IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA
JOHN MCCARTNEY,
Plaintiff,
v. Case No.: _______________________
QUALITY PONTIAC-GMC TRUCK, INC.,
Defendant.
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, JOHN MCCARTNEY, by and through his undersigned attorney, sues Defendant, QUALITY PONTIAC-GMC TRUCK, INC., and alleges as follows:
INTRODUCTION
1. This action is brought to obtain relief for discrimination committed by Defendant against Plaintiff on the basis of Plaintiff’s age pursuant to Chapter 760, Florida Statues (2003) and the Age Discrimination in Employment Act (ADEA) 29 U.S.C. 621-634.
2. This is also an action for violation of the Family and Medical Leave Act (“FMLA”) 29 U.S.C. 2601-2654 and for unpaid wages.
3. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00), exclusive of interest, costs and attorney fees.
VENUE
4. The unlawful practices alleged below were committed within Brevard County, Florida.
PARTIES
5. Plaintiff currently resides in Brevard County, Florida, and at all times material hereto resided in Brevard County, Florida.
6. Defendant, Quality Pontiac-GMC Truck, Inc., is a Florida corporation, registered and doing business in the State of Florida and is an “employer” as defined in the statutes under which this complaint is brought.
7. At all times material hereto, Defendant was doing business in Brevard County, Florida.
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. Plaintiff was employed by Defendant, Quality Pontiac-GMC Truck, Inc., on or about September 1999 in the position of Sales Manager.
10. At all times, Plaintiff performed all duties assigned to him in a professionally competent manner, faithfully followed all reasonable instructions given to him by his supervisors, and abided by all the rules and regulations of Defendant.
11. In August 2003, Plaintiff was diagnosed with a detached retina, which required immediate surgery on his eye. Plaintiff informed Defendant of his need to take time off for the surgery and to recover from the surgery. After the eye surgery, Plaintiff followed his doctor’s orders to stay home for ten days.
12. When Plaintiff returned to work in mid September 2003, he was told that he had to leave his position as Sales Manager and return to the floor as a Salesman or leave his employment with the Defendant. Plaintiff decided to accept a position in used car sales instead of leaving his employment with the Defendant.
13. Plaintiff worked as a used car salesman for the remainder of September 2003 and until January 2004.
14. A younger employee, who was approximately thirty-five years old, replaced Plaintiff in the position of Sales Manager.
15. Plaintiff was demoted from Sales Manager to Used Car Salesman when he was sixty-two years of age, having been born on July 10, 1942.
16. Shortly before Plaintiff was demoted from Sales Manager to Salesman, the General Manager told Plaintiff that he was getting old.
17. Plaintiff earned less compensation as a Salesman than he did as Sales Manager. As Sales Manager, Plaintiff’s compensation included a salary plus commission and a bonus. However, even though Plaintiff’s department exceeded goals while he was Sales Manager, he did not receive a bonus for 2003.
18. Plaintiff filed a formal Charge of Discrimination alleging age discrimination with the Florida Commission on Human Relations (FCHR) on July 12, 2004, (FCHR) file number 200422507 and more than one hundred eighty (180) days have expired since the filing of said Charge of Discrimination. A copy of said Charge of Discrimination is attached hereto and incorporated herein as Exhibit “A”.
19. On or about July 12, 2004, Plaintiff filed a charge alleging unlawful discrimination on the basis of age against Defendant with the Equal Employment Opportunity Commission (EEOC), as required by 29 USC Section 626(d), EEOC file number 150 200403717. A copy of Plaintiff’s EEOC complaint is attached hereto and incorporated herein as Exhibit “B”.
20. Plaintiff has been issued a Dismissal and Notice of Rights document; attached as Exhibit “C”, by the EEOC and less than ninety (90) days have expired since Plaintiff received Exhibit “C”.
21. Plaintiff has suffered and continues to suffer grave and severe damage to his financial welfare, and his employment prospects, by reason of Defendant’s discriminatory actions against Plaintiff.
22. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendant’s actions.
23. Plaintiff has retained the undersigned attorneys and agreed to pay a reasonable fee.
24. Plaintiff has exhausted his administrative remedies prior to bringing this action.
25. Plaintiff has complied with all conditions precedent prior to bringing this action.
COUNT I
AGE DISCRIMINATION UNDER THE FCRA
26. Plaintiff realleges and incorporates Paragraphs 1, 3 through 18 and 21 through 25 of this Complaint as if set forth in full herein.
27. This action is brought pursuant to Chapter 760, Florida Statutes, to obtain relief from age discrimination committed by Defendant against Plaintiff in violation of the Florida Civil Rights Act.
28. The demotion of Plaintiff from Sales Manager to Used Car Salesman was motivated by the intent of Defendant, to discriminate against Plaintiff on the basis of his age.
29. In demoting Plaintiff from Sales Manager to Used Car Salesman, the Defendant, discriminated against Plaintiff on the basis of his age.
30. In demoting Plaintiff, Defendant violated the provisions of Section 760.10(1)(a), Florida Statutes, 2000, which makes it unlawful for an employer “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 race, color, religion, sex, national origin, age, handicap, or marital status.”
31. As a result of the age discrimination perpetrated by Defendant against Plaintiff, Plaintiff has sustained lost income and suffered emotional damages in the form of mental anguish, emotional distress and loss of dignity.
32. Defendant, willingly, knowingly and intentionally discriminated against Plaintiff based on Plaintiff’s age.
WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
A. Judgment for his back pay, including all sums of money Plaintiff would have earned, had he not been discriminatorily demoted.
B. Compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries.
C. Front pay.
D. Punitive Damages.
E. An award of reasonable attorney fees and all costs incurred herein.
F. Such other damages as may be just and proper.
COUNT II
AGE DISCRIMINATION UNDER THE ADEA
33. Plaintiff realleges and incorporates Paragraphs 1, 3 through 17 and 19 through 25 of this Complaint as if set forth in full herein.
34. Jurisdiction of this action is founded upon 29 USC Sec. 626(b)(c); 29 USC Sec. 217; and 29 USC Sec. 216(b).
35. At all times material hereto, Defendant was engaged in an industry affecting commerce and had twenty (20) or more employees for each working day in each of twenty (20) or more calendar weeks in the then current or preceding calendar year. Said Defendant was and is therefore an employer within the meaning of Section 11(b) of the ADEA 29 USC Sec. 630(b).
36. The discharge of Plaintiff was motivated by the intent of Defendant to discriminate against Plaintiff on the basis of his age.
37. In demoting Plaintiff from Sales Manager to Sales Person, the Defendant, discriminated against Plaintiff on the basis of his age.
38. By demoting Plaintiff, Defendant violated the provisions of 29 USC Section 623(a)(1), which makes it unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
39. Proximately, directly and as a result of Defendant discriminating against Plaintiff on account of his age, Plaintiff has suffered damages consisting of loss of salary and other compensation.
40. The conduct of Defendant complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff and accordingly, Plaintiff is entitled to recover statutory liquidated damages from the Defendant.
WHEREFORE, Plaintiff prays that the court will:
A. Award Plaintiff all monetary damages to which he is entitled, including statutory liquidated damages.
B. Award Plaintiff a reasonable attorney’s fee and the costs of this action, to be taxed against Defendant.
C. Grant Plaintiff such other and further relief as the court may deem just and proper.
COUNT III
VIOLATION OF THE FMLA
41. Plaintiff realleges and incorporates Paragraphs 2 through 17, and 21 through 25 of this Complaint as if set forth in full herein.
42. This action is brought pursuant to the Family and Medical Leave Act (FMLA), of 1993, 29 U.S.C. Sections 2601 -2654, to obtain relief for demotion from his position as Sales Manager to Salesman after Plaintiff returned from medical leave, in violation of the FMLA.
43. Plaintiff was employed by Defendant in excess of 12 months and for at least 1250 hours over the 12 months prior to denial of his benefits under the FMLA.
44. Defendant violated 29 U.S.C. §2615(a)(1) which makes it unlawful for an employer to “interfere with, restrain or deny the exercise of or the attempt to exercise any right provided” by the FMLA. Specifically, Plaintiff’s right to return from leave to his original position or an equivalent position was interfered with by Defendant because Plaintiff was not returned to his original position or an equivalent position upon his return from medical leave.
45. Defendant violated 29 U.S.C. §2615(a)(2) which makes it unlawful for an employer to “discharge or in any other manner discriminate against any individual for opposing any practice made unlawful” by the FMLA. Specifically, Plaintiff was demoted from his position in retaliation for taking medical leave.
46. Defendant employed in excess of 50 employees at the location where Plaintiff was employed.
47. At all times, Plaintiff performed all duties assigned to him in a professionally competent manner, faithfully followed all reasonable instructions given to him by his supervisors, and abided by all the rules and regulations of Defendant.
48. Defendant’s actions against Plaintiff in violation of the FMLA were done wantonly, maliciously, willfully and with intent to do harm to Plaintiff.
49. Plaintiff has suffered and continues to suffer grave and severe damage to his financial welfare, by reason of Defendant’s unlawful actions against Plaintiff.
WHEREFORE, Plaintiff prays for judgment against Defendant as follows:
A. Judgment for his wages, salary, employment benefits, or other compensation denied or lost to Plaintiff, together with such increases to which he would be entitled, had he not been unlawfully discharged.
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 and relief as may be just and proper.
COUNT IV
UNPAID WAGES
50. Plaintiff realleges and incorporates Paragraphs 4 through 17, and 21 through 25 of this Complaint as if set forth in full herein.
51. This is an action for unpaid wages.
52. As the Sales Manager, Plaintiff was paid a bonus based on sales.
53. Plaintiff did not receive his bonus for the sales made when he was Sales Manager in 2003.
54. Plaintiff has complied with all conditions precedent prior to bringing this action.
55. Plaintiff has retained the undersigned attorneys and has agreed to pay them a reasonable fee.
56. Plaintiff is entitled to his attorney fees pursuant to Section 448.08, Florida Statutes, 2003.
57. WHEREFORE, Plaintiff, demands judgment against Defendant, for his damages for unpaid wages and bonus, attorney fees and costs of this action, pursuant to Section 448.08, Florida Statutes, 2003 and such other damages as this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED: This ____ day of January, 2005.
ALLEN & TRENT, P.A.
Wayne L. Allen, Esquire
Florida Bar No. 110025
Adrienne E. Trent, Esquire
Florida Bar No. 060119
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
Attorney: Maurice Arcadier
Status: Closed
Date Filed: 01/12/2005
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.
