CLYDE L. BENNETT IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division Case No.: 3:08CV498(RLW) v. Plaintiff, R&L CARRIERS SHARED SERVICES, LLC, and GREENWOOD MOTOR LINES, INC., and FRANKLIN FINLEY, and JAY BULLARD, and DAVID MCGINNIS, Defendants. SECOND AMENDED COMPLAINT Pursuant to leave of Court granted by order of May 1, 2009, comes now your Plaintiff, Clyde L. Bennett, by counsel, and for his Second Amended Complaint against R&L Carriers Shared Services, LLC (R&L), Greenwood Motor Lines, Inc (Greenwood),
Franklin Finley, Jay Bullard and David McGinnis states as set forth hereinafter and requests judgment against the Defendants, jointly and severally, in the amount hereinafter sought by Plaintiff for the following reasons, to wit: Introduction 1. Your Plaintiff was a 50 year old African American man who had no prior criminal record, and was employed under an at will employment contract as a night shift foreman at a truck terminal known as the R&L Terminal located in Colonial Heights, Virginia (Facility or Terminal), and had never been terminated from employment for cause. Your Plaintiff brings a malicious prosecution claim against the Defendants arising out of their actions and efforts and the unsuccessful criminal prosecution of the Plaintiff, which they initiated, caused, set afoot, instituted, continued and/or cooperated in the institution and continuation of, asserting grand larceny by reason of unlawful and felonious embezzlement of computer equipment from the Facility on or about March 17, 2006 in violation of Sec. 18.2-111 of the Code of Virginia. This grand larceny criminal charge was punishable under Sec. 18.2-95 of the Code of Virginia by confinement in the penitentiary for from one to twenty years, or confinement in jail up to one year or a $2,500 fine, either or both. Your Plaintiff also brings a racial discrimination claim under 42 U.S.C. Sec. 1981 arising from the foregoing actions of Defendants and their termination of his at will employment. 2. The criminal prosecution against the Plaintiff was terminated in a manner favorable to, or not unfavorable to, Plaintiff on May 2, 2007 when the Court granted the Commonwealth s motion for nolle prosequi. 3. The criminal prosecution brought against the Plaintiff was intentionally 2
initiated, caused, set afoot, instituted, continued, maintained and/or cooperated in by Defendants wholly without probable cause and was malicious, done with bad faith, with actual malice and with the intent to injure your Plaintiff. Defendants also terminated Plaintiff s employment with R&L and engaged in such prosecution intentionally to harass and discriminate against Plaintiff because of his race. Jurisdiction and Venue 4. The malicious prosecution action is brought pursuant to the common law of the Commonwealth of Virginia. The racial discrimination claim is brought pursuant to 42 U.S.C. Sec. 1981. 5. The actions set forth herein primarily took place in the County of Chesterfield. 6. The Defendants work and/or reside in the County of Chesterfield and/or committed the acts complained in the County of Chesterfield Virginia. 7. Your Plaintiff, Clyde L. Bennett, has at all relevant times been a resident of the City of Richmond, Virginia. 8. Defendants R&L and Greenwood have at all relevant times regularly conducted business and affairs in the County of Chesterfield, operated a warehouse in the County of Chesterfield and employed and/or co-employed the persons working there and all individual defendants and committed the acts complained of in the County of Chesterfield. Defendant Finley at all relevant times worked at the R&L facility in the County of Chesterfield, and committed the acts complained of in the County of Chesterfield, Virginia. Defendant McGinnis, in the County of Chesterfield, participated in the investigation leading the relevant charge, and committed the acts complained of. 3
R&L is the employment entity and arm of a large integrated trucking company known as R&L Carriers with numerous controlled affiliates. Defendant Bullard was the regional supervisor for the area that included the Facility. McGinnis, Finley and Bullard acted cooperatively and in concert with respect to the matters alleged herein and within the scope of their employment with R&L and as agents, on behalf of and in the interests of Greenwood. Plaintiff, all those working at the Facility, and all individual Defendants were employees of R&L Shared Services (R&L) at all relevant times, and were agents of and acting on behalf of and in the interests of Greenwood. 9. Informant Lowry had two felony convictions prior to the events in issue. Upon information and belief, the other pre-arrest informant, Spangler, also had a criminal record at the time of the incident. Certain Additional Facts 10. Your Plaintiff lives in the City of Richmond and for many years worked in the County of Chesterfield and has enjoyed a good reputation for many years as a person and employee in the County of Chesterfield the surrounding areas. 11. Your Plaintiff has had no prior criminal record. 12. Your Plaintiff was the Outbound Dock Supervisor on the night shift and had held that position for approximately two years. On March 27, 2006, when Plaintiff arrived for work at about 4:30 p.m., the R&L Terminal Manager, Frank Finley, asked him to come into his office. Plaintiff did so. In the office also were Jay Bullard, R&L Director of Operations, David McGinnis, R&L Southeast Region Investigator, They said they were investigating the loss of three computer towers that were reported missing form the dock on March 20 th. They asked Plaintiff questions and he told them he did not 4
know anything about the computer towers. As Plaintiff was leaving the R&L officials asked him to send in dockworker David Lowery who worked on the second shift. 13. The investigation went on for the next three days during which David Lowery was called in several times. On Wednesday, March 29 th, Lowery was called into the office again. Lowery, Bullard and McGinnis then went to Lowery s house and picked up one of the computer towers which was in Lowery s possession and returned to the terminal. 14. That same night, Frank Finley came to the south end of the dock, the area Plaintiff supervised, and told Plaintiff he needed to come to the office. Plaintiff did so. In the office were Finley, Bullard, McGinnis and two Chesterfield County police officers. Plaintiff was questioned by one of the police officers. Plaintiff said he had previously been questioned by the company and again said he did no know anything about the computer towers. The police officer told Plaintiff to stay in the office while he, the other police officer, Bullard and McGuiness went into the office next door. 15. Approximately 45 minutes later, the police officer returned, told Plaintiff to stand up and put his arms behind him. Plaintiff was searched and handcuffed. As Plaintiff was being led out Finley stood in front of him and said he no longer had a job. Plaintiff was led out onto the dock in front of all his coworkers who were at lunch at that time. 16. Plaintiff was taken to Chesterfield County Magistrate s Office and brought before a magistrate. The police officer stated that David Lowery and the company investigator, David McGinnis, said that Plaintiff had approached Lowery on the afternoon of March 17, 2006 on the dock and asked him if he wanted to purchase a computer for $200 and that Lowery said yes knowing the computer would be stolen. The officer also stated that McGinnis and Lowery said Lowery was hanging out at the guard 5
shack while Plaintiff was taking the computer towers out through the front door, and that Plaintiff met Lowery on Saturday, March 18, 2006 at around 8:00 a.m. at a 7-11 store on Walmsley Boulevard to complete the deal. McGiinnis at the hearing stated that he knew for sure that Plaintiff had taken the computers and that he had them in his home. 17. Plaintiff was arrested, terminated from his employment with R&L, weighed, measured, had his mugshot taken and was put out in the cold at approximately 1:30 a.m. to 2:00 a.m. 18. McGinnis investigation report (stated by McGihnnis in an affidavit to be true) states that Conan Spangler (a suspect in the earlier theft of 13 laptop computers), prior to the arrest of Plaintiff, told McGinnis that he and employee Mitchell (another suspect in the prior theft of 13 laptop computers) saw Plaintiff take the computers out the front door while Lowrey distracted the guard at the guard shack. McGuiness investigation report states that McGuiness then confronted Lowrey who said that Plaintiff took the computers out the front door while Lowrey was talking to the guard and that the next day Lowrey purchased one of the computers from Plaintiff at a 7-11 store, that one computer in a box was recovered from the home of Lowrey, that the police were then contacted and shortly thereafter Plaintiff was arrested at the Facility despite the fact he continued to maintain his innocence. No fingerprints of the box or the computer were taken. No attempt was made to search Plaintiff s residence for the other missing computers. No signed statements were taken from the alleged informants. The front door of the Facility is not visible from the truck entrance guard shack which is beside and set back from the main building. Mitchell was not interviewed prior to the arrest. McGinnis made no criminal background check on any of the informants. Lowrey had two felony 6
convictions at the time. Upon information and belief Spangler also had a criminal record at the time, Plaintiff having overheard Spangler tell that to another employee. After the arrest of Plaintiff, Spangler and Mitchell were offered the opportunity to take lie detector tests to clear themselves, but Plaintiff was never afforded any such opportunity. Spangler and Mitchell refused to take the lie detector tests and ceased reporting for work. Lowrey was later arrested and fled. Another employee, Wayne Spratley, has recently signed an affidavit stating that Lowrey told him that he, Lowrey, was going to take computers out the front door while Plaintiff was busy and not watching. Spratley, despite the fact that he worked at the Facility at the time of the incident, was not interviewed by McGinnis or the company. Upon information and belief, the statements in the Spratley affidavit are true. 19. McGinnis report at various points terms Lowrey and Spangler, the alleged pre-arrest informants, as being liars, deceptive and/or untruthful and demonstrates that they had lied. Mitchell, another alleged informant, who was not interviewed until after the arrest, is similarly characterized. Under all the circumstances, neither Lowrey nor Spangler was a reliable informant, and their stories are transparent fabrications to take the heat off themselves. The same is true of after-the fact alleged informant Mitchell. This became all the more obvious when Spangler and Mitchell refused to take lie detector tests and ceased coming to work, and Lowrey fled. 20. Upon information and belief, McGinnis fabricated the alleged statement of Spangler that Spangler and Mitchell saw Plaintiff take the computers out the front door while Lowrey distracted the guard. Defendants belatedly produced in discovery an unsigned, handwritten statement that Lowrey told the declarant that Plaintiff was going 7
to take computers out the front door while Lowrey distracted the guard ------ not that the declarant actually saw Plaintiff take the computers. The handwritten statement alludes to the declarant s (apparently criminal) past as a reason for not coming forward. Spangler had a criminal record. No other informants are mentioned in the report. The declarant is Spangler. 21. McGinnis, Finley and Bullard are white. Plaintiff was the one black shift supervisor at the Facility, there being five white shift supervisors. Prior to the arrest, Plaintiff was being set up to be terminated by being written up for not checking the interim loading stage blocks (1/4, ½, ¾) on loading reports when white shift supervisors were doing the same thing and not being written up. The final Full block is the most important, and the wide range of responsibilities of shift supervisors often makes it impossible to check at all the interim stages. Plaintiff repeatedly complained to Finley, the Facility manager, that he was being written up and the whites were not. Finley agreed this was occurring, said he would see that it was corrected, but never did so. 22. Robert Fisher, the supervisor of the OS&D area, was the only black supervisor at the Facility other than Plaintiff. He was terminated for allegedly discussing and inquiring about in the investigation. Upon information and belief, the alleged facts related to the termination set forth in McGinniss report are a fabrication. Upon information and belief, a white male worker named Justin mentioned to Fisher that Spangler s wife had called in on the hotline, but Fisher did not inquire or engage in substantive discussion of what was said with Justin or anyone else. Upon information and belief, the white employee who was the source of the information and initiated the conversation was not terminated. 8
23. As a result of Defendants actions, Plaintiff has been out of work since the events in issue. 24. Plaintiff suffered extreme humiliation and embarrassment and emotional distress and damage to his reputation as a result of the Defendants actions herein, has lost substantial income and has incurred legal costs of criminal defense, all as a result of the Defendants criminal charges brought against him totally without probable cause and with actual malice. COUNT I 25. The allegations of all paragraphs preceding Count I are incorporated by reference and realleged. Defendants actions were not an honest, good faith effort to see justice done, but were instead an intentional, malicious, bad faith course of conduct to have a scapegoat and to make an example regardless of the guilt or innocence of the person. Defendants also intentionally, maliciously and in bad faith acted out of racial bias for the purpose discriminating against, harassing, injuring and terminating the employment of Plaintiff because of his race. 26. The arrest and prosecution of Plaintiff by Defendants and the continuation of the prosecution were without probable cause and were done maliciously and in bad faith. The prosecution terminated not unfavorably to Plaintiff. Indeed, the circumstances suggest and are consistent with innocence. As a proximate result of Defendants actions Plaintiff has and will continue to suffer injury to reputation, economic loss, embarrassment, humiliation and emotional distress. COUNT II 27. The allegations of all paragraphs preceding Count I are incorporated by 9
reference and realleged. Defendants also intentionally, maliciously and in bad faith acted out of racial bias for the purpose discriminating against, harassing, injuring and terminating the employment of Plaintiff because of his race. 28. The actions of Defendants violated 42 U.S.C. Sec. 1981. 29. As a proximate result of Defendants actions Plaintiff has and will continue to suffer injury to reputation, economic loss, embarrassment, humiliation and emotional distress. Relief Requested WHEREFORE, your Plaintiff demands judgment against the Defendants, jointly and severally, as follows: (a) $2,000,000 compensatory damages, (b) $20,000,000 punitive damages, (c) reinstatement to his former position, back pay and front pay, (d) pre-judgment interest and post-judgment interest, (e) reasonable attorney s fees, costs and expenses, and (f) such other and further relief as is deemed appropriate. Your Plaintiff further seeks leave to amend if and when such further evidence requires the amendment of these pleadings. Your Plaintiffs damages are ongoing and may increase. TRIAL BY JURY IS HEREBY DEMANDED. 10
John Barry Donohue, Jr. VSB No. 21121 James B. Thorsen VSB No. 18113 Attorneys for Clyde L. Bennett JAMES B. THORSEN, P.C. & ASSOCIATES 3810 Augusta Avenue Richmond, VA 23230-3910 Telephone: (804) 359-3000 Facsimile: (804) 359-3139 jdonohue@tslaw.us Respectfully submitted, CLYDE L. BENNETT PLAINTIFF By: /s/ John Barry Donohue, Jr. CERIFICATE OF SERVICE I hereby certify that on the 4 th day of May, 2009, I will electronically file the foregoing with the Clerk of the Court using the CM/ECF system which will send a notification of such filing (NEF) to the following: William D. Bayliss, Esquire Brenden D. O Toole, Esquire WILLIAMS MULLEN Two James Center 1021 East Carey Street P.O. Box 1320 Richmond, Virginia 23218-1320 Bbayliss@williamsmullen.com botoole@williamsmullen.com By: /s/ John Barry Donohue, Jr. John Barry Donohue, Jr. VSB No. 21121 Attorney for Clyde L. Bennett JAMES B. THORSEN, P.C. & ASSOCIATES 3810 Augusta Avenue Richmond, Virginia 23230 Telephone: 804.359.3000 11
Facsimile: 804.359.3139 jdonohue@tslaw.us 12