Free Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) CFT AMBULANCE ) SERVICES, INC., ) ) Defendant. ) ______________________________) MICHAEL DORAN,

Civil Action No. ___________________ Jury Trial Demanded

COMPLAINT Plaintiff, MICHAEL DORAN ("Mr. Doran"), sues Defendant, CFT AMBULANCE SERVICES, INC. ("CFT"), and hereby states and alleges that this action is brought to remedy discrimination based on disability in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101, et seq.; violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.; and violations of corresponding laws and rights under Delaware State law; brought under the pendent jurisdiction of the Court, arising from a common set of operative facts.

PARTIES 1) Plaintiff, Michael Doran, is an adult male who resides in the State of Delaware and was most recently employed by CFT from November 2, 2005 through June 29, 2006. 2) Defendant, CFT, is a Delaware corporation that may be served through its registered agent, Denette Lawson, at 242 North James Street, Suite 200, Newport, Delaware 19804.

1

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 2 of 10

JURISDICTION AND VENUE 3) The jurisdiction of this court is invoked pursuant to 28 U.S.C. §§1331, 1337, 1343, 2201, and 2202, conferring original jurisdiction upon this Court of any civil action arising under the laws of the United States. 4) Plaintiff also brings under pendent jurisdiction claims arising under the Delaware State Law from a common set of operative facts. Pendent jurisdiction of state law is proper under 28 U.S.C. §§1331, 1332, and 1337 and the pendent jurisdiction doctrine. Fed.R.Civ.P. 18(a). United Mine Workers v. Gibbs, 383 U.S. 715 (1966). 5) Venue properly lies in the District of Delaware pursuant to 28 U.S.C. §1391(b) and §1391(e) because the unlawful employment practices were committed in this judicial district. 6) The Plaintiff fulfilled all conditions precedent to the institution of this action, by filing a timely claim with the Equal Employment Opportunity Commission ("EEOC") and the Delaware Department of Labor ("DDOL"). 7) Mr. Doran received a finding of "Reasonable Cause" from the DDOL in December 2007, and received a Right to Sue Notice from the EEOC which is dated April 15, 2008. This action is being filed within ninety (90) days of the date upon the EEOC Right to Sue Notice.

2

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 3 of 10

FACTS COMMON TO ALL COUNTS 8) Mr. Doran began working for CFT as a Paratransit Driver on a recurring basis in 2001. Mr. Doran left his employment at CFT in 2003 because of a cardiac condition that required medical attention. CFT was, at all times relevant to these proceedings, fully aware of Mr. Doran's medical condition and the limitations it created. In particular, Mr. Doran's physician had advised him not to work a full-time schedule, and this information had been made known to Mr. Doran's supervisors at CFT. Mr. Doran's latest period of employment with CFT was November 2, 2005 through June 29, 2006. 9) CFT rehired Mr. Doran in 2005, with the understanding that he would be a part-time employee, and with full knowledge of his cardiac condition and its limitations. The parttime arrangement was necessary due to Mr. Doran's cardiac condition. Despite the parttime arrangement, and despite Mr. Doran's limitations caused by the cardiac condition, he was forced to work greater than full-time, averaging fifty (50) hours per week during the period November 2005 to June 2006. Mr. Doran was never paid overtime for the hours he worked each week in excess of forty (40) hours. 10) On the date of his termination, after working an eight hour shift, Mr. Doran was called by dispatch to pick up an additional two patients. This would add an extra four to five hours onto Mr. Doran's already eight hour shift. Mr. Doran informed dispatch that he was exhausted and did not think he should pick up the additional patients. He was concerned for the safety of the patients as well as himself since he would be driving in such an exhausted state.

3

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 4 of 10

11)

Denette Lawson, President of CFT and Mr. Doran's supervisor, called him to demand he pick up the additional patients. Mr. Doran explained to Ms. Lawson that his medical condition prevented him from continuing to work. Ms. Lawson responded by saying she did not care about his condition. She stated that if he did not pick up the patients, he should immediately return to the station, turn in his keys, clock out, and be fired.

12)

Still feeling that it would be unsafe to continue driving for an additional four to five hours, Mr. Doran returned to the station where he was immediately terminated.

13)

At the time of Mr. Doran's termination, CFT had full knowledge of Mr. Doran's medical condition. Mr. Doran left his employment with CFT in 2003 to seek medical attention for his cardiac condition. The doctor stated to Mr. Doran that he should only engage in as much physical exertion as he can tolerate and that he should not engage in extended hours of work. Mr. Doran informed his supervisors at CFT, including Ms. Lawson, about this recommendation before the date of his termination, but this limitation was disregarded by CFT. At no time did anyone from CFT attempt to engage in an interactive process to ascertain Mr. Doran's limitations, or determine what reasonable accommodations would be necessary to allow him to work as a paratransit driver.

14)

Also during the course of his employment with CFT, Mr. Doran notified his supervisors that the vehicles used to transport patients were unsafe. Some vehicles had exhaust coming through the floorboards, others had rusted floors that could be seen through, some were missing straps used to secure patients, and others would break down an average of two to three times per week. One patient even complained to Mr. Doran that she did not want to be transported in one of CFT's vehicles because it appeared to be unsafe. Mr. 4

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 5 of 10

Doran made numerous complaints about the condition of the vehicles, some shortly before his termination, but nothing was ever done about the problems. Mr. Doran's termination with the company resulted in part because of these complaints. 15) After being terminated by CFT, Mr. Doran applied for and accepted a position with Urgent Ambulance Service, Inc. ("Urgent"), along with two co-workers from CFT. A few days after being hired, Mr. Doran was informed that he was being terminated. He learned that Ms. Lawson had sent an unsolicited letter to the director of Logisticare, Inc. ("Logisticare"), a company that oversees ambulance services (including CFT and Urgent). The letter discredited Mr. Doran's reputation and suggested that he had been terminated by CFT, at Logisticare's direction, due to a criminal history. At all times relevant, and from his initial hire by CFT in 2001, CFT was well aware of his criminal history and employed him despite this knowledge. A copy of the letter sent by CFT to Logisticare is attached hereto as Exhibit "A" and is incorporated herein by reference. 16) Mr. Doran's termination had nothing to do with his criminal history, and was instead the result of his refusal to work in an unsafe condition, and contrary to his doctor's directions. CFT's allegations concerning Mr. Doran's criminal history, and its affect on his ability to work as a paratransit driver, were later proven false, as Urgent received approval to hire Mr. Doran and did in fact employ him for a period of time as a driver. Mr. Doran is currently unable to work due to his cardiac condition.

5

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 6 of 10

COUNT I: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 17) The Plaintiff reasserts the allegations in paragraphs 1) through 16) and incorporates these by reference as if set forth herein. 18) At all times relevant to this action Mr. Doran was a qualified person with a disability within the meaning of the American's with Disabilities Act ("ADA"). 19) Mr. Doran was able to perform the essential functions of his position at CFT, a paratransit driver, either with or without a reasonable accommodation. 20) Despite being fully informed of his condition, CFT never made any attempt to engage in an interactive process to ascertain Mr. Doran's limitations or to explore a reasonable accommodation of his condition. 21) CFT discriminated against Mr. Doran on the basis of his disability by firing him because his disability prevented him from extending the length of his shift by four or five hours.

COUNT II: VIOLATION OF FAIR LABOR STANDARDS ACT 22) The Plaintiff hereby incorporates the allegations in paragraphs 1) through 21) and incorporates these by reference as if set forth herein. 23) 24) 25) CFT is an "employer" as that term is defined by the Fir Labor Standards Act ("FLSA"). At no time was Mr. Doran an "exempt employee" as that term is defined by the FLSA. During his employment with CFT, including the most recent period of employment (November 2005 to June 2006), Mr. Doran worked an average of 50 hours per week. 26) While Mr. Doran received pay for all hours worked at his regular rate of pay ($11.00 per hour) he never received any overtime for hours worked in excess of 40. 6

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 7 of 10

27)

At all times relevant to these proceedings, CFT had actual or constructive knowledge of its failure and/or refusal to pay overtime at the correct rate, and such knowledge constitutes a willful violation of the FLSA.

28)

Pursuant to Section 16(b) of the FLSA, 29 U.S.C. §216(b), Plaintiff is entitled to receive payment for all hours over overtime worked for CFT, plus an award of liquidated damages in an amount equal to the amount of the unpaid overtime, all reasonable attorney's fees, and all costs of this action.

COUNT III: VIOLATION OF WHISTLEBLOWER'S PROTECTION ACT 29) The Plaintiff reasserts the allegations in paragraphs 1) through 28) and incorporates these by reference as if set forth herein. 30) The Whistleblower's Protection Act ("Act"), 19 Del.C. §1701 et. seq., prevents an employer from discharging or discriminating against an employee because that employee reports to the employer or to the employee's supervisor a violation that the employee knows or reasonably believes has occurred. 19 Del.C. §1703(4). 31) 32) CFT is an "employer" as defined in the Act. 19 Del.C. §1702(2). Mr. Doran is considered an "employee" as the term is defined in the Act. 19 Del.C. §1702(1). 33) Mr. Doran verbally reported to his supervisor at CFT, on numerous occasions, that the vehicles that were used to transport the patients were not safe and needed to be fixed. Mr. Doran also advised CFT that he could not work overtime on the day of his termination (due to his cardiac condition). 7

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 8 of 10

34)

The verbal reports about the vehicles were made shortly before his termination in June 2006. The objection to working excess hours was made the day of his termination.

35)

CFT discharged Mr. Doran from his employment in part because of the complaint made about the transport vehicles, and in part due to his refusal to work in violation of the restrictions imposed by his physician. This conduct violates the Delaware Whistleblower Protections Act, entitling Mr. Doran to the relief set forth therein, and as may be reasonably interpreted from the statute.

COUNT IV: DEFAMATION 36) The Plaintiff reasserts the allegations in paragraphs 1) through 35) and incorporates these by reference as if set forth herein. 37) CFT sent a written letter to Logisticare (Exhibit "A" hereto) that contained statements diminishing the respect, esteem, and confidence in which Mr. Doran is held. The letter has caused bad feelings and opinions about Mr. Doran. 38) The letter sent by CFT was defamatory because it deterred Urgent from associating with, dealing with, or hiring Mr. Doran. 39) The letter was not sent to Mr. Doran, but to a third party, Logisticare, and is therefore a publication that is defamatory.

8

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 9 of 10

COUNT V: TORTIOUS INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP 40) The Plaintiff reasserts the allegations in paragraphs 1) through 39) and incorporates these by reference as if set forth herein. 41) CFT wrote a letter to Logisticare in hopes that Mr. Doran would not be able to seek future employment in the patient transportation industry. 42) Mr. Doran had been hired by Urgent, as a patient transport driver, but was subsequently fired after Logisticare received the letter from CFT. 43) Because CFT's letter is the direct cause of Mr. Doran's inability to seek employment, CFT is responsible to Mr. Doran for improperly inducing or intentionally causing Urgent not to perform the employment contract with Mr. Doran.

COUNT VI: BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING IN AN EMPLOYMENT CONTRACT 44) The Plaintiff reasserts the allegations in paragraphs 1) through 43) and incorporates these by reference as if set forth herein. 45) CFT, harbored ill will toward Mr. Doran since he was not able to extend the length of his shift because of a disability. 46) CFT intended to and did cause harm to Mr. Doran. CFT fired Mr. Doran from his position as a driver because of a medical condition. Also, CFT wrote a defamatory letter that precluded Mr. Doran from obtaining subsequent employment. 47) CFT did these acts intentionally and caused Mr. Doran to be fired from his employment at CFT as well as at Urgent. 9

Case 1:08-cv-00380-JJF

Document 1

Filed 06/24/2008

Page 10 of 10

WHEREFORE, Plaintiff Michael Doran demands judgment in his favor and against Defendant CFT Ambulance Services, Inc. in the form of : (a) (b) (c) (d) (e) (f) (g) Compensatory damages; Punitive damages; Back pay; Front pay; Liquidated damages under the Fair Labor Standards Act; Punitive damages; Damages caused by CFT's violations of the various statutory and common law claims set forth herein; (h) All costs and expenses of this action, including but not limited to court costs, reasonable attorney's fees, expert fees, and other costs and expenses as appropriate; and (i) Such further relief as the Court deems is just and equitable. LAW OFFICES OF G. KEVIN FASIC By: /s/ G. Kevin Fasic G. Kevin Fasic, Esquire (DE 3496) 1225 King Street, Suite 200 Legal Arts Building Wilmington, DE 19801 (302) 654-4501 - Telephone (302) 654-4406 - Facsimile [email protected] - E-Mail Dated: June 24, 2008

10

Case 1:08-cv-00380-JJF

Document 1-2

Filed 06/24/2008

Page 1 of 2

Case 1:08-cv-00380-JJF

Document 1-2

Filed 06/24/2008

Page 2 of 2

Case 1:08-cv-00380-JJF

Document 1-3

Filed 06/24/2008

Page 1 of 1

Case 1:08-cv-00380-JJF

Document 1-4

Filed 06/24/2008

Page 1 of 1