ELECTRONICALLY FILED COURT OF COMMON PLEAS Wednesday, April 26, 2017 2:22:39 PM CASE NUMBER: 2017 CV 02002 Docket ID: 30813590 GREGORY A BRUSH CLERK OF COURTS MONTGOMERY COUNTY OHIO 3. Upon information and belief, Fuyao is a North American subsidiary of Fuyao Group, a Chinese company. 4. Upon information and belief, Defendant Cho is chairman of Fuyao Group and Fuyao. 5. This Court has jurisdiction and the Common Pleas Court of Montgomery County, Ohio is the appropriate venue for this case pursuant to Rule of the Ohio Rules of Civil Procedure because the claims that are the subjects of this lawsuit arose in Montgomery County, Ohio. 6. Prior to his employment with Fuyao, Plaintiff was employed by the Dayton Development Coalition (?Coalition?) and owned and operated a Cold Stone Creamery franchise in Vandalia, Ohio. 7. As part of his duties with the Coalition, Plaintiff became acquainted with Cho and other Fuyao representatives prior to Fuyao?s Articles of Incorporation being filed with the Ohio Secretary of State. 8. During this acquaintance, Fuyao Group representatives made numerous attempts to entice Plaintiff to leave the Coalition and work for Fuyao Group. 9. Chris Feng, then?President of Fuyao Automotive North America, met with Plaintiff at the Dayton, Ohio Marriott in the concierge lounge as early as August 2013 seeking to hire Plaintiff, and telling Plaintiff that ?Cho will take good care of you.? 10. As part of Fuyao?s selection of the greater Dayton metropolitan area for expansion, Plaintiff had numerous meetings with Cho. 1 1. Plaintiff was repeatedly insistent that he would never leave a job for parallel pay. 12. Cho instructed Plaintiff to tell Fuyao ?what you want and I will sign it.? 13. Plaintiff communicated to Fuyao that if he agreed to work for Fuyao, he wanted to be sure that he was compensated through 2017. 14. Upon reviewing Plaintiff?s proposed terms of employment, Cho stated that Plaintiff?s proposed compensation would amount to more than any other vice president and that all vice presidents with Fuyao were paid equally. He also mentioned that Plaintiff? 3 base pay was higher than the president of Fuyao. 15. Despite Cho?s hesitance to agree to Plaintiff?s compensation, he ultimately did agree to Plaintiff?s terms, which expressly included continued employment and compensation through 2017. 16. Plaintiff prepared a term sheet including terms that his employment and compensation be guaranteed to continue through 2017 which was signed by Cho. A copy of the term sheet signed by Cho was not given to Plaintiff. 17. Fuyao Director of Human Resources Judy Lewkowski formatted the term sheet prepared by Plaintiff into an Employment Contract, a true and accurate copy of which is attached hereto as Exhibit A, and presented it to Fuyao President John Gauthier for signature on July 24, 2015 after approval of the term sheet by Cho. John Gauthier signed the Employment Contract on behalf of Fuyao. 18. In addition to guaranteeing Plaintiff?s continued employment ?through 2017,? the Employment Contract also entitled Plaintiff to bonus compensation equal to the higher of $98,000.00 or an amount equivalent to the bonus compensation received by Fuyao?s president and vice president. 19. Plaintiff was paid $98,000.00 in bonus compensation for the year 2015, prorated from August. 20. Upon information and belief, Fuyao?s president was paid $200,000.00 in bonus compensation for the year 2015. 21. Judy Lewkowski transmitted the signed Employment Contract to Plaintiff via letter dated July 24, 2015, a true and accurate copy of which is attached hereto as Exhibit B. 22. Cho has stated that ?Americans need to listen to the Chinese? and, while negotiating in an attempt to hire an individual whose national origin is China, stated that working for Fuyao ?would be good to help her Chinese heritage.? 23. On Monday, November 14, 2016, Cho called a meeting at Fuyao where he falsely stated to those present that Plaintiff had resigned his position. 24. On Wednesday, November 16, 2016, an article was published online on the Dayton Business Journal website, a true and accurate copy of which is attached hereto as Exhibit C, which falsely stated that Plaintiff had stepped down from his position with Fuyao, effective Monday, November 14, 2016. 25. Tristan Navera, the author of the Dayton Business Journal article, con?rmed that the article was written based upon information he received from Fuyao representatives. 26. Cho is quoted directly in the article, stating that ?[t]hese changes to our senior management team are an important step forward as we transition from a construction phase into a mass production phase.? 27. On the morning of Wednesday, November 16, 2016, an article was published online on the Dayton Daily News website, a true and accurate copy of which is attached hereto as Exhibit D, in which Sunny Yiqun Sun, serving as a spokesperson for Fuyao, falsely stated that Plaintiff had left Fuyao. 28. On Wednesday, November 16, 2016, Plaintiff was terminated by Fuyao without cause and without written notice, and was not given any explanation, oral or written, for his termination. This was contrary to information provided by Fuyao?s counsel. 29. On Thursday, November 17, 2016, counsel for Plaintiff received a letter from Fuyao Assistant General Counsel Micah M. Siegal, a true and accurate copy of which is attached hereto as Exhibit E, wherein Attorney Siegal states that ?when you asked me during our telephone call yesterday morning [Wednesday, November 17, 2016] whether [Plaintiff] had been terminated, I properly responded that he had not.? 30. Upon information and belief, Plaintiff was replaced by Sunny Yiqun Sun, whose national origin is China. 31. Upon information and belief, Sunny Yiqun Sun was unable to continue to work for Fuyao until she worked for Fuyao in China for a year which would enable her to procure an L-l visa. 32. On January 23, 2017, Plaintiff filed a Charge of Discrimination based upon national origin with the Equal Employment Opportunity Commission. A true and accurate copy of Plaintiff?s Charge is attached hereto as Exhibit F. 33. On April 18, 2017, the Equal Employment Opportunity Commission issued a Notice of Right to Sue to Plaintiff. A true and accurate copy of the Notice is attached hereto as Exhibit G. COUNT ONE - FRAUD IN THE INDUCEMENT 34. Plaintiff incorporates the allegations of paragraphs 1 through 33 above as if fully rewritten. 35. In order to entice and induce Plaintiff to leave his current employment and to work for Fuyao, Cho falsely represented to Plaintiff that he would remain employed with Fuyao through 2017 and be compensated through 2017 in accordance with the terms of the Employment Contract. 36. Cho knew that representation to be false, as he had no intention of continuing Plaintiff?s employment past Fuyao?s ?construction phase? and into its ?mass?production phase? and he had no intention of continuing Plaintiff?s employment after Sunny Yiqun Sun was available to return from China to work for Fuyao. 37. Cho intended the false representation to Plaintiff to induce Plaintiff reliance, over Plaintiff?s repeated protestations, in order to leave his position with the Coalition and work for Fuyao. 38. Plaintiff justi?ably relied upon Cho?s representation of continued employment and compensation through 2017 and requested that Fuyao reduce this understanding to a writing which was executed on behalf of Fuyao by its president. 39. In reliance upon Fuyao?s and Cho?s representation, Plaintiff left his position with the Coalition, sold his Cold Stone Creamery franchise, and was terminated without cause and without notice by prior to the end of 2017, thereby suffering damages in an amount no less than $441,908.68. COUNT TWO BREACH OF CONTRACT 40. Plaintiff incorporates the allegations of paragraphs 1 through 39 above as if fully rewritten. 41. Plaintiff and Fuyao entered into the Employment Contract executed by Fuyao?s president on July 24, 2015. 42. Plaintiff performed his obligations under the Employment Contract until he was terminated without cause and without written notice, and remained ready, willing, and able to perform his employment duties through 2017 as required by the Employment Contract. 43. Fuyao breached the Employment Contract by failing to employ and compensate Plaintiff ?through 2017.? 44. Fuyao further breached the Employment Contract by failing to pay Plaintiff an amount equal to the bonus compensation paid to Fuyao?s president in 2015, which was required under the Employment Contract. 45. Plaintiff has been damaged by uyao?s breach of the Employment Contract in an amount no less than $441,908.68. COUNT THREE PROMISSORY ESTOPPEL 46. Plaintiff incorporates the allegations of paragraphs 1 through 45 above as if fully rewritten. 47. Cho clearly and unambiguously promised Plaintiff continued employment and compensation through 2017, as re?ected in the Employment Contract. 48. Plaintiff relied upon Cho?s promise of continued employment and compensation through 2017 when leaving his position with the Coalition and selling his Cold Stone Creamery franchise. 49. Plaintiff reasonably and foreseeably relied upon Cho?s promise of continued employment and compensation through 2017; Plaintiff was abundantly, consistently, and repeatedly clear in his communications to Fuyao representatives that he would not leave any position for parallel pay and would not leave the Coalition without a guarantee of employment and compensation through 2017. 50. Plaintiff has been injured by his reliance upon Cho?s promise of continued employment and compensation through 2017 in an amount no less than $441,908.68. COUNT FOUR DEFAMATION 51. Plaintiff incorporates the allegations of paragraphs 1 through 50 above as if fully rewritten. 52. Cho slandered Plaintiff when he made a false statement of fact, that Plaintiff had resigned his position with Fuyao effective Monday, November 14, 2016. 53. Cho?s false statement was defamatory to Plaintiff, causing him ridicule, shame, and disgrace, and adversely affecting him professionally. 54. Cho made his false statement of fact, that Plaintiff had resigned his position with Fuyao effective Monday, November 14, 2016, in the presence of other employees and representatives at a meeting he arranged or requested to be arranged. 55. Plaintiff was injured as a result of Cho?s false statements due to his extreme embarrassment in front of his colleagues. 56. Cho?s false statement was made with ill will, malice, and reckless disregard. 57. Fuyao caused Plaintiff to be libeled when Fuyao representatives provided false information to Tristan Navera, a reporter with the Dayton Business Journal, stating that Plaintiff had resigned his position with Fuyao effective Monday, November 14, 2016. 58. The information provided to Tristan Navera was defamatory to Plaintiff, and its publication caused him ridicule, shame, and disgrace, and adversely affected him professionally. 59. The false information was published online in articles written by Tristan Navera and Tom Gnau. 60. Plaintiff was injured as a result of the false provision of information intended for publication by the extreme embarrassment it caused him in his community. 61. The false information was provided for inclusion in the article with ill will, malice, and reckless disregard. 62. Plaintiff has suffered injury from Defendants? defamation in an amount to be proven at trial. COUNT FIVE DISCRIMINATION 42 U.S.C. 2000E~2(a) 63. Plaintiff incorporates the allegations of paragraphs 1 through 62 above as if fully rewritten. 64. Plaintiff? national origin is the United States of America. 65. Plaintiff was subjected to an adverse employment action when he was terminated by Defendants without cause and without written notice on November 14, 2016, to be replaced by Sunny Yiqun Sun, whose national origin is China. 66. Defendants? decision to terminate Plaintiff without cause was to replace him with someone whose national origin was China and made with actual malice, ill will, and reckless disregard. 67. Plaintiff was quali?ed for the position he held with Fuyao prior to his termination without cause; he was repeatedly courted for the position by Defendants, and served in his role successfully through the date of his termination without cause and without written notice. 68. Upon information and belief, Plaintiff was hired by Defendants merely as a placeholder until Sunny Yiqun Sun, whose national origin is China, could return from China and take Plaintiff? 3 position. 69. Defendants? violation of 42 U.S.C. against Plaintiff has caused him damages in a minimum amount of $441,908.68. COUNT SIX DISCRIMINATION 42 U.S.C. 2000E-2(m) 70. Plaintiff incorporates the allegations of paragraphs 1 through 69 above as if fully rewritten. 71. Defendants used Plaintiffs national origin as a motivating factor in their decision to terminate his employment without cause and without notice on November 14, 2016. 72. Defendants? violation of 42 U.S.C 2000E?2(m) has caused Plaintiff damages in a minimum amount of $441,908.68. COUNT SEVEN DISCRIMINATION R.C. 4112.020) 73. Plaintiff incorporates the allegations of paragraphs 1 through 72 above as if fully rewritten. 74. Cho, as Plaintiff?s supervisor, is personally liable for the national origin discrimination suffered by Plaintiff. 75. Cho?s violation of Section 4112.020) of the Ohio Revised Code has caused Plaintiff damages in a minimum amount of $441,908.68. WHEREFORE, Plaintiff hereby demands judgment as follows: A. Compensatory damages in the minimum amount of $441,908.68; B. Punitive damages for Defendants malicious conduct in an amount treble of actual damages; C. Attorney fees, litigation expenses, and costs; and D. Any other legal or equitable relief to which Plaintiff may be entitled. Respect?illy submitted, Anne M. ravne Anne M. Frayne (0011233) Donald W. Harper II (0089334) Myers Frayne Co., LPA 18 West First Street, Suite 200 Dayton, Ohio 45402 Telephone: (937) 224-0077 Facsimile: (937) 224-5782 annefrayne@myersandfrayne.com Attorneys for Plainti??" 10 JURY DEMAND Plaintiff demands a trial by jury on all issues contained herein. Complaint 4/24/17/7/amf 11 Respectfully submitted, Anne M. Frayne Anne M. Frayne (0011233) Donald W. Harper 11 (0089334) Myers Frayne Co., LPA 18 West First Street, Suite 200 Dayton, Ohio 45402 Telephone: (937) 224-0077 Facsimile: (937) 224-5782 annefrayne@myersandfrayne.com Attorneys for Plainti? EMPLOYMENT The following terms and conditions of employment are agreed upon between Chairman Cho and Mr. David Burrows: . Annual Salary of $180,000 $98,000 minimum in additional annual compensation through bonus paid. Total annual compensation minimum guaranteed at $278,000 through 2017, and pro-rated for 2015. Or, if higher Bonus compensation to be at the same level and structure as the President and Vice President. Three(3 )weeks of annual vacation time which will be prorated for 2015. Approved By: i 7/1115 Agreed By: John Gauthier, President Date David Burrows Date EXHIBIT LU _l :2 (I) 4 Fuyao Glass America Inc. Fuyao Glass America Inc, 2801 Stroop Road Moraine, OH 45439 Tel 217~972-2941 jlewkowski@fuyaousa.com http: groupcom en July 24, 2015 Mr. David Burrows Dear Dave: I am pleased to extend an offer of employment to you for the position of Vice President Facilities at the Dayton, OH facility where you recently interviewed with the Chairman. Enclosed you will find an Employment Contract outlining your compensation package. Please sign the document and return along with the other doCuments referenced in this letter. A tentative start date, approximately mid-August 2015, will be discussed with you upon acceptance of this offer. You will be eligible to participate in Fuyao?s medical, dental, vision, and prescription drug plans. A copy of the plan summary is enclosed for your information. You will also be eligible to participate in Fuyao?s newly created 401 plan. This offer of employment is also contingent upon your successful completion of an intoxicant screening and a pre-placement physical examination to determine if there are any restrictions that could prevent you from performing in this position, as well as a background check. Furthermore, this offer is based on your representation that you have not entered into any agreement that prohibits you from successfully performing yourjob responsibilities with Fuyao. Upon your acceptance of this offer, you will be contacted to make arrangements for the intoxicant screening and physical examination. You will be notified once the results of your physical exam and intoxicant screening are received. Executing a Confidentiality and Noncompetition Agreement is also a condition of employment. Please immediately read, sign and return the enclosed agreement upon acceptance of this offer. Also enclosed is a form inviting you to self-identify as a member of a protected group using the enclosed Self?Identification form. Please complete the form, if appropriate, and return it along with the Confidentiality and Noncompetition Agreement. You will also need to complete the enclosed application. On your first day of employment, you will be expected to provide proof of citizenship or other authorization to work in the United States. EXHIBIT Mr. David Burrows Page 2 of 2 Dave, we believe that Fuyao can provide you with significant challenges, and Opportunities for your career growth and development. We also believe that you have the desire and ability to make a positive contribution to the Fuyao Team. We look forward to welcoming you to the team and to getting you started on your orientation. in the meantime, if you need assistance or have questions, please contact me at (217) 972-2941. Sincerely, Judy L-ewkowski Director, Human Resources Enclosures Page 2 Major shakeup in Fuyao's executive ranks Dayton Business Journal SELECT A CITY LIMITED TIME OFFER l: our ccoun Subscribe Now WELCOME Your Account NEWS EVENTS FOR THE EXCLUSIVE USE OF From the Dayton Business Journal: Major shakeup in Fuyao's executive ranks NOV 16, 2016, 7:203m EST Updated: Nov 16, 2016, 8:05am EST Fuyao Glass America Inc. has parted ways with its senior management team. John Gauthier, who has served as president, and Dave Burrows, who was vice president of operations, have stepped down effective Monday. in their place, the company says a new management team is taking shape, including a new president. Many of the new leaders are newcomers to Dayton, where the company has 2,000 employees as its North American headquarters. The two are among the first leaders and local faces for the plant, with Gauthier having come over from the Mt. Zion, Illinois, float glass plant the company purchased, and Burrows having been a veteran of Dayton Development Coalition. They helped set up Fuyao Glass America, a North American subsidiary of China~based auto parts giant Fuyao Group. Jeff Daochuan Liu, who is Fuyao Group?s vice president of Jefmaochuan Uu'whoisohmamsed Fuyao global sales and marketing, will come on board as the new Group'svlce presidentofglobalsales and marketing, . will come on board as the new president. prestdent. am pleased to join the dedicated and talented management team at such a critical point in the company?s operations,? Liu said. am so proud to be part of Fuyao, a global company headquartered in China which has made an unprecedented investment in America. lam confident that Fuyao Glass America is well positioned for long-term success in the United States. Liu has helped it build its sales strategy in North America and Europe. The company has credited him with helping make it a global supplier and major OEM manufacturer, and he has 20 years of EXHIBIT 10:04:45 AM 11/16/2016 Maj or shakeup in Fuyao's executive ranks Dayton Business Journal experience in international business. In addition to Fuyao, he is a member of the board of directors of Chongqing Chaoii Hi~Tech Co., Ltd. Liu?s other experience inciudes group vice president of Beijing Four Dimension Group, where he led supply chain management for its England business, as well as about 10 years at General Motors? global purchasing center in Warren, Michigan where he managed procurement and supply chain management. in that roie, he heiped U.S. businesses set up business in North America while also helping Chinese companies build relationships with GM. ?These changes to our senior management team are an important step forward as we transition from a construction phase into a mass production phase. We believe this management reorganization optimaily positions Fuyao Glass America for future revenue growth and profitability,? said Fuyao Group chairman Cho Tak Wong in an emailed statement. ?Going forward, our focus will be on enhancing revenue growth and meeting the demand of our North American automotive customers.? I - Related: Fuyao Glass America lnc. a timeiine in Dayton The new leadership team for the plant also includes Jimmy Junming Wang, Vice President of Capital Investment; Jinshu Zhang, Vice President of Production; Athena Jiangxiao Hou, Vice President of Legai and Compliance; Eric Vanetti, Vice President of Human Resources; and Juiian Jianhong Zhu, Vice President of Sales and Marketing. The company says Sunny Yiqun Sun wili be Fuyao Group?s North American representative and help it buiid and manage reiationships on the continent. Former University of Dayton president Dan Curran, who has been an independent board member, will be a spokesperson for the company. The ieadership change will be a next step for the company, which recently entered full?scale production in Moraine. it?s the centerpiece of a $1 billion Fuyao Group investment in the US. that also means facilities in iliinois and Michigan. Between ail of them, Cho has said the company could grow to 5,000 US. employees, including 3,000 in Moraine. - Related: Fuyao project a model to Chinese investment in the US. - Related: Fuyao's new target: 5,000 jobs Tristan Navera Senior Reporter Dayton Business Journal 10:04:45 AM 11/16/2016 Fuyao names new president,two top execs no longer with company Page 1 of 7 6 6 SUBSCRIBE Now 39 AS LOW AS 99? 1 Fuyao announces new president, two top execs no longer with company BREAKING Fuyao names new president, two top execs no longer with company farms Tom Gnau - Staff Writer 9:13 am. Wednesday, Nov. 16, 2016 Filed in News VIEW CAPTION NEWS I) Days after newly proposed safety fines against Fuyao Glass America lnc.?s Moraine plant were announced, the company announced key leadership changes. Fuyao announced a reorganization of the company?s senior management team, with Fuyao Glass America President John Gauthier leaving the company. Dave Burrows, a former Fuyao vice president, has also left the company, said Sunny Yiqun Sun, a Fuyao vice president who is serving as a spokesperson for the glass producer. ?The changes, which are intended to improve the company?s operational efficiency, are expected to drive profitability in North America and position the company for future growth,? the company said in a statement. ?No, I really don?t want to,? Gauthier said when reached this morning for comment. ?I?m just going to see what the options are,? he added. ?It?s an amicable separation for me. I have nothing but good things to say about Fuyao.? He declined to comment further. EXHIBIT 0 .. 1 1/16/2016 Fuyao names new president,two top execs no longer with company Page 2 of 7 A message seeking comment was left for Burrows. RELATED: Fuyao fined $256,000 for OSHA violations As part of the management change, automotive industry veteran Jeff Daochuari Liu will join the company as president, effective Monday. The current president, Gauthier, has ?decided to step down to pursue other opportunities,? Fuyao said in its statement. ?These changes to our senior management team are an important step forward as we transition from a construction phase into a mass production phase,? Fuyao Glass Global Chairman Cho Tak Wong said in the statement. ?We believe this management reorganization optimally positions Fuyao Glass America for future revenue growth and profitability. Going forward, our focus will be on enhancing revenue growth and meeting the demand of our North American automotive customers.? After this reorganization, Fuyao Glass America?s senior management includes: Jeff Daochuan Liu, president; Jimmy Junming Wang, vice president, capital investment; Jinshu Zhang, VP, production; Athena Jiangxiao Hou, VP, legal and compliance; Eric Vanetti, VP, human resources; and Julian Jianhong Zhu, VP, sales and marketing. RELATED: Fuyao to hire 200 before the end of the year The company said Sun will serve as Fuyao Group?s representative for Fuyao?s North American operations, including Fuyao Glass America. Sun and Daniel Curran, Fuyao independent director and president emeritus, University of Dayton, will serve as spokespersons for the company. Cho and the company?s board of directors thanked Gauthier for his ?committed work? establishing the company?s presence in the Dayton region and expressed confidence in the new leadership. Liu brings nearly 20 years of international business leadership experience to the position. Asked in a phone interview if company leaders were dissatisfied with Gauthier?s performance, Sun said, ?Actually, we thank him for the contribution he has made." ?We are going to the next step,? Sun also said. 1 1/16/2016 Fuyao names new president,two top execs no longer with company Page 3 of 7 She said the recently announced Occupational Safety Health and Administration fines against the plant have :nothing to do? with the leadership changes. ?i think we will go fontvard with revenue and also we will increase our capacity, the run rate,? Sun said. ?We will meet the requirements of the customer.? She said no other executives have left the company. am pleased to join the dedicated and talented management team at such a critical point in the company?s operations,? Liu said in Fuyao?s statement. ?i am so proud to be part of Fuyao, a global company headquartered in China which has made an unprecedented investment in America. I am confident that Fuyao Glass America is well positioned for long?term success in the United States.? RELATED: Receive Dayton business newsletter at noon in your email Liu has served as vice president ofglobal sales and marketing and as a member of the board ofdirectors of Chongqing Chaoli Hinech Co., Ltd. There, he developed global sales strategies to expand the company?s presence in North Last week, the US. Occupational Safety and Health Administration announced a proposed fine of $227,000 in penalties related to alleged unsafe working conditions at the Moraine plant. Mike Davis, city of Moraine development director, said the company appeared to want to keep the news quiet before sending out a press release. ?There is still a longstanding presence there with several (familiar faces), which bodes well for the community and the region,? Davis said. Just over a month ago, the plant which has some 2,000 local employees celebrated a largely optimistic grand opening. The facility is the world?s largest single-site automotive glass manufacturing plant, with Cho investing more than $500 million into its American facilities, the company has said. .. 1 1/ 16/2016 Fuyao names new president,two top execs no longer with company Page 4 of 7 in May, 11 Fuyao workers filed a formal written complaint with the regional Occupational Safety Health and Administration office alleging fire and electrical hazards, cutting hazards, open pits, machines without guards and other issues at the West Stroop Road plant. VIEW COMMENTS 0 WEATHER AND TRAFFIC MOST READ 1_ Obituaries 2 names new president,two top execs no longer with company .. 1 1/ 16/2016 Fuyao names new president,two top execs no longer with company Page 5 of 7 o. IUI Ilb UCIIFCU Vdildl THINGS TO DO Meet the Author: Brian Kilmeade - Thomas Fri, Nov 18 4:30 pm 1 ?rm 33? 17;. mam: .w V. new; we; my ?113;, am; Feast of Giving, Thanksgiving in Dayton Thu, Nov 24 11:00 am First Friday at Downtown Dayton I Oregon Fri, Dec 2 5:00 pm Add Event SEE MORE MORE FROM DAYTONDAILYNEWS.OOM We - Weave; e? After 3 days, Zombie Dogz says: ARE MAJORLY, ACTIVELY ://Www.daytondailynews .. 1 1/ 16/2016 Fuyao names new presidenttwo top execs no longer with company Page 6 of 7 Ohio highway signs alert drivers of drugged driving problem Medical helicopter called to Preble County crash LOCAL '9 .. 1 1/ 16/2016 Fuyao names new president,tw0 top execs no longer with company Page 7 of 7 ?wags? ?11? - Voters pass two of three issues in Twp. .. 1 1/16/2016 Fuyao Glass America Inc. Anne Frayne, Esq. Myers Frayne (30., LPA 18 West First Street, Suite 200 Dayton, Ohio 45402 VIA EMAIL ONLY November 17, 2016 RE: Dave Burrows Fuyao Glass America Inc. Dear Anne: I am in receipt of your letter to me, dated November 16, 2016. It appears from your letter you were not timely updated by your client, David Burrows, of events prior to and following our phone call yesterday morning in connection with his separation from Fuyao Glass America Inc. or ?Company?). As a result you questioned my "professional courtesy? for failure to update you. In furtherance of that courtesy, I provide you this additional context and an update: On the evening of November 15, 2016, before we learned of your retention and after we made an ultimately rejected offer to Mr. Burrows, Mr. Burrows asked FGA to provide another settlement number. In that process, Mr. Burrows intimated to Athena and me that if he did not get the full amount he was looking for?well over a quarter million dollars?he would disparage Fuyao by approaching members of the media, labor unions, and government officials and, using his ?knowledge? of FGA, ?make things ugly" for the Company. Despite the threat, we remained hopeful that we could still amicably resolve the matter. in that vein, we extended a last, best, and final offer of $118,000. At the time, your client seemed responsive to this offer, but indicated that he had a ?couple" of small items to add and that he would text Athena that evening. We were left with impression that we had an agreement in principle, at least as to economic terms. Thus, when you asked me during our telephone call yesterday morning whether Mr. Burrows had been terminated, properly responded that he had not. At the time, I believed we could still negotiate an amicable resolution which would include a voluntary resignation, despite his threats. But then you advised us that you would send us a demand letter on behalf of Mr. Burrows. Shortly after hanging up with you, i was then advised that not only had Mr. Burrows decided to report to work, he was planning on attending a sensitive meeting that morning. Given his threat the night before to utter calumny and your statement to me that morning Legal Department 800 Fuyao Avenue Dayton, Ohio 45439 EXHIBIT (937) 496-5777 x2017 msiegal@fuyaousa.com Page 2 Anne Frayne, Esq. Nov. 17, 2016 that there was no deal, I asked our Vice President of Human Resources, Eric Vanetti, to privately meet with Mr. Burrows, letting him know that his presence on site was unacceptable and asking him to leave. You are correct that i also stated that we would not be issuing a formal, written notification at that time. The Company does not, under these circumstances, issue such letters as a matter of practice. Nevertheless, since yesterday, in recognition of the impasse, the Company has decided to terminate Mr. Burrows' employment, effective November 16, 2016. Regarding the matter at hand, in the interest of professional courtesy, I am enclosing an ?Employee Handbook Acknowledgement and Receipt,? (the ?Acknowledgment") that your client signed on August 17, 2015. At pertinent part, the Acknowledgment states: have entered into my employment relationship with Fuyao voluntarily and acknowledge that there is no specific length of employment. Accordingly, either i or Fuyao can terminate the relationship at will, with or without cause at any time, so long as there is not a violation of applicable state or federal laws. (Bolded in original) Thus, to the extent that your client?s compensation agreement with Chairman Cho was vague as to the nature/term of your client?s employment, the Acknowledgment leaves no doubt that Mr. Burrows was an at?wili employee with a minimum compensation stipulation. This is consistent with Ohio law, which holds that there is a strong presumption of atuwill employment, unless the terms of a contract clearly indicate otherwise. Henkel v. Educ. Research Council, 45 Ohio St.2d 249, 344 118 (1976). At most, the document entitled "Employment Contract," dated July 24, 2015, only guarantees minimum ?annual compensation.? As your client will not be rendering the Company any services in 2017 (nor the balance of 201 6, forthat matter), he is not entitled to compensation or any remuneration for work not performed. Furthermore, piease remind your client that he signed a confidentiality and non? competition agreement on July 29, 2015, which, among other things, prohibits Mr. Burrows from disclosing ?to any person or firm, or use at any time, any of proprietary information." This Agreement also requires, at paragraph 5, that Mr. Burrows ?return all records, documents, and other written, printed, photographic, or physical materials of any type that belong to or pertain to" FGA, Please advise as to your client?s position. Pages Annel%ayne,Esq. Nov.17,2016 Sincerely, INC Micah M. Slegal Assistant General Counsel Enol MMS/mtf co: Jeff Liu, Athena Hou, Esq., Mary Lentz, Esq., Robert E. Fortune, Esq. EEOC Form 5 (11/09) Ii ?1 I CHARGE OF Charge Presented To: Agency(ies) Charge No(s): This form is affected by the Privacy Act of 1974. See enclosed Privacy Act I: EPA Statement and other information before completing this form. .EEOC Ohio Civil Rights Commission and EEOC State or local Agency, if any Name (indicate Mr. Ms, Mrs.) Home Phone (Incl. Area Code) Date of Birth Mr. David P. Burrows (937) 901-5206 Street Address City, State and ZIP Code 582 Ashbury Farms Drive, Vandalia, Ohio 45377 Named is the Employer, Labor Organization, Employment Agency. Apprenticeship Committee, or State or Local Government Agency That I Believe Discriminated Against Me or Others. (if more than two, list under PARTICULARS below.) Name EEO No. Employees, Members Phone No. (Include Area Code) Fuyao Glass America Inc. c, CINCINNATIAREA mag (937) 496-5777 Street Address City, Stat nd ode 800 Fuyao Avenue, Moraine, Ohio 45439 jg? 22:5 2017 Name RECEIVED No. Employees, Members Phone No. (Include Area Code) Street Address City, State and ZIP Code DISCRIMINATION TOOK PLACE Earliest Latest 1: RACE COLOR SEX RELIGION NATIONAL ORIGIN 11/16/2016 El RETALIATION AGE I: DISABILITY El GENETIC INFORMATION DISCRIMINATION BASED ON (Check appropriate El OTHER (Specify) CONTINUING ACTION THE PARTICULARS ARE (If additional paper is needed. attach extra sheet(s)): My national origin is the United States of America. I believe Fuyao Glass America Inc. is a subsidiary of Fuyao Group, which is based in China. I believe that Cho Tak Wong (aka Cao Dewang) is the Chairman of Fuyao Group. As a former employee of the Dayton Development Coalition, I had extensive contact with Fuyao Group representatives prior to Fuyao Glass America Inc.?s formation and the purchase of the former GM plant in Moraine, Ohio. Among those who repeatedly sought to hire me was Chris Feng, then- President of Fuyao Automotive North America. I was eventually induced to work for Fuyao by Chairman Cho, who promised me in writing continued employment and compensation through 2017. I left my position with the Dayton Development Coalition in reliance upon his written promises. Chairman Cho has stated that ?Americans need to listen to the Chinese" and, while negotiating in an attempt to hire an individual (Rebecca Ruan-O?Shaughnessy) whose national origin is China, told her that working for Fuyao ?would be good to help her Chinese heritage.? Page 1 of 2 I want this charge ?led with both the EEOC and the State or local Agency. if any. I NOTARY When necessary for State and Local/Agency Requirements will advise the agencies ifl change my address or phone number and I will cooperate fully with them in the processing of my charge in accordance with their procedures. I swear or af?nn that I have read the above charge and that it is true to I declare under penalty of perjury that the above is true and correct. the best of my knowtedge, information and belief. SIGNATURE OF COMPLAINANT SUBSCRIBED AND SINORN TO BEFORE ME THIS Dr? EXHIBIT (month, day. year) Date Charging Party Signature EEOC Form5(11/09) t. . CHARGE OF DISCRIMINATION . Charge Presented/To: Agencyhes) Charge No(s): This form is affected by the Privacy Act of 1974. See enclosed Privacy Act I: FEPA Statement and other information before completing this form. and EEOC State or local Agency, if any THE PARTICULARS ARE (If additional paper is needed, attach extra sheei{s)): I was fired without cause on November 16, 2016. was not given written or oral notice of my termination or any reason therefor. I was escorted out of the building and was replaced by Sunny Yiqun Sun, whose national origin is China. She had previously worked for Fuyao prior to returning to China due to VISA issues. My termination coincides with Sunny Yiqun Sun?s acquisition of an L-1 visa upon her completion of one year working for Fuyao Group in China. Other individuals whose national origin is the United States of America were also terminated or pressured to leave Fuyao Glass America Inc. and replaced by individuals whose national origin is China in the past several months. Fuyao did not terminate me for cause or give me any reason for my termination. Fuyao terminated me solely to replace me with a Chinese national. In, a ?We ?30 now it. HARPER n, name-y at Notary Public, Stats at Ohio lily Commission has no apirztion data. Section 147.03 0. R. C. in", Ill], ?s :0 ?1 '0 I "3'3 . i ?h 0 m" Page 2 of 2 I want this charge ?led with both the EEOC and the State or local Agency. ii any. I NOTASW - When ?9685380 for State and LDCBIAQEHCY Requirements will advise the agencies if I change my address or phone number and Iwill I couperate fully with them in the processing of my charge in accordance with their 1 ?-91.4 if pmce?jures? I wear or a irm thatl have redd the above charge and that it is true to I declare under penalty of perjury that the above is true and correct. the best of my knowledge, information and beiief. SIGNATURE OF COMPLAINANT x" r" L4: Lbs/,5 piggy/K? SUBSCRIBED AND swortn (month, day. year) n; ?7 .. r. I (Mi! 3, \5 Date Charging Party Signature I I )5 EEOC Form 151?8 (11/16) U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION NOTICEVOF RIGHT TO SUE (ISSUED ON REQUEST) To: David P. Burrows From: Cincinnati Area Office 582 Ashbury Farms Drive John W. Peck Fed. Vandalia, OH 45377 550 Main St Room 10-019 Cincinnati, OH 45202 On behalf ofperson(s) aggrieved whose identity is CONFIDENTIAL (29 CFR EEOC Charge No. EEOC Representative Telephone No. Daniel F. Williams, 473-2017-00394 Investigator (513) 357-5599 (See also the additional information enclosed with this form.) NOTICE TO THE PERSON AGGRIEVED: Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), or the Genetic Information Nondiscrimination Act (GINA): This is your Notice of Right to Sue, issued under Title VII, the ADA or GINA based on the above~numbered charge. It has been issued at your request. Your lawsuit under Title VII, the ADA or GINA must be filed in a federal or state court WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for ?ling suit based on a claim under state law may be different.) . I: More than 180 days have passed since the ?ling of this charge. Less than 180 days have passed since the ?ling of this charge, but i have determined that it is unlikely that the EEOC will be able to complete its administrative processing within 180 days from the ?ling of this charge. The EEOC is terminating its processing of this charge. The EEOC will continue to process this charge. Age Discrimination in Employment Act (ADEA): You may sue under the ADEA at any time from 60 days after the charge was ?led until 90 days after you receive notice that we have completed action on the charge. In this regard, the paragraph marked below applies to your case: - The EEOC is closing your case. Therefore, your lawsuit under thelADEA? must be filed in federal or state court WITHIN 90 DAYS of your receipt of this Notice. Otherwise, your right to sue based on the above?numbered charge will be lost. l: The EEOC is continuing its handling of your ADEA case. However, if 60 days have passed since the ?ling of the charge, you may file suit in federal or state court under the ADEA at this time. Equal Pay Act (EPA): You already have the right to sue under the EPA (?ling an EEOC charge is not required.) EPA suits must be brought in federal or state court within 2 years (3 years for willful violations) of the alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years) before you file suit may not be collectible. If you ?le suit, based on this charge, please send a copy of your court complaint to this of?ce. On behalf of the Commission )?a?aesmm APR i 8 2017 Melanie L. Breen, (Date Mai/ed) Area Office Director Enclosures(s) Athena Hou Anne Frayne VP Legal Compliance MYERS FRAYNE CO, LPA EXHIBIT FUYAO GLASS AMERICA INC. 18 West First Street, Suite 200 800 Fuyao Avenue Dayton, OH 45402 Moraine, OH 45439 ll; Enclosure with EEOC Form 1613(11/16) INFORMATION RELATED TO FILING SUIT UNDER THE LAWS ENFORCED BY THE EEOC This information relates to ?ling suit in Federal or State court under Federal law. If you also plan to sue claiming violations of State law, please be aware that time limits and other provisions of State law may be shorter or more limited than those described below.) Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), or the Age Discrimination in Employment Act (ADEA): PRIVATE SUIT RIGHTS -- In order to pursue this matter further, you must file a lawsuit against the respondent(s) named in the charge within 90 days of the date you receive this Notice. Therefore, you should keep a record of this date. Once this 90- day period is over, your right to sue based on the charge referred to in this Notice will be lost. If you intend to consult an attorney, you should do so Give your attorney a copy of this Notice, and its enveiope, and tell him or her the date you received it. Furthermore, in order to avoid any question that you did not act in a timely manner, It is prudent that your suit be filed within 90 days of the date this Notice was mailed to you (as indicated where the Notice is signed) or the date of the postmark, if later. Your lawsuit may be filed in US. District Court or a State court of competentjurisdiction. (Usually, the appropriate State court is the general civil trial court.) Whether you file in Federal or State court is a matter for you to decide after talking to your attorney. Filing this Notice is not enough. You must file a "complaint" that contains a short statement of the facts of your case which shows that you are entitled to relief. Courts often require that a copy of your charge must be attached to the complaint you file in court. If so, you should remove your birth date from the charge. Some courts will not accept your complaint where the charge includes a date of birth. Your suit may include any matter alleged in the charge'or, to the extent permitted by court decisions, matters like or related to the matters alleged in the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but In some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has its main office. If you have simple questions, you usually can get answers from the office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or make legal strategy decisions for you. PRIVATE SUIT RIGHTS -- Equal Pay Act (EPA): EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA underpayment: back pay due for violations that occurred more than 2 years (3 years) before you file suit may not be collectible. For example, if you were underpaid under the EPA for work performed from 7/1/08 to 12/1/08, you should file suit before 7/1/10 not 12/1/10 in order to recover unpaid wages due for July 2008. This time limit for filing an EPA suit is separate from the 90?day filing period under Title VII, the ADA, GINA or the ADEA referred to above. Therefore, if you also plan to sue under Title VII, the ADA, GINA or the ADEA, in addition to suing on the EPA claim, suit must be filed within 90 days of this Notice ad within the 2? or 3?year EPA back pay recovery period. ATTORNEY REPRESENTATION -- Title VII, the ADA or GINA: If you cannbt afford or have been unable to obtain a lawyer to represent you, the US. District Court having jurisdiction in your case may, in limited circumstances, assist you in obtaining a lawyer. Requests for such assistance must be made to the U.S.-District Court in the form and manner it requires (you should be prepared to explain in detail your efforts to retain an attorney). Requests should be made well before the end of the 90?day period mentioned above, because such requests do 991 relieve you of the requirement to bring suit within 90 days. ATTORNEY REFERRAL AND EEOC ASSISTANCE ..- Statutes: You may contact the EEOC representative shown on your Notice if you need help in finding a lawyer or if you have any questions about your legal rights, including advice on which US. District Court can hear your case. If you need to inspect or obtain a copy of information in EEOC's lite on the charge, please request it promptiy in writing and provide your charge number (as shown on your Notice). While EEOC destroys charge files after a certain time, all charge files are kept for at least 6 months after our last action on the case. Therefore, if you file suit and want to review the charge file, please make your review request within 6 months of this Notice. (Before filing suit, any request should be made within the next 90 days.) IF YOU FILE SUIT, PLEASE SEND A COPY OF YOUR COURT COMPLAINT TO THIS OFFICE. Enciosures(s) CC: Joseph W. Borchelt Reminger Co.. L.P.A. 525 Vine Street, Suite 1700 Cincinnati, OH 45202