Free Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00677-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LYNN FREDERICK , Plaintiff, v. AVANTIX LABORATORIES, INC., a Delaware corporation; and LINYEE SHUM, individually, : : : : : : : : : : : : : :

C.A. No.

Jury Trial Demanded

Defendants.

COMPLAINT 1. This is a civil action for compensatory and punitive damages for retaliatory

violations of Title VII of the Civil Rights Act of 1964 and the Delaware Discrimination in Employment Act all in violation of their opposition clauses. I. JURISDICTION 2. The jurisdiction of this Court is invoked pursuant to Title VII of the Civil Rights

Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"); 42 U.S.C. §1981A; the Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071; 28 U.S.C. §§ 1331, 1337, 1343, 2201, and 2202. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 which provides for supplemental jurisdiction. 3. All conditions precedent to jurisdiction under Title VII and 19 Del. C. § 710 et

seq., have occurred or have been complied with. On or about August 4, 2004, within 300 days of commission of any unlawful employment practice, plaintiff filed charges of employment discrimination based on gender, harassment, and discrimination with the Delaware Department

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of Labor ("DDOL") and the Equal Employment Opportunity Commission ("EEOC"). The EEOC mailed its right to sue letter to plaintiff on August 1, 2007. Plaintiff has filed this Complaint in the Delaware District Court within 90 days of the receipt of said right to sue letter. 4. The unlawful employment practices and discrimination alleged herein were

committed within the State of Delaware. II. THE PARTIES 5. Plaintiff Lynn Frederick is a citizen of the United States and a resident of New

Castle County, Delaware. At all times material hereto plaintiff was an employee of defendants within the meaning of Title VII and 19 Del. C. § 710 et seq. 6. Defendant Avantix Laboratories, Inc. is a Delaware corporation organized under

Title 8 of the Delaware Code. Its registered agent is The First State Registered Agent Company, 1925 Lovering Avenue, Wilmington, DE 19806. 7. Defendant Linyee Shum ("Shum") is Executive Director of Avantix Laboratories,

Inc., located at 57 Reads Way, New Castle, DE 19720. He is included as a defendant in his capacity as an employer of the plaintiff. 8. At all times material hereto the defendants were acting as an employer within the

meaning of the governing statutes. 9. The actions of defendants, defendant's agents and defendant's employees, were

deliberately, willfully, purposefully and knowingly done in violation of federal and state protected rights and because of the exercise of those rights. The defendants, defendant's agents and defendant's employees either knew or showed a negligent or reckless disregard for the matter of whether their conduct violated federal and state rights. Their actions were outrageous and taken with evil motive, in bad faith, out of personal animus and without any reasonable

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grounds to support them. Their actions were wanton and malicious or taken with reckless indifference to federal and state protected rights. III. FACTS GIVING RISE TO THE ACTION 10. On June 7, 2004, plaintiff was hired as the quality assurance manager for Avantix

Laboratories, Inc. by Shum. 11. Immediately after she was hired, Shum, plaintiff's supervisor, began making

inappropriate comments to plaintiff, such as telling her the details of his sex life and his plans to start an escort service. 12. Plaintiff complained to the Human Resources department about Shum's

inappropriate comments on September 15, 2004, which informed Shum of plaintiff's complaints. 13. On September 30, 2004 another employee of defendant Avantix Laboratories,

Inc., Ms. Krista Wriston, informed plaintiff that Shum had asked her to go to Florida with him and told her this would advance her career. 14. On or about October 4, 2004 plaintiff learned that Krista Wriston had resigned

and had filed a charge of sexual harassment against defendants with the Delaware Department of Labor. 15. On October 7, 2004, plaintiff, along with every other employee of Defendants,

signed a letter addressed to Shum asking him to stop sexually harassing them, to comply with the Delaware Wage Payment and Collection laws, and to comply with Delaware and federal law generally regarding the working environment at Avantix Laboratories, Inc. 16. In November 2004, an investigator from the Delaware Department

of Labor interviewed plaintiff as part of his investigation of Krista Wriston's sexual harassment charge against defendants.

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17.

Plaintiff complied with the investigator's request for an interview and cooperated

with the investigation. 18. Immediately after plaintiff spoke to the investigator about that former employee's

charge of sexual harassment, Shum began sending emails to plaintiff telling her to keep information confidential and that he believed that hostile employees were trying to plot against him. 19. In November 2004, Shum screamed at plaintiff over incidents that were

out of her control and beyond the scope of her job duties. 20. In December 2004, Shum began interfering with plaintiff's job duties as manager

of quality assurance. 21. On January 7, 2005, plaintiff wrote a letter to Shum specifically asking him to

stop harassing her. 22. Starting in February 2005, Shum started blaming plaintiff for incidents

that were out of her control and not within the scope of her job duties. 23. On March 28, 2005 plaintiff was demoted from quality assurance manager to

quality assurance specialist. 24. 25. Shum's stated reasons for demoting plaintiff were not legitimate. Shum's stated reasons for demoting plaintiff included complaints about plaintiff's

performance on accounts where the customer instead had expressed satisfaction to her about her performance. 26. Shum's stated reasons for demoting plaintiff also included complaints about

accounts for which the plaintiff had no responsibility. 27. On August 3, 2005, plaintiff was terminated.

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28.

On August 4, 2005, plaintiff filed a charge with the Delaware Department of

Labor alleging that she was discriminated against because of her gender, was subject to sexual harassment creating a hostile work environment, and that Shum retaliated against her for opposing a practice made illegal under the anti-discrimination laws. 29. On September 29, 2006 the Delaware Department of Labor issued its Final

Determination and Right to Sue in plaintiff's case, DDOL Charge No. 05080354W. After a thorough investigation, the Delaware Department of Labor issued a finding of reasonable cause to believe that an unlawful employment practice, a violation of 19 Delaware Code, Chapter 7, had occurred. 30. The Delaware Department of Labor issued a reasonable cause determination and

notice of mandatory conciliation with Thomas J. Smith, Labor Law Enforcement Supervisor, scheduled for October 20, 2006. 31. conciliation. 32. Immediately upon defendant Shum's failure to appear for the mandatory On October 20, 2006, defendant Shum failed to appear for the mandatory

conciliation, plaintiff formally requested that the Equal Employment Opportunity Commission issue a federal right to sue letter. 33. The EEOC issued a right to sue letter in plaintiff's case, Charge No. 17C-2005-

00505, on August 1, 2007. PLAINTIFF'S PERFORMANCE 34. Plaintiff at all times diligently and skillfully performed her duties as quality

assurance manager, which included monitoring outgoing products to ensure compliance and upholding the quality assurance systems for Avantix Laboratories, Inc.

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35.

Plaintiff received feedback from clients that they were pleased with her

performance throughout her employment at Avantix Laboratories, Inc. 36. In September 2004, prior to her engagement in protected activities, plaintiff

received positive feedback from Shum regarding her job performance. 37. In February 2005 plaintiff received a bonus in reward for her performance.

PLAINTIFF'S PROTECTED ACTS WERE THE PRIMARY REASON FOR DEMOTION AND DISCHARGE 38. Plaintiff's verbal and written opposition to defendants' unlawful employment

practices and participation in an investigation by the Delaware Department of Labor of defendants' unlawful employment practices constituted protected activities pursuant to 42 U.S.C. § 2000e(3)(a) ("Other unlawful employment practices") and 19 Del. C. 711(f) ("Unlawful employment practices; employer practices"). 39. 40. Defendants were aware of plaintiff's protected acts. The primary basis for plaintiff's demotion and discharge was that she undertook

these protected acts. PLAINTIFF'S INJURIES 41. As a direct and proximate result of the wrongful actions of defendants,

defendant's employees and/or defendant's agents as detailed herein, plaintiff suffered and is suffering emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of benefits, back pay, future economic loss, front pay, humiliation, embarrassment, and other injury and non-pecuniary losses. 42. Additionally, defendants, their agents and employees engaged in the

discriminatory practices with malice or with reckless indifference to plaintiff's federally and state protected rights, and defendants are liable for punitive damages.

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COUNT I (TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. § 2000e, et seq. ) 43. 44. Plaintiff repeats and realleges paragraphs 1-42 set forth above. Plaintiff engaged in protected acts under 42 U.S.C. § 2000e-3(a), by opposing

practices made unlawful under 42 U.S.C. § 2000e, et seq. 45. The defendants discharged plaintiff in retaliation for those protected acts, in

violation of 42 U.S.C. § 2000e, et seq., which makes it illegal to discharge or discriminate against an employee who engages in them. 46. Plaintiff's statutory right under 42 U.S.C. § 2000e, et seq. to oppose unlawful

employment practices free of employment discrimination has been denied. COUNT II (DELAWARE DISCRIMINATION IN EMPLOYMENT ACT, 19 DEL.C. 710, et seq.) 47. 48. Plaintiff repeats and realleges paragraphs 1-46 set forth above. Plaintiff engaged in protected acts under 19 Del. C. §711(f), by opposing practices made unlawful under the Delaware Discrimination in Employment Act, 19 Del. C. §710, et seq., and participating in an investigation under 19 Del. C. §710, et seq. 49. The defendant discharged plaintiff in retaliation for those protected acts, in

violation of 19 Del. C. § 710, et seq., which makes it illegal to discharge or otherwise discriminate against an employee who engages in them. 50. Under 19 Del. C. § 710, et seq., plaintiff's statutory right to oppose unlawful

employment practices and participate in Department of Labor investigations free of employment discrimination has been denied.

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WHEREFORE, plaintiff prays that the Court: (a) Enter judgment against the defendants, (b) Enter a declaratory judgment declaring the acts of the defendants to be a violation of plaintiff's statutory rights. (c) Enter a judgment against the defendants for compensatory damages, including emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, loss of benefits, back pay, future economic loss, front pay, humiliation, embarrassment, and other injury and non-pecuniary losses. (d) Enter a judgment against defendants for punitive damages. (e) Award plaintiff's costs, pre and post judgment interest, and attorneys' fees for this suit. (f) Expunge plaintiff's personnel files of any derogatory information relating to this matter. (h) Require such other and further relief as the Court deems just and proper under the circumstances.

Date: October 29, 2007

THE NEUBERGER FIRM, P.A /s/ Raeann Warner THOMAS S. NEUBERGER, ESQUIRE (#243) RAEANN WARNER, ESQUIRE (#4931 ) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected]

Federick, Lynn/Pleadings/Complaint/Complaint final.wpd

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