Barker et al v. Halliburton Company et al

Filing 5

AMENDED COMPLAINT against all defendants, filed by Tracy K Barker, Galen D Barker.(Kelly, Lannie)

Barker et al v. Halliburton Company et al

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IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF TEXAS (B E A U M O N T DIVISION) T R A C Y K., AND GALEN D. BARKER § P la in t if f s , § § v s. § § H A L L IB U R T O N COMPANY d/b/a § K B R KELLOGG BROWN & ROOT § (KBR); KELLOGG BROWN & ROOT§ S E R V IC E S , INC.; KELLOGG § B R O W N & ROOT INTERNATIONAL,§ IN C .; KELLOGG BROWN & ROOT, § LLC; KELLOGG BROWN & ROOT, § INC.; KELLOGG BROWN & ROOT, § S . de R.L.; KELLOGG BROWN & § R O O T (KBR), INC.; KBR § T E C H N I C A L SERVICES, INC.; § A L I MOKHTARE; SERVICE § E M P L O Y E E S INTERNATIONAL, § IN C .; and THE UNITED STATES OF § A M E R IC A § D efen d a n ts. §

C IV IL ACTION NO. _________

J U R Y TRIAL DEMANDED

F IR S T AMENDED COMPLAINT N O W COMES, Tracy K. and Galen D. Barker, and file this suit against H allib u rto n Company d/b/a KBR Kellogg Brown & Root (KBR), Kellogg Brown & Root Services, Inc., Kellogg Brown & Root International, Inc., Kellogg Brown & Root LLC, Kellogg Brown & Root, Inc., Kellogg Brown & Root, S. de R.L., K e llo g g Brown & Root (KBR), Inc., KBR Technical Services, Inc. (hereinafter,
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co llectiv ely "KBR"); Ali Mokhtare; Service Employees International, Inc.; and the U n ite d States of America, complaining about the sexual harassment, sexual d is cr im in a tio n , intentional infliction of emotional distress, and other personal in ju r ie s to Tracy K. Barker, and the related claims of Galen D. Barker, her h u sb an d . F o r clarification, this case is not about a pinch on the backside, or a few p o litically incorrect jests at the office. Tracy Barker was harassed, berated, and u ltim ately physically attacked to the point of having to defend herself from a w o u ld -b e rapist. An attack which never would have occurred but for the "boys w ill be boys" attitude that permeated the environment that defendants first created, th en failed to warn Tracy about ­ an environment that was excused, if not en co u rag ed . N A T U R E OF THE CASE 1. T h is is a Texas diversity, personal injury and employment

d iscrim in atio n and harassment case arising out of Tracy Barker's employment with S e rv ice Employees International, Inc. (SEII), in the Green Zone in Baghdad, Iraq an d at the Basra Military Base in Iraq. At all times relevant to these allegations, th e Green Zone was under the direct control of Defendants, Halliburton and the U n ited States Government, which operated Camp Hope in connection with
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o p e r a tio n s of the Department of State, and which has therefore waived sovereign im m u n ity as to claims such as the one at bar. Ali Mokhtare was an individual w o rk in g for the Department of State, of the United States Government. P A R T IE S 2. P la in tif f, Tracy K. Barker (hereinafter, "Tracy"), is the wife of Galen

D . Barker, a member of the United States Armed Forces, currently stationed at Fort B rag g , North Carolina, who executed her contract of employment with SEII in H o u sto n , Texas on July 22, 2004. 3. Plaintiff, Galen D. Barker (hereinafter, "Galen"), is the lawful spouse

o f Tracy, and is a member of the United States Armed Forces, currently stationed a t Fort Bragg, North Carolina. 4. D efen d an t, Halliburton Company d/b/a KBR Kellogg Brown & Root,

(h erein after, "Halliburton") is a Texas corporation headquartered in Houston, H arris County, Texas. It contracts for services related to government contracts th ro u g h o u t Texas, the United States, and Worldwide. Halliburton conducts

b u sin ess throughout the State of Texas and is, thus, amenable to jurisdiction in this S ta te . This defendant may be served with process by service upon its registered a g e n t, CT Corporation System, 1021 Main Street, Suite 1150, Houston, Texas 77002.
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5.

Defendants, Kellogg Brown & Root Services, Inc., Kellogg Brown &

R o o t International, Inc., Kellogg Brown & Root LLC, Kellogg Brown & Root, In c., Kellogg Brown & Root, S. de R.L., Kellogg Brown & Root (KBR), Inc., KBR T ech n ical Services, Inc., (hereinafter, collectively "KBR") is a Texas corporation w ith principle offices in Houston, Harris County, Texas. It contracts for services related to government contracts throughout Texas, the United States, and W o rld w id e. KBR conducts business throughout the State of Texas and is, thus, a m e n a b le to jurisdiction in this State. This defendant may be served with service o f process by service upon its registered agent, CT Corporation System, 1021 Main S treet, Suite 1150, Houston, Texas 77002. 6. Ali Mokhtare is an individual who, on information and belief, is a

fo reig n national who was employed the State Department of the United States, w h o se last known address is: 405 Ayr Hill Ave., NE, Vienna, VA 22180-4728. A s a United States Employee, he is amenable to jurisdiction in United States F ed eral Court. 7. Defendant, the United States of America, is a governmental entity

w h o is properly before this court. However, the time has not run from the filing of th e Federal Tort Claim for the filing of this suit, and a stay as to claims against the U n ited States is therefore warranted, if same is requested.
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8.

Defendant, Service Employees International, Inc. is a Cayman Islands

co rp o ratio n doing business in the State of Texas with Halliburton, which failed to reg ister with the Secretary of State in Texas as a company doing business in Texas. T h erefo re, service on OAS will be by service on the Secretary of State of the State o f Texas, and upon Shadow Sloan, Esq., who, on information and belief, is the atto rn ey representing that corporation. On information and belief, this corporation w as set up as an off-shore tax shelter for Halliburton. (see previously attached d o c u m e n ts ) J U R IS D IC T IO N , VENUE AND LIMITATIONS 9. Ju risd ictio n is based on diversity of citizenship. 28 U.S.C. §1332.

T h e amount in controversy is substantially in excess of Seventy-Five Thousand D o llars ($75,000), exclusive of interest and costs. The Defendants regularly

co n d u ct business within the district, and the contract of employment executed by T r ac y Barker at the time of her employment designates Texas as the contractual ju risd ictio n to be utilized. Therefore, venue is permissible in this District. 10. B ecau se this case involves various plaintiffs and various defendants,

fed eral questions of law, and issues that should be resolved at one forum, it is p ro p erly before this court, despite the fact that an arbitration agreement purporting to bind some issues exists in this case. Even if the arbitration is binding as against
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T racy to some defendants on some issues, it does not prevent her claims as to o th e r s. Moreover, Galen Barker is not bound by any agreement whatsoever,

m a k in g his claims properly before this court. Plaintiff's respectfully ask this court to exercise its discretion to bring all known causes of action to one forum ­ this co u rt, in the interest of judicial economy, justice and fairness to the parties.

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FACTS It has become necessary to file this suit as a result of the following facts. 11. Beginning September 11, 2004, Tracy was in the "Green Zone" in

B ag h d ad , Iraq. She was employed by Service Employers International, Inc., in the P r o c u r e m e n t Department. While working in this environment, which was under th e direct control and authority of all defendants named herein, with the exception o f Ali Mokhtare, individually, Tracy witnessed and experienced verbal and p h ysical threats of abuse. She was repeatedly exposed to supervisors and cow o rk ers' belittling remarks, constant abusive language and open discussions of sex u al exploitation. 12. Tracy, as well as others, reported this inappropriate conduct to However, these

su p erv iso rs employed by Halliburton and/or its subsidiaries.

co m p lain ts of harassment and hostile work environment were ignored and/or in c ited retaliation. Despite assurances that the reporting of such incidents would b e handled discretely, copies of the reports were distributed to management. As a d irect result, the abuse to Tracy intensified. 13. On March 11, 2005, Tracy was transferred to Bahsra, Iraq, which was

also under the direct control and authority of all defendants named herein, with the e x c ep ti o n of Ali Mokhtare. Again, the working environment was unprofessional
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an d sexually hostile, with daily offensive verbal and physical sexual conduct. P o rn o g rap h y was openly displayed by project leaders, corporate managers, and cow o rk ers. Again, Tracy filed a complaint concerning these matters, but again, to no a v a il. 14. On June 21, 2005 Tracy was threatened and physically assaulted by a

sta te department employee, Ali Mokhtare, who was trying to rape her, having first a tte m p tin g to intimidate her by telling stories of rape victims who were ignored an d later found dead. Defendants created, tolerated and/or fostered a sexually h o s tile work environment that produced an atmosphere conducive to her ex p lo itatio n as a woman. This environment led to this ultimate attack on Tracy. E v en after the attack was reported, Defendants continued to promote the very type o f hostile work environment that contributed and/or caused Tracy to be the subject o f verbal and physical abuse. 15. Tracy was harassed by her direct supervisor to exchange sexual favors

f o r favorable living and working conditions in a quid-pro-quo manner following th e attack by Ali Mokhtare. Though she initially refused these unwanted sexual ad v an ces, she finally succumbed to the intensity of the harassment and the r ep e t it iv e demands for sex, having just suffered the emotional trauma related to her p rev io u s attack, which resulted in tremendous additional emotional suffering.
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16.

As a result of the continuous abusive behavior, both verbal and

p h ysical, both Tracy and Galen have suffered significant harm as set forth herein.

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L E G A L THEORIES AND CAUSES OF ACTION 17. Defendants, HALLIBURTON COMPANY d/b/a KBR KELLOGG,

B R O W N & ROOT, KELLOGG, BROWN & ROOT SERVICES, INC., KBR T E C H N I C A L SERVICES, INC., SERVICE EMPLOYEES INTERNATIONAL, IN C ., and ALI MOKHTARE are liable under one or more different, alternative th eo ries of liability recognized under Texas, and Federal, law.

COUNT I N E G L IG E N C E OF D E F E N D A N T S , HALLIBURTON AND KBR 18. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 19. T r ac y and Galen plead and will prove that at all times Tracy's conduct

w a s professional and in no way contributed to and/or caused the hostile work e n v i r o n m e n t in which Halliburton/KBR, KBR placed her, or the unwelcomed s ex u a l harassment and physical assault on her person. Tracy, as a female employee is protected against sexual harassment under federal law. At all times prior to the assau lt, Defendants were placed on actual and/or constructive notice of the hostile an d sexually charged environment, and the sexual harassment of Tracy, in p articu lar. They were, additionally, warned of the foreseeable impending dangers.

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T h e harassment and sexual abuse has negatively impacted the terms, conditions, a n d privileges associated with Tracy's employment, and continue to do so. Tracy h a s suffered debilitating, and permanent injuries for which Defendants herein are r e s p o n s ib le . 20. P lead in g further, Tracy and Galen will show that Defendants, jointly

an d severally, are responsible for several acts of negligence which were a cause of th e incidents, subsequent injuries and damages suffered by them. S u ch acts of negligence include, but are not limited to: (a) F ailin g to exercise ordinary or reasonable care in hiring, training,

su p erv isin g and maintaining their employees, servants, agents, officers and r e p r e s e n ta tiv e s ; (b) F a ilin g to exercise ordinary or reasonable care in providing a safe

w o rk in g environment; ( c) F a ilin g to exercise ordinary or reasonable care in providing a safe

liv in g environment; (d ) F ailin g to exercise ordinary or reasonable care in responding to

req u e sts of its residents, employees, servants, agents, officers and representatives, sp ecifically Tracy's requests to be moved to a safer environment; (e) F ailin g to recognize, implement and adhere to applicable rules and
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reg u latio n s pertaining

to

their

employees, servants, agents, officers and

rep resen tativ es and their work environments, including permitting alcoholic b e v e r a g e s on the premises with co-ed barracks, with knowledge of the dangers created by its consumption; the failure to provide separate living quarters for male an d female residents, and others; (f) F ailin g to provide proper, adequate and sufficient security measures to

T racy at her living quarters in Iraq; (g ) (h ) ( i) F ailin g to properly supervise the project in question; F ailin g to properly supervise the premises in question; F ailin g to warn Tracy of the inherent dangers of her living

e n v ir o n m e n t; ( j) F ailin g to devise a proper policy or plan for placement of females in

th eir working and/or living environment; (k) Failing to respond in a timely and appropriate manner, despite actual

an d /o r constructive knowledge of the on-going sexually-charged environment and th e sexual harassment which permeated Halliburton/KBR's or KBR's Iraq p r e m is e s ; ( l) su ffered .
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Failing to supervise employees so as to prevent attacks such as Tracy

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21.

Tracy and Galen would show, in the alternative, without waiving the

ab o v e, that Defendants, HALLIBURTON COMPANY d/b/a KBR KELLOGG, B R O W N & ROOT, and KBR. were the occupier/general contractor of the premises in question and that as the occupier/general contractor, the Halliburton Defendants o w e d a duty to Tracy to warn of and/or correct hidden dangers. Further,

D efen d an ts had actual knowledge of the condition that posed an unreasonable risk o f harm to Tracy, and other women in her circumstances. Defendants had a duty to ta k e reasonably prudent precautions under the circumstances to reduce or to elim in ate the unreasonable risk from that condition and Defendants failed to do so. 22. Pleading further Tracy and Galen would show that Defendants

H A L L IB U R T O N COMPANY d/b/a KBR KELLOGG, BROWN & ROOT, K ELLO GG , BROWN & ROOT SERVICES, INC., KBR TECHNICAL

S E R V IC E S , INC., KBR and SERVICE EMPLOYERS INTERNATIONAL, INC., w e re involved in a joint enterprise as that term is defined in law. At all times relev an t hereto, the Halliburton Defendants had an agreement, either express or im p lied , with respect to the recruitment, training, placement, construction, e m p lo y m e n t and policies and procedures that entail work in Iraq for the employees o f Service Employers International, Inc. Further, they had a common purpose and a common business or pecuniary interest with an equal right to direct and control
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th e enterprise. For the purpose set forth herein, HALLIBURTON COMPANY d /b /a KBR KELLOGG, BROWN & ROOT, KELLOGG, BROWN & ROOT S E R V IC E S , INC., KBR TECHNICAL SERVICES, INC., KBR and SERVICE E M P L O Y E R S INTERNATIONAL, INC., are jointly and severally responsible for th e injuries and damages sustained by Tracy and Galen Barker. 23. D efen d an ts are jointly and severally responsible for the acts and

o m issio n s in this co-venture. Furthermore, the Defendants are responsible for the a c ts and omissions of their employees, servants, agents, officers and

r ep r e se n t ativ e s including, without limitation, under the doctrine of respondeat su p erio r, agency and non-delegable duty. 24. At the time of the incident giving rise to Tracy's claims, she was a

h ealth y, employable human being with a life expectancy of 49.3 years, according to recent Life Tables published by the United States Census Bureau, a copy of w h ic h will be used at trial. According to the U.S. Labor Department table, Plaintiff h ad an average work life expectancy of 32 years until the age of 65, a copy of w h ich will be used at trial. 25. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00.
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C O U N T II N E G L IG E N T UNDERTAKING OF D E F E N D A N T , HALLIBURTON, KBR AND SEII 26. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 27. Tracy and Galen would also show that Defendants HALLIBURTON

C O M P A N Y d/b/a KBR KELLOGG, BROWN & ROOT, KELLOGG, BROWN & R O O T SERVICES, INC., KBR TECHNICAL SERVICES, INC., KBR AND S E R V IC E EMPLOYEES INTERNATIONAL, INC. and the employees, servants, ag en ts, officers and representatives of each, negligently undertook to provide p ro p er training, adequate and sufficient safety precautions (including adequate secu rity measures), adequate and sufficient policies and procedures in the recru itm en t, training and placement of personnel in Iraq and therefore, owed a duty to Tracy pursuant to common law and § 323 of the Restatement (Second) of Torts, to wit: O n e who undertakes, gratuitously, or for consideration, to render services to a n o th e r which he should recognize as necessary for the protection of the other p erso n or things, is subject to liability to the other for physical harm resulting from th is failure to exercise care to perform his undertaking, if: a. h is failure to exercise such care increases the risk of such harm, or b. th e harm is suffered because of the other's reliance upon the u n d e r ta k in g .

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28.

As a proximate result of the negligent acts and omissions described

h erein , Defendants, HALLIBURTON COMPANY d/b/a KBR KELLOGG, B R O W N & ROOT, KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL SERVICES, INC., KBR AND SERVICE EMPLOYEES

I N T E R N A T I O N A L , INC breached these duties, resulting in injuries and damages to Tracy and Galen. 29. Defendants, HALLIBURTON COMPANY d/b/a KBR KELLOGG,

B R O W N & ROOT, KELLOGG, BROWN & ROOT SERVICES, INC., KBR T E C H N ICA L SERVICES, INC., KBR and SERVICE EMPLOYEES

IN T E R N A T IO N A L , INC. breached its duty owed to Tracy and Galen by allowing, w ith o u t warning or correction, Tracy to enter into, work in, and be housed in, an u n safe and hostile area (in this instance, hostile from "friendly", rather that enemy fo rces). This breach was a proximate cause of Tracy and Galen's injuries set forth b e lo w . 30. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. C O U N T III N E G L IG E N C E OF U N IT E D STATES OF AMERICA AND ALI MOKHTARE
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31.

Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 32. Defendant, Ali Mokhtare, is guilty of sexual assault, physical assault

an d /o r reckless conduct. 33. Defendant, The United States of America, negligently and/or

reck lessly employed Ali Mokhtare, and/or negligently and/or recklessly failed to s u p e r v ise him in the performance of his duties, and/or negligently and/or recklessly retain ed him in their employment with knowledge that such retention may lead to an assault on a woman, such as Tracy Barker. 34. D efen d an t, The United States Government voluntarily entered Iraq,

d estro yed its infrastructure, including its court system, and continues to own, o ccu p y, manage, and control United States military bases, at which the government in v ites United States civilian contractors live and work under the protection of the U n ited States military. Nevertheless, the United States failed to provide a living an d working environment, that was reasonably safe from the sexual and other p h y sic al attacks of its own citizens and/or employees by other United States citizen s/em p lo yees and/or contractors in Bahsra, Iraq and in the "Green Zone" in B ag h d ad , Iraq, in violation of the Civil Rights Act of 1964 §703(a), 42 U.S.C.A. § 2 0 0 0 e -2 ( a ) , including failing to maintain adequate security measures at facilities
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in ten d ed to house female non-combatants. 35. Tracy and Galen plead and will prove that at all times Tracy's conduct

w a s professional and in no way contributed to and/or caused the hostile work e n v ir o n m e n t in which the United States placed her, or the unwelcomed sexual h a r assm en t and physical assault on her person. Tracy, as a female employee is p ro tected against sexual harassment under federal law. At all times prior to the assau lt, Defendants were placed on actual and/or constructive notice of the hostile an d sexually charged environment, and the sexual harassment of Tracy, in p articu lar. They were, additionally, warned of the foreseeable impending dangers. T h e harassment and sexual abuse has negatively impacted the terms, conditions, a n d privileges associated with Tracy's employment, and continue to do so. Tracy h a s suffered debilitating, and permanent injuries for which Defendants herein are r e s p o n s ib l e . 36. The United States of America is in possession of a claim filed on

b eh alf of the Plaintiff, Tracy Barker, herein, and has not yet responded to this c la im . 37. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00
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C O U N T IV S E X U A L HARASSMENT AND HOSTILE WORK ENVIRONMENT C R E A T E D BY DEFENDANT, HALLIBURTON, KBR AND SEII 38. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 39. P lead in g in the alternative without waiving the above allegations and

w h ile incorporating the factual allegations stated herein above, Tracy and Galen w o u ld show that during her employment in Iraq, Tracy was subject to and the targ et of sexual harassment by employees, agents and/or ostensible agents or em p lo yees of HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN & R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR and SERVICE EMPLOYEES INTERNATIONAL, INC. T h e sexual harassment was both verbal and visual. Tracy Tracy's conduct was p r o f e ss io n a l and in no way contributed to and/or caused the hostile work e n v ir o n m e n t in which Halliburton/KBR placed her, or the unwelcomed sexual h arassm en t and physical assault on her person. Tracy, as a female employee is p ro tected against sexual harassment under federal law. At all times prior to the assau lt, Defendants were placed on actual and/or constructive notice of the hostile an d sexually charged environment, and the sexual harassment of Tracy, in p articu la r . They were, additionally, warned of the foreseeable impending dangers.
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T h e harassment and sexual abuse has negatively impacted the terms, conditions, a n d privileges associated with Tracy's employment, and continue to do so. Tracy h a s suffered debilitating, and permanent injuries for which Defendants herein are r e s p o n s ib l e . 40. B ecau se this environment of harassment was allowed and/or

en c o u r ag ed to exist unchecked, it created an atmosphere physically threatening to th e Tracy. Defendants conduct (or lack thereof) created and fostered a sense of su p erio rity to male supervisors and others which allowed them to harass and abuse p erso n s such as Tracy, in violation of the Civil Rights Act of 1964 §703(a), 42 U .S .C .A . § 2000e-2(a). 41. T h is environment allowed, caused and/or contributed to the eventual

p h y s ic a l assault upon Tracy, which caused both the physical and mental damages w ith which Tracy and Galen are still suffering. 42. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. COUNT V R E T A L IA T IO N BY DEFENDANT, HALLIBURTON, KBR AND SEII 43. Tracy and Galen hereby incorporate all paragraphs of this Complaint
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in to this Count, as if they were fully alleged herein, and further alleges as follows: 44. P lead in g in the alternative and without waiving the above allegations

an d while incorporating the factual allegations stated herein above, Tracy and G a le n would show that while Tracy actively pursued a solution to the sexual h arassm en t and hostile work environment she received little or no help. In fact, she w a s ridiculed, threatened and harassed because of her reporting of the incidences m o r e specifically stated herein above. Because of the retaliation on the part of the D efen d an ts, Tracy and Galen seek all remedies set forth herein below. 45. Tracy and Galen would show that HALLIBURTON COMPANY

d /b /a KBR KELLOGG, BROWN & ROOT, KELLOGG, BROWN & ROOT S E R V I C E S , INC., KBR TECHNICAL SERVICES, INC. and KBR exercised s ig n if ic an t control over the actions of Tracy's employer, SEII, and that H allib u rto n /K B R used its influence to retaliate against Tracy's reports of h arassm en t and hostile work environment above. 46. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. C O U N T VI A G E N C Y , JOINT VENTURE, JOINT ENTERPRISE, DIRECT C O R P O R A T E LIABILITY
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47.

Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 48. HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN &

R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR and SERVICE EMPLOYEES INTERNATIONAL, INC is v icario u sly liable for the conduct of its employees, agents and ostensible agents, in c lu d in g Crystal Daniels, Barron Marcee, Craig Grabein, Wesley Lane, Jeff M elto n , Sherman Richardson, Robert Richmond and others, under theories of actu al agency, apparent agency, ostensible agency, and agency by estoppel. 49. In the alternative, HALLIBURTON COMPANY d/b/a KBR

K E L L O G G , BROWN & ROOT, KELLOGG, BROWN & ROOT SERVICES, IN C ., KBR TECHNICAL SERVICES, INC., KBR and SERVICE EMPLOYEES IN T E R N A T IO N A L , INC, its employees, agents and ostensible agents, engaged in jo in t ventures, joint enterprises, and/or are liable under the direct corporate liability th e o r y , and/or are liable under the theory of respondeat superior. 50. The United States Government is vicariously liable for the conduct of

its employees, agents and ostensible agents, including Ali Mokhtare, under theories o f actual agency, apparent agency, ostensible agency, and agency by estoppel.

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51.

In the alternative, the United States Government, its employees,

ag en ts and ostensible agents, including Ali Mokhtare, engaged in joint ventures, jo in t enterprises, and/or are liable under the direct corporate liability theory, and/or a re liable under the theory of respondeat superior. 52. D e f e n d an tss conduct was unreasonable, or negligent, and was a

p r o x im a te cause of Tracy Barker's assault and sexual harassment. The negligence in clu d es failure to comply with company policies regarding sexual misconduct, failu re to comply with federal law regarding sexual harassment and sexually ch arg ed work place, failure to prevent retaliatory behavior following a complaint b y the victim, negligent misrepresentations, and covering up the allegations by f ailin g to assist with the investigation of same. 53. D efen d an ts are liable for breach of express and implied warranties,

w h ich breach is cognizable, not only under the common law, but also via the D TPA . 54. A ll theories of liability and recovery are pled cumulatively and

a lte rn a tiv e ly , with no election of remedies until such time as the trier of fact has reso lv e d disputed issues of fact and the Court compels such an election, if, in fact, th e Court does so.

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55.

As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. C O U N T VII B R E A C H OF CONTRACT 56. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 57. HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN &

R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR and SERVICE EMPLOYEES INTERNATIONAL, INC b reach ed their contract of employment with Tracy in each of the following p a r tic u la r s : a. The "Employment Agreement" between Service Employees In tern atio n al, Inc. was executed on July 22, 2004 purports to co v er the employment-related matters between the Plaintiff and S E II; b. SEII and/or the other defendants named herein breached the s p ecific and implied warranties of security against violations of

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secu rity rules as set forth by paragraph 15 (a) of the E m p lo ym en t Agreement; c. SEII and/or the other defendants named herein breached the s p e c ific and implied warranties of protection against violations o f Corporate Policies regarding Standards of Conduct as set fo rth by paragraph 16 of the Employment Agreement; d. SEII and/or the other defendants named herein breached the sp ecific and implied warranties of protection against violations o f Project and/or Work Location Policies regarding Standards o f Conduct as set forth by paragraph 16 of the Employment A g r e e m e n t; e. SEII and/or the other defendants named herein breached the s p e c if ic and implied warranties of protection against

m isco n d u ct of other employees as set forth by paragraph 16(b) o f the Employment Agreement; f. SEII and/or the other defendants named herein breached the s p e cif ic and implied warranties of protection against Illegal A ctio n s as set forth by paragraph 16(m) of the Employment A g r e e m e n t;
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g.

SEII and/or the other defendants named herein breached the s p e cif ic and implied warranties of protection against Sexual H arassm en t as set forth by paragraph 16(n) of the Employment A g r e e m e n t;

h.

SEII and/or the other defendants named herein breached the s p e cif ic and implied warranties of protection against sexual ad v an ces by an employee within the chain of command or sp h ere of influence of Tracy as set forth by paragraph 16(p) of th e Employment Agreement.

58.

As a direct result of the aforesaid breaches of the Employment

A g reem en t, Tracy was enticed to travel into Baghdad, Iraq, and to place her person in harm's way from the very people who were purported to be working on "her sid e." Therefore, she was harmed, as set forth herein. 59. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00.

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C O U N T VIII F R A U D IN THE INDUCEMENT TO ENTER THE EMPLOYMENT C ON TR AC T 60. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 61. HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN &

R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR and SERVICE EMPLOYEES INTERNATIONAL, INC. frau d u len tly induced Tracy to enter into the contract of employment with SEII on J u ly 21, 2005, by misleading her inter alia in each of the following particulars: a. At all times relevant to the discussion leading up to the ex ecu tio n of the employment contract in this case, and at the tim e of its execution, HALLIBURTON COMPANY d/b/a KBR K E L L O G G , BROWN & ROOT, KELLOGG, BROWN & R O O T SERVICES, INC., KBR TECHNICAL SERVICES, I N C ., KBR and SERVICE EMPLOYEES INTERNATIONAL, I N C . were aware of the repeated sexual attacks, sexual h a r a ssm en t and mistreatment of women in and around B ag h d ad , Iraq, by United States citizens in general, and its own em p lo yees, in particular, yet actively concealed this fact from
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w o m e n who were being asked to serve in that arena, p articu larly, Tracy; b. HALLIBURTON BROWN & COMPANY d/b/a KBR KELLOGG, & ROOT

ROOT,

KELLOGG,

BROWN

S E R V IC E S , INC., KBR TECHNICAL SERVICES, INC., KBR a n d SERVICE EMPLOYEES INTERNATIONAL, INC. each k n e w that personal safety was an issue that would have been sig n ifican t to any applicant for service in Iraq, particularly T racy Barker, and that the concealed knowledge would likely h a v e prevented women in general, and Tracy, in particular, fro m entering into a contract of employment which required her to go to Iraq under those conditions; c. HALLIBURTON BROW N & COMPANY d/b/a KBR KELLOGG, & ROOT

ROOT,

KELLOGG,

BROWN

S E R V IC E S , INC., KBR TECHNICAL SERVICES, INC., KBR a n d SERVICE EMPLOYEES INTERNATIONAL, INC. each a ctiv e l y concealed knowledge of the dangers of sexual h a r as sm e n t, assault, rape, and other related acts from women w h o were enticed to travel, unprotected and unprepared, into
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th is hostile environment; d. HALLIBURTON BROWN & COMPANY d/b/a KBR KELLOGG, & ROOT

ROOT,

KELLOGG,

BROWN

S E R V IC E S , INC., KBR TECHNICAL SERVICES, INC., KBR a n d SERVICE EMPLOYEES INTERNATIONAL, INC. each p articip ated in presenting a contract of employment, along with a pamphlet for outlining grievance procedures and complaints, in a knowing and active inducement to women in general, and T racy in particular, to execute a contract to accept dangerous em p lo ym en t, while having full knowledge of the dangers from its own employees, and concealing that fact; e. The "Employment Agreement" between Service SERVICE E M P L O Y E E S INTERNATIONAL, INC. purports to cover the em p lo ym en t-related matters between the Plaintiff and SEII; yet, d esp ite the knowledge of HALLIBURTON COMPANY d/b/a K B R KELLOGG, BROWN & ROOT, KELLOGG, BROWN & R O O T SERVICES, INC., KBR TECHNICAL SERVICES, IN C ., KBR and SERVICE EMPLOYEES INTERNATIONAL, IN C . that women were being raped and assaulted by
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H allib u rto n employees and/or those of its subsidiaries in Iraq, su ch acts were specifically omitted from the contract of e m p lo y m e n t as a known and foreseeable risk, in an active effort to conceal the very nature of the working and living e n v ir o n m e n t into which women such as Tracy, and Tracy h erself, would be thrust; f. Tracy Barker relied upon the misrepresentations of fact r eg a r d in g the safety measures for women in Iraq (at least as th ey pertained to her fellow countrymen in general, and her cow o rk ers, in particular) when she entered into the contract of Ju ly 22, 2004; g. If the true nature of the employment had been made known to T racy, she would not have executed the contract, would not h a v e been sent to Iraq, would not have been subjected to the sev ere and repeated acts of sexual harassment by fellow e m p lo y e es , including a quid pro quo demand for sex by her H allib u rto n supervisor in Baghdad, and would not have su ffered the sexual assault set forth in this complaint. 62. As a direct and proximate result of the allegations contained herein,
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T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. C O U N T IX IN T E N T IO N A L INFLICTION OF EMOTIONAL DISTRESS 63. Tracy and Galen hereby incorporate all paragraphs of this Complaint

in to this Count, as if they were fully alleged herein, and further alleges as follows: 64. HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN &

R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR and SERVICE EMPLOYEES INTERNATIONAL, INC e ach acted (as set forth herein) intentionally and/or recklessly, in a manner which w a s extreme and outrageous under the circumstances, and which caused severe em o tio n al distress to Tracy and Galen Barker. 65. As a direct and proximate result of the allegations contained herein,

T racy and Galen have suffered the damages set forth more fully herein, all of w h ich are in excess of $100,000.00. P R O X IM A T E CAUSE 66. E ach and every, all and singular of the foregoing acts and omissions,

o n the part of Defendants, taken separately and/or collectively, jointly and/or

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s ev e r ally , constitute a direct and proximate cause of the injuries and damages set fo rth below. D A M A G E S AND REMEDIES 67. A s a direct and proximate result of the aforementioned abuse,

h a r as sm e n t and attacks on the part of these defendants, jointly and severally, Tracy B a rk e r was caused to suffer serious injuries. As a result of same, Tracy has su ffered the following damages: a. R easo n ab le medical care and expenses in the past. These ex p en ses were incurred by Tracy for the necessary care and tr ea tm e n t of the injuries resulting from the incident complained o f herein, and such charges are reasonable and were usual and cu sto m ary charges for such services; b. Reasonable and necessary medical care and expenses which w ill, in all reasonable probability, be incurred in the future. c. d. e. f. g. P h ysical pain and suffering in the past; M en tal anguish in the past; P h y s ic al pain and suffering in the future; M e n ta l anguish in the future; P h ysical impairment and disfigurement in the past;
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h.

P h ysical impairment and disfigurement which, in all reasonable p ro b ab ility, will be suffered in the future.

i. j.

L o ss of earnings in the past; L o ss of earning capacity which will be, in all probability, in c u r r e d in the future;

k. l. 68.

F ear of a future disease condition; C o s t of medical monitoring and prevention in the future.

A s a direct and proximate result of the abuse and attack on his wife,

G alen Barker was also injured. As a result of same, Galen has suffered the fo llo w in g damages: a. R easo n ab le medical care and expenses in the past. These ex p en ses were incurred by Tracy for the necessary care and tr ea tm e n t of the injuries resulting from the incident complained o f herein, and such charges are reasonable and were usual and cu sto m ary charges for such services; b. Reasonable and necessary medical care and expenses which w ill, in all reasonable probability, be incurred in the future. c. d. M en tal anguish in the past; M e n ta l anguish in the future;
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e. f.

L o ss of earnings in the past; L o ss of earning capacity which will, in all probability, be in c u r r e d in the future;

g. h.

L o ss of Consortium; Loss of the care, comfort, society, services and companionship o f his spouse, Tracy Barker;

i.

C o s t of medical monitoring and prevention in the future. G R O S S NEGLIGENC/EXEMPLARY DAMAGES

69.

T r ac y and Galen re-allege and incorporate each allegation contained

in Paragraphs hereinabove of this Petition as fully set forth herein. 70. Without waiving the foregoing, Tracy and Galen seek exemplary

d am ag e s pursuant to Texas Civil Practices and Remedies Code §41.003(3) and pursuant to the definition of "Gross Negligence" as provided in §41.001(11)(A) and (B ). Specifically, defendants, HALLIBURTON COMPANY d/b/a KBR

K E L L O G G , BROWN & ROOT, KELLOGG, BROWN & ROOT SERVICES, IN C ., KBR TECHNICAL SERVICES, INC., KBR, SERVICE EMPLOYEES IN T E R N A T IO N A L , INC., and ALI MOKHTARE, completely, recklessly, m alicio u sly, and/or with conscious or reckless indifference, ignored the probability and magnitude of the potential harm to others, including Tracy Barker, in creating
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the hostile, sexually charged work environment and living conditions for women in Iraq, and for its handling of her complaints. When viewed objectively from the stan d p o in t of HALLIBURTON COMPANY d/b/a KBR KELLOGG, BROWN & R O O T , KELLOGG, BROWN & ROOT SERVICES, INC., KBR TECHNICAL S E R V IC E S , INC., KBR, SERVICE EMPLOYEES INTERNATIONAL, INC., and A L I MOKHTARE at the time of their acts and omissions involved an extreme d eg ree of risk, considering the probability and magnitude of the potential harm to o th e r s, including Tracy Barker. Furthermore, each defendant named herein had actu al, subjective awareness of the risk involved, but nevertheless proceeded with co n scio u s indifferences to the rights, safety and welfare of others, including Tracy. 71. As a result of the gross neglect and legal malice of each of the named

d efen d an ts, Tracy and Galen seek an award of exemplary damages under TEX. L AB. CODE §408.001(b) and Article 16, Section 26 of the Texas Constitution. 72. Defendants knowingly, and with wanton disregard for the welfare of

T racy Barker, ignored her complaints, failed to investigate her reports of misconduct, and instead retaliated against her for having attempted to better her working and living conditions. In doing so, they placed Tracy at an extreme degree of risk of continued sexual harassment and sexual assault in the context of "boys will be boys," considering the probability and magnitude of the potential harm to her, which, when
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view ed objectively from the standpoint of the reasonable person was foreseeable at the time they ignored her complaints. 73. Defendants' negligent acts and/or omissions, individually and jointly,

constituted a conscious disregard of an extreme degree of risk, all of which led to the injuries and damages of Tracy and Galen Barker. 74. If the trier of fact finds the requisite degree of culpability required by

T e x a s law for an assessment of punitive or exemplary damages, Plaintiffs seek su ch an award as is right and just. 75. c o u r t. J U R Y DEMAND 76. P lain tiffs hereby invoke their right to trial by jury. P la in tiffs are also entitled to recover prejudgment interest and costs of

W H E R E F O R E , Plaintiffs pray that the Defendants be cited to appear and an sw er herein, and that, after a trial, they receive such monetary damages, both actu al and exemplary, and other relief as is sought herein and appropriate under the law and the facts. R esp ectfu lly submitted,

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/s/ L. Todd Kelly L . Todd Kelly T HE KELLY LAW FIRM, P.C. T ex as Bar No. 24035049 O n e Riverway, Suite 1150 H o u sto n , Texas 77056 T el. [phone] F ax . [phone] P a u l Waldner V ICKERY, WALDNER & MALLIA, L.L.C. O n e Riverway, Suite 1150 H o u sto n , Texas 77056 T el. [phone] F ax . [phone] & Stephanie M. Morris A TTORNEY AT LAW M e m b e r of D.C. and PA. Bars 1 6 6 0 L. Street, N.W., Suite 506 W ash in g to n , D.C. 20036 T el. [phone] F ax . [phone] A TTORNEYS FOR PLAINTIFF, TRACY BARKER

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C ERTIFICATE OF SERVICE I hereby certify that the following counsel of record were served with true and co rrect copies of the attached document on this 23 rd day of May, 2007: S h a d o w Sloan, Esq. V INSON & ELKINS, LLP F ir st City Tower 1 0 0 1 Fannin Street, Suite 2300 H o u sto n , Texas 77002-6760 /s/ L. Todd Kelly

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