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
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
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.
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
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.
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
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:
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
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
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 ...