IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
CASE NO.
MITZI CASANOVA DEAN,
Plaintiff,
vs.
MARCOM TECHNOLOGIES, INC.,
Defendant.
___________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
JURISDICTION AND VENUE
Plaintiff, MITZI CASANOVA DEAN, by and through her undersigned counsel, sues Defendant, MARCOM TECHNOLOGIES, INC. (hereinafter “MarCom”), and alleges as follows:
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.
PARTIES
3. Plaintiff is a female who resides in Brevard County, Florida, and has at all
times material herein resided in Brevard County, Florida.
4. Defendant MarCom is a Florida corporation, registered and authorized to do business in the State of Florida and maintaining a place of business in Brevard County, Florida and which, at the time of acts complained of herein, employed 15 or more persons and was engaged in an industry affecting commerce.
STATEMENT OF CLAIM
5. Plaintiff has retained the undersigned attorney and agreed to pay him a
reasonable fee.
6. Plaintiff has exhausted her administrative remedies prior to bringing this action.
7. Plaintiff has complied with all conditions precedent prior to bringing this action.
8. Plaintiff was hired by Defendant in or about March, 1996.
9. At the time of her termination, Plaintiff was employed by Defendant MarCom in the position of Operations Manager, at Defendant’s Melbourne, Florida office.
10. At all times during her employment with Defendant, Plaintiff performed all
duties assigned to her in a professionally competent manner, faithfully followed all
instructions given to her by her supervisors, and abided by all the rules and regulations
of Defendant.
11. Plaintiff was terminated by Defendant on or about February 12, 1998.
12. Plaintiff has suffered and continues to suffer grave and severe damage to her financial welfare and her employment prospects by reason of Defendant’s discriminatory actions against Plaintiff.
13. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendant’s actions.
COUNT I
VIOLATION OF SECTION 760.10, FLORIDA STATUTES
STATE SEX (PREGNANCY) DISCRIMINATION CLAIM
14. Plaintiff realleges and incorporates paragraphs 1 through 13 of this Complaint as if set forth in full herein.
15. This action is brought pursuant to Section 760.10, Florida Statutes, the
Florida Civil Rights Act.
16. On August 28, 1998, Plaintiff filed a claim with the Florida Commission on Human Relations (attached hereto as Exhibit “A”) and more than one hundred eighty (180) days have passed since the filing of said complaint, and the Florida Commission on Human Relations has not entered a determination on Plaintiff’s claim.
17. During Plaintiff’s employment with Defendant, Plaintiff was promoted by Defendant to the position of Operations Manager and transferred to Defendant’s Melbourne, Florida location. Approximately two (2) weeks after the Plaintiff accepted the position in Melbourne, Plaintiff learned that she was pregnant.
18. Prior to the date Plaintiff actually transferred to Melbourne, she notified her immediate manager, the Vice-President of Operations for Defendant, and the Melbourne location Center Manager, and discussed her pregnancy with these persons, all of whom informed Plaintiff that her pregnancy would not preclude her from accepting the position in Melbourne.
19. Plaintiff began to work for Defendant as Operations Manager in its Melbourne, Florida location, working sixty to seventy hours per week, including evening hours, despite the fact that she had been hired as a daytime Operations Manager.
20. Because of the extended and evening hours Plaintiff was required to work by Defendant, she began to suffer cramps related to her pregnancy, and consulted her physician, who recommended that Plaintiff only work forty (40) hours per week. The physician provided the Plaintiff with a note stating that she was to only work forty (40) hours per week. The Plaintiff gave this note to Defendant’s management, but was still required to work evenings and extended hours, despite continued cramping.
21. The Plaintiff presented Defendant’s management with another note from her physician specifying that Plaintiff was to preferably work a day shift. After reviewing the matter with Defendant’s Vice-President of Operations, Plaintiff’s supervisor placed Plaintiff on a 1:00 P.M. to 9:00 P.M. shift, which suited the Plaintiff’s medical needs. Defendant allowed Plaintiff to remain on this shift for approximately three (3) weeks.
22. Near the end of December 1997, Plaintiff’s supervisor again required Plaintiff to work extended hours and stay late into the evening to close the office. When the Plaintiff reminded her supervisor that she was under doctor’s restrictions regarding the hours in which she could work, Plaintiff’s supervisor demanded yet another physicians note.
23. When Plaintiff provided her supervisor with a third physician’s note, the Defendant’s supervisor gave Plaintiff four options to allow her to remain with the company. The memo stated that Plaintiff could: 1) accept a modified shift schedule of working 3:00 P.M. to 9:00 P.M. Monday through Friday, and Saturday 9:30 A.M. to 5:30 P.M.; 2) accept a medical leave of absence; 3) accept a family medical leave of absence; 4) transfer back to her original position with the company in Clearwater, Florida. Since the Plaintiff’s doctor felt that she did not need a leave of absence at that time, the Plaintiff chose the modified shift schedule.
24. The Plaintiff worked as required by the modified shift schedule for approximately two (2) weeks. On or about February 2, 1998, Plaintiff’s supervisor stated that she was going to demote Plaintiff back to the position of telemarketer, with a corresponding decrease in pay. Plaintiff asked her supervisor for a copy of her evaluation, and the supervisor refused to give it to her.
25. After receiving the startling news of her demotion by the Defendant, the Plaintiff became seriously ill on the evening of February 2, 1998, suffering cramping, vomiting and contractions related to her pregnancy. As a result, Plaintiff had to be taken to the hospital. Plaintiff’s physician required her to rest at home for several days.
26. On or about February 3, 1998, the Plaintiff attempted to call her supervisor on at least three occasions, without success, to advise her supervisor that she was under physicians orders to rest at home for several days. Though Plaintiff’s supervisor was available to take these phone calls from Plaintiff, the supervisor arbitrarily declined to take the Plaintiff’s phone calls, or to return the Plaintiff’s phone calls at a later time. Plaintiff did, however, leave a message with a co-worker that she would not be able to return to work until the following week. Plaintiff asked the co-worker to deliver the message to Plaintiff’s supervisor, and the co-worker did in fact do so.
27. On or about February 11, 1998, the Plaintiff’s supervisor terminated Plaintiff for allegedly “abandoning her job”, by “not showing up for work for three consecutive days”, despite the Plaintiff’s attempts to notify her supervisor that her physician required her to remain out of work for several days, due to complications from her pregnancy.
28. In spite of her pregnancy, Plaintiff was able to perform all of the essential functions of her position, or could have done so with reasonable accommodation, as set forth in Plaintiff’s physician’s written requests. Plaintiff requested that her employer accommodate her by modifying her work schedule, pursuant to her physician’s order, however the employer repeatedly refused to commit to a long term modified schedule which would accommodate the Plaintiff’s medical restrictions, as imposed by her physician.
29. The Defendant had previously accommodated another employee, who was given a reduced and modified work schedule when his wife became ill.
30. Defendant’s actions constitute a violation of Chapter 760, Florida Statutes, in that Defendant discriminated against Plaintiff on the basis of her sex (i.e., her pregnancy). The discrimination against the Plaintiff by Defendant based upon Plaintiff’s pregnancy consisted of the following:
a. Defendant failed and refused to give Plaintiff a long term modified or reduced work schedule, which would accommodate her medical restrictions as imposed by her physician, during the course of her pregnancy, while accommodating other employees of Defendant by giving them modified work schedules for various medical reasons.
b. Defendant terminated the Plaintiff in spite of the fact that she was unable to return to work for several days after suffering severe cramping, vomiting and contractions, as required by her physician.
31. By discriminating against Plaintiff on the basis of her pregnancy, the Defendant engaged in a discriminatory practice with malice and reckless indifference to the statutorily protected rights of the Plaintiff.
32. As a result of the Defendant discriminating against Plaintiff on account of her pregnancy, Plaintiff has suffered damages consisting of emotional distress, loss of salary and other compensation.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, for all damages to which she may be entitled, including, without limitation:
a. Judgment for back pay and front pay;
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’s fees and all costs incurred herein; and
e. Such other and further relief as this Court deems just and proper.
COUNT II
DISCRIMINATION BASED UPON PREGNANCY
FEDERAL CLAIM
33. This is an action for violation of Title VII of the Civil Rights Act of 1964, as Amended, 42 U.S.C. § 2000e et seq.
34. Plaintiff realleges and incorporates paragraphs 1 through 13, and 17 through 32 of this Complaint as if set forth in full herein.
35. Plaintiff filed a formal complaint with the United States Equal Employment Commission (EEOC) on August 28, 1998, alleging that she had been discriminated against by Defendant on the basis of her sex and disability. A copy of Plaintiff’s EEOC complaint is attached hereto and incorporated herein as Exhibit “B”. On April 14, 1999, the EEOC issued to Plaintiff a Dismissal and Notice of Rights, attached hereto and incorporated herein as Exhibit “C”.
36. Plaintiff, a female, was subjected to discrimination based upon her pregnancy during the course of her employment by Defendant.
37. The discrimination against the Plaintiff by Defendant based upon Plaintiff’s pregnancy consisted of the following:
a. Defendant failed and refused to give Plaintiff a long term modified or reduced work schedule, which would accommodate her medical restrictions as imposed by her physician, during the course of her pregnancy, while accommodating other employees of Defendant by giving them modified work schedules for various medical reasons.
b. Defendant terminated the Plaintiff in spite of the fact that she was unable to return to work for several days after suffering severe cramping, vomiting and contractions, as required by her physician.
38. By discriminating in such fashion against Plaintiff based upon her Pregnancy, the Defendant violated Title VII of the Civil Rights Act of 1964, as amended, U.S.C. § 2000e et seq.
39. Defendant willfully, knowingly, and intentionally discriminated against Plaintiff on the basis of her pregnancy.
40. As a result of Defendant’s conduct, Plaintiff has suffered damages consisting of severe emotional distress, loss of salary and other compensation.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, for all damages to which she may be entitled, including, without limitation:
a. Judgment for back pay and front pay;
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’s fees and all costs incurred herein; and
e. Such other and further relief as this Court deems just and proper.
COUNT III
VIOLATION OF SECTION 760.10, FLORIDA STATUTES
STATE DISABILITY DISCRIMINATION CLAIM
41. This action is brought pursuant to Section 760.10, Florida Statutes, the Florida Civil Rights Act.
42. Plaintiff realleges and incorporates paragraphs 1 through 13, and 17 through 28 of this Complaint as if set forth in full herein.
43. On August 28, 1998, Plaintiff filed a claim with the Florida Commission on Human Relations (attached hereto as Exhibit “A”) and more than one hundred eighty (180) days have passed since the filing of said complaint, and the Florida Commission on Human Relations has not entered a determination on Plaintiff’s claim.
44. The complications from Plaintiff’s pregnancy, including excessive cramping, vomiting and contractions, constituted a disability of Plaintiff which limited Plaintiff in the major life activity of working.
45. Despite Plaintiff’s disability during her pregnancy, Plaintiff was able to perform the essential functions of her job, and could have continued to do so with reasonable accommodations from Defendant, which she requested.
46. Defendant failed to provide Plaintiff reasonable accommodation for her disability.
47. By failing to provide reasonable accommodation for Plaintiff’s disability, and by terminating Plaintiff, Defendant violated Section 760.10, Florida Statutes, the Florida Civil Rights Act, which makes it unlawful for an employer to discharge or otherwise discriminate against a qualified individual with a disability, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability.
48. By discriminating against Plaintiff on the basis of her disability, Defendant engaged in a discriminatory practice with malice and reckless indifference to the statutorily protected rights of Plaintiff.
49. As a result of Defendant discriminating against Plaintiff on account of her disability, Plaintiff has suffered damages consisting or severe emotional distress, loss of salary, and other compensation.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, for all damages to which she may be entitled, including, without limitation:
a. Judgment for back pay and front pay;
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’s fees and all costs incurred herein; and
e. Such other and further relief as this Court deems just and proper.
COUNT IV
DISCRIMINATION BASED UPON DISABILITY
FEDERAL CLAIM
50. This is an action for violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq.
51. Plaintiff realleges and incorporates paragraphs 1 through 13, 17 through 29 and 44 though 46 of this Complaint as if set forth in full herein.
52. Plaintiff filed a formal complaint with the U. S. Equal Employment Opportunity Commission (EEOC) on August 28, 1998 alleging discrimination based upon her sex and disability. On April 14, 1999, the EEOC issued to Plaintiff a Dismissal and Notice of Rights. Plaintiff’s EEOC charge and the EEOC Dismissal and Notice of Rights are attached hereto and incorporated herein as Exhibits “B” and “C”.
53. By failing to provide reasonable accommodation for Plaintiff’s disability, and by terminating Plaintiff, Defendant violated the Americans with Disabilities Act, 42
U.S.C. §12101 et seq., which makes it unlawful for an employer to discharge or otherwise discriminate against a qualified individual with a disability, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s disability.
54. By discriminating against Plaintiff on the basis of her disability, Defendant engaged in a discriminatory practice with malice and reckless indifference to the statutorily protected rights of Plaintiff.
55. As a result of Defendant discriminating against Plaintiff on account of her disability, Plaintiff has suffered damages consisting or severe emotional distress, loss of salary, and other compensation.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant, for all damages to which she may be entitled, including, without limitation:
a. Judgment for back pay and front pay;
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’s fees and all costs incurred herein; and
e. Such other and further relief as this Court deems just and proper.
COUNT V
VIOLATION OF THE FAMILY AND MEDICAL LEAVE ACT
56. 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 denial of benefits and termination from employment in violation of the FMLA.
57. Plaintiff realleges and incorporates paragraphs 1 through 13 and 17 through 28 of this complaint as if set forth in full herein.
58. Plaintiff was employed by Defendant in excess of twelve months and for at least 1250 hours over the twelve months prior to denial of her benefits and termination by Defendant.
59. Defendant employed in excess of 50 employees for each working day during each of twenty or more calendar work weeks in the year culminating in Plaintiff’s termination.
60. Despite the Defendant’s knowledge of the Plaintiff’s ongoing medical complications due to her pregnancy, and requests for a modified or reduced work schedule, the Defendant terminated the Plaintiff on or about February 11, 1998, after the Plaintiff had repeatedly attempted to inform her employer that she would need time off from work to recover from excessive cramping, vomiting and contractions, as required by her physician.
61. 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.
62. 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.
63. Plaintiff has complied with all conditions precedent prior to bringing this action.
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.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED this _____day of July, 1999.
Wayne L. Allen, Esquire
Florida Bar No. 110025
R. Brent Blackburn, Esquire
Florida Bar No. 093270
Susan Yahney, Esquire
Florida Bar No. 0119652
Wayne L. Allen, P.A.
Attorney for Plaintiff
700 N. Wickham Road
Suite 107
Melbourne, Florida 32935
Phone: (407) 254-7550
Fax: (407) 242-1681
Attorney: Maurice Arcadier
Status: Closed
Date Filed: 07/08/1999
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.
