UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS Austin Division

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PETRA UGARTE,

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PLAINTIFF,

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V.

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DOUBLETREE HOTEL CORPORATION, I

DOUBLETREE HOTEL SYSTEMS, INC., I

X DBA DOUBLETREE HOTEL and

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ANDREW SALDANA

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DEFENDANTS

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CIVIL ACTION NUMBER A 03 CA 596 SS

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

TO THE HONORABLE COURT:

PETRA UGARTE, PLAINTIFF, with leave of Court, makes, files and presents

Plaintiff s Seconded Amended Original Complaint.

1. This amendment is filed pursuant to Fed.R.Civ.P. lS(a) with leave of Court

granted by scheduling order made pursuant to Local Rule CV-16.

JURISDICTION

2. This Court has original jurisdiction over the subject matter of this suit pursuant to

28 U.S.C. § 1331 and 42 US.C. § 2000e-Sf(1).

3. This Court has supplemental jurisdiction over the subject matter pursuant to 28

US.C. § 1367(a).

VENUE

4. Venue of this suit is in the United States District Court for the Western District of

Texas pursuant to 28 US.c. §1391(b) and (c).

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PARTIES Plaintiff 5. Plaintiff Petra Ugarte ("Ugarte") is a resident of Austin, Travis County, Texas. Defendants 6. Defendant Doubletree Hotels Corporation ("Doubletree Hotels") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 7. Defendant Hilton Hotels Corporation ("Hilton") is a Delaware corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 8. Defendant Doubletree Hotel Systems, Inc. ("Doubletree Systems") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800

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Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made a general appearance. No additional service is required. 9. On information and belief there may be other legal entities, known to the named Defendants, which as a consequence of contractual and/or legal organizational relationships are vicariously liable to Plaintiff for all or part of her causes of action against named Defendants. Until such time as discovery has been completed and such Defendants are correctly identified, they are identified herein as X D/B/A Doubletree Hotel. Plaintiff believes it is the intention of the named Defendants who have heretofore appeared herein and made general appearance that they also appear and make general appearance for X D/B/A Doubletree Hotel Defendants, if such Defendants exist. Until such time as any X DIB/A Doubletree Hotel Defendants are correctly identified and it is determined that they have not heretofore appeared and made general appearance, no service is requested. 10. Defendant Andrew Saldana ("Saldana") is a resident of Austin, Travis County, Texas, wherein service of citation may be secured upon him at his place of residence which is 8505 Tyhurst, Austin, Texas 78749. Defendant Saldana has heretofore appeared and made his general appearance. No additional service is required.
GENERAL FACTS UNDERLYING SUIT 11. Ugarte is a citizen of Mexico and at all times material to her suit was an
undocumented worker in Texas. 12. Ugarte is a female and the sole support of six minor children.

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13. Defendants Doubletree Hotels, Doubletree Systems, Hilton and X D/B/A Doubletree Hotel, on information and belief and at all times material to this suit, through various legal organizational and contractual relationships own and operate Doubletree Guest Suites Austin located at 303 West 15th Street, Austin, Texas 78701 and as part of their legal relationships do business as Doubletree Hotel and Doubletree Guest Suites Austin. For purposes of convenience of identification, Defendants collectively shall be referred to as "Doubletree Defendants. "
14. At all times material to her suit Ugarte was employed by Doubletree Defendants as a housekeeper by the Doubletree Defendants at the Doubletree Guest Suites.
15. At all times material to her suit, Ugarte was an employee of Doubletree Defendants within the meaning of 42 U.S.C. §2000e(f) as well as Texas Labor Code § 21.002(7).
16. At all times material to her suit, the employment by Doubletree Defendants of Ugarte came within the context of 46 US.C. § 8704, 8 C.F.R. 274a,I(f),(h).
17. At all times material to her suit, Ugarte was an hourly employee. As an employee she participated in a group health care insurance plan the premiums of which were entirely paid by her through payroll deduction. The plan covered her and her children.
18. At all times material to Plaintiffs suit herein, Doubletree Defendants, collectively as well as individually, were persons within the meaning of 42 US.C. §2000e(a) and employers within the meaning of 42 US.C. §2000e(b).

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19. At all times material to Plaintiff's suit herein, Doubletree Defendants were employers within the meaning of 42 U.S.c. §2000e(b) and Texas Labor Code §21.002 (8)(A). Doubletree Defendants status as an employer extended through its agents and anyone acting directly or indirectly in their interests within the context of 52 Fed. Reg. 16219 (May 1, 1987) as amended and Texas Labor Code Section 21.002(8)(A)and (B).
20. At all times material to Plaintiff's suit, Saldana was an employee of Doubletree Defendants as well as Plaintiff's immediate supervisor.
21. Defendant Saldana was an agent of Doubletree Defendants and an "employer" of Ugarte within the context of Texas Labor Code Section 21.002(8)(A)and (b).
22. On information and belief, at all times material to Ugarte's suit, Doubletree Defendants engaged in the systematic employment and exploitation of female undocumented workers for the purpose of meeting their unskilled labor requirements and reducing their labor and related operating expenses associated with the ownership and management of Defendants' hotels, including Doubletree Guest Suites Austin, and other transient overnight facilities. Doubletree Defendants knowingly employed undocumented female workers, including Ugarte, utilizing their undocumented status as management and business tools integral to their overall business plans and otherwise in the pursuit of their profit motives. As part of their business plan, purpose, exploitation and scheme, Doubletree Defendants directly as well as indirectly solicited the employment of female undocumented workers. As part of the solicitation, Doubletree Defendants promoted, encouraged and assisted the undocumented workers through

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Doubletree Defendants' supervisory, management and human resources personnel to obtain and utilize false social security numbers for among other reasons to assist Doubletree Defendants to ostensibly comply with INA Section 274A(a)(1)(A), 8 US.c. §1324a. Doubletree Defendants, in the furtherance of their scheme, continued the employment of the undocumented workers until Doubletree Defendants determined that it was to their advantage to terminate the employment. Often, the basis for termination of employment by Doubletree Defendants was the rejection by the United States Government of a social security number on grounds of lack of authentication. 23. On information and belief, at all times material to her suit, Doubletree Defendants also utilized the undocumented status of female employees, including Ugarte, as a means for its supervisors and managers to exercise control and, among other things, minimize Doubletree Defendants exposure to legal liability for rights and benefits accorded both to documented workers. As part of Doubletree Defendants' scheme, they purportedly complied, although not legally, substantially or procedurally with the creation, establishment, maintenance, dissemination and implementation of Federal and State of Texas civil rights and anti-discrimination policies and programs. As part of Doubletree Defendants' efforts, they would from time to time publish certain documents and information to employees regarding their legal rights. However, the efforts were pro forma and accompanied by coercive acts and conduct to obtain the signatures of undocumented workers to forms purportedly signifying their understanding that their rights had been explained and they understood them. In fact, the substance

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and import of the fOmls were false. Moreover, Doubletree Defendants admonished the undocumented workers that they must sign the documents and fOmls and do nothing to offend or dissatisfy Doubletree Defendants at the risk of their jobs and deportation. 24. Alternatively, on infomlation and belief, Doubletree Defendants had constructive knowledge, i.e., knowledge that a reasonable person would infer from the known facts, that its supervisors and managerial personnel were soliciting, hiring and harboring undocumented workers; utilizing the undocumented workers' status as a means of discrimination, control and otherwise furtherance of the business purposes of Doubletree Defendants and keeping undocumented workers ignorant of their legal rights regarding discrimination and sexual harassment. The facts known to Doubletree Defendants and their supervisory and managerial personnel included without limitation:
(a) The 1-9 Employment Eligibility fOml had not been properly completed;, (b) The undocumented workers had no knowledge of the legal significance of
a social security number; (c) Direct knowledge from other employees. 25. On infomlation and belief, Doubletree Defendants acted with reckless disregard for the legal consequences of the acts and conducts of its employees, agents, supervisors and managerial personnel of soliciting, providing and introducing undocumented workers into Doubletree Defendants' work force and violations of anti-discrimination and sexual harassment laws of the United States and Texas.

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26. The acts and conduct of Doubletree Defendants indirectly or indirectly hiring or harboring undocumented workers constitute individual and continuing criminal offenses of8 U.S.C. §1323(a),(c), 1324(a)(I)(A)(iii), (iv),(d).
27. On or about 25 February 1996, Ugarte became an employee of Doubletree Defendants for whom she performed housekeeping services at Doubletree Guest Suites Austin, located at 303 West 15th Street, Austin, Travis County, Texas. Ugarte continued her employment without interruption until on or about 27 December 2001, at which time Ugarte terminated her employment as a direct and proximate cause of the acts and conduct of Saldana as well as Doubletree Defendants as hereinafter set forth.
28. On or about 20 August 2001, Ugarte reported a leg injury to her immediate supervisor, Defendant Saldana, and requested medical assistance. At Defendant Saldana's direction, Ugarte went to Defendant Saldana's office at which time, in the presence of another supervisor Defendant Saldana inappropriately and over the protests of Ugarte touched and felt Ugarte's leg and thigh. Defendant Saldana denied Ugarte's renewed request for medical assistance and Ugarte returned to work.
29. On or about 6 September 2001, Defendant Saldana accosted Ugarte in a room in which she was cleaning, sexually fondled her, while threatening her that he had the power as her supervisor to do what he chose with her, including satiating his carnal appetites. Defendant Saldana terminated his conduct after continuous reproach, rejection and objection by Ugarte.

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30. On or about 15 September 2001, Defendant Saldana carne to the room in which Ugarte was cleaning, fondled, sexually groped, physically accosted and attempted to remove Ugarte's clothing. Defendant Saldana, in the process of his conduct, physically threatened Ugarte and her children, threatened to fire Ugarte if she did not submit to his desire and informed Ugarte that no one would believe her if she revealed his conduct because he was her supervisor.
31. On or about 22 September 200 1, Defendant Saldana forcibly raped Ugarte in a room in which she was cleaning.
32. On or about 15 October 2001, Defendant Saldana again forcibly raped Ugarte in a room in which she was cleaning. Contemporaneous with the events, Defendant Saldana threatened physical harm to Ugarte and her son, threatened to fire Ugarte as well as to contact the Immigration and Naturalization Service and have Ugarte deported.
33. Ugarte complained to a person to whom she believed was the appropriate person designated by Doubletree Defendants to receive such a complaint regarding Defendant Saldana's conduct. Although unknown to Ugarte at this time, for purposes of identification, the person to whom Ugarte complained will be identified as a Human Resources ("HR") person within Doubletree Defendants' organization. Among other reasons, because of the fear of the physical reprisal of Defendant Saldana upon Ugarte's children, Ugarte's complaint to HR was limited to the improper touching by Defendant Saldana at the time that Ugarte sought medical attention for her leg injury. Additionally, Ugarte as a consequence of the inability of other undocumented workers to obtain remedies for improper conduct

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of supervisory personnel, understood that HR would in all reasonably probability ignore her complaints. Consistent with her belief, HR rejected her complaint with the statement that Defendant Saldana would not engage in improper conduct with female employees, suggested to Ugarte that her complaint was without substance and motivated for ulterior reasons and summarily dismissed Ugarte. 34. On information and belief, Doubletree Defendants failed and refused to reasonably investigate Ugarte's the complaint and otherwise to provide her with a reasonable remedy. 35. Following the summary dismissal of her complaint by Doubletree Defendants' HR person, Ugarte as consequence of Doubletree Defendants' failure to promulgate information and procedures for an aggrieved employee to make a complaint to alternate HR persons where such complaint and relief may not be reasonably made and obtain from the assigned HR person, Ugarte had no known recourse and out of financial necessity continued her employment under hostile work conditions. In effect, Doubletree Defendants denied Ugarte the rights accorded to her in law to be protected from employer discrimination, sexual harassment and hostile work environment. 36. As a consequence of Ugarte's complaint to Doubletree Defendants human resources, Defendant Saldana commenced a campaign of intimidation and retaliation against Plaintiff, which included, among other things, materially reducing her work schedule, resulting in material losses of wage income to Ugarte.

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37. Subsequent to Ugarte's initial complaint to HR, Defendant Saldana physically confronted Ugarte in the hall of Defendant Doubletree's facility. After Defendant Saldana separated from Ugarte and as a consequence of the commotion, Defendant Doubletree's HR person confronted Ugarte and directed her to the HR person's office. Ugarte intended to give in graphic description the full and complete details of Defendant Saldana's conduct, but before she could do so, the HR person refused to give her an opportunity to make her complaints, outright rejected any complaints and summarily dismissed her with an admonition that she should make no criticism of Defendant Saldana. As in the case of her initial complaint, Defendant Doubletree's HR person failed to make any reasonable inquiry or investigation regarding Ugarte's complaints.
38. On or about 23 December 2001, as a consequence of the hostile environment created by Defendant Saldana and the tangible adverse employment actions, with the express or otherwise tacit approval of Doubletree Defendants, Ugarte left the employment of Doubletree Defendants.
39. On or about April 2002, Doubletree Defendants formally terminated the employment of Ugarte on the basis that her social security number, given by her to Doubletree Defendants in 1996, could not be authenticated.
40. Subsequent to her termination, Ugarte's son as a consequence of cancer had to have his leg amputated. As a consequence of the loss of her health care insurance which would have paid for her son's medical expenses, Ugarte became personally liable for her son's past and future medical expenses.

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EXHAUSTION OF ADMINISTRATIVE REMEDIES 41. Plaintiff timely filed with the Texas Commission on Human Rights and the Equal
Employment Opportunity Commission ("EEOC") a charge of discrimination against Doubletree Defendants. Plaintiff received a Notice of Right to File a Civil Action from the EEOC and the Texas Commission on Human Rights within sixty (60) days of the filing of the Original Petition in the state court which suit was removed by Defendants to the United States District Court. A copy of the Notice of Right to File a Civil Action is attached hereto as Exhibit "A." VIOLATIONS OF TITLE VIII CIVL RIGHTS ACT OF 1964 AS AMENDED
COUNT!. Quid Pro Quo Sexual Harassment (Gennane to Doubletree Defendants) 42. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 43. Ugarte belongs to a protected group as provided in 42 U.S.C. §2000e-2. 44. Ugarte was subjected by her supervisor with Doubletree Defendants to unwelcome sexual harassment, sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte. 45. The sexual harassment was based on Ugarte's gender. 46. Defendant Saldana, in his capacity as Doubletree Defendants' supervisor over Ugarte victimized and discriminated against Ugarte predicated upon her female gender by:

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(a) Conditioning the continuation of Ugarte's employment upon Ugarte engaging in sexual activities with Defendant Saldana upon his demand;
(b) Conditioning Ugarte's regular and overtime employment hours upon Ugarte engaging in sexual activities with Defendant Saldana upon his demand;
(c) Raping Ugarte; (d) Assaulting Ugarte; (e) Committing batteries upon Ugarte; (f) Other misconduct directed against Ugarte predicated upon her female
gender. 47. The acts and conduct of Defendant Saldana was sufficiently pervasive so as to
alter the conditions of Ugarte's employment and create an abusive working environment. The acts and conduct of Defendant Saldana directly and proximately caused tangible adverse employment actions against Ugarte including without limitation the following: (a) materially reducing her regular and employment hours resulting in lost
wages; (b) physical injuries; (c) emotional injuries; (d) creating a sexually hostile employment environment, the consequence of
which caused Ugarte to terminate her employment; (e) the loss of Ugarte's healthcare insurance benefits.

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48. As a direct and proximate cause of the acts and conduct of Defendant Saldana, Ugarte suffered actual damages consisting of: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages.
49. Doubletree Defendants knew or should have known of the sexual harassment, hostile work environment and tangible adverse employment actions and failed to take prompt and reasonable remedial action.
50. As a direct and proximate cause of the sexual harassment, Ugarte was constructively discharged from her employment resulting her tenninating the employment on or about 21 December 2001. COUNT II Hostile Work Environment (Germane to Doubletree Defendants)
51. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 52. Ugarte belongs to a protected group as provided in 42 U.S.c. §2000e-2. 53. Ugarte was subjected to unwelcome sexual harassment, sexual advances, request
for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte.

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54. The sexual harassment was based upon Ugarte's gender. 55. The sexual harassment was sufficiently pervasive so as to alter the conditions of
Ugarte's employment and create an abusive working environment. 56. Doubletree Defendants knew or should have known of the harassment in question
and failed to take prompt and reasonable remedial action. 57. As a direct and proximate cause of the hostile sexual environment, Ugarte was
constructively discharged from her employment resulting in her terminating the employment on or about 21 December 2001. 58. As a consequence of the hostile sexual environment, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages.
COUNT III Discrimination (Germane to Doubletree Defendants) 59. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 60. Ugarte belongs to a protected group as provided in 42 U.S.C. §2000e-2.

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61. Doubletree Defendants intentionally discriminated against Ugarte because of her gender and national origin in violation of 42 U.S.C. §2000e-2.
62. Doubletree Defendants used the following discriminatory employment practices: (a) hiring undocumented workers, including Ugarte, with the intention of exploiting their undocumented worker status by paying them wages and providing benefits to a lesser degree than they would pay and provide to non-undocumented workers; (b) employing undocumented workers and ostensibly complying with the employer contribution requirements regarding social security and Medicare with the knowledge and the intent of discharging the undocumented worker at a time convenient to Doubletree Defendants with the right of refund of the employer contributions; (c) exploiting the status of undocumented workers, including Ugarte, in order to exercise control and authority over them.
63. As a consequence of the discrimination, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (t) other damages.

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COUNTry Retaliation (Gennane to Doubletree Defendants) 64. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 65. Doubletree Defendants through Defendant Saldana in his capacity as supervisor retaliated against Ugarte for the complaint by her regarding Defendant Saldana's sexual misconduct by: (a) Materially reducing her regular hours of employment; (b) materially reducing her overtime hours of employment; (c) implementing an maintaining hostile work conditions compelling Ugarte to tenninate her employment or otherwise constructively discharging Ugarte. 66. As a consequence of the retaliation, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional hann; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages.

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VIOLATIONS OF RACKETEER INFLUENCED AND CORRUPTION ORGANIZATION ACT ("RICO") COUNT V (Germane to All Defendants)
67. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 68. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants
engaged in an enterprise within the context of 18 U.S.c. §1961(4). 69. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants
engaged in a pattern of racketeering activity within the context of 18 U.S.C. §1961(1)and (5). More specifically, Doubletree Defendants intentionally or with reckless disregard for the law engaged in hiring and harboring undocumented workers and aliens, including Ugarte, in violation of 8 U.S.C. §1324a(1)(A) and (2). As part of its racketeering activities, Doubletree Defendants knowingly, or with reckless disregard, perpetrated document fraud upon the Internal Revenue Service, including without limitation, making payments and using false social security numbers in violation of26 U.S.C. §7206. 70. At all times material to Ugarte's Civil RICO claims, Ugarte engaged in the business of employment for gain and livelihood. 71. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants as part of their enterprise and in multiple conspiracies with one another, violated 18 U.S.C. §1962 in the foHowing particulars: (a) they received income derived, directly or indirectly, from a pattern of
racketeering activity in which they participated as a principal within the

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meaning of Section 2, Title 18, U.S.Code to use, or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise engaged in activities which affect, interstate or foreign commerce. (b) they acquired or maintained, directly or indirectly, an interest in or control of any enterprise which was engaged in, or the activities of which affect, interstate or foreign commerce; (c) by association with an enterprise, they engaged in activities which affect interstate or foreign commerce for the purpose of conducting or participating, directly or indirectly, in the conduct of such enterprises' affairs through a pattern of racketeering activity; (d) they conspired to violate the provisions of 18 U.S.C. §I962(a),(b) and (c). 72. As a consequence of the Civil RICO violations by Doubletree Defendants, Ugarte's business of providing housekeeping services for her gain and livelihood was damaged due to her diminished capacity to provide employment services. 73. As a direct and proximate cause of the Civil RICO violations by Doubletree Defendants, Ugarte sustained actual damages including without limitation: (a) loss of back pay; (b) loss of front pay; (c) liability for past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;

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(d) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;
(e) temporary diminished capacity to perform her services; and (f) other damages.
VIOLATIONS OF TEXAS LABOR CODES COUNT VI.
Violations of Texas Labor Code Section 2l.051(1) (Germane to Doubletree Defendants)
74. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 75. The acts and conduct of Doubletree Defendants violated Texas Labor Code
Section 21.051(1). 76. As a consequence of violations of Texas Labor Code Section 21.051(1), Ugarte
sustained actual damages including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future health care expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages.

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COUNT VII. Violations of Texas Labor Code Section 21.056
(Germane to Doubletree Defendants) 77. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 78. The acts and conduct of Doubletree Defendants violated Texas Labor Code
Section 21.056 in that Doubletree Defendants abetted, incited and coerced Defendant Saldana to engage in discriminatory practices against Ugarte. 79. As a direct and proximate cause of the violations of Texas Labor Code Section 21.056, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages.
COUNTVIIL Violations of Texas Labor Code Section 2l.051(1)
(Germane to All Defendants) 80. Ugarte incorporates by reference paragraphs 11 through 41 inclusive.

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81. The acts and conduct of Doubletree Defendants and Defendant Saldana jointly violate Texas Labor Code Section 2l.051(1).
82. As a direct and proximate cause of the violations of Texas Labor Code Section 21.051(1) by Defendants Doubletree and Defendant Saldana, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;; (f) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages. VIOLATIONS OF TEXAS TORT LAW COUNT IX Negligent Hiring and Retention (Germane to Doubletree Defendants)
83. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 84. Doubletree Defendants knew or reasonably should have known that at the time
they hired Defendant Saldana he was a convicted felon.

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85. Doubletree Defendants knew or reasonably should have known that during the period of time that Defendant Saldana was acting in a supervisory capacity over undocumented employees, including Ugarte, he sexually exploited the undocumented workers by threatening to discharge and obtain their deportation.
86. Doubletree Defendants negligently employed and/or retained the employment of Defendant Saldana and facilitated his sexual misconduct with female undocumented workers, including Ugarte.
87. As a direct and proximate cause of Doubletree Defendants' negligence, Ugarte sustained actual damages consisting of: (a) Physical injuries, pain and suffering; (b) Emotional harm; (c) Past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (d) Future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants. COUNT X Assault and Battery (Germane to Defendant Saldana)
88. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 89. Defendant Saldana physically attacked and raped Ugarte. 90. As a consequence of the physical attacks and rapes by Defendant Saldana, Ugarte
suffered actual damages consisting of: (a) Physical injuries, pain and suffering;

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(b) Emotional hann; (c) Past healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants; (d) Future healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants. COUNT XI
Intentional Infliction of Emotional Injury (Gennane to Defendant Saldana)
91. Ugarte incorporates by reference paragraphs 11 through 41 inclusive. 92. The acts and conduct of Defendant Saldana constitute the intentional infliction of
emotional hann upon Ugarte. 93. As a consequence of the intentional infliction of emotional hann by upon Ugarte
be Defendant Saldana, Ugarte sustained actual damages, including without limitation the following: (a) Physical injuries, pain and suffering; (b) Past emotional suffering; (c) Future emotional suffering; (d) Past medical expenses, which otherwise would have been covered by the
healthcare insurance provided by Doubletree Defendants; (e) Future medical expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants; and (f) Other actual damages.

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DAMAGES Compensatory Damages
(Under Federal Law) 94. As a consequence of the acts and conduct of Doubletree Defendants and
Defendant Saldana, Ugarte has sustained actual damages including without limitation the following: (a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00; (f) Future liability for son's healthcare expenses, in excess of$300,000.00; (g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and
jury; (i) Past emotional suffering, as may reasonably be determined by the court
and jury;
m Future emotional suffering, as may reasonably be determined by the court
and jury.

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Compensatory Damages (Under Texas Labor Code) 95. As a consequence of the acts and conduct of Doubletree Defendants, Ugarte has sustained actual damages within the context of Texas Labor Code Section 21.2585(1) including without limitation the following: (a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00; (f) Future liability for son's healthcare expenses, in excess of $300,000.00; (g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and jury; (i) Past emotional suffering, as may reasonably be determined by the court and jury; G) Future emotional suffering, as may reasonably be determined by the court and jury.
Statutory Damages Treble Damages Pursuant to 18 U.S.C. §1964(c) 96. In addition to all other relief to which Ugarte is entitled, Ugarte pursuant to 18 U.S.C. §1964(c) is entitled to treble damages for the Civil RlCO violations of Doubletree Defendants.

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

Page 26 0(30

Punitive Damages Under Federal Law (Gennane to Doubletree Defendants) 97. Doubletree Defendants' acts and conduct is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence. 98. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages reasonable in relationship to the actual damages and considering: (a) the actual hann sustained by Ugarte; (b) the indifference to or reckless disregard by Doubletree Defendants of Ugarte's health and safety; (c) the repetitiveness of the acts and conduct which directly and proximately caused the actual damages of Ugarte; (d) the hann occasioned to Ugarte as a consequence of the exploitation by Doubletree Defendants of Ugarte's undocumented worker status; 99. other relevant considerations in accordance with law. Punitive Damages Under Texas Labor Code (Gennane to All Defendants) 100. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages against Doubletree Defendants and Defendant Saldana pursuant to Texas Labor Code Section 21.2585(a)(2).

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

Page 27 of30

Punitive Damages Under Tex.Civ.Prac.& Rem. Code §41.003(2)
(Germane to Defendant Saldana) 98. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to
punitive damages against Defendant Saldana pursuant to Tex.Civ.Prac.& Rem. Code §41.003.
OTHER RELIEF Prejudgment Interest (Germane to All Defendants) 101. In addition to all other relief to which Ugarte is entitled, she is entitled to prejudgment interest upon her actual damages as well as future damages in accordance with law.
Attorneys Fees (Germane to Doubletree Defendants) 102. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to attorney's fees as follows: (a) Under 42 U.S.C. §2000e-5(K); (b) Under 18 U.S.C. §1964(c); (c) Under Texas Labor Code Section 21.259, including reasonable expert fees. 103. Ugarte's right of recovery for attorney's fees extend to trial on the merits as well as any appeal or ancillary proceeding which may ensue therefrom, subject to proper remittitur.

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

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WHEREFORE PREMISES CONSIDERED, Plaintiff Petra Ugarte prays for judgment in accordance with her Second Amended Original Complaint including actual damages, punitive damages, prejudgment interest, attorney's fees, costs of court and such other and further relief to which she may be entitled at law or in equity.
Respectfully submitted,

~~L~

Dale OSSIP

n

SBN: 10700000

THE JOHNSON FIRM, P.L.L.c. 609 Castle Ridge Road, Suite 318 Austin, Texas 78746

ATTORNEY IN CHARGE

Telephone: 512-328-7764 Telecopier: 512-328-0347
FLOREY, KEEL & NASSOUR, LLP 1108 Lavaca, Suite 400 Austin, Texas 78746

Jason Nassour, Esq. SBN: 24003713

Telephone: 512-479-8600 Telecopier: 512-479-6035

Richard Patrick Fagerberg SBN: 24007170

LAW OFFICES OF RICHARD PATRICK FAGERBERG 507 West 10th Street
Austin, Texas 78701

Telephone : 512-480-3189 Telecopier: 512-480-0767

ATTORNEYS FOR PLAINTIFF

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

Page 29 0(30

CERTIFICATE OF SERVICE

:!l the

~

day

Pursuant November

to Fed. R. Civ. P. 5 a true and 2003 served upon each of the

correct parties

copy of the foregoing document was by first class mail, postage prepaid,

on as

follows:

Ronald M. Gaswirth, Esq. Celeste Y. Winford, Esq. Gardere Wynne Sewell, LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201

ATTORNEYS FOR DEFENDANTS DOUBLETREE HOTEL CORPORATION. DOUBLETREE HOTEL SYSTEMS, INC. HILTON HOTELS CORPORATION and X dJb/a DOUBLETREE HOTEL

Connie Cornell, Esq. Brett J. Strand, Esq. Cornell Smith, LLP 1221 S. Mopac Expy., Suite 330 Austin, Texas 78746
ATTORNEYS FOR DEFENDANT ANDREW SALDANA
BY FIRST CLASS MAIL

'1)Gh~~
Dale Ossip J n

PLAINTIFF'S SECOND AMENDED ORIGINAL COMPLAINT

Page 30

r

63,(1, I 'WY 290 East, Suite 250 -\ustin, TX 78723 P. O. Box 13006 Austin, TX 78711-3006 www.tchr.state.tx.us

(512) 437-3450 (512) 437-3478 (888) 452-4778 Toll Free (512) 371-7473 TIY
(800) 735-2989 Texas Relay

TEXAS COMMISSION ON HUMAN RIGHTS

August 18, 2003

NOTICE OF RIGHT TO FILE A CIVIL ACTION

Jason R. Nassour, Arty FLOREY, KEEL, & NASSOUR, LLP 704 WEST 9TH STREET AUSTIN, TX 78701

Re: Petra Ugarte v. DOUBLETREE HOTEL EEOC Complaint #36AA200382

,.

TCHR/Local Commission Complaint #

Pursuant to Sections 21.252 and 21.254 of the Texas Labor Code, and Chapter 327, Section 327.7 of the Commission's Rules, this notice is to advise you of your right to bring 'a private civil action in state court in the above-referenced case. PLEASE BE ADVISED THAT YOU HAVE SIXTY (60) DAYS FROM THE RECEIPT OF THIS NOTICE TO FILE THIS CIVIL ACTION. If the above-referenced case was processed by the United States Equal Employment Opportunity Commission or another agency, you should also notify that agency as to your intention to file a civil action.

If your case has been successfully resolved by the U. S. Equal Employment Opportunity Commission or another agency through a voluntary settlement or conciliation agreement, you may be prohibited by the terms of such an agreement from filing a private civil action in state court pursuant to the Texas Commission on Human Rights Act, as amended.

The United States Supreme Court has held in Kremer v. Chemical Constnlction Corporq~ion, 456 U.S. 461 (1982), that a federal district court must generally dismiss a Title VII action involving the same parties and raising the same issues as those raised in a prior state court action under Chapter 21 of the Texas Labor Code. Therefore, filing a lawsuit in state court based on the issuance of this notice of right-ta-sue may prevent you from filing a lawsuit in federal court based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e - et seq.

VSiWnce.r,eJly.;,

~
1

Vickie Covington, S R

Employment Investigations Manager

Copy to:

RETAIN ENVELOPE TO VERIFY DATE RECEIVED

DOUBLETREE HOTEL 303 W. 15TH STREET AUSTIN, TX 78701

CERT-C-NC02(619Z)

"Texas Commission on Human Rights is an Equal Opportunity Employer"
EXHIBIT "A"

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS Austin Division

FILED
DEC 1 1 2003

PETRA UGARTE,

I

I

PLAINTIFF,

I

CLERK, u.s. DIS1BJ::;r COIIRT
B~ESTERI)L.lJ!115E: ,S
D;::PUTYCCERK

I

V.

I

I
DOUBLETREE HOTEL CORPORATION, I

DOUBLETREE HOTEL SYSTEMS, INC., I

X DBA DOUBLETREE HOTEL and

I

ANDREW SALDANA

I

CIVIL ACTION NUMBER A 03 CA 596 SS

I

DEFENDANTS

I

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

TO THE HONORABLE COURT:

PETRA UGARTE, PLAINTIFF, with leave of Court, makes, files and presents

Plaintiff's Third Amended Original Complaint.

1. This amendment is filed pursuant to Fed.R.Civ.P. 15(a) with leave of Court

granted by scheduling order made pursuant to Local Rule CV -16.

JURISDICTION

2. This Court has original jurisdiction over the subject matter of this suit pursuant to

18 U.S.c. § 1964(c), 28 U.S.c. § 1331, and 42 U.S.c. § 2000e-5f(1).

3. This Court has supplemental jurisdiction over the subject matter pursuant to 28

U.S.C. § 1367(a).

VENUE

4. Venue of this suit is in the United States District Court for the Western District of

Texas pursuant to 28 U.S.c. §1391 (b) and (c).

PARTIES Plaintiff 5. Plaintiff Petra Ugarte ("Ugarte") is a resident of Austin, Travis County, Texas. Defendants 6. Defendant Doubletree Hotels Corporation ("Doubletree Hotels") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 7. Defendant Hilton Hotels Corporation ("Hilton") is a Delaware corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 8. Defendant Doubletree Hotel Systems, Inc. ("Doubletree Systems") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made a general appearance. No additional service is required. 9. Defendant DT Management, Inc. ("DT Management") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b!a CSC-Layers Incorporating Service Company with its Registered Office being located at 701 Brazos Street, Suite 1050, Austin, Texas 78701. 10. Defendant Doubletree Management Company is a business entity whose form of business is unknown. On information and belief, Defendant operates or has operated within the State of Texas without first acquiring a Certificate of Authority or otherwise complying with the laws of the State of Texas. Its last known business address is 755 Crossover Lane, Memphis, Tennessee, 381174900. 11. On information and belief there may be other legal entities, known to the named Defendants, which as a consequence of contractual andlor legal organizational relationships are vicariously liable to Plaintiff for all or part of her causes of action against named Defendants. Until such time as discovery has been completed and such Defendants are correctly identified, they are identified herein as X D!B!A Doubletree Hotel. Plaintiff believes it is the intention of the named Defendants who have heretofore appeared herein and made general appearance that they also appear and make general appearance for X DIB!A Doubletree Hotel Defendants, if such Defendants exist. Until such time as any X D!B!A Doubletree

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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Hotel Defendants are correctly identified and it is determined that they have not heretofore appeared and made general appearance, no service is requested. 12. Defendant Andrew Saldana ("Saldana") is a resident of Austin, Travis County, Texas, wherein service of citation may be secured upon him at his place of residence which is 8505 Tyhurst, Austin, Texas 78749. Defendant Saldana has heretofore appeared and made his general appearance. No additional service is required.
GENERAL FACTS UNDERLYING SUIT 13. Ugarte is a citizen of Mexico and at all times material to her suit was an
undocumented worker in Texas. 14. Ugarte is a female and the sole support of six minor children. 15. Defendants Doubletree Hotels, Doubletree Systems, Hilton, DT Management,
Doubletree Management and X D/BIA Doubletree Hotel, on information and belief and at all times material to this suit, through various legal organizational and contractual relationships own and operate Doubletree Guest Suites Austin located at 303 West 15th Street, Austin, Texas 78701 and as part of their legal relationships do business as Doubletree Hotel and Doubletree Guest Suites Austin. For purposes of convenience of identification, Defendants collectively shall be referred to as "Doubletree Defendants." 16. At all times material to her suit Ugarte was employed by Doubletree Defendants as a housekeeper by the Doubletree Defendants at the Doubletree Guest Suites.

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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17. At all times material to Plaintiffs suit herein, Doubletree Defendants, collectively as well as individually, were persons within the meanings of 29 U.S.C. §203(a) and 42 U.S.C. §2000e(a).
18. At all times material to her suit, Ugarte was an employee of Doubletree Defendants within the meanings of 29 U.S.C. §203(e)(I); 42 U.S.C. §2000e(f) and Texas Labor Code § 21.002(7).
19. At all times material to Plaintiffs suit herein, Doubletree Defendants collectively as well as individually, were employers of Ugarte within the meanings of 29 U.S.c. §203(d), 42 U.S.C. § 2000e(b) and Texas Labor Code §21.002(8)(A).
20. At all times material to her suit, Ugarte was an hourly employee. As an employee she participated in a group health care insurance plan the premiums of which were entirely paid by her through payroll deduction. The plan covered her and her children.
2l. Doubletree Defendants' status as an employer extended through its agents and anyone acting directly or indirectly in their interests within the context of 29 CFR §784.7-8 and Texas Labor Code § 21.002(8)(A)and (B).
22. At all times material to Plaintiffs suit, Saldana was an employee of Doubletree Defendants as well as Plaintiff s immediate supervisor.
23. Defendant Saldana was an agent of Doubletree Defendants and an "employer" of Ugarte within the context of Texas Labor Code § 21.002(8)(A)and (B).
24. On information and belief, at all times material to Ugarte's suit, Doubletree Defendants engaged in the systematic employment and exploitation of female

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

Page 50f32

undocumented workers for the purpose of meeting their unskilled labor requirements and reducing their labor and related operating expenses associated with the ownership and management of Defendants' hotels, including Doubletree Guest Suites Austin, and other transient overnight facilities. Doubletree Defendants knowingly employed undocumented female workers, including Ugarte, utilizing their undocumented status as management and business tools integral to their overall business plans and otherwise in the pursuit of their profit motives. As part of their business plan, purpose, exploitation and scheme, Doubletree Defendants directly as well as indirectly solicited the employment of female undocumented workers. As part of the solicitation, Doubletree Defendants promoted, encouraged and assisted the undocumented workers through Doubletree Defendants' supervisory, management and human resources personnel to obtain and utilize false social security numbers for among other reasons to assist Doubletree Defendants to ostensibly comply with INA Section 274A(a)(l )(A), 8 U.S.C. §1324a. Doubletree Defendants, in the furtherance of their scheme, continued the employment of the undocumented workers until Doubletree Defendants determined that it was to their advantage to terminate the employment. Often, the basis for termination of employment by Doubletree Defendants was the rejection by the United States Government of a social security number on grounds of lack of authentication. 25. On information and belief, at all times material to her suit, Doubletree Defendants also utilized the undocumented status of female employees, including Ugarte, as a means for its supervisors and managers to exercise control and, among other

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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things, minimize Doubletree Defendants exposure to legal liability for rights and benefits accorded both to documented workers. As part of Doubletree Defendants' scheme, they purportedly complied, although not legally, substantially or procedurally with the creation, establishment, maintenance, dissemination and implementation of Federal and State of Texas civil rights and anti-discrimination policies and programs. As part of Doubletree Defendants' efforts, they would from time to time publish certain documents and information to employees regarding their legal rights. However, the efforts were pro forma and accompanied by coercive acts and conduct to obtain the signatures of undocumented workers to forms purportedly signifying their understanding that their rights had been explained and they understood them. In fact, the substance and import of the forms were false. Moreover, Doubletree Defendants admonished the undocumented workers that they must sign the documents and forms and do nothing to offend or dissatisfy Doubletree Defendants at the risk of their jobs and deportation. 26. Alternatively, on information and belief, Doubletree Defendants had constructive knowledge, i.e., knowledge that a reasonable person would infer from the known facts, that its supervisors and managerial personnel were soliciting, hiring and harboring undocumented workers; utilizing the undocumented workers' status as a means of discrimination, control and otherwise furtherance of the business purposes of Doubletree Defendants and keeping undocumented workers ignorant of their legal rights regarding discrimination and sexual harassment. The facts

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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known to Doubletree Defendants and their supervisory and managerial personnel included without limitation:
(a) The I-9 Employment Eligibility form had not been properly completed;, (b) The undocumented workers had no knowledge of the legal significance of
a social security number; (c) Direct knowledge from other employees. 27. On information and belief, Doubletree Defendants acted with reckless disregard for the legal consequences of the acts and conducts of its employees, agents, supervisors and managerial personnel of soliciting, providing and introducing undocumented workers into Doubletree Defendants' work force and violations of anti-discrimination and sexual harassment laws of the United States and Texas. 28. The acts and conduct of Doubletree Defendants indirectly or indirectly hiring or harboring undocumented workers constitute individual and continuing criminal offenses of 8 U.S.C. §1323(a),(c), 1324(a)(1 )(A)(iii), (iv),(d). 29. On or about 25 February 1996, Ugarte became an employee of Doubletree Defendants for whom she performed housekeeping services at Doubletree Guest Suites Austin, located at 303 West 15th Street, Austin, Travis County, Texas. Ugarte continued her employment without interruption until on or about 27 December 2001, at which time Ugarte terminated her employment as a direct and proximate cause of the acts and conduct of Saldana as well as Doubletree Defendants as hereinafter set forth. 30. On or about 20 August 2001, Ugarte reported a leg injury to her immediate supervisor, Defendant Saldana, and requested medical assistance. At Defendant

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

Page 8of32

Saldana's direction, Ugarte went to Defendant Saldana's office at which time, in the presence of another supervisor Defendant Saldana inappropriately and over the protests of Ugarte touched and felt Ugarte's leg and thigh. Defendant Saldana denied Ugarte's renewed request for medical assistance and Ugarte returned to work. 31. On or about 6 September 2001, Defendant Saldana accosted Ugarte in a room in which she was cleaning, sexually fondled her, while threatening her that he had the power as her supervisor to do what he chose with her, including satiating his carnal appetites. Defendant Saldana terminated his conduct after continuous reproach, rejection and objection by Ugarte. 32. On or about 15 September 2001, Defendant Saldana came to the room in which Ugarte was cleaning, fondled, sexually groped, physically accosted and attempted to remove Ugarte's clothing. Defendant Saldana, in the process of his conduct, physically threatened Ugarte and her children, threatened to fire Ugarte if she did not submit to his desire and informed Ugarte that no one would believe her if she revealed his conduct because he was her supervisor. 33. On or about 22 September 2001, Defendant Saldana forcibly raped Ugarte in a room in which she was cleaning. 34. On or about 15 October 2001, Defendant Saldana again forcibly raped Ugarte in a room in which she was cleaning. Contemporaneous with the events, Defendant Saldana threatened physical harm to Ugarte and her son, threatened to fire Ugarte as well as to contact the Immigration and Naturalization Service and have Ugarte deported.

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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35. Ugarte complained to a person to whom she believed was the appropriate person designated by Doubletree Defendants to receive such a complaint regarding Defendant Saldana's conduct. Although unknown to Ugarte at this time, for purposes of identification, the person to whom Ugarte complained will be identified as a Human Resources ("HR") person within Doubletree Defendants' organization. Among other reasons, because of the fear of the physical reprisal of Defendant Saldana upon Ugarte's children, Ugarte's complaint to HR was limited to the improper touching by Defendant Saldana at the time that Ugarte sought medical attention for her leg injury. Additionally, Ugarte as a consequence of the inability of other undocumented workers to obtain remedies for improper conduct of supervisory personnel, understood that HR would in all reasonably probability ignore her complaints. Consistent with her belief, HR rejected her complaint with the statement that Defendant Saldana would not engage in improper conduct with female employees, suggested to Ugarte that her complaint was without substance and motivated for ulterior reasons and summarily dismissed Ugarte.
36. On information and belief, Doubletree Defendants failed and refused to reasonably investigate Ugarte's the complaint and otherwise to provide her with a reasonable remedy.
37. Following the summary dismissal of her complaint by Doubletree Defendants' HR person, Ugarte as consequence of Doubletree Defendants' failure to promulgate information and procedures for an aggrieved employee to make a complaint to alternate HR persons where such complaint and relief may not be reasonably made and obtain from the assigned HR person, Ugarte had no known

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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recourse and out of financial necessity continued her employment under hostile work conditions. In effect, Doubletree Defendants denied Ugarte the rights accorded to her in law to be protected from employer discrimination, sexual harassment and hostile work environment. 38. As a consequence of Ugarte's complaint to Doubletree Defendants human resources, Defendant Saldana commenced a campaign of intimidation and retaliation against Plaintiff, which included, among other things, materially reducing her work schedule, resulting in material losses of wage income to Ugarte. 39. Subsequent to Ugarte's initial complaint to HR, Defendant Saldana physically confronted Ugarte in the hall of Defendant Doubletree's facility. After Defendant Saldana separated from Ugarte and as a consequence of the commotion, Defendant Doubletree's HR person confronted Ugarte and directed her to the HR person's office. Ugarte intended to give in graphic description the full and complete details of Defendant Saldana's conduct, but before she could do so, the HR person refused to give her an opportunity to make her complaints, outright rejected any complaints and summarily dismissed her with an admonition that she should make no criticism of Defendant Saldana. As in the case of her initial complaint, Defendant Doubletree's HR person failed to make any reasonable inquiry or investigation regarding Ugarte's complaints. 40. On or about 23 December 2001, as a consequence of the hostile environment created by Defendant Saldana and the tangible adverse employment actions, with

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

Page 11 of32

the express or otherwise tacit approval of Doubletree Defendants, Ugarte left the employment of Doubletree Defendants. 4l. On or about April 2002, Doubletree Defendants formally terminated the employment of Ugarte on the basis that her social security number, given by her to Doubletree Defendants in 1996, could not be authenticated. 42. Subsequent to her termination, Ugarte's son as a consequence of cancer had to have his leg amputated. As a consequence of the loss of her health care insurance which would have paid for her son's medical expenses, Ugarte became personally liable for her son's past and future medical expenses.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 43. Plaintiff timely filed with the Texas Commission on Human Rights and the Equal
Employment Opportunity Commission ("EEOC") a charge of discrimination against Doubletree Defendants. Plaintiff received a Notice of Right to File a Civil Action from the EEOC and the Texas Commission on Human Rights within sixty (60) days of the filing of the Original Petition in the state court which suit was removed by Defendants to the United States District Court. A copy of the Notice of Right to File a Civil Action is attached hereto as Exhibit "A." VIOLATIONS OF TITLE VIn CIVL RIGHTS ACT OF 1964 AS AMENDED
COUNT!. Quid Pro Quo Sexual Harassment (Germane to Doubletree Defendants) 44. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 45. Ugarte belongs to a protected group as provided in 42 U.S.C. §2000e-2.

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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46. Ugarte was subjected by her supervIsor with Doubletree Defendants to unwelcome sexual harassment, sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte.
47. The sexual harassment was based on Ugarte's gender. 48. Defendant Saldana, in his capacity as Doubletree Defendants' supervIsor over
Ugarte victimized and discriminated against Ugarte predicated upon her female gender by: (a) Conditioning the continuation of Ugarte's employment upon Ugarte
engaging in sexual activities with Defendant Saldana upon his demand; (b) Conditioning Ugarte's regular and overtime employment hours upon
Ugarte engaging in sexual activities with Defendant Saldana upon his demand; (c) Raping Ugarte; (d) Assaulting Ugarte; (e) Committing batteries upon Ugarte; (f) Other misconduct directed against Ugarte predicated upon her female gender. 49. The acts and conduct of Defendant Saldana was sufficiently pervasive so as to alter the conditions of Ugarte's employment and create an abusive working environment. The acts and conduct of Defendant Saldana directly and proximately caused tangible adverse employment actions against Ugarte including without limitation the following:

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

Page 13

(a) materially reducing her regular and employment hours resulting in lost wages;
(b) physical injuries; (c) emotional injuries; (d) creating a sexually hostile employment environment, the consequence of
which caused Ugarte to terminate her employment; (e) the loss of Ugarte's healthcare insurance benefits. 50. As a direct and proximate cause of the acts and conduct of Defendant Saldana, Ugarte suffered actual damages consisting of: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages. 51. Doubletree Defendants knew or should have known of the sexual harassment, hostile work environment and tangible adverse employment actions and failed to take prompt and reasonable remedial action. 52. As a direct and proximate cause of the sexual harassment, Ugarte was constructively discharged from her employment resulting her terminating the employment on or about 21 December 2001.

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COUNT II Hostile Work Environment (Germane to Doubletree Defendants) 53. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 54. Ugarte belongs to a protected group as provided in 42 US.c. §2000e-2. 55. Ugarte was subjected to unwelcome sexual harassment, sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte. 56. The sexual harassment was based upon Ugarte's gender. 57. The sexual harassment was sufficiently pervasive so as to alter the conditions of Ugarte's employment and create an abusive working environment. 58. Doubletree Defendants knew or should have known of the harassment in question and failed to take prompt and reasonable remedial action. 59. As a direct and proximate cause of the hostile sexual environment, Ugarte was constructively discharged from her employment resulting in her terminating the employment on or about 21 December 2001. 60. As a consequence of the hostile sexual environment, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm;

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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(e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;
(f) other damages. COUNT III
Discrimination (Germane to Doubletree Defendants) 61. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 62. Ugarte belongs to a protected group as provided in 42 U.S.C. §2000e-2. 63. Doubletree Defendants intentionally discriminated against Ugarte because of her gender and national origin in violation of 42 U.S.C. §2000e-2. 64. Doubletree Defendants used the following discriminatory employment practices: (a) hiring undocumented workers, including Ugarte, with the intention of exploiting their undocumented worker status by paying them wages and providing benefits to a lesser degree than they would pay and provide to non-undocumented workers; (b) employing undocumented workers and ostensibly complying with the employer contribution requirements regarding social security and Medicare with the knowledge and the intent of discharging the undocumented worker at a time convenient to Doubletree Defendants with the right of refund of the employer contributions; (c) exploiting the status of undocumented workers, including Ugarte, in order to exercise control and authority over them.

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65. As a consequence of the discrimination, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages. COUNTry Retaliation (Germane to Doubletree Defendants)
66. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 67. Doubletree Defendants through Defendant Saldana in his capacity as supervisor
retaliated against Ugarte for the complaint by her regarding Defendant Saldana's sexual misconduct by: (a) Materially reducing her regular hours of employment; (b) materially reducing her overtime hours of employment; (c) implementing an maintaining hostile work conditions compelling Ugarte
to terminate her employment or otherwise constructively discharging Ugarte. 68. As a consequence of the retaliation, Ugarte suffered tangible adverse employment actions including:

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

Page 17 of32

(a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages. CONSPIRACY TO VIOLATE CIVIL RIGHTS UNDER 42 U.S.c. §1985(3)
COUNT V (Germane to Doubletree Defendants) 69. Ugarte incorporates by reference paragraphs 11 - 43 inclusive. 70. By their actions described above, Doubletree Defendants conspired and acted with animus towards Ugarte as an undocumented worker and documented workers with the purpose of hindering and preventing Federal and state officials from performing their affirmative obligations to Ugarte, including but not limited to the obligations of these officials to ensure that all employees in the United States are paid Federal and applicable state statutory minimum wages and overtime, and that they enjoy minimum benefits such as worker's compensation protection and social security coverage. 71. Ugarte has been injured in her person and property and has been deprived of rights and privileges guaranteed by the laws and the Constitution of the United States.

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72. The acts and conduct of Doubletree Defendants constitute a conspiracy to violate Ugarte's civil rights under 42 US.C. §1985(3).
73. As a consequence of Doubletree Defendants' violations of 42 US.C. §1985(3), Ugarte has sustained compensatory damages in an amount to be determined in the course of discovery and as may be proven at trial on the merits. VIOLAnONS OF RACKETEER INFLUENCED AND CORRUPTION ORGANIZAnON ACT ("RICO") COUNT VI (Germane to All Defendants)
74. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 75. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants
engaged in an enterprise within the context of 18 U.S.C. §1961(4). 76. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants
engaged in a pattern of racketeering activity within the context of 18 US.C. §1961(1)and (5). More specifically, Doubletree Defendants intentionally or with reckless disregard for the law engaged in hiring and harboring undocumented workers and aliens, including Ugarte, in violation of 8 US.C. §1324a(1 )(A) and (2). As part of its racketeering activities, Doubletree Defendants knowingly, or with reckless disregard, perpetrated document fraud upon the Internal Revenue Service, including without limitation, making payments and using false social security numbers in violation of 26 US.c. §7206. 77. At all times material to Ugarte's Civil RICO claims, Ugarte engaged in the business of employment for gain and livelihood.

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78. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants as part of their enterprise and in multiple conspiracies with one another, violated 18 U.S.C. §1962 in the following particulars: (a) they received income derived, directly or indirectly, from a pattern of racketeering activity in which they participated as a principal within the meaning of Section 2, Title 18, U.S. Code to use, or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise engaged in activities which affect, interstate or foreign commerce. (b) they acquired or maintained, directly or indirectly, an interest in or control of any enterprise which was engaged in, or the activities of which affect, interstate or foreign commerce; (c) by association with an enterprise, they engaged in activities which affect interstate or foreign commerce for the purpose of conducting or participating, directly or indirectly, in the conduct of such enterprises' affairs through a pattern of racketeering activity; (d) they conspired to violate the provisions of 18 U.S.C. §1962(a),(b) and (c).
79. As a consequence of the Civil RICO violations by Doubletree Defendants, Ugarte's business of providing housekeeping services for her gain and livelihood was damaged due to her diminished capacity to provide employment services.
80. As a direct and proximate cause of the Civil RICO violations by Doubletree Defendants, Ugarte sustained actual damages including without limitation:

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(a) loss of back pay; (b) loss of front pay; (c) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (d) liability for future healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (e) temporary diminished capacity to perform her services; and (f) other damages.
CONSPIRACY TO VIOLATE FAIR LABOR STANDARDS ACT COUNT VII.
Fair Labor Standards Act (Germane to Doubletree Defendants) 81. Ugarte incorporates by reference paragraphs 11- 43 inclusive. 82. Section 6 and 7 of the Fair Labor Standards Act, 29 U.S.C. §§206 and 207, establish the right of all persons who are "suffered or permitted to work" to be paid a minimum wage for all hours worked and overtime pay at one and one-half times the persons regular rate for all hours worked in excess of forty (40) hours per week. Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. §216(b), entitle such persons to recover all unpaid wages plus interest, an equivalent amount as liquidated damages and reasonable attorney's fees and costs. 83. At all times relevant to this action Defendants, and each of them, failed and refused to pay Plaintiff's minimum wage for all hours worked and the overtime

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premiums required by the Fair Labor Standards Act, to Ugarte's damage in amounts to be proven at trial. 84. Ugarte consents to be a party to this action pursuant to Fair Labor Standards Act 29 U.S.C. §256. 85. Doubletree Defendants' failure to provide compensation for all hours worked by Ugarte with the knowledge, consent, and expectation of Doubletree Defendants supervisors and other managing agents constitutes a deliberate and willful violation of the Fair Labor Standards Act. 86. Ugarte is an "employee" as defined in the Fair Labor Standards Act, 29 U.S.c. §203(e)(I). 87. Doubletree Defendants regardless of a technical legal relationship between them and Ugarte are "employers" as defined in the Fair Labor Standards Act, 29 U.S.c. §203(d) and 29 U.S.C. §203(g). 88. As Ugarte's joint employers, under common law and statutory definitions, Doubletree Defendants are jointly and severally liable for Ugarte's back pay, liquidated damages, and other relief under the Fair Labor Standards Act.
VIOLATIONS OF TEXAS LABOR CODES COUNT VIII.
Violations of Texas Labor Code § 21.051(1) (Germane to Doubletree Defendants)
89 . Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 90. The acts and conduct of Doubletree Defendants violated Texas Labor Code §
21.051(1).

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91. As a consequence of violations of Texas Labor Code § 21.051(1), Ugarte sustained actual damages including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional hann; (e) liability for past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages. COUNT IX Violations of Texas Labor Code § 21.056 (Germane to Doubletree Defendants)
92. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 93. The acts and conduct of Doubletree Defendants violated Texas Labor Code
§21.056 in that Doubletree Defendants abetted, incited and coerced Defendant Saldana to engage in discriminatory practices against Ugarte. 94. As a direct and proximate cause of the violations of Texas Labor Code §21.056, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay;

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(c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages.
COUNT X Violations of Texas Labor Code § 21.051(1)
(Germane to All Defendants) 95. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 96. The acts and conduct of Doubletree Defendants and Defendant Saldana jointly
violate Texas Labor Code § 21.051(1). 97. As a direct and proximate cause of the violations of Texas Labor Code
§21.051(l) by Defendants Doubletree and Defendant Saldana, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants;;
PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

(t) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and
(g) other damages. VIOLATIONS OF TEXAS TORT LAW COUNT XI Negligent Hiring and Retention (Gennane to Doubletree Defendants)
98. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 99. Doubletree Defendants knew or reasonably should have known that at the time
they hired Defendant Saldana he was a convicted felon. 100. Doubletree Defendants knew or reasonably should have known that during the
period of time that Defendant Saldana was acting in a supervisory capacity over undocumented employees, including Ugarte, he sexually exploited the undocumented workers by threatening to discharge and obtain their deportation. 101. Doubletree Defendants negligently employed and/or retained the employment of Defendant Saldana and facilitated his sexual misconduct with female undocumented workers, including Ugarte. 102. As a direct and proximate cause of Doubletree Defendants' negligence, Ugarte sustained actual damages consisting of: (a) Physical injuries, pain and suffering; (b) Emotional hann;

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(c) Past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and
(d) Future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants. COUNT XII Assault and Battery (Germane to Defendant Saldana)
103. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 104. Defendant Saldana physically attacked and raped Ugarte. 105. As a consequence of the physical attacks and rapes by Defendant Saldana, Ugarte
suffered actual damages consisting of: (a) Physical injuries, pain and suffering; (b) Emotional harm; (c) Past healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants; (d) Future healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants. COUNT XIII
Intentional Infliction of Emotional Injury (Germane to Defendant Saldana)
106. Ugarte incorporates by reference paragraphs 11 through 43 inclusive. 107. The acts and conduct of Defendant Saldana constitute the intentional infliction of
emotional harm upon Ugarte.

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108. As a consequence of the intentional infliction of emotional harm by upon Ugarte be Defendant Saldana, Ugarte sustained actual damages, including without limitation the following: (a) Physical injuries, pain and suffering; (b) Past emotional suffering; (c) Future emotional suffering; (d) Past medical expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (e) Future medical expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (f) Other actual damages. DAMAGES Compensatory Damages (Under Federal Law)
109. As a consequence of the acts and conduct of Doubletree Defendants and Defendant Saldana, Ugarte has sustained actual damages including without limitation the following: (a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00; (f) Future liability for son's healthcare expenses, in excess of $300,000.00;

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(g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and
jury; (i) Past emotional suffering, as may reasonably be determined by the court
and jury;
m Future emotional suffering, as may reasonably be detennined by the court
and jury. Compensatory Damages
(Under Texas Labor Code) 1lO. As a consequence of the acts and conduct of Doubletree Defendants, Ugarte has
sustained actual damages within the context of Texas Labor Code §21.2585(l) including without limitation the following: (a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00; (f) Future liability for son's healthcare expenses, in excess of$300,000.00; (g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and
JUry; (i) Past emotional suffering, as may reasonably be detennined by the court
and jury;

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(j) Future emotional suffering, as may reasonably be determined by the court and jury. Statutory Damages Treble Damages Pursuant to 18 U.S.c. §1964(c)
111. In addition to all other relief to which Ugarte is entitled, Ugarte pursuant to 18 U.S.C. §1964(c) is entitled to treble damages for the Civil RICO violations of Doubletree Defendants. Punitive Damages Under Federal Law (Germane to Doubletree Defendants)
112. Doubletree Defendants' acts and conduct is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence.
113. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages reasonable in relationship to the actual damages and considering: (a) the actual harm sustained by Ugarte; (b) the indifference to or reckless disregard by Doubletree Defendants of Ugarte's health and safety; (c) the repetitiveness of the acts and conduct which directly and proximately caused the actual damages of Ugarte; (d) the harm occasioned to Ugarte as a consequence of the exploitation by Doubletree Defendants of Ugarte's undocumented worker status;
114. other relevant considerations in accordance with law.

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Punitive Damages Under Texas Labor Code (Germane to All Defendants) 115. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages against Doubletree Defendants and Defendant Saldana pursuant to Texas Labor Code §21.2585(a)(2).
Punitive Damages Under Tex.Civ.Prac.& Rem. Code §41.003(2)
(Germane to Defendant Saldana) 98. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to
punitive damages against Defendant Saldana pursuant to Tex.Civ.Prac.& Rem. Code §41.003.
OTHER RELIEF Prej udgment Interest (Germane to All Defendants) 116. In addition to all other relief to which Ugarte is entitled, she is entitled to prejudgment interest upon her actual damages as well as future damages in accordance with law.
Attorneys Fees (Germane to Doubletree Defendants) 117. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to attorney's fees as follows: (a) Under 42 U.S.C. §2000e-5(K);

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(b) Under 18 U.S.c. §1964(c); (c) Under 29 U.S.c. §216(b); and (d) Under Texas Labor Code §21.259, including reasonable expert fees. 118. Ugarte's right of recovery for attorney's fees extend to trial on the merits as well as any appeal or ancillary proceeding which may ensue therefrom, subject to proper remittitur.
DEMAND FOR JURy TRIAL Ugarte hereby requests a jury trial on all issues so triable. WHEREFORE PREMISES CONSIDERED, Plaintiff Petra Ugarte prays for judgment in accordance with her Third Amended Original Complaint including actual damages, statutory damages, punitive damages, prejudgment interest, attorney's fees, costs of court and such other and further relief to which she may show herself entitled at law or in equity.
Respectfully submitted,

THE JOHNSON FIRM, P.L.L.C. 609 Castle Ridge Road, Suite 318 Austin, Texas 78746
Telephone: 512-328-7764 Telecopier: 512-328-0347

Dale Ossip 0 son SBN: 10700000
ATTORNEY IN CHARGE

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FLOREY, KEEL & NASSOUR, LLP 1108 Lavaca, Suite 400 Austin, Texas 78746

Jason Nassour, Esq. SBN: 24003713

Telephone: 512-479-8600 Telecopier: 512-479-6035

Richard Patrick Fagerberg SBN: 24007170

LAW OFFICES OF RICHARD PATRICK FAGERBERG 507 West loth Street Austin, Texas 78701

Telephone: 512-480-3189 Telecopier: 512-480-0767

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

1b...

Pursuant to Fed. R. Civ. P. 5 a true and correct copy of the foregoing document was on

the ~ day December 2003 served upon each of the parties by first class mail, postage prepaid, as

follows:

Ronald M. Gaswirth, Esq. Celeste Y. Winford, Esq. Gardere Wynne Sewell, LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201

ATTORNEYS FOR DEFENDANTS DOUBLETREE HOTEL CORPORATION. DOUBLETREE HOTEL SYSTEMS, INC. HILTON HOTELS CORPORATION and X d/b/a DOUBLETREE HOTEL

Connie Cornell, Esq. Brett 1. Strand, Esq. Cornell Smith, LLP 1221 S. Mopac Expy., Smte 330 Austin, Texas 78746

ATTORNEYS FOR DEFENDANT ANDREW SALDANA

BY FIRST CLASS MAIL

PLAINTIFF'S THIRD AMENDED ORIGINAL COMPLAINT

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 UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

Austin Division

\ ..

PETRA UGARTE,

I

I

PLAINTIFF,

I

I

V.

I

I
DOUBLETREE HOTEL CORPORATION, I

DOUBLETREE HOTEL SYSTEMS, INC., I

X DBA DOUBLETREE HOTEL and

I

ANDREW SALDANA

I

CIVIL ACTION NUMBER A 03 CA 596 SS

I

DEFENDANTS

I

PLAINTIFF'S FOURTH AMENDED ORIGINAL COMPLAINT

TO THE HONORABLE COURT:

PETRA UGARTE, PLAINTIFF, with leave of Court, makes, files and presents

Plaintiff's Fourth Amended Original Complaint.

1. This amendment is filed pursuant to Fed.R.Civ.P. 15(a) with leave of Court

granted by scheduling order made pursuant to Local Rule CV-16.

JURISDICTION

2. This Court has original jurisdiction over the subject matter of this suit pursuant to

18 U.S.c. § 1964(c), 28 U.S.c. § 1331, and 42 U.S.C. § 2000e-5f(1).

3. This Court has supplemental jurisdiction over the subject matter pursuant to 28

U.S.C. § 1367(a).

VENUE

4. Venue of this suit is in the United States District Court for the Western District of

Texas pursuant to 28 U.S.c. §1391(b) and (c).

PARTIES Plaintiff 5. Plaintiff Petra Ugarte ("Ugarte") is a resident of Austin, Travis County, Texas. Defendants 6. Defendant Doubletree Hotels Corporation ("Doubletree Hotels") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 7. Defendant Hilton Hotels Corporation ("Hilton") is a Delaware corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800 Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made general appearance. No additional service is required. 8. Defendant Doubletree Hotel Systems, Inc. ("Doubletree Systems") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to a Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 800

PLAINTIFF'S FOURTH AMENDED ORIGINAL COMPLAINT

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Brazos Street, Austin, Texas 78701. Defendant has heretofore appeared and made a general appearance. No additional service is required. 9. Defendant DT Management, Inc. ("DT Management") is an Arizona corporation duly qualified to engage in business in the State of Texas pursuant to Certificate of Authority issued by the Secretary of State of Texas. Its Registered Agent for service is Corporation Service Company d/b/a CSC-Layers Incorporating Service Company with its Registered Office being located at 701 Brazos Street, Suite 1050, Austin, Texas 78701. 10. Defendant Doubletree Management Company is a business entity whose form of business is unknown. On information and belief, Defendant operates or has operated within the State of Texas without first acquiring a Certificate of Authority or otherwise complying with the laws of the State of Texas. Its last known business address is 755 Crossover Lane, Memphis, Tennessee, 381174900. 11. On information and belief there may be other legal entities, known to the named Defendants, which as a consequence of contractual and/or legal organizational relationships are directly or vicariously liable to Plaintiff for all or part of her causes of action against named Defendants. Until such time as discovery has been completed and such Defendants are correctly identified, they are identified herein as X D/B/A Doubletree Hotel. Plaintiff believes it is the intention of the named Defendants who have heretofore appeared herein and made general appearance that they also appear and make general appearance for X D/B/A Doubletree Hotel Defendants, if such Defendants exist. Until such time as any X D/B/A Doubletree

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Hotel Defendants are correctly identified and it is determined that they have not heretofore appeared and made general appearance, no service is requested. 12. Defendant Andrew Saldana ("Saldana") is a resident of Austin, Travis County, Texas, wherein service of citation may be secured upon him at his place of residence which is 8S0S Tyhurst, Austin, Texas 78749. Defendant Saldana has heretofore appeared and made his general appearance. No additional service is required.
GENERAL FACTS UNDERLYING SUIT 13. Ugarte is a citizen of Mexico and a resident of Travis County, Texas. At all times
material to Ugarte's suit, she was employed by Doubletree Defendants. 14. Ugarte is a female and the sole support of her six minor children. IS. Defendants Doubletree Hotels, Doubletree Systems, Hilton, DT Management,
Doubletree Management and X D/BIA Doubletree Hotel, on information and belief and at all times material to this suit, through various legal organizational and contractual relationships own and operate the Doubletree Guest Suites Austin located at 303 West ISth Street, Austin, Texas 78701 and as part of their legal relationships do business as Doubletree Hotel and Doubletree Guest Suites Austin. For purposes of convenience of identification, Defendants collectively shall be referred to as "Doubletree Defendants." 16. At all times material to her suit Ugarte was employed by Doubletree Defendants as a housekeeper by the Doubletree Defendants at the Doubletree Guest Suites.

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17. At all times material to Plaintiffs suit herein, Doubletree Defendants, collectively as well as individually, were persons within the meanings of 29 U.S.C. §203(a) and 42 U.S.c. §2000e(a).
18. At all times material to her suit, Ugarte was an employee of Doubletree Defendants within the meanings of 29 U.S.C. §203(e)(1); 42 U.S.C. §2000e(f) and Texas Labor Code § 21.002(7).
19. At all times material to Plaintiffs suit herein, Doubletree Defendants collectively as well as individually, were employers of Ugarte within the meanings of 29 U.S.c. §203(d), 42 U.S.c. § 2000e(b) and Texas Labor Code §21.002(8)(A).
20. At all times material to her suit, Ugarte was an hourly employee. As an employee she participated in a group health care insurance plan the premiums of which were entirely paid by her through payroll deduction. The plan covered her and her children.
21. Doubletree Defendants' status as an employer extended through its agents and anyone acting directly or indirectly in their interests within the context of 29 CFR §784.7-8 and Texas Labor Code § 21.002(8)(A)and (B).
22. At all times material to Plaintiffs suit, Saldana was an employee of Doubletree Defendants as well as Plaintiff s immediate supervisor.
23. Defendant Saldana was an agent of Doubletree Defendants and an "employer" of Ugarte within the context of Texas Labor Code § 21.002(8)(A)and (B).
24. On information and belief, at all times material to Ugarte's suit, Doubletree Defendants, in violation of Federal and Texas laws hereafter more specifically set

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forth, engaged in the systematic employment and exploitation of female undocumented workers for the purpose of satisfying Doubletree Defendants' unskilled labor requirements and reducing their labor and related operating expenses associated with the ownership and management of Defendants' hotels and other overnight facilities in intra and interstate commerce, including Doubletree Guest Suites Austin. Doubletree Defendants knowingly employed undocumented female workers, including Ugarte, utilizing their undocumented status as management and business tools integral to their overall business plans and otherwise in the pursuit of their profit motives. As part of their business plan, purpose, exploitation and scheme, Doubletree Defendants directly as well as indirectly solicited the employment of female undocumented workers. As part of the solicitation, Doubletree Defendants promoted, encouraged and assisted the undocumented workers through Doubletree Defendants' supervisory, management and human resources personnel to obtain and utilize false social security numbers for among other reasons to assist Doubletree Defendants to ostensibly comply with its obligation to obtain and retain an 19 Form. Doubletree Defendants, in the furtherance of their scheme, continued the employment of the undocumented workers until Doubletree Defendants detern1ined that it was to their legal and/or economic advantage to terminate the employment. Often, the basis for termination of employment by Doubletree Defendants was the rejection by the United States Government of a social security number on grounds of lack of authentication.

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25. On infonnation and belief, at all times material to her suit, Doubletree Defendants also utilized the undocumented status of female employees, including Ugarte, as a means for its supervisors and managers to exercise control and, among other things, minimize Doubletree Defendants exposure to legal liability duties, rights and benefits accorded to documented workers. As part of Doubletree Defendants' scheme, they feigned compliance with various Federal and State laws regarding civil rights, discrimination, labor and related laws hereinafter more specifically set forth. As part of Doubletree Defendants' efforts, they would from time to time publish certain documents and infonnation to employees regarding their legal rights. However, the efforts were pro forma and accompanied by coercive acts and conduct to obtain the signatures of undocumented workers to fonns purportedly signifying their understanding that their rights had been explained and understood. In fact, the substance and import of the fonns were false. Moreover, Doubletree Defendants admonished the undocumented workers that they must sign the documents and fonns and do nothing to offend or dissatisfy Doubletree Defendants at the risk of their jobs and deportation.
26. Alternatively, on infonnation and belief, Doubletree Defendants had constructive knowledge, i.e., knowledge that a reasonable person would infer from the known facts, that its supervisors and managerial personnel were soliciting, hiring and harboring undocumented workers; utilizing the undocumented workers' status as a means of discrimination, control and otherwise furtherance of the business purposes of Doubletree Defendants and keeping undocumented workers ignorant of their legal rights regarding discrimination and sexual harassment. The facts

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known to Doubletree Defendants and their supervisory and managerial personnel included without limitation:
(a) The 1-9 Employment Eligibility form had not been properly completed;, (b) The undocumented workers had no knowledge of the legal significance of
a social security number; (c) The undocumented workers could not speak or understand English; and (d) Direct knowledge from other employees. 27. On information and belief, Doubletree Defendants acted with reckless disregard for the legal consequences of the acts and conducts of its employees, agents, supervisors and managerial personnel of soliciting, providing and introducing undocumented workers into Doubletree Defendants' work force and violations of anti-discrimination, sexual harassment, labor, immigration and other laws of the United States and Texas, hereinafter more specifically set forth 28. The acts and conduct of Doubletree Defendants indirectly or indirectly hiring or harboring undocumented workers constitute individual and continuing criminal offenses of 8 U.S.C. §1323(a),(c), 1324(a)(1)(A)(iii), (iv),(d) and other immigration related law. 29. On or about 25 February 1996, Ugarte became an employee of Doubletree Defendants for whom she performed housekeeping services at Doubletree Guest Suites Austin, located at 303 West 15th Street, Austin, Travis County, Texas. Ugarte continued her employment without interruption until on or about 27 December 2001, at which time Ugarte terminated her employment as a direct and

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proximate cause of the acts and conduct of Saldana as well as Doubletree Defendants as hereinafter set forth. 30. On or about 20 August 2001, Ugarte reported a leg injury to her immediate supervisor, Defendant Saldana, and requested medical assistance. At Defendant Saldana's direction, Ugarte went to Defendant Saldana's office at which time, in the presence of another supervisor Defendant Saldana inappropriately and over the protests of Ugarte touched and felt Ugarte's leg and thigh. Defendant Saldana denied Ugarte's renewed request for medical assistance and Ugarte returned to work. 31. On or about 6 September 2001, Defendant Saldana accosted Ugarte in a room in which she was cleaning, sexually fondled her, while threatening her that he had the power as her supervisor to do what he chose with her, including satiating his carnal appetites. Defendant Saldana terminated his conduct after continuous reproach, rejection and objection by Ugarte. 32. On or about 15 September 2001, Defendant Saldana came to the room in which Ugarte was cleaning, fondled, sexually groped, physically accosted and attempted to remove Ugarte's clothing. Defendant Saldana, in the process of his conduct, threatened physical harm to Ugarte and her children, as well as threatened Ugarte with firing and deportation if she did not submit to his carnal desires. Saldana stated to Ugarte that no one would believe her if she revealed his conduct because he was her supervisor. 33. On or about 22 September 2001, Defendant Saldana forcibly raped Ugarte in a room in which she was cleaning.

PLAINTIFF'S FOURTH AMENDED ORIGINAL COMPLAINT

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34. On or about 15 October 2001, Defendant Saldana again forcibly raped Ugarte in a room in which she was cleaning. Contemporaneous with the events, Defendant Saldana reiterated his prior threats of physical harm to Ugarte and her children, as well as terminating Ugarte's employment and causing Ugarte and her children to be deported.
35. Ugarte complained to a person to whom she believed was the appropriate person designated by Doubletree Defendants to receive such a complaint regarding Defendant Saldana's conduct. Although unknown to Ugarte at this time, for purposes of identification, the person to whom Ugarte complained will be identified as a Human Resources ("HR") person within Doubletree Defendants' organization. Among other reasons, because of the fear of the physical reprisal of Defendant Saldana upon Ugarte's children, Ugarte's complaint to HR was limited to the improper touching by Defendant Saldana at the time that Ugarte sought medical attention for her leg injury. Additionally, Ugarte as a consequence of the inability of other undocumented workers to obtain remedies for improper conduct of supervisory personnel, reasonably believed that HR would in all probability ignore her complaints. Consistent with her belief, HR summarily rejected Ugarte's complaint with the statement that Defendant Saldana would not engage in improper conduct with female employees and suggested to Ugarte that her complaint was without substance and motivated by Ugarte's ulterior improper reasons.

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36. On infonnation and belief, Doubletree Defendants failed and refused to reasonably investigate Ugarte's the complaint and otherwise to provide her with a reasonable remedy from improper conduct by Saldana.
37. Following the summary dismissal of her complaint by Doubletree Defendants' HR person, Ugarte as consequence of Doubletree Defendants' failure to promulgate infonnation and procedures for an aggrieved employee to make a complaint to alternate HR persons where such complaint and relief may not be reasonably made and obtain from the assigned HR person, Ugarte had no known recourse and out of financial necessity continued her employment under hostile work conditions. In effect, Doubletree Defendants denied Ugarte the rights accorded to her in law to be protected from employer discrimination, sexual harassment and a hostile work environment.
38. As a consequence of Ugarte's complaint to Doubletree Defendants' HR, Defendant Saldana commenced a campaign of intimidation and retaliation against Plaintiff, which included, among other things, materially reducing her work schedule, resulting in material losses of wage income to Ugarte.
39. Subsequent to Ugarte's initial complaint to HR, Defendant Saldana physically confronted Ugarte in the hall of Defendant Doubletree's facility. After Defendant Saldana separated from Ugarte and as a consequence of the commotion, Defendant Doubletree's HR person confronted Ugarte and directed her to the HR person's office. Ugarte intended to give in graphic description the full and complete details of Defendant Saldana's conduct, but before she could do so, the HR person refused to give her an opportunity to make her complaints, outright

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rejected any complaints and summarily denied Ugarte any relief or recourse with an admonition that she should make no criticism of Defendant Saldana. As in the case of her initial complaint, Defendant Doubletree's HR person failed to make any reasonable inquiry or investigation regarding Ugarte's complaints. 40. On or about 23 December 2001, as a consequence of the hostile environment created by Defendant Saldana and the tangible adverse employment actions, with the express or otherwise tacit approval of Doubletree Defendants, Ugarte left the employment of Doubletree Defendants. 41. On or about April 2002, Doubletree Defendants formally terminated the employment of Ugarte on the basis that her social security number, given by her to Doubletree Defendants in 1996, could not be authenticated. 42. Subsequent to her termination, Ugarte's son as a consequence of cancer had to have his leg amputated. As a consequence of the loss of her health care insurance obtained through her employment with Doubletree Defendants which would have paid for her son's medical expenses, Ugarte became personally liable for her son's past and future medical expenses.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 43. Plaintiff timely filed with the Texas Commission on Human Rights and the Equal
Employment Opportunity Commission ("EEOC") a charge of discrimination against Doubletree Defendants. Plaintiff received a Notice of Right to File a Civil Action from the EEOC and the Texas Commission on Human Rights within sixty (60) days of the filing of the Original Petition in the state court which suit was

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removed by Defendants to the United States District Court. A copy of the Notice of Right to File a Civil Action is attached hereto as Exhibit "A." VIOLATIONS OF TITLE VIII CIVL RIGHTS ACT OF 1964 AS AMENDED
COUNT!. Quid Pro Quo Sexual Harassment (Germane to Doubletree Defendants) 44. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 45. Ugarte belongs to a protected group as provided in 42 U.S.C. §2000e-2. 46. Ugarte was subjected by her supervisor with Doubletree Defendants to unwelcome sexual harassment, sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte. 47. The sexual harassment was based on Ugarte's gender. 48. Defendant Saldana, in his capacity as Doubletree Defendants' supervisor over Ugarte victimized and discriminated against Ugarte predicated upon her female gender by: (a) Conditioning the continuation of Ugarte's employment upon Ugarte engaging in sexual activities with Defendant Saldana upon his demand; (b) Conditioning Ugarte's regular and overtime employment hours upon Ugarte engaging in sexual activities with Defendant Saldana upon his demand; (c) Raping Ugarte; (d) Assaulting Ugarte;

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(e) Committing batteries upon Ugarte; (f) Other misconduct directed against Ugarte predicated upon her female
gender. 49. The acts and conduct of Defendant Saldana was sufficiently pervasive so as to
alter the conditions of Ugarte's employment and create an abusive working environment. The acts and conduct of Defendant Saldana directly and proximately caused tangible adverse employment actions against Ugarte including without limitation the following: (a) materially reducing her regular and employment hours resulting in lost
wages; (b) physical injuries; (c) emotional injuries; (d) creating a sexually hostile employment environment, the consequence of
which caused Ugarte to terminate her employment; (e) the loss of Ugarte's healthcare insurance benefits. 50. As a direct and proximate cause of the acts and conduct of Defendant Saldana, Ugarte suffered actual damages consisting of: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants;

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(f) other damages. 51. Doubletree Defendants knew or should have known of the sexual harassment,
hostile work environment and tangible adverse employment actions and failed to take prompt and reasonable remedial action. 52. As a direct and proximate cause of the sexual harassment, Ugarte was constructively discharged from her employment resulting her terminating the employment on or about 21 December 2001.
COUNT II Hostile Work Environment (Germane to Doubletree Defendants) 53. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 54. Ugarte belongs to a protected group as provided in 42 U.S.c. §2000e-2. 55. Ugarte was subjected to unwelcome sexual harassment, sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature which was unwelcome, unsolicited and unincited and which was offensive to Ugarte. 56. The sexual harassment was based upon Ugarte's gender. 57. The sexual harassment was sufficiently pervasive so as to alter the conditions of Ugarte's employment and create an abusive working environment. 58. Doubletree Defendants knew or should have known of the harassment in question and failed to take prompt and reasonable remedial action. 59. As a direct and proximate cause of the hostile sexual environment, Ugarte was constructively discharged from her employment resulting in her terminating the employment on or about 21 December 2001.

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60. As a consequence of the hostile sexual environment, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages. COUNT III Discrimination (Germane to Doubletree Defendants)
61. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 62. Ugarte belongs to a protected group as provided in 42 U.S.c. §2000e~2. 63. Doubletree Defendants intentionally discriminated against Ugarte because of her
gender and national origin in violation of 42 U.S.c. §2000e~2. 64. Doubletree Defendants used the following discriminatory employment practices:
(a) hiring undocumented workers, including Ugarte, with the intention of exploiting their undocumented worker status by paying them wages and providing benefits to a lesser degree than they would pay and provide to non-undocumented workers;
(b) employing undocumented workers and ostensibly complying with the employer contribution requirements regarding social security and

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Medicare with the knowledge and the intent of discharging the undocumented worker at a time convenient to Doubletree Defendants with the right of refund of the employer contributions; (c) exploiting the status of undocumented workers, including Ugarte, in order to exercise control and authority over them. 65. As a consequence of the discrimination, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages.
COUNT IV Retaliation (Germane to Doubletree Defendants) 66. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 67. Doubletree Defendants through Defendant Saldana in his capacity as supervisor retaliated against Ugarte for the complaint by her regarding Defendant Saldana's sexual misconduct by: (a) materially reducing her regular hours of employment; (b) materially reducing her overtime hours of employment;

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(c) implementing and maintaining hostile work conditions compelling Ugarte to tenninate her employment or otherwise constructively discharging Ugarte.
68. As a consequence of the retaliation, Ugarte suffered tangible adverse employment actions including: (a) loss of back pay; (b) loss of forward pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for healthcare expenses which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) other damages.
CONSPIRACY TO VIOLATE CIVIL RIGHTS UNDER 42 U.S.c. §J985(3)
COUNT V (Gennane to Doubletree Defendants) 69. Ugarte incorporates by reference paragraphs 13 - 43 inclusive. 70. By their actions described above, Doubletree Defendants conspired and acted with animus towards Ugarte as an undocumented worker and documented workers with the purpose of hindering and preventing Federal and state officials from perfonning their affirmative obligations to Ugarte, including but not limited to the obligations of these officials to ensure that all employees in the United States are paid Federal and applicable state statutory minimum wages and

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overtime, and that they enjoy minimum benefits such as worker's compensation protection and social security coverage. 71. Ugarte has been injured in her person and property and has been deprived of rights and privileges guaranteed by the laws and the Constitution of the United States. 72. The acts and conduct of Doubletree Defendants constitute a conspiracy to violate Ugarte's civil rights under 42 U.S.c. §1985(3). 73. As a consequence of Doubletree Defendants' violations of 42 U.S.C. §1985(3), Ugarte has sustained compensatory damages in an amount to be determined in the course of discovery and as may be proven at trial on the merits. VIOLATIONS OF RACKETEER INFLUENCED AND CORRUPTION
ORGANIZATION ACT ("RICO") COUNT VI
(Germane to Doubletree Defendants) 74. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 75. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants
engaged in an enterprise within the context of 18 U.S.C. §1961(4). More specifically, the Doubletree Defendants engaged generally in providing hotel, motel and other transient facility services to the general public in interstate commerce in which general business on information and belief Doubletree Defendants adopted a business plan which included the systematic and unlawful employment of undocumented workers; the promotion with the undocumented workers of their obtaining and use of fictitious social security numbers; the

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utilization of fictitious social security numbers as part of feigned compliance with the Immigration and Naturalization Act; feigned compliance with employer obligations regarding the filing ofIRS Forms 940, 941 and related IRS reporting requirements and feigned compliance with Federal and State labor law. As a material part of the enterprise, Doubletree Defendants engaged in a pattern of racketeering activity within the context of 18 US.c. §1961(1) and (5) hereinafter more specifically described. 76. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants engaged in patterns of racketeering activity within the context of 18 US.c. §1961(l)(B) and (F). More specifically, on information and belief, Doubletree Defendants: (a) Violated 18 US.c. §1341 by devising or intending to devise a scheme or
artifice to defraud the governments of the United States and the State of Texas by utilizing the United States Mail; (b) Promoted the illegal entry of aliens into the United States by offering and providing employment to undocumented workers and/or harboring illegal aliens by employing them in violation of 8 US.c. §1324 (a)(l)(A)(i), (iii), (iv), and (v); 8 US.C. §1324(a)(2). 77. At all times material to Ugarte's Civil RICO claims, Doubletree Defendants as part of their enterprise and in multiple conspiracies with one another engaged in prohibited activities in violation of 18 U.S.c. §1962 in the following particulars: (a) they received income derived, directly or indirectly, from a pattern of racketeering activity as above described to use, or invest, directly or

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indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of their enterprise which activity affected interstate or foreign commerce. (b) They maintained, directly or indirectly, an interest in or control of their enterprise the activities of which affected interstate or foreign commerce; (c) by association with their enterprise, they engaged in activities which affected interstate or foreign commerce for the purpose of conducting or participating, directly or indirectly, in the conduct of such enterprises' affairs through patterns of racketeering activity as described above; (d) they conspired to violate the provisions of 18 U.S.C. §1962(a),(b) and (c). 78. More specifically, on infonnation and belief, Doubletree Defendants: (a) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that were significantly lower than wages would be in labor market comprised solely of legally authorized workers for the purpose of reducing its employee expenses and correspondingly increasing its income, which economic benefits were utilized by Doubletree Defendants in the operation of their enterprise within the context of 18 U.S.C. §1962(a); (b) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that are significantly lower than wages would be in a labor market comprised solely of legally authorized workers for the purpose of depressing employee wages below the levels they would otherwise be required to pay if they were unable to hire substantial

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numbers of illegal immigrants resulting in a reduction of employee expenses and a corresponding increase of income which was utilized by Doubletree Defendants in the operation of their enterprise within the context of 18 U.S.C. §1962(a); (c) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that were significantly lower than wages would be in labor market comprised solely of legally authorized workers for the purpose of reducing its employee expenses and corresponding increasing of income, which was utilized by Doubletree Defendants in maintaining, directly or indirectly, their interest in or control of the enterprise within the context of 18 U.S.c. §1962(b); (d) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that are significantly lower than wages would be in a labor market comprised solely of legally authorized workers for the purpose of depressing employee wages below the levels they would otherwise be required to pay if they were unable to hire substantial numbers of illegal immigrants resulting in a reduction of employee expense and a corresponding increase of income which was utilized by Doubletree Defendants to maintain, directly or indirectly, their interest in or control of their enterprise within the context of 18 U.S.c. §1962(b); (e) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that were significantly lower than wages would be in labor market comprised solely of legally authorized workers for the

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purpose of reducing its employee expenses and corresponding increase of income, which was utilized by Doubletree Defendants to conduct or participate, directly or indirectly, in the conduct of their enterprise affairs through patterns of racketeering activity as herein above described 18 U.S.C. §1962(c); (f) knowingly hired workers of illegal status because the illegal workers were willing to accept wages that are significantly lower than wages would be in a labor market comprised solely of legally authorized workers for the purpose of depressing employee wages below the levels they would otherwise be required to pay if they were unable to hire substantial numbers of illegal immigrants resulting in a reduction of employee expense and a corresponding increase of income which was utilized by Doubletree Defendants to conduct or participate, directly or indirectly, in the conduct of their interest through patterns of racketeering activity within the context of 18 U.S.c. §1962(c). 79. As a consequence of the Civil RICO violations by Doubletree Defendants, Ugarte: (a) Failed to receive wages and benefits accorded by Doubletree Defendants to documented workers employed by Doubletree Defendants in similar activities; (b) Failed to receive wages and benefits, which otherwise she would have received, due to her economic situation and fear of asserting her rights due to her illegal status;

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(c) Agreed to work for depressed wages; (d) Was deprived of economic benefits and working conditions accorded to
her under the Fair Labor Standards Act and the Texas Labor Code; (e) Sustained loss of earnings due to her diminished capacity to engage in her
business of providing housekeeping services. 80. As a direct and proximate cause of the Civil RICO violations by Doubletree
Defendants, Ugarte sustained actual damages including without limitation: (a) loss of back pay; (b) loss of front pay; (c) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (d) liability for future healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (e) temporary diminished capacity to perform her services; and (f) other damages.
CONSPIRACY TO VIOLATE FAIR LABOR STANDARDS ACT COUNT VII.
Fair Labor Standards Act (Germane to Doubletree Defendants) 81. Ugarte incorporates by reference paragraphs 13- 43 inclusive. 82. Section 6 and 7 of the Fair Labor Standards Act, 29 U.S.C. §§206 and 207, establish the right of all persons who are "suffered or permitted to work" to be paid a minimum wage for all hours worked and overtime pay at one and one-half

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times the person's regular rate for all hours worked in excess of forty (40) hours per week. Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. §216(b), entitle such persons to recover all unpaid wages plus interest, an equivalent amount as liquidated damages and reasonable attorney's fees and costs. 83. At all times relevant to this action Defendants, and each of them, failed and refused to pay Plaintiff s minimum wage for all hours worked and the overtime premiums required by the Fair Labor Standards Act, to Ugarte's damage in amounts to be proven at trial. 84. Ugarte consents to be a party to this action pursuant to Fair Labor Standards Act 29 U.S.c. §256. 85. Doubletree Defendants' failure to provide compensation for all hours worked by Ugarte with the knowledge, consent, and expectation of Doubletree Defendants supervisors and other managing agents constitutes a deliberate and willful violation of the Fair Labor Standards Act. 86. Ugarte is an "employee" as defined in the Fair Labor Standards Act, 29 U.S.C. §203(e)(1). 87. Doubletree Defendants, regardless of a technical legal relationship between them and Ugarte, are "employers" as defined in the Fair Labor Standards Act, 29 U.S.c. §203(d) and 29 U.S.C. §203(g). 88. As Ugarte's joint employers, under common law and statutory definitions, Doubletree Defendants are jointly and severally liable for Ugarte's back pay, liquidated damages, and other relief under the Fair Labor Standards Act.

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VIOLATIONS OF TEXAS LABOR CODES COUNT VIII.
Violations of Texas Labor Code § 21.051(1) (Germane to Doubletree Defendants)
89. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 90. The acts and conduct of Doubletree Defendants violated Texas Labor Code §
2l.051(1). 91. As a consequence of violations of Texas Labor Code § 21.051(1), Ugarte
sustained actual damages including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future healthcare expenses, which otherwise would have been
covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages.
COUNT IX Violations of Texas Labor Code § 21.056
(Germane to Doubletree Defendants) 92. Ugarte incorporates by reference paragraphs 13 through 43 inclusive.

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93. The acts and conduct of Doubletree Defendants violated Texas Labor Code §21.056 in that Doubletree Defendants abetted, incited and coerced Defendant Saldana to engage in discriminatory practices against Ugarte.
94. As a direct and proximate cause of the violations of Texas Labor Code §21.056, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (e) liability for past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; (f) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (g) other damages. COUNT X Violations of Texas Labor Code § 21.051(1) (Germane to All Defendants)
95. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 96. The acts and conduct of Doubletree Defendants and Defendant Saldana jointly
violate Texas Labor Code § 21.051(1).

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97. As a direct and proximate cause of the violations of Texas Labor Code §21.051(1) by Defendants Doubletree and Defendant Saldana, Ugarte sustained actual damages, including: (a) loss of back pay; (b) loss of front pay; (c) physical injuries, pain and suffering; (d) emotional harm; (f) liability for past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;; (g) liability for future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants; and (h) other damages. VIOLATIONS OF TEXAS TORT LAW COUNT XI Negligent Hiring and Retention (Germane to Doubletree Defendants)
98. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 99. Doubletree Defendants knew or reasonably should have known that at the time
they hired Defendant Saldana he was a convicted felon. 100. Doubletree Defendants knew or reasonably should have known that during the
period of time that Defendant Saldana was acting in a supervisory capacity over

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undocumented employees, including Ugarte, he sexually exploited the undocumented workers by threatening to discharge and obtain their deportation. 101. Doubletree Defendants negligently employed andlor retained the employment of Defendant Saldana and facilitated his sexual misconduct with female undocumented workers, including Ugarte. 102. As a direct and proximate cause of Doubletree Defendants' negligence, Ugarte sustained actual damages consisting of: (a) Physical injuries, pain and suffering; (b) Emotional hann; (c) Past healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants; and (d) Future healthcare expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants. COUNT XII
Assault and Battery (Gennane to Defendant Saldana) 103. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 104. Defendant Saldana physically attacked and raped Ugarte. 105. As a consequence of the physical attacks and rapes by Defendant Saldana, Ugarte suffered actual damages consisting of: (a) Physical injuries, pain and suffering; (b) Emotional hann;

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(c) Past healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants;
(d) Future healthcare expenses, which otherwise would have been covered by the healthcare insurance provided by Doubletree Defendants. COUNT XIII Intentional Infliction of Emotional Injury (Germane to Defendant Saldana)
106. Ugarte incorporates by reference paragraphs 13 through 43 inclusive. 107. The acts and conduct of Defendant Saldana constitute the intentional infliction of
emotional harm upon Ugarte. 108. As a consequence of the intentional infliction of emotional harm by upon Ugarte
be Defendant Saldana, Ugarte sustained actual damages, including without limitation the following: (a) Physical injuries, pain and suffering; (b) Past emotional suffering; (c) Future emotional suffering; (d) Past medical expenses, which otherwise would have been covered by the
healthcare insurance provided by Doubletree Defendants; (e) Future medical expenses, which otherwise would have been covered by
the healthcare insurance provided by Doubletree Defendants; and (f) Other actual damages.

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DAMAGES Compensatory Damages
(Under Federal Law) 109. As a consequence of the acts and conduct of Doubletree Defendants and
Defendant Saldana, Ugarte has sustained actual damages including without limitation the following:
(a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00; (f) Future liability for son's healthcare expenses, in excess of $300,000.00; (g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and
JUry;
(i) Past emotional suffering, as may reasonably be determined by the court and jury;
G) Future emotional suffering, as may reasonably be determined by the court and jury.

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Compensatory Damages (Under Texas Labor Code) 110. As a consequence of the acts and conduct of Doubletree Defendants, Ugarte has sustained actual damages within the context of Texas Labor Code §21.2585(l) including without limitation the following: (a) Lost back pay in a sum not less than $404.04; (b) Lost wages - $26,418.00; (c) Past healthcare expenses - $915.00; (d) Future healthcare expenses -$62,400.00; (e) Past liability for son's healthcare expenses- $350,000.00;
(0 Future liability for son's healthcare expenses, in excess of $300,000.00;
(g) Past physical pain, as may reasonably be determined by the court and jury; (h) Future physical pain, as may reasonably be determined by the court and
JUry;
(i) Past emotional suffering, as may reasonably be determined by the court and jury;
U) Future emotional suffering, as may reasonably be determined by the court
and jury. Statutory Damages
Treble Damages Pursuant to 18 U.S.C. §1964(c) Ill. In addition to all other relief to which Ugarte is entitled, Ugarte pursuant to 18
U.S.C. §1964(c) is entitled to treble damages for the Civil RICO violations of Doubletree Defendants.

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Punitive Damages Under Federal Law (Germane to Doubletree Defendants) 112. Doubletree Defendants' acts and conduct is so reprehensible to warrant the imposition of further sanctions to achieve punishment or deterrence. 113. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages reasonable in relationship to the actual damages and considering: (a) the actual harm sustained by Ugarte; (b) the indifference to or reckless disregard by Doubletree Defendants of Ugarte's health and safety; (c) the repetitiveness of the acts and conduct which directly and proximately caused the actual damages of Ugarte; (d) the harm occasioned to Ugarte as a consequence of the exploitation by Doubletree Defendants of Ugarte's undocumented worker status; and (e) other relevant considerations in accordance with law. Punitive Damages Under Texas Labor Code (Germane to All Defendants) 114. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to punitive damages against Doubletree Defendants and Defendant Saldana pursuant to Texas Labor Code §21.2585(a)(2).

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Punitive Damages Under Tex.Civ.Prac.& Rem. Code §41.003(2)
(Germane to Defendant Saldana) 115. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to
punitive damages against Defendant Saldana pursuant to Tex.Civ.Prac.& Rem. Code §41.003.
OTHER RELIEF Prejudgment Interest (Germane to All Defendants) 116. In addition to all other relief to which Ugarte is entitled, she is entitled to prejudgment interest upon her actual damages as well as future damages in accordance with law.
Attorneys Fees (Germane to Doubletree Defendants) 117. In addition to all other relief to which Ugarte is entitled, Ugarte is entitled to attorney's fees as follows: (a) Under 42 U.S.c. §2000e-5(K); (b) Under 18 U.S.C. §1964(c); (c) Under 29 U.S.C. §216(b); and (d) Under Texas Labor Code §21.259, including reasonable expert fees. 118. Ugarte's right of recovery for attorney's fees extend to trial on the merits as well as any appeal or ancillary proceeding which may ensue therefrom, subject to proper remittitur.

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DEMAND FOR JURY TRIAL Ugarte hereby requests a jury trial on all issues so triable. WHEREFORE PREMISES CONSIDERED, Plaintiff Petra Ugarte prays for judgment in accordance with her Fourth Amended Original Complaint including actual damages, statutory damages, punitive damages, prejudgment interest, attorney's fees, costs of court and such other and further relief to which she may show herself entitled at law or in equity.
Respectfully submitted,

THE JOHNSON FIRM, P.L.L.c. 609 Castle Ridge Road, Suite 318 Austin, Texas 78746 Telephone: 512-328-7764 Telecopier: 512-328-0347

~lQu~¥L Dale Ossip son '4 SBN: 10700000
ATTORNEY IN CHARGE

FLOREY, KEEL & NASSOUR, LLP 1108 Lavaca, Suite 400 Austin, Texas 78746

Jason Nassour, Esq. SBN: 24003713

Telephone: 512-479-8600 Telecopier: 512-479-6035

Richard Patrick Fagerberg SBN: 24007170

LA W OFFICES OF RICHARD PATRICK FAGERBERG 507 West 10th Street
Austin, Texas 78701

Telephone: 512-480-3189 Telecopier: 512-480-0767

ATTORNEYS FOR PLAINTIFF

PLAINTIFF'S FOURTH AMENDED ORIGINAL COMPLAINT

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CERTIFICATE OF SERVICE

~

Pursuant to Fed. R. Civ. P. 5 a true and correct copy of the foregoing document was on

the ~ day December 2003 served upon each of the parties by first class mail, postage prepaid, as

follows:

Ronald M. Gaswirth, Esq. Celeste Y. Winford, Esq. Gardere Wynne Sewell, LLP 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201

ATTORNEYS FOR DEFENDANTS DOUBLETREE HOTEL CORPORATION. DOUBLETREE HOTEL SYSTEMS, INC. HILTON HOTELS CORPORATION and X d/b/a DOUBLETREE HOTEL

ConnIe Cornell, Esq. Brett J. Strand, Esq. Cornell SmIth, LLP 1221 S. Mopac Expy., Suite 330 Austin, Texas 78746

ATTORNEYS FOR DEFENDANT ANDREW SALDANA

BY FIRST CLASS MAIL

\

Dale Ossip

on

PLAINTIFF'S FOURTH AMENDED ORIGINAL COMPLAINT

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6330 Hwy 290 Au~itiri, TX 78723 .':.
P. O. Sox 13006
Au:stin, TX 78711-3006 w'Nw.tchr.state.tx.u5

"""'. ",,'
., .

\

•

I

TEXAS COMMISSION ON HUMAN RIGHTS

(512) 437·3450
(512) 437·3478 (888) 452-;4778 Toll Free (512) 311-7473 TTY
(800) 735-2989 Texas Relay

August 18, 2003

NOTICE OF RIGHT TO FILE A CML ACTION

Jason R. Nassour, Atty FLOREY, KEEL, & NASSOUR, LLP 704 ,;vEST 9TH STREET AUSTIN> TX 78701

Re: Petra Ugarte v. DOUBLETREE HOTEL

,.

EEOC Complaint #36AA200382

TCHRILocal Commission Complaint #

Pursuant to Srct'ions 21.252 and 21.254 of the Texas Labor Code, and Chapter 327, Section 327.7 of the Commission's Rules, this notice is to advise you of your righr to bring 'a private civil action in state court in the above-referenced case. PLEASE BE ADvlSED THAT YOU HAVE SIXTY (60) DAYS ;FROM THE RECEIPT OF THIS NOTICE TO FILE TIDS CML ACTION. If the above-referenced case was processed by the United States Equal Employment Opportunity Commission or another ageo.cy, you should also notify that agency as to your intention to file a civil action.

If your case has been successfully resolved by the U. S. Equal Employment Opportunity Commission or another agency through a voluntary settlement or conciliation agreement, you may be prohibited by the terms of such an agreement from filing a private civil action in stare court pursuant to the Texas Commission on Human Rights Act, as amended.
Tbe United States Supreme Court has beld in Kremer v. Chemical Constnlction CorporC!.~ion, 456 U.S. 461 (1982), that a federal district COUrt must generally dismiss a Title VII action involving the same parties and raising the same issues as those raised in a prior stare court action under Cbapter 21 of the Texas Labor Code. Therefore, filing a lawsuit in state coun based on the issuance of this notice of righI-to-sue may prevent you from filing a lawsuit in federal court based on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e - et sea.

S1in)cUer)ely~, ~
Vickie Covington, S
Employment Investigations Manager

Copy to:

RETAIN ENVELOPE TO VERIFY DATE RECEIVED

DOUBLETREE HOTEL 303 W. 15TH STREET AUSTIN, TX 78701

CERr -C-NC02(6fn)

"Texas Commission on Human Rights is an EqU81'Opp~rtunity Employer" --......--.----:-, .

I'

EXH.IBIT-

~.'A"
-,~

 
 t:'\l £0,r1,,'1

IN THE UNITED STATES DISTRICT cotJRf", . \\..
a FOR THE WESTERN DISTRICT OF TE~~~ \ ?l~ 3: 32-

AUSTIN DIVISION

Luu' ....

·v~{2~~cc.C\ ~_

PETRA UGARTE,

Plaintiff,

D 4·.----"

-vs-

Case No. A-03-CA-596-SS

DOUBLETREIj: HOTEL CORPORATION; DOUBLETREE HOTEL SYSTEMS, INC.; X d/b/a Doubletree Hotel; and ANDREW SALDANA,
Defendants.

ORDER
BE IT REMEMBERED on the 6th day of February 2004 the Court called the above-styled cause for a hearing on all pending matters. Before the Court were Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#23], the Doubletree Defendants' Motion for Partial Dismissal of Plaintiffs Third Amended Complaint Under Fed. R. Civ. P. 12(b)(6) [#25], Plaintiffs Motion to Enlarge Time to File Responses to the Doubletree Defendants' Motion for Partial Dismissal of Plaintiffs Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#28], Plaintiffs Motion to Dismiss Defendant's Motion for Partial Dismissal of Plaintiffs Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) for Mootness [#33], Plaintiffs Motion to Dismiss Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) for Mootness [#34], Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#36], the Doubletree Defendants' Motion for Dismissal of Plaintiffs RICO and 42 U.S.c. § 1985 Claims
51

Pursuant to Fed. R. Civ. P. 12 (b)(6) [#38], Plaintiffs Motion to Enlarge Time to Designate Experts [#41], Plaintiffs Motion to Amend Scheduling Order [#44], the Doubletree Defendants' Motion to Compel Discovery [#44], and the Doubletree Defendants' Request for Expedited Ruling on Motion to Compel Discovery [#45]. Having considered the motions, responses, the relevant law, the arguments of counsel at the hearing, and the case file as a whole, the Court now confirms its oral announcements with the following opinion and orders.
Background The plaintiff, Petra Ugarte, is a Mexican citizen and undocumented immigrant who used to work as a housekeeper for at the Doubletree Guest Suites located at 303 West 15th Street in Austin, Texas. She has filed this lawsuit against the Doubletree Hotel Corporation, Doubletree Hotel Systems, Hilton, DT Managment, and X d/b/a Doubletree Hotel (collectively, "the Doubletree Defendants"), as well as her supervisor at the Doubletree Guest Suites, Andrew Saldana. In her Fourth Amended Complaint, Plaintiffalleges Doubletree knowingly employed undocumented female workers (including Plaintiff), or employed them with constructive knowledge that they were undocumented, and utilized their undocumented status as a tool in their business plan, to further their profit motives, and as a means for supervisors to exercise control over them without exposure to legal liabilities. She claims the Doubletree Defendants obtained and utilized false social security numbers for the undocumented workers they hired in order to comply with the requirement that they retain 1-9 forms. She also claims the Doubletree Defendants failed to advise the undocumented workers of their rights, including their right not to be subjected to discrimination. Plaintiff contends she worked at the Doubletree Guest Suites in Austin from February 1996 until December 2001. She has alleges that on multiple occasions during August through September
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2001, Saldana fondled and groped her, threatening that ifshe reported him he could have her and her children deported. She further alleges that on two separate occasions, Saldana forcibly raped her while she was cleaning rooms in the hotel, reiterating his threats ofharm to her and her children and threatening that he could terminate her employment and get her and her children deported. Plaintiff claims she had reservations but finally complained to a human resources employee about being groped (but not raped), but the human resources employee dismissed her allegations without a proper investigation. Plaintiff maintains after she reported Saldana's alleged harassment, he began retaliating against her, reducing her work schedule. According to Plaintiff, she left the employment of Doubletree on December 23,2001 as a result of the above-described events and was formally terminated in April 2002.
Plaintiffhas asserted the following causes of action against the Doubletree Defendants: (1) violations of Title VII ofthe Civil Rights Act of 1964 (including quid pro quo sexual harassment, hostile work environment, sex discrimination, national origin discrimination, and retaliation); (2) conspiracy to violate her civil rights under 42 U.S.C. § 1985(3); (3) violation of the Racketeer Influenced and Corruption Organization Act ("RICO"), 18 U.S.C. § 1961; (4) conspiracy to violate the Fair Labor Standards Act, 29 U.S.C. §§ 206,207; (5) violation of Sections 21.051(1) & 21.056 ofthe Texas Labor Code; and (6) negligent hiring and retention. Plaintiffhas asserted claims against Saldana under Section 21.051 (1) ofthe Texas Labor Code and for assault and battery and intentional infliction of emotional injury.
Analysis I. Motions Related to Third Amended Complaint
On December 23, 2003, both Saldana and the Doubletree Defendants filed motions for partial dismissal ofPlaintiffs Third Amended Complaint. However, on December 31, 2003, Plaintifffiled
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her Fourth Amended Complaint, rendering the motions for partial dismissal moot. Plaintiff subsequently filed motions to dismiss the motions for partial dismissal as moot. The Defendants did not file any response in opposition. Because Plaintiffs filing ofher Fourth Amended Complaint did in fact render the motions for partial dismissal ofthe Third Amended Complaint moot, the Court will dismiss them as such. II. Motions for Partial Dismissal
A. Rule 12(b)(6) Standard Under Rule 12(b}(6}, a defendant may move for dismissal for failure to state a claim upon which relief can be granted. FED. R. Crv. P. 12(b}. In deciding whether to dismiss for failure to state a claim, "the district court must take the factual allegations ofthe complaint as true and resolve any ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff." FernandezMontes v. Allied Pilots Ass 'n, 987 F.2d 278, 284 (5th Cir. 1993). The Court should dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Court, in its review ofa motion to dismiss a claim under Rule 12(b)(6}, may not go outside ofthe pleadings. Carpenters Local Union No. 1846o/the United Bhd o/Carpenters andJoiners ofAmerica v. Pratt-Farnsworth, 690 F.2d 489, 499-500 (5th Cir. 1982). B. Defendant Saldano's Motion to Dismiss Texas Labor Code Claim In her Fourth Amended Complaint, Plaintiff asserts a claim against Saldano under Section 21.051(1} of the Texas Labor Code despite the fact that the Court dismissed all claims against Saldano under the Texas Commission on Ruman Rights Act ("TCHRA") on October 16,2003. See PI. 's Fourth Am. CompI. ~~ 95-97; Oct. 16,2003 Order. In her response, Plaintiffadmits she cannot sue Saldana individually for violating Title VII or the TCRRA. See Resp. to Saldana's Mot. for
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Partial Dismissal ~ 1. But Plaintiff nevertheless insists on asserting her § 21.051 claim against Saldano and maintains (in so far as the Court can decipher from the inarticulate arguments of Plaintiffs counsel) that since the definition of employer in § 21.002(8) of the Texas Labor Code applies to Saldana, she is entitled to sue him on a theory of vicarious liability. A claim under a theory ofvicarious liability, however, is a claim against an employer for an employee's actions. See Baptist Memorial Hasp. Sys. v. Sampson, 969 S.W.2d 945,947 (Tex. 1998) (explaining under the doctrine ofrespondeat superior, an employer is vicariously liable for the wrongdoing ofits agent or employee as opposed to the employer's own wrongdoing). Thus, Plaintiff can sue her employer under the THCRA for the alleged misconduct ofher supervisor, not Saldana himself. Accordingly, Plaintiffs § 21.051 claim against Saldana must be dismissed.
C. The Doubletree Defendants' Motion to Dismiss RICO and § 1985 Claims The Doubletree Defendants have moved to dismiss Plaintiffs RICO claim against them and her claims under 42 U.S.C. § 1985. However, the Court at the hearing entered an order instructing Plaintiffto provide specific information regarding her RICO allegations and therefore, the Court will refrain from ruling on the Doubletree Defendants' motion to dismiss the RICO claims until Plaintiff has had the opportunity to respond to the Court's order. With regard to the § 1985 claims, the Doubletree Defendants first maintain they must be dismissed because § 1985 requires a conspiracy between two or more persons whereas in this case, the Doubletree Defendants are all wholly owned subsidiaries ofthe Hilton Hotel Corporation, and therefore cannot conspire with one another. Second, the Doubletree Defendants argue Plaintiff is not a member of a class protected by § 1985(3). Plaintiffmaintains it would be beyond the scope of a Rule 12(b)(6) motion for the Court to make a ruling regarding the relationship between the various Doubletree entities sued in this lawsuit. However, the Plaintiff wholly failed in its response
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to address the Doubletree Defendants' second argument and the Court could therefore assume Plaintiffhas conceded she is not a member of a class protected by § 1985(3). Instead, the Court will briefly address the merits of the Doubletree Defendants' second argument.
In order to state a § 1985(3) claim, a plaintiff must allege the defendants engaged in a conspiracy for the purpose of depriving any person or class of equal protection of the laws or of privileges and immunities under the laws and that she suffered injury to her person or property or was deprived of a right or privilege of a United States citizen as a result ofthe conspiracy. United Bhd. ofCarpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983). Additionally, the plaintiffmust allege a racial or other invidious class-based animus motivated the conspiracy. Bray v. Alexandria Women's Health CliniC, 506 U.S. 263, 267-68 (1993); Horaist v. Doctors' Hosp. o/Opelousas, 255 FJd 261, 270 (5th Cir. 2001). Because section 1985(3) only protects rights established by other constitutional provisions, a plaintiffmust assert a constitutional right in order to state a claim under that provision. Scott, 463 U.S. at 833. Importantly, "[p]laintiffs who assert claims under 42 U.S.C. § 1983 and other civil rights statutes, such as § 1985, must plead the operative facts upon which their claim is based. Mere conclusory allegations are insufficient." Holdiness v. Stroud, 808, F.2d 417, 424 (5th Cir. 1987). "Equal specificity is required when a charge of conspiracy is made." Id.
With regard to her § 1985(3) claim, Plaintiff alleges: Doubletree Defendants conspired and acted with animus toward [Plaintiff] as an undocumented worker and documented workers with the purpose of hindering and preventing Federal and state officials from performing their affirmative obligations to [Plaintiff], including but not limited to the obligation so these officials to ensure that all employees in the United States are paid Federal and applicable stat statutory minimum wages and overtime and that they enjoy minimum benefits such as worker's compensation protection and social security coverage. Fourth Am. Compi. ~ 70. Thus, Plaintiff appears to allege the Doubletree Defendants conspired and acted with animus toward her because of her status as an undocumented worker.
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According to the Supreme Court, however, "it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause." Scott, 463 U.S. at 836. Taking into accounted this reservation, the Fifth Circuit has emphasized that § 1985(3) protection is limited to two classes of plaintiffs: "1) those characterized by some inherited or immutable characteristic; and 2) those characterized by political beliefs or associations." McClean v. Int'l Harvester Co., 817 F.2d 1214, 1219 (5th Cir. 1987). Plaintiff has alleged not alleged animus based on a membership in a discrete, insular class of individuals possessing "inherited or immutable characteristics," such as race, national origin, or sex. Weingarten Realty Investors v. Albertson's, Inc. 66 F. Supp. 2d 825, 851 (S. D. Tex. 1999). Neither has she alleged the Doubletree Defendants' actions were in anyway motivated by Plaintiffspolitical beliefs or associations. Id. Accordingly, Plaintiffs § 1985(3) claim based on her status as an
a undocumented worker, as opposed to class-based or political animus on the part ofthe Doubletree
Defendants, fails. I See id. IV. Discovery Motions
The Doubletree Defendants served their discovery requests on Plaintiff on November 26, 2003. They granted Plaintifftwo extensions oftime to respond. On January 15, 2004, the deadline to respond after the second extension oftime, counsel for Plaintiffrepresented responses were in the mail. Four days later, when counsel for Doubletree again contacted counsel for Plaintiff, he admitted that the responses were not in the mail and that he was having problems complying with the discovery requests because ofthe language barrier between he and his client. Almost a month after
IMoreover, in so far as Plaintiff is attempting use § 1985(3) to remedy employment discrimination based on her sex or race, she cannot. Horaist, 255 FJd at 270 (holding that aplaintiff may not use § 1985(3) to remedy violations of Title VII).
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the original deadline, the Doubletree Defendants filed a motion to compel representing to this Court that Plaintiffhad still not served defendants with responses and cannot commit to a date by which she will respond. The Doubletree Defendants ask the Court to compel Plaintiff to respond to their interrogatories and requests for production and award them the attorneys' fees they incurred in pursuing this motion.
Counsel for Plaintiff filed motions to extend the deadli:ue for designating experts and to amend the scheduling order, pushing the trial setting back four months. This lawsuit was filed on August 26, 2003 and therefore has been pending for over five months. Yet counsel for Plaintiff represented at the hearing that he has not taken one deposition, not even Defendant Saldana's. Simply put, lead counsel for the Plaintiff, even ifhe did not enter an appearance until mid-October, has not demonstrated his diligence in pursuing discovery this case. Accordingly, the Court will deny his motions for extensions of time, grant the Doubletree Defendants' motions to compel and order Plaintiff to pay the Doubletree Defendants $500 in attorneys' fees.
In accordance with the foregoing: IT IS ORDERED that Plaintiffs Motion to Dismiss Defendant's Motion for Partial
Dismissal ofPlaintiffs Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) for Mootness [#33] is GRANTED as unopposed pursuant to Local Rule CV-7(d) and the Doubletree Defendants' Motion for partial Dismissal of Plaintiffs Third Amended Complaint Under Fed. R. Civ. P. 12(b)(6) [#25] is therefore DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs Motion to Dismiss Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) for Mootness [#34] is
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GRANTED as unopposed pursuant to Local Rule CV-7(d) and Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#23] is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Plaintiffs Motion to Enlarge Time to File Responses to the Doubletree Defendants' Motion for Partial Dismissal of Plaintiffs Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#28] is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that Defendant Saldana's Motion for Partial Dismissal Under Fed. R. Civ. P. 12(b)(6) [#36] is GRANTED and Plaintiffs claim against Saldana under Tex. Labor Code § 21.051 (1) is DISMISSED for failure to state a claim.
IT IS FURTHER ORDERED that the Doubletree Defendants' Motion for Dismissal ofPlaintiffs RICO and 42 U.S.C. § 1985 Claims Pursuant to Fed. R. Civ. P. 12 (b)(6) [#38] is GRANTED IN PART and Plaintiffs claims under 42 U.S.C. § 1985(3) are DISMISSED for failure to state a claim; the Court CARRIES the portion of the motion related to Plaintiffs RICO claims and will rule on it after it receives Plaintiffs response to Court's Order, entered during the hearing, that requires specific pleading related to the RICO allegations.
IT IS FURTHER ORDERED that Plaintiffs Motions to Enlarge Time to Designate Experts [#41] and to Amend Scheduling Order [#44] are DENIED.
IT IS FURTHER ORDERED that Doubletree Defendants' Request for Expedited Ruling on Motion to Compel Discovery [#45] is GRANTED and the Doubletree Defendants' Motion to Compel Discovery [#44] is GRANTED and Plaintiffs are ORDERED to fully respond to the Doubletree Defendants' interrogatories and requests for production on before
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February 13, 2004 and to pay $500 in attorneys' fees to the Doubletree Defendants. Failure to comply with this order may result in dismissal ofthis lawsuit.
IT IS FINALLY ORDERED this case is set for STATUS CONFERENCE on February 27, 2004, at 2:00 p.m. in Courtroom No.2, United States Courthouse, 200 West Eighth Street, Austin, Texas. Counsel must be prepared to discuss the following: (1) motions pending; (2) any further discovery requests; (3) counsel and witness availability for trial; and (4) settlement negotiations (the Plaintiff must have made an initial offer to settle the entire case prior to the status conference, and the Defendants must have had sufficient time to respond to the offer prior to the status conference).
* SIGNED this the //)- day of February 2004.
S'A~ MSiARKS ~-
UNITED STATES DISTRICT JUDGE
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 r.'\ ' : \ IN THE UNITED STATES DISTRICT COURT

FOR THE

WESTERN DISTRICT AUSTIN DIVISION

OF TE,:X. AS\"".

\ r:l

r ~

PETRA UGARTE,

Plaintiff,

-vs-

DOUBLETREE HOTEL CORPORATION; DOUBLETREE HOTEL SYSTEMS, INC.; X d/b/a Doubletree Hotel; and ANDREW SALDANA,
Defendants.

Case No. A-03-CA-596-SS

ORDER
BE IT REMEMBERED on the 9th day ofMarch 2004 the Court called the above-styled cause for a hearing on all pending matters and the parties appeared through counsel. Before the Court were the Doubletree Defendants' Motion for Sanctions [#59-1], Defendant Saldana's Motion for Sanctions [#60-1] and Request for Expedited Briefing Schedule [#60-2], the Doubletree Defendant's Motion to Dismiss [#38],Iand Plaintiffs Motion for Dismissal ofFederal Causes ofAction Pursuant to Fed, R. Civ. P. 41(a)(2) or Alternatively, for Leave to Amend Complaint to Withdraw Federal Claims, Motion to Decline Supplemental Jurisdiction and Remand State Claims and Memorandum ofLaw [#63]. Having considered the motions, responses, the arguments of counsel at the hearing,

IOn February 6,2004, the Court held a hearing on this motion and on February 10, 2004, entered an Order dismissing Plaintiffs claims under 42 U.S.C. § 1985. However, the Court carried the Doubletree Defendants' Motion to Dismiss the RICO claims so Plaintiff could file a RICO statement, which she has filed [#62]. Therefore, the Doubletree Defendants' Motion to Dismiss the Plaintiffs RICO claim is now ripe for consideration.

the relevant law, and the case file as a whole, the Court now confirms its oral announcements with the following opinion and orders.
Background The plaintiff, Petra Ugarte, is a Mexican citizen and undocumented immigrant who used to work as a housekeeper for at the Doubletree Guest Suites located at 303 West 15th Street in Austin, Texas. She has filed this lawsuit against the Doubletree Hotel Corporation, Doubletree Hotel Systems, Hilton, DT Managment, and X d/b/a Doubletree Hotel (collectively, "the Doubletree Defendants"), as well as her supervisor at the Doubletree Guest Suites, Andrew Saldana. In her Fourth Amended Complaint, Plaintiffalleges Doubletree knowingly employed undocumented female workers (including Plaintiff), or employed them with constructive knowledge that they were undocumented, and utilized their undocumented status as a too I in their business plan, to further their profit motives, and as a means for supervisors to exercise control over them without exposure to legal liabilities. She claims the Doubletree Defendants obtained and utilized false social security numbers for the undocumented workers they hired in order to comply with the requirement that they retain 1-9 forms. She also claims the Doubletree Defendants failed to advise the undocumented workers of their rights, including their right not to be SUbjected to discrimination. Plaintiff contends she worked at the Doubletree Guest Suites in Austin from February 1996 until December 2001. She has alleges that on multiple occasions during August through September 2001, Saldana fondled and groped her, threatening that ifshe reported him he could have her and her children deported. She further alleges that on two separate occasions, Saldana forcibly raped her while she was cleaning rooms in the hotel, reiterating his threats of harm to her and her children and threatening that he could terminate her employment and get her and her children deported. Plaintiff
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claims she had reservations but finally complained to a human resources employee about being groped (but not raped), but the human resources employee dismissed her allegations without a proper investigation. Plaintiff maintains after she reported Saldana's alleged harassment, he began retaliating against her, reducing her work schedule. According to Plaintiff, she left the employment of Doubletree on December 23,2001 as a result of the above-described events and was formally terminated in April 2002.
Plaintiff asserted the following causes of action against the Doubletree Defendants in her Fourth Amended Complaint: (1) violations of Title VII of the Civil Rights Act of 1964 (including quid pro quo sexual harassment, hostile work environment, sex discrimination, national origin discrimination, and retaliation); (2) conspiracy to violate her civil rights under 42 U.S.C. § 1985(3); (3) violation of the Racketeer Influenced and Corruption Organization Act ("RICO"), 18 U.S.C. § 1961; (4) conspiracy to violate the Fair Labor Standards Act, 29 U.S.C. §§ 206,207; (5) violation of Sections 21.051(1) & 21.056 of the Texas Labor Code; and (6) negligent hiring and retention. Additionally, Plaintiff asserted claims against Saldana under Section 21.051 (1) ofthe Texas Labor Code and for assault and battery and intentional infliction of emotional injury. On February 10, 2004, the Court entered an Order dismissing Plaintiffs § 1985 claim against the Doubletree Defendants and her Texas Labor Code claim against Defendant Saldana. The Doubletree Defendants' motion to dismiss Plaintiffs RICO claim is still pending but is ripe now that Plaintiff has filed her RICO case statement.
Analysis A. Motions for Sanctions
The Defendants have filed motions for sanctions under Rule 16(f) of the Federal Rules of Civil Procedure, contending you should dismiss this lawsuit due to Plaintiffs consistent failure to
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comply with the Court's orders. Rule 16(f), entitled "Sanctions," provides in relevant part: " If a party or party's attorney fails to obey a scheduling or pretrial order ...the judge, upon motion or the judge's own initiative may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." FED. R. CIY. P. 16(f). The cited sections of Rule 37 permit a court to sanction a party for failing to comply with a court order by disallowing the disobedient party to support or oppose designated claims or defenses, disallowing them to introduce designated matters into evidence, striking the pleadings, dismissing the action, rendering a default judgment, or holding the party in contempt. FED. R. CIv. P. 37.
Despite an explicit warning from this Court in its previous Order granting the Doubletree Defendants' motion to compel that failure "to fully respond to the Doubletree Defendants' interrogatories and requests for production ... could result in the dismissal ofthis lawsuit," Plaintiff has persisted in providing discovery responses that are inadequate under the Federal Rules ofCivil Procedure, the Local Rules and this Court's orders. She has provided (untimely) witness designations without addresses and expert designations without report or medical records. Plaintiff also has also designated as "witnesses" companies such as DT Management, Inc. without designating a representative. Similarly, she lists the "City of Austin" and the "Office of the Attorney General" as witnesses. Plaintiff has refused to respond to Defendants' simple interrogatory asking her to specify her alleged damages and her method for calculating those damages. She has failed to produce most ofthe medical records her exhibit and witness lists suggest she will offer at trial. The Court has already granted Plaintiff extra time to provide proper discovery responses, and now must consider the prejudice these delays have imposed on the Defendants. This case set for trial in June 2004 and the Defendants must have adequate time to prepare their case because it will proceed to trial during that month. Accordingly, although the Court refrains from imposing the harshest
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sanction - dismissal- at this time, it will limit the witnesses and exhibits available to Plaintiffat trial in accordance with the written orders at the end ofthis opinion. B. Motion to Dismiss RICO Claim
The Doubletree Defendants have moved to dismiss Plaintiffs RICO claim. In her RICO statement, Plaintiffmakes clear she is alleging the Doubletree Defendants violated 18 U.S.c. § 1962 (a), (b) and (c) by engaging in an illegal immigrant hiring scheme that has caused her injury.2 See RICO Statement at 8. To state a violation of the provisions of the RICO statute cited by Plaintiff, Plaintiffmust allege the Doubletree Defendants have engaged in a pattern of"racketeering activity" for the purpose of: (a) using the income from racketeering activity to acquire an interest in an enterprise (money laundering), (b) obtaining an interest in an enterprise by means of racketeering activity (loan sharking or extortion); or (c) participating in the operation of an enterprise through a pattern of racketeering activity. See 18 U.S.C. § 1962 (a), (b), & (c); Marriott Bros. v. Gage, 911 F.2d 1105, 1108 (5 th Cir. 1990).3 RICO defines "racketeering activity" by specifically enumerating the statutes that will be considered predicate acts. See 18 U.S.C. § 1961(a); Marriot Bros., 911 F.2d at 1108 ("'Racketeering activity' is defined to include any of the listed acts [in § 1961(a)], as well as certain other federal offenses, usually referred to as predicate acts.").
In her RICO statement, Plaintiff alleges the Doubletree Defendants' predicate act to be "an illegal immigrant hiring scheme." See RICO Statement at 4 (citing 8 U.S.C. § 1324 and Medoza v.
2Plaintiffhas abandoned any allegation regarding mail fraud on the part of the Doubletree Defendants. See RICO Statement at 10 ("Plaintiff is withdrawing all civil RICO claims predicated upon wire, mail fraud or fraud and relying upon violations of the Immigration and Naturalization
Act.").
3Plaintiffdoes not allege the Defendants violated 18 U.S.C. § 1962(d), conspiracy to violate subsections (a), (b), or (c). See RICO Statement at 17.

Zirkle Fruit Co., 301 F.3d 1163 (9th Cir. 2002)). However, the employment of illegal aliens constitutes a violation of8 U.S.C. § 1324a, not 8U.S.C. § 1324, which makes illegal bringing in and harboring illegal aliens. Compare 8 U.S.C. § 1324a and 8 U.S.C. § 1324. Harboring illegal aliens does constitute "racketeering activity" under the RICO statute, while merely employing them does not. See 18 U.S.C. § 1961(1)(F) (defining as racketeering activity "any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens)", which was codified at 8 U.S.C. § 1324, but not mentioning any statute related to employing illegal aliens). Plaintiffdoes not allege the Doubletree Defendants brought her into the United States illegally, harbored her while she resided in the United States, or concealed her from detection by the immigration authorities - in fact, she does not even allege the Doubletree Defendants ever knew how she entered the United States or whether she entered illegally.4 See 8 U.S.C. § 1324; cf Mendoza V. Zirkle Fruit Co., 301 F.3d 1163, 1168 (9th Cir. 2002) (refusing to dismiss civil RICO claim where the plaintiffs alleged "the defendants had knowledge of illegal harboring 'and/or' smuggling."). As such, Plaintiffhas not stated a violation of8 U.S.C. § 1324, and therefore her RICO claim must be dismissed.
Plaintiff in her RICO statement points out the Second Circuit has recognized a violation of 8 U.S.C. § 1324(a) can serve as a predicate act for purposes of RICO and she is correct: a violation of 8 U.S.C. § 1324(a) can serve as a predicate RICO act, but not a violation of 8 U.S.C. § 1324a. See Commercial Cleaning Services, L.L.c. v. Colin Service Systems, Inc. 271 FJd 374,387 & n.4
4Although not relevant at this motion to dismiss stage, the Court notes it has been represented at the hearing that Plaintifftestified in her deposition that she was employed by another hotel in the United States before working at the Doubletree. Regardless ofwhether the Doubletree Defendants nevertheless should have known Plaintiff was brought into the country illegally, she has not alleged what the Doubletree Defendants did in fact know about the circumstances of her immigration.
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(2nd Cir. 2001) (citing 8 U.S.C. § 1324(a)(3)(A)) (emphasis added»). In so far as Plaintiff is attempting to allege the Doubletree Defendants violated § 1324(a)(3)(A), her claim fails because she has not alleged the Doubletree Defendants hired her or other applicants with actual knowledge she or they were brought into the country illegally. See 8 U.S.C. § 1324(a)(3)(A) (declaring it an offense when a person "knowingly hires at least 10 individuals with actual knowledge that the individuals are aliens"); Mgmt. Inc. v. Loiselle, 91 F. Supp. 2d 401, 408 (D. Mass. 2000) (dismissing civil RICO claim predicated on violation of § 1324(a) where plaintiff failed to allege the defendant "had knowledge ofhow the aliens had been brought into the United States and that they were brought into the United States in violation of [§ 1324(a)]"); cf Commercial Cleaning, 271 F.3d at 387(recognizing allegation of actual knowledge required to state a claim under § 1324(a)(3)(A) but remanding to district court because the district court, unlike this Court, had not permitted the plaintiff to replead her RICO claim).
Alternatively, even if the Court were to hold Plaintiff had validly pled a predicate act, the Court would nevertheless dismiss the RICO claim because in order to demonstrate she has standing to assert her RlCO claim, Plaintiff must plead damages to her business or property and that the damages were caused by the Doubletree Defendants' racketeering activity. In her RICO Statement, Plaintiff alleges as a result of the Doubletree Defendants' illegal immigrant hiring scheme, the Defendants took advantage of her undocumented status and failed to pay her overtime, paid her lower wages than documented workers, and denied her raises and promotions. See RICO Statement at 17-18. First ofall, it is not even clear Plaintiffhas alleged any injury to her property or business.s
SAs the Ninth Circuit explained, the property interest RICO protects is "a legal entitlement to business relations unhampered by schemes prohibited by the RICO predicate statutes." Mendoza, 301 FJd at 1168 nA. But in this case, without the Defendants' scheme prohibited by the RICO predicate statutes - that is, without Doubletree's practice ofhiring undocumented workers it is not
-7-

But more importantly, the "illegal immigrant hiring scheme" was not the cause of Plaintiffs decreased wages, lost overtime pay, or lack ofpromotions. As the Fifth Circuit has explained, there must be a direct causal nexus between the plaintiffs alleged injury and the defendant's alleged predicate acts. Marriott Bros., 911 F.2d at 1108. For instance, "an employee discharged for blowing the whistle on his employer's alleged RICO activities could not state a RICO claim because his discharge did not flow from the commission ofthe predicate acts." Marriott Bros., 911 F.2d at 1108 (citing Collum v. Hibernia Nat 'I Bank, 859 F.2d 1211 (5 th Cir. 1988)). Likewise, that Plaintiff received less payor overtime than documented workers or fewer promotions did not flow from the Doubletree Defendants' alleged scheme ofhiring illegal aliens- in fact, the alleged scheme is what resulted in Plaintiff earning any wages at all because presumably, if the Doubletree Defendant refused to hire undocumented workers, Plaintiff would not have earned any wages.
On the other hand, documented Doubletree employees might have a RICO claim against the Doubletree Defendants ifthey could show the wages for housekeepers were depressed as a result of Doubletree's illegal hiring practices. See Mendoza v. Zirkle Fruit Co., 301 FJd 1163, 1168-72 (9th Cir. 2002) (refusing to dismiss civil RICO claim by documented workers who alleged fruit growers conspired to hire undocumented workers in order to depress wages). Similarly, a competing hotel chain might have a RICO claim against the Doubletree Defendants ifit could show it was suffering a business disadvantage as a result ofthe Doubletree Defendants' illegal immigrant hiring scheme. See Commercial Cleaning, 271 FJd at 381 (declaring an adequate relationship between the plaintiffs alleged injury and the defendant's alleged racketeering activity where the plaintiffcleaning company's claimed it was injured by defendant-competitor's ability to underbid it because
clear Plaintiff would have any business relations (i. e., employment) at all. -8-

of the competitor's practice of hiring undocumented workers). In contrast, Plaintiff Ugarte, if anything, benefitted from the Doubletree Defendants' hiring ofundocumented workers.6 Because her alleged injuries were not directly caused by the Doubletree Defendants' alleged illegal immigrant hiring scheme, Plaintiffs RICO claim must be dismissed.
c. Motion to Dismiss Federal Causes of Action
The Plaintiffhas filed a Motion for Dismissal ofFederal Causes ofAction Pursuant to Rule 41 (a)(2) of the Federal Rules of Civil Procedure, or Alternatively, for Leave to Amend Complaint to Withdraw Federal Claims, Motion to Decline Supplemental Jurisdiction and Remand State Claims and Memorandum of Law, which is opposed by the Defendants who have already expended much time and effort on their defense ofthe federal claims. However, it has been brought to this Court's attention that the Equal Employment Commission has filed a discrimination lawsuit in this division that has been assigned to the Honorable James Nowlin, Cause No. A-03-CA-689-JN, based on Plaintiff Ugarte's allegations. Because it will be most efficient to handle these cases together and dismissal of Plaintiff Ugarte's federal claims could prejudice the EEOC's case against the Doubletree Defendants, the Honorable James Nowlin has agreed to transfer the EEOC case to this Court, at which point Court will consolidate the two cases.
In accordance with the foregoing: IT IS ORDERED that the Doubletree Defendants' Motion for Sanctions [#59] and
Defendant Saldana's Motion for Sanctions [#60-1] are GRANTED IN PART, and although
6The Court does not mean to suggest Plaintiffhas not alleged any injuries related to her status as an undocumented worker. However, her discharge and loss of benefits were allegedly caused by the Defendants' discrimination, retaliation, and harassment and this discussion concerns only her RICO claims and her alleged RICO injuries and RICO requires more than a relationship between the injuries and the Defendants' alleged racketeering act - it requires a direct causal nexus.
-9-

the Court will not dismiss this case as requested by the Defendants, it enters the following
orders as sanctions for the Plaintiff:
(1) The following witnesses designated by the Plaintiffs are stricken for failure to comply with the relevant discovery rules: Dale Ossip Johnson, Jason Nassour, Patrick Fagerberg, David Morledge, M.D., Guadalupe Zamora, M.D., Sue Isola, LPC, Roland Williams, M.D., Sharon Lockhart, M.D., Duke Hildreth, David Gann, Delores Laparte-Litton, "City of Austin," Geronima de Paz Flores, Junior Rentaria, Lupe Ugarte Caballero, Teresa Ugarte, Roberto Ugarte, Melissa Mason, James Renkus, M.D., "Office ofthe Attorney General, State of Texas," and Ronald Emmons.
(2) The Court also strikes the following companies designated as "witnesses," unless a representative of the company had been deposed as of March 9, 2004 and that deposition is available to Defendants: DT Management, Inc., Doubletree Management Company, Defendant Doubletree Hotels Corporations, Hilton Hotels Corporation, and Doubletree Hotel Systems, Inc.
(3) Carlos M. Laredo, Plaintiffs designated expert witness, will be permitted to testify only if Plaintiffproduces to Defendants on or before March 16, 2004 Dr. Laredo's complete expert report and all medical records in his possession related to Plaintiff. IfPlaintiffdoes produce the report and records, Defendants have ten (10) days from the date the report and records are produced to designate their own psychologist or psychiatrist.
(4) The following witnesses are the only other witnesses Plaintiffmay call to testify at trial: Plaintiff Petra Ugarte, Defendant Andrew Saldana, Angie Betancourt, Blanca Marroquin, Fernando Nolasco, Bertha Garcia, Ernestina Hernandez, Veronica Garcia, Maria Teresa Gutierrez, Nereyda Sinfuente, Juan Rivera, Stella Fisher, Julia Skinner, Anastacia Nunez, Jorge Ugarte, Gabrielle Ugarte, Juan Carlos Ugarte, and Raul Ugarte.
(5) Plaintiff will be allowed to offer at trial the medical records from the University Physicians Group and Children's Hospital of Austin only if all such records are produced to the Defendants on or before March 16, 2004.
(6) The only exhibits in addition to the aforementioned medical records ofDr. Laredo and the UniversityPhysicians Group and Children's Hospital ofAustin (assuming Plaintiffproduces those records by March 16,2004) that will be available
7The Court reserves the right to assess monetary sanctions on Plaintiff and or Plaintiffs counsel at the end of this case for the grossly incompetent manner in which this case thus far has been handled.
-10-

to the Plaintiff at trial are those exhibits Plaintiffhad already produced to Defendants as ofthe March 9,2004 hearing.
(7) Plaintiff must answer Interrogatory #5 and must set forth her alleged damages and her method ofcalculating those damages on or before March 16, 2004 or her claim for damages will be deemed waived. IT IS FURTHER ORDERED that Defendant Saldana's Request for Expedited Briefing Schedule [#60·2] is DISMISSED AS MOOT. IT IS FURTHER ORDERED that the Doubletree Defendant's Motion to Dismiss [#38] Plaintiffs RICO claim is GRANTED. IT IS FURTHER ORDERED that PlaintiffsMotion for Dismissal ofFederal Causes of Action Pursuant to Fed. R. Civ. P. 41(a)(2) or Alternatively, for Leave to Amend Complaint to Withdraw Federal Claims, Motion to Decline Supplemental Jurisdiction and Remand State Claims [#63] is DENIED.
SIGNED this the 10th day of March 2004.

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

2D!]L, MY -4 Mi 9: 15

PETRA UGARTE and the EQUAL

§

EMPLOYMENT OPPORTUNITY

§

COMMISSION,

§

§

Plaintiffs,

§

§

v.

§

§

DOUBLETREE HOTELS CORPORATION, §

DOUBLETREE HOTEL SYSTEMS, INC., §

HILTON HOTELS CORPORATION, X

§

D/B/A DOUBLETREE HOTEL

§

DT MANAGEMENT, INC., DIB/A

§

DOUBLETREE HOTEL DIB/A

§

DOUBLETREE GUEST SUITES AUSTIN §

and ANDREW SALDANA

§

§

Defendants.

§

CONSOLIDATED CIVIL ACTION NUMBER A-03-CA-596-SS

ORDER OF DISMISSAL On this day came to be considered Plaintiffs', Petra Ugarte ("Ugarte") and the Equal Employment Opportunities Commission ("EEOC"), and Defendants', Doubletree Hotels Corporation, Doubletree Hotel Systems, Inc., Hilton Hotels Corporation, DT Management, Inc. ("DT"), d/b/a Doubletree Hotel dlb/alDoubletree Guest Suites Austin, and Doubletree Management Company ("Doubletree") and Andrew Saldana ("Saldana"), Joint Motion for Dismissal with Prejudice. After reviewing the Joint Motion, the Court finds that the Motion should be, in all things, GRANTED. IT IS THEREFORE,
ORDERED, that pursuant to the Agreed Motion for Dismissal With Prejudice filed by the Parties, the Court hereby orders that this action is hereby DISMISSED WITH PREJUDICE TO THE REFILING OF SAME, except that the Court shall retain ancillary jurisdiction to enforce

ORDER OF DISMISSAL DALLAS 1389591vl

PAGE 1

the Settlement Agreement between the EEOC and DT. Any subsequent pleading to enforce the Settlement Agreement shall be filed under the style, Equal Employment Opportunity Commission
v. Dr Management, Inc. Civil Action No. A-03-CA-596-SS. All costs and fees are to be borne
by the party incurring same.
:2 SIGNED this ~ay Of __1_n_d-7'---+_ _ _ _, 2004.

SUBMITTED AND APPROVED:

TH~~~
UNITED STATES DISTRICT JUDGE

Robert B. Harwin Regional Attorney Judith G. Taylor Equal Employment Opportunity Commission Attorneys for Plaintiff EEOC

Is!
(
Ronald M. Gaswirtb Gardere Wynne Sewell, LLP Attorneys for Doubletree Defendants

Dale Ossip Johnson The Johnson Lawfirm Jason Nassour Florey, Keel, & Nassour Ricbard Patrick Fagerberg Law Offices of Richard Patrick Fagerberg Attorneys for Plaintiff Ugarte

Connie Cornell Cornell, Smith, & Mierl Attorneys for Saldana

ORDER OF DISMISSAL DALLAS 1389591vl

PAGE2

Settlement Agreement between the EEOC and DT. Any subsequent pleading to enforce the Settlement Agreement shall be filed under the style, Equal Employment Opportunity Commission v. DT Management, Inc. Civil Action No. A-03-CA-596-SS. All costs and fees are to be borne by the party incurring same.
SIGNED this _ _ day _ _ _ _ _ _ _ _ _, 2004.

SUBMITTED AND APPROVED:

THE HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE

Judith G. Taylor Equal Employment Opportunity Commission Attorney for Plaintiff EEOC

onald M. GaSWI h Gardere Wynne Sewell, LLP Attorneys for Doubletree Defendants

",u;.'1I!7l1sip Johnson e Johnson Lawfirm Jason Nassour Florey, Keel, & Nassour Richard Patrick Fagerberg Law Offices of Richard Patrick Fagerberg Attorneys for Plaintiff Ugarte

~,~dP,~

:#5" Connie Cornell

I ~~Mt

Cornell, Smith, & Mierl IX8#-

Attorneys for Saldana

ORDER OF DISMISSAL DALLAS 1389591vl

PAGE

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

FILED
M:~Y 4 2004

Plaintiff, v. DT MANAGEMENT, INC.,
Defendant.

§

§

§

§

§

CONSOLIDATED

§

CIVIL ACTION NUMBER

§

A-03-CA-596-SS

§

§

§

SETTLEMENT AGREEMENT The parties to this Settlement Agreement are the Plaintiff United State Equal Employment Opportunity Commission ("EEOC") and DT Management, Inc. ("DT"). This Settlement Agreement resolves only the EEOC's claims in the above-referenced consolidated Civil Action No. A-03-CA-596-SS. The EEOC and DT wish to settle this action without the necessity of further litigation, pursuant to the terms delineated in this Settlement Agreement. By entering into this Settlement Agreement, DT expressly denies the validity of any claim and/or cause of action asserted in the Complaint, and DT enters into the Settlement Agreement for the sole purpose of avoiding the expenses associated with this litigation. DT further asserts that by entering into this Settlement Agreement it makes no admission of liability or wrongdoing and makes no admission that its alleged conduct was improper, discriminatory or illegal in any respect. IT IS AGREED as follows: 1. This Court has jurisdiction of the subject matter of the action and the parties, venue is proper and all administrative prerequisites to the filing of this action have been met.

SETTLEMENT AGREEMENT DALLAS 1389593v2

PAGE 1

2. This Settlement Agreement resolves all issues and/or causes of action asserted by and/or on behalf of Petra Ugarte, as alleged in the EEOC's Complaint and those claims raised in Petra Ugarte's charge of discrimination, Charge No. 36A-2002-00382. The EEOC expressly reserves its right, however, to process and litigate any other charge which may now be pending or may in the future be field against DT.
3. The duration of this Settlement Agreement shall be two (2) years from the date of filing with the Court. DT shall be dismissed with prejudice pursuant to the Joint Motion for Dismissal filed contemporaneously herewith, subject to the Court's ancillary jurisdiction to ensure implementation and enforcement of the Settlement Agreement. In the event there is a question as to compliance with or implementation of the Settlement Agreement, before seeking assistance from the Court, the party complaining about compliance andlor implementation shall first send a letter detailing all issues it believes fail to comply with the Settlement Agreement and allow the receiving party ten (10) business days to respond to such letter. If the issues are not resolved by correspondence, the parties shall within twenty (20) business days of the date of the response meet face-to-face to discuss the issues believed to not comply with the Settlement Agreement. If no resolution can be reached after the face-to-face conference, the party complaining about compliance may then file a motion with the Court to enforce the Settlement Agreement. Any motion filed with the Court must certify that both the correspondence and the face-to-face prerequisites have been met.
4. The scope of the Settlement Agreement is limited in its application to the DT location at which the initial charge of discrimination arose in Austin, Texas.
5. Within thirty (30) days of the Court's entry of the Order of Dismissal, DT shall pay two hundred eighty-five thousand and 00/100 dollars ($285,000.00) to Petra Ugarte, in
SETTLEMENT AGREEMENT DALLAS 1389593v2

accordance with the tenns and conditions of a separate settlement agreement entered into by and between Petra Ugarte and DT. A copy of the settlement checks(s) and any accompanying transmittal documents shall be forward to the EEOC to the attention of Robert B. Harwin, Regional Attorney, 5410 Fredericksburg Road, Suite 200, San Antonio, Texas 78229.
6. Subject to the provisions of paragraph 4 above, DT and its officers, agents, management, successors, and assigns shall not discriminate against any employees on the basis of sex in violation of Title VII.
7. Subject to the provlSlons of paragraph 4 above, DT, its agents, officers, employees, servants, successors, and assigns, shall retain its practice of maintaining its sexual harassment policy which currently meets the following criteria:
a. States that DT: (i) prohibits discrimination against employees on the basis of sex in violation of Title VII; (ii) prohibits any act, policy or practice that has the effect of harassing or intimidating any employee on the basis of sex in violation of Title VII; and (iii) prohibits any act, policy or practice that has the effect of creating, facilitating or pennitting the existence of a work environment that is hostile to employees through acts such as physical or verbal abuse and derogatory comments based on sex in violation of Title VII;
b. Defines and provides example of sexual harassment; c. Provides for prompt investigation of sexual harassment complaints and for
prompt action, which is appropriate and effective, to remedy the discrimination;
SETTLEMENT AGREEMENT DALLAS 1389593v2

d. Promptly communicates to the complaining party upon the conclusion of its investigation the results of the investigation and the remedial actions taken or proposed, if any; and
e. Provides for discipline for violating Dr's sexual harassment policy up to and including discharge.
8. Subject to the provisions of paragraph 4 above, DT shall maintain the current complaint procedure in its Employee Handbook that is designed to encourage employees to come forward with complaints regarding violations of the sexual harassment policy regardless of the position held by the alleged harasser.
9. Subject to the provisions of paragraph 4 above, DT shall promote manager and supervisor accountability by providing the following:
a. Annual two (2) hour sexual harassment training to all of its managerial, and/or supervisory personnel as stipulated in paragraphs 10 through 12;
b. The training shall include: (i) explaining that sexual harassment IS unlawful; (ii) instructing what conduct may constitute sexual harassment; (iii) explaining the effects sexual harassment may have on its victims, their families, their co-workers, and the workplace environment; (iv) information so that supervisors and management know how to enforce DT's sexual harassment policy; (v) information regarding discipline, up to and including discharge, of any supervisor or manager who violates DT's sexual harassment policy; (vi) requiring all supervisors and management to monitor their work areas to ensure compliance with DT's sexual harassment policy; (vii) requiring all supervisors and management to
SETTLEMENT AGREEMENT DALLAS 1389593v2

report any incidents andlor complaints of sexual harassment of which they become aware to the person charged with handling such complaints. 10. Subject to the provisions of paragraph 4 above, DT will provide annual training to all employees on Title VII according to the follow terms: a. DT shall, for the tenn of this Settlement Agreement, retain and pay Gardere Wynne Sewell LLP to provide annual training, lasting no fewer than two (2) hours in length, on the subject ofthe provisions of Title VII; b. The training will be provided to all DT employees. A qualified interpreter shall translate this training into the Spanish language for the benefit of any employee that desires training in Spanish. All participants shall be required to sign a registry upon completion of the training; and c. DT shall provide the initial training session in accordance with this paragraph within 90 calendar days after the entry of this Settlement Agreement. 11. Within twenty (20) business days prior to any proposed training pursuant to this Settlement Agreement, DT shall submit the date(s) of the proposed training session and a topic outline of the contents of the training to EEOC. EEOC shall then have ten (10) business days from the date of receipt of the information to accept or reject the proposed contents of the topic outline. In the event that EEOC does not approve DT's outline, DT shall have ten (10) business days to submit a revised outline. 12. During the first year of the Settlement Agreement, DT shall provide EEOC with copies of pamphlets, brochures, outlines or other written, audio taped or videotaped materials(s) provided to the participates of all training sessions(s) within ten (10) business days after the

SETTLEMENT AGREEMENT DALLAS 1389593v2

PAGES

initial training, if any. If during the term of the Settlement Agreement, the pamphlets, brochures, outlines or other written, audio taped or videotaped material(s) provided to the participants of such training sessions(s) are revised, supplemented and/or otherwise amended, all such materials shall be provided to the EEOC within ten (10) business days after such revisions, supplementation, and/or amendments.
13. During the remaining term of this Settlement Agreement and within ten (10) business days after the anniversary of the date of entry of the Settlement Agreement, DT shall provide this same training pursuant to and in compliance with paragraphs 10 through 12 for all new employees, and for those employees who missed the initial training session.
14. DT shall certify annually to EEOC, in writing, that the training has taken place and that required personnel attended. Such certification shall include:
a. The date, location and duration of the training; b. A copy of the registry of attendance which shall include the name and
position or titled of each person in attendance; and c. A listing of all current management and supervisors as of the date of
training. 15. Within ten (10) business days after entry of this Settlement Agreement, DT shall post copies of the Notice (8 12 in. x 11 in.) attached as Exhibit "A" to this Settlement Agreement at the location defined by paragraph 4, in a location easily accessible to and commonly frequented by employees. The Notice shall remain posted for the duration of this Settlement Agreement from the date of entry of this Settlement Agreement. DT shall certify to the EEOC in writing within ten (10) business days after entry of the settlement Agreement that the Notice has been properly posted.
SETTLEMENT AGREEMENT DALLAS 1389593v2

16. During the tenn of the Settlement Agreement, DT shall maintain records (including name, sex, age, social security number, address and telephone number) of each person who complains, either fonnally or infonnally, of sexual harassment or hostile work environment based on sex. Additionally, DT shall maintain records of the investigation and resolution of each complaint.
17. The tenns of the Settlement Agreement shall be binding upon the EEOC and DT and their agents officers, employees, servants, successors and assigns, as to the issues resolved herein.
18. The parties to this Settlement Agreement shall bear their own costs and attorney's fees incurred in this action. The parties agree that, pursuant to Section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), there is no "prevailing party" in this action or proceeding.
SETTLEMENT AGREEMENT DALLAS 1389593v2

AGREED AS TO FORM AND SUBSTANCE:

Respectfully submitted,

Eric S. Drieband General Counsel
James L. Lee Deputy General Counsel
Gwendolyn Young Reams Associate General Counsel
Robert B. Harwin Regional Attorney D.C. State Bar No. 076083

Judith G. Taylor 1_ Supervisory Trial Attorney
---- te as State Bar No. 708300
,
Edward Juarez Trial Attorney Texas State Bar No. 24014498
~~uJ.
Jenn er Randall Trial Attorney Colorado State Bar No. 33240
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION San Antonio District Office 5410 Fredericksburg Rd., Suite 200 San Antonio, Texas 78229-3555 Telephone: 210-281-7673 Telecopier: 210-281-7669
ATTORNEYS FOR PLAINTIFF EEOC

SETTLEMENT AGREEMENT DALLAS 1389593v2

PAGE 8

onald M. Gaswirth Texas State Bar No. 07752000 Celeste Y. Winford Texas State Bar No. 00797715 Gardere Wynne Sewell, L.L.P. 3000 Thanksgiving Tower 1601 Elm Street Dallas, Texas 75201 Telephone: 214-999-3000 Facsimile: 214-999-4667
ATTORNEYS FOR DEFENDANTS DOUBLETREE HOTEL CORPORATION, DOUBLETREE HOTEL SYSTEMS, INC., X d/b/a DOUBLETREE HOTEL, HILTON HOTELS CORPORATION, X d/b/a DOUBLETREE GUEST SUITES

SETTLEMENT AGREEMENT DALLAS 1389593v2

PAGE 9

 
 PETRA UGARTE,
-vs-

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

FILED
2003 OC I6 Pt'l 3: 16

Plaintiff,

; : 7h>,'<,:,i,::,::,I':; ;~",

" "

'-i ••I. VI, .':'i'\ ," .J '. I [.

t:y: . . .._",.-."""___......-~~_.. r', -. '1":. ; './
Case No. A·03·CA·596·SS

DOUBLETREE HOTEL CORPORATION; DOUBLETREE HOTEL SYSTEMS, INC.; Xd/b/a Doubletree Hotel; and ANDREW SALDANA,
Defendants.

ORDER

.J.I!! BE IT REMEMBERED on the

day of October 2003 the Court reviewed the file in the

above-styled cause, and specifically the defendant Saldana's Motion to Dismiss [#9] filed September

17, 2003, and noting there is no opposition to said motion as required by the local rules of this

district and, therefore, this is an uncontested motion, the Court enters the following:

IT IS ORDERED that the defendant Saldana's Motion to Dismiss is GRANTED as an

uncontested motion and the causes of action alleged against Andrew Saldana filed pursuant to Title

VII of the Civil Rights Act and/or the Texas Commission on Human Rights Act as well as the causes

of action for "invasion of privacy" are dismissed against him, and

IT IS FURTHER ORDERED that the plaintiff's counsel review the local rules of this district

and within ten days of this date file an amended pleading specifically setting out each cause of action

against each defendant herein.

SIGNED this the /1'1 day of October 2003.

UNITED STATES ISTRICT JUDGE
\~

 
 CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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CLOSED, CONSOLIDATED
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:03-cv-00596-SS

Ugarte v. Double Tree Hotel Co, et al Assigned to: Honorable Sam Sparks Demand: $0 Case in other court: member case, 1:03-cv-00689
201st, Travis County, GN303055 Cause: 28:1441 Petition for Removal - 42:1983 Civil Rights

Date Filed: 08/26/2003 Date Terminated: 05/04/2004 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Petra Ugarte

represented by Dale Ossip Johnson The Johnson Firm, PLLC P.O. Box 427 Cedar Park, TX 78613-0427 (512) 328-7764 Fax: (866) 710-4436 Email: ossip@ossipian.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason Nassour Keel & Nassour, L.L.P. 508 West 14th Street Austin, TX 78701 (512) 480-8693 Fax: 512/480-8170 Email: jason@keelnassour.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

R. Patrick Fagerberg Law Office of R. Patrick Fagerberg 508 W. 14th St. Austin, TX 78701 (512) 480-8693 Fax: 512/480-8170 Email: patrick@fagerberglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Consol Plaintiff
Equal Employment Opportunity Commission

represented by Edward Juarez U.S. EEOC San Antonio District Office

1 of 10

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CM/ECF LIVE - U.S. District Court:txwd - Docket Report
V. Defendant Double Tree Hotel Corporation
Defendant Doubletree Hotel Systems, Inc.
2 of 10

https://ecf.txwd.uscourts.gov/cgi-bin/DktRpt.pl?100839883415335-L_3...
5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7613 Fax: (210) 281-7669 Email: eduardo.juarez@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Randall Equal Employment Opportunity Commission San Antonio Field Office 5410 Fredericksburg Road Suite 200 San Antonio, TX 78229-3555 (210) 281-7636 Fax: 210/281-7669 Email: jennifer.randall@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celeste Yeager Winford Gardere Wynne Sewell, LLP 1601 Elm Street Suite 3000 Dallas, TX 75201 (214) 999-4311 Fax: 214/999-4667 Email: cwinford@gardere.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth Gardere & Wynne 1601 Elm St. Ste. 2600 Dallas, TX 75201 (214) 999-4500 Fax: 214/999-3601 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celeste Yeager Winford (See above for address)
6/4/2007 2:11 PM

CM/ECF LIVE - U.S. District Court:txwd - Docket Report
Defendant X doing business as Doubletree Hotel
Defendant Andrew Saldana
Defendant Hilton Hotels Corp.
3 of 10

https://ecf.txwd.uscourts.gov/cgi-bin/DktRpt.pl?100839883415335-L_3...
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celeste Yeager Winford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Brett J. Strand Cornell Smith & Mierl, LLP 1221 S. MoPac Expy. Suite 330 Austin, TX 78746 (512) 328-1540 Fax: 512/328-1541 Email: bstrand@cornellsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Connie Cornell 1221 S. MoPac #330 Austin, TX 78746 (512) 328-1540 Fax: 512/328-1541 Email: ccornell@cornellsmith.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celeste Yeager Winford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
6/4/2007 2:11 PM

CM/ECF LIVE - U.S. District Court:txwd - Docket Report

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Defendant DT Management, Inc.
Defendant Doubletree Management Company

represented by Celeste Yeager Winford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Celeste Yeager Winford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald M. Gaswirth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed
08/26/2003 08/26/2003
08/26/2003
08/29/2003
09/04/2003
09/04/2003 09/11/2003
09/17/2003 09/17/2003 09/18/2003

#

Docket Text

Case assigned to Honorable Sam Sparks (fe) (Entered: 08/27/2003)
1 Notice for Removal Filing Fee: $ 150.00 Receipt # 344168 (Pages: 19 + 11) (fe) Modified on 08/27/2003 (Entered: 08/27/2003)
2 Notice of filing corporate disclosure statement by Double Tree Hotel Co, Doubletree Hotel Sys, X (mc2) (Entered: 08/29/2003)
3 Order that defendants supplement the record from state court within 10 days of this Order, signed by Honorable Sam Sparks (mc2) (Entered: 08/29/2003)
4 Order setting scheduling recommendations due from the parties for 10/24/03 signed by Honorable Sam Sparks (tdk) (Entered: 09/08/2003)
5 Demand for jury trial by Petra Ugarte (tdk) (Entered: 09/08/2003)
6 Appendix to Dfts' removal petition [1-1] by Double Tree Hotel Co, Doubletree Hotel Sys, Andrew Saldana (tdk) (Entered: 09/11/2003)
8 Answer by Andrew Saldana (tdk) (Entered: 09/18/2003)
9 Motion by Andrew Saldana to dismiss (tdk) (Entered: 09/18/2003)
7 Second Supplemental Appendix for removal petition [1-1] by Double Tree Hotel Co, Doubletree Hotel Sys, X (tdk) (Entered: 09/18/2003)

4 of 10

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10/14/2003 10/14/2003 10/14/2003 10/16/2003
10/16/2003 10/23/2003
10/28/2003 10/29/2003 11/12/2003 11/21/2003 12/02/2003
12/11/2003 12/11/2003 12/17/2003 12/23/2003 12/23/2003

10 Notice of filing Report Regarding Rule 26(f) Conference by Petra Ugarte, Double Tree Hotel Co, Doubletree Hotel Sys, X, Andrew Saldana (td) (Entered: 10/15/2003)
11 Notice of attorney appearance for Petra Ugarte by Dale Ossip Johnson (td) (Entered: 10/15/2003)
Recommendations for scheduling order by Petra Ugarte, Double Tree Hotel Co, Doubletree Hotel Sys, X, Andrew Saldana (td) (Entered: 10/15/2003)
12 Order granting Dft Saldana's motion to dismiss particular claims [9-1] signed by Honorable Sam Sparks; further Ordered that Pltf's file within ten (10) days an amended pleading specifically setting out each cause of action against each Dft herein. (tdk) Modified on 11/05/2003 (Entered: 10/17/2003)
13 Notice of filing by Double Tree Hotel Co, Doubletree Hotel Sys, X of initial disclosures (tdk) (Entered: 10/17/2003)
14 Scheduling order setting Joining of parties, amending of pleadings on 12/30/03; Deadline for filing of all motions 4/28/04; Discovery cutoff 4/21/04; Docket Call set for 11:00 5/28/04; Alternate Dispute Resolution Report due by 11/28/03; trial to be held in June 2004; signed by Honorable Sam Sparks (tdk) (Entered: 10/24/2003)
15 Notice of attorney appearance for Petra Ugarte by R. Patrick Fagerberg (tdk) (Entered: 10/30/2003)
16 Notice of attorney appearance for Petra Ugarte by Dale Ossip Johnson (tdk) (Entered: 10/30/2003)
17 Amended complaint by Petra Ugarte (Pages: 31) (tdk) (Entered: 11/14/2003)
Proposed order extending Dft's answer deadline submitted for the the Court's approval and signature. (tdk) Modified on 11/24/2003 (Entered: 11/24/2003)
18 Agreed Order setting answer due to Pltf's second amended complaint for 12/11/03 by Dfts Hilton Hotels Corp., Andrew Saldana, X, Doubletree Hotel Sys, Double Tree Hotel Co signed by Honorable Sam Sparks (tdk) (Entered: 12/02/2003)
Agreed Order Extending Answer Deadline rec'd and forwarded to Judge for signature; motion to extend deadline not submitted. (tdk) (Entered: 12/12/2003)
19 Third Amended complaint by Petra Ugarte against DT Management, Inc., Doubletree Management Company, (Pages: 32) (tdk) (Entered: 12/18/2003)
20 Agreed Order extending answer deadline; signed by Honorable Sam Sparks; further Ordered that this will be the last extension of time; answer deadline to Pltf's third amended complaint is 12/23/03. (tdk) (Entered: 12/18/2003)
21 Amended answer by Andrew Saldana : answer [8-1] (td) (Entered: 12/29/2003)
22 Motion by Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen for leave to exceed page limit re: motion for partial dismissal (td) (Entered: 12/29/2003)

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12/23/2003 12/23/2003
12/23/2003
12/30/2003 12/31/2003 01/06/2004
01/15/2004
01/15/2004
01/15/2004 01/15/2004 01/15/2004 01/15/2004 01/16/2004 01/16/2004 01/16/2004
01/16/2004

23 Motion by Andrew Saldana for partial dismissal under Fed. R. Civ. P. 12(b)(6) (td) (Entered: 12/29/2003)
24 Amended answer to third amd cmp by Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen : answer [8-1] (td) (Entered: 12/29/2003)
25 Motion by Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen for partial dismissal of pltf's third amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) (td) (Entered: 12/29/2003)
26 Order granting motion for leave to exceed page limit re: motion for partial dismissal [22-1] signed by Honorable Sam Sparks (mc2) (Entered: 12/30/2003)
27 Fourth Amended complaint by Petra Ugarte (Pages: 37) (tdk) (Entered: 01/05/2004)
28 Motion by Plft Petra Ugarte to extend time to respond to Dft's motion for partial dismissal of Pltf's third amended complaint and Dft Saldana's motion for partial dismissal. (tdk) (Entered: 01/07/2004)
29 Response by Pltf Petra Ugarte to Dfts' motion for partial dismissal of Pltf's third amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) [25-1] (tdk) (Entered: 01/16/2004)
30 Memorandum by Pltf Petra Ugarte in support of Pltf's response [29-1] to Dfts' motion for partial dismissal of Pltf's third amended complaint. (tdk) (Entered: 01/16/2004)
31 Response by Pltf Petra Ugarte to Dft Saldana's motion for partial dismissal under Fed. R. Civ. P. 12(b)(6) [23-1] (tdk) (Entered: 01/16/2004)
32 Memorandum by Pltf Petra Ugarte in support of Pltf's response [31-1] to Dft Saldana's motion for partial dismissal. (tdk) (Entered: 01/16/2004)
33 Motion by Plft Petra Ugarte to dismiss Dfts' motion for partial dismissal of Pltf's third amended complaint for mootness (tdk) (Entered: 01/16/2004)
34 Motion by Pltf Petra Ugarte to dismiss Dft Saldana's motion for partial dismissal for mootness. (tdk) (Entered: 01/16/2004)
35 Second Amended answer by Andrew Saldana : answer [8-1] (tdk) (Entered: 01/20/2004)
36 Motion by Andrew Saldana for partial dismissal (tdk) (Entered: 01/20/2004)
37 Motion by Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen for leave to exceed page limit for Dfts' motion to dismiss. (tdk) (Entered: 01/20/2004)
38 Motion by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen to dismiss Pltf's RICO and 42 U.S.C.1985(3) claims (tdk) (Entered: 01/20/2004)

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01/16/2004 01/20/2004 01/22/2004 01/22/2004 01/26/2004
01/28/2004 01/29/2004 01/29/2004 01/29/2004 01/29/2004 02/02/2004 02/04/2004 02/05/2004 02/06/2004 02/06/2004 02/06/2004

39 Second Amended answer by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Management to Pltf's fourth amended complaint : answer [8-1] (tdk) (Entered: 01/20/2004)
40 Order granting motion for leave to exceed page limit for Dfts' motion to dismiss. [37-1] signed by Honorable Sam Sparks (tdk) (Entered: 01/20/2004)
41 Motion by Pltf Petra Ugarte to extend time to designate expert witnesses (tdk) Modified on 01/28/2004 (Entered: 01/23/2004)
42 Motion by Pltf Petra Ugarte to amend Scheduling order [14-1] (tdk) (Entered: 01/23/2004)
43 Alternate Dispute Resolution Report filed by Petra Ugarte, Double Tree Hotel Co, Doubletree Hotel Sys, X, Andrew Saldana, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen, Parties agree to Alternate Dispute Resolution (tdk) (Entered: 01/26/2004)
44 Motion by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen to compel discovery (tdk) (Entered: 01/28/2004)
45 Motion by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen to expedite ruling on Dfts' motion to compel discovery (tdk) (Entered: 01/29/2004)
46 Response by Pltf Petra Ugarte to Dfts' motion to dismiss Pltf's RICO and 42 U.S.C.1985(3) claims [38-1] (tdk) (Entered: 01/30/2004)
47 Response by Petra Ugarte to Dft Saldana's second motion for partial dismissal [36-1] (tdk) (Entered: 01/30/2004)
48 Memorandum by Petra Ugarte in support of Pltf's response to Dft Saldana's second motion for partial dismissal [36-1] (tdk) (Entered: 01/30/2004)
49 Order setting miscellaneous hearing on all pending matters for 2:00 2/6/04 signed by Honorable Sam Sparks (tdk) (Entered: 02/02/2004)
50 Order set status conference for 2:00 2/6/04 in Courtroom 2, 1st floor signed by Honorable Sam Sparks (fe) (Entered: 02/04/2004)
51 Reply by Andrew Saldana to Pltf's response to Dft Saldana's motion for partial dismissal [36-1] (tdk) (Entered: 02/05/2004)
52 Reply by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc. to Pltf's response to motion dismiss Pltf's RICO and 42 U.S.C.1985(3) claims [38-1] (tdk) (Entered: 02/06/2004)
Status conference held; parties announced ready; statements and arguements of counsel heard; motions regarding RICO claims are taken under advisement; written order forthcoming. (tdk) (Entered: 02/09/2004)
53 Order signed by Honorable Sam Sparks that Pltf shall file within fifteen (15) days of this Order a RICO case statement. (tdk) (Entered: 02/09/2004)

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02/06/2004
02/06/2004 02/06/2004 02/09/2004 02/10/2004
02/19/2004 02/20/2004 02/20/2004

Oral order made during status conference by Honorable Sam Sparks: granting motion to expedite ruling on Dfts' motion to compel discovery [45-1]; granting motion to compel discovery [44-1], all interrogatories and requests to produce due by 5:00 2/13/04; granting motion for partial dismissal [36-1]; granting motion to dismiss Saldana's motion for partial dismissal for mootness; granting motion to dismiss Dfts' motion for partial dismissal of Pltf's third amended complaint for mootness [33-1]; dismissing motion to extend time to respond to Dft's motion for partial dismissal of Pltf's third amended complaint and Dft Saldana's motion for partial dismissal [28-1]; dismissing motion for partial dismissal under Fed. R. Civ. P. 12(b)(6) [23-1]; dismissing motion to extend to designate expert witnesses [41-1]; dismissing motion for partial dismissal of pltf's third amended complaint to Fed. R. Civ. P. 12(b)(6) [25-1] (tdk) (Entered: 02/09/2004)
55 Combined Witness, Exhibit and Expert List by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen (tdk) (Entered: 02/09/2004)
56 Combined Witness, Exhibit and Expert List by Andrew Saldana (tdk) (Entered: 02/09/2004)
54 Minutes of proceedings for status conference conducted on 2/6/04 by Judge Sparks. Court Reporter: Lily Reznik (tdk) (Entered: 02/09/2004)
57 Order granting motion to expedite ruling on Dfts' motion to compel discovery [45-1], granting motion to compel discovery [44-1], Pltf is Ordered to fully respond to Dfts' discovery on or before 2/13/04 and pay $500 in atty fees to Dfts; denying motion to amend Scheduling order [42-1]; denying motion to extend time to designate expert witnesses [41-1]; granting in part Dfts' motion to dismiss Pltf's RICO and 42 U.S.C.1985(3) claims and the Court carries the portion of the motion related to Pltf's RICO claims after the Court receives Pltf's response to Court's order [38-1]; granting Dft Saldana's motion for partial dismissal [36-1] for failure to state a claim; granting motion to dismiss Dft Saldana's motion for partial dismissal for mootness [34-1]; granting Pltf's motion to dismiss Dfts' motion for partial dismissal of Pltf's third amended complaint for mootness [33-1]; dismissing as moot Pltf's motion to extend time to respond to Dft's motion for partial dismissal of Pltf's third amended complaint and Dft Saldana's motion for partial dismissal [28-1]; dismissing as moot Dfts' motion for partial dismissal of pltf's third amended complaint [25-1], dismissing as moot Dft Saldana's motion for partial dismissal [23-1]; setting status conference for 2:00 2/27/04 signed by Honorable Sparks (tdk) (Entered: 02/11/2004)
58 Motion by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Management for sanctions , and for expedited hearing , and for briefing schedule (tdk) (Entered: 02/20/2004)
59 Motion by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Management for sanctions , and for expedited hearing and , briefing shedule (same motion as doc. 58 except with exhibits (tdk) (Entered: 02/20/2004)
60 Motion by Andrew Saldana for sanctions , and for expedited hearing and briefing schedule (td) (Entered: 02/23/2004)

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02/23/2004
02/23/2004 02/27/2004
02/27/2004 02/27/2004 02/27/2004 03/01/2004 03/04/2004 03/05/2004 03/05/2004
03/09/2004 03/09/2004 03/10/2004

61 Order granting Dfts' motion for exedited hearing and briefing shedule [59-2]; Court will hear argument on Dfts' motion for sactions at the status conference set for 2/27/04 at 2:00; dismissing Dfts's motions [58-1] as moot in light of the idential motion filed on 2/20/04 without exhibits; Motion hearing motion for sanctions [59-1] for 2:00 2/27/04 signed by Honorable Sam Sparks (tdk) (Entered: 02/24/2004)
62 RICO case statement by Pltf Petra Ugarte (tdk) (Entered: 02/24/2004)
63 Motion by Pltf Petra Ugarte to dismiss federal causes of action , or, alternatively, for leave to amend complaint (fourth amended complaint [27-1]) , motion to decline supplemental jurisdiction and remand state claims and memorandum of law (tdk) (Entered: 03/01/2004)
64 Response by Pltf Petra Ugarte to Dft Salana's motion for sanctions [60-1], motion for expedited hearing and briefing schedule [60-2] (tdk) (Entered: 03/01/2004)
65 Response by Pltf Petra Ugarte to Dft Doubletree's motion for sanctions [59-1] and request for expedited hearing [59-2] and briefing schedule [59-3] (tdk) (Entered: 03/01/2004)
66 Minutes of proceedings for status conference/motions hearing NOT conducted; scheduled for hearing on 2/27/04 by Judge Sparks. Court Reporter: Lily Reznik; Court will reset at a later date. (tdk) (Entered: 03/01/2004)
67 Order setting status conference for 2:00 3/9/04 signed by Honorable Sam Sparks (tdk) (Entered: 03/02/2004)
68 Reply by Andrew Saldana to response to motion for sanctions [60-1] (td) (Entered: 03/04/2004)
69 Reply brief by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen in support of their motion for sanctions [59-1] (tdk) (Entered: 03/08/2004)
70 Response by Dfts Double Tree Hotel Co, Doubletree Hotel Sys, Andrew Saldana, Hilton Hotels Corp., DT Management, Inc., Doubletree Management to Pltf's motion to decline supplemental jurisdiction and remand state claims [63-3] (tdk) (Entered: 03/08/2004)
Status conference held; parties announced ready; statements and arguments of counsel heard; written order forthcoming. (tdk) (Entered: 03/11/2004)
71 Minutes of proceedings for status conference conducted on 3/9/04 by Judge Sparks. Court Reporter: Lily Reznik (tdk) (Entered: 03/11/2004)
72 Order granting in part, denying in part motion for sanctions [59-1]; granting in part, denying in part motion for sanctions [60-1]; dismissing as moot motion for expedited hearing and schedule [60-2]; granting motion to dismiss Pltf's RICO and 42 U.S.C.1985(3) claims [38-1]; denying motion to dismiss federal causes of action [63-1]; denying motion for leave to amend complaint (fourth amended complaint [27-1]); denying motion to decline supplemental jurisdiction and remand state claims and memorandum of law [63-3] by Honorable Sam Sparks (tdk) (Entered: 03/11/2004)

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03/11/2004 03/15/2004 03/17/2004 03/17/2004 03/24/2004 03/31/2004 04/21/2004 04/21/2004 05/04/2004 05/04/2004 05/04/2004 05/04/2004

73 Order signed by Honorable Sam Sparks consolidating this case with A:03-CA-689 for all purposes; all docketing is to be done in this case. (tdk) (Entered: 03/12/2004)
74 Notice of attorney appearance for Equal Employment Opp by Jennifer Randall (tdk) (Entered: 03/17/2004)
75 Motion by Pltf Equal Employment Opp to amend caption (tdk) (Entered: 03/17/2004)
76 Motion by Pltf Equal Employment Opp to amend Scheduling order [14-1] (tdk) (Entered: 03/17/2004)
77 Order denying motion to amend Scheduling order [14-1] [76-1], granting in part, denying in part motion to amend caption [75-1] signed by Honorable Sam Sparks (tdk) (Entered: 03/26/2004)
78 Advisory to the court filed by Equal Employment Opportunity Comm.; pursuant to mediation, parties have settled. (tdk) (Entered: 04/01/2004)
79 Joint motion by Petra Ugarte, Double Tree Hotel Co, Doubletree Hotel Sys, X, Andrew Saldana, Hilton Hotels Corp., DT Management, Inc., Doubletree Managemen, Equal Employment Opp to dismiss (tdk) (Entered: 04/22/2004)
80 Joint motion by DT Management, Inc., Equal Employment Opp to enter settlement agreement (agrmt rec'd) (tdk) Modified on 04/22/2004 (Entered: 04/22/2004)
81 Order granting joint motion to enter settlement agreement [80-1] signed by Honorable Sam Sparks (tdk) (Entered: 05/04/2004)
82 Notice of filing by Dft DT Management, Inc., and Pltf Equal Employment Opportunity Commission of settlement agreement resolving claims between these two parties. (tdk) (Entered: 05/04/2004)
83 Order granting joint motion to dismiss [79-1] with prejudice; signed by Honorable Sam Sparks (tdk) (Entered: 05/04/2004)
Case closed (tdk) (Entered: 05/04/2004)

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