1

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICARDO WRIGHT, BERYL

JACKSON, TRACEY MARTIN,

CALVIN FLUKER, LISA

PITCHFORD, KIMBERLY LOVE,

RESHANDA BROWN

PLAINTIFFS,

V.

U.S. FOODSERVICE, INC. and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

DEFENDANTS.

)

)

)

) CIVIL ACTION NO.:

) 2:06cv785-MHT

)

) JURY DEMAND

)

)

)

)

)

)

)

)

MOTION FOR LEAVE TO AMEND THE AMENDED COMPLAINT

COME NOW, the plaintiffs, by and through counsel, andmove this Honorable

Court, pursuant to Rule 15, Fed. R. Civ. P., for the entry of an Order permitting them

to amend their Amended Complaint to clarify the plaintiffs’ claims, correct minor

errors made in the Amended Complaint and add a small number of substantially

similar claims. The proposed Second Amended Complaint is attached hereto as

Attachment A. In support of this motion, plaintiffs state as follows:

1. Plaintiffs’ motion is timely under this Court’s Scheduling Order dated

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November 7, 2006, which sets the amendment deadline as March 1, 2007.

2. The proposed Second Amended Complaint seeks to clarify the plaintiffs’

claims and to correct minor errors included in the Amended Complaint.

3. Moreover, in the Second Amended Complaint, the plaintiffsseek to add

a small number of race and retaliation claims that are substantially similar to the

claims included in the Amended Complaint. Plaintiff seeks to add these claims

pursuant to 42 U.S.C. Section 1981 and/or pursuant to Title VII as allowed in this

Circuit under Gupta v. East Texas State Univ., 654 F.2d 411, 414 (5

th Cir. Unit A)

Aug. 1981).

4. Rule 15(a) of the Federal Rules of Civil Procedure provides that “leave

[to amend pleadings] shall be freely given when justice so requires.” In Forman v.

Davis, the Supreme Court announced the standard to be applied by district courts in

evaluating the propriety of requested amendments to pleadings under Rule 15(a):

If the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claim on the merits. In

the absence of any apparent or declared reason — such as

undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by

amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment,

futility of amendments, etc. — the leave sought should, as

the rule require, be ‘freely given.’ Of course, the grant or

denial of an opportunity to amend is within the discretion

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of the District Court, but outright refusal to grant the leave

without any justifying reason appearing for the denial is

not an exercise of discretion; it is merely abuse of that

discretion and inconsistent with the spirit of the Federal

Rules.

371 U.S. 178, 182 (1962).

5. Although the decision whether to grant leave to amend is committed to

the sound discretion of the district court, the former Fifth Circuit, in Dussouy v. Gulf

Coast Investment Corp., 660 F.2d 594 (5th Cir. 1981), explained the limited scope

of this discretion:

“Discretion” may be a misleading term, for rule 15(a)

severely restricts the judge’s freedom, directing that leave

to amend “shall be freely given when justice so requires.”

It evinces a bias in favor of grating leave to amend. . . .

Thus, unless there is a substantial reason to deny leave to

amend, the discretion of the district court is not broad

enough to permit denial.

Id. at 597-598; see Grayson v. Kmart Corp., 79 F.3d 1086, 1110 (11th Cir. 1996)

(“[A] Court is constrained to allow a plaintiff leave to amend unless there is

substantial countervailing reason.”); Hester v. International Union of Operating

Engineers, 941 F.2d 1574, 1578 (11th Cir. 1991) (“[I]n the absence of any apparent

reason, leave to amend should be granted.”); Espey v. Wainwright, 734 F.2d 748, 750

(11th Cir. 1984).

WHEREFORE, premises considered, plaintiffs respectfully request the entry

Case 2:06-cv-00785-MHT-WC Document 24 Filed 03/01/2007 Page 3 of 5
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of an Order permitting them to file the attached Second Amended Complaint.

Respectfully submitted,

s/Maury S. Weiner

Jon C. Goldfarb (GOL015)

Maury S. Weiner (WEI021)

Ethan R. Dettling (DET001)

Counsel for Plaintiff

OF COUNSEL:

Wiggins, Childs, Quinn & Pantazis, LLC

301 19

th Street North

Birmingham, AL 35203

Telephone No.: (205) 314-0500

Facsimile No.: (205) 254-1500

CERTIFICATE OF SERVICE

I hereby certify that I have filed a true and correct copy of the above and

foregoing document the Clerk of Court using the CM/ECF system which will

electronically notify the following counsel of record:

Tammy L. Baker, Esq.

Tamula R. Yelling, Esq

CONSTANGY, BROOKS & SMITH LLC

One Federal Place, Suite 900

1819 Fifth Avenue North

Birmingham, Alabama 35203

on this the 1st day of March , 2007.

s/Maury S. Weiner

OF COUNSEL

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Case 2:06-cv-00785-MHT-WC Document 24 Filed 03/01/2007 Page 5 of 5
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IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICARDO WRIGHT, BERYL

JACKSON, TRACEY MARTIN,

CALVIN FLUKER, LISA

PITCHFORD, KIMBERLY LOVE,

RESHANDA BROWN,

PLAINTIFFS,

V.

U.S. FOODSERVICE, INC., and

U.S. FOODSERVICE, INC. -

MONTGOMERY DIVISION,

DEFENDANTS.

)

)

)

) CIVIL ACTION NO.:

) 2:06cv785-MHT

)

) JURY DEMAND

)

)

)

)

)

)

)

)

SECOND AMENDED COMPLAINT

I. JURISDICTION

1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331, §

1343(4) and 28 U.S.C. Sections 2201 and 2202. This action is brought to secure the

protection of and to redress the deprivation of rights secured by 42 U.S.C. Section

1981 and Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e et

seq., as amended by theCivil Rights Act of 1991, including 42 U.S.C. § 1981a, which

provide forinjunctive and otherrelief against unlawful discrimination and retaliation

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in employment.

II. PARTIES

2. The plaintiff, Ricardo Wright, is an African-American male, a citizen of the

United States, and a resident of the State of Alabama. Wright has been employed by

the defendant since September 1, 1997.

3. The plaintiff, Tracey Martin, is an African-American female, a citizen of the

United States, and a resident of the State of Alabama. Martin has been employed by

the defendant since August, 1997.

4. The plaintiff, Kimberly Love, is an African-American female, a citizen of the

United States, and a resident of the State of Alabama. Love has been employed by

the defendant since July, 2000.

5. The plaintiff, Calvin Fluker, is an African-American male, a citizen of the

United States, and a resident of the State of Alabama. Fluker has been employed by

the defendant since September 1, 1997.

6. The plaintiff, Beryl Jackson, is an African-American female, a citizen of the

United States, and a resident of the State of Alabama. Jackson has been employed

by the defendant since January 29, 1990.

7. The plaintiff, Lisa Pitchford, is an African-American female, a citizen of the

United States, and a resident of the State of Alabama. Pitchford has been employed

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by the defendant since June, 1998.

8. The plaintiff, Reshanda Brown, is an African-American female, a citizen of

the United States, and a resident of the State of Alabama. Brown was employed by

the defendant from October 31, 2005 to November 13, 2006.

9. The Defendant, U.S. Foodservice, Inc., (hereinafter “defendant” or “U.S.

Foodservice”) is an entity subject to suit under Title VII and 42 U.S.C. § 1981.

U.S. Foodservice, Inc. is authorized to conduct business in the State of Alabama and

has a facility in Montgomery County, Alabama.

10. The Defendant, U.S. Foodservice, Inc. - Montgomery Division (hereinafter

“defendant” or “U.S. Foodservice”) is an entity subject to suit under Title VII and 42

U.S.C. § 1981. U.S. Foodservice, Inc. - Montgomery Division is authorized to

conduct business in the State of Alabama and has a facility in Montgomery County,

Alabama.

III. Exhaustion of Administrative Remedies

11. Plaintiff Wright filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (EEOC) on or about June 23, 2004 and a Supplemental

Charge on September 27, 2004. The EEOC issued a right to sue letter on June 5,

2006.

12. Plaintiff Martin filed a Charge of Discrimination on February 27, 2005 and a

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Supplemental Charge of Discrimination with the Equal Employment Opportunity

Commission (EEOC) on or about February 24, 2006. The EEOC issued a right to

sue letter on June 13, 2006.

13. Plaintiff Love filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (EEOC) on or about March 27, 2005. The EEOC issued

a right to sue letter on June 13, 2006.

14. Plaintiff Fluker filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (EEOC) on or about May 6, 2004. The EEOC issued a

right to sue letter on July 18, 2006.

15. PlaintiffJackson filed a Charge of Discrimination with the Equal Employment

Opportunity Commission (EEOC) on or about March 2, 2005. The EEOC issued a

right to sue letter on June 12, 2006.

16. PlaintiffPitchford filed aCharge of Discrimination with theEqualEmployment

Opportunity Commission (EEOC) on or about February 20, 2005. The EEOC issued

a right to sue letter on June 12, 2006.

17. The Equal Employment Opportunity Commission conducted an independent

investigation into the employment practices of the Defendant company. On

September 14, 2005, theEEOCissued a determination following itsinvestigation into

the charge filed by employee Calvin Fluker. The EEOC determined “Evidence

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obtained during the investigation revealed that Charging Party [Fluker] and a class

of Blacks have been subjected to racial harassment.” The EEOC further “determined

there is reasonable cause to believe the Respondent discriminated against Charging

Party and Blacks as a class by subjecting them to a racially hostile work environment

in violation of Title VII of the Civil Rights Act of 1964, as amended” and that “the

Charging Party and Blacks as a class have been retaliated against after they

complained of racial harassment.”

18. Plaintiff Reshanda Brown brings her claims solely pursuant to 42 U.S.C. §

Section 1981.

IV. STATEMENT OF FACTS

Facts Pertaining to Ricardo Wright

19. Ricardo Wright was hired by the Defendant around September 1, 1997 as a

Sales Trainee.

20. On or aroundNovember 1, 1998, the plaintiff was promoted fromSalesTrainee

to the position of salaried Territory Manager, which is a sales position within the

Defendant company. Since plaintiff was hired in 1997, no other African-American

Territory Managers have been hired in the Birmingham District while many white

Territory Managers have been hired. Of the approximately 115 salesrepresentatives

employed by the Defendant in Alabama, very few are African-American.

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21. On or around January 22, 1999, plaintiff expressed his interest in becoming a

member of management within the Defendant company. Prior to joining the

Defendant, plaintiff had management experience.

22. On June 1, 2000, Wright moved from a salaried Territory Manager to Territory

Manager compensated solely by sales commissions.

23. Wright was forced to change to full commission without a transition period.

Other Territory Managers, who are white, were paid a salary during a lengthy

transition period to a full commission Territory Manager.

24. As a Territory Manager, Wright has been assigned to primarily lower income

African-American areas in metropolitan Birmingham, Alabama. Wright’s territory

has been largely limited to western Birmingham. The Defendant has asserted that it

assigned those areas to Wright because those areas would be “a perfect fit” for him.

Although Wright is assigned to accountsin western Birmingham, large and lucrative

accountsin thewesternBirminghamarea,such as Visionland Amusement Park,Miles

College, and a high volume restaurant in Fairfield, were assigned to white sales

representatives.

25. White sales representatives with less experience and less seniority have been

awarded more lucrative sales territories with much greater income potential than the

lowerincome areas assigned to Wright. In some instances, new white representatives

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with no prior sales experience have been assigned more lucrative accounts and/or

territories.

26. Plaintiff is not routinely permitted to set his own prices on products which

makesit more difficult for himto make sales and earn commissions. Plaintiff’s white

counterparts are often permitted to offer certain product discounts.

27. The Defendant adjusts commissions based on account collections. Territory

Managers, including Wright, with certain percentages of their accounts past due are

assessed a monetary penalty. However, some white Territory Managers have been

exempted from penaltiesfor unpaid balances and have not had their clients’ accounts

placed on a C.O.D. or “no ship” status despite large amounts of seriously delinquent

accounts. In addition, Wright has been subjected to greater scrutiny and discipline

for poor collections when compared to his white counterparts.

28. Plaintiff is also not given the same level of support as his white counterparts.

For example, white Territory Managers are given more support in collecting

delinquent accounts. White Territory Managers often have their clients called on by

members of senior management whereas sales calls on Wright’s accounts by senior

management are extremely rare.

29. Wright’s African-American clients have been given less desirable credit terms

and less flexibility than the clients of plaintiff’s white counterparts, resulting in

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reduced sales and commissions for Wright.

30. Wright’s African-American clients often have received poor customerservice

from the Defendant in the form of missed shipments, late shipments, and shipments

of defective product, which has resulted in reduced sales and commissions for

Wright. When Wright’s clients have discussed their concerns with Wright’s

managers, their complaints have often been ignored and these clients have been told

to “find anothersupplier.” Thistreatment isin contrast to the better quality customer

service provided by the Defendant to clients in higher income, predominantly white

areas where managers will personally call on accounts when there are product quality

concerns or other customer service concerns.

31. Wright has also been denied the opportunity to advance to the position of

District Sales Manager. Until approximately November 2005, Defendant filled these

positions without posting the vacancies. In November 2005, Wright was given the

opportunity to interview for the District Manager position; however, the company

hired a less qualified, white male to fill the position.

32. Prior to filing a Charge of Discrimination with the EEOC, Wright made his

concerns known to his supervisors both verbally and in writing. Wright explicitly

raised complaints that he was being discriminated against by the Defendant because

of his race. Defendant took no steps to address Wright’s complaints of

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discrimination.

33. On or around September 27, 2004,Wright filed a charge of discrimination with

the EEOC.

34. In the first 5 months after Wright filed a Charge of Discrimination, Wright

received almost no commission “recap” reports making Wright’s job much more

difficult. Also, many invoices were “lost” on his accounts that are C.O.D., which has

resulted in delayed payment to Wright and penalties for delinquent accounts.

35. Also, there is currently a District Manager position available in District 2

which has not been filled. Wright expressed his interest in the position, but Wright

was informed the position will not be filled. However, the Defendant is actively

seeking to fill the position with an African American person who has not filed a

charge of discrimination or otherwise opposed unlawful discrimination.

Facts Pertaining to Beryl Jackson

36. Beryl Jackson was hired by the Defendant around January 29, 1990, and was

promoted to Territory Manager in July 1997.

37. Jackson was not assigned a territory upon her promotion to salaried Territory

Manager unlike many new white Territory Managers. Also, Jackson was not

provided a “step down transition” to transition from a salaried Territory Manager to

a full commissionedTerritoryManager whereasmanywhite employees have received

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a salary during the transition to full commission.

38. Jackson has many health care and assisted living facility accounts that are

compensated at a 1% commission structure, while certain white Territory Managers

receive a 3% commission on the same type of accounts, including, but not limited to,

Paul Dekle.

39. Jackson was denied the opportunity to work in two lucrative sales territories,

including Auburn, Alabama, which Todd Hanson received and Greenville, Alabama,

which Angela Wood received, allegedly because those territories were not a “perfect

fit.” Both Hanson and Wood are less experienced and less qualified Territory

Managers than Jackson, and they are both white.

40. Moreover, the Defendant does not equally distribute sales leads to its sales

representatives. White sales representatives are routinely given leads with higher

volume sales and black representatives, including Jackson, are often given leads with

lower sales volumes. Moreover, when Jackson lost substantial commissions from

sales to her National Guard account because of the wars in Afghanistan and Iraq, the

defendant did nothing to supplementJackson’sincome. However, when white males

have lost significant revenues due to special circumstances with accounts, such as

Don Barranco and Mitch Ward, the defendant has paid them a salary to make up for

the lost commissions.

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41. Jackson is assigned primarily leads in the predominately African-American

sections of Montgomery, whereas her white co-workers, including, but not limited to,

Mark Burke, Nolan Senn, and Calvin Prestige, are given the more lucrative leads in

the predominately white sections of Montgomery. One specific example of this

occurred when Jackson was assigned the John Knox Manor account. This account

was assigned to Jackson after the company lost the account. Jackson began cold

calling the account and was able to get most of the business back for U.S.

Foodservice. Subsequently, a person at John Knox Manor (Kathy Crittenden, white

female) wrote to U.S. Foodservice and requested that the account be assigned to

another Territory Manager, Elizabeth Cronic (white female). The account was

eventually transferred to Cronic with Jackson receiving only 1% of sales for 1 year.

The Defendant company did notsupportJackson and actively work to keep her on the

account. However, when Danny Mimms, a white Territory Manager, was in danger

oflosing his account at Maxwell Air Force Base to Jackson because the customer had

requested her, the Defendant took action to make sure Danny Mimms stayed on that

account as opposed to Jackson.

42. Plaintiff is also not given the same level of support as her white counterparts.

For example, white Territory Managers are given more support in collecting

delinquent accounts. Also, white Territory Managers often have their clients called

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on by members of senior management whereas sales calls on Jackson’s accounts by

senior management are extremely rare. For example, Todd Hanson, a white male,

has had numerous delinquent accountsin the Auburn and Montgomery areas causing

his accounts receivables (AR) to be low; however, he is allowed to ship product to

these accounts generally without restrictions and receive commissions. However, if

Jackson’s accounts are delinquent, the product is generally shipped only C.O.D.,

which often results in product being returned.

43. Jackson’s clients often have received poor customer service from the

Defendant in the form of missed shipments, late shipments, and shipments of

defective product, which hasresulted in reduced sales and commissions for Jackson.

This treatment is in contrast to high quality customer service provided by the

Defendant to clients of white Territory Managers, which includes managerial

employees, Julian Alford and Joe Chambliss, making personnel visits to the white

Territory Managers’ customers.

44. Jackson has been denied District Sales Manager positionsthat have been filled

by less qualified whites, including, but not limited to, Phillip Romeii and Scott

Jackson. Romeii was hired only months before he became a District Sales Manager

and Jackson was hired by the Defendant in approximately 2003. These highly

compensated positions are normally filled with white candidates without an open

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application process.

45. Also, there is currently a District Sales Manager position available in District

2 which has not been filled. Jackson expressed her interest in the position, but

Jackson was informed the position will not be filled. However, the Defendant is

actively seeking to fill the position with an African American male who has not filed

a charge of discrimination or otherwise opposed unlawful discrimination. Further,

the Defendant selected Willie Walker, an African-American male who has not filed

a charge of discrimination against the defendant, to serve as a mentor which resulted

in an increase of pay despite Jackson’s much longer tenure with the Defendant.

Moreover, the defendant has denied Jackson promotional compensation such as

Points of Focus points that have been provided to white and/or male employees and

employees who have not opposed race and/or sex discrimination.

Facts Pertaining to Calvin Fluker

46. Calvin Fluker was hired by U.S. Foodservice on or about June 26, 1996. Mr.

Fluker is a National Account Executive for the company.

47. During his employment with the Defendant, Fluker has been subjected to a

racially hostile work environment. For example, in 2004, Danny Mimms, who had

been previously warned about making racial slurs to another African-American

employee, called Fluker a “goddamn nigger” on a company voice mail. On

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information and belief, Danny Mimms received a prior warning in 2001 about using

racial slurs at work. On another occasion, Mimms asked Fluker if his nickname was

“Toby” in clear reference to the book “Roots.” A short time after his second

documented incident of making racial slurs, Danny Mimms was recognized as

“Territory Manager of the Year” at a company-wide awards banquet.

48. Employee Craig Bruce, a sales trainee, also referred to Fluker as a “nigger.”

Bruce called Fluker “nigger” in front of another employee. Bruce was terminated

several days later, but before Bruce’s termination, Fluker was approached by his

supervisor, Kevin Egan, who offered to pay Fluker money if Bruce could be allowed

to keep his job. Fluker turned down the offer of money. Later that same day, Egan

again asked Fluker if he would accept a pay raise. Fluker declined.

49. Further, Kevin Egan on many occasions referred to Fluker as “Mandingo.” In

addition,Julian Alford, another management employee, referred to Fluker as “Kunta

Kenta,” on several occasions, another clear reference to the book “Roots” and to the

slavery of African Americans. Fluker informed Egan and Alford that he found these

names offensive to him. On another occasion, co-employee Phyllis Jones referred

to Brazil nuts as “nigger toes” in Fluker’s presence during a company sponsored

function. Egan also made the statement to Fluker that he was told by the President

of the division that if he did not advance in the company, he would know why or

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words to that effect. Egan made this statement at a reception in which Fluker had

spoken to a young, white female.

50. Moreover, Fluker has been discriminated against in job assignments and

promotions. On or about May 29, 2000, Fluker learned that the Defendant had an

opening for a Territory Manager in the Auburn, Alabama area. Ben McDavid, in

human resources, asked Fluker if he was interested in the position and informed

Fluker that relocation to Auburn, Alabama was a prerequisite to accepting this

position. Fluker declined the position because he did not want to move to Auburn

without help with relocation costs. Thereafter, Todd Hansen, a white male, was hired

instead for the position on or aboutJune 8, 2000 but Hansen did not move to Auburn.

Instead, Hansen purchased a home in east Montgomery and works in the Auburn

market.

51. On or about December 4, 2002, Dale Ward, a white male, retired from U.S.

Foodservice. Ward was a salesman for the company in the Evergreen, Alabama area.

Fluker’s hometown is Evergreen, Alabama. Fluker asked Joe Chambliss, Vice

President of Sales, about the position but Chambliss informed Fluker that people in

that area “were not ready” for Fluker to be a sales representative. Fluker wastold the

area “wouldn’t be a good fit.” A less qualified white representative was hired to work

in the area, and parts of the territory were broken up and divided among two other

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white sales representatives.

52. The Defendant company also has had a policy of not posting certain job

opportunities within the company. Fluker has been denied Territory Manager in

addition to the ones listed above that have not been posted. Moreover, numerous

white males have been hired to fill positions which were not posted including Phillip

Romeii (District Manager), Steve Hansen, Todd Hansen, Craig Bruce (National

Account Executive), and Charles Patroni. Fluker was qualified for all of these

positions and most likely would have accepted any of these positions.

53. After Fluker filed a charge of discrimination with the EEOC, U.S. Foodservice

retaliated against him. Fluker was isolated and ignored by his supervisors and coworkers, disciplined unfairly, excluded fromsalesmeetingsin which Fluker normally

participated, excluded from assignments, and physically threatened. Joe Chambliss

also actively recruited three salestraineesto document any comment made by Fluker

that could be construed as racial or sexual. The company has also retaliated against

Fluker by placing him on a Performance Improvement Plan in or around April, 2006.

54. Further, the Defendant began retaliating against other employees by conducting

individual interrogations of employeeslisted as witnesses byFluker and other African

American employees who filed charges of discrimination with the EEOC. The

Defendant attempted to coerce African-American employeesinto signing statements

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that they had not been subjected to racial discrimination.

55. Also, there is currently a District Manager position available in District 2 which

has not been filled. Fluker has expressed an interest in promotions to management

positions; however, the Defendant is actively seeking to fill the position with an

African-American person who has not filed a charge of discrimination or otherwise

opposed unlawful discrimination.

Facts Pertaining to Lisa Pitchford

56. The plaintiff Pitchford began working for the Defendant in June, 1998, as a

bookkeeper.

57. During her employment, Pitchford has sought promotions to the positions of

payroll clerk, credit clerk, credit manager, other positions in the credit department,

and sales positions, including Sales Trainee and Territory Manager. Each time, less

qualified white and/ormale candidates were selected. Pitchford finally received a job

as Sales Trainee in July, 2005, after she filed an EEOC charge; however, the

defendant refusesto promote her to the higher paying position of Territory Manager.

58. As a Sales Trainee, Pitchford has been forced to spend much more time

covering for sick or absent Territory Managers as compared to white sales trainees,

making it much more difficult for Pitchford to cultivate her own accounts. The

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Defendant has also provided Pitchford inferior leads and leads in lower income

neighborhoods while white sales trainees have been assigned lucrative accounts

and/or stronger leads. The Defendant has also provided lower quality service and

delayed deliveries to Pitchford’s accounts and the Defendant is more restrictive in

granting credit terms to Pitchford’s accounts when compared to similar accounts of

white and/or male salesrepresentatives. Defendant has also provided lesssupport for

Pitchford when an account has a problem than for her white and/or counterparts. All

these actions have been taken by the defendant in order to prevent Pitchford from

receiving a promotion to a commissioned Territory Manager.

59. Also, when established territories become available they are awarded to

whites and/or males or persons who have not opposed race and/orsex discrimination.

For example, Todd Hansen and Terry Lay, white employees, were given established

territories by the defendant. In addition, the defendant recently refused to assign

Pitchford the territory of Calvin Prestige, at least on a temporary basis, although she

had worked the territory successfully in the past.

60. In addition, after Pitchford’s name was mentioned in an EEOC investigation,

the Defendant began retaliating against her by unfairly disciplining her, and by

excluding her from necessary meetings that previously included Pitchford. Most

importantly, however, the defendant has retaliated against Pitchford by denying her

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a promotion to Territory Manager as described above.

Facts Pertaining to Kimberly Love

61. Kimberly Love began working for the Defendant in July, 2000, as a credit

assistant and is still in that job today; although, her job title has changed to credit

coordinator.

62. Because the Defendant company only recently started posting some vacancies,

Love has often been unable to apply for positions in sales and other higher paying

positions. Love did inquire about the Territory Manager position, but she was told

that she would have to accept a Customer Service Representative position prior to

being considered for a Territory Manager position. Love has often been denied the

opportunity to apply for a Territory Manager position because the Defendant did not

post such positions.

63. Love has never been offered a promotion within the Defendant company. The

Defendant once offered to pay Love an additional $ 0.75 per hour if she would take

on the additionalresponsibilities of collecting some debts. On information and belief,

the Defendant made an identical offer to a white female co-worker, Linda Hobbs,

except that she was offered a larger per hour increase than Love was offered.

64. Love has also been denied certain training given to white employees. For

example, Love has not been permitted to have tax training despite repeated requests

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for such training. This training is highly relevant to Love’s current position.

65. In 2005, after Love filed her EEOC charge, the position of credit manager was

posted, but the posting required a four year degree. Because Love only had

completed 3.5 years of college, she did not apply. However, when the vacancy was

sent to the State of Alabama for posting, the VP of Finance, David Watts, instructed

Gwen Thomas in Human Resources to remove the college degree requirement. The

position was not posted internally again, and Al Sartain (white male) was hired off

the street to fill that position.

66. Love was and still is being discriminated against in job assignments. For

example, Love is not allowed to handle C.O.D. Check approvals, but a less qualified

white female, Betty Clayton, is allowed to do that task. Experience in handling

C.O.D. check approvals would assistLove’smovement into a creditmanager position

or higher position.

67. In approximately October 2005, Love applied for the position of credit

manager. Rather than promoting Love, the company hired Charles Wallace, a white

male who had to move from Florida, to fill the position over the plaintiff.

68. In addition, Love has been retaliated against by her direct supervisor, Al

Sartain, in that he has taken actions that have made her job more difficult to perform,

including, but not limited to, failing to approve credit applications submitted by her,

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picking on her, barking at her, and on occasions referring to her lawsuit in a

derogatory manner.

Facts Pertaining to Tracey Martin

69. Martin began working for the respondent in August of 1997 as an Accounting

Clerk.

70. Martin has constantly sought promotions to higher paying positions, and the

Defendant has consistently selected less qualified whites and males over Martin. For

example, on September 20, 2004, the Defendant company selected a white male

named Greg Hueber over Martin for an Assistant Controller position. The reasons

the Defendant company did notselect Martin were pretextual. Mr. Hueber was a new

hire.

71. Martin also applied for a Credit Manager position which was filled by Al

Sartain. The Defendant company again gave pretextual reasons for not promoting

Martin, specifically that she did not have Sarbanes Oxley knowledge. Upon

information and belief, the respondent had already selected a less qualified white

male when the position was posted.

72. When Martin expressed an interest in a sales position, Martin was told by Ken

Kraft, former President of the Division, the position was “not a good fit” for her. The

vast majority of these positions are held by white males, and until recently those

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positions were not posted.

73. In August 2005, when she was an Accounting Clerk, Martin applied for a

position as an Accounts Receivable Manager. On approximately October 4, 2005,

Martin learned that the Accounts Receivable Manager position was awarded to a less

qualified white female, Diane Bogard. Martin was informed that she was not

awarded the Accounts Receivable Manager position because Martin was overqualified for the position. Rather than award Martin the Accounts Receivable

Manager position, which included supervisory responsibilities and a higher salary

than Martin earns, the Defendant created a new position, Staff Accountant II, for her.

Martin accepted the newposition based on representationsthat have not materialized.

74. As a Staff Accountant II, Martin has no supervisory responsibilities, and

Martin performs much of the same work that she performed in her prior clerk

position, along with being assigned numerous menial tasks. Martin also has to seek

out job duties and assignments. Apparently, the position was created as the result of

Martin’s filing an EEOC charge, and as the result, Martin has to often search for

work to occupy her days. The Staff Accountant II position is a “dead end” job that

severely limits Martin’s opportunities for advancement.

75. Further,since Martin received the Staff Accountant II position, the Controller,

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Shelby Pierce, constantly monitors Martin’s every move, while she does not treat

white employees or employees who have not previously filed an EEOC charge in the

same manner.

Facts Pertaining to Reshanda Brown

76. Plaintiff Brown began working for the Defendant on October 31, 2005, in the

company’s credit department. Plaintiff was employed by the Defendant as a

temporary employee through an employment agency, Walker Personnel, with the

expectation that she would become a permanent employee of the Defendant after 90

days.

77. Brown performed the essential functions of a credit analyst on a daily basis

from October 31, 2005 until her last date of employment on November 13, 2006.

During her employment, Brown was also trained on tasks generally performed by a

credit coordinator.

78. Brown’s daily job duties consisted primarily of calling on assigned accounts

with past due balances, resolving any problem invoices, and collecting past due

monies.

79. Brown received no verbal or written discipline of any kind while employed by

the defendant.

80. After her initial 90 days of employment, Brown began inquiring about a

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permanent position with the Defendant and was told that there were no open

positions.

81. On July 14, 2006, Brown sent an e-mail to Al Sartain, which plaintiff belies

was also sent to Ben McDavid and David Watts, to again confirm her interest in a

permanent position.

82. Subsequently, the defendant decided to hire a permanent employee to fill a

credit analyst position in the credit department. This open position was first made

available in the summer of 2006 to current permanent employees of the defendant,

and Brown was told she could not apply at that time.

83. Upon information and belief, no qualified inside candidates applied; therefore,

the credit analyst vacancy was opened to outside applicants and Brown applied.

84. Brown was interviewed by Credit Managers, Al Sartain and Charles Wallace,

during September 2006. The interview lasted approximately five minutes. During

this interview Brown was told by Sartain that the credit analyst position was being

combined with a credit coordinator position and that one person would be hired

instead of two persons.

85. On November 13, 2006, Brown wasinformed that the Defendant hired a white

female named Allison Eskew for the position, who began working that same day.

Credit Manager Sartain told Brown that he was sorry to tell her that they had hired

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someone else to fill the position and that they no longer needed her. Brown was told

thatshe needed to collect her belongings and leave immediately. Brown had to leave

that day so that Eskew would have a place to work. Brown had a proven track record

ofsuccessfully performing the functions of a credit analyst with the Defendant, while

Ms. Eskew was hired off the street and had to be trained by Kimberly Love to

perform to duties that Brown already knew how to perform.

86. In addition, the defendant discriminated against Brown by failing to hire her

from her temporary position to a permanent position as quickly as the defendant has

for white temporary employees, including Kelly Mathews, a white female. IV.

CAUSES OF ACTION

A. COUNT I — RACE AND/OR GENDER DISCRIMINATION

87. The plaintiffs re-allege and incorporate by reference paragraphs 1-86 above

with the same force and effect as if fully set out in specific detail hereinbelow.

88. During their employment, the Defendant discriminated against the plaintiffs

because of their African-American race and/or gender in compensation, promotions,

job assignments, discipline, training, hiring, and other terms, conditions and

privileges of their employment.

89. The Defendant’s articulated reasons for these actions are not legitimate.

90. Said race and/or sex discrimination was done maliciously, willfully, and with

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reckless disregard for the rights of the plaintiffs.

91. The plaintiffs have no plain, adequate or complete remedy at law to redressthe

wrongs alleged herein and this suit for backpay, declaratory judgment, injunctive

relief, and compensatory and punitive damages is their only means of securing

adequate relief.

92. The plaintiffs are now suffering, and will continue to suffer irreparable injury

from Defendant’s unlawful conduct as set forth herein unless enjoined by this Court.

B. COUNT II — RACE DISCRIMINATION - HOSTILE WORK

ENVIRONMENT

93. The plaintiffs re-allege and incorporate by reference paragraphs 1-92 above

with the same force and effect as if fully set out in specific detail hereinbelow.

94. During the course of his employment, Calvin Fluker was continuously

subjected to a racially hostile work environment.

95. The Defendant was aware of this hostile and abusive environment and refused

to take appropriate remedial action.

96. The Defendant ratified and/or condoned such hostile and abusive behavior by

failing to take appropriate remedial action.

97. The Defendant is vicariously liable for the conduct of the employees and

supervisors that harassed the plaintiff.

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98. Said racial harassment was done maliciously, willfully, and with reckless

disregard for the rights of the plaintiff.

99. Plaintiff Fluker has no plain, adequate or complete remedy at law to redress

the wrongs alleged herein and thissuit for backpay, declaratory judgment, injunctive

relief, and compensatory and punitive damages is his only means of securing

adequate relief.

100. The plaintiff is now suffering, and will continue to suffer irreparable injury

from Defendant’s unlawful conduct as set forth herein unless enjoined by this Court.

C. COUNT III - RETALIATION

101. The plaintiffs re-allege and incorporate by reference paragraphs 1-100 above

with the same force and effect as if fully set out in specific detail hereinbelow

102. The plaintiffs have opposed the Defendant’s discriminatory practices by filing

EEOC charges and making other complaints of race and/or sex discrimination.

103. In response to the plaintiffs opposing discrimination and engaging in protected

activity, the Defendant retaliated against the plaintiffsin compensation, promotions,

job assignments, discipline, training, and other terms, conditions and privileges of

employment.

104. Areasonable person would have found the Defendant’s discriminatory actions

to be materially adverse and such actions might have dissuaded a reasonable

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employee from making or supporting a charge of race and/or sex discrimination.

105. Said retaliation was donemaliciously,willfully, andwith reckless disregard for

the rights of the plaintiffs.

106. The plaintiffs have no plain, adequate or complete remedy at law to redressthe

wrongs alleged herein and this suit for backpay, declaratory judgment, injunctive

relief, and compensatory and punitive damages are their only means of securing

adequate relief.

107. The plaintiffs are now suffering, and will continue to suffer irreparable injury

from the Defendant’s unlawful conduct as set forth herein unless enjoined by this

Court.

V. PRAYER FOR RELIEF

WHEREFORE, the plaintiffs pray that this Court assume jurisdiction of this

action and after trial:

1. Issue a declaratory judgment that the employment policies, practices,

procedures, conditions and customs of the Defendant violate the rights of the

plaintiffs secured by Title VII, as amended, and/or 42 U.S.C. § 1981.

2. Grant the plaintiffs a permanent injunction enjoining the Defendant, its agents,

successors, employees, attorneys and those acting in concert with the Defendant and

at the Defendant’s request from continuing to violate Title VII and/or 42 U.S.C. §

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1981.

3. Enter an Order requiring the Defendant to make the plaintiffs whole by

awarding them the positions they would have occupied in the absence of race and/or

sex discrimination and retaliation, front pay, back-pay (plus interest), nominal

damages, lost seniority, benefits, loss of pension, compensatory and punitive

damages, and pre and post judgment interest.

4. The plaintiffs further pray for such other relief and benefits as the cause of

justice may require, including, but not limited to, an award of costs, attorneys’ fees

and expenses.

PLAINTIFFS DEMAND A TRIAL BY STRUCK JURY

Respectfully submitted,

s/Maury S. Weiner

Jon C. Goldfarb (GOL015)

Maury S. Weiner (WEI021)

Ethan R. Dettling (DET001)

Counsel for Plaintiff

OF COUNSEL:

Wiggins, Childs, Quinn & Pantazis, LLC

301 19

th Street North

Birmingham, AL 35203

Telephone No.: (205) 314-0500

Facsimile No.: (205) 254-1500

CERTIFICATE OF SERVICE

I hereby certify that I have filed a true and correct copy of the above and

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foregoing document the Clerk of Court using the CM/ECF system which will

electronically notify the following counsel of record:

Tammy L. Baker, Esq.

Tamula R. Yelling, Esq

CONSTANGY, BROOKS & SMITH LLC

One Federal Place, Suite 900

1819 Fifth Avenue North

Birmingham, Alabama 35203

on this the 1

st

day of March , 2007.

s/Maury S. Weiner

OF COUNSEL

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