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JLM has been sued in Federal Court over retaliation and violation of Florida's Whistleblower Act when a former employee complained about sexual harassment.  Here are the original complaint and answer by JLM.

 

 

 

 

COMPLAINT

 

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

Case No. 8:04-CV-337-T-30-TGW

XXXXX,
Plaintiff,

v.

JLM INDUSTRIES, INC.,
a foreign corporation, and
JLM MARKETING, INC.,
a foreign corporation,
Defendants.

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, XXXXX, (“XXXXX”), sues Defendants, JLM INDUSTRIES, INC., and JLM MARKETING, INC., referred to collectively as (“JLM”), and alleges as follows:

1. This is an action arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e)-(2) and §2000(e)-(3)(a), as amended by the Civil Rights Act of 1991 and Chapter 760 (“The Florida Civil Rights Act of 1992”), §760.10. The jurisdiction of this Court is founded upon 28 U.S.C. §1343 and 42 U.S.C. §2000(e)-5(f)(3).

2. Plaintiff XXXXX is a resident of XXXXX County, XXXXX. XXXXX was employed by the Defendants at their business facility located at 8675 Hidden River Parkway, Tampa, Florida. Defendants are foreign corporations doing business in the State of Florida and in Hillsborough County, Florida. Venue is proper in this judicial district. Defendants are “employers” within an industry affecting commerce under the civil rights statutes and each had more than 50 employees at all times material to this action.

3. In XXXXX 200X, XXXXX was employed by the Defendants as an administrative assistant. XXXXX was hired at a salary of $XXXXX per year. Initially, XXXXX supervisor was XXXXX. Thereafter, XXXXX resigned and XXXXX reported to various people including the owner John MacDonald.

4. XXXXX had worked for MacDonald in the past but preferred to stay away from him and work for others due to his treatment of women. MacDonald was a well-known sexual harasser throughout the Defendants’ workplace who was known to give inappropriate gifts such as edible underwear and “titty tassels” to female employees. MacDonald was also well known for asking female employees, including XXXXX, to give him massages.

5. In XXXXX 200X, Plaintiff was asked to assist MacDonald because his secretary was on vacation. MacDonald asked XXXXX whether it was time for a lap sitting or dance of some kind. Jack Dunn, who was in MacDonald’s office said the lap sitting would be better.

6. On or about XXXXX XX, 200X, XXXXX complained to JLM’s General Counsel about MacDonald’s comment. The General Counsel acknowledged that he knew about MacDonald’s behavior towards women and told XXXXX that MacDonald was “so bad”. On XXXXX XX, 200X, XXXXX complained to XXXXX, administrative assistant to MacDonald. Later that day, XXXXX was terminated.

7. On or about XXXXX XX, 200X, XXXXX replacement began employment.

8. During the term of XXXXX employment with JLM, she was never written up or documented for any work related problems.

9. On XXXXX XX, 200X, XXXXX filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“E.E.O.C.”) XXXXX charge was dual-filed with the Florida Commission on Human Relations. On XXXXX XX, 200X, the E.E.O.C. issued a Right to Sue Letter. A true and correct copy of the Right to Sue Letter and XXXXX Charge are attached hereto as Exhibit “A”. This action under Title VII and Chapter 760.10 has been timely commenced and all jurisdictional prerequisites to this action have been met.

COUNT I
RETALIATION

10. XXXXX realleges and incorporates paragraphs 1 through 9 of the Complaint.

11. At all time material to this action, there has been in full force and effect a provision of Title VII of the Civil Rights Act and Florida law, that prohibits discriminatory and retaliatory employment practices against employees because they opposed unlawful employment practices and have complained of such unlawful practices.

12. On or about XXXXX XX, 200X, XXXXX complained to the Defendants’ General Counsel that she had been subjected to conduct that could be reasonable constitute sexual harassment. Accordingly, XXXXX engaged in protected opposition conduct and was protected against retaliation under the applicable civil rights statutes.

13. On XXXXX XX, 200X, XXXXX complained to an administrative assistant. Thereafter, XXXXX was terminated. The following week, on XXXXX, XXXXX XX, XXXXX replacement began employment.

14. As a result of the unlawful employment practice complained of above, XXXXX has been deprived of equal employment opportunity, has suffered emotional pain and suffering, inconvenience, mental anguish and the loss of enjoyment of life.

WHEREFORE, XXXXX demand judgment for damages against the Defendants, including, but not limited to, lost wages, benefits and other compensation in the past and future, and prejudgment interest on the outstanding obligation, or reinstatement, together with compensatory and punitive damages, attorney’s fees and costs and such relief as may be appropriate under the C.R.A of 1991 and Chapter 760.10.

COUNT II
VIOLATION OF FLORIDA WHISTLEBLOWER ACT

15. Plaintiff realleges and incorporates herein the allegations in paragraphs 1 through 9 of the Complaint.

16. Defendants were at all times material to this action, “employers” as defined by the Florida Whistleblower Act, §448.191-448.105 (Fla. Stat. 2000).

17. At all times material to this action, XXXXX was “an employee” of the Defendants pursuant to the Florida Whistleblower Act, §448.101(2).

18. During the term of XXXXX employment, she objected to activity and practice which was in violation of Title VII and the FCRA. In particular, XXXXX objected to a hostile work environment because of sex created by MacDonald. Defendants’ knew of MacDonald’s widespread treatment of female employees but decided they were unable to remedy the problem.

19. XXXXX voiced her specific objection to the Defendants’ general counsel and an administrative assistant. Upon information and belief, when MacDonald discovered that XXXXX complained about his sexual harassment, he ordered her termination.

20. The Defendants took retaliatory personnel action against Jennings because she had objected to the illegal workplace behavior. These retaliatory personnel actions resulted in her termination of employment with the company. XXXXX replacement was hired within days of her termination.

WHEREFORE, XXXXX requests compensatory damages for lost wages, benefits and other remuneration and all other compensatory and punitive damages allowable under Florida law. Plaintiff also requests that the Court award reasonable attorney’s fees, costs and expenses associated with this action.

PLAINTIFF REQUESTS TRIAL BY JURY ON ALL COUNTS.

XXXXX X. XXXXX
FLORIDA BAR NO.: XXXXX
XXXXX LAW FRIM, P.A.
XXXXX XXXXX XXXXX XXXXX, XXXXX XXXXX
XXXXX, Florida XXXXX
(XXX)XXX-XXXX – Office
(XXX)XXX-XXXX – Facsimile
Attorney for Plaintiff
 

 

 

AND JLM's ANSWER

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

Case No. 08:04-CV-337-T-30TGW

XXXXX,
Plaintiff,
v.
JLM INDUSTRIES, INC.,
A foreign corporation, and
JLM MARKETING, INC.,
A foreign corporation,
Defendant.

DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

Defendants JLM Industries, Inc. ("JLM Industries"), and JLM Marketing, Inc. ("JLM Marketing"), by and through their undersigned counsel, hereby respond to Plaintiff XXXXX ("XXXXX") Complaint and Demand for Jury Trial, paragraph by paragraph as follows:

1. Defendants admit that this Court has jurisdiction, but deny liability under any law, statute, rule, regulation or other authority.

2. Defendants admit that XXXXX was employed by JLM Marketing at its business facility located at 8675 Hidden River Parkway, Tampa, Florida. Defendants further admit that each is a foreign corporation doing business in Hillsborough County, Florida, and that venue is proper in this judicial district. Defendants admit that JLM Marketing is an "employer" as defined under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended, and the Florida Civil Rights Act ("FCRA"), § 760.01, et seq. Fla. Stat. Defendants are without knowledge sufficient to form a belief as to the truth of Plaintiff's allegations regarding her place of residence, and therefore, such allegations are denied. The remaining allegations of this paragraph are denied.

3. Defendants admit that XXXXX was hired by JLM Marketing in or about XXXXX 200X, and that XXXXX initially served as XXXXX supervisor. The remaining allegations of this paragraph are denied.

4. Denied.

5. Denied.

6. Denied.

7. Denied.

8. Denied.

9. Defendants are without knowledge sufficient to form a belief as to the truth of the allegations of this paragraph, and therefore, they are denied.

COUNT I
RETALIATION

10. Defendants reallege and incorporate by reference their responses to paragraphs one (1) through nine (9) as if set forth fully herein.

11. The provisions of Title VII and Florida law speak for themselves. Any remaining allegations are denied.

12. Denied.

13. Denied.

14. Denied.

COUNT II
VIOLATION OF FLORIDA WHISTLEBLOWER ACT

15. Defendants reallege and incorporate by reference their responses to paragraphs one (1) through nine (9) as if set forth fully herein.

16. Defendants admit that JLM Marketing is an "employer" as defined by the Florida Whistleblower Act, §§ 448.101-448.105, Fla. Stat. ("Whistleblower Act"). The remaining allegations of this paragraph are denied.

17. Defendants admit that, during her employment with JLM Marketing, XXXXX was an "employee" of JLM Marketing, pursuant to the Whistleblower Act. The remaining allegations of this paragraph are denied.

18. Denied.

19. Denied.

20. Denied.

To the extent not specifically admitted above, all remaining allegations are denied.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

To the extent that XXXXX retaliation claims are based upon conduct not the subject of a timely-filed charge of discrimination, such claims are barred for failure to exhaust administrative remedies and / or failure to satisfy conditions precedent to suit.

SECOND AFFIRMATIVE DEFENSE

To the extent that XXXXX failed to cooperate and assist with the administrative investigation of her charge of discrimination, her retaliation claims are barred for failure to exhaust administrative remedies and / or failure to satisfy conditions precedent to suit.

THIRD AFFIRMATIVE DEFENSE

To the extent that XXXXX failed to file suit within ninety (90) days of her receipt of a Notice of Right to Sue letter issued by the Equal Employment Opportunity Commission, XXXXX Title VII claim is barred for failure to exhaust administrative remedies and / or failure to satisfy conditions precedent to suit.

FOURTH AFFIRMATIVE DEFENSE

To the extent that XXXXX filed suit prior to the expiration of 180 days from filing a charge of discrimination with the Florida Commission on Human Relations, her FCRA claim is barred for failure to exhaust administrative remedies and / or failure to satisfy conditions precedent to suit.

FIFTH AFFIRMATIVE DEFENSE

To the extent that XXXXX establishes that an actionable hostile environment existed, Defendants exercised reasonable care to prevent and correct any harassing behavior, and XXXXX unreasonably failed to take advantage of preventative or corrective opportunities provided by Defendants or to avoid harm otherwise.

SIXTH AFFIRMATIVE DEFENSE

XXXXX Whistleblower Act claim is barred by her failure to notify Defendants about the alleged illegal activity, policy or practice.

SEVENTH AFFIRMATIVE DEFENSE

The termination at issue in this action was predicated upon grounds other than, and would have been taken absent, any exercise of rights protected by the Whistleblower Act.

EIGHT AFFIRMATIVE DEFENSE

To the extent that XXXXX demonstrates that retaliatory intent was a motivating factor for any challenged employment action, Defendants would have taken the same action in the absence of such impermissible motivating factor.

NINTH AFFIRMATIVE DEFENSE

In the event XXXXX proves that Defendants' employment actions were retaliatory or violative of the Whistleblower Act, Defendants would have taken the same action at a subsequent time as a result of other conduct of XXXXX not then discovered.

TENTH AFFIRMATIVE DEFENSE

To the extent that XXXXX has failed to make a good faith, reasonable effort to mitigate her damages, she is not entitled to relief.

ELEVENTH AFFIRMATIVE DEFENSE

Defendants are entitled to a set off for any amounts recovered by XXXXX through her efforts to mitigate damages.

TWELFTH AFFIRMATIVE DEFENSE

To the extent that XXXXX establishes that the Defendants; agents or employees engaged in discriminatory or retaliatory employment actions, such actions were contrary to Defendants' good faith efforts to comply with the law.

Respectfully submitted,
XXXXX
Florida Bar No.: XXXXXXX
XXXXX
XXXXX
Tampa, Florida XXXXX
XXXXX Telephone
XXXXX Facsimile
Attorney for Defendants