THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MARY ROBUSTELLI, )

Plaintiff, )

)

vs. ) Case No.: 

)

LUKE OIL CO., INC., GATEWAY )

TRIANGLE CORP., TARA DAVIS and )

UNKNOWN SUPERVISORS, )

Defendants. )

COMPLAINT

NOW COMES Plaintiff MARY ROBUSTELLI (hereinafter “ROBUSTELLI”), by and

through counsel, Robin Remley of the Law Office of Robin Remley LLC and for her Complaint

against the Defendants, LUKE OIL CO., INC. (“LUKE’S”), GATEWAY TRIANGLE CORP.

(“GATEWAY”), TARA DAVIS (“DAVIS”) and UNKNOWN SUPERVISORS states as follows:

I. Introduction

1. Plaintiff filed this action to redress violations by Defendants, LUKE OIL CO., INC.

(“LUKE’S”), GATEWAY TRIANGLE CORP. (“GATEWAY”), TARA DAVIS (“DAVIS”) and

UNKNOWN SUPERVISORS of the Family and Medical Leave Act (“FMLA”) (29 U.S.C. Sect.

2601 et seq.), the Americans with Disabilities Act (ADA) and as amended (ADAAA) and the Age

Discrimination in Employment Act (ADEA).

II. Jurisdiction and Venue 

2. This action is initiated pursuant to the Family Medical Leave Act (FMLA), The

Americans with Disabilities Act as it is amended and the Age Discrimination in Employment Act.

This Court may properly maintain personal jurisdiction over Defendants because Defendants’

contact with this state and this judicial district is sufficient for the exercise of jurisdiction over

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Defendants to comply with traditional notions of fair play and substantial justice.

3. The United States District Court for the Northern District of Indiana has original

subject matter jurisdiction, and venue is properly laid in this district because the claims arise under

laws of the United States and all actions took place in the county of Lake, State of Indiana.

III. Parties/Background

4. Plaintiff MARY ROBUSTELLI (“ROBUSTELLI) is a citizen of the United States,

residing in the County of Lake, State of Indiana.

5. Defendant LUKE’S does business in County of Lake, State of Indiana.

6. Defendant GATEWAY does business in County of Lake, State of Indiana.

7. DAVIS was the pay and benefits manager of ROBUSTELLI, and thus had authority

and control over the hiring, firing and disciplining of ROBUSTELLI; had knowledge, authority

and/or control over employment decisions regarding ROBUSTELLI; had knowledge, authority

and/or control over approval/denial/management of her medical, short term disability and FMLA

leaves as well as providing proper compliance with notifications and guidance pursuant to the

FMLA and ADA/ADAAA; and had knowledge, authority and/or control over

approval/denial/management of her medical, short term disability and FMLA leaves and any

accommodations needed, as well as reinstatement upon return from FMLA leave.

8. UNKNOWN SUPERVISORS were Supervisors of ROBUSTELLI, and thus had

authority and control over the hiring, firing and disciplining of ROBUSTELLI; had knowledge,

authority and/or control over employment decisions regarding ROBUSTELLI; had knowledge,

authority and/or control over approval/denial/management of her medical, short term disability and

FMLA leaves as well as providing proper compliance with notifications and guidance pursuant to

the FMLA and ADA/ADAAA; and had knowledge, authority and/or control over

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approval/denial/management of her medical, short term disability and FMLA leaves and any

accommodations needed, as well as reinstatement upon return from FMLA leave.

IV. Factual Background

9. ROBUSTELLI began working for LUKE’S on November 25, 2008.

10. ROBUSTELLI was terminated on January 16, 2015.

11. During the six (6) years prior to her termination, ROBUSTELLI had experienced

significant knee problems.

12. ROBUSTELLI walked with a noticeable limp for some time, even prior to her knee

replacement.

13. Due to ROBUSTELLI’s significant knee problems, she was substantially limited in

several life activities, including walking and standing. ROBUSTELLI was disabled and/or

perceived to be disabled.

14. In 2008-2010, ROBUSTELLI was a manager on salary and commission.

15. In 2010, ROBUSTELLI was demoted to a cashier position and took a significant pay

cut. She was told it was because it would be less stressful on her knees, although she was

performing her duties without accommodation and had not asked for accommodation. As a cashier,

she was taking significant overtime due to call offs, and was making overtime pay.

16. In 2012, ROBUSTELLI was then given the title of assistant store manager, but was

doing the same duties she had done before. However, as an assistant manager, ROBUSTELLI was

put on salary at a rate that amounted to less than what her hourly rate as cashier amounted to, and

she was not paid for overtime.

17. In June 2014, ROBUSTELLI took off time due to her right knee surgery. At that

time, she applied for FMLA act coverage, and believed she had six (6) weeks of FMLA left.

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18. In November, 2015, ROBUSTELLI again applied for FMLA leave due to left knee

surgery.

19. Pursuant to her anticipated leave in November, 2015, ROBUSTELLI requested

FMLA leave.

20. Subsequently, Defendants provided ROBUSTELLI with U.S. Department of Labor

form WH-381, “Notice of Eligibility and Rights and Responsibilities (Family and Medical Leave

Act)”.

21. On that form, provided by DAVIS, Defendants indicated that ROBUSTELLI was

eligible for FMLA leave, and was to submit a health care certification form.

22. The WH-381 form indicated that once the Defendants obtained the information

requested, they would inform ROBUSTELLI, within five (5) business days, whether her leave

would be designated as FMLA leave and count towards her FMLA leave entitlement.

23. ROBUSTELLI provided the completed the U.S. Department ofLaborformWH-380-

E Certification of Healthcare Provider for Employees’ serious health condition (“Family and

Medical Leave Act”). On that form, ROBUSTELLI’s physician indicated that the probable duration

of her condition would be 12 to 16 weeks, and that she would be having a left total knee replacement

on November 18, 2014. Further, the form indicated that ROBUSTELLI would be incapacitated for

a single continuous period of time due to her serious health condition, beginning November 18,

2014, for 12 to 16 weeks.

24. In response to the certification from healthcare provider, Defendants did not provide

ROBUSTELLI with notice of the requisite designating her leave as FMLA leave, nor did they

inform her of the duration of allowable leave in writing, with a proper return date.

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25. Additionally, prior to taking the FMLA leave for her left knee surgery in November,

2014, ROBUSTELLI contacted Human Resources and wasinformed that she had up to twelve (12)

weeks of personal leave and that there were “no worries”.

26. At that time, ROBUSTELLI indicated that her leave would last approximately

through February, 2015.

27. During ROBUSTELLI’ssecond leave beginning November, 2014, related to her left

knee surgery, ROBUSTELLI was terminated, via a letter dated January 16, 2014 from DAVIS.

29. At no time during her leave, did ROBUSTELLI receive any sort of notification that

she was required to return to work or be terminated.

COUNT I - FMLA INTERFERENCE AGAINST ALL DEFENDANTS

30. Paragraph 30 hereby re-alleges and incorporates Paragraphs 1 through 29 as if fully

set out herein.

31. LUKE’S has more than fifty (50) employees within a seventy-five (75) mile radius

of the facility where ROBUSTELLI worked, and thus is subject to the mandates of the FMLA.

32. ROBUSTELLI was qualified for FMLA leave in that she had a serious health

condition, i.e. severe knee pain requiring surgery.

33. By requesting leave and going on leave, ROBUSTELLI exercised her rights pursuant

to the FMLA.

34. By failing to provide ROBUSTELLI with a notice designating her leave as FMLA

and/or indicating a return date to work, Defendants interfered with ROBUSTELLI’s FMLA rights.

35. By terminating ROBUSTELLI, Defendants interfered with ROBUSTELLI’s FMLA

rights.

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36. Defendants UNKNOWN SUPERVISORS are individually liable under the FMLA

due to her control over ROBUSTELLI’S leaves, benefits, and termination.

37. Defendant TARA DAVIS is individually liable under the FMLA due to her control

over ROBUSTELLI’S leaves, benefits, and termination.

38. Further, Defendants, LUKE’S an d GATEWAY are vicariously liable for the actions

of employees and DAVIS and UNKNOWN SUPERVISORS, via respondeat superior, asthey were

acting within the scope of their employment with LUKE’S at the time of their actions.

39. Defendants’ actions were not in good faith and they did not take stepsto complywith

FMLA.

WHEREFORE, Plaintiff seeks judgment against the Defendants, LUKE OIL CO., INC.

(“LUKE’S”), GATEWAY TRIANGLE CORP. (“GATEWAY”), TARA DAVIS (“DAVIS”) and

UNKNOWN SUPERVISORS in an amount that is fair and reasonable in the premises, plus costs

of this action, punitive or liquidated damages per statute, attorneysfees, and all other just and proper

relief.

COUNT II - FMLA RETALIATION AGAINST ALL DEFENDANTS

40. Paragraph 40 hereby re-alleges and incorporates Paragraphs 1 through 39 as if fully

set out herein.

41. Based on the actions of LUKE’S, GATEWAY TRIANGLE CORP., TARA DAVIS

and UNKNOWN SUPERVISORS in failing to provide ROBUSTELLI with the proper designation

notice, and/or failing to provide her with a proper return to work date, and in terminating

ROBUSTELLI, Defendants retaliated against ROBUSTELLI for exercising her FMLA rights.

WHEREFORE, Plaintiff seeks judgment against the Defendants, LUKE OIL CO., INC.

(“LUKE’S”), GATEWAY TRIANGLE CORP. (“GATEWAY”), TARA DAVIS (“DAVIS”) and

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UNKNOWN SUPERVISORS in an amount that is fair and reasonable in the premises, plus costs

of this action, punitive or liquidated damages per statute, attorneysfees, and all other just and proper

relief.

COUNT III–VIOLATIONS OF THE ADA/ADAAA AGAINST LUKE’S and GATEWAY

42. Paragraph 42 hereby re-alleges and incorporates Paragraphs 1 through 43 as if fully

set out herein.

43. ROBUSTELLI is a disabled individual or considered to have a disability based on

her significant knee problems and the fact that she is substantially limited in several life activities,

including walking and standing.

44. ROBUSTELLI was discriminated against for being disabled or being perceived as

having a disability. She suffered multiple demotions and pay cuts during her employment with

Defendants. At one point, she went from being a assistant manager/manager on salary and

commission to a cashier, with a significant pay cut. She was told at that time that it would “it would

be less stressful on her knees” although she was performing her duties without accommodation and

had not asked for accommodation. Thereafter, she was given a title of assistant store manager doing

the same duties as before, with less pay.

45. ROBUSTELLI was discriminated against for being disabled or being perceived as

disabled in that Defendants failed to accommodate her by terminating her in lieu of leave as an

accommodation.

46. ROBUSTELLI was unlawfully discriminated against on the basis of her disability

or perceived disability in the terms and conditions of her employment by (among other things):

• being subjected to higher levels of managerial scrutiny than similarly situated, nondisabled employees;

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• subjecting plaintiff to a higher level of disciplinary scrutiny than similarly situated

non-disabled employees;

• terminating plaintiff's employment on the basis of the foregoing;

• demoting Plaintiff;

• subjecting Plaintiff to pay cuts;

• by not reasonable accommodating her.

47. ROBUSTELLI was discriminated against and treated unequally in violation of the

Americans with Disabilities Act of 1990 (and ADAAA).

WHEREFORE, Plaintiffseeks judgment against the Defendants, LUKE OIL CO., INC. and

GATEWAY TRIANGLE CORP. (“GATEWAY”) in an amount that is fair and reasonable in the

premises, plus costs of this action, punitive or liquidated damages per statute, attorneys fees, and all

other just and proper relief.

COUNT IV–OVERTIME VIOLATION PURSUANT TO THE FAIR LABOR

STANDARDS ACT AGAINST LUKE’S and GATEWAY

48. Paragraph 48 hereby re-alleges and incorporates Paragraphs 1 through 47 as if fully

set out herein.

49. Plaintiff performed various activities for Defendants in Lake County, Indiana and

throughout the duration of her employment her duties primarily included tasks such as filling in and

preparing schedules, ordering supplies, placing orders, filling supplies, preparing paperwork, doing

daily reports, collecting money and making deposits.

50. Plaintiff did not implement, manage policies or oversee normal business operations.

She did not have authority to exercise discretion or independent judgment with respect to matters

of significance. She did not advise management, or plan, negotiate or represent on behalf of the

Defendants. She did not have authority to hire, fire, or interview employees, said or adjust rates of

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pay, discipline employees, etc.

51. Defendants, LUKE’S and GATEWAY, conduct its businessesin, among others, Lake

County, Indiana, and are therefore within jurisdiction of this Court.

52. This action is brought under the FLSA to recover from Defendants, LUKE’S and

GATEWAY overtime compensation, liquidated damages, and reasonable attorneys’ fees and costs

for the past seven (7) years.

53. This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §1337 and

the FLSA, and the authority to grant declaratory relief under the FLSA pursuant to 28 U.S.C. § 2201 

et seq.

54. At all material times relevant to this action, Defendants were an enterprise covered

by the FLSA, and as defined by 29 U.S.C. § 203(r) and 203 (s).

55. At all times relevant to this action, Defendants failed to comply with 29 U.S.C. §§

201209, because Plaintiff, and those similarly situated to her, performed services for Defendants

for which no provisions were made by Defendants to properly pay Plaintiff, and those similarly

situated to her, for those hours worked in excess of forty within a work week. Specifically,

Defendants misclassified Plaintiff, and those similarly situated to her, as exempt from overtime

under the FLSA when, in fact, the realities of the situation were that Plaintiff, and those similarly

situated to her, were performing non-exempt duties for the Defendants.

56. As a result of Defendants misclassification regarding their non-exempt status,

Plaintiff, and those similarly situated to her, were not paid time and one-half their regular rate of pay

for all hours worked in excess of forty (40) per work week during one or more work weeks.

57. Upon information and belief, the records, to the extent any exist, concerning the

number of hours worked and amounts paid to Plaintiff and other similarly situated to her, are in the 

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possession and custody of Defendants.

58. Plaintiff has retained the services of the undersigned law firm who are entitled to be

paid for their services as well as the costs incurred.

59. Plaintiff, and those similarly situated to her, are/were entitled to be paid time and onehalf their regular rate of pay for each hour worked in excess of forty (40) per work week. During

their employment with Defendants, Plaintiff, and those similarly situated to her, regularly worked 

overtime hours but were not paid time and one half compensation for same.

60. As a result of Defendants intentional, willful, and unlawful acts in refusing to pay

Plaintiff, and those similarly situated to her, time and one half their regular rate of pay for each hour

worked in excess of forty (40) per work week in one or more work weeks, Plaintiff, and those

similarly situated to her, have suffered damages plus incurring reasonable attorneys’ fees and costs.

61. As a result of Defendants willful violation of the FLSA, Plaintiff, and those similarly

situated to her, are entitled to liquidated damages.

WHEREFORE, Plaintiff and all other similar situated employees, demand judgment against

the Defendants, LUKE OIL CO., INC. (“LUKE’S”) and GATEWAY TRIANGLE CORP.

(“GATEWAY”) for payment of all overtime hours at one-halfregular rate of pay with hours worked

by them for which Defendants did not properly compensate in an amount that is fair and reasonable

in the premises, plus costs of this action, punitive or liquidated damages per statute, attorneys fees,

and all other just and proper relief.

COUNT V–INDIANA WAGE PAYMENT ACT AGAINST LUKE’S and GATEWAY

62. Paragraph 62 hereby re-alleges and incorporates Paragraphs 1 through 61 as if fully

set out herein.

63. Defendants actions constitute violations via the Indiana Wage Payment Act, Section

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22-2-2-3 Et Seq.

WHEREFORE, Plaintiff and all other similar situated employees, demand judgment against

the Defendants, LUKE OIL CO., INC. (“LUKE’S”) and GATEWAY TRIANGLE CORP.

(“GATEWAY”) for payment of all overtime hours at one-halfregular rate of pay with hours worked

by them for which Defendants did not properly compensate in an amount that is fair and reasonable

in the premises, plus costs of this action, punitive or liquidated damages per statute, attorneys fees,

and all other just and proper relief.

/s/ Robin G. Remley

Robin G. Remley

robin@remleylaw.attys.pro

Attorney for Plaintiff, Mary Robustelli

Law Office of Robin Remley LLC

2870 North Main Street, Suite A

Crown Point, IN 46307

(219) 961-5415 / Facsimile: (866) 922-3497

JURY DEMAND

Plaintiff, by counsel, demands trial by jury.

Respectfully submitted,

/s/ Robin G. Remley

Robin G. Remley

robin@remleylaw.attys.pro

Attorney for Plaintiff, Mary Robustelli

Law Office of Robin Remley LLC

2870 North Main Street, Suite A

Crown Point, IN 46307

(219) 961-5415 / Facsimile: (866) 922-3497

CERTIFICATE OF SERVICE

I hereby certify that on January 25, 2016, I filed the foregoing PLAINTIFF’S COMPLAINT

with the Clerk of the Court, and that all parties will be served via certified mail.

/s/ Robin G. Remley

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