“Civil Cover Sheet _ lan Page 2 of 2
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VILL. This case IS NOT a refiling of a previously dismissed case.

OR ee

Date: lien 264 Q3

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http://www.ilnd.uscourts.gov/PUBLIC/Forms/auto_js44.cfm 11/26/2003



20. On or about November 7, 2003, Plaintiff James Davis requested a
reasonable accommodation from Defendants, by exercising his right to take intermittent
FMLA leave.

21. | Onor about November 12, 2003, Defendants held a pre-disciplinary
hearing, attended by Defendant James Haran, Defendant Steven Batinich, and Defendant
Charles Killman, at which Defendant Steven Batinich compared Plaintiff’s James Davis’
FMLA certification to a “Get Out Of Jail Free” card.

22. Following Plaintiff James Davis’ pre-disciplinary hearing, Defendants
James Haran, Steven Batinich, Irma Rodriguez, and Charles Killman consulted with
Defendants William Rooney and Norma Reyes about Plaintiff James Davis’ disciplinary
suspension.’

23. On or about November 17, 2003, Defendants suspended Plaintiff James
Davis without pay, for a period of fifteen days.

24. Plaintiff William B. Gaddy was hired by Defendant, City of Chicago, in or
around March 1979, and was promoted to Supervisor in or around 1993.

25. — At all relevant times, Plaintiff William B. Gaddy performed his
employment responsibilities in a manner that met and/or exceeded Defendants’
reasonable employment expectations.

26. Plaintiff William B. Gaddy suffers from severe and permanent medical
conditions, including but not limited to: gout, arteriosclerosis, allergic rhinitis, and
diabetes, causing unpredictable, intermittent, and temporary incapacity.

27. At all relevant times, Plaintiff William B. Gaddy’s direct supervisor was

Defendant Irma Rodriguez. At all relevant times, Plaintiff William B. Gaddy was also


44. Defendants’ behavior was outrageous in character and extreme in degree
when, knowing that Plaintiffs suffer from severe and life-threatening medical conditions,
they summarily and abruptly suspended Plaintiffs without pay, immediately prior to the
commencement of the holiday season, and caused Plaintiffs to reasonably apprehend their
employment could be terminated.

45. Defendants acted intentionally and recklessly, in deliberate disregard for
the high degree of probability that Plaintiffs would suffer severe emotional distress,
resulting from the unlawful violation of their FMLA rights, and resulting from the
reasonable apprehension that their employment would be terminated as a result of the
unlawful violation of their FMLA rights.

46. Plaintiffs, and each of them, suffered severe emotional distress, resulting
in physical manifestations reported to each of their respective physicians, as a result of

the loss of wages and the apprehension of imminent loss of employment.

WHEREFORE, Plaintiffs, and each of them individually, seek Judgment against
Defendants, and each of them individually, as follows:

A. Enter a judgment awarding Plaintiffs, and each of them, all permissible
compensatory damages;

B. Enter a judgment awarding Plaintiffs, and each of them, all permissible
punitive damages;

Cc. Grant each Plaintiff such further relief as this court deem appropriate.
Action.

10


34. Similarly situated employees who were not FMLA certified, and did not
request FMLA leave, but requested permission to leave work without notice, as a result
of sudden illness, were not suspended and did not receive negative employment actions.

COUNTI
SUBSTANTIVE VIOLATION OF THE FAMILY AND MEDICAL LEAVE ACT.

29 U.S.C. Section 2601 ef seq.

35. Plaintiffs repeat and reallege paragraphs 1-34, as though fully set forth
herein.

36. Defendants had a substantive duty not to use FMLA protected leave as a
negative factor in an employment decision, such as disciplinary actions, pursuant to 29
US.C. §2615 (a)(1).

37. Contrary to the above statutory enactment, Defendants, and each of them,
used Plaintiffs’ use of intermittent FMLA leave as a negative factor in the employment
decision to suspend Plaintiffs without pay.

38. Defendants willfully, and without good faith, violated the FMLA by
knowingly using Plaintiffs’ use of intermittent FMLA leave as a negative factor in the
employment decision to suspend Plaintiffs without pay, thus interfering with Plaintiffs’
substantive rights to utilize their FMLA leave, pursuant to 29 U.S.C. § 2615(a)(1).

WHEREFORE, Plaintiffs, and each of them individually, seek Judgment against
Defendants, and each of them individually, as follows:

A. Enter a judgment declaring that Defendants’ consideration of Plaintiffs’

use of intermittent FMLA leave in a disciplinary action constitutes a

substantive violation of the FMLA;

B. Enter a judgment for each Plaintiff in the amount of his lost wages, value
of lost monetary benefits, and other monetary losses caused by


supervised by Defendant Thomas Haran, Defendant Charles Killman, Defendant William
Rooney, and Defendant Norma Reyes.

28. Plaintiff William B. Gaddy notified Defendant, City of Chicago, of his
disability in or around 1992. In or around 2001, Plaintiff William B. Gaddy requested a
reasonable accommodation from Defendant. At that time, Defendant, City of Chicago,
granted Plaintiff William B. Gaddy’s reasonable accommodation, by certifying his
eligibility for FMLA intermittent leave.

29. In 2003, Plaintiff William B. Gaddy again certified his reasonable
accommodation, by re-certifying his eligibility for FMLA intermittent leave.

30. | Onor about November 7, 2003, Plaintiff William B. Gaddy requested a
reasonable accommodation from Defendants, by exercising his right to take six (6) hours
of intermittent FMLA leave.

31. | Onor about November 12, 2003, Defendants held a pre-disciplinary
hearing, attended by Defendant James Haran, Defendant Irma Rodriguez, and Defendant
Charles Killman.

32. Following Plaintiff William B. Gaddy’s pre-disciplinary hearing,
Defendants James Haran, Steven Batinich, Ina Rodriguez, and Charles Killman
consulted with Defendants William Rooney and Norma Reyes about Plaintiff William B.
Gaddy’s disciplinary suspension.

33. On or about November 17, 2003, Defendants suspended Plaintiff William

B. Gaddy without pay, for a period of five (5) days.


nm oN

42. Similarly situated employees who were not FMLA certified, and did not
request FMLA leave, but requested permission to leave work without notice, as a result
of sudden illness, were not suspended and did not receive negative employment actions.

WHEREFORE, Plaintiffs, and each of them individually, seek Judgment against
Defendants, and each of them individually, as follows:

A. Enter a judgment declaring that Defendants’ retaliation against Plaintiffs’
use of intermittent FMLA leave constitutes a violation of the FMLA;

B. Enter a judgment for each Plaintiff in the amount of his lost wages, value
of lost monetary benefits, and other monetary losses caused by
Defendants’ retaliation against of Plaintiffs’ use of intermittent FMLA
leave;

Cc. Enter a judgment awarding each Plaintiff interest at the prevailing rate on
all lost salary, benefits, and other monetary losses;

D. Enter a judgment for each Plaintiff an additional equal amount as
liquidated damages;

E. Award each Plaintiff his reasonable attorney fees and costs incurred by
each Plaintiff in filing this action;

F. Issue an injunction deleting any negative reference to each Plaintiff,
regarding the incidents at issue, in his employment file;

G. Enter an injunction prohibiting Defendants from violating Plaintiffs future
FMLA rights;

H. Grant each Plaintiff s such further relief as this court deem appropriate.
COUNT It

PENDANT STATE COMMON LAW CLAIM OF INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS

43. Plaintiffs repeat and reallege paragraphs 1-34, as though fully set forth

herein.


DOCKETED
IN THE UNITED STATES DISTRICT COURT Noy
FOR THE NORTHERN DISTRICT OF ILLINOIS 26 2003
EASTERN DIVISION
JAMES DAVIS and WILLIAM B. GADDY,
Plaintiffs,

Vv.

)

)

)

)

)

)
CITY OF CHICAGO, a municipal corporation; )
CITY OF CHICAGO, DEPARTMENT OF )
BUILDINGS; JAMES HARAN, in his official )
capacity, and in his individual capacity; STEVEN )
)

)

)

)

)

)

)

)

)

)

OTE

IRATE JUDGE ASHMAN’

BATINICH, in his official capacity, and in his
individual capacity, IRMA RODRIGUEZ, in her
official capacity, and in her individual capacity;
CHARLES KILLMAN, in his official capacity,
and in his individual capacity, WILLIAM
ROONEY, in his official capacity, and in his
individual capacity; and NORMA REYES, in her
official capacity, and in her individual capacity;

uned Ld!

L

Defendants. JURY TRIAL DEMANDED
COMPLAINT

Plaintiffs, JAMES DAVIS, and WILLIAM B. GADDY, by and through their
attorneys, Terrance B. McGann and Amy Elizabeth Paluch Epton, of the law firm of
Whitfield and McGann complain against Defendants CITY OF CHICAGO, a municipal
corporation, CITY OF CHICAGO, DEPARTMENT OF BUILDINGS; JAMES HARAN,
in his official capacity, and in his individual capacity, STEVEN BATINICH, in his
official capacity, and in his individual capacity, RMA RODRIGUEZ, in her official
capacity, and in her individual capacity; CHARLES KILLMAN, in his official capacity,
and in his individual capacity; WILLIAM ROONEY, in his official capacity, and in his

individual capacity; and NORMA REYES, in her official capacity, and in her individual

| \\

capacity; as follows.


B. Enter a judgment awarding Plaintiffs, and each of them, all permissible
punitive damages;

Cc. Grant each Plaintiff such further relief as this court deem appropriate.

Respectfully submitted,

oQh

AMY ELIZABETH PALUCH EPTON; One
ys for the Plaintiffs

Terrance B. McGann

Amy Elizabeth Paluch Epton
Attomey for Plaintiffs
WHITFIELD & McGANN

2 North LaSalle Street, Suite 1601
Chicago, IL 60602

(312) 251-9700

FAAMY\Carps\N6336 - Davis & Gaddy v. City of Chicago\Complaint Davis Gaddy3.doc

12


COUNT IV
PENDANT STATE COMMON LAW CLAIM OF CIVIL CONSPRACY

47. Plaintiffs repeat and reallege paragraphs 1-34, as though fully set forth
herein.

48. Defendants James Haran, Steven Batinich, Irma Rodriguez, William
Rooney, Charles Killman, and Norma Reyes,. agreed amongst all of them to the actions
of suspending Plaintiffs, in violation of their FMLA rights.

49, Defendants’ suspension of Plaintiffs without pay was unlawful, overt act,
in that it was deliberately performed and was a violation of Defendants’ statutory duty to
comply with the FMLA.

50. Defendants’ unlawful act of suspending Plaintiffs, without pay, in
violation of Plaintiffs’ FMLA rights, injured Plaintiffs by causing Plaintiffs loss of pay,
by causing negative employment evaluations to be placed in Plaintiffs’ employment
records, and by causing Plaintiffs severe emotional distress, resulting in physical
manifestations.

51. Defendants’ unlawful, overt act was done pursuant to and in furtherance of
acommon scheme to deprive Plaintiffs of their statutory FMLA rights.

WHEREFORE, Plaintiffs, and each of them individually, seek Judgment against
Defendants, and each of them individually, as follows:

A. Enter a judgment awarding Plaintiffs, and each of them, all permissible
compensatory damages;

ul



Defendants’ unlawful consideration of Plaintiffs’ use of intermittent
FMLA leave;

Cc. Enter a judgment awarding each Plaintiff interest at the prevailing rate on
all lost salary, benefits, and other monetary losses;

D. Enter a judgment for each Plaintiff an additional equal amount as
liquidated damages;

E. Award each Plaintiff his reasonable attorney fees and costs incurred by
each Plaintiff in filing this action;

F. Issue an injunction deleting any negative reference, regarding the incidents
at issue, to each Plaintiff in his employment file;

G. Enter an injunction prohibiting Defendants from violating Plaintiffs’
future FMLA rights;

H. Grant each Plaintiff s such further relief as this court deem appropriate.
COUNT II
RETALIATORY VIOLATION OF THE FAMILY AND MEDICAL LEAVE ACT,
29 U.S.C. Section 2601 et seg.

39. Plaintiffs repeat and reallege paragraphs 1-34, as though fully set forth
herein.

40. Plaintiffs exercised FMLA protected rights by taking certified, intermittent
FMLA leave. Defendants were legally prohibited from retaliating against Plaintiffs for
exercising those rights, pursuant to 29 U.S.C. § 2615(a)(2).

41. Contrary to the above statutory enactment, Defendants, and each of them,
retaliated against Plaintiffs for using their intermittent FMLA, by suspending them upon

their return from the leave.



Factual Allegations

14. Plaintiff James Davis was hired by Defendant, City of Chicago, in or
around December 1978, and was promoted to Supervisor in or around 1989.

15. At all relevant times, Plaintiff James Davis performed his employment
responsibilities in a manner that met and/or exceeded Defendants’ reasonable
employment expectations.

16. At all relevant times, Plaintiff James Davis’ direct supervisor was Steven
Batinich. At all relevant times, Plaintiff James Davis was also supervised by Defendant
James Haran, Defendant Charles Killman, William Rooney, and Defendant Norma
Reyes.

17. Plaintiff James Davis suffers from severe and permanent medical
conditions, including but not limited to a prior triple-bypass coronary operation, a prior
operation to repair the complete caudation of his right leg, suffers from severe diabetes,
hypertension, coronary artery disease, and has complete caudation of his left leg, causing
intermittent and unpredictable, temporary incapacity.

18. Plaintiff James Davis notified Defendant, City of Chicago, of his disability
in or around 2002, when he requested a reasonable accommodation. At that time,
Defendant, City of Chicago, granted Plaintiff James Davis’ reasonable accommodation,
by certifying his eligibility for FMLA intermittent leave.

19. In or around March 2003, Plaintiff James Davis again certified his

reasonable accommodation, by re-certifying his eligibility for FMLA intermittent leave.


UY YED STATES DISTRICT CO" *.T
NORTHERN DISTRICT OF ILLINOIS

In the Matter of

JAMES DAVIS and WILLIAM B. GADDY
v.

‘

in his official capacity, and in his individual capacity; RMA RODRIGUEZ,
in her official capacity, and in her individual capacity; CHARLES KILLMAN,

in his official capacity, and in his individual capacity; and NORMA REY.

in his official capacity, and in his individual capacity; WILLIAM ved 3 Cc 8 6 3 i

in her official capacity, and in her individual capacity

Case Number:

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FOR:

Plaintiffs

DOCKETED
NOV 2 6 2003
JUDGE CONLON

CITY OF CHICAGO, DEPARTMENT OF BUILDINGS; JAMES HARANMAGISTRAT
in his official capacity, and in his individual capacity, STEVEN BATINICH,

LL?

(A)
CB, CRO Gia

Amy Elizabeth Paluch Epton

‘SIGNATU] ~ pA SZ
A 7 SE.
NAME e ot -

Terrance B. McGann

FARM FIRM
Whitfield & McGann Whitfield & McGann
STREET ADDRESS STREET ADDRESS

2N. LaSalle Street, Suite 1601

2.N. LaSalle Street, Suite 1601

‘CHTWSTATEIP

Chicago, Illinois 60602

CHTYSTATEVZIE

Chicago, Illinois 60602

TELEPHONE NUMBER

(312) 251-9700

TELEPHONE NUMBER

312-251-9700

&

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

IDENTIFICATION NUMBER (GEE ITEM 4 ON REVERSE)

6278817 aS 6199967
MEMBER OF TRIAL BAR? ves fod MEMBER OF TRIAL BAR? Cis) No
& _ as
“TRIAL ATTORNEY? ‘YES: io TRIAL ATTORNEY? @ ‘NO
DESIGNATED AS LOCAL COUNSEL? ‘YES NO
{C) (D)
SIGNATURE SIGNATURE
NAME NAME
FIRM FIRM:
STREET ADDRESS: STREET ADDRESS
CITY/STATE/ZAP CITY/STATE/ZIP
‘TELEPHONE NUMBER “TELEPHONE NUMBER

TDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR? YES NO MEMBER OF TRIAL BAR? YES NO
"TRIAL ATTORNEY? YES NO TRIAL ATTORNEY? YES NO
DESIGNATED AS LOCAL COUNSEL? YES NO DESIGNATED AS LOCAL COUNSEL? YES NO

PLEASE COMPLETE IN ACCORDANCE WITH INSTRUCTIONS ON REVERSE.



7. Plaintiffs, and each of them, had worked more than one thousand, two
hundred and fifty (1,250) hours in the twelve (12) months preceding each of their
requests for medical leave.

8. At all relevant times, Defendant JAMES HARAN was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiffs’ employer
within the meaning of the FMLA, 29 U.S.C. 2611(4).

9. At all relevant times, Defendant STEVEN BATINICH was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiff James Davis’
employer within the meaning of the FMLA, 29 U.S.C. 2611(4).

10. At all relevant times, Defendant IRMA RODRIGUEZ was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiff William B.
Gaddy’s employer within the meaning of the FMLA, 29 U.S.C. 2611(4).

11. Atall relevant times, Defendant CHARLES KILLMAN was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiffs’ employer
within the meaning of the FMLA, 29 U.S.C. 2611(4).

12. At all relevant times, Defendant WILLIAM ROONEY was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiffs’ employer
within the meaning of the FMLA, 29 U.S.C. 2611(4).

13, Atall relevant times, Defendant NORMA REYES was employed by
Defendant CITY OF CHICAGO, and at all relevant times was Plaintiffs’ employer

within the meaning of the FMLA, 29 U.S.C. 2611(4).



Nature of Action

1. This is an action for damages and equitable relief to redress the
deprivation of rights secured to Plaintiffs by virtue of the Family and Medical Leave Act
of 1993, 29 U.S.C. Section 2601 et seg., with a pendant state common law claims of
Intentional Infliction of Emotional Distress, and Civil Conspiracy, pursuant to 28 U.S.C.
§1367.

2. This Court has “federal question” subject matter jurisdiction over this suit
pursuant to 28 U.S.C. § 1331.

3. Jurisdiction is also specially conferred pursuant to the provisions of the
FMLA, 29 U.S.C. 2617(a)(2) and 28 U.S.C. Section 1343.

4, Venue is proper in the Northern District of Ilinois, Eastern Division
pursuant to 28 U.S.C. § 1391(b) because all of the Defendants reside and are domiciled

‘
within this judicial district.
Parties

5. Plaintiffs, and each of them, are citizens of the State of Illinois, who were
employed by Defendants, within the meaning of 29 U.S.C. 261 1(2).

6. At all relevant times, Defendant CITY OF CHICAGO was Plaintiffs’
employer within the meaning of the FMLA, 29 U.S.C. 2611(4), employing more than
fifty (50) employees for each working day, during each of twenty (20) or more calendar

weeks, in each relevant calendar year.


Page 1 of 2

m ot o
C2 JUDGE CONLO
UNITED STA’ COURT are 4 MAN

pocKkeTe? NORTHERN DISTRICT OF ILLINOIS WME JUDGE!

nov 2.6 7008 Civil Cover Shee 3C 8 631

This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in
September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The
information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required
by law. This form is authorized for use only in the Northern District of Illinois.

“Civil Cover Sheet

Defendant(s):CITY OF CHICAGO,
DEPARTMENT OF BUILDINGS; JAMES
HARAN, in his official capacity, and in his
individual capacity; STEVEN BATINICH, in his
official capacity, and in his individual capacity;
Plaintiff(s): JAMES DAVIS and WILLIAM IRMA RODRIGUEZ, in her official capacity,
B. GADDY and in her individual capacity; CHARLES
. KILLMAN, in his official capacity, and in his
individual capacity, WILLIAM ROONEY, in
his official capacity, and in his individual
capacity; and NORMA REYES, in her official

capacity, and in her individual capacity 3

County of Residence: COOK County of Residence:
Plaintiffs Atty: Ms. Amy Elizabeth Paluch Defendant's Atty:
Epton
Whitfield & McGann

2N. LaSalle St., Suite 1601
Chicago, IL 60602
312-251-9700

IL. Basis of Jurisdiction: 3. Federal Question (U.S. not a party)

ILL. Citizenship of Principal
Parties (Diversity Cases Only)
Plaintiff:- N/A
Defendant:- N/A

IV. Origin : 1. Original Proceeding
V. Nature of Suit: 720 Labor/Mgmt. Relations
VLCause of Action: 29 U.S.C. Section 2601 et seq, violation of Family and Medical Leave
Act /
VIL. Requested in Complaint
Class Action:
Dollar Demand: —
Jury Demand:

http://www.ilnd.uscourts.gov/PUBLIC/Forms/auto_js44.cfm 11/26/2003