No:

In The Supreme Court of the United States

Rehan Sheikh v. Petitioner,

Cisco Systems Inc. Respondent

On Petition for A Writ of Certiorari To the United States Court of Appeals For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Rehan Sheikh Plaintiff in Pro Per P.O. Box 7978 Stockton CA 95267 (209).475.1263 rehansheikh@yahoo.com

QUESTIONS PRESENTED

1. Has Cisco met its Burden of Proof to establish Federal Jurisdiction on Sheikhs lawsuit that was filed in a California State Superior Court exclusively relying on state laws?

2. Did the District Court below commit a reversible error by dismissing Sheikhs claim against Cisco for failure to diligently prosecute this action?

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TABLE OF CONTENTS QUESTIONS PRESENTED.i TABLE OF CONTENTS...ii TABLE OF AUTHORITIESv PETITION FOR WRIT OF CERTIORARI...1 OPINION BELOW.1 JURISDICTION.1 STATUTORY PROVISIONS INVOLVED2 INTRODUCTION...2 STATEMENTS4 REASONS FOR GRANTING THIS PETITION19 I. THE QUESTIONS PRESENTED ARE

EXCEEDINGLY IMPORTANT CONSIDERING LEGISLATIVE INTENT FOR FEHA AND ANTI DISCRIMINATION LAWS........................................ 19 II. THE DISTRICT COURT WAS NOT AWARE

OF A SEPARATE AGREEMENT BETWEEN THE PARTIES TO RESOLVE LTD BENEFITS AND, IN THE ABSENCE OF ANY ERISA PLAN BENEFITS, THERE CANNOT BE ANY ERISA

iii PREEMPTION ............................................................. 21 III. CISCO HAS FAILED TO SATISFY

NECESSARY CONDITIONS FOR EXCEPTIONAL DOCTRINES OF COMPLETE ERISA PREEMPTION AND ARTFUL PLEADING 22 IV. THE UNDERLYING DECISION OF THE

COURTS BELOW GROSSLY MISAPPLIED SUPREME COURTS CASES AVCO CORP V AERO LODGE AND CATERPILLAR, INC. V. WILLIAMS .................................................................... 24 V. JUDICIAL POLICY FAVORS DISPOSITION

ON MERITS.................................................................. 29 CONCLUSION. 32

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APPENDICES Appendix A - The Court of Appeals -Apr 26, 20121a Appendix B - The Court of Appeals - Oct 3, 2012.3a Appendix C- -The District Court - June 13, 2007.4a Appendix D- The District Court .July 08, 2007..12a Appendix E- The District Court - July 18, 2008.16a Appendix F- The District Court -.Aug 13, 2008......17a Appendix G- The District Court - Oct 7, 2010....31a Appendix H- The District Court - Oct 28, 2010.32a Appendix I- Original Complaint ...34a Appendix J- Second Amended Complaint .43a

TABLE OF AUTHORITIES CASES Alexander v. Gardner-Denver Company, 415 U.S. 35, 45 (1974) ............................................... 20 Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968) ........................................................... 25 Bright v. Bechtel Petroleum, Inc., 780 F.2d 766 (9th Cir. 1986) ............................................. 3 Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ........................................................ 26, 27, 28 Eldridge v. Block, 832 F. 2d 1132, (9th Cir. 1987). .................................................................... 31 Ethridge v. Harbor House Restaurant, 861 F.2d 1389, (9th Cir. 1988) ................................ 15 Hunter v. United Van Lines, 746 F.2d 635 (9th Cir. 1984) ..................................................... 26 Jones v. Pep Boys Manny, 980 F. Supp. 327 (Central District of California, 1997) ............................................................................. 28 Metropolitan Life Ins. Co. v Taylor, 481 U.S. 58 (1987) ............................................................. 14 Omstead v. Dell, Inc., 594 F. 3d 1081 (9th Cir. 2010)............................................................. 31 Robinson v. FEHC, (1992) 2 Cal.4th 226 .................... 20 Rojo v. Kliger, (1990) 52 Cal.3d 65 ............................. 20 Shamrock Oil & Gas v. Sheets, 313 U.S. 100 (1941) .................................................................... 23 Williams v. Caterpillar Tractor Co., 786 F. 2d 928 (9th Cir. 1986) .................................... 23, 26 Young v. Anthony's Fish Grottos, Inc., 830 F. 2d 993 (9th Cir. 1987) .................................. 26

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STATUTES & RULES 28 U. S. C. 1441 (b) ...................................................... 25 28 U.S.C. 1254(1) ............................................................ 1 29 U.S.C. 1001, et. seq. ............................................... 14 FRCP 41(a)(2) ................................................................... 18 FRCP 41(b) ........................................................................ 18

OTHER REFERENCES Sheikhs Opening Brief, Sheikh v. Cisco Systems, (Supreme Court of California, 2009) 2009 WL 1968227)..................... 11 Sheikhs Opening Brief, Sheikh v. Cisco Systems, (Third Appellate District California, 2009) 2009 WL 1971312 ...................... 11

CALIFORNIA STATUES California Govt. Code 12940 et. seq. .................. 2, 6, 7 California Govt. Code 12940(a) ................................... 2 California Labor Code 3208.3(b)(1) .......................... 11 California Labor Code 3550 ....................................... 10

PETITION FOR WRIT OF CERTIORARI Rehan Sheikh, respectfully petitions this Court to issue a writ of Certiorari to the United States Court of Appeals for the Ninth Judicial Circuit to its judgment of premature dismissal of his action against Cisco Systems Inc. and denying a review of federal question jurisdiction of this action. OPINION BELOW The opinions of the Court of Appeals and the opinion of the District Court are included as Appendices. Further, the original complaint filed in the Santa Clara County of State of California and the Second Amended Complaint submitted in the Northern District of California (the District Court below) are also included in the appendices. JURISDICTION The Circuit Court denied a timely petition for rehearing on Oct 3rd 2012. This Court granted an extension to submit petition until Jan 31, 2013. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

2 STATUTORY PROVISIONS INVOLVED California Govt. Code 12940 et. seq. Californias Fair Employment and Housing Act (FEHA hereinafter), mandates unlawful: For an employer, because of the race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex of any person to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or for a training program leading to employment, or to discriminate against the person in compensation or in terms, condition or privileges of employment California Govt. Code 12940(a) INTRODUCTION Sheikh was a hardworking Engineer who alleged disparate treatment by Cisco Systems Employees of South Asian Ethnicity. As a last resort, Sheikh complained about discriminatory actions to the Cisco Human Resources and Senior Management. Because of Sheikhs complaint of violation of Title VII of Civil Rights Acts, Cisco took further elaborate and extensive retaliatory actions against Sheikh inflicting immense harm resulting in impairment of Sheikhs intellectual health. Sheikh remained debilitated for years without any capacity to earn living for his family. Sheikh continues to be on several medications for over eight years.

3 Petitioner Sheikh filed this Civil Rights action against Cisco in a California State Superior Court exclusively relying on state laws. Cisco removed the action to the Federal Court by generally citing exceptional doctrine of artful pleading and complete ERISA preemption. Cisco alleges that Sheikhs state law claims involve administration of ERISA plan benefits. Sheikh claims that Cisco improperly removed the action to the federal court in defiance of abundant of case law. The District Court granted Ciscos Motion to Compel binding arbitration as Sheikh could not oppose that Motion due to severity of his health. Cisco, then, refused to provide arbitration forum to Sheikh and further declined to participate in any arbitration proceedings. The District Court misunderstood that Sheikh had not taken any action, in a short status conference, and dismissed this action for failure to diligently prosecute. Sheikh filed an appeal with the Ninth Circuit Court of Appeals but the Circuit Court affirmed the dismissal without any hearing. Sheikh had presented four legal questions before the Court but there was little guidance in the opinion of the Circuit Court. The Circuit Court did not undertake a de novo review though previously the Ninth Circuit Court of Appeals has itself established that; Removal of a case from state to federal court is a question of federal subject matter jurisdiction which is reviewable de novo. Bright v. Bechtel Petroleum, Inc., 780 F.2d 766 (9th Cir. 1986).

4 STATEMENTS 1. Prior to joining Cisco Systems, Sheikh had completed Masters in Electrical Engineering from Texas A&M University in College Station Texas. After completing his education, Sheikh worked for a Fortune 100 technology company in Dallas, Texas for approximately three years. Sheikh accepted an offer to Join Cisco Systems and relocated to San Francisco Bay Area with his family. 2. In September 2000, Sheikh began working as a Senior Software Engineer at Ciscos main campus in San Jose, California. He was assigned to work at Ciscos High End Router Business Unit (HERBU) until his employment was terminated by Cisco in Nov. 2005. Sheikh worked under a manager who was of Caucasian origin. Sheikh was assigned several engineering projects and assignments and his performance was excellent. Sheikh received good performance reviews by his manager and he also received bonuses & Stock options. 3. Sheikh was assigned to work under a project supervisor who was of South Asian ethnicity. A series of discriminatory & hostile actions were taken against Sheikh and, as a matter of last resort, Sheikh complained to Cisco about his supervisors behavior that negatively interfered with Sheikhs projects. In retaliation to Sheikhs complaint, Cisco transferred Sheikh to work under a manager of South Asian ethnicity who was a close

5 friend of Sheikhs project supervisor. The retaliatory actions against Sheikh continued to worsen. 4. Sheikh suffered an ankle injury while playing volleyball on a weekend and he requested time off as it was difficult for him to walk. Instead, Sheikhs manager called Sheikh at home and asked him to immediately come to office. Sheikh immediately reported to work despite his injury. Cisco manager assigned Sheikh to move heavy networking equipment in the test laboratory without any assistance; Sheikh complied with his managers instruction. While pushing and moving heavy equipment in the congested laboratory his ankle injury worsened. Sheikh was not offered any help for that laborious job though as a matter of routine, Ciscos Manager made such help available to all employees of South Asian ethnicity. Sheikh again requested time off from work because of worsening of ankle injury, the manager again denied his request. Cisco also denied Sheikhs request to work from home though Sheikhs colleagues were allowed to work from home as a matter of routine whether they were healthy or sick. 5. On multiple occasions, Sheikh requested time off from Cisco for severity of his health, on each occasion Cisco denied Sheikhs request. 6. In April 2003, Sheikhs physician placed him on a medical leave of absence for his major depression caused by unhealthy, harassing and discriminatory work environment at

6 Cisco Systems Inc. During the course of his employment at Cisco, Sheikh developed a medical condition that limited his major life activities. Sheikhs driving privileges remained suspended for a couple of years due to his impaired health; Sheikhs wife drove him to his treating physicians and healthcare providers when Sheikh attended 6-10 such appointments every month. (Sheikh is subject to the protection provided by the California Govt. Code 12940 et. seq.). Sheikh continued to be on medical leave for two years until early 2005. 7. During first quarter of 2005, Sheikhs treating physician allowed him to start working part time for up to four hours a day. On Ciscos demand, Sheikh submitted a written note from his physician to resume working part time. 8. Sheikhs wife is a physician and she was offered a first year position with a Residency Program in Austin Texas. Sheikhs wife was scheduled to start her residency training in mid 2005. Sheikhs physician determined that family support is essential for Sheikhs treatment and for improvement of his health, he must stay with his family. Sheikhs physician wrote a letter to Cisco Systems Inc. in support of Sheikhs request for transfer to Texas (Sheikhs request for accommodation). Cisco denied Plaintiffs request for transfer to Texas. Sheikhs Senior Manager informed Sheikh to look for jobs outside Cisco as the only option available to Sheikh. On

7 instructions of his treating physician(s), Sheikh relocated to Austin Texas in June 2005 to join his family. 9. Cisco denied Sheikhs request to work from Ciscos Office in Austin Texas. Cisco also denied Sheikhs request to work from his home though Cisco had allowed numerous employees to work from other locations for extended periods of time even though the employees had not requested any accommodation. Sheikhs manager had allowed several of Sheikhs colleagues to work from other cities and from other States even when they visited their family and friends. As a matter of policy, Cisco encourages employees to work from home. 10. Sheikh applied for several job positions that were available with Cisco in Austin, Texas including entry level positions. Sheikh was eligible for all the jobs for which he applied for. Cisco refused to consider Sheikh for any of the jobs that were available in Austin, Texas and other locations in Texas. Cisco refused to even offer an interview to Sheikh for any of the positions that he had applied for. 11. Cisco refused to engage in any interactive discussion with Sheikh for his multiple requests for accommodation in violation of California Govt. Code 12940 et. seq. In response to Sheikhs request for accommodation, Cisco wrote a letter to Sheikh (in or around August 2005),

8 threatening to terminate his employment with Cisco. Finally, Cisco wrote another letter dated November 4, 2005 and terminated Sheikhs employment effective immediately. Before Sheikh received the termination letter, Cisco removed his computer accounts at Cisco. 12. In September 2003 Sheikh filed a complaint of discrimination under the Fair Employment & Housing Act (FEHA) with the Equal Employment Opportunity Commission (EEOC) and with California Dept. of Fair Employment & Housing (DFEH). Within days the DFEH / EEOC served that complaint of discrimination to Cisco and the federal Civil Rights agency began an investigation. The investigations by the EEOC confirmed that Cisco manager granted higher bonuses to all of Sheikhs colleagues of South Asian ethnicity. 13. Ciscos Human Resources Representative, and other officials of Cisco, started a campaign of retaliation against Sheikh because of his complaint of disparate treatment with the EEOC & DFEH. Ciscos discriminatory and retaliation actions were so profound that those actions had a debilitating impact on Sheikhs intellectual health. Sheikh was compelled to take Medical Leave on advice of his treating physicians and care providers from 2003 to 2005. 14. After Sheikhs complaint of discrimination, several adverse actions were taken against

9 Sheikh, including but not limited to, the following; a. Cisco manager compelled Sheikh to move heavy equipment in Cisco laboratory with injured ankle or else. b. Cisco denied time off to Sheikh. c. Cisco interfered with Sheikhs ability to seek other jobs in Cisco. d. Cisco denied promotion and bonuses to Sheikh. e. Cisco denied Sheikhs requests to telecommute. f. Cisco denied Sheikhs Requests for accommodation to work from home despite Sheikhs severe ankle injury, denied permission to work from Ciscos office in Texas, denied transfer to other job positions available with Cisco in Texas. g. Cisco terminated Sheikhs employment in response to his request for accommodation. h. Cisco interfered with Sheikhs Workers Compensation benefits i. Cisco interfered with Sheikhs Short term Disability Benefits j. Cisco interfered with Sheikhs Long term Disability Benefits 15. Sheikh was compelled to contest denial of each of the benefits, Workers Compensation, Short Term Disability (STD) and Long Term Disability (LTD), individually and separately from Civil Rights issues as each of the above referenced benefit was overseen

10 by a different authority. 16. Sheikh applied for Workers Compensation benefits with Cisco in 2003. Cisco refused to acknowledge receipt of Sheikhs Workers Compensation benefits Form DWC-1 despite several reminders. The California Labor Code requires that the employer must acknowledge the receipt of Form DWC-1 within one business day. Cisco refused to inform Sheikh of the name of Ciscos Workers Compensation Carrier and Cisco failed to inform Sheikh any details about availability of Workers Compensation benefits in violation of California Labor Code 3550. Sheikhs treating physicians evaluated that Sheikhs health was deteriorated because of workplace at Cisco. Sheikh was evaluated by a Qualified Medical Expert appointed by Sheikhs attorney who found that Sheikhs health was deteriorated due to his workplace at Cisco. Finally Sheikh was evaluated by a Qualified Medical Expert appointed by Cisco who also found that Sheikhs health was deteriorated due to his workplace at Cisco. Sheikh is unable to seek appropriate medical treatment as Cisco continues to deny Workers Compensation benefits (despite Workers Compensation is a no fault system intended for expedited medical treatment of injured workers). The State has imposed additional evidentiary requirement (California Labor

11 Code 3208.3(b)(1)1 ) on injured workers with intellectual impairment. Sheikh needs discovery in order to meet a perceived Higher Evidentiary Standard. Cisco has denied Sheikhs multiple requests for discovery. California Workers Compensation has denied to enforce Sheikhs multiple requests to Compel Cisco for Discovery. Sheikh submitted a Petition for Writ of Review with the State Appellate Court but Sheikhs Writ was denied without a review and without a decision by the State Appellate Court. (Sheikhs Opening Brief, Sheikh v. Cisco Systems, (Third Appellate District - California, 2009) 2009 WL 1971312). Sheikh submitted a Petition for Writ of Review with the California Supreme Court but again Sheikh was not successful in getting a merit review of his petition. (Sheikhs Opening Brief, Sheikh v. Cisco Systems, (Supreme Court of California, 2009) 2009 WL 1968227). 17. Cisco improperly denied Sheikhs Short Term Disability benefits. Sheikh contested and filed an appeal. The denial of Sheikhs short term benefits was reversed by an Administrative Law Judge in Sep 2004 and Cisco was

Labor Code 3208.3(b)(1) states; In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.

12 compelled to approve those benefits for the complete duration of six months. 18. Cisco also improperly denied Sheikhs Long Term Disability benefits. Denial of Sheikhs Long term benefits was reversed because of a separate and successful litigation by several states (Multistate agreement) (Sheikhs Exhibits D.C. Docket# 34-2) and Cisco was compelled to approve Sheikhs Long term benefits for the complete duration of two years after a review of the claim by independent claim administrators. a. On February 14, 2005, under the terms of the Multi State Agreement, Cisco offered Reassessment of Sheikhs LTD benefits under specific conditions (Sheikhs Exhibits; District Court Docket# 34-2). b. On March 24, 2005, Cisco acknowledged receipt of Sheikhs participation in the Re-assessment Process under the multi-state agreement. As a precondition of that re-assessment, Sheikh could not initiate any litigation for Long Term Disability benefits until an independent review was completed. c. On March 16, 2007, on Ciscos Demand Sheikh again signed an additional Conditional Waiver and Release Agreement that stated (Sheikhs Exhibits; District Court Docket# 34-2); By choosing to participate in the claim Re-assessment Process, I hereby agree that if (and only if) the reassessment results in a reversal or

13 other change in the prior decision denying or terminating benefits, I will not pursue any legal action to the extent (and only to the extent) such action is based on any aspect of the prior denial or termination that is reversed or changed. d. Subsequent to the execution of the above referenced agreement, Cisco informed Sheikh of approval of his LTD benefits. Whether Sheikhs Long Term Disability benefits are governed by ERISA or otherwise is yet to be determined as Cisco has denied Sheikhs request for discovery. Cisco has generally assumed without providing any documentation that Long Term benefit plan is governed by ERISA. 19. Finally, Petitioner Sheikh filed a separate Civil Rights action against Cisco Systems Inc (May 2006) in the County of Santa Clara Superior Court in California exclusively relying on State laws. The lawsuit was filed after receiving Right to Sue letters from Equal Employment Opportunity Commission (EEOC) and California Department of Fair Employment and Housing. Those agencies are empowered to investigate only Civil Rights actions and are not empowered to review any issues relevant to benefits. Sheikhs original lawsuit in the State Court was prepared by an experienced attorney. 20. In Jan 2007, Cisco removed the action to the Northern District of California (Sheikh

14 contested untimely removal but was not successful). Cisco deemed the Sheikhs FEHA Civil Rights lawsuit as lawsuit for recovery of ERISA plan benefits. Ciscos Notice of Removal stated (District Court Docket#63); Paragraph #4 Accordingly, this is a suit for severance benefits under an employee welfare benefit plan governed by ERISA, 29 U.S.C. 1001, et. seq. Paragraph #5 This action is removable to this Court, pursuant to the complete preemption doctrine without regard to the well-pleaded complaint rule. Metropolitan Life Ins. Co. v Taylor, 481 U.S. 58 (1987). Paragraph#6 [District Court] has original jurisdiction of ERISA actions under 29 U.S.C. 1132(e). Plaintiffs state law claims are completely preempted because the claims fall within ERISAs civil enforcement scheme, 29 U.S.C. 1132(a)(1)(B). 21. Plaintiff submits that Cisco has not satisfied the conditions necessary to satisfy the exceptional doctrines of Complete ERISA Preemption and Artful Pleading and that Cisco has not met its burden of proof to establish federal Jurisdiction. 22. Sheikh submitted a Motion to remand the action with the State Superior Court. Cisco opposed Sheikhs Motion to Remand and incorrectly attempted to shift the Burden of Proof on Sheikh. So far, the only evidence that Ciscos legal counsel presented was this statement, I have no reason to believe that your reference to benefits in the [Second

15 Amended Complaint] are to anything other than LTD benefits. 23. Cisco survived Sheikhs First Motion to Remand this action to the State Superior Court as the District Court assumed that Sheikhs LTD benefits are ERISA plan benefits. Further, Ciscos counsel did not inform the District Court that parties had previously resolved LTD benefits as a result of separate litigation and Sheikh was not able to fully explain that issue to the District Court due to his debilitating health. Since the District Court was not aware of the important facts, Cisco survived Sheikhs [First] Motion to Remand this action to the state court. 24. Sheikh filed a Motion for Reconsideration and a Motion for Leave for Motion for Reconsideration along with more explanation. Although, the District Court denied Sheikh Motion for Leave to file a Motion for Reconsideration, the Court granted leave to file an amended complaint. The District Court noted; Nevertheless, the court agrees that plaintiff's claims, if amended as represented in his motion for leave to file a motion for reconsideration, might not be preempted by ERISA. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, (9th Cir. 1988) (holding that no ERISA preemption exists when the loss of benefits are a consequence of, and not a motivating factor behind, the termination of benefits). In particular,

16 plaintiff represents that his remaining claims involve only state-based benefits and purported discrimination based on events not involving the administration of his long-term benefits claim. Accordingly, the court grants plaintiff leave to file an amended complaint. Defendant does not object to plaintiff's filing of an amended complaint 25. In compliance with the instructions of the District Court Sheikh submitted Second Amended Complaint with the following nine causes of actions: i. ii. iii. iv. v. vi. vii. viii. ix. Violation of Fair Employment and Housing Act (Discrimination) Violation of Fair Employment and Housing Act (Retaliation) Violation of Fair Employment and Housing Act (Failure to accommodate) Violation of Fair Employment and Housing Act (Disability Discrimination) Violation of Fair Employment and Housing Act (Wrongful Termination in Violation of Public Policy) Intentional Infliction of Emotional Distress Breach of Contract Breach of the Covenant of Good Faith and Fair Dealing Negligent Representation

26. The District Court was partially satisfied with the merits of Sheikhs Second Motion to

17 remand his claim. The tentative ruling stated (D.C. Docket# 70); The amended complaint basically seems to assert claims for employment discrimination and breach of employment contract, however, the seventh and eighth causes of action are somewhat ambiguous. If Plaintiff stipulates that he is not seeking ERISA benefits under those causes of action, the case would appear not to include any federal claims and therefore would be remanded to state court. 27. Following the opinion of the District Court, Sheikh contacted Ciscos legal counsel to discuss a potential Stipulation that he is not seeking any ERISA Plan benefits but Cisco refused. Ciscos counsel insisted that Sheikhs action was to seek ERISA Plan benefits. Consequently, the District Court denied Sheikhs Second Motion for Remand and assumed supplementary jurisdiction on Sheikhs State claims. Sheikh also submitted a third amended complaint pending leave of the District Court. The third amended complaint is yet to be reviewed by the Court. 28. Cisco submitted a Motion to Compel binding arbitration that was granted by the District Court for lack of Sheikhs opposition. Sheikh was unable to oppose Ciscos Motion to Compel for severity of his health. Sheikh had timely informed the District Court of his inability to participate in the proceedings at that time. Since Sheikh could not oppose the

18 Motion for severity of his health, Sheikh cannot be barred from opposing Ciscos Motion to Compel Binding Arbitration in the trial court of jurisdiction. 29. After Ciscos Motion to Compel was granted by the District Court, Sheikh contacted Ciscos counsel to initiate the Arbitration process but Cisco refused any cooperation to initiate the Arbitration Process. Further, Cisco also refused to participate in any potential arbitration. 30. The District Court, on its own notice, held a status conference to inquire about the progress of the Case. The District Court misunderstood that Sheikh has not taken any action. The District Court dismissed the action for failure to diligently prosecute perhaps pursuant to FRCP 41. This remains an undetermined issue whether the dismissal was pursuant to FRCP 41(a)(2) or FRCP 41(b). 31. Petitioner submitted a Notice of appeal in the Ninth Judicial Circuit Court. Sheikh submitted legal arguments on the issues exclusively relying on the precedence of that Circuit Court. Sheikh also presented factual and legal arguments in the Court of Appeals in opposition to Ciscos Motion to Compel Binding Arbitration but the Court did not review any of those arguments. In his brief, Sheikh argued that the dismissal by the District Court not warranted as the status conference was short and inadequate in the

19 District Court, yet the Circuit Court affirmed the dismissal without any hearing. REASONS FOR GRANTING THIS PETITION I. THE QUESTIONS PRESENTED ARE EXCEEDINGLY IMPORTANT CONSIDERING LEGISLATIVE INTENT FOR FEHA AND ANTI DISCRIMINATION LAWS

32. The issues presented are of vital importance considering the legislative intent for FEHA, antidiscrimination laws and the important role of private litigation to enforce such laws; In pursuing private lawsuits under FEHA, a plaintiff and her or his counsel are serving the public policy against discrimination in the workplace. It is recognized that the practice of denying employment and discriminating in the terms of employment for such reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interest of employees, employers and the public in general. Therefore, in essence, the plaintiffs attorneys are acting for the general public of the State of California, just as the Attorney Generals office does. 33. FEHAs purpose is to further the public policy of the State of California to protect and

20 safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, sex, or other specifically named characteristics. Rojo v. Kliger, (1990) 52 Cal.3d 65. In light of its objective, it is to be construed liberally. Robinson v. FEHC, (1992) 2 Cal.4th 226. 34. In the federal cases under the parallel federal legislation, it has been stated on more than one occasion that private litigation is critical and important avenue for enforcing the antidiscrimination laws. In fact, the United States Supreme Court has noted about the federal antidiscrimination laws: Congress gave private individuals a significant role in the enforcement process of Title VII. [T]he private right of action remains an essential means of obtaining judicial enforcement of Title VII [Citation omitted.] In such cases, the private litigant not only redresses his own injury but also vindicates the important Congressional policy against discriminatory employment practices. Alexander v. Gardner-Denver Company, 415 U.S. 35, 45 (1974).

21 II. THE DISTRICT COURT WAS NOT AWARE OF A SEPARATE AGREEMENT BETWEEN THE PARTIES TO RESOLVE LTD BENEFITS AND, IN THE ABSENCE OF ANY ERISA PLAN BENEFITS, THERE CANNOT BE ANY ERISA PREEMPTION

35. Sheikh initiated this Civil Rights and employment lawsuit against Cisco in May 2006 in a California state court exclusively relying on the state laws. Previously Cisco had denied Sheikhs LTD benefits in 2004; because of successful litigation by several State Attorney Generals, Cisco and its agent were compelled to enter into Multi State Agreement. By March 2005, Sheikh and Cisco (via its agent Unum) had entered into a separate written agreement to Resolve LTD benefits. As a pre- condition for Reassessment of LTD claim, Sheikh gave up his rights to bring any claim related to LTD benefits against Cisco. Further, Sheikh also gave up his rights to seek any damages for denial of such benefits. Because of the Reassessment of Sheikhs LTD claim by neutral claim evaluators, Cisco was compelled to approve Sheikhs LTD benefits for the complete duration of two years (Ciscos plan only provides LTD benefits for two years in this case). 36. Since there are no LTD benefits at issue, an inquiry into whether Sheikhs FEHA and state law claims involve administration of

22 ERISA Plan benefits is only illusionary (even if Cisco can demonstrate that LTD benefits are ERISA plan benefits). Since LTD benefits are separately settled prior to initiating this action, Ciscos argument of federal jurisdiction of this action can be summarily dismissed and the issue is fully mature to be remanded to the state Court without any further arguments. 37. Cisco failed to perform its mandatory duty to disclose critical factual details to the District Court. If the District Court knew of those fundamental facts, the Court could immediately remand the action to the State Court. III. CISCO HAS FAILED TO SATISFY NECESSARY CONDITIONS FOR EXCEPTIONAL DOCTRINES OF COMPLETE ERISA PREEMPTION AND ARTFUL PLEADING

38. Cisco has a burden of proof to establish that Sheikhs FEHA claims are essentially for recovery of LTD benefits, that Sheikh FEHA claims involve administration of LTD plan benefits, and that the LTD benefits are ERISA plan benefits subject to exclusive federal jurisdiction. Cisco has not produced any document or arguments to meet its burden of proof. Cisco has not even tried to satisfy the necessary conditions for complete ERISA preemption and artful pleading doctrines as clearly established by the Ninth Circuit and by this Court.

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39. The burden of establishing federal jurisdiction falls on the party invoking the removal statute. citing Hunter v. United Van Lines, 746 F.2d 635 (9th Cir. 1984); Williams v. Caterpillar Tractor Co., 786 F. 2d 928 (9th Cir. 1986). Upon removal and motion for remand, the party invoking the removal statute bears the burden of establishing federal jurisdiction. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir. 1988) . Removal Statues are strictly construed against jurisdiction. Any doubts as to removability are resolved in favor of remand. Shamrock Oil & Gas v. Sheets, 313 U.S. 100 (1941). 40. Sheikhs three causes of action in his original complaint; [First] violation of FEHA, [Second] Breach of Contract and [Third] Breach of the Covenant of Good Faith and Fair Dealing, exclusively rely on the state laws. Cisco has not even tried to explain how ERISA fully displaces and supplants Sheikhs state law claims. A state law cause of action has been "completely preempted" when federal law both displaces and supplants the state law that is, when federal law provides both a superseding remedy replacing the state law cause of action and preempts that state law cause of action. Williams v. Caterpillar Tractor Co., 786 F. 2d 928 (9th Cir. 1986).

24 The "artful pleading" doctrine may come into play in two related contexts. First, when the plaintiff alleges a state law claim that is preempted by federal law and a federal remedy exists for the plaintiff's grievance. Hunter v. United Van Lines, 746 F.2d 635 (9th Cir. 1984). Second, when the plaintiff's state law claim necessarily implicates a federal law question other than defense. This is an undisputed fact that the LTD benefits have already been settled between the parties via a written agreement. Cisco is not bound to pay any benefits more than once if Cisco, somehow, considers that Sheikh is again demanding LTD benefits in his state claims. Mere because Cisco committed several retaliatory actions including improper denial of LTD benefits after petitioners complaints of disparate treatment, whether LTD benefits are settled or not, whether LTD benefits are ERISA or not, cannot be a sufficient basis of removal of this action to the federal Court. IV. THE UNDERLYING DECISION OF THE COURTS BELOW GROSSLY MISAPPLIED SUPREME COURTS CASES AVCO CORP V AERO LODGE AND CATERPILLAR, INC. V. WILLIAMS

41. The District Court in its decision erred by exercising federal jurisdiction in the absence of any relief available to Petitioner. The District Court opinion Denying Sheikhs

25 [First] Motion for Remand noted (D.C. Docket#28, page#5); Although Sheikh argues that artful pleading only arises when plaintiff's claims are preempted by federal law and the only possible relief is federal, the nature of the relief available after jurisdiction attaches is a separate issue from whether a court has jurisdiction to hear an issue. Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968). Avco is clearly distinguishable from this action (Sheikh v Cisco) as the Claims in Avco arose under the laws of the United States ( 301 of the Labor Management Relations Act). Avco Court noted; It is thus clear that the claim under this collective bargaining agreement is one arising under the "laws of the United States" within the meaning of the removal statute. 28 U. S. C. 1441 (b). Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557 (1968). Since availability of federal relief is a necessary condition for artful pleading, the District Court did a reversible error by exercising federal jurisdiction without availability of any relief to Sheikh. Absence of relief, by itself, demonstrates that the requirements for Ciscos arguments of complete ERISA preemption and artful pleading are not met. Further, Avco can be clearly distinguished from this action because Avco did not involve

26 any elements of Complete ERISA preemption and Artful Pleading doctrines. 42. Previously the Courts have considered arguments on the availability of remedy available to plaintiff as a primary issue as noted in Williams v. Caterpillar Tractor Co., 786 F. 2d 928 (9th Cir. 1986) and affirmed by this Court in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987); First, as an initial matter, a federal court must determine whether "it is apparent from a review of the complaint that federal law provides plaintiff a cause of action to remedy the wrong he asserts he suffered." 43. Other cases recognize that to remove state law claims to federal court under the complete preemption doctrine, federal law must both completely preempt state law claim and supplant state law claims with federal claims. 28 U.S.C.A. 1441. See Young v. Anthony's Fish Grottos, Inc., 830 F. 2d 993 (9th Cir. 1987); Even when federal law preempts state law, a state law claim may not be removed unless federal law also supplants it with a federal claim. Hunter v. United Van Lines, 746 F.2d 635 (9th Cir. 1984),cert. denied, 474 U.S. 863, (1985); 44. Plaintiff Jones had suffered loss, racial discrimination, hostile work environment and loss of LTD benefits subjects to ERISA.

27 Plaintiff Jones filed a lawsuit in a California State Court alleging state common law theories of breach of contract, employment discrimination, wrongful termination, violation of 29 U.S.C. 1140 (ERISA 510), negligent misrepresentation, intentional misrepresentation, intentional infliction of emotional distress, and negligence. Defendants removed Plaintiff Jones action to the federal Court. The federal Court remanded that action to the state Court and noted; Jones v. Pep Boys Manny, 980 F. Supp. 327 (Central District of California, 1997); Heart and Soul of the complaint is Plaintiff's outrage at being subject to . being discriminated against because of race, this action does not properly arise under ERISA and is not removable.. 45. Sheikhs three causes of action in his original complaint do not present a federal question. This Court has established that a wellpleaded complaint is a fundamental distinction for a federal question jurisdiction. This Court noted in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987); The presence or absence of federalquestion jurisdiction is governed by the "well-pleaded complaint rule," which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint. The rule makes the plaintiff the master of the claim; he or she [Plaintiff] may avoid

28 federal jurisdiction by exclusive reliance on state law. 46. As a matter of fact, Ciscos denial of LTD benefits (whether ERISA or otherwise) 2 was separately 3 settled between the parties more than a year prior to initiating this lawsuit. Cisco was compelled to approve disability benefits after a review of claim by neutral claim administrators. As a matter of law, Cisco Removed Sheikhs State Claims to the federal Court in defiance of abundance of Case law within the Ninth Judicial Circuit. (Hunter, Ethridge, Karambelas, Williams v Caterpillar). In Essence Ciscos removal of this action to the federal Court is merely a [disguised] Motion for Summary judgment on Sheikhs state law claims. Ciscos removal of this action to the federal Court in complete absence of any of the fundamental factors is analogous to the issue that this Court has addressed in Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987); [Defendant] impermissibly attempts to create the prerequisites to removal by ignoring the set of facts (i. e., the individual employment contracts) We can safely assume that Sheikhs LTD benefits are not ERISA plan benefits since those were resolved after intervention of California State Insurance Commissioner. 3 Cisco and Sheikh also separately litigated Denial of STD benefits and Workers Compensation benefits on two separate forums.
2

29 presented by [Petitioner], along with their legal characterization of those facts, and arguing that there are different facts [Petitioner] might have alleged that would have constituted a federal claim. V. JUDICIAL POLICY FAVORS DISPOSITION ON MERITS

47. The District Courts opinion dismissing this action stated; The Court learned that plaintiff had taken no action to institute arbitration since the courts March 31, 2009 order. The District Court was mistaken because the status conference was inadequate and there was no opportunity for the parties to submit a written response. The misunderstanding was not corrected in the Circuit Court due to lack of hearing. 48. Despite Sheikhs several requests, Cisco refused to initiate or participate in the arbitration process. The arbitration process could not be initiated by Sheikh alone for economic reasons. Cisco, a non consenting party in the arbitration forum, is not bound to comply with any discovery request. The District Court, seemingly, misunderstood that Cisco had offered arbitration forum to Sheikh and that Sheikh had not taken any action. 49. Sheikh has been actively pursuing this multi forum litigation with Cisco Systems for several years. Sheikh has actively contested three denials of benefits on three separate

30 forums. For example, Sheikh has pursued his Workers compensation claim at two levels of Workers Compensation administration prior to filing petitions with the State Appellate Court and California Supreme Court. Sheikh has actively participated in the District Court proceedings by filing two Motions for Remand and two amended complaints. The District Court did not consider any of the above referenced actions. Since then, Sheikh has submitted additional legal arguments with the Court of Appeals and now with this Court. 50. The District Court erred by relying only on the brief oral arguments without requiring written arguments. If Sheikh had an opportunity to submit a written response, he could have provided detailed explanation. After the hearing, Sheikh believed that the District Court was satisfied and the Court may advise Cisco to co-operate. Actually the District Court did instruct Cisco to co-operate in its written opinion dismissing this action. Nonetheless, Cisco has denied compliance with the District Courts clear instructions. 51. The Courts below overlooked to consider less severe alternatives to dismissal of this action. For example; The District Court could advise Cisco to initiate the arbitration process that Cisco had implied in its Motion to Compel. The District Court could advise the parties to confer and submit a status report after a certain period of time. Previously, the Ninth Circuit Court of Appeals had offered guidance

31 on such issue in Eldridge v. Block, 832 F. 2d 1132, (9th Cir. 1987). Moreover, before dismissing an action, a court should always be certain that other less drastic alternatives are not available The Courts have maintained a policy of adjudication of issues on merits. Because the law strongly favors trial and disposition on the merits, [any doubts] must be resolved in the favor of the party seeking relief from default. [Citations.] Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. McCormic v. Board of Supervisors, (1988) 198 Cal.App.3rd 352 citing Elston v. City of Turlock (1985) 38 Cal.3d 227. 52. A dismissal for failure to prosecute was recently addressed by the Ninth Circuit Court of appeals in Omstead v. Dell, Inc., 594 F. 3d 1081 (9th Cir. 2010). In the District Court proceedings, in Contrast to this case, the District Court had directed the parties to file a joint status statement describing the status of their arbitration proceedings. Further, Plaintiff Omstead had diligently refused to arbitrate the claim despite District Courts instructions. The District Court dismissed that case for failure to prosecute pursuant to FRCP 41(b). The Ninth Circuit Court of appeals construed that dismissal pursuant to FRCP 41(b) as dismissal pursuant to FRCP

32 41(a)(2) (in order to provide relief to plaintiff Omstead). The Circuit Court also reviewed interlocutory orders and overturned defendants Motion to Compel. In this action (Sheikh v Cisco), the District Court had not instructed the parties to submit status report. Cisco did not offer an arbitration forum to Sheikh as Cisco had implied in its Motion to Compel, Cisco refused to participate in any potential arbitration and finally, Cisco denied an arbitration forum to Sheikh despite District Courts written instructions. This is requested that the Supreme Court of the United States offer its guidance on Ciscos refusal to participate in the mandated judicial process and remand this action to the state Court where the action was initiated. CONCLUSION For the foregoing reasons, this Court should grant the petition for writ of certiorari and reverse the dismissal of this action. Respectfully Submitted, Rehan Sheikh PO Box 7978 Stockton, California 95267 Date: January 30, 2013

1a

APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________ No. 10 17684 ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee ___________________ APR 26, 2012 ___________________ MEMORANDUM Submitted April 17, 2012 ** Before: LEAVY, PAEZ, and BEA, Circuit Judges. ___________________ This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3

2a The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Rehan Sheikh appeals pro se from the district courts judgment dismissing without prejudice his employment action. We have jurisdiction under 28 U.S.C. 1291. We review for an abuse of discretion a dismissal for failure to prosecute, Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir. 1984), and we affirm. The district court did not abuse its discretion by dismissing Sheikhs action without prejudice for failure to prosecute after Sheikh failed to act on the district courts order granting a motion to compel arbitration, and failed to reasonably explain his inaction. See id. at 496-97 (discussing factors to guide the courts decision whether to dismiss for failure to prosecute). Because we affirm the district courts dismissal for failure to prosecute, we do not consider Sheikhs challenges to the district courts interlocutory orders. See Al-Torki v. Kaempen, 78 F.3d 1381, 1386 (9th Cir. 1996) (after dismissal for failure to prosecute, interlocutory orders are not appealable regardless of whether the failure to prosecute was purposeful). Sheikhs remaining contentions are unpersuasive. AFFIRMED.

3a

APPENDIX B
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________ No. 10 17684 ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee ___________________ OCT 03, 2012 ___________________ ORDER Before: LEAVY, PAEZ, and BEA, Circuit Judges. Sheikhs motion for an extension of time to file the petition for rehearing until July 16, 2012, is granted. Sheikhs petition for panel rehearing is denied. No further filings shall be accepted in this closed case

4a

APPENDIX C
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ June 13, 2007 ___________________ ORDER DENYING PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURT Plaintiff Rehan Sheikh ("Sheikh") moves to remand this action to state court. Defendant Cisco Systems, Inc. ("Cisco") removed the action to this court on the basis that ERISA preempts plaintiff's claims. Cisco opposes the motion. The court has read the moving and responding papers. For the reasons stated below, the court denies plaintiff's motion to remand the action to state court.

------- District Court Decision dated June 13, 2007 ------

5a I. BACKGROUND Sheikh began working for defendant Cisco Systems as a software engineer in September 2000. Compl. 7. Sheikh performed satisfactorily during his employment at Cisco. Id. In April 2003, Sheikh went on extended medical leave. Id. 8. In September 2003, he filed a complaint of discrimination under the Fair Employment & Housing Act ("FEHA") with the California Department of Fair Employment & Housing ("DFEH") 1 1. Id. 9. Sheikh alleges that Cisco engaged in a "pattern of denying, and/or exercising influence to ensure denials of, both Short Term Disability (STD) benefits and Long Term Disability (LTD) benefits to Sheikh." Id. 11. Sheikh further alleges that Magellan Health, the insurance company that handles Cisco's benefit plans, failed to properly pay his benefits for mental health treatment, resulting in a loss of over $15,000 in benefit payments. Id. 14. Plaintiff alleges a violation of the FEHA, breach of Cisco's contract to pay STD and LTD benefits, and breach of the covenant of good faith and fair dealing. Id. 20-34. Plaintiff seeks compensatory damages including lost wages 2 benefits, bonuses, fringe benefits, mental and emotional distress. Id. at 6. 1 It is unclear what plaintiff asserted as the basis of discrimination in the FEHA complaint and what the alleged discriminatory acts were.
1

2 It is unclear whether Sheikh's employment was terminated by Cisco, whether he asserts he should have been paid wages while on leave or whether he seeks lost wages on some other basis. ------- District Court Decision dated June 13, 2007 -----2

6a Plaintiff also requests punitive damages, an award of interest including prejudgment interest, costs of the suit, and attorneys' fees. Id. Cisco removed the action on the basis that plaintiff's claims for benefits are preempted by the Employee Retirement Income Security Act ("ERISA"). Id. at 3-4. II. ANALYSIS Plaintiff submits that remand is proper because he has alleged only state claims. Defendant argues that removal is proper because, although plaintiff frames his claims as state claims, they are in substance federal claims preempted by ERISA. A plaintiff cannot defeat removal of a federal claim by 'artfully pleading' it as a state claim. Rivet v. Regions Bank of La., 22 U.S. 470, 475 (1998). The artful pleading doctrine allows removal where federal laws such as ERISA completely preempt a plaintiff's state-law claim. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-66 (1987). "The court may examine the entire record to determine if the real nature of [a] claim is federal, notwithstanding the plaintiff's characterization to the contrary, when the plaintiff has, by 'artful pleading,' attempted to defeat defendant's right to a federal forum." Tortola Restaurants v. Kimberly-Clark Corp., 987 F. Supp. 1186, 1188 (N.D. Cal. 1997). A. Timely Filing of the Notice of Removal The parties first dispute whether Cisco's removal was timely. A notice of removal must be filed within 30 days after receipt by the defendant of the initial pleading. 28 U.S.C. 1446(b). In ------- District Court Decision dated June 13, 2007 ------

7a computing the period of time, "the last day of the period shall be included, unless it is a Saturday, Sunday, or legal holiday ...in which event the period runs until the end of the next day which is not one of the aforementioned days." Fed. R. Civ. P. 6(a). Service was effected on Cisco on December 14, 2006. The thirtieth day after receipt was Saturday, January 13, 2007. Because Monday, January 15, 2007, was a legal holiday pursuant to Fed. R. Civ. P. 6(a), Cisco had until the end of Tuesday, January 16, 2007 to file a timely notice of removal. Cisco filed for removal on January 16, 2007. Therefore, the notice of removal was timely filed. B. ERISA preemption Defendant argues that there is complete preemption of Sheikh's claims 3 ERISA completely preempts a state law claim only when it both preempts the claim under 29 U.S.C. 1144(a) and displaces the claim with its civil enforcement "The terms 'employee benefit plan' and 'welfare plan' mean any plan, fund, or program . . . maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment . . . ." 29 U.S.C. 1002. Long term disability plans are employee benefit plans governed by ERISA. Atkin v. Standard Ins. Co., 1996 WL 88814, *6 n.2 (N.D. Cal. 1996). Sheikh does not dispute that Cisco's long term disability plans qualify as employee benefit plans governed by ERISA. ------- District Court Decision dated June 13, 2007 -----3

8a provision, 29 U.S.C. 1132(a). Buster v. Greisen, 104 F.3d 1186, 1188 (9th Cir. 1991). Under the complete preemption doctrine, "[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered from its inception, a federal claim, and therefore arises under federal law." Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d 1401, 1406 (9th Cir. 1991). 1. Preemption of claim Section 1144(a) provides that ERISA provisions supersede state laws that "relate to" employee benefit plans that are described in 29 U.S.C. 1003(a) and not exempt under 29 U.S.C. 1003(b). 29 U.S.C. 1144(a). Under 29 U.S.C. 1003(a), ERISA covers employee benefit plans that are established or maintained, inter alia, "(1) by any employer engaged in commerce or in any industry or activity affecting commerce." Section 1003(b) exempts certain employee benefit plans which are not alleged to be at issue in this action. 44 Plaintiff argues that ERISA does not preempt state law claims alleged against a non-cooperating employer for retaliation. Cisco contends that Sheikh's allegations of extended delays in the processing of benefits are claims that "relate to" the 4 The exceptions in 29 U.S.C. 1003(b) applies to plans not at issue here, including governmental plans, church plans, plans maintained solely to comply with workmen's compensation, unemployment compensation or disability insurance laws, plans maintained outside the United States to benefit nonresident aliens, and excess benefit plans. ------- District Court Decision dated June 13, 2007 -----4

9a administration of an ERISA plan, even though he frames the conduct as retaliatory. Opp'n at 7. ERISA preempts claims that arise out of the administration of a covered plan, where a plaintiff claims that the employer wrongfully and maliciously denied employment benefits. Clorox Co. v. United States Dist. Court, 779 F.2d 517, 521 (9th Cir. 1985). On the other hand, no ERISA preemption exists when the loss of benefits are a consequence of, and not a motivating factor behind, the termination of benefits. Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir.1988). Here, Sheikh's claims revolve around allegations of Cisco's handling of benefits claims. He refers to "benefits" several times in his complaint. His allegations concern Cisco's procedural handling of his claims for benefits pursuant to Cisco's employment benefit plans. Although he frames the procedural handling as conduct tantamount to discrimination, essentially his grievance is that Cisco did not timely pay him benefits in the expected amount. In Stone v. Travelers Corp., 58 F.3d 434, 436 (9th Cir. 1995), the Ninth Circuit held that ERISA preempted a FEHA claim for the denial of benefits when a retired employee sued his employer for discrimination under the Age Discrimination in Employment Act and a state law breach of contract claim. The employee brought a claim that his employer violated the FEHA by refusing to give him benefits in the form of a lifetime annuity as it did for employees over the age of 55. Id. at 436. The court held that his claim "related to" ERISA plans because the claim was founded in the denial of benefits of an ------- District Court Decision dated June 13, 2007 ------

10 a ERISA plan, the Voluntary Severance Option plan. Id at 437. Here, Sheikh contends only that his health benefits pursuant to an ERISA plan were not processed in a timely manner and were not properly paid. He does not allege any other acts of discrimination or damages suffered other than denial of benefits he believes are owed to him. Thus, plaintiff's allegations of discrimination are based on a denial of plan benefits. Therefore, plaintiff's allegations sufficiently "relate to" the administration of an ERISA plan and are therefore preempted. Although Sheikh argues that artful pleading only arises when plaintiff's claims are preempted by federal law and the only possible relief is federal, the nature of the relief available after jurisdiction attaches is a separate issue from whether a court has jurisdiction to hear an issue. Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557, 561 (1968). 55 2. ERISA Civil Enforcement Provision The second requirement to establish preemption is that ERISA's civil enforcement provision must

5 Plaintiff also argues that ERISA covers only suits against insurance companies, and claims directed against the employer sponsoring the benefit plan. This argument is without merit. In Stone, the Ninth Circuit found the plaintiff's claims against his employer to be preempted by ERISA because they "relate to" the administration of an ERISA plan. Stone., 58 F.3d at 437. Thus, the issue of preemption turns not on which party is sued, but on the substance of the claims being made. ------- District Court Decision dated June 13, 2007 -----5

11 a displace the state law claim. Section 1132(a)(1)(b) provides: A civil action may be brought-(1) by a participant or beneficiary-*** (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; Sheikh claims compensatory damages for lost long term disability benefits. Sheikh's complaint alleges that his mental health treatment plan only covered 50% of benefits despite the fact that the plan called for 80% payments. Compl. 14. Sheikh also seeks compensatory damages for lost long term disability benefits. Compl. at 6. Plaintiff's allegations relate essentially to his right to benefits under the ERISA plans and to timely processing of benefit claims under those plans. He does not allege any damages associated with purported retaliation by Cisco other than the payment of such benefits. Thus, on the face of his complaint, plaintiff is attempting to recover benefits "due to him under the terms of his plan," or to otherwise enforce his rights under the terms of the plan. Therefore, ERISA's civil enforcement provision displaces his state law claim. III. ORDER For the foregoing reasons, the court denies plaintiff's motion to remand the action to state court. DATED: 6/11/07 RONALD M. WHYTE United States District Judge ------- District Court Decision dated June 13, 2007 ------

12 a

APPENDIX D
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ August 10, 2007 ___________________ ORDER DENYING MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION AND GRANTING LEAVE TO FILE AN AMENDED COMPLAINT On June 13, 2007 the court issued an order denying plaintiff's motion to remand on the basis that plaintiff's claims arise out of the administration of an employee benefit plan covered by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. 1001 et seq. and, therefore, were preempted by ERISA. See Clorox Co. v. United States ---- District Court Decision dated August 10, 2007 ---

13 a Dist. Court, 779 F.2d 517, 521 (9th Cir. 1985) (ERISA preempts claims that arise out of the administration of a covered plan, where a plaintiff claims that the employer wrongfully and maliciously denied employment benefits.). Plaintiff argues that reconsideration is warranted based on new facts since the court's order issued. Specifically, he submits that his long-term benefits were recently granted and, therefore, longterm benefits are no longer an issue in the action. In addition, plaintiff claims that he had previously "agreed with defendant, via its agent Unum Provident, to give up his rights to bring an ERISA claim until reassessment of his claim was completed." 1 (*1) See Pl.'s Req. at 2:5-7; 14-17; Decl. Rehan Sheikh Supp. Req., Ex. J. Plaintiff intends to amend his complaint to remove ERISA claims for benefits or retaliation based on long-term disability benefits. Plaintiff submits that his remaining claims do not implicate ERISA. Plaintiff represents that his remaining claims involve defendant's administration of his state short-term disability benefits and (*1) Plaintiff indicates that the initial denial of his long-term disability benefits was reassessed by Unum Provident, the benefits provider, as part of a reassessment of denials pursuant to insurance regulations. Unum Provident offered plaintiff, and plaintiff accepted, the opportunity to participate in the reassessment process in February 2005. Plaintiff agreed not to file a lawsuit until the reassessment was completed.
1

---- District Court Decision dated August 10, 2007 ---

14 a workers' compensation benefits. Plaintiff indicates that, upon appeal with the state agency, a judge determined that plaintiff was eligible for short-term disability benefits. Further, his claim for worker's compensation benefits is pending before the Worker's Compensation Appeals Board. In addition, he will be asserting a discrimination claim based on events that took place during the course of his employment with defendant prior to the termination of his benefits and not based on the termination of his benefits. A motion for reconsideration may be based on "[t]he emergence of new material facts" occurring after the time the order was issued. Civil L.R. 79(b)(2). Here, plaintiff informs the court that his long-term disability benefits have since been paid. However, the fact that plaintiff's longterm disability benefits have since been paid does not necessarily mean that there can be no ERISA preemption, for example, if the alleged discriminatory conduct nevertheless involves the administration of benefits under an ERISA plan. Here, the court's June 13, 2007 Order Denying Plaintiff's Motion to Remand was based on plaintiff's current operative complaint, which alleges discrimination stemming from the administration of his long-term disability benefits pursuant to an ERISA plan. Although plaintiff submits that he intends to file an amended complaint, no amended complaint (or motion for leave to file an amended complaint) has been filed. As such, the court does not find a motion for reconsideration of the June 13, 2007 Order proper. Nevertheless, the court agrees that plaintiff's claims, if amended as represented in his motion for leave to file a motion for reconsideration, might not ---- District Court Decision dated August 10, 2007 ---

15 a be preempted by ERISA. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1405 (9th Cir. 1988) (holding that no ERISA preemption exists when the loss of benefits are a consequence of, and not a motivating factor behind, the termination of benefits). In particular, plaintiff represents that his remaining claims involve only state-based benefits and purported discrimination based on events not involving the administration of his long-term benefits claim. Accordingly, the court grants plaintiff leave to file an amended complaint. 2(*2) Defendant does not object to plaintiff's filing of an amended complaint. Plaintiff's amended complaint must be filed by August 31, 2007. DATED: 8/10/07 RONALD M. WHYTE United States District Judge

(*2) Plaintiff indicates in his motion for leave to file a motion for reconsideration that he intends to file an amended complaint either by stipulation or through leave of court.
2

---- District Court Decision dated August 10, 2007 ---

16 a

APPENDIX E
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ July 18, 2008 ___________________ PROCEEDINGS ---PLAINTIFFS MOTION TO REMAND - ORDER AFTER HEARING Hearing Held. The Court heard oral argument from the parties. The Courts tentative ruling: The amended complaint basically seems to assert claims for employment discrimination and breach of employment contract, however, the seventh and eighth causes of action are somewhat ambiguous. If Plaintiff stipulates that he is not seeking ERISA benefits under those causes of action, the case would appear not to include any federal claims and therefore would be remanded to state court. The Court to send out a final ruling to the parties. The matter is deemed submitted.

------ District Court Decision dated July 18, 2008 ------

17 a

APPENDIX F
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ August 13, 2008 ___________________ ORDER GRANTING PLAINTIFF'S MOTION TO REMAND ACTION TO STATE COURTNo. C07-00262 RMW - MAG Defendant Cisco Systems, Inc. ("Cisco") had previously successfully removed the action to this court on the grounds that the Employee Retirement Income Security Act ("ERISA") completely preempted plaintiff's claims relating to the administration of his benefits under Cisco's benefit plans. Plaintiff Rehan Sheikh ("Sheikh") amended his complaint with the court's permission and now moves for a second time to remand this action to ------- District Court Decision dated Aug 13, 2008 ------

18 a state court, asserting that his complaint no longer so much as mentions any benefit that is governed under ERISA. He also asks the court for an award of fees and costs as a sanction for Cisco's having removed the case to federal court in the first place. Cisco opposes the motion. The court has read plaintiff's moving papers filed February 21, 2008, Docket No. 43; defendant's opposition filed pursuant to the court's order on May 2, 2008, Docket No. 54; plaintiff's 65-page reply filed July 10, 2008 titled "Rehan's [Plaintiff] Memorandum of Points and Authorities in Support of Second Motion of Remand," Docket No. 65 ("Reply"); and the 17-page document titled "Rehan's [Plaintiff] Provisional Reply Brief for Second Motion for Remand" that was filed the morning of the hearing on this matter, Docket No. 68 ("Provisional Reply"). The court has also reviewed the documents that plaintiff has submitted to date in this case and considered the presentations and responses to the court's questions made by plaintiff and defendant's counsel at the July 18, 2008 hearing on the matter. 1(*1) For the reasons stated below, the court

(*1) On July 21, 2008, plaintiff filed a letter that, among other things, seems to suggest that the court has not yet held a hearing on his motion for remand because the hearing was "not more than approximately eleven minutes and plaintiff is not sure if was fully able to explain his position verbally due to time constraints." July 21, 2008 Letter, Docket No. 69. The court assures plaintiff that it has conducted a hearing on his motion to remand and ------- District Court Decision dated Aug 13, 2008 ------

19 a denies plaintiff's second motion to remand this action to state court and declines to award attorney's fees and costs. I. BACKGROUND Sheikh began working for defendant Cisco Systems as a software engineer in September 2000. Second Am. Compl. ("SAC") 7. Sheikh performed satisfactorily during his employment at Cisco. Id. In April 2003, Sheikh went on extended medical leave. Id. 9. In September 2003, he filed a complaint of discrimination under the Fair Employment & Housing Act ("FEHA") with the California Department of Fair Employment & Housing ("DFEH"). Id. 10. On May 16, 2006, Sheikh filed his original complaint in state court, Superior Court of California, County of Santa Clara. See Notice of Removal, Ex. A. In his original complaint, Sheikh alleged that because he had filed a discrimination complaint, Cisco engaged in a "pattern of denying, and/or exercising influence to ensure denials of, both Short Term Disability (STD) benefits and Long Term Disability (LTD) benefits to Sheikh." Compl. 11. Sheikh also alleged that Magellan Health, the insurance company that handles Cisco's benefit plans, failed to properly pay his benefits for mental health treatment, resulting in a loss of over $15,000 in benefit payments. Id. 14. Plaintiff further alleged violations of FEHA; breach of Cisco's contract does not require plaintiff to provide further information on the matter. ------- District Court Decision dated Aug 13, 2008 ------

20 a to pay STD and LTD benefits and breach of the covenant of good faith and fair dealing. Id. 20-34. Cisco removed the action to federal court on the basis that plaintiff's claims for benefits are preempted by ERISA. Plaintiff previously moved to remand on the ground that his original complaint alleged only state claims, but his motion was denied. The court found that Sheikh's complaint included some claims preempted by ERISA because they "revolve[d] around allegations of Cisco's handling of benefits claims." June 11, 2007 Order Denying Plaintiff's Motion to Remand to State Court, Docket No. 28 at 4. Plaintiff moved for reconsideration, which the court denied. In its order denying reconsideration, however, the court permitted plaintiff to file a second amended complaint in order to clarify, if possible, that none of his claims are preempted by ERISA. August 10, 2007 Order Denying Motion for Leave to File a Motion for Reconsideration at 3. Thereafter, plaintiff filed a second amended complaint and, on February 14, 2008, moved a second time for remand. He did not, however, set the matter for hearing so defendant did not respond to the motion. When the court became aware of plaintiff's motion, it set a briefing schedule and hearing date. In his second amended complaint, plaintiff has amended his allegations to remove references to short and long term disability benefits, now alleging, for example, that "CISCO engaged in a pattern of denying, and/or exercising influence to ensure denials of, employment benefits, causing extended ------- District Court Decision dated Aug 13, 2008 ------

21 a delays in the processing of such benefits." SAC 12. He alleges that defendant breached employment agreements by "failing to ensure he was paid the value of his benefits, failing to ensure cooperation with the insurance companies to have benefits paid, and by violating its own descriptions of such benefits." Id. 50. As in his complaint, plaintiff seeks compensatory damages including "past and future lost wages, lost benefits, bonuses, fringe benefits, mental and emotional distress and other special and general damages in the amount of at least $100,000.00". SAC at 11. Plaintiff also requests punitive damages, an award of interest including prejudgment interest, costs of the suit, and attorney's fees. Id. II. ANALYSIS As before, plaintiff argues that remand to state court is proper because he has alleged only state claims. Defendant argues that Sheikh's amendments do not alter the court's prior conclusion that Sheikh is making claims preempted by ERISA and that Sheikh cannot turn ERISA claims into state claims merely by removing references to "LTD benefits" and substituting "employment benefits." As defendants point out, in order to determine whether plaintiff is engaging in artful pleading, 2(*2)

(*2) In his papers, plaintiff appears to take offense to the court's use of the term "artful pleading." The court assures plaintiff that this phrase is a term of art referring to the inclusion of federal claims within a complaint that seems to only set forth state claims. The use of the term is not meant to imply that ------- District Court Decision dated Aug 13, 2008 -----2

22 a the court is permitted to examine the entire record. Tortola Restaurants v. Kimberly-Clark Corp., 987 F. Supp. 1186, 1188 (N.D. Cal. 1997) (Illston, J.). In this case, the entire record includes not only the complaints plaintiff has filed in this action but argument and exhibits submitted in his reply and provisional reply. 3(*3) Complete preemption of a claim creates federal removal jurisdiction because a completely preempted claim is recharacterized as arising under ERISA. Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 66 (1987). The court would then have supplemental jurisdiction over any remaining state claims that are not completely preempted. 28 U.S.C. 1367. ERISA completely preempts a state law claim when only when it both preempts the claim under 29 U.S.C. 1144(a) and displaces the claim with its civil enforcement provision, 29 U.S.C. 1132(a). Buster v. plaintiff has wrongfully engaged in conduct meant to deceive the court. (*3) Although plaintiff continues to insist that he should be exempt from page limits and other rules of this court as an accommodation for his disability, he must nonetheless seek relief from the court to deviate from the rules, for example, with respect to page limits. Pro se plaintiffs, like all other litigants before this court, are subject to the Federal Rules of Civil Procedure and to applicable local rules. See N.D. Cal. L.R. 3-9(a). Local Rule 7-2 sets forth the page limits for the motion (25 pages), opposition (25 pages) and reply (15 pages) as well as the time limits for filing each. Litigants must seek an order modifying these page lengths and time limits. ------- District Court Decision dated Aug 13, 2008 -----3

23 a Greisen, 104 F.3d 1186, 1188 (9th Cir. 1991). Under the complete preemption doctrine, "[o]nce an area of state law has been completely pre-empted, any claim purportedly based on that pre-empted state law is considered from its inception, a federal claim, and therefore arises under federal law." Milne Employees Ass'n v. Sun Carriers, Inc., 960 F.2d 1401, 1406 (9th Cir. 1991). A. ERISA Preemption Section 514(a) of ERISA provides that ERISA provisions supersede state laws that "relate to" employee benefit plans that are described in 29 U.S.C. 1003(a) 4(*4) and not exempt under 29 U.S.C. 1003(b). 29 U.S.C. 1144(a). As before, Cisco contends that Sheikh's allegations of extended delays in the provision of his benefits are claims that "relate to" the administration of an ERISA plan, even though Sheikh frames the conduct as part of his

(*4) "The terms 'employee benefit plan' and 'welfare plan' mean any plan, fund, or program . . . maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment . . . ." 29 U.S.C. 1002. Long term disability plans are employee benefit plans governed by ERISA. Atkin v. Standard Ins. Co., 1996 WL 88814, *6 n.2 (N.D. Cal. 1996). As before, Sheikh does not dispute that Cisco's long term disability plans qualify as employee benefit plans governed by ERISA. ------- District Court Decision dated Aug 13, 2008 -----4

24 a claims for discrimination, retaliation and breach of contract. "A law 'relate[s] to' a covered employee benefit plan for purposes of 514(a) if it [1] has a connection with or [2] reference to such a plan." Golden Gate Rest. Ass'n v. City of San Francisco, 512 F.3d 1112, 1120 (9th Cir. 2008). "'[T]o determine whether a state law has the forbidden connection' with ERISA plans, we 'look both to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive, as well as to the nature of the effect of the state law on ERISA plans.'" Id. at 1120 (citing Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997)). "To determine whether a law has a forbidden 'reference to' ERISA plans, we ask whether (1) the law 'acts immediately and exclusively upon ERISA plans,' or (2) 'the existence of ERISA plans is essential to the law's operation.'" Id. at 1123 (citing Dillingham, 519 U.S. at 325). Here, plaintiff's claims seventh and eighth claims still appear to be preempted in spite of his amendments. 5(*5) The court previously cited to Clorox Co. v. United States Dist. Court, 779 F.2d 517, (*5) Plaintiff's first cause of action for national origin and religion discrimination and his second cause of action for retaliation also state that "as a proximate cause [of Cisco's alleged discriminatory and retaliatory actions] Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress." SAC 20, 25. ------- District Court Decision dated Aug 13, 2008 -----5

25 a 521 (9th Cir. 1985), for the proposition that ERISA preempts claims that arise out of the administration of a covered plan where a plaintiff claims that the employer wrongfully and maliciously denied employment benefits. In that case, the Ninth Circuit found that plaintiff's claim that Clorox wrongfully and maliciously denied her employment benefits was in effect a "denial of benefits" claim of the type preempted by ERISA. The rationale behind finding that the claim was preempted was that the availability and distribution of benefits under an ERISA plan were at issue. In this case, based on the second amended complaint, the court's conclusion that some of Sheikh's claims revolve around allegations of Cisco's handling of benefits claims has not changed. As before, Sheikh refers to "benefits" several times in his complaint, and even after his amendments he asserts that Cisco is liable for its actions in the administration or provision of benefits under the ERISA statute. Plaintiff's amended complaint and the arguments set forth in his Reply and Provisional Reply briefing purport to clarify that issues regarding the provision of his short and long term disability benefits have been separately resolved. See, e.g., Reply at 28. Nevertheless, Sheikh's allegations still assert that his benefits pursuant to an ERISA plan were not processed in a timely manner and were not paid as expected. See Reply at 61 ("The plaintiff signed an agreement with Cisco (via its agent UNUM, Exhibit A, Docket 34-2) in February 2005 to resolve the ERISA benefits claim ------- District Court Decision dated Aug 13, 2008 ------

26 a via neutral claim administrators. The plaintiff stood by its obligation and waited for about two and a half years before the Cisco/UNUM actually cared to review the plaintiff's ERISA plan benefits that resulted in payment of benefits to plaintiff."). Furthermore, Sheikh continues to base his breach of contract claim on "certain oral and written agreements regarding benefits he would receive from Defendant" that "plaintiff would be paid the value of his employment benefits without delay and in full." SAC 48-49. Although the court suggested in its Order Denying Motion for Leave to File a Motion for Reconsideration and Granting Leave to File an Amended Complaint, Docket No. 36, that plaintiff might be able to amend his complaint to demonstrate that some of his claims were not preempted by ERISA, plaintiff has not successfully done so. There may be no ERISA preemption where a plaintiff only seeks to recover lost salary and benefits, however, where it is clear, as here, that the loss claimed is the result of the administration (or interference therewith) of a plan covered by ERISA, the claim is preempted. See Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1404 (9th Cir. 1988) (distinguishing its facts wherein no ERISA plan was implicated even though benefits were sought, from the preempted claims in Clorox, 779 F.2d at 521, wherein the claims were that the employer wrongfully denied employment benefits).

------- District Court Decision dated Aug 13, 2008 ------

27 a B. Displacement by the ERISA Civil Enforcement Provision The second requirement to establish preemption is that ERISA's civil enforcement provision must displace the state law claim. Section 1132(a)(1)(b) provides: A civil action may be brought-(1) by a participant or beneficiary-*** (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; The court previously concluded that Sheikh appeared to be seeking the payment of disability benefits as one of his claims for relief. Plaintiff now at times claims he is not seeking benefits under an ERISA plan. See, e.g., Reply at 28 (stating that he is "not claiming improper denial or any effects of the denial of LTD benefits"); see also id. at 47 (stating that he has "only asserted state and FEHA claims in his lawsuit after an agreement with defendant to resolve LTD claim [sic] via neutral claim examiners"). However, other portions of plaintiff's papers suggest otherwise. For example, plaintiff states: As plaintiff has not asked for ERISA benefits in his original lawsuit (a well pleaded complaint), a defendant might be concerned about potential future liability for ERISA benefits. If this court agrees to waive the court fee and the defendant agrees not to demand his own attorney fee(s), the plaintiff agrees to bring an additional lawsuit in the district court for ERISA benefits. This is because ------- District Court Decision dated Aug 13, 2008 ------

28 a plaintiff has not yet evaluated his potential claim for ERISA benefits and cannot assure if he has a colorful claim. This way, the court can remand the claim without any considerations. Id. at 43. The court recognizes that plaintiff likely intended for this statement to be a reassurance to the court that he does not seek recovery under ERISA in the operative complaint. Nevertheless, this statement serves to confirm to the court that plaintiff does intend by bringing suit against Cisco to seek relief related to his ERISA benefits, whether that relief is the benefits themselves or recovery for damages related to the administration of his benefits under the LTD plan governed by ERISA. In fact, when asked by the court at the July 25, 2008 hearing whether he intended by his complaint to seek recovery based on the denial of benefits, plaintiff did not unequivocally deny that he sought damages attributable to the delay or denial of his ERISA benefits. In conclusion, even though plaintiff characterizes his damages as compensatory damages for the alleged wrongful delay in paying benefits rather than the payment of benefits under any plan governed by ERISA, he nonetheless at least seeks damages resulting from alleged interference by defendant in the administration of ERISA benefits through UNUM. Because he seeks to enforce or clarify his ERISA benefits, ERISA's civil enforcement provision thus displaces his state law claim. Accordingly, because the court has found that plaintiff has asserted a federal claim, it denies plaintiff's motion to remand to state court. ------- District Court Decision dated Aug 13, 2008 ------

29 a

C. Costs and Actual Expenses Because the court finds that is has subject matter jurisdiction over the instant action, plaintiff's request for costs and expenses is denied. D. Motion to Compel Arbitration In its April 4, 2008 Order Setting Briefing Schedule for Plaintiff's Second Motion for Remand, Docket No. 49, the court set a briefing schedule for defendant's motion to compel arbitration along with the motion to remand. The court subsequently received a request for accommodation from plaintiff, wherein plaintiff asked the court to delay the briefing and hearing on defendant's motion to compel arbitration until after the court's determination of plaintiff's motion to remand. In its May 18, 2008 order on the matter, the court stated that "[t]he briefing schedule and hearing for defendant's motion to compel arbitration will be continued to give plaintiff thirty (30) days after the court's ruling on plaintiff's motion to remand to respond." Docket No. 58 at 4. Pursuant to that order, the court sets the briefing schedule and hearing on defendant's motion to compel as follows: Plaintiff's opposition to defendant's motion to compel arbitration is due by September 12, 2008. Unless otherwise ordered by the court, plaintiff's opposition shall be limited to no more than 25 pages. Plaintiff is cautioned that violation of the 25-page limit may result in sanctions. ------- District Court Decision dated Aug 13, 2008 ------

30 a Defendant's reply in support of its motion to compel arbitration is due by September 19, 2008. Unless otherwise ordered by the court, defendant's reply is limited to no more than 15 pages. The parties are to appear in courtroom #6, 4th floor of the U.S. Courthouse, 280 S. First Street, San Jose, California at 9:00 a.m. on Friday, October 3, 2008. To request to appear telephonically, the parties should contact the Courtroom Deputy at (408) 535-5375. III. ORDER For the foregoing reasons, the court denies plaintiff's motion to remand the action to the Superior Court of California, County of Santa Clara. Plaintiff's request for attorney's fees and costs is denied. The parties shall appear as set forth above on Friday, October 3, 2008 at 9:00 for a hearing on defendant's motion to compel arbitration. DATED: 8/13/08 RONALD M. WHYTE United States District Judge

------- District Court Decision dated Aug 13, 2008 ------

31 a

APPENDIX G
IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ OCT 7, 2010 ___________________ ORDER TO SHOW CAUSE On March 31, 2009, the court granted defendant's motion to compel arbitration and stayed further proceedings in this case pending resolution of the arbitration. No further filings have been made, and more than enough time would appear to have elapsed for arbitration to have been completed. The court therefore orders the parties to appear at 9:00 a.m. on October 22, 2010 and show cause why this case should not be dismissed for lack of prosecution. Absent a showing of good cause, this case will be dismissed. DATED: 10/7/10 RONALD M. WHYTE United States District Judge

32 a

APPENDIX H
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ___________________ No. C-07-00262 RMW ___________________ REHAN SHEIKH, Plaintiff - Appellant, v. CISCO SYSTEMS, INC., Defendant - Appellee. ___________________ OCT 28, 2010 ___________________ ORDER DISMISSING CASE This case was ordered stayed subject to arbitration on March 31, 2009. The court issued an order to show cause why this case should not be dismissed for lack of prosecution because it appeared that either no action had been taken or the action had been resolved. Both parties responded to the order to show cause. The court learned that plaintiff had taken no action to institute arbitration since the court's March 31, 2009 order. Plaintiff suggested that it was up to defendant to present the papers to him

33 a to institute arbitration. The court finds that plaintiff's failure to take action was unreasonable given the time that has elapsed since the court's order granting the motion to compel arbitration. Therefore, the court dismisses this action without prejudice for failure to diligently prosecute. Plaintiff is not precluded from seeking to proceed with the arbitration. If an arbitration is held, either party may file a new action to confirm the arbitration award, if necessary and appropriate. Defendant is requested to supply plaintiff with the information explaining how to institute the arbitration if it has not already done so. DATED: 10/28/10 RONALD M. WHYTE United States District Judge

REHAN SHEIKH 902 Tamarack Ln. #2 Sunnyvale, CA 94086 (408) 314-9915 In Propria Persona

APPENDIX I

34 a

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA REHAN SHEIKH, ) CASE No. 106 CV063840 ) COMPLAINT Plaintiff, ) vs. ) ) CISCO SYSTEMS, INC., ) and ) Does 1 - 20, inclusive ) ) Defendants. ) ________________________) VIOLATIONS OF FAIR EMPLOYMENT AND HOUSING ACT; BREACH OF CONTRACT; BREACH OF COVENANT OF GOODFAITH AND FAIR DEALING DEMAND FOR JURY TRIAL Plaintiff REHAN SHEIKH (SHEIKH) complains and alleges: --- Original Complaint - California Superior Court ---

35 a PARTIES AND JURISDICTION 1. Jurisdiction in the above entitled Court is proper because Plaintiff is requesting no less than $100,000 (ONE HUNDRED THOUSAND DOLLARS) in damages from Defendant. 2. Jurisdiction in the above entitled Court is proper because at all times relevant to this complaint, Defendant has done business in Santa Clara County, California. 3. Jurisdiction in the above entitled Court is proper because the injuries and damages suffered by Plaintiff were the result of the actions and/or inactions of Defendants while Plaintiff was located in California, including in Santa Clara County. 4. Defendant CISCO SYSTEMS, INC. (CISCO) was at all relevant times mentioned herein was, a corporation, form unknown, doing business in the State of California, including Santa Clara County. 5. Plaintiff is ignorant of the true names and capacities of those Defendants sued herein as DOES 1 - 20, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named Defendants is responsible in some manner for the occurrences herein alleged, and that his injuries and damages as herein alleged were proximately caused by their conduct. 6. Each of the Defendants herein were at all relevant times the agent, employee, representative, and/or predecessor and/or successor in interest and --- Original Complaint - California Superior Court ---

36 a obligation of the remaining Defendants, and was, unless specifically alleged otherwise, acting at least in part within the course and scope of such relationship. GENERAL ALLEGATIONS 7. In September 2000, SHEIKH began working for CISCO as a Software Engineer. SHEIKH performed satisfactorily, was granted pay increases, and was assigned several engineering projects until he left on medical leave. 8. In April 2003, SHEIKH had worked continuously for CISCO until he then left that month on extended medical leave. 9. In September 2003 SHEIKH filed a complaint of discrimination under the Fair Employment & Housing Act (FEHA) with the California Dept. of Fair Employment & Housing (DFEH). Within days the DFEH / EEOC served that complaint of discrimination on CISCO and the federal civil rights agency began an investigation based on the allegations in that discrimination complaint. 10. After SHEIKH filed his first September 2003 complaint of discrimination, CISCO conveyed information about that discrimination complaint to SHEIKHs superiors and managers and to the Human Resources / Benefits departments within CISCO. 11. In October 2003 CISCOs Human Resources Representative notified SHEIKH that because he --- Original Complaint - California Superior Court ---

37 a had filed a complaint of discrimination, that CISCO would be denying the disability benefits that SHEIKH had applied for and was previously going to receive. Thereafter, CISCO engaged in a pattern of denying, and/or exercising influence to ensure denials of, both Short Term Disability (STD) benefits and Long Term Disability (LTD) benefits to SHEIKH by causing extended delays in the processing of such benefits, and recommending to the insurance companies, Magellan Health and Unum Provident Corporation, that they deny such benefits. 12. CISCO additionally engaged in a pattern of denying, and/or exercising influence to ensure denials of, SHEIKHs workers compensation benefits, by failing to timely process his workers compensation claims. 13. Eventually at CISCOs direction, both Magellan Health and Unum Provident delayed and/or denied the STD and LTD benefits that should have been paid to SHEIKH starting in 2003. These denials of benefits were forms of retaliation by CISCO. 14. During 2003 and/or 2004 Magellan Health paid SHEIKH only 50% of benefits allowed for mental health treatment. The plan called for 80% payments. This differential in payments resulted in SHEIKH losing more than $15,000 in benefit payments. This loss in benefit payments was yet another form of retaliation by CISCO and its agents. 15. During 2003 and 2004 the insurance companies received information from CISCO that SHEIKH had complained and/or that he had filed a --- Original Complaint - California Superior Court ---

38 a civil rights complaint. As a result, these insurance companies denied and delayed the STD and LTD benefits payable to SHEIKH during his medical leave period. To date, SHEIKH estimates that his unpaid LTD benefits total at least $120,000. 16. In 2004 SHEIKH filed an appeal of the STD and LTD denials with the California Unemployment Insurance Appeals Board (UIAB). CISCO and its agents defended the denial of benefits using various rationales before the Administrative Judge of that agency. 17. In or about October 2004 the UIAB notified CISCO it had improperly denied the STD policy benefits to SHEIKH, and that CISCO and/or its agents had to pay full benefits to SHEIKH. Thereafter, CISCO was forced to pay the full STD benefits to SHEIKH. CISCO failed to pay, and continues to this day to fail to pay, SHEIKHs full LTD benefits. 18. In or about December 2004 SHEIKH timely filed a charge of discrimination (EEOC No. 377-200500112) against CISCO, Magellan Health and Unum Provident Corporation with both the federal agency and California DFEH. SHEIKH made clear that his claims were against all three corporate entities for discriminating against him. The DFEH / EEOC elected to name only one respondent in its charge of discrimination, that respondent being CISCO, although SHEIKH claims that all three entities were involved in the retaliation. 19. The DFEH issued its Right to Sue letter to SHEIKH in December 2004, but because of the --- Original Complaint - California Superior Court ---

39 a delayed processing of the matter by the EEOC, that Right to Sue did not expire until May 18, 2006. SHEIKH herein files this timely Superior Court Complaint based on his allegations under the FEHA, but not based on his federal allegations. FIRST CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT 20. Plaintiff realleges and incorporates by reference paragraphs 1-19. 21. California Govt. Code 12940 et seq. prohibits retaliation against any employee for bringing claims of discrimination against an employer, whether via a formal charge of discrimination, or via an informal method. 22. Plaintiff brought both informal and formal charges of discrimination against Defendant, and as a result, Defendant retaliated against him in the manner described above. 23. As a proximate result of this retaliation, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress. 24. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, --- Original Complaint - California Superior Court ---

40 a deliberate, cold, callous, and intentional manner with malice in order to injure and damage Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. SECOND CAUSE OF ACTION BREACH OF CONTRACT 25. Plaintiff realleges and incorporates by reference paragraphs 1-19. 26. Plaintiff was employed by Defendant pursuant to certain oral and written agreements regarding benefits he would receive from Defendant. 27. Under the agreements, Defendant promised Plaintiff would be paid the value of his Short Term Disability and Long Term Disability benefits without delay and in full. Defendant also promised to cooperate with its insurance agents to ensure Plaintiff was paid the value of his benefits policies. Defendant also described the types of benefits that would be paid in his human resources materials. 28. Defendant breached its oral and written contractual agreements with Plaintiff by failing to ensure he was paid the value of his benefits, failing to ensure cooperation with the insurance companies to have benefits paid, and by violating its own descriptions of such benefits. In fact, Defendant notified its insurance agents of SHEIKHs complaints and worked to ensure that his benefits were either delayed or denied. --- Original Complaint - California Superior Court ---

41 a 29. SHEIKH is herein asking for damages against CISCO for its interference with, and its false promises with regard to, the benefits Plaintiff deserved to be paid. Plaintiff is not requesting that this Court interpret such benefits policies, or enter any orders against the insurance companies. 30. As a proximate result of Defendants breach of these implied contractual provisions, Plaintiff has suffered and continues to suffer losses in earnings and other employment benefits in an amount to be established at trial. WHEREFORE, Plaintiff prays for judgment as set forth below. THIRD CAUSE OF ACTION BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 31. Plaintiff realleges and incorporates by reference paragraphs 1-19. 32. California law provides that every contract of employment, even an at-will contract, contains an implied covenant of good faith and fair dealing, which obligated Defendant to perform the terms and conditions of the agreement fairly and in good faith and to refrain from doing any act that would prevent or impede Plaintiff from receiving the benefits of the contract. 33. Despite the existence of said implied covenants, Defendant acted in bad faith by engaging in the conduct identified above, including but not limited to, interfering with the swift and final payment of benefits to Plaintiff from his Short Term --- Original Complaint - California Superior Court ---

42 a Disability and Long Term Disability insurance plans. 34. As a proximate result of Defendants breach of the implied covenant of good faith and fair dealing, Plaintiff has suffered losses in an amount to be established at trial. WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: (a) For compensatory damages including lost wages, lost benefits, bonuses, fringe benefits, mental and emotional distress, and other special and general damages in the amount of at least $100,000.00; (b) For punitive damages; (c) For an award of interest, including prejudgment interest, at the legal rate; (d) For costs of suit incurred by Plaintiff; (e) For reasonable attorneys fees where available; (f) For an award to Plaintiff of such other and further relief as this Court deems just and proper. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury on all, of the claims alleged above. Dated: May 16 , 2006 REHAN SHEIKH, Plaintiff

--- Original Complaint - California Superior Court ---

REHAN A. SHEIKH, In pro per rehansheikh@yahoo.com PO Box 869 French Camp CA 95231-0869 Phone: (209) 982 9039 Facsimile: (209) 468 6392

APPENDIX J

43 a

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SECOND AMENDED COMPLAINT Judge: Hon. Ronald Whyte CASE No. C07-00262- RMW REHAN SHEIKH, ) ) Plaintiff, ) vs. ) ) CISCO SYSTEMS, INC., ) and Does 1 - 20, inclusive ) ) Defendants. ) ______________________________) VIOLATIONS OF FAIR EMPLOYMENTAND HOUSING ACT; [DISCRIMINATION,RETALIATION, WRONGFUL TERMINATION, FAILURE TO ACCOMMODATE]; BREACH OF CONTRACT; BREACH OF COVENANT OF GOODFAITH AND FAIR DEALING; DEMAND FOR JURY TRIAL ------- Second Amended Complaint (SAC) -------

44 a Plaintiff REHAN SHEIKH (SHEIKH) complains and alleges: PARTIES AND JURISDICTION 1. Jurisdiction in the above entitled Court is proper because Plaintiff is requesting no less than $100,000 (ONE HUNDRED THOUSAND DOLLARS) in damages from Defendant. 2. Jurisdiction in the above entitled Court is proper because at all times relevant to this complaint, Defendant has done business in Santa Clara County, California. 3. Jurisdiction in the above entitled Court is proper because the injuries and damages suffered by Plaintiff were the result of the actions and/or inactions of Defendants while Plaintiff was located in California, including in Santa Clara County. 4. Defendant CISCO SYSTEMS, INC. (CISCO) was at all relevant times mentioned herein was, a corporation, form unknown, doing business in the State of California, including Santa Clara County. 5. Plaintiff is ignorant of the true names and capacities of those Defendants sued herein as DOES 1 - 20, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named Defendants is responsible in some manner for the occurrences herein alleged, and that his injuries and damages as herein alleged were proximately ------- Second Amended Complaint (SAC) -------

caused by their conduct. 6. Each of the Defendants herein were at all relevant times the agent, employee, representative, and/or predecessor and/or successor in interest and obligation of the remaining Defendants, and was, unless specifically alleged otherwise, acting at least in part within the course and scope of such relationship. GENERAL ALLEGATIONS 7. In September 2000, SHEIKH began working for CISCO as a Software Engineer. SHEIKH performed satisfactorily, and was assigned several engineering projects until he left on medical leave. 8. From about October 2000 through April 2003, CISCO discriminated against and harassed SHEIKH on account of his Pakistani national origin and Muslim religion; SHEIKH was subjected to discriminatory statements and treatment, alienation, and denied transfer, telecommunicating and leave opportunities granted to non-Pakistani and nonMuslim employees. 9. In April 2003, SHEIKHs physician placed him on a medical leave of absence for his major depression caused by unhealthy, harassing and discriminatory work environment at Cisco Systems Inc.; Plaintiff suffers from a medical condition that limits major life activities, including the activity of working, and is therefore subject to the protection provided by the California Govt. Code 12940 et seq. 10. In September 2003 SHEIKH filed a complaint of discrimination under the Fair Employment & Housing Act (FEHA) with the California Dept. of Fair Employment & Housing (DFEH). Within days ------- Second Amended Complaint (SAC) -------

45 a

46 a the DFEH / EEOC served that complaint of discrimination on CISCO and the federal civil rights agency began an investigation based on the allegations in that discrimination complaint. 11. After SHEIKH filed his first September 2003 complaint of discrimination, CISCO conveyed information about that discrimination complaint to SHEIKHs superiors and managers and to the Human Resources / Benefits departments within CISCO. 12. In October 2003 CISCOs Human Resources Representative notified SHEIKH that because he had filed a complaint of discrimination, that CISCO would be denying employment benefits. Thereafter, CISCO engaged in a pattern of denying, and/or exercising influence to ensure denials of employment benefits causing extended delays in the processing of such benefits. 13 On or about November 5, 2004 SHEIKH timely filed a charge of retaliation (EEOC No. 3772005-00112) against CISCO with both the federal agency and California DFEH. 14. The DFEH issued its Right to Sue letter to SHEIKH in May 2005. SHEIKH timely filed his Superior Court Complaint based on his allegations under the FEHA; CISCO caused the matter to be transferred to the Federal Court and the matter is presently to be remanded to the State Superior Court setting forth only causes of action within the jurisdiction of the State Superior Court. 15. CISCO threatened to terminate plaintiffs employment in or around August 2005 and terminated his employment effective November 4, 2005. ------- Second Amended Complaint (SAC) -------

47 a 16. In March 2006, SHEIKH filed a third charge of discrimination under the Fair Employment & Housing Act (FEHA) alleging discrimination based on national origin and disability and retaliation; The DFEH issued its Right to Sue letter to SHEIKH on March 31, 2006. FIRST CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT (National Origin and Religion Discrimination) 17. Plaintiff realleges and incorporates by reference paragraphs 1-16. 18. California Govt. Code 12940 et seq. prohibits discriminating against any employee due to his national origin or religion. 19. Shortly after commencing employment with CISCO, CISCO subjected Plaintiff to discriminatory conduct and harassment on account of his Pakistani national origin and Muslim religion. 20. As a proximate result of this discrimination and harassment, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress. 21. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional manner with malice in order to injure and damage ------- Second Amended Complaint (SAC) -------

48 a Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. SECOND CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT (Retaliation) 22. Plaintiff realleges and incorporates by reference paragraphs 1-21. 23. California Govt. Code 12940 et seq. prohibits retaliation against any employee for bringing claims of discrimination against an employer, whether via a formal charge of discrimination, or via an informal method. 24. Plaintiff brought both informal and formal charges of discrimination against Defendant, and as a result, Defendant retaliated against him in the manner described above. 25. As a proximate result of this retaliation, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress. 26. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional manner with malice in order to injure and damage ------- Second Amended Complaint (SAC) -------

49 a Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. THIRD CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT (Failure to Accommodate) 27. Plaintiff realleges and incorporates by reference paragraphs 1-26. 28. California Govt. Code 12940 et seq. requires an employer with more than five employees to reasonably accommodate a disabled employee. SHEIKH requested part time work, a transfer, and time off from CISCO but was denied these reasonable accommodations. In addition, CISCO never engaged in a meaningful, good faith interactive process with him whereby it offered an effective accommodation to SHEIKH. 29. Due to his requests for an accommodation, Defendant retaliated against him in the manner described above. 30. As a proximate result of this retaliation, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress. 31. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts ------- Second Amended Complaint (SAC) -------

50 a taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional manner with malice in order to injure and damage Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. FOURTH CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT (Disability Discrimination) 32. Plaintiff realleges and incorporates by reference paragraphs 1-31. 33. California Govt. Code 12940 et seq. prohibits discriminating against any employee due to his disability. 34. Plaintiff revealed his disability to CISCO and then suffered disparate treatment thereafter. 35. As a proximate result of this disparate treatment, Plaintiff has suffered harm, including lost earnings and other employment benefits, humiliation, embarrassment, physical harm, and mental and emotional distress. 36. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional manner with malice in order to injure and damage ------- Second Amended Complaint (SAC) -------

51 a Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. FIFTH CAUSE OF ACTION VIOLATIONS OF FAIR EMPLOYMENT & HOUSING ACT (Wrongful Termination in Violation of Public Policy) 37. Plaintiff realleges and incorporates by reference paragraphs 1-36. 38. California Govt. Code 12940 et seq. sets forth the fundamental, substantial, and wellestablished public policy of the State of California. 39. Defendant violated such public policy by terminating Plaintiffs employment in violation of California Govt. Code Section 12940 et seq. as described herein. 40. As a proximate result of this violation of public policy, Plaintiff has suffered harm, including lost earnings and other employment benefits, termination, humiliation, embarrassment, physical harm, and mental and emotional distress. 41. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, deliberate, cold, callous, and intentional manner with malice in order to injure and damage Plaintiff, he is entitled to recover punitive damages ------- Second Amended Complaint (SAC) -------

52 a from Defendant in an amount according to proof. SIXTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 42. Plaintiff realleges and incorporates by reference paragraphs 1-41. 43. The conduct complained of herein above was outside the conduct expected to exist in the workplace, was intentional and malicious and done for the purpose of causing Plaintiff to suffer humiliation, mental anguish, and emotional and physical distress. 44. Defendants, in confirming and ratifying the herein described conduct, knew or should have known that Plaintiffs emotional and physical distress would thereby increase. 45. Defendants engaged in the herein described conduct with a wanton and reckless disregard of the consequences to Plaintiff. 46. As a proximate result of Defendants intentional infliction of emotional distress as hereinabove alleged, Plaintiff has suffered and continues to suffer humiliation, mental and physical pain, and has been injured in mind and health, the exact amount of which will be proven at trial, but is in excess of the jurisdictional limits of this Court. Defendant has committed the acts alleged herein maliciously, fraudulently, oppressively, and willfully, with the wrongful intention of injuring Plaintiff and has acted with an improper and evil motive amounting to malice, and in conscious disregard of his rights. Because the acts taken towards Plaintiff were carried out in a despicable, ------- Second Amended Complaint (SAC) -------

53 a deliberate, cold, callous, and intentional manner with malice in order to injure and damage Plaintiff, he is entitled to recover punitive damages from Defendant in an amount according to proof. WHEREFORE, Plaintiff prays for judgment as set forth below. SEVENTH CAUSE OF ACTION BREACH OF CONTRACT 47. Plaintiff realleges and incorporates by reference paragraphs 1-46. 48. Plaintiff was employed by Defendant pursuant to certain oral and written agreements regarding benefits he would receive from Defendant. 49. Under the agreements, Defendant promised Plaintiff would be paid the value of his employment benefits without delay and in full. Defendant also described the types of benefits that would be paid in his human resources materials. 50. Defendant breached its oral and written contractual agreements with Plaintiff by failing to ensure he was paid the value of his benefits, failing to ensure cooperation with the insurance companies to have benefits paid, and by violating its own descriptions of such benefits. 51. Defendant breached its oral and written contractual agreements with Plaintiff by failing to abide by company policies for providing feedback and written performance evaluation. 52. SHEIKH is herein asking for damages against CISCO for its interference with, and its false promises with regard to, the benefits Plaintiff deserved to be paid, the corporate policies that the plaintiff expects to be followed by the company itself ------- Second Amended Complaint (SAC) -------

54 a and the career opportunities including transfer and trainings as provided to other employees . 53. As a proximate result of Defendants breach of these implied contractual provisions, Plaintiff has suffered and continues to suffer losses in earnings and other employment benefits in an amount to be established at trial. WHEREFORE, Plaintiff prays for judgment as set forth below. EIGHT CAUSE OF ACTION BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING 54. Plaintiff realleges and incorporates by reference paragraphs 1-53. 55. California law provides that every contract of employment, even an at-will contract, contains an implied covenant of good faith and fair dealing, which obligated Defendant to perform the terms and conditions of the agreement fairly and in good faith and to refrain from doing any act that would prevent or impede Plaintiff from receiving the benefits of the contract. 56. Despite the existence of said implied covenants, Defendant acted in bad faith by engaging in the conduct identified above, including but not limited to, interfering with the swift and final payment of benefits to Plaintiff from his Workers Compensation, medical reimbursements, Short Term Disability and Long Term Disability insurance plans. 57. As a proximate result of Defendants breach of the implied covenant of good faith and fair dealing, Plaintiff has suffered losses in an amount to be established at trial. ------- Second Amended Complaint (SAC) -------

55 a WHEREFORE, Plaintiff prays for judgment as set forth below. NINTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION 58. Plaintiff realleges and incorporates by reference paragraphs 1-57. 59. Defendant, through William McKenna, was offered several benefits to join CISCO. However, when SHEIKH came to CISCO, those benefits were not offered, causing SHEIKH to lose substantial benefits. SHEIKHs offer letter does not have an integration clause, and CISCO promised to provide SHEIKH with these benefits throughout his employment and afterwards. 60. As a result of this misrepresentation, SHEIKH lost several bonuses and benefits and other monetary losses in an amount to be proven at trial. WHEREFORE, Plaintiff prays for judgment against Defendant, as follows: (a) For compensatory damages including past and future lost wages, lost benefits, bonuses, fringe benefits, mental and emotional distress, and other special and general damages in the amount of at least $100,000.00; (b) For punitive damages; (c) For an award of interest, including prejudgment interest, at the legal rate; (d) For costs of suit incurred by Plaintiff; (e) For reasonable attorneys fees; (g) For an award to Plaintiff of such other and further relief as this Court deems just and proper. ------- Second Amended Complaint (SAC) -------

56 a DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury on all, of the claims alleged above. Dated: August _31___, 2007

REHAN SHEIKH, Plaintiff

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