IN THE CIRCUIT COURT IN AND FOR
MARION COUNTY, FLORIDA
SAMPLE PLAINTIFF, )
Plaintiff, ) CASE NO.
SAMPLE DEFENDANT. )
d/b/a SAMPLE DEFENDANT )
Plaintiff, SAMPLE PLAINTIFF, sues Defendant, SAMPLE DEFENDANT and alleges as follows:
- This is an action which arises under the Family Medical Leave Act (FMLA), 29 USC §2601 et seq and claims damages in excess of $15,000.00 exclusive of fees and costs.
- This Court has jurisdiction to hear these claims.
- Plaintiff is an individual and also was an “eligible employee,” within the meaning of the FMLA, at all times relevant to this Complaint.
- Defendant was an “employer,” within the meaning of the FMLA, at all times relevant to this Complaint.
- Defendant was both engaged in commerce or in an industry or activity affecting commerce and employed more than 50 employees for each working day during each of 20 or more calendar weeks in each calendar year relevant hereto.
- At the time of the incidents relevant hereto, Plaintiff was employed by Defendant at its business location in Gainesville, FL for about 6 ½ years.
- On February 21, 2010, Plaintiff suffered critical injuries while riding his four-wheeler. He was traveling approximately 40mph when he hit a dip in the road, causing the vehicle to flip and the handlebars to strike him sharply in the chest before the entire weight of the vehicle landed on top of him.
- Immediately following the accident, Plaintiff was transported by private vehicle to North Florida Regional Medical Center. He was diagnosed as having severe pain due to injuries sustained to the head, neck, chest, right knee, and left thumb. Before being discharged, Plaintiff contacted his employer to notify them that he would be unable to work the next day, Monday February 22, 2010, and took his sick leave for that day.
- On February 22, 2010, Plaintiff visited his primary care physician, who referred him to Dr. Lang, a local orthopedic surgeon.
- In the meantime, Plaintiff stayed in constant contact with his work – using his sick time off.
- On February 26, 2010, Plaintiff visited Dr. Lang at the Orthopedic Institute located in Gainesville, FL. Upon examination, Dr. Lang informed him that surgery would be required but that he would not be able to fit him in on the schedule until April 22, 2010. In addition, Dr. Lang advised that he could not return to work until June 1, 2010. The same day, Plaintiff received paperwork in the mail regarding his leave of absence.
- The paperwork received by Plaintiff (dated February 26, 2010) indicated that he was eligible for FMLA leave. However, the date leave was to begin was noted “NOT KNOWN YET”. That paperwork also requested additional documentation from the employee by March 15, 2010 so that the Defendant could continue to analyze whether the Plaintiff’s leave would qualify for FMLA.
- Plaintiff never received any notices from the Defendant that the time clock on his FMLA leave had begun to run, or that it was being applied retroactively in combination with his sick leave.
- Plaintiff reasonably believed that his FMLA 12-week period would not begin to run earlier than March 15, 2010 (the date provided in the February 26, 2010 notice) – which would result in FMLA protected leave until June 7, 2010. Until then, Plaintiff believed he was using his sick/vacation time for his absence.
- The Defendant never informed Plaintiff that his FMLA leave was being applied retroactively.
- The next day, February 27, 2010, Plaintiff made a trip out to the Defendant’s place of business to seek a better understanding of the paperwork that was sent and to deliver the letter from Dr. Lang. Plaintiff met with HR employee Ms. Sample, who helped him fill out the paperwork and gave him a form to have Dr. Lang complete. She assured him that all of the rest would be taken care of and encouraged him to get better. Plaintiff asked Ms. Sample to explain the FMLA paperwork and how to get the FMLA paperwork started. She told Plaintiff that he required to use up his sick and vacation time first, before his FMLA would begin to run.
- On March 1, 2010, Plaintiff visited the Orthopedic Institute for a scheduled MRI and to have Dr. Lang fill out the form provided by Ms. Sample. At this time, Plaintiff was informed that his surgery date had been moved up to March 22, 2010. Following the appointment, he contacted Defendant to notify them of the new surgery date. Plaintiff spoke with Sample and his manager, John Sample.
- On or about March 2, 2010, Plaintiff mailed the form completed by Dr. Lang to Mr. Brian Hawkins at Allstate Insurance, as instructed by Sample.
- The surgery performed on March 22, 2010 included the replacement of Plaintiff’s Anterior Cruciate Ligament (ACL) and Meniscus, repair work performed on the other torn Meniscus, and complex Ligament Reconstruction.
- Following the surgery, Dr. Lang informed Plaintiff that he would still not be able to return to work until June 1, 2010. Plaintiff contacted his employer to let them know the status of his recovery and that his return would be June 1, 2010.
- During his recovery, Plaintiff was regularly visited by fellow employees including: sample employees
- On or about April 4, 2010, Plaintiff’s co-worker and friend, informed Plaintiff that the company was through some sort of insurance change that would be handled on May 27, 2010.
- The next day, Site Manager for Defendant, called Plaintiff to let him know about the upcoming insurance change and to request that he come in to sign paperwork.
- On April 7, Plaintiff visited the facility. The next day, he contacted the facility by phone and requested that his insurance be kept the same until his return on June 1, 2010.
- On May 5, 2010, Plaintiff called Defendant and made a trip out to the facility. While there, he chatted with Sample Person for approximately 30-45 minutes about how bored he was being away from the workplace.
- On May 23, 2010, Plaintiff called Mr. Sample for an update. Mr. Sample notified Plaintiff that he had been terminated on May 21, 2010, but that he wasn’t at liberty to discuss any details. Plaintiff then called Sample, who was not in office – therefore, Plaintiff then called Mr. Bob Sample (another of the Defendant’s employees). Mr. Sample then told Plaintiff that he would need to speak with Sample, Defendant’s “Employer Representative” to the FMLA.
- On May 24, 2010 Plaintiff contacted Sample, who claimed they could not contact Plaintiff and were unsure of his medical status.
- On or about June 1, 2010, Plaintiff received a certified letter from Ms. Sample in the mail. The letter was dated May 28, 2010 and contained a document indicating he would be terminated on May 22, 2010; Plaintiff never previously received this letter.
- On June 1, 2010, Plaintiff was willing to return to work and could have returned to work.
COUNT I – FMLA
- Plaintiff reallages paragraphs 1-29 above.
- The FMLA provides employees with the right to be reinstated to the same or an equivalent position after taking protected leave.
- The Defendant violated the FMLA by refusing to reinstate Plaintiff to his prior position or to an equivalent position with substantially similar work and compensation upon Plaintiff’s return to work, and terminating Plaintiff.
- Defendant interfered with, restrained, and/or denied Plaintiff’s exercise of his rights under the FMLA by refusing his attempt to be reinstated to his full time position or a reasonably equivalent full time position.
- Defendant’s failure to represent to Plaintiff when his FMLA leave would begin is both a violation of the FMLA and estopps Defendant from claiming his FMLA leave ran (or expired) on a date earlier than June 1, 2010.
- Defendant knew or should have know that it’s silence regarding when Plaintiff’s FMLA period begins to run and end amounts to deception by concealment; thereby making it impossible for Plaintiff to know that Defendant would be calculating his FMLA expiration time period as anything other than prior to June 1, 2010. This is compounded by the fact that the Plaintiff reasonably believed that at least some of his sick/vacation time would be used prior to his FMLA leave beginning to run because Defendant never advised Plaintiff that his FMLA leave would begin to run retroactively.
- Because Defendant did not advise Plaintiff that his FMLA time period would begin to run prior, Plaintiff’s belief that at least some of his vacation/sick pay would be utilized while his FMLA eligibility was analyzed by the Defendant was reasonable and Defendant is estopped from now claiming otherwise.
- The Defendant’s failure or refusal to advise Plaintiff that his FMLA starting leave date was being applied retroactively interfered with Plaintiff’s rights to take FMLA leave.
WHEREFORE, Plaintiff prays for judgment against the Defendant as follows:
a. Statutory damages for lost wages, benefits, and other compensation, plus interest thereon at the statutory rate, pursuant to 29 U.S.C.A. § 2617(a)(1)(A)(i) and 29 U.S.C.A. §§ 2617(a)(1)(A)(ii)
b. Additional liquidated damages in the amount of the above-requested award, pursuant to 29 U.S.C.A. § 2617(a)(1)(A)(iii).
c. Equitable relief in the form of reinstatement or front pay, as the court deems appropriate, pursuant to 29 U.S.C.A. § 2617(a)(1)(B).
d. Attorney’s fees, expert witness fees, and costs of this action, pursuant to 29 U.S.C.A. § 2617(a)(3), and such other relief as this Court may deem just and proper.
DEMAND FOR JURY TRIAL
The Plaintiff demands a trial by jury on all issues so triable.
Florida Bar No. 153680
Massey & Duffy
855 E. University Avenue
Gainesville, FL 32601