IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

Transcription

1 Case 5:10-cv L Document 1 Filed 05/10/10 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (1) DETROY JARRETT, ) ) Plaintiff, ) ) Civil Action No. v. ) ) (1) UHS OKLAHOMA CITY LLC ) d/b/a CEDAR RIDGE, ) ) Defendant. ) CIV L PLAINTIFF'S ORIGINAL COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, DETROY JARRETT, files this action against Defendant, and by way of complaint against Defendant alleges the following: I. Nature of Action 1.1 This jury action seeks redress for Defendant s violation of the laws of the United States in connection with the termination of Plaintiff's employment. The action specifically seeks to enforce rights created under the Family and Medical Leave Act ( FMLA ) 29 U.S.C et. seq. and Oklahoma common law. As redress for Defendant s violation of the FMLA and Oklahoma law, Plaintiff prays for and demands declaratory, legal and equitable relief, including back pay, reinstatement or, in the alternative, front pay, punitive or liquidated damages, damages for emotional distress and attorney fees and costs. 1

2 Case 5:10-cv L Document 1 Filed 05/10/10 Page 2 of 10 II. Jurisdiction and Venue 2.1 This Court has jurisdiction over Plaintiff s FMLA claim brought under federal law and this suit is authorized and instituted pursuant to 29 U.S.C. 2617(a)(2). 2.2 Venue is proper in this Court, pursuant to 28 U.S.C. 1391, because all or a substantial part of the events or omissions giving rise to the claims set forth herein occurred within the judicial district of this Court, and because Defendant resides within the judicial district of this Court. 2.3 Plaintiff was an employee of Defendant, and Defendant was the employer of Plaintiff, within the meaning of 29 U.S.C (2)(A) and (4)(A) of the FMLA. 2.4 All conditions precedent to Plaintiff's entitlement to relief in this action have been fulfilled and satisfied. 2.5 This Court has jurisdiction of Plaintiff's claim brought under Oklahoma law since all of Plaintiff's claims arise from a common nucleus of operative facts and are so intertwined as to make the Court's exercise of pendent jurisdiction over such claims reasonable and appropriate. III. Parties 3.1 Plaintiff is a male citizen of the United States and a resident of Oklahoma County, Oklahoma. 3.2 At all times material to this action, Defendant has continuously been and is a domestic limited liability corporation registered to do business in the State of Oklahoma. Service of this Original Complaint and Demand for Jury Trial may be 2

3 Case 5:10-cv L Document 1 Filed 05/10/10 Page 3 of 10 accomplished by serving its registered agent: The Corporation Company, 120 N. Robinson, Suite 735, Oklahoma City, OK IV. Background Facts 4.1 Defendant is a behavioral health care facility. Defendant hired Plaintiff for the full-time position of Mental Health Technician on or about March 15, The position required Plaintiff to have physical skills and training to monitor and, if necessary, subdue and restrain combative patients at the facility. 4.2 Throughout his employment he always met or exceeded his performance expectations. Occupational Injury Reported 4.3 On or about January 28, 2009, while restraining a combative patient at the facility, Plaintiff injured his left shoulder. 4.4 Plaintiff immediately reported to Defendant an occupational injury to his shoulder. 4.5 Plaintiff was examined at Concentra Medical Center and, despite significant pain and range of motion limitations, was released back to work restricted to light duty. 4.6 Defendant ignored the light duty restriction and returned Plaintiff to his same position but now working the night shift from 11:00 pm to 7:00 am. On this shift he was now the only mental health technician on the unit to guard the patients. Despite 3

4 Case 5:10-cv L Document 1 Filed 05/10/10 Page 4 of 10 pain limiting his strength and range of motion at his left shoulder, Plaintiff worked the night shifts to preserve his job. 4.7 While working the night shifts Plaintiff was still expected to subdue and restrain combative or unruly patients, as needed. While working his shift, Plaintiff s shoulder frequently popped or displace from the socket. Plaintiff managed to jam or manipulate his shoulder back into the socket himself. 4.8 Based upon information and belief, nurses and other technicians complained about the safety issue created by Plaintiff s presence at night with a disabled shoulder. 4.9 Plaintiff complained to Rita Hudsmith, H.R. representative, of physically endangering himself, co-workers on the unit and the patients caused by working as a guard with a defective shoulder Defendant did not transfer or reassign him a position out of his guard position On or about February 17, 2009, after Plaintiff was unable to return his displaced shoulder back into the socket, he obtained emergency medical treatment at Edmond Regional Hospital and released After receiving follow-up treatment at Oklahoma Sports and Orthopedic, the physician immediately scheduled an MRI and removed him from work MRI results on February 24, 2009 revealed a torn rotator cuff and Plaintiff was scheduled for surgical repair on April 1,

5 Case 5:10-cv L Document 1 Filed 05/10/10 Page 5 of Plaintiff reported to his superiors his diagnosis, removal from work and requested leave for his scheduled surgery date of April 1. Plaintiff believed that he was thereafter on approved medical leave until his recovery from surgery On or about February 24, 2009 Plaintiff was instructed to attend a meeting with the CEO and HR. In this meeting, Plaintiff delivered copies of his medical records corroborating his torn rotator cuff, inability to work and requested leave to include his surgery. Defendant told Plaintiff he was expected to be at work based upon a full duty release from Concentra (issued before positive MRI for torn rotator cuff) The next day, by February 25, 2009 correspondence to Plaintiff, Defendant ordered Plaintiff s immediate return to regular duty. After receiving this letter, another meeting at the facility occurred. Here, Plaintiff again tried to convince them that he had a torn rotator cuff, had been removed from work by his surgeon and requested leave to include his surgery scheduled for April 1. Defendant still insisted on an immediate full duty return to his guard position By March 4, 2009 correspondence to Plaintiff, Defendant ordered his immediate return to regular duty. After receiving the letter, Plaintiff met with Defendant again to obtain permission for leave for his injury and surgery Plaintiff did not return to his full duty position and under the conditions of the letter, his employment was terminated Defendant then sent to Plaintiff another letter at his home directing him to turn in his keys and obtain a check for accrued paid time off. 5

6 Case 5:10-cv L Document 1 Filed 05/10/10 Page 6 of On April 1, 2009 Plaintiff underwent surgical repair of his shoulder. He was further taken off work during post-operative recovery for therapy Plaintiff received worker s compensation benefits, including temporary total disability benefits, for his absence from work before and after his termination. surgery Defendant has not rehired Plaintiff after recovery from his shoulder COUNT I:FMLA (Interference, Restraint or Denial of FMLA rights) (Retaliation for Requesting FMLA leave) 5.1 Plaintiff incorporates and realleges, in full, paragraphs 1.1 through 4.22 of this Original Complaint. 5.2 At all times material to this action, Defendant has retaliated and/or interfered with, restrained, and denied to Plaintiff the exercise of and attempted exercise of rights under Section 2615(a)(1) of the FMLA by terminating Plaintiff s employment for requesting foreseeable leave of absence for surgery to repair his shoulder and by failing to rehire Plaintiff after post operative recovery of his shoulder. 5.3 As a direct and proximate result of Defendant s violation of the FMLA, Plaintiff has been damaged by the loss of his employment with Defendant and the loss of compensation, including salary and employee benefits, he would have received as an employee of Defendant had his rights under the FMLA not been interfered, restrained or denied or been retaliated for his attempted exercise of FMLA rights. 6

7 Case 5:10-cv L Document 1 Filed 05/10/10 Page 7 of In violating the FMLA, Defendant acted with malice and with reckless indifference to the federally protected rights of Plaintiff within the meaning of 29 U.S.C (a)(1)(a)(iii) of the FMLA. 5.5 As a direct and proximate cause of the violations of the FMLA, Plaintiff has also suffered other pecuniary losses, the type and amount of which will be established at the trial of this cause. COUNT II: Retaliation under Oklahoma Worker s Compensation Act in Termination 6.1 Plaintiff incorporates and realleges, in full, paragraphs 1.1 through 5.5 of this Complaint. 6.2 Plaintiff reported an occupational injury and/or pursued a claim for worker s compensation benefits in good faith and caused to be instituted, in good faith, a proceeding for benefits within the meaning of Section 5 of the Oklahoma Workers Compensation Act. 6.3 Defendant s discharge of Plaintiff was significantly motivated by Plaintiff's report of an occupational injury and/or his institution of and pursuit for worker s compensation benefits. Defendant otherwise willfully, knowingly and intentionally discriminated against Plaintiff on this basis in his discharge of employment. By engaging in such conduct, Defendant violated, and continues to violate, 85 O.S. 5 of the Oklahoma Workers Compensation Act, which makes it an unlawful employment practice for an employer to "discharge any employee because the employee has in good faith filed a claim,... instituted or caused to be instituted, in good faith, any proceeding.... 7

8 Case 5:10-cv L Document 1 Filed 05/10/10 Page 8 of Defendant s discharge of Plaintiff during temporary total disability violated 85 O.S. 5 of the Oklahoma Workers Compensation Act, which makes it an unlawful employment practice for an employer to discharge any employee during a period of temporary total disability solely on the basis of absence from work. 6.5 In wrongfully discharging Plaintiff, Defendant also acted with malice. Plaintiff is therefore entitled to punitive damages. 6.6 As a direct and proximate result of Defendant's violation of the Oklahoma Workers Compensation Act, Plaintiff has been damaged by the loss of his employment with Defendant and the loss of compensation, including salary and employee benefits, he would have received as an employee of Defendant had he not been discharged in violation of the Oklahoma Workers Compensation Act. 6.7 As a direct and proximate result of his wrongful discharge in violation of the Oklahoma Workers Compensation Act, Plaintiff has suffered other pecuniary losses, the type and amount of which will be established at trial, and nonpecuniary losses such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life. Prayer for Relief Plaintiff prays for and demands the following relief: WHEREFORE, PLAINTIFF prays that this Court: 1. A judgment that Defendant has engaged in all of the conduct alleged in this Original Complaint, and that Defendant has, by engaging in such conduct, violated the FMLA and Oklahoma law. 8

9 Case 5:10-cv L Document 1 Filed 05/10/10 Page 9 of An injunction permanently enjoining Defendant from engaging in the future the discriminatory employment practices alleged in this Original Complaint. 3. A judgment against Defendant awarding Plaintiff an amount equal to the lost wages and employment benefits had he not been terminated by Defendant in violation of the FMLA and Oklahoma law. 4. An order reinstating Plaintiff to the position, seniority and level of compensation, including salary, bonuses and benefits, he would have enjoyed had he not been terminated by Defendant in violation of the FMLA and Oklahoma law, or, in the alternative, a judgment awarding Plaintiff an amount equal to the front pay, including salary, bonuses and benefits, he would have received, from the date of judgment through the date he would have retired or resigned from employment at Defendant. 5. Enter an equivalent money judgment awarding Plaintiff liquidated damages, as provided in 29 U.S.C (a)(1)(a)(iii); 6. A judgment against Defendant awarding Plaintiff compensatory damages as redress for Defendant s unlawful conduct. 7. A judgment against Defendant awarding Plaintiff exemplary damages to punish and make an example of Defendant. 8. A judgment against Defendant awarding Plaintiff compensation for past and future nonpecuniary losses, including but not limited to emotional pain, suffering, inconvenience, loss of enjoyment of life and humiliation, in amounts to be determined at trial. 9

10 Case 5:10-cv L Document 1 Filed 05/10/10 Page 10 of A judgment against Defendant awarding Plaintiff an amount equal to the costs of bringing this action, including a reasonable attorney fee. 10. A judgment awarding Plaintiff such other legal and equitable relief as may be appropriate, including prejudgment and postjudgment interest. Respectfully submitted, S/Jeff Taylor Jeff A. Taylor State Bar No N. Classen Blvd. Oklahoma City, OK Telephone: (405) Telecopy: (405) taylorjeff@mac.com COUNSEL FOR PLAINTIFF DEMAND FOR JURY TRIAL In accordance with Fed.R.Civ.P. 38(b), Plaintiff demands a jury trial of all of his claims in this action. s/ Jeff A. Taylor Jeff A. Taylor 10

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