UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

FORT PIERCE DIVISION 

JAMES MOONEY 

 Case No. 

 Plaintiff, 

 JURY TRIAL DEMANDED 

v. 

MARTIN COUNTY 

 Defendant. 

____________________________/ 

COMPLAINT AND DEMAND FOR JURY TRIAL 

 1. Plaintiff, James Mooney, through counsel, sues Defendant Martin County for 

violations of his rights under the Fair Labor Standards Act (FLSA); the Family Medical Leave 

Act (FMLA); and Florida Workers Compensation Act, and alleges: 

JURISDICTION AND VENUE 

 2. This Court has jurisdiction of this action pursuant to; 28 U.S.C. §1331; 29 U.S.C. 

§216(b); 29 U.S.C. §2617 and 28 U.S.C. §1367. 

 3. Venue is proper within this district pursuant to 28 U.S.C. §1391(b) as the events 

giving rise to this litigation took place in Martin County, Florida. 

PARTIES 

 4. Plaintiff is and was a resident of Martin County, Florida and worked for 

Defendant in Martin County, Florida when employed by Defendant. 

1

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 1 of 11
 5. The Defendant was at all times material hereto conducting its fire safety and 

related activities within the jurisdiction of the District Court of the Southern District of Florida, 

where Plaintiff was employed, and at all times material hereto was and is engaged in interstate 

commerce and subject to the provision of the FLSA. Defendant was and is, during all times 

material to this action, a “public agency” as defined in §3(s)(1)(C) of the FLSA, 29 U.S.C. 

§203(s) and is subject to the FLSA. Upon information and belief, the Defendant’s annual gross 

funding as a local government agency was at all times material hereto in excess of $500,000.00 

per annum, and Defendant purchased supplies and equipment (such as boats and vehicles) which 

have travelled in interstate commerce. 

FACTS 

 6. Plaintiff was continuously employed as a firefighter EMT (emergency medical 

technician) by the Defendant for over 17 years, from January 2003 to October 2, 2020, when the 

Defendant terminated Plaintiff’s employment. Defendant and Plaintiff were bound by a 

Collective Bargaining Agreement which provided for the payment of certain wage and overtime 

pay. 

 7. At the time the Defendant terminated Plaintiff’s employment, Plaintiff was 59 

years of age, and the oldest active firefighter EMT employed by Defendant. 

 8. Plaintiff served as a dedicated first responder to the Martin County, Florida 

community for nearly two decades, and at all times throughout his employment with Defendant, 

Plaintiff performed the duties of his job as a firefighter EMT satisfactorily or better. Plaintiff had 

no disciplinary actions against him and Plaintiff received high positive scores on all his annual 

performance reviews. 

2

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 2 of 11
 9. In June of 2020, Plaintiff was one of four (4) firefighters employed by the 

Defendant who filed a grievance regarding unpaid wages and benefits that had been wrongfully 

withheld by the Defendant for over ten years. 

 10. Plaintiff never received any written response to the grievance but on August 7, 

2020, included with his regular paycheck, Plaintiff received a direct deposit in the gross amount 

of $9708.32, before payroll withholding, for “retroactive pay”. 

 11. The Defendant provided no explanation to Plaintiff regarding how the Defendant 

calculated the “retroactive pay” Plaintiff received, nor did the Defendant provide any explanation 

as to what exactly the “retroactive pay” was for. The only explanation Defendant provided to 

Plaintiff was that the Defendant’s past actions had been deemed “unethical”, and the retroactive 

pay only went back two years pursuant to “the statute” with no further details provided, 

including what specific statute Defendant was referring to. 

 12. Plaintiff did not believe the “retroactive pay” the Defendant paid him was the 

correct amount of what Plaintiff was actually owed from the Defendant. Throughout the 

remainder of August and September 2020, Plaintiff complained about, questioned and disputed 

the amount of retroactive pay that Plaintiff received from Defendant on August 7, 2020. 

 13. On August 14, 2020, Plaintiff took a COVID-19 test, for which he received a 

positive result on August 15, 2020. Plaintiff suffered multiple significant symptoms and illness 

from COVID-19 and was completely unable to work for approximately two weeks in August 

2020. As a first responder in Florida, Plaintiff was presumed to have caught COVID-19 in the 

line of duty. 

3

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 3 of 11
 14. At no time did Defendant advise Plaintiff of his right to make a claim for workers 

compensation or take leave under the Family Medical Leave Act (FMLA), although Defendant 

did provide these benefits to other fire department employees who had not engaged in the 

protected activity that Plaintiff had engaged in, complaining about the amount and calculation of 

unpaid wages and back or retroactive pay received. 

 15. Still not over all symptoms of his illness with COVID-19, but no longer 

contagious, Plaintiff returned to work on August 26, 2020, and that same day he was warned by a 

another firefighter at the fire station while they were both on shift, to stop complaining about the 

retroactive pay, and that if Plaintiff did not stop complainting, the Defendant would certainly fire 

Plaintiff. Plaintiff was undeterred because he believed and continues to believe that the 

Defendant did not pay him the correct amount of back or retroactive pay to which he was and is 

entitled, and Plaintiff continued to openly complain about and question the matter both on all the 

days he was on shift and at work, as well as on his days off, to no avail. 

 16. Through the remainder of August and September 2020, Plaintiff continued to 

suffer effects from COVID-19, including extreme fatigue, brain fog and confusion, and he 

frequently needed to take rest breaks during his work shifts. It was obvious to both Plaintiff and 

Defendant that Plaintiff was not fully recovered from COVID-19. Still, at no time did Defendant 

inform Plaintiff of his right to take more time off under FMLA, or to make a workers 

compensation claim, or provide any other available assistance or benefits of any kind to Plaintiff 

with regard to his continued suffering from the effects of COVID-19. 

 17. Less than two weeks after Plaintiff’s return to work after his initial COVID-19 

diagnosis, and still suffering symptoms of extreme fatigue and brain fog, Plaintiff had a 24 hour 

4

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 4 of 11
shift starting the morning of September 7, 2020 and ending the morning of September 8, 2020. 

Plaintiff did not feel well but it was Labor Day weekend and he did want to call in sick during a 

holiday. 

 18. On the morning of September 8, 2020, minutes before the end of his shift, 

Plaintiff and another firefighter were returning to their fire station from a call, when another call 

came in when they were almost back to the station. The other firefighter did not tell Plaintiff the 

address or location of the call which was the normal procedure, and Plaintiff, confused, but not 

realizing there was a call to respond to, pulled into the station. Immediately upon arriving at the 

station, the Captain on duty told Plaintiff and the firefighter with him that they had a call, and 

Plaintiff immediately drove himself and the other firefighter to the call and fully responded to the 

call. 

 19. On September 9, 2020, Defendant accused Plaintiff of ignoring the September 8, 

2020 call that Plaintiff did in fact respond to, and placed Plaintiff on suspension pending an 

investigation. 

 20. On September 10, 2020, Plaintiff attended a meeting with Defendant, which 

Defendant characterized as an “employee formal investigation” of the Defendant’s accusation 

that Plaintiff failed to respond to a call. 

 21. On September 14, 2020, three of Defendant’s employees, including one of 

Defendant’s Fire Captains, together contacted Plaintiff by telephone and informed Plaintiff that 

the Defendant was offering Plaintiff a voluntary separation package (VESIP) and Plaintiff had 

only until approximately 4:00 PM that same day to decide whether or not he would take it, 

otherwise Defendant would terminate Plaintiff’s employment. Although the Defendant was 

5

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 5 of 11
required, pursuant to the Older Worker Benefit Protection Act (OWBPA) of the Age 

Discrimination in Employment Act (ADEA) to provide Plaintiff with 45 (forty-five) days to 

consider the VESIP, Defendant gave Plaintiff less than one (1) day to decide. Defendant’s Fire 

Chief proceeded to explain to Plaintiff during this same telephone call that the Defendant’s 

County Administrator, had given the Plaintiff the retroactive pay “out of the kindness of her 

heart” and that she was “furious” that Plaintiff had continued to complain about and question the 

amount of the back or retroactive pay he received from Defendant on August 7, 2020. 

 22. Plaintiff declined the rushed VESIP offer on September 14, 2020, and the next 

day, September 15, 2020, Defendant issued a recommendation that Plaintiff’s employment be 

terminated. 

 23. On September 25, 2020, Plaintiff attended a “pre-deprivation hearing” with the 

Defendant, during which Plaintiff provided written medical confirmation to Defendant regarding 

Plaintiff’s diagnosis of PTSD caused by his years as a first responder, and Plaintiff, still 

recovering from COVID-19, became very emotional while describing his PTSD in the midst of 

Defendant arguing his employment of over 17 years should be terminated for what was at worst 

an unintentional mistake. In light of Plaintiff’s emotional state on September 25, 2020, 

Defendant claimed it was concerned about Plaintiff’s itness for duty but did absolutely nothing to 

inform or assist Plaintiff with regard to Plaintiff’s rights to make a workers compensation claim 

and/or take FMLA leave, as it had for other firefighters with PTSD and/or COVID-19. 

 24. On October 1, 2020, Defendant issued a letter of termination to Plaintiff with an 

effective date of termination of October 2, 2020, the same date of separation for the employees 

6

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 6 of 11
who took the VESIP, falsely claiming that Plaintiff had provided no mitigating information to 

Defendant during the September 25, 2020 hearing. 

 25. On November 6, 2020, Plaintiff attended a final grievance hearing and reiterated 

that he was still suffering the effects of COVID-19 on September 8, 2020, and needed help, and 

not to have his employment of over 17 years terminated by the Defendant. Defendant upheld its 

previous decision to terminate Plaintiff’s employment. 

 26. Defendant denied Plaintiff his right to workers’ compensation and/or FMLA leave 

by terminating him in retaliation for questioning and complaining about the amount of 

retroactive pay Defendant provided Plaintiff. 

 27. At least one other firefighter employed by Defendant (who did not complain 

about unpaid wages or backpay) has completely failed and/or refused to respond to more than 

one call, but was not terminated by Defendant. 

COUNT I

VIOLATION OF §215 (a)(3) OF THE FAIR LABOR STANDARDS ACT 

28. Plaintiff re-alleges and incorporates by reference paragraphs 1 - 27. 

 

 29. Plaintiff engaged in protected activity under the FLSA when he complained about 

and disputed the amount of back or retroactive pay provided by the Defendant. 

 30. Defendant retaliated against Plaintiff by terminating Plaintiff’s employment after 

Plaintiff engaged in protected activity under the FLSA. 

 

 31. As a result of Defendant’s unlawful retaliation, Plaintiff has suffered lost wages 

and benefits, suffered harm to his reputation, mental and emotional anguish, and other damages 

7

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 7 of 11
including loss of career advancement opportunities. 

 

 WHEREFORE, Plaintiff respectfully requests the following relief against Defendant: 

 

 (a) Lost wages and compensatory damages; 

 (b) Reasonable costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and 

 (c) Any such further relief as this Court deems just and proper. 

COUNT II 

 VIOLATION OF §206 & §207 OF THE FAIR LABOR STANDARDS ACT 

32. Plaintiff re-alleges and incorporates by reference paragraphs 1 - 27. 

 33. This action is brought by Plaintiff against Defendant for unpaid wages pursuant to 

the FLSA. 

 34. Plaintiff performed compensable work for Defendant for which Defendant has 

refused to pay Plaintiff. 

 35. By failing to pay Plaintiff the pay required under the law, Defendant has violated 

and is continuing to violate the provision of the FLSA in a manner that is unreasonable, willful 

and in bad faith. As a result, at all times material herein, Plaintiff has been unlawfuly deprived of 

wages, compensation, and other relief for the maximum, three-year period allowed under the 

law. 

 36. As a result of Defendant’s willful, unreasonable, and bad faith violations of the 

FLSA, there have become due and owing to Plaintiff an amount that has not yet been precisely 

determined. The employment and work records for Plaintiff (including time and attendance 

records) are in the exclusive possession, custody, and control of Defendant and Plaintiff is unable 

8

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 8 of 11
to state at this time the exact amount owing to him.Defendant is under a duty imposed under the 

FLSA, 29 U.S.C. §211(c), and various other statutory and regulatory provisions, to maintain and 

preserve payroll and other employment records with respect to Plaintiff and other employees 

similarly situated from which the amount of Defendant’s liability can be ascertained. 

 37. Pursuant to 29 U.S.C. §216(b), Plaintiff is entitled to recover liquidated damages 

in an amount equal to his backpay damages for Defendant’s failure to pay wages and overtime 

compensation. 

 38. Plaintiff is entitled to recover attorney’s fees and costs under 29 U.S.C. §216(b). 

 39. As a result of the Defendant’s actions, Plaintiff has suffered lost wages and 

benefits, suffered harm to his reputation, mental and emotional anguish, and other damages 

including loss of career advancement opportunities. 

 

 WHEREFORE, Plaintiff respectfully requests the following relief against Defendant: 

 

 (a) Lost wages, compensatory damages; 

 (b) Reasonable costs and attorney’s fees pursuant to 42 U.S.C. § 1988; and 

 (c) Any such further relief as this Court deems just and proper. 

COUNT III 

 FAMILY MEDICAL LEAVE ACT (FMLA) INTERFERENCE 

 40. Plaintiff re-alleges and incorporates by reference paragraphs 1- 27. 

 41. The Defendant violated the FMLA by terminating the Plaintiff instead of offering 

him FMLA leave when he had COVID-19. 

9

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 9 of 11
 42. Defendant interfered with, restrained, and/or denied Plaintiff’s exercise of his 

rights under the FMLA by terminating him instead of allowing Plaintiff his entitlement to 

FMLA leave. 

 43. Defendant’s failure to allow Plaintiff FMLA leave is a violation of the FMLA. 

 WHEREFORE, Plaintiff prays for judgment against the Defendant as follows: 

 A. Statutory damages for lost wages, benefits, and other compensation, plus interest 

 thereon at the statutory rate, pursuant to 29 U.S.C.A. § 2617(a)(1)(A)(i) and 29 

 U.S.C.A. §§ 2617(a)(1)(A)(ii); 

 B. Additional liquidated damages in the amount of the above-requested 

 award, pursuant to 29 U.S.C.A. § 2617(a)(1)(A)(iii); 

 C. Equitable relief in the form of front pay, pursuant to 29 U.S.C.A. § 2617(a)(1)(B); 

 D. Reasonable attorney’s fees and costs pursuant to 29 U.S.C.A. § 2617(a)(3), and 

 such other relief as this Court may deem just and proper. 

COUNT IV 

 §440.205, FLA. STAT. - WORKERS COMPENSATION 

 44. Plaintiff re-alleges and incorporates by reference paragraphs 1 - 27. 

 45. As a first responder in Florida, when Plaintiff contracted COVID-19 in August 

2020, it was presumed to be in the course of duty and Plaintiff was eligible to claim workers’ 

compensation benefits. 

10

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 10 of 11
 46. Defendant had knowledge and was aware of Plaintiff’s COVID-19 illness , as 

well as PTSD contracted on the job, and had a duty to report a workers compensation claim for 

Plaintiff. 

 47. Defendant terminated Plaintiff’s employment, in violation of §440.205. 

 WHEREFORE Plaintiff demands judgment against Defendant for his back pay, future 

lost wages, and damages for emotional distress. 

DEMAND FOR JURY TRIAL

 The Plaintiff demands a trial by jury on all issues so triable. 

 Dated this 31st day of May 2022. 

 Respectfully submitted, 

 /s/ Peggy Underbrink 

 Attorney for Plaintiff 

 Florida Bar No. 599107 

 PO Box 2463 

 Bellingham WA 98227 

 888-811-0391 

 peggy@peggyulaw.com 

 

11

Case 2:22-cv-14196-DMM Document 1 Entered on FLSD Docket 05/31/2022 Page 11 of 11