IN THE CIRCUIT COURT OF THE
SECOND JUDICIAL CIRCUIT,
FOR LEON COUNTY, FLORIDA
SHEILA B. MERLAU,
Plaintiff,
v. CASE NO.:
TALLAHASSEE MEMORIAL
HEALTHCARE, INC.,
Defendant.
_____________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, SHEILA B. MERLAU, by and through her undersigned attorney, sues Defendant, TALLAHASSEE MEMORIAL HEALTHCARE, INC., and alleges as follows:
INTRODUCTION
1. This action is brought pursuant to Chapter 760, Florida Statutes (2003) to obtain relief for unlawful discrimination committed by Defendant against Plaintiff because of her physical handicap.
2. This is also an action for denial of medical leave in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§2601-2654 and breach of contract.
3. This is an action for damages in which the matter in controversy exceeds Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs, and attorney’s fees.
VENUE
4. The unlawful practices alleged below were committed in Tallahassee, Leon County, Florida.
PARTIES
5. Plaintiff currently resides in Tallahassee, Leon County, Florida, and at all times material herein resided in Leon County, Florida.
6. Defendant, Tallahassee Memorial HealthCare, Inc., is a Florida corporation, doing business in the State of Florida.
7. At all times material hereto, Defendant was doing business in Leon County, Florida, under the name Tallahassee Memorial Hospital or TMH.
8. At all times material hereto, Defendant employed fifty (50) or more employees for each working day during each of twenty (20) or more calendar work weeks in 2002 and 2003.
STATEMENT OF CLAIM
9. All conditions precedent to the institution and maintenance of this cause of action have been met or waived.
10. On February 19, 2004, Plaintiff filed a claim with the Florida Commission on Human Relations, which was dual filed with the U.S. Equal Employment Opportunity Commission, and more than one hundred and eighty (180) days have passed since the filing of said claim. A copy of said claim is attached hereto as Exhibit “A”.
11. Plaintiff has retained the law firm of Allen & Trent, P.A. to represent her in this matter.
COUNT I
DENIAL OF REASONABLE ACCOMMODATION
IN VIOLATION OF FLORIDA STATUTES, CHAPTER 760
12. Plaintiff began working for Defendant on or about May 2, 1988.
13. Plaintiff was employed by Defendant in the position of Child Care Center Director.
14. During her fifteen (15) year career with Defendant, Plaintiff performed all of the duties assigned to her in a professionally competent manner, received excellent performance evaluations, faithfully followed all reasonable instructions given to her by her supervisors, and abided by all of Defendant’s rules and regulations.
15. In or about January 2002, Plaintiff was diagnosed with spinal stenosis and degenerative disc disease.
16. This is a permanent physical handicap marked by the narrowing of the spaces between the discs in the spine resulting in pressure on the spinal cord and nerve roots.
17. This handicap causes the Plaintiff intense pain and discomfort.
18. This handicap severely impacts Plaintiff’s ability to sleep, walk, stand, sit for long periods of time in the same position, and work.
19. In the summer of 2002, Defendant reasonably accommodated Plaintiff by upgrading her home personal computer connections so she could connect to Defendant’s computer network using a laptop computer.
20. This reasonable accommodation allowed Plaintiff to “telecommute” and work from home approximately twenty (20) hours per week and work in the Child Care Center thirty (30) to forty (40) hours per week.
21. If Plaintiff’s handicap caused her pain that did not let her sleep at night, telecommuting allowed her to use that time productively to work late in the evening or during early morning hours.
22. When an onset of pain occurred in the office, telecommuting allowed Plaintiff to finish working on projects at home.
23. Telecommuting also allowed Plaintiff to sit, recline, or lie down (sometimes on ice) and work in the privacy of her home.
24. On February 2, 2003, Defendant hired Steve Adriaanse to the position of Senior Vice President of Human Resources.
25. Mr. Adriaanse became Plaintiff’s new supervisor.
26. One of Mr. Adriaanse first acts as Senior Vice President of Human Resources, was to summarily order Plaintiff to stop telecommuting.
27. Mr. Adriaanse ordered Plaintiff to be physically present in the Child Care Center per his 8 a.m. to 5 p.m. work schedule.
28. Mr. Adriaanse did not consult with Plaintiff before denying her continued use of telecommuting as a reasonable accommodation.
29. Mr. Adriaanse did not seek Plaintiff’s physicians’ input before denying her continued use of telecommuting as a reasonable accommodation.
30. Defendant’s refusal to continue reasonably accommodating Plaintiff was intentional, malicious and willful.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including without limitation:
A. Compensatory damages for stress, anxiety, loss of dignity and mental anguish;
B. Punitive damages;
C. An award of reasonable attorney’s fees and all costs incurred herein; and
D. Such other damages and remedies as may be just and proper.
COUNT II
DISPARATE TREATMENT
IN VIOLATION OF FLORIDA STATUTES, CHAPTER 760
31. Plaintiff realleges and incorporates paragraphs 1 and 3 through 30 above as though fully set forth herein.
32. In addition to denying Plaintiff’s continued use of telecommuting as a reasonable accommodation and requiring Plaintiff to be at the Child Care Center between 8 a.m. to 5 p.m., Mr. Adriaanse required Plaintiff to clock in to work and clock out off of work, something she had not been required to do in the past.
33. Mr. Adriaanse also required Plaintiff to call and/or e-mail him upon arriving to work and anytime she left the hospital.
34. Mr. Adriaanse did not impose the same requirements on non-handicapped hospital administrators.
35. Defendant’s acts of disparate treatment were intentional, malicious and willful.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including without limitation:
A. Compensatory damages for stress, anxiety, loss of dignity and mental anguish;
B. Punitive damages;
C. An award of reasonable attorney’s fees and all costs incurred herein; and
D. Such other damages and remedies as may be just and proper.
COUNT III
HOSTILE WORK ENVIRONMENT
IN VIOLATION OF FLORIDA STATUTES, CHAPTER 760
36. Plaintiff realleges and incorporates paragraphs 1, 3 through 30, and 32 through 35 above as though fully set forth herein.
37. Defendant’s summary refusal to continue reasonably accommodating Plaintiff, its requirement that she be at work from 8 a.m. through 5 p.m., its requirement that she clock in and out of work, and its requirement she e-mail and/or call Mr. Adriaanse when she arrived and left the hospital adversely affected the terms, privileges and conditions of Plaintiff’s employment and created a hostile work environment because her handicap.
38. Defendant’s acts were intentional, malicious and willful.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including without limitation:
A. Compensatory damages for stress, anxiety, loss of dignity and mental anguish;
B. Punitive damages;
C. An award of reasonable attorney’s fees and all costs incurred herein; and
D. Such other damages and remedies as may be just and proper.
COUNT IV
CONSTRUCTIVE DISCHARGE
IN VIOLATION OF FLORIDA STATUTES, CHAPTER 760
39. Plaintiff realleges and incorporates paragraphs 1, 3 through 30, 32 through 35, and 37 through 38 above as though fully set forth herein.
40. On July 7, 2003, Plaintiff involuntarily resigned from her fifteen (15) year position as Defendant’s Child Care Center Director.
41. Plaintiff involuntarily resigned, inter alia, because she could not continue to work without Defendant’s reasonable accommodation and could not continue to work in a discriminatory and hostile work environment.
42. Plaintiff’s involuntary resignation constitutes a constructive discharge.
43. Defendant’s actions resulted in Plaintiff’s constructive discharge.
44. Defendant’s actions were intentional, malicious and willful.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including without limitation:
A. Judgment for back pay, including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled, had she not been discriminatorily discharged;
B. Interest on those sums of back pay for which Defendant is liable;
C. An award for all money paid by Plaintiff for health benefits and all money paid for medical expenses;
D. An award of reasonable attorney’s fees and all costs incurred herein;
E. Compensatory damages for stress, anxiety, loss of dignity and mental anguish;
F. Punitive damages; and
G. Such other damages and remedies as may be just and proper.
COUNT V
DENIAL OF FMLA
IN VIOLATION OF 29 U.S.C. §§2601-2654
45. Plaintiff realleges and incorporates paragraphs 2 through 30, 32 through 35, 37 through 38, and 40 through 44 above as though fully set forth herein.
46. Plaintiff was employed by Defendant in excess of twelve (12) months and for at least 1,250 hours over the twelve (12) months prior to July 2003.
47. Plaintiff was an “employee” as defined by FMLA Statute, 29 U.S.C. §2611(2) in 2003.
48. Plaintiff tried to comply with Mr. Adriaanse’s instructions to be physically present at the hospital between the hours of 8 a.m. and 5 p.m.
49. However, Plaintiff’s physical handicap deteriorated to the point that she could not comply with Mr. Adriaanse’s instructions and she needed back surgery.
50. On May 7, 2003, Plaintiff requested and Defendant granted Plaintiff 480 hours of FMLA leave which she could use intermittently.
51. Plaintiff used this FMLA leave intermittently.
52. On June 10, 2003, Plaintiff spoke with Defendant’s then Chief Executive Officer, Duncan Moore, regarding Mr. Adriaanse’s actions.
53. Plaintiff told Mr. Moore about Mr. Adriaanse’s refusal to accommodate her handicap.
54. Plaintiff also told Mr. Moore about Mr. Adriaanse’s hostile treatment of her.
55. On June 11, 2003, Mr. Moore called Plaintiff and told her that if she resigned effective July 31, 2003, Defendant would agree to cover her health insurance premiums for one year.
56. On June 26, 2003, Mr. Adriaanse handed Plaintiff a memorandum memorializing Mr. Moore’s proposal. See Exhibit B.
57. On July 7, 2003, Plaintiff submitted a letter of resignation per Mr. Moore’s memorandum. See Exhibit C.
58. On July 14, 2003, Mr. Adriaanse handed Plaintiff a multi-paged General Release Agreement.
59. Mr. Adriaanse told Plaintiff that if she did not sign the General Release Agreement, she would not get the one-year’s worth of health coverage promised to her before she submitted her July 7, 2003, letter of resignation.
60. Plaintiff had never heard of or seen this General Release Agreement before Mr. Adriaanse handed it to her on July 14, 2003.
61. The General Release Agreement contained terms and conditions that neither Mr. Moore or Mr. Adriaanse had ever discussed or raised with Plaintiff before she submitted her July 7, 2003, resignation.
62. On July 29, 2003, Plaintiff sent Mr. Adriaanse an e-mail telling him that she was not going to sign the General Release Agreement, she was rescinding her resignation, and she wanted to keep using the FMLA leave that the Defendant granted her on May 7, 2003.
63. On July 30, 2003, Mr. Adriaanse sent Plaintiff a terse e-mail telling her that her resignation was accepted and would not be rescinded.
64. Defendant refused to let Plaintiff continue using the FMLA leave it had granted her on May 7, 2003, and terminated Plaintiff’s employment.
65. Defendant left Plaintiff without health insurance.
66. Plaintiff was forced to bear the insurance premiums, costs and medical bills for the treatment of her handicap.
67. Defendant’s actions have caused Plaintiff severe financial hardship.
68. Defendant’s actions were intentional, malicious and willful.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including, without limitation:
A. Judgment for all wages, salary, employment benefits and other compensation denied or lost by Plaintiff by reason of Defendant’s violation of the FMLA;
B. Interest;
C. An additional amount as liquidated damages;
D. Reinstatement; and
E. An award of reasonable attorney’s fees and all costs incurred herein.
COUNT VI
BREACH OF CONTRACT
69. Plaintiff realleges and incorporates paragraphs 2 through 30, 32 through 35, 37 through 38, 40 through 44, and 46 through 68 above as though fully set forth herein.
70. This is a claim for breach of contract.
71. On June 26, 2003, Mr. Adriaanse handed Plaintiff a memorandum memorializing Mr. Moore’s proposal. See Exhibit B.
72. Mr. Moore’s proposal said that Plaintiff would receive $6,950 for health insurance, if she submitted her resignation by July 31, 2003.
73. On July 7, 2003, Plaintiff accepted Mr. Moore’s proposal and submitted her letter of resignation per his proposal. See Exhibit C.
74. Plaintiff and Defendant entered into a binding contract whereby Plaintiff agreed to submit a letter of resignation by July 31, 2003, and in exchange Defendant agreed to tender $6,950 to Plaintiff.
75. However, Defendant has never tendered to Plaintiff the $6,950.
76. Defendant left Plaintiff without health insurance after her July 31, 2003, separation.
77. Plaintiff was forced to bear the insurance premiums, costs and medical bills for the treatment of her handicap.
78. Defendant’s actions have caused Plaintiff severe financial hardship.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, Tallahassee Memorial HealthCare, Inc., for all damages to which she may be entitled, including, without limitation:
A. Judgment for $6,950;
B. Interest;
C. Consequential damages; and
D. Reinstatement.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED: This 28th day of December, 2004.
Allen & Trent, P.A.
_________________________
Wayne L. Allen, Esquire
Florida Bar No. 110025
Adrienne E. Trent, Esquire
Florida Bar No. 0060119
Daniel A. Perez, Esquire
Florida Bar No. 426903
Attorneys for Plaintiff
700 N. Wickham Road, Suite 107
Melbourne, Florida 32935
Phone: (321) 254-7550
Fax: (321) 242-1681
