)). Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 378. California Labor Code §
2699.5 references multiple sections of the labor code including California Labor Code §1102.5. The Company will also be liable for penalties under 2699.
IV. Damages
A. Damages
Ms. Polonsky’s potential damages for the above-described causes of action are substantial. As for economic damages, she would be entitled to lost earnings from the date of her termination. She would also be entitled to all of the Company’s benefits that she was prevented from enjoying after her termination. In addition, we will also seek on Ms. Polonsky’s behalf emotional distress damages. In our experience, jurors are able to connect with employees such as Ms. Polonsky who have been forced to endure conduct such as this. Given what we consider to be a blatant disregard of its legal obligations, we will also seek punitive damages
B. Attorneys’ Fees
All of Mr. Polonsky’s claims include statutory attorneys’ fees. See Government Code § 12965(b) and Labor Code § 1194. Naturally, the availability of attorneys• fees here greatly increases the risk to the Company and virtually ensures a sizeable recovery for our client.
V. Conclusion
Our firm remains prepared to litigate this case though trial, but we realize the potential value of a confidential settlement prior to the filing of a public lawsuit. Should we be successful at trial, we anticipate that our attorneys’ fees petition alone would be several hundred thousand dollars. Additionally, the Company will also be responsible for paying
its own attorneys’ fees.#
Accordingly, we propose that the parties participate in mediation with a neutral that attorneys from both sides respect. Such a mediator would be able to listen to both sides of the story and then render objective feedback on the relative merits of the case.
3 Note, we are currently looking into whether other related entities to the Company should be included in this action.
July 26,2013
Page 5 of 5
If we do not hear from you or your attorneys within twenty one (21) days, we will assume that you are not interested in settling this matter and we will proceed to file the appropriate complaint on behalf of our client. Toward that end, enclosed herewith are Ms. Polonsky’s DFEH Complaint and Right-to-Sue notice, thus clearing the way for the filing of a civil action.
Irrespective of the foregoing, let this serve as a request pursuant to Labor Code§ 432, that the Company immediately provide Ms. Polonsky’s entire personnel file, including, but not limited to, all documents that she signed, and all of her pay records. Notably, Labor Code § 226 (c) provides in relevant part that: “An employer who receives a written or oral request to inspect or copy records pursuant to subdivision (b) pertaining to a current or former employee shall comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. A violation of this subdivision is an infraction…” (Emphasis added).
In addition, the Company must undertake all efforts to preserve from spoliation all documents or other records relating to my client’s employment. As you know, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.
We look forward to hearing from you about the possibility of mediating this matter. Please contact us if you have any questions or comments regarding the foregoing.
Very truly yours,
KESLUK & SILVERSTEIN, P.C.
Douglas N. Silverstein
cc: Lauren J. Morrison, Esq.
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