rdd Doc 79 Filed 06/13/17 Entered 06/13/17 09:06:30 Main Document Pg 1 of 3 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK

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1 rdd Doc 79 Filed 06/13/17 Entered 06/13/17 09:06:30 Main Document Pg 1 of 3 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: 21 ST CENTURY ONCOLOGY HOLDINGS, INC., ET AL. Debtors. / CASE NO (RDD) CHAPTER 11 MOTION FOR RELIEF FROM AUTOMATIC STAY (To Liquidate Personal Injury Claim) Now comes Movants, Sally Passmore and Paula Thyfault, by and through the undersigned counsel, and pursuant to 11 U.S.C. 362 and Fed. R. Bankr. P. 4001, respectfully moves this Honorable Court for an Order lifting and/or modifying the automatic stay and in support thereof would show: 1. The Debtors, 21 st Century Oncology Holdings, Inc., Et Al., filed for relief under Chapter 11 of the Bankruptcy Code on May 25, The Bankruptcy Court has jurisdiction over this matter pursuant to 11 U.S.C. 362(d) and Bankruptcy Rule 4001(a). 3. On or about October 12, 2016, the Debtor was named as a Defendant in a suit brought by Movants for damages arising from the discriminatory (religious) termination of their employment in violation of Title VII 42 U.S.C. 2000e, et seq., and the 1 st and 14 th Amendments to the U.S. Constitution, attached hereto as Exhibit A and incorporated by reference herein. 4. Movants have been severely and permanently injured. 5. Prior to this filing, Movant sought but did not obtain consent of the debtor.

2 rdd Doc 79 Filed 06/13/17 Entered 06/13/17 09:06:30 Main Document Pg 2 of 3 6. On May 26, 2017, the Debtor filed a Suggestion of Bankruptcy in the Federal Court damages action. 7. Upon information and belief, Debtor has and/or had, a general liability policy of insurance which is available to cover Movants claims in the Federal Circuit Court Action. 8. Movants seek relief from the stay in order to liquidate their claims against the Debtors and to obtain payment of insurance proceeds. Should Movants ultimately receive a judgment against the Debtors, Movants will limit collection of the judgment to the proceeds of insurance only and will not seek to collect against the Debtors, property of the Debtors or property of the estate. WHEREFORE, Movants, Sally Passmore and Paula Thyfault, move this court for an Order terminating and/or modifying the automatic stay with respect to the Federal Circuit Court Action and for other additional relief as this Court determines to be necessary and appropriate. A proposed Order is attached hereto as Exhibit B. Respectfully submitted, STAMBAUGH & ASSOCIATES, P.A. /s/ Charles L. Stambaugh Charles L. Stambaugh, Esq. Florida Bar No Prudential Dr. 12 th Floor Jacksonville, FL (904) stambaughlaw@att.net Attorney for Movants

3 rdd Doc 79 Filed 06/13/17 Entered 06/13/17 09:06:30 Main Document Pg 3 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of June, 2017, a true and accurate copy of the foregoing has been served by CM/ECF to Debtors attorneys of record in the damages action, Michelle Tatum and Tracey Jaensch of FordHarrison, LLP. /s/ Charles L. Stambaugh Charles L. Stambaugh, Esq.

4 Complaint Pg 1 of 7 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION SALLY J. PASSMORE, AND PAULA J. THYFAULT v. Plaintiffs, HON. Case No. 3:16-cv MMH-PDB 21 st CENTURY ONCOLOGY, LLC, Defendant. AMENDED COMPLAINT FOR DAMAGES NOW COMES the Plaintiffs, Sally J. Passmore and Paula J. Thyfault, ( Plaintiffs ), by and through their attorney, Stambaugh & Associates, P.A., and in its Amended Complaint for damages against 21 st Century Oncology, LLC, ( Defendant ), prior to Defendant s Answer as permitted by Civ. R. 15(a)(1)(A), states as follows: INTRODUCTION 1. This is an action for damages arising from the discriminatory termination of employment of Plaintiffs by Defendant in violation of Title VII, 42 U.S.C. 2000e, et seq., and the 1 st and 14 th Amendments of the U. S. Constitution. Plaintiffs allege that Defendant failed to accommodate the expression of their religious beliefs during non-work hours and rest periods; discriminated against them through disparate, adverse treatment owing to their religious beliefs; and retaliated against them for the protected expression of their religious beliefs.

5 Complaint Pg 2 of 7 PARTIES 2. Plaintiffs reside in Jacksonville, Florida, and were employed by Defendant as Certified Medical Dosimetrists at 3599 University Blvd., Suite 1500, Jacksonville, FL They are Christians strongly opposed to abortion as a tenet of their deeply held religious beliefs, routinely participating in conferences, protests and street demonstrations during non-work hours. 3. Defendant is a Florida corporation with its principal office at 2270 Colonial Boulevard, Fort Myers, FL Defendant maintains 183 treatment centers in 17 states, employing over 1000 physicians and technicians. JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this case, and to secure reasonable attorney s fees, pursuant to 42 USC 2000e, et seq., as this action arises under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs include a request for a speedy decision after exhausting administrative remedies as required under the Equal Employment Opportunity Commission, Case # 15E and 15E , finding No Reasonable Cause on July 5, The venue in this action is proper within the Middle District of Florida, Jacksonville Division, pursuant to 28 USC 1391(b), in that (i) Defendant is situated within this judicial district, (ii) Plaintiffs reside within this judicial district, and (iii) all of the claims asserted by Plaintiff arose in this judicial district. FACTUAL ALLEGATIONS Plaintiffs Sally J. Passmore and Paula J. Thyfault 2

6 Complaint Pg 3 of 7 6. Plaintiff Sally J. Passmore is 67 years of age, an experienced dosimetrist for 30 years, and employed by Defendant and its predecessor for 7 years. (Defendant acquired Oncure Medical in early 2014, maintaining facilities and staff). Plaintiff Paula J. Thyfault is 62 years of age, employed as a dosimetrist for 27 years, and employed by Defendant and its predecessor for 12 years. 7. During Plaintiffs years of employment with Defendant, the quality and productivity of their work was never questioned by management, nor was the expectation of their continued employment. Both Plaintiffs had planned to retire from Defendant s employ at age Both Plaintiffs have been lifelong Christians, displaying religious symbols at their desk areas at work. Both have a deeply held belief that abortion is contrary to their religious beliefs, and engaged in off-site anti-abortion rallies and protests during non-work hours with the knowledge of their supervisor, Dr. Shyam Paryani. 9. Defendant s parking lot abuts an abortion clinic operated by Dr. Patrick Kelly. Dr. Kelly became aware of Ms. Passmore s participation in anti-abortion rallies in 2010, complaining to Dr. Paryani or Kathy Burke, Human Resources, at each sighting of Ms. Passmore or when protesters appeared at his location. Ms. Passmore never participated in a protest at Dr. Kelly s location, and Ms. Thyfault never met him. 10. In September, 2014, Plaintiffs, taking a rest period along with two other employees, Ms. Jamie Schmidt and Ms. Tracy Kurz, gathered in Defendant s lobby to observe the arrival of an ambulance in the Defendant s parking lot, responding to an emergency at Dr. Kelly s abortion clinic. Plaintiff Thyfault legally captured the incident on her personal mobile phone. 3

7 Complaint Pg 4 of In January, 2015, each Plaintiff was called separately to a meeting with Human Resources personnel, two locally known to Plaintiffs, Ms. Kathy Burke and Ms. Tracey Simmons, and Ms. Diane Cooke, attending by phone. Plaintiff Thyfault acknowledged taking the video which later appeared on an anti-abortion web-site. Responding to the question, why did she take the video, Ms. Thyfault affirmed her religious beliefs, when Ms. Burke responded with, not everyone has the same beliefs. Plaintiff Thyfault was immediately suspended and ordered off the property. 12. Plaintiff Passmore admitted her presence at the recording, along with two others. Ms. Passmore was immediately suspended and ordered off the property. The other two observers were not sanctioned in any way. 13. The video neither discloses the identity of the clinic s patient, nor the involvement or identity of the Defendant. Plaintiffs were phoned several days later and told their employment had been terminated, Ms. Thyfault by voic Plaintiffs have attempted to mitigate their loss of income, Thyfault by taking temporary employment with an out of town hospital, and Passmore by filing for early retirement. Both Plaintiffs have suffered loss of income and benefits, current and future, and other related expenses. herein. Count I Failure to Accommodate Plaintiffs Religious Beliefs 42 U.S.C. 2000e-(j) 15. Plaintiffs restate the allegations in paragraphs 1 through 14 as if fully rewritten 4

8 Complaint Pg 5 of 7 abortion. 16. Defendant was fully aware of Plaintiffs closely held religious beliefs concerning 17. The taking of the video occurred during a routine and permitted rest period, caused by the arrival and commotion of an ambulance, observed by four employees. 18. The off-site, off-hours, expression of Plaintiffs closely held religious faith, the posting on-line of the September, 2014 video, is a protected expression of the U. S. Constitution. 19. The taking and posting of the video, an expression of Plaintiffs religious beliefs, caused no burden or undue hardship on Defendant. There was no conflict with any work requirement. herein. abortion. 20. Plaintiffs, without warning or counseling, were discharged. Count II Discrimination Owing to Plaintiffs Religious Beliefs 42 U.S.C. 2000e-2(a)(1) 21. Plaintiffs restate the allegations in paragraphs 1 through 14 as if fully rewritten 22. Defendant was fully aware of Plaintiffs closely held religious beliefs concerning 23. Plaintiffs were well qualified for their positions with Defendant, having exemplary work histories. 24. The taking of the video occurred during a routine and permitted rest period caused by the arrival and commotion of an ambulance, observed by four employees. Ms. Thyfault legally recorded her observation. way. 25. Two other observers of the arrival of the ambulance were not sanctioned in any 5

9 Complaint Pg 6 of Plaintiffs, without warning or counseling, were discharged owing to Defendant s stated disagreement with their religious beliefs. herein. abortion. Count III Retaliation owing to Plaintiffs Religious Beliefs 42 U.S.C. 2000e-3(a) 27. Plaintiff restates the allegations in paragraphs 1 through 14 as if fully rewritten 28. Defendant was fully aware of Plaintiffs closely held religious beliefs concerning 29. The off-site, off-hours, expression of Plaintiffs closely held religious beliefs is a protected expression of the U. S. Constitution, 1 st and 14 th Amendments. 30. Plaintiffs were discharged in retaliation for their protected expression of opposition to Dr. Kelly s abortion practice. Court: RELIEF REQUESTED WHEREFORE, Plaintiffs pray for a judgment against Defendant, and that this Honorable a. Pursuant to 42 U.S.C. 2000e-(j), find that Defendant failed to accommodate Plaintiffs right to exercise their 1 st and 14 th Amendments of religious expression and practice during non-work hours; that such exercise created no undue burden or hardship on Defendant s business; that Plaintiffs were illegally discharged owing to their religious beliefs; and, that Plaintiffs are entitled to damages and taxable costs. b. Pursuant to 42 U.S.C. 2000e-2(a)(1), find that Defendant discriminated against Plaintiffs owing to the exercise of their closely held religious beliefs, to 6

10 Complaint Pg 7 of 7 wit, declining to sanction two other employees present during taping of the abortion emergency, while selectively discharging Plaintiffs. Defendant openly declared disagreement with Plaintiffs beliefs. Find that Plaintiffs are entitled to damages and taxable costs. c. Pursuant to 42 U.S.C. 2000e-3(a), find that Defendant knowingly retaliated against Plaintiffs protected expression of their closely held religious beliefs, discharging them in response to Dr. Kelly s complaint. Find that Plaintiffs are entitled to damages and taxable costs. d. Pursuant to 42 U.S.C. 2000e-5(k), award Plaintiff s reasonable attorney fees and costs, and Grant such other and further relief as the Court deems just and proper. Respectfully submitted, Dated: October 12, 2016 Stambaugh & Associates, P.A. /s Charles L. Stambaugh By: Charles L. Stambaugh Attorney for Plaintiff Florida Bar No Prudential Drive, 12 th Floor Jacksonville, FL (904) stambaughlaw@att.net 7

11 rdd Doc 79-2 Filed 06/13/17 Entered 06/13/17 09:06:30 Exhibit Proposed Order Pg 1 of 2 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK In re: 21 ST CENTURY ONCOLOGY HOLDINGS, INC., ET AL. Debtors. / CASE NO (RDD) CHAPTER 11 CONSENT ORDER GRANTING MOTION FOR RELIEF FROM STAY OF MOVANTS SALLY PASSMORE AND PAULA THYFAULT Upon consideration of Movants Motion for Relief of Stay, and the Court having otherwise been informed on the premises, it is: ORDERED: 1. The Relief From Stay Motion is granted. 2. The automatic stay imposed by 11 U.S.C. 362 is hereby lifted to allow Movants to liquidate their claims in the matter captioned as Sally Passmore and Paula Thyfault v. 21 st Century Oncology, LLC, Case No. 3:16-CV MMH-PDB, U.S. District Court, Middle District of Florida. 3. This order for relief from the automatic stay is entered for the sole purpose of allowing Movants to pursue their remedies in the Federal Court Action and to seek in rem payment against the proceeds of insurance, only. Should Movants ultimately receive a judgment against the Debtor, Movants shall limit collection of the judgment to the proceeds of insurance and shall not seek to collect against the Debtor, property of the Debtor or property of the estate.

12 rdd Doc 79-2 Filed 06/13/17 Entered 06/13/17 09:06:30 Exhibit Proposed Order Pg 2 of 2 Attorney Charles L. Stambaugh, Esq. is directed to serve a copy of this order on interested parties and file a proof of service within 3 days of the entry of this order. Dated:, New York /s/ UNITED STATES BANKRUPTCY JUDGE