Violation of the Family and Medical Leave Act in State Court.
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA
TERESIA GILMORE,
Plaintiff,
vs. Case No:
METZ AND ASSOCIATES, LTD.,
Defendant.
_____________________________________/
AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, TERESIA GILMORE, by and through her undersigned counsel, sues Defendant, METZ AND ASSOCIATES, LTD., (hereinafter called “Defendant”), 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
Brevard County, Florida.
3. Plaintiff is and has been a resident of Brevard County, Florida, at all times material herein.
4. This is an action brought pursuant to the Family and Medical Leave Act (FMLA), 29 U.S.C. Sections 2601 to 2654, to obtain relief for violation of medical leave rights guaranteed by the FMLA.
5. Plaintiff was an “employee” as defined by FMLA Statute, 29 U.S.C. §2611(2)(i) & (ii), from November 1, 2006 through October 22, 2008.
6. Plaintiff was employed by Defendant in excess of twelve (12) months and for at least 1250 hours over the twelve (12) months prior to her termination.
7. Defendant, Metz and Associates, Ltd., is a Pennsylvania corporation, doing business in the State of Florida.
8. At all times material hereto, Defendant was doing business in Brevard County, Florida.
9. Plaintiff worked at The Devereux School location as a cafeteria cook from November 1, 2006 until October 22, 2008.
10. On or about July 29, 2008, the Plaintiff informed Defendant that she would need to undergo back/spine surgery to correct her Lumber Disc Radiculopathy condition on or about August 27, 2008.
11. Plaintiff was informed that she was eligible for FMLA leave through Metz and Associates, Ltd.
12. Defendant, Metz and Associates, Ltd., approved the FMLA leave.
13. Plaintiff exercised her FMLA rights and on or about September 9, 2008 was told by her physician that she could return to work. Plaintiff met with Defendant and provided her light duty release form from her Doctor. Defendant asked Plaintiff to provide another light duty release specifying her weight restrictions.
14. On or about September 12, 2008, Plaintiff submitted the new doctor light duty release to Defendant (Mr. Viti) containing a ten pound weight restriction. Without explanation Defendant refused to allow Plaintiff to return to work and made no additional requirements or gave any further notices to Plaintiff.
15. Despite having communicated the fact that she could return to work to the Defendant, Plaintiff was not placed back on the schedule and was otherwise refused to return to work.
16. On or about October 22, 2008, Plaintiff was terminated from her employment.
17. Defendant blatantly disregarded 29 U.S.C. §2615 in direct violation of Congress’ Family and Medical Leave Act of 1993 and terminated Plaintiff wrongfully by not allowing Plaintiff to return to work prior to her exhaustion of her FMLA.
18. The Defendant’s actions against the Plaintiff in violation of the FMLA were done wantonly, maliciously, willfully and with the intent to do harm to Plaintiff.
19. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
20. Plaintiff has exhausted her administrative remedies prior to bringing this action.
21. Plaintiff has complied with all conditions precedent prior to bringing this action.
22. At all times during her employment with Defendant, Plaintiff performed all duties assigned to her in a professionally competent manner.
23. Plaintiff has suffered and continues to suffer grave and severe damage to her financial welfare, by reason of Defendant’s unlawful actions against the Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, as follows:
A. Judgment for all wages, salary, employment benefits and other compensation denied or lost Plaintiff by reason of Defendant’s violation of the FMLA;
B. Interest;
C. An additional amount as liquidated damages;
D. An award of reasonable attorney’s fees and all costs incurred herein;
E. Such other damages as may be just and proper.
COUNT II
EQUITABLE ESTOPPEL
24. Plaintiff realleges and incorporates Paragraphs 1 through 23 of this Complaint as if set forth in full herein.
25. Defendant, misrepresented to the Plaintiff that she was allowed to take FMLA. Defendant informed the Plaintiff that she could take the leave. As a result, Defendant must be estopped from challenging the Plaintiff’s eligibility for FMLA leave.
26. Plaintiff reasonably relied on the Defendant’s misrepresentation that she was eligible for FMLA. The Defendant, informed the Plaintiff that she could take the leave requested.
27. Plaintiff had no knowledge of the specific requirements necessary for an individual to qualify for leave under the FMLA. Further, Plaintiff did not possess any knowledge regarding the requirements set forward by the FMLA regarding the required number of employees at the employee’s worksite.
28. In fact, upon Plaintiff making the decision to take the FMLA leave that Defendant stated she was entitled to, Plaintiff fully relied upon the representations made by Defendant.
29. If Plaintiff had known at the time of her surgery that her request for FMLA leave would not be approved because Defendant did not qualify as an employer under the Act, Plaintiff would have sought out other alternatives that would have allowed her to take care of her condition without the need for FMLA leave.
30. Plaintiff was harmed by her reliance of the Defendant’s misrepresentations in that she was terminated from her position during the time in which she understood she was on protected FMLA leave.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED this _____day of August, 2010.
ARCADIER & ASSOCIATES, P.A.
_______________________
Mauricio Arcadier, Esquire
Board Certified, Labor and Employment Law
Florida Bar No. 131180
Attorneys for Plaintiff
2815 W. New Haven Ave., Ste. 304
W. Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075
