IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA
Ty Damon,
Plaintiff,
vs. CASE NO.
FPL Group, Inc.,
Defendant.
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COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, TY DAMON, by and through his undersigned attorney, sues Defendant, FPL Group, Inc. (hereinafter called Defendant and/or FPL), and alleges as follows:
JURISDICTION AND PARTIES
1. This is an action for damages that exceed $15,000.00, exclusive of costs, interest, and attorney’s fees.
2. The unlawful employment practices alleged below were committed within St. Lucie County, Florida.
3. Defendant, at the time of the acts complained of herein, was an employer in the State of Florida, which employed fifteen (15) or more persons.
4. Plaintiff worked for Defendant as a nuclear mechanic/welder, starting in 1980.
5. During the course of Plaintiff’s employment with FPL, Plaintiff on or about January 2, 1996 suffered an injury to his spinal cord. Despite this injury, Plaintiff continued working.
6. Plaintiff filed for and received workers compensation benefits as a result of his sustaining the on the job injury to cover his medical expenses.
7. Plaintiff, on or about July 31, 2000 was required to undergo surgery because of a deteriorated condition to his spinal cord arising out of his January 2, 1996 accident. Plaintiff was absent from work until he was released by his doctor to return to work on or about October 23, 2000. During his absence from work, Plaintiff was recovering from his work related injury and surgery. Based upon his physician’s diagnoses and medical recommendations, Plaintiff was medically released to return to work, with certain restrictions, and presented himself to recommence work with Defendant on October 23, 2000.
8. Despite Plaintiff’s medical release to return to work and his being willing and able to return to work, and despite a position as nuclear mechanic/welder being available, Defendant failed and refused to allow Plaintiff to return to work.
9. Plaintiff at all times after October 23, 2000 was able to perform the essential functions of his job as a nuclear mechanic/welder, with or without reasonable accommodation.
10. Defendant had a history and policy of allowing injured or ill and recovering employees to work on an interim basis in other “light duty” positions, if they could not fully perform the essential functions of the job they held prior to their injury or illness.
11. Defendant failed and refused to allow Plaintiff to return to work: (1) as a nuclear mechanic/welder, or (2) in other positions available as a planner, weld engineer and training welders, or (3) in a light duty position. These were positions available which Plaintiff could have performed and there were also light duty positions available.
12. After failing and refusing to allow Plaintiff to return to work, Defendant on July 18, 2001 placed Plaintiff on a 45 day notice requiring Plaintiff to find another position.
13. Defendant, 47 days later, reinstated Plaintiff to an employed status on September 27, 2001 in his former nuclear mechanic/welder position.
14. After his reinstatement by Defendant on September 27, 2001 Plaintiff was able to perform and has performed all the essential requirements of his job as a full time nuclear mechanic/welder employed by Defendant, with or without reasonable accommodation.
15. During the time period from October 23, 2000 until September 27, 2001 when he was returned to work, Plaintiff sustained extensive mental anguish and emotional distress because Defendant refused to reinstate Plaintiff to an employment position and also because Plaintiff was under the threat of being terminated.
16. Plaintiff has a strong work ethic, he had worked all of his adult life. It was devastating to him to be unable to return to work, since he knew he could perform the requirements of his job as a nuclear mechanic/welder, and also to be under the threat of termination after forty-five (45) days from July 18, 2001.
17. At all times during his employment with Defendant, Plaintiff performed all duties assigned to him in a professionally competent manner.
18. Plaintiff has suffered and continues to suffer grave and severe damage to his financial welfare by reason of Defendant’s discriminatory actions against Plaintiff.
19. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
20. Plaintiff has exhausted his administrative remedies prior to bringing this action.
21. Plaintiff has complied with all conditions precedent prior to bringing this action.
COUNT I
VIOLATION OF SECTION 760.10, FLORIDA STATUTES
PERCEIVED HANDICAP DISCRIMINATION
22. Plaintiff realleges and incorporates paragraphs 1 through 21 of this Complaint as if set forth in full herein.
23. This action is brought pursuant to Section 760.10, Florida Statutes, the Florida Civil Rights Act.
24. Plaintiff’s charge of discrimination was filed with the Florida Commission on Human Relations, and more than one hundred eighty (180) days have expired since the filing of said complaint. The FCHR has not entered a determination on Plaintiff’s claim.
25. Defendant perceived Plaintiff as handicapped and refused to reinstate Plaintiff to his position as a nuclear mechanic/welder or to other available positions which Plaintiff could perform, including light duty positions which were available. The Defendant regarded Plaintiff as handicapped under the Florida Civil Rights Act and unable to perform a major life activity, such as working.
26. In spite of his medical restrictions, Plaintiff was able to perform all of the essential functions of his position, with or without accommodation, as a nuclear mechanic/welder and other available light duty positions.
27. The actions of Defendant, FPL, constitute discrimination against Plaintiff based upon a perceived handicap and in so discriminating against Plaintiff, FPL violated Section 760.10, Florida Statutes, which makes it unlawful “to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s handicap.”
28. The conduct of FPL as complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminated against due to his being perceived as handicapped.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries;
C. Punitive damages;
D. An award of reasonable attorney fees and all costs incurred herein;
E. Such other damages and relief as may be just and proper.
COUNT II
VIOLATION OF SECTION 760.10, FLORIDA STATUTES
HANDICAP DISCRIMINATION
29. Plaintiff realleges and incorporates paragraphs 1 through 21, 23 and 24 of this Complaint as if set forth in full herein.
30. Plaintiff as a result of his on the job injury and surgery sustained permanent injury to his spinal cord. This Injury resulted in Plaintiff being unable to perform one or more major life activities and he is a handicapped person under Chapter 760, Florida Statutes, the Florida Civil Rights Act.
31. Defendant had knowledge that Plaintiff was a handicapped person.
32. Although he was a handicapped person, Plaintiff maintained during the time period when Defendant refused to allow him to work that he could perform the essential functions of his job, with or without accommodation.
33. Defendant from October 23, 2000 until September 27, 2001 failed and refused to allow Plaintiff to return to work, even though Plaintiff at all times during this period was able to perform the essential functions of his job as a nuclear mechanic/welder, with or without accommodation, and further failed and refused to allow Plaintiff to be employed in other positions which Plaintiff could perform, including light duty positions, which were available.
34. The actions of Defendant, FPL, constitute discrimination against Plaintiff based upon his being a person with a handicap and in so discriminating against Plaintiff, FPL violated Section 760.10, Florida Statutes, which makes it unlawful “to discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s handicap.”
35. The conduct of FPL as complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminated against due to his handicap.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries;
C. Punitive damages;
D. An award of reasonable attorney fees and all costs incurred herein;
E. Such other damages and relief as may be just and proper.
COUNT III
VIOLATION OF SECTION 760.10, FLORIDA STATUTES
RETALIATION
36. Plaintiff realleges and incorporates paragraphs 1 through 21, 23 through 28, and 30 through 33 of this Complaint as if set forth in full herein.
37. This action is brought pursuant to Section 760.10, Florida Statutes, the Florida Civil Rights Act, which makes it unlawful to retaliate against an employee for asserting his rights under Chapter 760, Florida Statutes.
38. Defendant, FPL, once it learned that Plaintiff filed a charge of discrimination retaliated against Plaintiff by failing and refusing to reinstate Plaintiff either to a position as nuclear mechanic/welder, or to a light duty position as was its custom and policy in regard to other employees whom it perceived as disabled or whom were disabled.
39. Plaintiff was ready, willing and able to commence work either in the position of nuclear mechanic/welder or in a light duty position, for which he was qualified and which were available, but was not permitted to return to work by Defendant in retaliation for Plaintiff having filed a charge of discrimination with the Florida Commission on Human Relations, pursuant to Chapter 760, Florida Statutes.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for:
A. An Order prohibiting the discriminatory practice and providing affirmative relief from the effects of the practice;
B. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been retaliated against;
C. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries;
D. Punitive damages;
E. An award of reasonable attorney fees and all costs incurred herein;
F. Such other damages and relief as may be just and proper.
COUNT IV
VIOLATION OF SECTION 440.205, FLORIDA STATUTES
40. Plaintiff realleges and incorporates Paragraphs 1 through 21 of this Complaint as if set forth in full herein.
41. Plaintiff filed a workers’ compensation claim and received benefits provided under Defendant’s workers’ compensation coverage pursuant to Chapter 440, Florida Statutes, as a result of his on the job injury.
42. Defendant, its agents and/or employees, did wrongfully threaten to discharge, intimidate and coerce Plaintiff in violation of Section 440.205, Florida Statutes because Plaintiff filed for workers’ compensation benefits.
43. Defendant did wrongfully intimidate and coerce Plaintiff by failing and refusing to allow Plaintiff to return to work because Plaintiff filed for workers’ compensation benefits
44. As a direct and proximate result of said acts, Plaintiff suffered loss of employment, loss of income and loss of employment benefits, emotional distress and humiliation.
WHEREFORE, Plaintiff prays for judgment against Defendant, FPL Group, Inc., as follows:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, together with such other increases to which he would be entitled, had he not been discriminatorily discharged.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries.
C. Such other damages as may be just and proper.
______________________
Wayne L. Allen, Esquire
Attorney for Plaintiff
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED this 24th day of June, 2002.
Wayne L. Allen, Esquire
Florida Bar No. 110025
Adrienne E. Trent, Esquire
Florida Bar No. 0060119
WAYNE L. ALLEN & ASSOCIATES, P.A.
Attorneys for Plaintiff
700 N. Wickham Road, Suite 107
Melbourne, Florida 32935
Phone: (321) 254-7550
Fax: (321) 242-1681
Attorney: Mauricio Arcadier
Status: Closed
Date Filed: 06/24/2002
Our Melbourne office is centrally located in Brevard County, enabling our lawyers to serve clients throughout “the Space Coast”, including Cocoa Beach, Palm Bay and Vero Beach.
