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HOSKINS v. UNITED PARCEL SERVICE

January 16, 2004.

KATHY HOSKINS, an individual, Plaintiff
v.
UNITED PARCEL SERVICE, INC, a corporation, KEN JAUREGUI, an individual, and DOES 1-50, Defendants



The opinion of the court was delivered by: SUSAN ILLSTON, District Judge Page 2

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 Page 3 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. Page 4

  (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. Page 1

  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) 675-2530

 Attorney 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 Page 2

  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. Page 3 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. Page 4

  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 ...


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