IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DUSTIN SMITH, ) 

 ) 

 Plaintiff ) Cause No.: 1:16-cv-00306 

 ) 

vs. ) 

 ) 

WRIGHT TREE SERVICE, INC., ) 

 ) 

 Defendant ) 

COMPLAINT FOR DAMAGES 

AND REQUEST FOR JURY TRIAL

 Plaintiff, Dustin Smith, by counsel and as his Complaint for Damages against Defendant, 

states as follows: 

PARTIES, JURISDICTION AND VENUE

 1. Plaintiff, Dustin Smith, is a resident of Allen County in the State of Indiana and a 

former employee of Defendant. 

 2. Defendant, Wright Tree Service, Inc., is an employer as defined by 42 U.S.C. §12101 

et. seq. and 29 U.S.C. § 2612 et. seq. and conducts business in the State of Indiana. 

 3. Mr. Smith invokes this Court’s federal question jurisdiction pursuant to 28 U.S.C. §§ 

1331 and 1343(a). 

 4. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. 

GENERAL FACTS & SPECIFIC ALLEGATIONS

 5. Plaintiff began his employment with Defendant in 2014. 

 6. Plaintiff suffers from Irritable Bowel Syndrome ("IBS"). 

 7. From June to September 2015, Plaintiff was assigned to a job spraying tree stumps 

with a chemical called Garlon 4 on the property of American Electric Power. 

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 8. While working on American Electric Power property, Plaintiff was told that it is 

illegal to spray stumps with Garlon 4 without a Category 6 license. 

 9. In September, the Defendant instructed Plaintiff to spray Garlon 4 on a job and 

Plaintiff stated that it was illegal to do so. Defendant ordered Plaintiff to do it anyway. 

 10. Afterwards Plaintiff contacted the Indiana Department of Agriculture and confirmed 

that it was illegal for him to spray the stumps with the proper credentials, and Plaintiff notified 

his supervisor that he could not use the chemical until he received Category 6 training. 

10. Approximately a week later, Plaintiff's IBS flared up and caused him to be three (3) 

minutes late to work. 

11. Plaintiff was terminated on October 19, 2015, allegedly for being tardy. 

12. Plaintiff filed a charge of discrimination with the Equal Opportunity Commission 

wherein he alleged discrimination under the American’s with Disabilities Act of 1990 42 U.S.C. 

§ 12101 (ADA) charge number 470-2016-00589). 

13. The Equal Employment Opportunity Commission issued Plaintiff a Right-to-Sue 

letter on June 9, 2016. 

COUNT I 

14. Plaintiff incorporates by reference paragraphs one through thirteen (13) of his 

complaint for damages. 

15. Plaintiff suffers from a disability as defined by the Americans with Disabilities Act, 

specifically he suffers from Irritable Bowel Syndrome. 

 16. The Defendant was aware Plaintiff’s disability and/or perceived disability and 

refused to provide reasonable accommodation when Plaintiff stopped to use a restroom facility 

on his way to work. 

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17. Plaintiff was able to perform the essential functions of his job, with or without 

reasonable accommodation. 

18. The Defendant was motivated by Plaintiff’s disability and/or perceived disability 

when it terminated his employment. 

19. Non-disabled employees outside Plaintiff’s protected class were treated more 

favorably than Plaintiff. 

 20. As a result of Defendant violating Plaintiff’s rights as protected under the Americans 

with Disabilities Act, Plaintiff sustained damages including, but not limited to, lost pay and 

benefits, mental and emotional anguish, attorney fees and costs. 

 WHEREFORE, Plaintiff prays for judgment against Defendant, for an award of lost 

wages and benefits, compensatory damages, attorney fees and costs incurred herein, and for all 

other appropriate relief. 

COUNT II 

 21. Plaintiff incorporates by reference paragraphs one (1) through twenty (20) above. 

 22. On or about September or October, 2015, Plaintiff contacted the Office of the 

Indiana State Chemist and learned that it is illegal spray Garlon 4 without being certified and 

licensed by the State of Indiana. 

 23. Plaintiff could be subject to personal fines and jail time for knowingly violating 

the regulations governing the application of herbicides and therefore informed Defendant that he 

could no longer spray the herbicide. 

 24. Defendant contravened the Indiana law when it terminated Plaintiff on or about 

October 19, 2015 in retaliation for complaining about Defendant's illegal actions and/or refusing 

to violate the law. 

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 25. Plaintiff's termination, by Defendant, for opposing the violation of state law is 

contrary to public policy and actionable under common law. 

 26. As a result of Defendant's actions, Plaintiff sustained damages including, but not 

limited to, lost wages and benefits, and attorney fees. 

WHEREFORE, Plaintiff, Dustin Smith, by counsel, respectfully requests judgment 

against Defendant, Wright Tree Service, Inc., in an amount sufficient to fairly and adequately 

compensate Plaintiff for his lost wages and benefits, injuries and damages, anguish, mental 

suffering, and damages, attorney fees and for all other relief just and proper in the premises. 

 Respectfully submitted, 

 HENN HAWORTH CUMMINGS & PAGE 

 

 /s/ Paul J. Cummings

 David M. Henn, #18002-49 

 Paul J. Cummings, #22713-41 

 

REQUEST FOR JURY TRIAL

 Plaintiff, by counsel, respectfully requests this cause be tried by jury. 

 

 Respectfully submitted, 

 

 HENN HAWORTH CUMMINGS & PAGE 

 /s/ Paul J. Cummings

 David M. Henn, #18002-49 

 Paul J. Cummings, #22713-41 

HENN HAWORTH CUMMINGS & PAGE 

625 N. Madison Avenue, Suite A 

Greenwood, Indiana 46142 

(317) 885-0041 

(888) 308-6503 Fax

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