IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
ELAINE BARKER,
DANIELLE THIBEAULT, &
REBECCA ZAVALETA,
Plaintiffs, CASE No:
v.
AVANTE GROUP NURSING &
REHAB CENTERS, INC.,
Defendant.
___________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
JURISDICTION AND VENUE
Plaintiffs, Elaine Barker, Danielle Thibeault, and Rebecca Zavaleta, by and through undersigned counsel, sue Defendant Avante Group & Rehab Centers, Inc. (hereinafter “Defendant” or “Avante”), and allege as follows:
1. Plaintiffs bring this action for damages in excess of $15,000, respectively.
2. The unlawful employment practices alleged below were committed within Brevard County, Florida.
PARTIES
3. Plaintiff, Elaine Barker, is a female, who at all times relevant to this action, resided in Brevard County, Florida. Ms. Barker is now a resident of the State of Kentucky.
4. Plaintiff, Danielle Thibeault, is a female who resides and at all times relevant to this action resided in Brevard County, Florida.
5. Plaintiff, Rebecca Zavaleta, is a female who resides and at all times relevant to this action resided in Brevard County, Florida.
6. Defendant, Avante Group & Rehab Centers, Inc., is a Florida corporation, and at all times material herein was registered and doing business in the State of Florida.
7. At all times material hereto, Plaintiffs worked at Avante’s Melbourne, Florida rehabilitation center.
STATEMENT OF CLAIMS: ELAINE BARKER
8. Plaintiff Barker has retained the undersigned attorney and agreed to pay him a reasonable fee.
9. Plaintiff Barker has exhausted her administrative remedies prior to bringing this action.
10. Plaintiff Barker has complied with all conditions precedent prior to bringing this action.
11. Plaintiff Barker realleges and incorporates paragraphs 1 through 3 and 6 and 7 of this Complaint as if set forth in full herein.
12. This action is brought pursuant to the Florida Civil Rights Act of 1992, Section 760.10, Florida Statutes.
13. On March 16, 2005, Plaintiff Barker filed a claim with the Florida Commission on Human Relations 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”.
14. Plaintiff Barker worked for Defendant as a Speech and Language Pathologist at its Melbourne, Florida rehabilitation facility.
15. During her tenure with Defendant, Plaintiff Barker received outstanding performance evaluations and was nominated for Employee of the Month.
16. In or about November 2003, Marcelino “Joey” Morales became Rehabilitation Manager and Plaintiff Barker’s immediate supervisor.
17. Mr. Morales harassed Plaintiff Barker by contaminating the workplace on almost a daily basis with lewd and unsolicited, sexually explicit banter.
18. Mr. Morales routinely detailed in Plaintiff Barker’s presence his sexual fantasies.
19. Mr. Morales routinely contaminated the workplace with sexually explicit jokes in Plaintiff Barker’s presence.
20. Mr. Morales routinely contaminated the workplace by graphically criticizing Defendant’s officers and executives as sodomites and by graphically detailing their alleged homosexual behavior.
21. On at least two (2) occasions, Mr. Morales made reference to Plaintiff Barker about her physical relationship with her husband.
22. In or about October 2004, Mr. Morales paraded around the workplace a sexual toy describing how he intended to use the device.
23. For Christmas 2004, Mr. Morales bought and handed out to his subordinate female employees, including Plaintiff Barker, a penis-shaped lollipop while urging them to lick the candy.
24. Plaintiff Barker informed Mr. Morales on at least three (3) occasions that his sexual banter offended her and that she wanted it to stop. Each time, Mr. Morales responded to Plaintiff Barker by telling her words to the effect that she should loosen up or that talking about sex and encouraging his subordinates to do the same brought them together as a family.
25. In February 2005, Plaintiffs Barker, Thibeault, and Zavaleta complained about Mr. Morales’ sexual harassment through Defendant’s sexual harassment hotline.
26. Defendant’s management failed and refused to take prompt and appropriate remedial action after the Plaintiffs reported that they were the victims of sexual harassment.
27. After Plaintiff Barker lodged her complaint, Mr. Morales bragged to Plaintiff Barker and her coworkers that Defendant had absolved him of all wrongdoing and was standing behind him one hundred percent.
28. Mr. Morales and Defendant’s management subsequently created a hostile work environment for Plaintiff Barker after she complained of the sexual harassment.
29. The hostile work environment consisted of, but was not limited to: Mr. Morales changing Plaintiff Barker’s duties, responsibilities, and work schedule as well as the department’s leave policy, dress code policy, clocking in and out policies, eating in the workplace policy, and student extern policy. In addition, Defendant subjected Plaintiff Barker’s work to greater scrutiny after she complained of sexual harassment. Mr. Morales reduced Plaintiff Barker’s work hours.
30. Coworkers in league with Mr. Morales and who welcomed his sexually explicit banter openly blamed, ridiculed, and criticized Plaintiffs Barker, Thibeault, and Zavaleta for Mr. Morales’ departmental policy changes and for reporting him to Defendant’s sexual harassment hotline.
31. Mr. Morales’ policy changes were retaliatory because he did not enforce compliance with the policy changes on employees who welcomed his behavior and did not complain about his acts of sexual harassment.
32. Plaintiff Barker reported to management Mr. Morales’s policy changes as retaliatory. Specifically, Plaintiff Barker reported her complaints of retaliation to Administrator, Carole Sultan, and to Human Resources Officer, Lisa Williams. However, Defendant dismissed Plaintiff Barker’s complaints as trivial and failed to take prompt remedial action.
33. On July 29, 2005, Plaintiff Barker received an unwarranted and retaliatory written reprimand.
34. On August 1, 2005, Plaintiff Barker received a second unwarranted and retaliatory written reprimand.
35. On August 4, 2005, Plaintiff received a third unwarranted written reprimand and Defendant terminated Plaintiff from employment in retaliation for her protected EEO activity.
36. Plaintiff did not encourage, welcome or consent to the harassment described in this Complaint.
37. As a result of the sexual harassment and retaliation described above, Plaintiff Barker has suffered mental anguish, stress, anxiety, and embarrassment. Plaintiff Barker has had to seek medical treatment for chest pains, irregular heart palpitations, anxiety and depression because of the sexual harassment and retaliation that she has experienced.
PLAINTIFF BARKER COUNT I: HOSTILE WORK ENVIRONMENT BECAUSE OF SEX AND PROTECTED EEO ACTIVITY
38. Plaintiff Barker realleges and incorporates paragraphs 8 through 37 of this complaint as if set forth in full herein.
39. From November 2003 through August 2005, Plaintiff Barker was subjected to a hostile work environment because of sex and, subsequently, after February 2005, because of sex and her protected EEO activity.
40. Defendant failed to take prompt remedial action in response to Plaintiff Barker’s complaints regarding the sexual harassment, hostile work environment, and the retaliation to which she was subjected.
41. The acts alleged in this Complaint constitute a violation of Section 760.10(7), Florida Statutes, “it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Barker prays for judgment against Defendant for all damages to which she may be entitled, including, without limitation:
A. Back pay plus interest.
B. Front pay.
C. Compensatory damages for loss of dignity and mental anguish.
D. Punitive damages.
E. Reasonable attorney fees and costs of this action.
F. All other relief that is just and equitable under the law.
PLAINTIFF BARKER COUNT II: DISCRIMINATORY DISCHARGE
42. Plaintiff Barker realleges and incorporates paragraphs 8 through 37 of this complaint as if set forth in full herein.
43. On August 4, 2005, Defendant discharged Plaintiff Barker from employment because of sex and her protected EEO activity.
44. The acts alleged in this Complaint constitute a violation of Section 760.10(7), Florida Statutes, “it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Barker prays for judgment against Defendant for all damages to which she may be entitled, including, without limitation:
A. Back pay plus interest.
B. Front pay.
C. Compensatory damages for loss of dignity and mental anguish.
D. Punitive damages.
E. Reasonable attorney fees and costs of this action.
F. All other relief that is just and equitable under the law.
STATEMENT OF CLAIMS: DANIELLE THIBEAULT
45. Plaintiff Thibeault has retained the undersigned attorney and agreed to pay him a reasonable fee.
46. Plaintiff Thibeault has exhausted her administrative remedies prior to bringing this action.
47. Plaintiff Thibeault has complied with all conditions precedent prior to bringing this action.
48. Plaintiff Thibeault realleges and incorporates paragraphs 1, 2, 4, 6, and 7 of this Complaint as if set forth in full herein.
49. This action is brought pursuant to the Florida Civil Rights Act of 1992, Section 760.10, Florida Statutes.
50. On March 16, 2005, Plaintiff Thibeault filed a claim with the Florida Commission on Human Relations 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 “B”.
51. Plaintiff Thibeault worked for Defendant as an Occupational Therapist at its Melbourne, Florida rehabilitation facility.
52. During her tenure with Defendant, Plaintiff Thibeault received outstanding performance evaluations.
53. In or about 2003, Plaintiff Thibeault became Supervisory Occupational Therapist.
54. In or about November 2003, Mr. Morales became Plaintiff Thibeault’s immediate supervisor.
55. Mr. Morales harassed Plaintiff Thibeault by contaminating the workplace on almost a daily basis with lewd and unsolicited, sexually explicit banter.
56. Mr. Morales routinely contaminated the workplace with sexually explicit jokes in Plaintiff Thibeault’s presence.
57. Mr. Morales routinely contaminated the workplace by graphically criticizing Defendant’s officers and executives as sodomites and by graphically detailing at work their alleged homosexual behavior.
58. Plaintiff Thibeault informed Mr. Morales that his sexual banter offended her and her student intern and that they wanted it to stop. However, Mr. Morales did not change his behavior.
59. In February 2005, Plaintiffs Barker, Thibeault, and Zavaleta complained about Mr. Morales’ sexual harassment through Defendant’s sexual harassment hotline.
60. Defendant’s management failed and refused to take prompt and appropriate remedial action after the Plaintiffs reported that they were the victims of sexual harassment.
61. After Plaintiff Thibeault lodged her complaint, Mr. Morales openly bragged to Plaintiff Thibeault and her coworkers that Defendant had absolved him of all wrongdoing and was standing behind him one hundred percent.
62. Mr. Morales and Defendant’s management subsequently created a hostile work environment for Plaintiff Thibeault after she complained of the sexual harassment.
63. The hostile work environment consisted of, but was not limited to: Mr. Morales drastically changing Plaintiff Thibeault’s duties and responsibilities as well as the department’s leave policy, dress code policy, clocking in and out policies, eating in the workplace policy, and student extern policy. In addition, Defendant subjected Plaintiff Thibeault’s work to greater scrutiny after she complained of sexual harassment.
64. Coworkers in league with Mr. Morales and who welcomed his sexually explicit banter openly blamed, ridiculed, and criticized Plaintiffs Barker, Thibeault, and Zavaleta for Mr. Morales’ departmental policy changes and for reporting him to Defendant’s sexual harassment hotline.
65. Mr. Morales’ policy changes were retaliatory because he did not enforce compliance with the policy changes on employees who welcomed his behavior and did not complain about his acts of sexual harassment.
66. Plaintiff Thibeault reported to management Mr. Morales’s policy changes as retaliatory. Specifically, Plaintiff Thibeault reported her complaints of retaliation to the Administrator, Carole Sultan, and Human Resources Officer, Lisa Williams. However, Defendant dismissed Plaintiff Thibeault’s complaints as trivial and, again, failed to take prompt remedial action.
67. In March 2005, Mr. Morales informed Ms. Thibeault that she was no longer the Occupation Therapist Supervisor.
68. Plaintiff did not encourage, welcome or consent to the harassment described in this Complaint.
69. As a result of the sexual harassment and retaliation described above, Plaintiff Thibeault has suffered mental anguish, stress, anxiety, and embarrassment. Plaintiff Thibeault has had to seek medical treatment for insomnia, depression, and gastro-intestinal discomfort resulting from Defendant’s actions.
PLAINTIFF THIBEAULT COUNT III: HOSTILE WORK ENVIRONMENT BECAUSE OF SEX AND PROTECTED EEO ACTIVITY
70. Plaintiff Thibeault realleges and incorporates paragraphs 45 through 69 of this complaint as if set forth in full herein.
71. From November 2003 through the present, Plaintiff Thibeault has been subjected to a hostile work environment because of sex and, subsequently, after February 2005, because of sex and her protected EEO activity.
72. Defendant failed to take prompt remedial action in response to Plaintiff Thibeault’s complaints regarding the sexual harassment, hostile work environment, and the retaliation to which she was subjected.
73. The acts alleged in this Complaint constitute a violation of Section 760.10(7), Florida Statutes, “it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Thibeault prays for judgment against Defendant for all damages to which she may be entitled, including, without limitation:
A. Compensatory damages for loss of dignity and mental anguish.
B. Punitive damages.
C. Reasonable attorney fees and costs of this action.
D. All other relief that is just and equitable under the law.
PLAINTIFF THIBEAULT COUNT IV: DISCRIMINATORY DEMOTION
74. Plaintiff Thibeault realleges and incorporates paragraphs 46 through 69 of this complaint as if set forth in full herein.
75. In March 2005, Defendant demoted Plaintiff Thibeault from employment because of sex and her protected EEO activity by taking away her title as Occupational Therapy Supervisor and removing her duties as such.
76. The acts alleged in this Complaint constitute a violation of Section 760.10(7), Florida Statutes, “it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Thibeault prays for judgment against Defendant for all damages to which she may be entitled, including, without limitation:
A. Compensatory damages for loss of dignity and mental anguish.
B. Punitive damages.
C. Reasonable attorney fees and costs of this action.
D. All other relief that is just and equitable under the law.
STATEMENT OF CLAIMS: REBECCA ZAVALETA
77. Plaintiff Zavaleta has retained the undersigned attorney and agreed to pay him a reasonable fee.
78. Plaintiff Zavaleta has exhausted her administrative remedies prior to bringing this action.
79. Plaintiff Zavaleta has complied with all conditions precedent prior to bringing this action.
80. Plaintiff Zavaleta realleges and incorporates paragraphs 1, 2, 5 through 7 of this Complaint as if set forth in full herein.
81. This action is brought pursuant to the Florida Civil Rights Act of 1992, Section 760.10, Florida Statutes.
82. On March 16, 2005, Plaintiff Zavaleta filed a claim with the Florida Commission on Human Relations 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 “C”.
83. Plaintiff Zavaleta worked for Defendant as a Speech and Language Pathologist at its Melbourne, Florida rehabilitation facility.
84. During her tenure with Defendant, Plaintiff Zavaleta received outstanding performance evaluations.
85. In or about November 2003, Mr. Morales became Plaintiff Zavaleta’s immediate supervisor.
86. Mr. Morales harassed Plaintiff Zavaleta by contaminating the workplace on almost a daily basis with lewd and unsolicited, sexually explicit banter.
87. Mr. Morales routinely contaminated the workplace with sexually explicit jokes in Plaintiff Zavaleta’s presence.
88. Mr. Morales routinely contaminated the workplace by graphically criticizing Defendant’s officers and executives as sodomites and by graphically detailing at work their alleged homosexual behavior.
89. For example, Mr. Morales detailed in Plaintiff Zavaleta’s presence, in a graphic manner, his sexual exploits with his partners.
90. Mr. Morales routinely detailed in Plaintiff Zavaleta’s presence his sexual fantasies.
91. On almost a weekly basis, Mr. Morales would remark to Ms. Zavaleta that he was physically attracted to her or wanted to have an affair.
92. At a performance evaluation review held in mid-2004 in which Human Resources Officer Williams was present, Mr. Morales repeatedly told Ms. Zavaleta that he found her physically attractive while Ms. Williams covered her ears pretending not to hear Mr. Morales’ remarks.
93. For Christmas 2004, Mr. Morales bought and handed out to his subordinate female employees, including Plaintiff Zavaleta, a penis-shaped lollipop while urging them to lick the candy.
94. Plaintiff Zavaleta informed Mr. Morales that his sexual banter offended her and that she wanted it to stop. However, Mr. Morales responded by saying that talking about sex and encouraging his subordinates to do the same was his way of making employees closer as a family.
95. In February 2005, Plaintiffs Barker, Thibeault, and Zavaleta complained about Mr. Morales’ sexual harassment through Defendant’s sexual harassment hotline.
96. Defendant’s management failed and refused to take prompt and appropriate remedial action after the Plaintiffs reported that they were the victims of sexual harassment.
97. After Plaintiff Zavaleta lodged her complaint, Mr. Morales openly bragged to Plaintiff Zavaleta and her coworkers that Defendant had absolved him of all wrongdoing and was standing behind him one hundred percent.
98. Mr. Morales and Defendant’s management subsequently created a hostile work environment for Plaintiff Zavaleta after she complained of the sexual harassment.
99. The hostile work environment consisted of, but was not limited to: Mr. Morales changing Plaintiff Zavaleta’s duties, responsibilities, and work schedule as well as the department’s leave policy, dress code policy, clocking in and out policies, eating in the workplace policy, and student extern policy. In addition, Defendant subjected Plaintiff Zavaleta’s work to greater scrutiny after she complained of sexual harassment. Mr. Morales cut Plaintiff Zavaleta’s hours. Mr. Morales split Plaintiff Zavaleta’s caseload with a newly hired male Speech and Language Pathologist.
100. Coworkers in league with Mr. Morales and who welcomed his sexually explicit banter openly blamed, ridiculed, and criticized Plaintiffs Barker, Thibeault, and Zavaleta for Mr. Morales’ departmental policy changes and for reporting him to Defendant’s sexual harassment hotline.
101. Mr. Morales’ policy changes were retaliatory because he did not enforce compliance with the policy changes on employees who welcomed his behavior and did not complain about his acts of sexual harassment.
102. Plaintiff Zavaleta reported to management Mr. Morales’s policy changes as retaliatory. Specifically, Plaintiff Zavaleta reported her complaints of retaliation to the Administrator, Carole Sultan, and Human Resources Officer, Lisa Williams. However, Defendant dismissed Plaintiff Zavaleta’s complaints as trivial and, again, failed to take prompt remedial action.
103. On August 1, 2005, Plaintiff Zavaleta received an unwarranted and retaliatory written reprimand.
104. Plaintiff did not encourage, welcome or consent to the harassment described in this Complaint.
105. As a result of the sexual harassment and retaliation described above, Plaintiff Zavaleta has suffered mental anguish, stress, anxiety, and embarrassment. Plaintiff Zavaleta has had to seek medical treatment for chest discomfort and irregular heart palpitations resulting from Defendant’s actions.
PLAINTIFF ZAVALETA COUNT V: HOSTILE WORK ENVIRONMENT BECAUSE OF SEX AND PROTECTED EEO ACTIVITY
106. Plaintiff Zavaleta realleges and incorporates paragraphs 77 through 105 of this complaint as if set forth in full herein.
107. From November 2003 through the present, Plaintiff Zavaleta has been subjected to a hostile work environment because of sex and, subsequently, after February 2005, because of sex and her protected EEO activity.
108. Defendant failed to take prompt remedial action in response to Plaintiff Zavaleta’s complaints regarding the sexual harassment, hostile work environment, and the retaliation to which she was subjected.
109. The acts alleged in this Complaint constitute a violation of Section 760.10(7), Florida Statutes, “it is an unlawful employment practice for an employer to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted in any manner in an investigation, proceeding or hearing under this section.”
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Zavaleta prays for judgment against Defendant for all damages to which she may be entitled, including, without limitation:
A. Back pay plus interest.
B. Front pay.
C. Compensatory damages for loss of dignity and mental anguish.
D. Punitive damages.
E. Reasonable attorney fees and costs of this action.
F. All other relief that is just and equitable under the law.
DEMAND FOR JURY TRIAL
Plaintiffs demand a jury trial on all issues herein triable by jury.
DATED this 11th day of January 2006.
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. 0426903
Attorneys for Plaintiff
700 N. Wickham Road, Suite 107
Melbourne, Florida 32935
Phone: (321) 254-7550
Fax: (321) 242-1681
