March 24, 2023

VIA CERTIFIED MAIL

Harbor Freight Tools Texas, L.P.
c/o Corporate Creations Network Inc.
5901 W. Century Blvd., #750
Los Angeles, CA 90045

CONFIDENTIAL SETTLEMENT COMMUNICATION PURSUANT TO

EVIDENCE CODE SECTIONS 1119 ET SEQ. AND 1152

Re: Santiago Duran v. Harbor Freight Tools Texas, L.P.

To Whom It May Concern:

Please be advised that this office has been retained by Santiago Duran (“Mr. Duran” or “Claimant”) in
connection with his employment claims against your business, Harbor Freight Tools Texas, L.P. (“Employer”). We
have determined that Employer violated California law concerning his employment. Due to these violations,
Employer owes Mr. Duran significant damages, civil penalties, and attorney’s fees and costs, which Mr. Duran will
seek if we have to file suit to enforce his rights.

Based on my preliminary investigation of Mr. Duran’s claims, I have recommended that he commence and
prosecute claims against Employer for (1) Disability Discrimination in Violation of the FEHA; (2) Failure to
Accommodate in Violation of the FEHA; (3) Retaliation in Violation of the FEHA; (4) Failure to Prevent
Harassment, Discrimination, or Retaliation in Violation of the FEHA; (5) Intentional Infliction of Emotional
Distress; and (6) Failure to Engage in the Interactive Process in Violation of the FEHA (7) Wrongful Termination of
Employment in Violation of Public Policy. Mr. Duran will seek all statutory, civil, and court-authorized damages,
including attorney’s fees and costs, in proving his claims against Employer.

OUR HISTORY AS LITIGATORS

The public, media, judges, and jurors have increased their sensitivities toward rectifying the
devastating impacts that employer’s intentional violation of the law on their victims. Recently, our office settled a
race discrimination case for $3,500,000; a sexual harassment case for $1,600,000; a race discrimination case for
$400,000; a disability discrimination case for $400,000; and a sexual orientation discrimination case for
$350,000. The facts of these claims are similar to those that led to the aforementioned settlements. As you are also
aware, defendants face significant risks of cost and attorneys’ fees as a result of litigation, not only on your end, but
to compensate Claimant. The aforementioned settlements do not include attorneys’ fees and costs which Claimant
would be awarded should this matter go to trial.

I. BACKGROUND OF MR. DURAN’S CLAIMS

In or around 2014, Mr. Duran was hired by Employer. His primary duties were to pick up products such as
tools, cardboard, wood pallets out of the trucks and also remove plastics from the products and place them in a
container for recycling.

In 2018, while Mr. Duran was working, a co-worker forcefully opened a window door hitting Mr. Duran
directly in his right eye. As a result, Mr. Duran severely injured his right eye.

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com
 A few days later, Mr. Duran told the manager about the incident. The manager told him that he needs to see
his primary care physician (“PCP”). The PCP treated Mr. Duran and recommended multiple specialists. He was
informed by the PCP that the right eye ruptured a blood vessel which caused Mr. Duran to have cataracts in his right
eye and would need surgery to have any chance of recovering his vision. Accordingly, Mr. Duran was 80% blind in
his right eye. Unfortunately, the recommended surgery was denied by insurance.

Mr. Duran continued to attend his appointments with the PCP. He provided copies of the reports to his
manager each time he attended the appointments. When Mr. Duran returned to work with his condition, the manager
modified his task by asking him to work only in certain areas in the facility. On rare occasions, Mr. Duran bumped
into items but never damages any or injured himself.

On January 14, 2022, Mr. Duran was cleaning the floor from the wood pallets and cardboard. When he
stood up, his forehead hit a piece of wood pallet. Mr. Duran did not report the incident because there was no reason
to, he didn’t damage the pallet not did he injure himself.

The following day, Mr. Duran he was told he terminated due to his vision issues.

II. LEGAL CLAIMS

1. Disability Discrimination in Violation of the FEHA

An employer’s discrimination against an employee based on a disability is unlawful. (Gov. Code §

12940(a).) “A prima facie case for discrimination on the grounds of physical disability under the FEHA requires the
plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and (3) he was subjected
to adverse employment action because of his disability.” (Deschene v. Pinole Point Steel Co. (1996) 76 Cal. App.4th
33, 45.)

It is unlawful for an employer to “discharge…or discriminate against any individual” because of his or her
medical condition or disability. (Cal. Gov. Code § 12945.2(l).) A prima facie case of disability retaliation requires
showing: (1) the employee engaged in a protected activity, (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link between the employee’s protected activity and the employer’s adverse
action exists. (Flait v. North American Watch Corp. (1992) 3 Cal. App.4th 467, 476.)

During the last 4 years of employment with Employer, Mr. Duran was disabled as he had lost partial vision
in his right eye.

Mr. Duran was fully qualified to do his job with reasonable accommodation for his disability. But despite
this, Employer discriminated against Mr. Duran’s disability and terminated him without just cause.

2. Failure to Accommodate in Violation of the FEHA

Failure or refusal “to make [a] reasonable accommodation” of a disabled employee is unlawful. (Cal. Gov.
Code § 12940(m).) An employer’s accommodation of an employee’s disability for one year followed by a single
incident of the Employer’s failure or refusal to accommodate that employee is considered “substantial” and “not
trivial.” (A.M. v. Albertsons, LLC (2009) 178 Cal. App.4th 455, 465.)

In Castro v. Classy, Inc., 2020 WL 996948 (S.D. Cal. 2020), the court noted that the FEHA defines a
physical disability as including a person associated with a person who has or is perceived to have any of those
characteristics. Id. at *4 citing Cal. Gov’t. Code § 12926(o). The court concluded that the definition of disability,
which includes an associated person, applies not only to discrimination but also to reasonable accommodation.

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com
 Employer was well aware of Mr. Duran’s disability and his time off from work for his medical
appointments with his PCP. But despite this, Employer terminated Mr. Duran instead of working with him on an
accommodation.

Mr. Duran will establish this claim by proving the following:

1. That Employer was a covered entity under the FEHA;

2. That Mr. Duran was an employee of Employer;
3. That Mr. Duran was disabled;
4. That Employer knew of Mr. Duran’s disability;
5. That Mr. Duran was able to perform the essential duties with reasonable accommodation for his
disability;
6. That Employer failed to provide reasonable accommodations for Mr. Duran’s disability; and
7. That Employer’s failure to provide reasonable accommodations was a substantial factor in causing
Mr. Duran’s harm.

See CACI 2541.

3. Retaliation in Violation of the FEHA

Pursuant to California Govt. Code Section 12940 (m)(2), it is unlawful to “retaliate or otherwise
discriminate against a person because the person has opposed any practices forbidden under [Government Code
sections 12900 through 12966] or because the person has filed a complaint, testified, or assisted in any proceeding
under [the FEHA].” It is also unlawful to retaliate or otherwise discriminate against a person for requesting an
accommodation for religious practice or disability, regardless of whether the request was granted. (Gov. Code, §
12940(l)(4) [religious practice], (m)(2) [disability].)

During the period when Mr. Duran worked for Employer, he sustained an injury in his right eye. Mr. Duran
also missed some time due to medical appointments.

Instead of accommodating the disability of Mr. Duran, Employer terminated him without just cause.

Mr. Duran will establish a claim for retaliation by proving the following:

1. That Mr. Duran engaged in the protected activity of being a disabled employee in the workplace;
2. That Employer discharged Mr. Duran;
3. That Mr. Duran’s protected activities were substantial motivating reasons for Employer’s decision
to discharge Mr. Duran;
4. That Mr. Duran was harmed; and
5. That Employer’s decision to subject Mr. Duran to disability discrimination at work was a
substantial factor in causing Mr. Duran’s harm.

See CACI 2505.

4. Failure to Investigate and Prevent Harassment, Discrimination, or Retaliation in Violation of the

FEHA

Pursuant to California Govt. Code Section 12940 (k), it is an unlawful employment practice: For an
employer, labor organization, employment agency, apprenticeship training program, or any training program leading
to employment to fail to take all reasonable steps necessary to prevent discrimination and harassment from
occurring.

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com
 Despite his superiors’ discriminatory conduct against Mr. Duran in the workplace by failing to
accommodate his disability, and terminating his employment without just cause, Employer did not take reasonable
and appropriate steps to prevent them from affecting Mr. Duran and his work.

In this light, Mr. Duran will prevail on this claim by showing the following:

1. That Employer was a covered entity under the FEHA;

2. That Mr. Duran was an employee of Employer;
3. That Mr. Duran was subjected to harassment, discrimination, or retaliation in the course of his
employment with Employer;
4. That Employer failed to take all reasonable steps to prevent the harassment, discrimination, or
retaliation Mr. Duran was subject to in the course of his employment with Employer;
5. That Mr. Duran was harmed; and
6. That Employer’s failure to take all reasonable steps to prevent the harassment, discrimination, or
retaliation was a substantial factor in causing Mr. Duran’s harm.

See CACI No. 2527.

5. Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and
outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is
‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And
the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’
” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [95 Cal.Rptr.3d 636, 209 P.3d 963])

Mr. Duran claims that Employer’s conduct caused him severe emotional distress due to their failure to
accommodate his disability, and his wrongful termination reasonably.

To establish this claim, Mr. Duran will prove the following:

1. That Employer’s conduct was outrageous;

2. That Employer intended to cause Mr. Duran emotional distress;
3. That Mr. Duran suffered severe emotional distress; and
4. That Employer’s conduct was a substantial factor in causing Mr. Duran severe emotional distress.

See CACI 1600.

6. Failure To Engage In The Interactive Process

An employer’s failure or refusal to “engage in a timely, good faith, interactive process with the employee…
to determine reasonable accommodations” is unlawful. Cal. Gov. Code § 12940(n). The interactive process requires
“a mutual exchange of information and a good faith exploration of possible accommodations between the employer
and the employee.” A.M., 178 Cal. App. 4th at 466. “Employers, who fail to engage in the interactive process in good
faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been
possible.” Humprhey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137-1138 (9th Cir. 2001).

Here, the Employer failed to engage Mr. Duran in a good faith interactive process prior to his termination.
Employer was well aware of Mr. Duran’s disability and his time off from work for his medical appointments with

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com
his PCP. But despite this, the Employer failed in good faith to explore possible accommodations of Mr. Duran’s
disability. As such, Employer failed to engage Mr. Duran in a good faith interactive process.

7. Wrongful Termination in Violation of Public Policy

“[W]hile an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there
can be no right to terminate for an unlawful reason or a purpose that contravenes fundamental public policy. Any
other conclusion would sanction lawlessness, which courts by their very nature are bound to oppose.” (Casella v.
SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138-1139 [69 Cal.Rptr.3d 445], internal citations
omitted.)

Employer terminated Mr. Duran’s employment and violated various fundamental public policies
underlying state and federal law. Specifically, his employment was terminated because of his status as a disabled
employee. These actions violated FEHA and the California Labor Code.

To prevail on this claim, Mr. Duran will show the following:

1. That Mr. Duran was employed by the Employer;

2. That Employer discharged Mr. Duran;
3. That Mr. Duran’s disability was a substantial motivating reason for Mr. Duran’s discharge;
4. That Mr. Duran was harmed; and
5. That the discharge was a substantial factor in causing Mr. Duran’s harm.

See CACI 2430.

Mr. Duran was wrongfully terminated based on his status as a disabled employee. For this, Mr. Duran will
seek recovery of his damages for Employer’s unlawful conduct in terminating him in violation of public policy.

III. MR. DURAN’S DEMANDS

By way of this letter, Claimant demands that Employer provide copies of any and all documents Claimant
signed per California Labor Code section 432 and copies of all payroll documents pursuant to California Labor Code
section 226 within 21 days of this demand. Please also provide a copy of Claimant’s complete personnel file
according to California Labor Code section 1198.5 within 30 days of this demand. Failure to promptly provide the
requested documents will subject Employer to further civil penalties, attorney fees, and costs.

By way of this letter, Claimant also demands the following:

(1) That Employer has no further contact with Claimant concerning matters outlined in this letter.
Claimant is a represented party, and all communications concerning this matter must be directed to
this office;
(2) That Employer take notice that all authorizations previously provided by Claimant are hereby
revoked (i.e., permission to check credit, perform background checks, etc.);
(3) That Employer provides a copy of all applicable insurance cover (errors/omissions coverage for
the claims asserted); and
(4) That Employer preserves all evidence related to or may be associated with Claimant’s claims.
This includes written or electronic correspondence, which your company’s record retention policy
may routinely destroy, as the Court stated in Penn v. Prestige Stations Inc. (2000) 83 Cal.App.4th
336, 343, “the intentional destruction of evidence needed in litigation is subject to severe
sanctions….”

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com
 IV. MR. DURAN IS AMENABLE TO PRELITIGATION SETTLEMENT DISCUSSIONS AND/OR
MEDIATION

Claimant has authorized my office to engage in a prelitigation settlement. Based on the strength of the case
and my experience handling these types of claims, this is a reasonable offer that avoids the risk of a significant
judgment against your company.

FEHA claims generally mandate the award of attorney’s fees in favor of employees who succeed in
proving any claim brought under those statutes. In these cases, where employees typically are represented based on
contingency fee agreements, the attorney’s fee award is calculated based on a “lodestar” analysis. The court
calculates the lodestar by multiplying the hours spent times the hourly rate of the person performing the work and
then multiplies the lodestar by a reasonable multiplier. As such, all fees incurred by Claimant’s attorneys on
Claimant’s case will eventually be paid by you, and consequently, the longer this case goes, the value of his case
will increase significantly.

V. CONCLUSION

If you have an attorney or insurance carrier, I ask you immediately tender this letter to them. Based on the
facts presented and the applicable law, it should be readily apparent that Employer is exposed to significant financial
liability. We are confident that a reasonable jury will find that Claimant is entitled to damages for all harm Claimant
was forced to endure as your employee.

Claimant has strong claims, and we intend to pursue them vigorously. Based on the credible allegations
presented, Employer has violated California employment law protecting employees from harassment and
discrimination in the workplace. My office implores you to immediately change Employer’s business practices to
comply with California law.

All communications regarding this matter should be directed to my office. If you want to discuss this
matter, you can reach me by phone at (213) 787-7411 or email at jake@finkelfirm.com.

Very Truly Yours,

THE FINKEL FIRM

Jake D. Finkel, Esq.

Jake D. Finkel, Esq. 3470 Wilshire Boulevard, Suite 830 Los (213) 787-7411
jake@finkelfirm.com Angeles, California, 90010 www.finkelfirm.com