Hovsepian v. Apple, Inc.

Filing 1029

Hovsepian v. Apple, Inc.

Doc. 1029 Att. 1

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Thomas E. Kotoske, State Bar No. 046882 Law Office of Thomas E. Kotoske Embarcadero Corporate Center 2479 East Bayshore Road, Suite 703 Palo Alto, CA 94303-3207 [phone] Attorney for Plaintiff, CARLOS GUILTRON UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

CARLOS GUILTRON, Plaintiff, vs. UNITED PARCEL SERVICE, INC., a corporation, and ROBERT CHASE, an individual, Defendants.

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Case No.: 3: CV 05-00888 CRB DECLARATION OF COUNSEL IN SUPPORT OF PLAINTIFF'S MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT Date: August 19, 2005 Time: 10:00a.m. Courtroom: No. 8 Before: Hon. Charles R. Breyer

I, THOMAS E. KOTOSKE, declare: 1. I am counsel for plaintiff. I know the facts recited below of my own personal

knowledge and I could and would testify to the truth of those facts if called upon to do so. Plaintiff's Employment History That Gives Rise to First Amended Complaint

2.

The following is a time line of plaintiff's employment history at United Parcel

Service ["UPS"] that gives rise to plaintiff's first amended complaint. 1993: June 2000: Plaintiff begins his employment with UPS as a driver. Plaintiff is severely injured on the job and has a skeletal muscular disability that is well known to UPS.

Declaration of Counsel in Support of Plaintiff's 1 Memorandum in Support of Motion for Leave to File a First Amended Complaint
Dockets.Justia.com

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September 2002:

UPS terminates plaintiff without cause. As plaintiff is a union member, he grieves his termination.

August 17, 2004:

Plaintiff files his complaint in San Mateo Superior Court. The complaint alleges a claim under Labor Code §132(a) [disability discrimination], a violation of public policy [Bus. & Prof. Code §17200] and negligence per se.

October 20, 2004:

The grievance procedure ends. The arbitrator's award is that UPS terminated plaintiff without cause and plaintiff is ordered to be reinstated. A copy of that award is attached as Exhibit 1.

Late October 2004: March 2, 2005: April 2005:

Plaintiff returns to work at UPS. UPS removes the state court action to this court. UPS again terminates plaintiff's employment because of his disability and discriminates against him because of his disability.

July 11, 2005:

Plaintiff files a complaint with the DFEH against UPS and his manager Robert Chase.

July 11, 2005:

DFEH issues plaintiff right-to-sue letters. The First Amended Complaint

3.

On July 12, 2005, I drafted a first amended complaint which is the complaint I

seek leave to file, a copy of which is attached as Exhibit 2. The amended complaint has the same Labor Code §132(a) claim and Bus. & Prof. Code §17200 as were alleged in the original complaint. The amended complaint adds a discrimination claim and retaliation claim under Gov't. Code §§12900 relating to plaintiff resumed employment with UPS between October 2004 to April 2005. Plaintiff's supervisor, Robert Chase, is also named as a defendant in connection with the retaliation claim. On July 12, 2005, I transmitted the first amended complaint, and a stipulation to permit

Declaration of Counsel in Support of Plaintiff's 2 Memorandum in Support of Motion for Leave to File a First Amended Complaint

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it to be filed, to defense-attorney, Mr. John Post. A copy of that transmittal is attached as Exhibit 3. 4. On July 13, 2005, Mr. Post transmitted the attached letter, Exhibit 4, stating that

he would not execute the stipulation. Mr. Post states that plaintiff is attempting to amend the complaint for an "improper purpose". Mr. Post never explains what he means by an "improper purpose. This motion ensues. No Prejudice 5. No prejudice could befall defendants if the first amended complaint is filed.

Discovery has not started. The case management conference is set for August 5, 2005. There is no Bad Faith 6. There is no bad faith on plaintiff's part in seeking to file the first amended

complaint. It is not plaintiff's fault that the defendants seek to engage in additional unlawful conduct [discrimination and retaliation] after UPS had removed the original action from state court to this court. Not Futile 7. claims. Also the defendant Robert Chase is fully liable for the retaliatory conduct alleged in the first amended complaint. Peterson v. Santa Clara County Valley Medical Center, No. C9820367 JW, 2000 U.S. Dist. Lexis 953, 2000 DAR 1649 [N.D. Cal.]; Walrath v. Sprinkel, 99 CA4th 1237, 1239 (2002). No Undue Delay The claims alleged in the first amended complaint are cognizable state statutory

Declaration of Counsel in Support of Plaintiff's 3 Memorandum in Support of Motion for Leave to File a First Amended Complaint

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8.

There has been no undue delay in seeking to file the first amended complaint.

The causes of action of disability discrimination and retaliation arose in late April 2005. Plaintiff filed his charge with the DFEH on July 11, 2005 and by July 12, 2005 had presented the first amended complaint to opposing counsel with a request to stipulate to its filing.

I declare under penalty of perjury under the laws of California that the foregoing is true and correct, and that this declaration was executed in California.

Date: July 14, 2005

______________________ Thomas E. Kotoske Attorney for Plaintiff

Declaration of Counsel in Support of Plaintiff's 4 Memorandum in Support of Motion for Leave to File a First Amended Complaint