Opinion
CASE NO. C 03-04239 SI
January 16, 2004
WAUKEEN Q. McCOY, LAW OFFICES OF WAUKEEN Q. McCOY, San Francisco, CA, for Plaintiff
KATHY HOSKINS, M. KIRBY C. WILCOX, KRISTEN L. McMICHAEL, KERRIN, HARPER, PAUL, HASTINGS, JANOFSKY WALKER LLP, San Francisco, CA, for Defendant
STIPULATION AND [PROPOSED] ORDER TO FILE FIRST AMENDED COMPLAINT AND REMAND ACTION TO STATE COURT
STIPULATION
Plaintiff Kathy Hoskins and Defendant United Parcel Service, Inc. ("UPS"), acting through their respect
1. On June 27, 2003, plaintiff filed a complaint in the Superior Court of California for the City and County of San Francisco alleging ten causes of action, including invasion of privacy (Sixth Cause of Action) and intentional infliction of emotional distress (Eighth Cause of Action);
2. Plaintiff's claims for intentional infliction of emotional distress and invasion of privacy alleged that when UPS surveiled plaintiff regarding her work hours, it intentionally inflicted emotional distress on plaintiff and invaded her privacy. See Compl., ¶¶ 12, 55, 37, 60.
3. On September 17, 2003, defendant removed this action pursuant to 28 U.S.C, Sections 1331, 1367 and 1441(b), asserting that plaintiff's invasion, of privacy and intentional infliction of emotional distress claims were completely preempted by Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185301, because the surveillance issue Included in both claims could not be resolved without interpretation of, among other provisions, the limitations regarding the right to discipline employees for exceeding personal time, as regulated by the collective bargaining agreement between ups and the International Brotherhood of Teamsters, of which plaintiff was a member. See Defendant's Notice of Removal, ¶¶ 7(b)-(i).
4. Plaintiff requests that this Court allow her leave to file the First Amended Complaint, attached as Exhibit A. Plaintiffs First Amended Complaint voluntarily dismisses with prejudice her claim for invasion of privacy and deletes all references to UPS's surveillance of plaintiff, including her allegation that the surveillance constituted intentional infliction of emotional distress. Defendant stipulates to plaintiff's filing of the attached First Amended Complaint
5. In light of plaintiff's dismissal of the invasion of privacy claim and re-pleading of the intentional infliction of emotional distress claim deleting her surveillance allegations, the complaint has been modified to eliminate the federal jurisdiction upon which defendant removed.
6. Accordingly, the parties request that this matter be remanded to the Superior Court of California for the City and County of San Francisco.
7. The parties further: request that defendant's due date to file a response to plaintiff's First Amended Complaint be 30 days from the date the state court regains jurisdiction of this matter after remand.
(PROPOSED) ORDER
On the stipulation of the parties, and good cause appearing therefor,It is ORDERED:
1. Plaintiff's First Amended Complaint, attached as Exhibit A is deemed filed.
2. This case is hereby remanded to the Superior Court of California for the City and County of San Francisco.
3. Defendant's due date to file a response to Plaintiff's First Amended Complaint is 30 days from the date the state court regains jurisdiction of this matter after remand.
EXHIBIT "A"
WAUKEEN Q. McCOY, ESQ. (SBN: 168228) LAW OFFICES OF WAUKEEN Q. McCOY 703 Market Street, Suite 1407 San Francisco, California 94103 Telephone (415) 675-7705 Facsimile (415) 675-2530Attorney for Plaintiff KATHY HOSKINS
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
KATHY HOSKINS, an individual; ) Case No. C 03 4239 SI ) Plaintiff, ) UNLIMITED JURISDICTION ) vs. ) FIRST AMENDED COMPLAINT FOR: ) ) 1. RACIAL DISCRIMINATION ) ) 2. HARASSMENT UNITED PARCEL SERVICE, a Delaware ) corporation, KEN JAUREGUI, an individual, ) 3. RETALIATION and DOES 1-50 ) ) 4. DISCRIMINATION BASED UPON Defendants. ) PHYSICAL DISABILITY ) ) 5. DEFAMATION ) ) 6. WRONGFUL TERMINATION IN ) VIOLATION OF PUBLIC POLICY ) ) 7. INTENTIONAL INFLICTION OF ) EMOTIONAL DISTRESS __________________________________________) ) 8. FAILURE TO INVESTIGATE ) ) 9. FAILURE TO MAINTAIN ENVIRONMENT FREE OF DISCRIMINATION ET AL
JURY TRIAL DEMANDED
Plaintiff alleges as follows:
JURISDICTIONAL STATEMENT
1. This is an action for damages for Racial Discrimination, Harassment, Retaliation, and Discrimination Based Upon Physical Disability, Wrongful Termination in Violation of Public Policy, Defamation, Intentional Infliction of Emotional Distress, Failure to Investigate and Failure to Maintain Environment Free of Discrimination, This action arises out of events involving Plaintiff KATHY HOSKINS (hereafter "Plaintiff" or "HOSKINS"). Defendant United Parcel Service (hereafter "defendant" or "UPS"). HOSKINS was employed and terminated by a UPS Business Center in San Francisco. Therefore, jurisdiction in San Francisco County is appropriate.
THE PARTIES
2. Plaintiff KATHY HOSKINS is an African American female individual employed by defendant UPS as a Package Car Driver from September 1988 through February 2003. HOSKINS suffered a pattern and practice of racial discrimination, harassment, retaliation, and other wrongful acts committed by defendants.
3. Plaintiff is informed and believes and thereon alleges that defendant UPS is a Delaware corporation maintaining business offices in San Francisco, which does business as a package delivery company.
4. Plaintiff is informed and believes and thereon alleges that defendant KEN JAUREGUI ("JAUREGUI") is an individual employed by defendant UPS as a Center Business Manager.
5. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES 1-50, inclusive, and HOSKINS therefore sues such defendants by such fictitious names. HOSKINS will amend this complaint to allege their true names and capacities when ascertained Plaintiff is informed and believes and thereon alleges that each of these fictitiously named defendants is responsible in some manner for the occurrences, acts and omissions alleged herein and that HOSKINS' injuries as alleged herein were proximately caused by such aforementioned defendants.
6. Plaintiff informed and believes and thereon alleges that at all times mentioned herein, each individual defendant was and is the agent, employee and servant of UPS and committed the occurrences, acts and omissions complained of herein while acting within the scope of such agency, employment and servitude. Each defendant is responsible for the occurences, acts and omissions of each other defendant complained of herein.
GENERAL ALLEGATIONS
7. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 6 above.
8. Plaintiff is informed and believes and thereon alleges that HOSKINS began her employment with defendant UPS in September of 1988 when she was hired as a Package Car Driver. HOSKINS was one of only two African American female drivers out of two hundred total drivers at the South San Francisco Center during her tenure with UPS. HOSKINS worked for UPS until she was discharged on February 13, 2003.
9. Plaintiff is informed and believes and thereon alleges that throughout the years of 1999-2003, HOSKINS was continually harassed about her appearance by her Caucasian supervisors. Unlike her Caucasian co-workers, HOSKINS was reprimanded and humiliated in front of other employees for minor infractions such as wearing short socks and wearing her hat backwards.
10. Plaintiff is informed and believes and thereon alleges that HOSKINS provided UPS with a note from her physician, which advised defendants that she should be accommodated with a truck, which was equipped with power steering and a high lumbar seat in order to protect her back. HOSKINS injured her back on or about July 2002 and was out of work for four months. She returned to work in November of 2002. After returning to work, defendant intensified their harassment efforts in an attempt to coerce HOSKINS to resign.
11. Plaintiff is informed and believes and thereon alleges that as a result of her injury, HOSKINS became accustomed to a particular vehicle which allowed her to work pain free, Defendants took no steps to accommodate HOSKINS' July 2002 back injury when it failed to make her prior vehicle available. The non-African American female employees were allowed to take off work if their particular vehicle was not available. In addition to this unfair treatment, HOSKINS was given a vehicle, which aggravated her beck injury.
12. Plaintiff is informed and believes and thereon alleges that defendants accused HOSKINS of making unauthorized long distance calls using company phone lines, a claim which has no validity or factual basis. Caucasian employees used the same phone line and were never accused of making unauthorized calls.
13. Plaintiff is informed and believes and thereon alleges that defendants forced HOSKINS to drive routes where she feared for her life and well-being. HOSKINS complained on several occasions about receiving harassing correspondence in her letterbox. However. defendants did nothing to protect her.
14. Plaintiff is informed and believes and thereon alleges that due to the severity of her injury, HOSKINS used her lunch break to rest and fill her prescriptions. Without any infections or warnings for misconduct, HOSKINS was discharged for "theft of time". Based on bogus evidence collected from, including but not limited to a written report, defendants conducted a hostile meeting in which they accused HOSKINS of taking excessive lunch breaks. Although defendants acknowledged this fact, it did not keep the 4 HOSKJNS. She was instructed to keep quiet and told that she would have a chance to argue her case later. After the hostile meeting, HOSKINS was terminated because she could not give a reason for the extra time. Other Caucasian drivers had gaps in their time records and have not been disciplined or terminated. Defendants also failed to acknowledge HOSKINS medical condition or her physician's instructions regarding her back injury. Defendants did not accommodate HOSKINS' back injury.
15. Plaintiff is informed and believes and thereon alleges that after terminating HOSKINS, defendants had several meetings with HOSKINS' co-workers and made several defamatory statements including the fact that HOSKINS was a thief. Defendants falsely misled HOSKINS' coworkers into believing she was terminated for stealing packages.
FIRST CAUSE OF ACTION AGAINST DEPENDANT UPS AND DOES 1-50 RACE DISCRIMINATION Cal. Govt. Code § 12940
16. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through above.
17. Defendants, through its agents and employees engaged in a pattern and practice of unlawful racial discrimination in violation of the Fair Employment and Housing Act (hereinafter referred to as "FEHA") in connection with its treatment of HOSKINS and the terms and conditions of her employment
18. At all relevant times, defendants had actual and constructive knowledge of the discriminatory conduct described and alleged herein, and condoned, ratified and participated in the discrimination. As a result of the hostile and offensive work environment perpetrated and maintained by defendants, and their failure to protect HOSKINS from further discrimination, Plaintiff suffered severe emotional distress.
19. Plaintiff is informed and believes and thereon alleges that in addition to tie practices enumerated above, defendants, and each of them, have engaged in other discriminatory practices against HOSKINS, which are not yet fully known. At such time as said discriminatory practices become known to HOSKINS, she will seek leave of court to amend this complaint in those regards.
20. As a direct and proximate result of the willful, knowing, and intentional discrimination against HOSKINS, and the failure to act by defendants, HOSKINS has suffered mental distress, anguish, and indignation. Plaintiff is thereby entitled to general and compensatory damages in an amount to be proven at trial.
21. Defendants' acts alleged herein are malicious, oppressive, despicable, and in conscious disregard of HOSKINS' rights. As such, punitive damages are warranted against defendants in order to punish and make an example of their actions.
SECOND CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 HARASSMENT Cal. Govt. Code § 12940
22. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 21 above.
23. Plaintiff is informed and believes and thereon alleges that defendants by and through its agents and employees JAUREGUI and DOES 1.50 engaged in harassment in violation of public policy against HOSKINS due to her race and opposing unlawful FEHA practices under Cal. Government Code § 12940.
24. Defendants harassed HOSKINS by habitual baseless reprimands, failure to respond to her concerns regarding unsafe work conditions and wrongfully terminating her.
25. Plaintiff is informed and believes and thereon alleges that in addition to the enumerated practices above, defendants, and each of them, have engaged in other unlawful practices against HOSKINS which are not yet fully known. At such time as said discriminatory practices become known to HOSKINS, she will seek leave to amend this complaint in those regards.
26. As a direct and proximate result of defendants' willful, knowing, and intentional acts, and defendant's failure to act, HOSKINS has suffered and will continue to suffer mental distress, anguish, and indignation. Plaintiff is thereby entitled to general and compensatory damages in an amount to be proven at trial.
27. Defendants, acts alleged herein are malicious, oppressive, despicable, and. in conscious disregard of HOSKINS' rights. As such, punitive damages are warranted against defendant in order to punish and make an example of it.
THIRD CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 RETALIATION Cal. Govt. Code § 12940
28. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through above.
29. Plaintiff is informed and believes and thereon alleges that defendant by and through its agent and employees JAUREGUI and DOES 1-50 engaged in retaliatory violation of public policy against HOSKINS for opposing unlawful practices under FEHA.
30. Defendant through its agent and employee JAUREGUI retaliated against HOSKINS in violation of California Government Code § 12940 by creating unbearable working conditions and failing to respond to her concerns regarding unsafe work conditions and terminating her.
31. Defendant terminated HOSKINS in retaliation for her opposition to unlawful practices under FEHA.
32. Plaintiff is informed and believes and thereon alleges that in addition to the enumerated practices above, defendants, and each of them, have engaged in other unlawful practices against HOSKINS which are not yet fully known. At such time as said discriminatory practices become known to HOSKINS, she will seek leave to amend this complaint in those regards.
33. As a direct and proximate result of defendants willful, knowing, and intentional acts, and defendants' failure to act, HOSKINS has suffered and will continue to suffer mental distress, anguish, and indignation. HOSKINS is thereby entitled to general and compensatory damages in an amount to be proven at trial.
34. Defendants' acts alleged herein are malicious, oppressive, despicable, and in conscious disregard of HOSKINS' rights. As such, punitive damages are warranted against defendants in order to punish and make an example of them.
FOURTH CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 DISCRIMINATION BASED UPON PHYSICAL DISABILITY Cal.Govt. Code § 12940
35. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 34 above.36. Plaintiff is informed and believes and thereon alleges that defendant by and through its agent and employee JAUREGI engaged in discriminatory conduct in violation of public policy against HOSKINS for opposing unlawful practices under FEHA.
37. Defendant through its agent and employee JAUREGI discriminated against HOSKINS in violation of California Government Code § 12940 by creating unbearable working conditions and failing to respond to her concerns regarding unsafe work conditions and terminating her due to her physical disability.
38. Defendant discriminated against and terminated HOSKINS due to her physical disability.
39. Plaintiff is informed and believes and thereon alleges that in addition to the enumerated practices above, defendants, and each of them, have engaged in other unlawful practices against HOSKINS which are not yet fully known. At such time as said discriminatory practices become known to HOSKINS, she will seek leave to amend this complaint in those regards.
40. As a direct and proximate result of defendants willful, knowing, and intentional acts, and defendants' failure to act, HOSKINS has suffered and will continue to suffer mental distress, anguish, and indignation. HOSKINS is thereby entitled to general and compensatory damages in an amount to be proven at trial.
41. Defendants' acts alleged herein are malicious, oppressive, despicable, and in conscious disregard of HOSKINS' rights. As such, punitive damages are warranted against defendants in order to punish and make an example of it.
FIFTH CAUSE OF ACTION — DEFAMATION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50
42. Plaintiffs incorporate by reference the factual allegations of paragraphs 1 through above.
43. Plaintiff is informed and believes and thereon alleges that defendants, and each of them, did publicize, or cause to be publicized, to third persons false allegations concerning HOSKINS. These false allegations include but are not limited to allegations that she was a thief.
44. Plaintiff is informed and believes and thereon alleges that the accusations by defendants were made of and concerning HOSKINS and were so understood by all persons Involved in the publication.
45. Plaintiff is informed and believes and thereon alleges that these accusations were defamatory per se because they accused HOSKINS of committing civil and criminal wrongdoing. The accusations stated above, by natural consequence, cause actual damage to HOSKINS both personally and professionally.
46. Plaintiff is informed and believes and thereon alleges that these accusations were false because HOSKINS did not commit a civil or criminal wrong in the form of theft.
47. Plaintiff is informed and believes and thereon alleges that furthermore, defendants made these accusations knowing that they were false.
48. Plaintiff is informed and believes and thereon alleges that as a proximat: result of the above-described accusations, HOSKINS has suffered loss of her reputation, shame, mortification, and hurt feelings, all to her general damage in an amount according to proof.
49. Plaintiff is informed and believes and thereon alleges that the above-described accusations were publicized by defendants because defendants' desire to harm HOSKINS by making false accusations against her due to defendants' feelings of hatred and ill will to ward HOSKINS, and with conscious disregard by defendants for the rights of HOSKINS, thereby justifying an award of punitive damages against defendants in an amount appropriate to punish defendants for their wrongful conduct and to deter others from engaging in such conduct.
SIXTH CAUSE OF ACTION — WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY AGAINST DEFENDANT UPS AND DOES 1-50
50. Plaintiff incorporates by reference the factual allegation through 49 herein.
51. Plaintiff's wrongful temination from her employment with UPS was baaed upon defendant's violation of public policy, including but not limited to the following: the fundamental public policies against discrimination, harassment and retaliation.
52. As a proximate result of Defendants' wrongful acts, HOSKINS has suffered and continues to suffer substantial losses incurred in seeking substitute employment and in earnings, bonuses, deferred compensation, stock options, and other employment benefits; and has suffered and continues to suffer emotional distress in an amount according to proof at the time of trial.
53. Defendants, and each of them, did the acts alleged herein maliciously, fraudulently and oppressively, with the wrongful intent to injure HOSKINS, from an improper and evil motive amounting to malice, and in conscious disregard of HOSKINS' rights. The acts complained of were known to, authorized and ratified by Defendants. HOSKINS is therefore entitled to recover punitive damages from defendants, and each of them, in an amount according to proof at the time of trial.
SEVENTH CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
54. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 53 above.
55. Plaintiff is informed and believes and thereon alleges that defendant UPS by and through its agents, employees and defendants JAUREGUI and DOES 1-50 decided without regard to the health and safety of HOSKINS, and each of them treated HOSKINS in the deplorable manner alleged herein. That treatment and its surrounding consequences constituted extreme and outrageous conduct by defendants.
56. Plaintiff is informed and believes and thereon alleges that defendants, standing in a position of authority over HOSKINS, acted with deliberation without regard to the health, safety, or well-being of HOSKINS and caused her severe emotional and physical distress.
57. Plaintiff is informed and believes and thereon alleges that as a proximate result of defendants' extreme and outrageous acts, HOSKINS suffered severe emotional distress in the form of humiliation, embarrassment, mental-anguish, anxiety, stress and indignation. Defendants' acts were done with the willful knowledge that HOSKINS could suffer severe harm as a result.
58. Plaintiff is informed and believes and thereon alleges that defendants' acts alleged herein are malicious, oppressive, despicable, and in conscious disregard of HOSKINS' rights. As such, punitive damages are warranted against defendants in order to punish them and make an example of their actions.
EIGHTH CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 FAILURE TO INVESTIGATE Cal. Govt. Code § 12940
59. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 58 above.
60. Plaintiff is informed and believes and thereon alleges that defendant UPS by and through its agents, employees JAUREGUI and DOES 1 — 50 was aware of the discrimination, harassment and retaliation experienced by HOSKINS at its workplace.
61. Plaintiff is informed and believes and thereon alleges that defendants by end through its agents and employees completely failed to investigate the discrimination, retaliation and harassment experienced by HOSKINS. Instead of ensuring a safe work environment for its employee, defendants allowed HOSKINS to continue to suffer discrimination, retaliation and harassment until she was wrongfully terminated.
62. Plaintiff is informed and believes and thereon alleges that as a direct and proximate result of defendants' willful, knowing, and intentional acts, and defendants' failure to investigate, HOSKINS has suffered and will continue to suffer mental distress, anguish, indignation, a loss of earnings and other employment benefits and job opportunities. HOSKINS is thereby entitled to general and compensatory damages in an amount to be proven at trial.
63. Plaintiff is informed and believes and thereon alleges that defendants' acts alleged herein are malicious, oppressive, despicable, and in conscious disregard of HOSKINS rights. As such, punitive damages are warranted against defendants in order to punish and make an example of their actions.
NINTH CAUSE OF ACTION AGAINST DEFENDANTS UPS, JAUREGUI AND DOES 1-50 UPS, JUREG DOES 1-50 FAILURE TO MAINTAIN ENVIRONMENT FREE DISCRIMINATION RETALIATION AND HARASSMENT Cal. Govt. Code § 1294064. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through 63 above.
65. Plaintiff is informed and believes and thereon alleges that defendants failed to take all reasonable steps to prevent discrimination, retaliation and harassment against HOSKINS from occurring, and to take immediate and appropriate corrective action to remedy the discrimination, retaliation and harassment, in violation of Cal. Govt. Code § 12940, by engaging in the course of conduct set forth above, among other things.
66. Plaintiff is informed and believes and thereon alleges that specifically, defendants failed and have foiled to the present time to take any disciplinary action against JAUREGUI and DOES 1-50, such as issuing a formal warning, providing counseling, or imposing probation, suspension, or termination for their unlawful conduct towards HOSKINS,
67. Plaintiff is informed and believes and thereon alleges that defendants have never created and distributed a written policy about discrimination, retaliation and harassment, have never conducted any discrimination, retaliation and harassment trains any discrimination, retaliation and harassment policies for its supervisors or employees.
PRAYER FOR RELIEF
WHEREFORE, PLAINTIFF prays for relief as Mow.
1. For general damages in amounts according to proof and in no event in an amount less than the jurisdictional limit of this court;
2. For special damages in amounts according to proof;
3. For punitive damages in amounts according to proof,
4. For attorneys' fees as provided by law;
5. For interest as provided by law,
6. For costs of suit incurred herein; and
7. For such other and further relief as the Court deems fair and just