IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Transcription

1 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 1 of 1 of IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA JEFFREY J. BLISS 9483 Pleasant Ridge Road Harrisonville, PA CIVIL ACTION Plaintiff, v. No. GIANT FOOD STORES, INC. JURY TRIAL DEMANDED 1149 Harrisburg Pike Carlisle, PA and - GIANT FOOD STORES, LLC 1149 Harrisburg Pike Carlisle, PA and - RUBY GRESS 1149 Harrisburg Pike Carlisle, PA and - JOYCE GOLDEN 1149 Harrisburg Pike Carlisle, PA and - BARB NEGLEY 1149 Harrisburg Pike Carlisle, PA and - NICOLE DEISEROTH 1149 Harrisburg Pike Carlisle, PA 17013

2 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 2 of 2 of and - JOSEPH MILTER 1149 Harrisburg Pike Carlisle, PA and - KIM (Last name unknown ) 1149 Harrisburg Pike Carlisle, PA Defendants. follows CIVIL ACTION COMPLAINT The Plaintiff, Jeffrey J. Bliss, by and through his undersigned counsel, hereby avers as I. Introduction 1. The Plaintiff has initiated this action to seek redress against Giant Food Stores, Inc., Giant Food Stores, LLC (sometimes hereinafter collectively referred to as Giant ), his current employer; Giant s Lead Check Out Coach, Ruby Gress; Giant s Human Resource Manager, Joyce Golden; Giant s Store Manager, Barb Negley; Giant s Store Employment Associate, Nicole Deiseroth; Giant s Night Manager, Joseph Milter; and Giant s Human Resources Corporate Officer Kim (last name unknown), for violations of the Family and Medical Leave Act (hereinafter FMLA ). 2. Giant, Ms. Gress, Ms. Golden, Ms. Negley, Ms. Deiseroth, Mr. Milter and Kim are sometimes hereinafter collectively referred to as the Defendants. II. The Parties 3. The allegations contained in the foregoing paragraphs of this Complaint are incorporated by reference herein as if the same were set forth at length

3 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 3 of 3 of The Plaintiff, Jeffrey J. Bliss, is an adult individual currently residing at the above address. 5. The Defendant, Giant Food Stores, Inc., is a corporation created and existing pursuant to the laws of the State of Delaware and registered to conduct business in the Commonwealth of Pennsylvania, with a place of business at the above address. 6. The Defendant, Giant Food Stores, LLC, is a limited liability company created and existing pursuant to the laws of the State of Delaware and registered to conduct business in the Commonwealth of Pennsylvania, with a place of business at the above address. 7. Upon information and belief, because of their interrelation of operations, common ownership or management, centralized control of labor relations, common ownership or financial controls, and other factors, Giant Food Stores, Inc. and Giant Food Stores, LLC are sufficiently interrelated and integrated in their activities, labor relations, ownership and management that they may be treated as a single employer of the Plaintiff for purposes of the instant action. 8. Ms. Gress is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA Ms. Golden is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA Ms. Negley is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA Ms. Deiseroth is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA Mr. Milter is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA

4 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 4 of 4 of Kim is an adult individual, employed by Giant, who may be served at 1149 Harrisburg Pike, Carlisle, PA At all times relevant hereto, the Defendants acted by and through their agents, servants and employees, each of whom acted within the scope of his or her job duties. 15. Giant is an employer within the meaning of the FMLA because it is engaged in an industry affecting commerce and because it maintains or maintained fifty (50) or more employees within seventy-five miles of the Plaintiff s work site for each working day in each of twenty (20) or more weeks in the current or preceding calendar year. 16. Ms. Gress, Ms. Golden, Ms. Negley, Ms. Deiseroth, Mr. Milter and Kim are each employers within the meaning of the FMLA, because the FMLA defines employer as any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer. 29 U.S.C. 2611(4)(A)(ii)(I). 17. Pursuant to Narodetsky v. Cardone Industries, Inc., 2010 U.S. Dist. LEXIS (E.D. Pa. February 24, 2010), Ms. Gress, Ms. Golden, Ms. Negley, Ms. Deiseroth, Mr. Milter and Kim each may be held liable under the FMLA. III. Jurisdiction and Venue 18. All of the allegations contained in the foregoing paragraphs of this complaint are incorporated by reference herein as if set forth at length. 19. The Court may properly maintain personal jurisdiction over the Defendants because the Defendants contacts with this state and this judicial district are sufficient to comply with traditional notions of fair play and substantial justice, satisfying the standard set forth by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945) and its progeny

5 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 5 of 5 of The United States District Court for the Middle District of Pennsylvania may exercise original subject-matter jurisdiction over the instant action pursuant to 28 U.S.C and 1343(a)(4) because this action arises under the laws of the United States. 21. Venue is properly in the Middle District of Pennsylvania pursuant to 28 U.S.C. 1391(b)(1) and 1391(b)(2) because the Defendants are located in and conduct business in this judicial district and because a substantial part of the acts and/or omissions giving rise to the claims set forth herein occurred in this judicial district (the Plaintiff was employed in the Middle District of Pennsylvania at the time of the illegal actions set forth herein.) IV. Factual Background 22. All of the allegations contained in the foregoing paragraphs of this Complaint are incorporated by reference herein as if the same were set forth at length. 23. The Plaintiff was hired by Giant on November 9, 2008, as a part time cashier/service clerk (bagger) and produce department associate. 24. In February of 2009, the Plaintiff s spouse, David Mumma, was hired by Giant as a stock person. 25. Shortly thereafter, Mr. Mumma was required to undergo gall bladder removal surgery and was out of work for a period of time and was terminated and hired back as an associate at the gas station. 26. In early February of 2010, Mr. Mumma was diagnosed with lymphoma. 27. Lymphoma is a serious medical condition for which Mr. Mumma was and is required to undergo a continuing regimen of treatment with his health care provider

6 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 6 of 6 of On or about February 13, 2010, the Plaintiff requested leave from Ms. Gress, Lead Check Out Coach, to go with Mr. Mumma to his oncology appointment, which was to be his first appointment since receiving the lymphoma diagnosis. 29. Ms. Gress denied the Plaintiff this leave. 30. Thereafter, the Plaintiff reported Ms. Gress actions in denying him medical leave to attend to his spouse. 31. The Plaintiff reported this to Giant s corporate office. This complaint was responded to by the Human Resource Manager, Ms. Golden. 32. Ms. Golden informed the Plaintiff that he should apply for FMLA leave, since he and Mr. Mumma are spouses and Giant does not discriminate. 33. Ms. Golden further represented that the Plaintiff and Mr. Mumma would both qualify for FMLA leave, with the Plaintiff being the primary health care provider to Mr. Mumma, who has a serious health condition. 34. Ms. Golden further represented that the FMLA leave was protected, and the Plaintiff and Mr. Mumma could not have any absence held against them, either together or individually. 35. On October 18, 2010, the Plaintiff had to take Mr. Mumma to the hospital on an emergency basis. They were informed by the hospital that Mr. Mumma needed to be admitted overnight for observation. 36. The Plaintiff immediately called Giant and informed them that he was calling in for himself and Mr. Mumma, for their scheduled shift the next morning, since Mr. Mumma was being admitted to the hospital overnight for observation and testing

7 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 7 of 7 of That evening, the Plaintiff went into Giant to purchase food and was informed that Ms. Gress had removed the Plaintiff and Mr. Mumma from the work schedule for the rest of the week, without pay. The Plaintiff did not ask for this entire time off. 38. Mr. Mumma was hospitalized again for illness on October 29, The Plaintiff was scheduled to work the following day. The Plaintiff called and requested to speak to the store manager, Ms. Negley, but the Plaintiff was informed that she could not talk to him. 39. The Plaintiff called Giant on the morning of his shift and was told by Mr. Milter, a salaried member of management, that he was required to come in to work. 40. On November 1, 2010, the Plaintiff spoke to Ms. Golden, who informed him that he should only deal with the store managers when requesting time off to attend to Mr. Mumma. 41. The Plaintiff stated to Ms. Golden that he never received any FMLA forms from Giant. Ms. Golden informed the Plaintiff that she would take care of that and would make sure that he received the forms so that he could take FMLA leave as the primary caregiver for Mr. Mumma. 42. On November 1, 2010, the Plaintiff was given the FMLA paperwork by Ms. Deiseroth. Ms. Deiseroth filled out the necessary areas on the form for the employer and she checked off Spouse for the Plaintiff s relationship to Mr. Mumma. 43. On November 10, 2010, the Plaintiff was informed that Giant s Human Resources Corporate Officer, Kim, denied the Plaintiff s FMLA leave, since Giant does not recognize same sex relationships or couples and that the FMLA paperwork would be denied based on the Plaintiff s and Mr. Mumma s sexual orientation

8 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 8 of 8 of On November 11, 2010, the Plaintiff informed Ms. Negley that he had been denied FMLA leave. Ms. Negley stated that the Plaintiff would have to let her try to resolve this issue, since she was also told by Ms. Golden that the Plaintiff qualified for FMLA leave. 45. Later on November 11, 2010, Ms. Golden called the Plaintiff and stated that she apologized but she had misled him, because Giant does not recognize same sex couples or relationships and that per the Federal Government, the Plaintiff and Mr. Mumma would not qualify for leave under the FMLA, making the Plaintiff s future employment at risk if he took time off to care for his spouse. 46. Ms. Golden then asked the Plaintiff if he was legally married to Mr. Mumma, or if they had any children because that would be the only way that the Plaintiff would be able to qualify for FMLA leave to take care of Mr. Mumma. 47. On November 12, 2010, when the Plaintiff clocked into work, Ms. Negley informed him that Giant was launching an investigation and the Plaintiff was told not to talk to anyone further until a solution had come about. 48. Since that time, the Defendants have subjected the Plaintiff and Mr. Mumma to harassment and retaliation, which includes, among other things, having their hours reduced, all as a result of the Plaintiff s request for, and usage of, leave protected by the FMLA. 49. The Defendants have denied the Plaintiff the opportunity to take this leave. Count I Violations of the FMLA 50. All of the allegations contained in the foregoing paragraphs of this Complaint are incorporated by reference herein as if the same were set forth at length. he was 51. The Plaintiff is an eligible employee within the meaning of the FMLA because - 8 -

9 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page 9 of 9 of a. Employed by the Defendants for a period of at least twelve (12) months; and b. Worked at least 1,250 hours in the twelve-month (12) period immediately preceding the reduction in his hours. 52. The Plaintiff was entitled to take leave pursuant to the FMLA to care for his spouse s serious medical condition. 53. The foregoing conduct by the Defendants, in failing to permit the Plaintiff to exercise his rights to FMLA leave, constitutes a violation of the FMLA. 54. The foregoing conduct by the Defendants, including reducing the Plaintiff s hours and cancelling his shifts without pay, as a result of him taking leave under the FMLA, constitutes a violation of the FMLA. 55. Although the FMLA may not currently permit same-sex couples to take leave to care for one another, the Plaintiff is nonetheless entitled to assert an FMLA claim under a detrimental reliance theory, based upon his employer s repeated representations that he was eligible for such leave. See, e.g., Renart v. Cartwells, 2004 U.S. App. LEXIS (3d Cir. 2004). Although the Plaintiff did not prevail on that claim in Renart, supra, it is cited to demonstrate that the Third Circuit recognizes FMLA claims under a detrimental reliance theory. 56. This principle was expanded upon and discussed in more detail in Minard v. ITC Deltacom Comm., Inc., 447 F.3d 352 (5 th Cir. 2006). In Minard, the Court held that an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an eligible employee and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment. Id. at

10 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page of of This is precisely what occurred in the instant matter. The Defendants initially informed the Plaintiff that he was eligible for FMLA leave, which they subsequently conceded was erroneous. 58. The Defendants also had reason to believe that the Plaintiff would rely upon that information; and the Plaintiff took action to his detriment he took leave and was penalized for it. 59. Accordingly, the Defendants must be estopped from claiming that the Plaintiff is not eligible for FMLA leave. See also, Dobrowski v. Jay Dee Contracting, Inc., 571 F. 3d 551, 557 (6 th Cir. 2009) (holding that to prevail under an FMLA detrimental reliance/equitable estoppel theory a plaintiff need not show that the employer was aware of the truth or intended reliance; a plaintiff need only show, (1) a definite misrepresentation as to a material fact, (2) a reasonable reliance on the misrepresentation, and (3) a resulting detriment to the party reasonably relying on the misrepresentation. ). 60. As a result of the Defendants violations of the FMLA, the Plaintiff has suffered damages as set forth herein. WHEREFORE, the Plaintiff seeks the damages set forth in the Ad Damnum clause of this Complaint, infra. Count II FMLA Retaliation 61. All of the allegations contained in the foregoing paragraphs of this Complaint are incorporated by reference herein as if the same were set forth at length. 62. In requesting FMLA leave to care for his spouse, the Plaintiff engaged in a protected activity

11 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page of of The foregoing conduct by the Defendants, including reducing the Plaintiff s hours and cancelling his shifts without pay, constitutes unlawful retaliation to the Plaintiff s engaging in protected activity. 64. As a result of the Defendants unlawful retaliation, the Plaintiff has suffered damages as set forth herein. WHEREFORE, the Plaintiff seeks the damages set forth in the Ad Damnum clause of this Complaint, infra. Ad Damnum Clause/Prayer for Relief WHEREFORE, the Plaintiff prays that the Court enter judgment in his favor and against the Defendants and that it enter an Order as follows a. The Defendants are to prohibited from continuing to maintain their illegal policy, practice or custom of discriminating and retaliating against employees based on the FMLA, and are to be ordered to promulgate an effective policy against such discrimination and retaliation; b. The Defendants are to compensate the Plaintiff, reimburse the Plaintiff and to make the Plaintiff whole for any and all pay and benefits the Plaintiff would have received had it not been for the Defendants unlawful actions, including but not limited to, back pay, front pay, salary, pay increases, bonuses, medical and other benefits, training, promotions, pensions and seniority. The Plaintiff should be accorded those benefits unlawfully withheld from the date the Plaintiff first suffered discrimination at the hands of the Defendants until the date of the verdict; c. The Plaintiff is to be awarded actual damages;

12 Case Case 111-cv CCC 302-at Document 69 1 Filed Filed 01/18/11 Page Page of of d. The Plaintiff is to be accorded any and all other equitable and legal relief as the Court deems just, proper, and appropriate; e. The Plaintiff is to be awarded the costs and expenses of this action and reasonable legal fees as provided by applicable federal law; f. The Plaintiff is to be granted such additional injunctive or other relief as may be requested during the pendency of this action in an effort to ensure the Defendants do not engage in prohibited retaliation against Plaintiff or other witnesses to this action; g. The Court is to maintain jurisdiction over this action after verdict to ensure compliance with its orders therein; and h. The Plaintiff s claims against the Defendants are to receive a trial by jury to the extent allowed by applicable law. The Plaintiff has also endorsed this demand on the caption of this Complaint in accordance with Federal Rule of Civil Procedure 38(b). Respectfully submitted, KOLMAN ELY, P.C. BY /s/ Wayne A. Ely, Esquire Wayne A. Ely, Esquire Attorneys for Plaintiff 414 Hulmeville Avenue Penndel, PA (215) January 18,