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BRIAN A. SUN (Bar No. 89410) LUAN K. PHAN (Bar No. 185985) O’NEILL, LYSAGHT & SUN LLP 100 Wilshire Boulevard, Suite 700 Santa Monica, California 90401-1142 Telephone: (310) 451-5700 Facsimile: (310) 399-7201 Attorneys for Anthony Kelly SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES ANTHONY KELLY,Plaintiff, v. UNITED PARCEL SERVICE, INC. an Ohio corporation; UPS GENERAL SERVICES, INC., a Delaware corporation; GEORGIA BENTON, an individual, DON PRESSOR, an individual; and DOES 1 through 10, inclusive, CASE NO. BC247267 COMPLAINT FOR: (1) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY (2) RETALIATION UNDER THE FAIR EMPLOYMENT AND HOUSING ACT (3) BREACH OF CONTRACT (4) DEFAMATION [DEMAND FOR JURY TRIAL] Plaintiff Anthony Kelly alleges as follows: The Parties 1. Plaintiff is, and at all times herein mentioned was, a resident of Los Angeles County, California. 2. United Parcel Service, Inc. is, and at all times herein mentioned was, a corporation organized and existing under the laws of Ohio and doing business in Los Angeles County, California. 3. UPS General Services, Inc. is, and at all times herein mentioned was, a corporation organized and existing under the laws of Delaware and doing business in Los Angeles County, California. United Parcel Service, Inc. and UPS General Services, Inc. are referred to collectively herein as “UPS.” 4. Defendant Georgia Benton is, and at all times herein mentioned was, a resident of Los Angeles County, California. 5. Defendant Don Pressor is, and at all times herein mentioned was, a resident of Los Angeles County, California. 6. The true names and capacities of Defendants named herein as DOES 1 through 10, inclusive, whether individual, corporate, associate, or otherwise, are unknown to Plaintiff, who therefore sues such Defendants by such fictitious names. These fictitiously named Defendants are responsible in some manner for the actions, injuries, and damages alleged herein. Plaintiff will seek leave to amend this Complaint, to add the true names and capacities when they have been ascertained. 7. Except as otherwise alleged, each of the Defendants named herein were the agents, servants, partners, officers, directors, and/or employees of each of the other named Defendants herein, and in doing the acts or actions alleged herein were acting within the scope of such agency and appointment, and with the knowledge, approval, and ratification of each of the other Defendants. Plaintiff’s Employment History 8. In February 1989, Plaintiff entered into a contract of employment with UPS, which was partially oral, partially written, and partially implied. Plaintiff agreed to perform duties initially as a driver. Under Plaintiff’s employment contract, Plaintiff received a salary as well as bonuses, retirement benefits, life insurance, medical insurance, disability insurance, and other benefits. 9. Throughout the course of his 12-year employment with UPS, Plaintiff received numerous commendations for the good job he was doing, including numerous promotions and salary increases. UPS senior management officials repeatedly assured Plaintiff that he would remain employed at UPS for as long as he performed satisfactorily and that he would only be terminated for good cause. 10. In February 2001, Plaintiff was a billing supervisor for UPS in its Consolidated Billing Site in Azusa and was earning an annual salary of about $62,100, plus bonuses and benefits. Plaintiff occupied a position of importance and responsibility supervising between 30 to 40 employees in the Billing Department. Despite Plaintiff’s years of dedicated service, UPS wrongfully terminated Plaintiff in retaliation for his participation in efforts to end illegal racial discrimination in UPS’s Pacific Region Finance and Accounting Function. Plaintiff’s Participation in Reporting Illegal Discrimination and UPS’s Retaliation 11. During 1997 and 1998, Plaintiff learned of serious internal UPS problems involving discrimination against racial minorities. Plaintiff learned that no minorities had been promoted to upper management positions in the last decade in UPS’s Southern California Accounting Department. In addition, less qualified white males were promoted while more qualified minorities were denied interviews for promotions, let alone receiving actual promotions. 12. Plaintiff made both oral and written reports of illegal discriminatory conduct committed by UPS senior management officials, including testifying truthfully about the discrimination in a deposition in another wrongful termination case filed by Plaintiff’s colleague, Robert Wiley, which was entitled, Robert Wiley v. UPS, Case No. CV99-13091 FMC (CTx). Plaintiff’s complaints were ignored by UPS management. In fact, UPS threatened to retaliate — and did retaliate — against Plaintiff for daring to speak out against illegal racial discrimination. 13. Contributing to the hostile work environment, UPS senior management officials, including a Chief Financial Officer, a District Manager of Southern California, an International Project Controller, and other officials, transmitted internal corporate e-mails which contained offensive and disparaging comments about minorities and women to one another and other UPS employees. 14. On February 16, 2001, UPS wrongfully terminated Plaintiff without good cause. UPS trumped up a charge that Plaintiff had sexually harassed a clerk in the Billing Department. UPS made up these charges as a pretext to terminate Plaintiff. Despite Plaintiff’s repeated requests, UPS failed to provide any evidence to support its baseless charge of sexual harassment. Indeed, UPS refused to explain what Plaintiff allegedly did that constituted sexual harassment. 15. In terminating Plaintiff, UPS failed to comply with its own written policies and procedures and also violated California Labor Code provisions governing the fair treatment of employees. Among other things, UPS: (1) failed to conduct a proper investigation into the sexual harassment charges against Plaintiff, (2) failed to inform Plaintiff of what he had allegedly done that purportedly constituted sexual harassment; (3) failed to give Plaintiff a fair opportunity to defend the sexual harassment charges; (4) failed to allow Plaintiff to review his personnel file; (5) failed to properly investigate Plaintiff’s complaints of illegal racial discrimination, (6) violated its own non-retaliation policies which are designed to protect employees who report illegal discriminatory conduct in the work place; and (7) attempted to cover up the illegal racial discrimination that Plaintiff reported. First Cause of Action (Wrongful Termination in Violation of Public Policy) (Against Defendants UPS and Does 1-10) 16. Plaintiff incorporates by reference paragraphs 1 through 15, inclusive, as though fully set forth here. 17. UPS violated the public policies of the State of California and the United States of America because it terminated Plaintiff in retaliation for his participation in reports of illegal discrimination. Specifically, UPS violated Government Code section 12940(h), Article I section 8 of the California Constitution, and Title VII of the Civil Rights Act of 1964. The public policies delineated in these laws affect society at large and are fundamental, substantial, and well-established. 18. Plaintiff’s participation in reporting illegal racial discrimination is of the nature that the public policy of the State of California and the United States protects. Plaintiff was terminated because of this protected conduct. As a result of that termination, Plaintiff suffered, and continues to suffer, substantial economic damages, including lost earnings, bonuses and benefits, and emotional distress in an amount to be determined at trial, but in excess of this court’s jurisdictional minimum. 19. The aforementioned conduct was done with the intent to deprive Plaintiff of his legal rights and property, and to otherwise cause injury to Plaintiff, all of which constitutes despicable conduct which subjected Plaintiff to cruel and unjust hardship in conscious disregard of his rights, so as to justify an award of exemplary and punitive damages. Second Cause of Action (Retaliation Under the Fair Employment and Housing Act) (Against Defendants UPS and Does 1-10) 20. Plaintiff incorporates by reference paragraphs 1 through 15 , as though fully set forth here. 21. Plaintiff is an “employee” and UPS is an “employer” within the meaning of the Fair Employment and Housing Act. In accordance with the provisions of FEHA, Plaintiff filed a complaint with the Department of Fair Employment and Housing on February 27, 2001 and obtained a right to sue letter, dated March 6, 2001. 22. In violation of FEHA, UPS terminated Plaintiff’s employment in retaliation against Plaintiff for his opposition to UPS’ discriminatory practices and his participation in complaints against such practices. UPS’ discriminatory practices are forbidden by FEHA and Plaintiff’s participation in seeking to end such practices is protected under FEHA. 23. As a result of UPS’s wrongful conduct alleged herein, Plaintiff suffered, and continues to suffer, substantial economic damages, including lost earnings, bonuses and benefits, and emotional distress in an amount to be determined at trial, but in excess of this court’s jurisdictional minimum. 24. The aforementioned conduct was done with the intent to deprive Plaintiff of his legal rights and property, and to otherwise cause injury to Plaintiff, all of which constitutes despicable conduct which subjected Plaintiff to cruel and unjust hardship in conscious disregard of his rights, so as to justify an award of exemplary and punitive damages. Third Cause of Action (Breach of Employment Contract) (Against Defendants UPS and Does 1-10) 25. Plaintiff incorporates by reference paragraphs 1 through 15, inclusive, as though fully set forth here. 26. The terms of Plaintiff’s employment contract with UPS included, but were not limited to, the following: (a) Plaintiff would be able to continue his employment with UPS as long he carried out his duties in a proper and competent manner; and (b) Plaintiff would not be demoted, disciplined, discharged, or reassigned for other than good cause with notice thereof. 27. Plaintiff’s employment agreement with UPS also contained an implied covenant of good faith and fair dealing pursuant to which UPS promised to cooperate fully with Plaintiff in the performance of his employment and to refrain from doing any act which would prevent or impede Plaintiff from performing all the conditions of his employment, or any act that would prevent or impede Plaintiff’s enjoyment of the fruits of his employment. The covenant further required UPS to deal fairly, honestly, and reasonably with Plaintiff. 28. Plaintiff’s employment contract with UPS is evidenced by various documents, oral promises and representations to Plaintiff by UPS, and by the parties’ entire course of conduct. UPS’s written policies provided that Plaintiff would not be demoted, discharged, or disciplined without good cause. UPS management officials including, but not limited to, Trudy Tucker Durrette, Randy Kitani, Craig Brown, Robert Wiley, Scott Ueda, Judy Donovan, and Tom Torpin orally promised to Plaintiff that he would be permitted to continue his employment and would not be discharged or demoted without good cause. 29. Through its written policies and guidelines UPS also promised that: “[A]ny employee who reports a good faith violation or suspected violation of UPS’s legal or ethical responsibilities will not be subject to retaliation or retribution for making that report.” UPS further promised that Plaintiff would be provided with a meaningful opportunity to respond to any complaints about his work performance and also provided with an opportunity to improve in any deficient areas. 30. Throughout his employment, Plaintiff was told by UPS, both orally and in writing, that he was doing a satisfactory job and that his job was secure. Plaintiff in good faith relied upon these representations and believed them to be true. 31. Plaintiff’s good faith reliance on all of the assurances, promises, and representations as listed in the preceding paragraphs, led him to believe that his employment was secure and that there existed a contract of continuous employment with UPS. As independent consideration, in addition to performing his regular duties, Plaintiff refrained from seeking other employment and pursuing other career opportunities of significance. Plaintiff has at all times been ready, willing, and able to perform and has offered to perform all of the conditions of his contract to be performed by him. 32. Despite the representations made to Plaintiff and the reliance he placed on them, UPS failed to carry out its responsibilities under the terms of the employment contract and breached the contract by, among other things: (a) terminating Plaintiff without cause and for pretextural reasons; (b) failing to follow its own written personnel policies or to apply the same personnel policies to Plaintiff that it provides other employees; and, (c) failing to deal fairly, honestly and reasonably with Plaintiff. 33. As a proximate result of UPS’s breach, Plaintiff has suffered and continues to suffer substantial losses in earnings, bonuses and other employment benefits which he would have received had UPS not breached said agreement, including but not limited to expenses incurred in obtaining substitute employment, all to his damage in an amount to be determined at trial, but in excess of this court’s jurisdictional minimum. Fourth Cause of Action (Defamation) (Against All Defendants) 34. Plaintiff incorporates by reference paragraphs 1 through 15, inclusive, as though fully set forth here. 35. Beginning no later than February 2001, Defendants, and each of them, falsely accused Plaintiff of sexual harassment and violating ethical standards. Defendants made these false and defamatory statements, which were heard and read by other employees, other professionals, and members of the general public. 36. These words were defamatory because they were completely false and they injured Plaintiff’s name, reputation, and occupation. 37. When Defendants committed the above said acts, they did so deliberately and intentionally to injure and defame the good name of Plaintiff. The above said acts of the Defendants, and each of them, constitute a defamation of the Plaintiff and such defamation was a substantial factor in causing damage and injury to the Plaintiff as set forth herein. As a result of the above described accusations, Plaintiff has suffered special damages and general damages to his reputation in an amount to be determined at trial, but in excess of this court’s jurisdictional minimum. 38. The aforementioned conduct was done with the intent to deprive Plaintiff of his legal rights and property, and to otherwise cause injury to Plaintiff, all of which constitutes despicable conduct which subjected Plaintiff to cruel and unjust hardship in conscious disregard of his rights, so as to justify an award of exemplary and punitive damages. 39. On March 4, 2001, Plaintiff wrote to UPS and demanded a full retraction of the malicious allegations made against him. UPS failed to respond to Plaintiff’s request. Prayer for Relief WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: 1. For compensatory damages, including special and general damages in an amount to be proven at trial; 2. For punitive damages as allowed by law in an amount to be proven at trial; 3. For interest as allowed by law; 4. For reasonable attorneys’ fees; 5. For costs of suit incurred herein; 6. For such other and further relief as the Court deems just and proper. DATED: March 21, 2001 BRIAN A. SUN LUAN K. PHAN O’NEILL, LYSAGHT & SUN LLP By: Brian A. Sun Attorneys for Plaintiff Anthony Kelly DEMAND FOR JURY TRIAL Plaintiff hereby demands a trial by jury in this matter. DATED: March 21, 2001 Respectfully submitted, BRIAN A. SUN LUAN K. PHAN O’NEILL, LYSAGHT & SUN LLP By Brian A. Sun Attorneys for Plaintiff Anthony Kelly

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