WANJ.KIM Assistant Attorney General DAVID J. PALMER, D.C. BarNo. 417834 Chief Employment Litigation Section, Civil Rights Division David.Palmer@usdoj.gov CHRISTINE M.ROTH, D.C. BarNo. 464815 Deputy Chief Employment Litigation Section, Civil Rights Division Christine.Roth@usdoj .gov KRISTOFORJ. HAMMOND, VA BarNo. 44133 Trial Attorney United States Department of Justice Civil Rights Division, Employment Litigation Section 950 Pennsylvania Avenue, N.W., PHB Room 4016 Washington, DC 20530 Telephone: (202) 353-3011 Facsimile: (202) 353-8961 Kristofor.Hammond@usdoj.gov KARIN J. IMMERGUT, OSB #96314 United States Attorney District of Oregon RONALD K. SILVER Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 Telephone: (503) 727-1044 Facsimile: (503) 727-1117 ron. silver@usdoj.gov
Attorneys for Kevin T. Bower

UNITED STATES DISTRICT COURT

KEVIN T. BOWER, Plaintiff,

2 THE DISTRICT OF OREGON , ... CV ' b t!
Civil Case No. - - - - - -
COMPLAINT

v.
ROADWAY EXPRESS, INC.,

Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 - 4333

Defendant

DEMAND FOR JURY TRIAL

Kevin T. Bower alleges: JURISDICTION AND VENUE
1. This is a civil action brought pursuant to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 - 4333 ("USERRA").
2. This Court has jurisdiction over the subject matter of this action pursuant to 38 U.S.C. § 4323(b).
3. Venue is proper in this district under 38 U.S.C. § 4323(c)(2) and 28 U.S.C. § 1391 (b) because Defendant Roadway Express, Inc. ("Roadway"), maintains a place of business in this judicial district.
PARTIES 4. Plaintiff Bower resides in BattlegroWld, Washington. 5. Roadway maintains a place of business at 6845 N. Cutter Circle, Portland, Oregon 97217, within the jurisdiction of this Court.
FACTUAL ALLEGATIONS 6. On or about April 27, 1998, Bower commenced full-time employment as a truck driver/dock worker with Roadway. 7. On May 17, 1999, Bower enlisted in the United States Army and notified Roadway in writing of his enlistment in the Army. 8. Immediately after Bower notified Roadway of his enlistment in the U.S. Army, Roadway demanded Bower's resignation, but Bower did not resign. 9. Bower went on active duty on May 27,1999. He completed two months of basic training in July 1999.

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COMPLAINT

10. While on active duty, Bower received a flu shot. On December 16, 2000, several days after Bower received the flu shot, he contracted a staph infection, endocarditis, and a vertebral bone infection that rendered him disabled. Due to this disability, the Army honorably discharged him on December 9, 2001.
11. On November 30,2001, Bower gave Roadway notice of his intention to return to work.
12. Upon Bower's return from active duty, Roadway falsely advised him that he was not entitled to the protections of USERRA because he had voluntarily enlisted in the Army. Roadway falsely informed Bower that only reservists had rights under USERRA.
13. Roadway required Bower to take and pass a fit-for-duty medical examination before he could return to work.
14. Dr. Sterling Piepgrass, a Roadway-paid physician, examined Bower on December 19, 2001. Dr. Piepgrass found that although Bower's injury during active military duty made him unable to work in his previous position of truck driver/dock worker, Bower could adequately perform the tasks required of a dispatcher, dock foreman, or office worker employed at Roadway.
15. On March 4, 2002, Roadway informed Bower that because he was not physically fit to return to perform his duties as a truck driver/dock worker, Roadway would not return him to work.
16. Roadway never offered any form of accommodation to Bower, as required by USERRA.
17. Roadway never discussed or offered Bower any other position of equivalent seniority, status, and pay, as required by USERRA.

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COMPLAINT

18. Roadway never discussed or offered any equivalent positions in the nearest approximation in terms of seniority, status, and pay consistent with Bower's circumstances, as required by USERRA.
USERRA CLAIMS 19. Roadway violated 38 U.S.C. § 4311 ofUSERRA, among other ways, by discriminating against Bower, denying him re-employmentand other employment benefits, and discriminating against him (a) because of his membership, service, or obligation to perform service in, the uniformed services, and/or (b) because he took action to enforce a protection afforded him under USERRA or to exercise a right provided for in USERRA. 20. Roadway violated 38 U.S.C. §§ 4312 and 4313 ofUSERRA, among other ways, by failing or refusing to: (a) re-employ Bower; (b) provide any form of accommodation for Bower; (c) find alternative positions equivalent in Bower's seniority, status, or pay, or offer a position in the nearest approximation in terms of seniority, status, and pay consistent with the Bower's circumstances. 21. Roadway's violations ofUSERRA were willful, because Roadway knew or perceived the risk that its failure to properly reinstate Bower's employment violated that statute, or Roadway showed reckless disregard for the matter of whether its failure to properly reinstate Bower's employment was prohibited by that statute. 22. As a result of Roadway's unlawful conduct, Bower has suffered a substantial loss of earnings and other benefits of employment as a result of Roadway's unlawful discrimination

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COl\1PLAINT

and denial of the rights under USERRA. PRAYER FOR RELIEF
WHEREFORE, Bower prays that the Court enter judgment against Roadway, its officers, agents, employees, successors and all persons in active concert or participation with it, as follows:
23. Declare that Roadway's unlawful discrimination, denial of the right to reemployment and denial of the right to benefits of employment were unlawful and in violation of USERRA;
24. Order that Roadway fully comply with the provisions of USERRA by reinstating Bower to a position at the level of seniority, status and compensation that he would have enjoyed had he remained employed continuously with Roadway, or if Bower is not qualified due to his disability incurred in military service, by re-employing Bower in any other position which is equivalent or in nearest approximation in seniority, status and pay, and by paying Bower for his loss of wages and other benefits suffered by reason of Roadway's failure or refusal to comply with the provisions of this law;
25. Order that Roadway pay Bower as liquidated damages an amount equal to the amount of his lost wages and other benefits suffered by reason of Roadway's willful failure or refusal to comply with the provisions of USERRA;
26. Enjoin Roadway from taking any action against Bower that fails to comply with the provisions of USERRA;
27. Award Bower prejudgment interest on the amount of lost wages found due; and 28. Grant such other and further relief as may be just and proper together with the

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COMPLAINT

costs and disbursements of this lawsuit.

~ ~ Dated this

day of

,2006.

Respectfully Submitted,

WANJ.KIM Assistant Attorney General DAVID 1. PALMER Chief Employment Litigation Section Civil Rights Division CHRISTINE M. ROTH Deputy Chief Employment Litigation Section Civil Rights Division United States Department of Justice KRISTOFOR 1. HAMMOND Trial Attorney United States Department of Justice Employment Litigation Section Civil Rights Division

KARIN J. IMMERGUT United States Attorney District Oregon

Assistant U lted States Attorney Attorneys for Plaintiff

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COMPLAINT

 
 Case 3:06-cv-282 As of 10/02/2012 07:40 AM PDT Page 1 of 3 Page ID#: <pageID>
CONSENT,FRC,TERMINATED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:06−cv−00282−HU

Bower v. Roadway Express Assigned to: Magistrate Judge Dennis J. Hubel Cause: 38:4301 Uniformed Services Employment &Re−Employment Rights Act
Plaintiff

Date Filed: 03/01/2006 Date Terminated: 11/13/2006 Jury Demand: Defendant Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Kevin T Bower

represented by Kristofor Jay Hammond US Department of Justice Employment Litigation Section 950 Pennsylvania Avenue, NW Section PHB4016 Washington, DC 20530 (202) 353−3011 Fax: (202) 353−8961 Email: kristofor.hammond@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Neil J. Evans United States Attorney's Office 1000 S.W. Third Avenue Suite 600 Portland, OR 97204−2902 (503) 727−1053 Fax: (503) 727−1117 Email: neil.evans@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald K Silver United States Attorneys Office 1000 SW Third Ave. Suite 600 Portland, OR 97204−2902 (503) 727−1044 Fax: (503) 727−1117 Email: ron.silver@usdoj.gov TERMINATED: 03/23/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Roadway Express, Inc.

represented by David P. R. Symes Ogletree, Deakins, Nash, Smoak &Stewart, P.C. The KOIN Center 222 SW Columbia Street Suite 1500 Portland, OR 97201 503−552−2140 Fax: 5032244518 Email: david.symes@ogletreedeakins.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 3:06-cv-282 As of 10/02/2012 07:40 AM PDT Page 2 of 3 Page ID#: <pageID>

Jeffrey T. Williams Baker &Hostetler, LLP Capitol Square Suite 2100 65 East State Street Columbus, OH 43215−4260 (614) 462−4738 Fax: (614) 462−2616 Email: jwilliams@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rodger L. Eckelberry Baker &Hostetler, LLP Capitol Square, Suite 2100 65 East State Street Columbus, OH 43215−4260 (614) 462−5189 Fax: (614) 462−2616 Email: reckelberry@bakerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/01/2006 03/01/2006
03/21/2006 03/23/2006 05/04/2006 05/04/2006 05/05/2006
05/05/2006
05/11/2006 05/17/2006

# Docket Text
1 Complaint. Fee waived.Filed by Kevin T Bower against Roadway Express, Inc..(ecp, ) (Entered: 03/02/2006)
2 Discovery and Pretrial Scheduling Order and Notice of Case Assignment to the Honorable Dennis J. Hubel. Discovery is to be completed by 6/29/2006. Joint Alternate Dispute Resolution Report is due by 7/31/2006. Pretrial Order is due by 7/31/2006. Ordered by Judge Dennis J. Hubel. (ecp, ) (Entered: 03/02/2006)
3 Waiver of Service of Summons −− Accepted by Roadway Express, Inc. on 3/14/06. Filed by Kevin T Bower. (ljl, ) (Entered: 03/22/2006)
4 Notice of Attorney Substitution:. Filed by Neil J. Evans appearing on behalf of Kevin T Bower.(Evans, Neil) (Entered: 03/23/2006)
5 Answer to Complaint with Jury Demand Answer and Affirmative Defenses. Filed by Roadway Express, Inc..(Symes, David) (Entered: 05/04/2006)
6 Corporate Disclosure Statement. Filed by Roadway Express, Inc.. (Symes, David) (Entered: 05/04/2006)
7 Order Granting Application for Special Admission Pro Hac Vice of Jeffrey T. Williams for Roadway Express, Inc.. Application Fee in amount of $100 collected. Receipt No. 9259 issued. Signed on 5/5/06 by Judge Dennis J. Hubel. (ljl, ) (Entered: 05/08/2006)
8 Order Granting Application for Special Admission Pro Hac Vice of Rodger L. Eckelberry for Roadway Express, Inc.. Application Fee in amount of $100 collected. Receipt No. 9259 issued. Signed on 5/5/06 by Judge Dennis J. Hubel. (ljl, ) (Entered: 05/08/2006)
9 Notice of Appearance by attorney Kristofor Jay Hammond and attorney Christine Roth. Filed by Kristofor Jay Hammond appearing on behalf of Kevin T Bower.(Hammond, Kristofor) (Entered: 05/11/2006)
10 Scheduling Order by Judge Dennis J. Hubel: A Rule 16 Conference is set on June 14, 2006, at 9:30 a.m. by telephone. The court will place the call. Local Rules 16.2(b) and 26.1(a)(b) require that counsel confer prior to the conference. At the conference, counsel should be prepared to discuss the status of the case, relevant dates and deadlines, and any other significant issues. Plaintiff shall advise the court at the conference whether or not there will be full consent to proceed before

Case 3:06-cv-282 As of 10/02/2012 07:40 AM PDT Page 3 of 3 Page ID#: <pageID>

06/14/2006
07/17/2006 11/08/2006 11/09/2006 11/13/2006

magistrate judge in the case. If consents are going to be filed, it is helpful if they are filed prior to the time of the conference, particularly with respect to the setting of trial. (kb, ) (Entered: 05/17/2006)
11 Record of Rule 16 Conference held before Judge Dennis J. Hubel: ORDER − setting a new case schedule. (see formal order) Kristofor Jay Hammond; Christine Ross present as counsel for plaintiff(s). David Symes; Jeffrey Williams present as counsel for defendant(s). Court Reporter: KB/FTR. (kb, ) (Entered: 06/14/2006)
12 Full Consent by all Parties to Jurisdiction by US Magistrate Judge. (ljl, ) (Entered: 07/17/2006)
13 Scheduling Order by Judge Dennis J. Hubel: The court having been notified that this case has settled, the telephone status conference set to take place November 9, 2006 at 10:00 a.m. is STRICKEN from the calendar. (kb) (Entered: 11/08/2006)
14 Notice of Settlement.Filed by Kevin T Bower. (Hammond, Kristofor) (Entered: 11/09/2006)
15 Order Dismissing Case, with prejudice and without costs, and with leave, upon good cause shown within sixty (60) days, to have this order of dismissal set aside and the action reinstated if the settlement is not consummated. Signed on 11/13/06 by Deputy Clerk Kathleen Bartholomew. (kb) (Entered: 11/13/2006)