Embed Size (px)
Citation preview
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 1 of 16
William B. HansonKASTING, KAUFFMAN &MERSEN, P.C.716 S. 20th Ave., Ste. 101
Bozeman, MT 59718Phone: (406) 586-4383Facsinrlle:(406)587-7871Email: [email protected]
Attorneys For Plaintiff
IN THE UNITED STATES DISTRICT COURT
FORTHE DISTRICf OF MONTANA
BUTIE DMSION
LEE WALTER PROVANCE,
Plaintiff,
vs.
GALLATIN COUNTY, a politicalsubdivision of the State of Montana,
Defendant.
Plaintiffalleges:
Case No.: eV- l3 -g, -13 u- OLe..
COMPLAINT
JURY TRIAL DEMANDED
NATURE OF ACfION
1. This is an action under Title I of the Americans with pisabilities
Act of 1990 ("ADA"), as amended, and Title I of the Civil Rights Act of 1991,
COMPLAINT-l
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 2 of 16
to correct unlawful employment practices committed by Gallatin County on
the basis of disability, and to provide appropriate relief to ~alfe~
\TIovaiice~("Provance")who was harmed by those practices. Gallatin County
constructively discharged Provance because of his opposition to practices
made unlawful by the ADA.
JURISDICfiON AND VENUE
2. Jurisdiction of this Court is invoked pur~uant to 28 U.S.C. §
1331. This action is authorized and instituted pursuant ~o 42 U.S.C. §I
12117(a), which incorporatFs by reference 42 U.S.C. §206oe-4 through
20ooe-9, and 42 U.S.C. §lgSla.\
3. The employmen.t practices alleged to be unlawful were
committed within the jurisdiction of the United States District Court for the
District of Montana within the geographical boundaries of the Butte
Division.
4. Provance received notice of his right to institute a civil action
against Gallatin County from the United States Department of Justice
within go days before filing this Complaint.
PARTIES
5. At all relevant times, Provance was a resident of Gallatin
County, Montana, and a citizen of the State ofMontana.
COMPLAINT-2
-- -----------------
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 3 of 16
6. At all relevant times, Gallatin County was a political subdivision
of the State of Montana.
7. At all relevant times, Gallatin County was a covered entity
under 42 U.S.C. § 12111(2).
STATEMENT OF FACfS
8. tErovance:wor~ea:ror:'Gallatin:COun~ttQ~J:1~li:6,':ipo01J
(flirQUgli:Qcto.tieL26:2012:~as..tne:RQadiiid.Biid~.siip'erintendent.
9. Before September 11, 2012, Provance had a perfect,
unblemished employment record as indicated by his person el file, with
one exception described in paragraph 14.
10. muri!lg:a':'Snri:Qglstaff~e.e.1;iQg1in:'2_QlQJwhich ·neluded all
Gallatin County Department Heads and elected officials, th se present,
including Provance, were told that the voluntary blood tes1lin
health fair, which was part of the County's wellness program, ould come
with th~~conilitiolL.t1iat ..an~Qne.refusing ..to~volU-ntaril~iive.6r od..wouIa:~finecL$50.per.mQntfilQrAJIQll=.ComplianceJ
11. Provance immediately raised questions at the meeti g about the
legality of the wellness program, such as, "How could it l~ibIY be
considered 'voluntary' if we were to be fined for non-eomplkce?," and
"Isn't this a violation of law?". Gallatin County Commissioner ~oe Skinner
COMPLAINT - 3
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Pa~e 4 of 16II
said in front of all staff that he "did not care" and would not address
Provance's questions.
12. Provance persisted since that time to get ans erg to his
questions and ~:p-rogram:was:imRleJIJenteiLon:January...l;2.0it1,.1N.itlinut a
{fe.gal:e!illlanati(jjlbeing providOO"by'any.Coung.offiCiaty~...... r
13. Provance had several conversations and email com unications
with the County Commissioners, Earl Mathers (the County ALinistrator)
("Mathersj, and Cynde Hertzog (the County Human ResourL Director)
("Hertwgj, about his position (and that of his employees) Jt this was a
discriminatory policy as evidenced in emails between Decem er 2, 2011,
and February 23, 2012.
14. Mathers addressed Provance's opposition in Mathe s' February
24, 2012, performance appraisal of Provance's work. Mathers wrote, "My
one concern this year involved Lee's strident opposition to the County
Wellness Program." Mathers had knowledge that Provance ha supported
the County's efforts to offer the program as evidenced in his Jebruary 23,
2012, email to him, except for its involuntary nature, but Mathkrs chose to
ignore the facts on his evaluation and refused to discuss the lekty of the
blood testing during the evaluation.
15. There was one incident with Mathers in April, 2012, that factors
COMPLAINT - 4
Case 2:13-cv-00081-DlC Document 1 Filed 10/25/13 pat 5 of 16
into later disciplinaIy action that was taken against bim. Ls incident
motivated Mather's use of practices that violated the ADA The City of
Bozeman was doing upgrades to its water treatment facility an destroyed a
County road in the process. The City wanted Provance to increase the
weight limits that Provance had imposed to preserve what w left of the
road, so a meeting with Mathers and Provance was arranged t
issue.
16. Mathers said the City could use the road (and ther by continue
destroying it) without providing any written guarantee to repl the road (a
$500,000 liability), despite Provance's objection. Provance st ted in front
of everyone that Mathers did not have the statutory authority to make the
decision and he was not Provance's boss.
17. After getting the City's agreement to a writte guarantee,
Provance went to Mather's office to discuss the issue further. kathers told
bim that he was too mad to even look at him and told him to llave, but did
not ever argue the point that he was not Provance's boss. Und r section 7- .
14-2301, MeA, the County Board of Commissioners was Provance's
supervisor.
18. At that time, Provance had no idea that e County
Commissioners had attempted to make Mathers his sup rvisor until
COMPLAINT - 5
Case 2:13-cv-00081-DlC Document 1 Filed 10/25/13 pat 6 ol16
Mathers took disciplinary action against him on Septembt 12, 2012.
Provance was always told by the Commission that Mathers was only to
perform administrative functions such as conducting perform nce reviews
and reviewing leave requests. Commissioner Bill Murdockstar to him in
June, 2012 (as was stated on many other occasions), "Road anell Bridge will
never be under the County Administrator; he is not your boss, ]1e are."
19. Provance had discussed with the Commissioners nd Mathers
beginning in June, 2012, that Provance could not lift his tms due to
shoulder pain and may have to get surgery during the construJon season.
20. (O.ri:'A:Ug!!S.l;Ji;:2012~Provance4:oltM:1l:e'"CounOCCo-1mSsionersl\liiilI:Ma.""tliers tIiii@-':O-Yllllce-Yms_Scli.eiliiledior.smi~on;:~8;'l!012~ml!air:liiS"J'jgJ;!trpJ;I;lj;Ql"..CII1f..ana:agaiii:m:NovemJjer..t.O~l:ellaiJ:;~tt:one.JThe surgeon was going to notify them that Provance could nJ drive for 3
months. Commissioner Murdock stated, ''You can't do that, thal,s what you
do for a living.n Provance agreed with Commissioner Murd1 and told
them that Provance had every intention offinding a surgeonJtwould not
limit his ability to drive for that long, so Provance could ful~l his work
obligations to the County during the busytime ofyear.
21. Provance met with another surgeon on August 15 2012, and
notified the Commissioners and Mathers that day that he wa scheduled
I
COMPLAINT-6
I•....._._._-----------+._--------I
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 pa~e 7 of 16
again for surgery, this time on Friday, August 17, 2012, and thL would be
no restrictions on his ability to work other than Provance woulh not be able
to use his right arm for anything, had to be careful not to re-~jure it, and
Provance would return to work without taking time off, drnJ-free. There
was no opposition by them to this, nor were any conditions imposed by
anyone for the next three weeks and four days.
22. t:ef,nv.ancelretiirneartQI.wQtkIQIlXMonday,....:Augus
(Witl1out:resmCfion~
23. On September 6, 2012, Provance told the Commi sioners and
Mathers that the majority of the large construction contmcL had been
fulfilled satisfactorily and Provance would be taking time oJ during the
weeks ahead to recuperate. Everyone agreed. ProVllDce llso had a
significant amount of accumulated sick time to cover L periodic
opportunities to get away from work now and then to rest and .luperate.
24- On September 11, 2012, at about 11 a.m., three weJks and four
days after ProVllDce returned to work, as Provance was driving Jome for the
day to rest, PrOVllDce received a call from Mathers, stating thlt Provance
needed to go immediately to the County's administrative Jces to sign
some forms. "What forms?,· Provance asked. Mathers said It he had
spoken to bis doctor and bad some restrictions for him to sign. Before this,
COMPLAINT - 7
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 pa~e 8 of 16
Mathers had implied that Provance was lying about the lack f restrictions
over the past few weeks, but Provance could not believe that M thers would
go to his doctor without his consent. Provance raised his voiL and asked
him over the phone, "Who the hell gave you consent to do that!"
25. In his experience as a Department Head for twelve nd one-half
years, it was unprecedented to take such action without Huml Resources
contacting an individual to sign the appropriate release forms] IfProvance
would have refused to sign such a furm, Provance would Jve expected
disciplinary action at that point and a requirement to sign the form before
contacting his physician's office.
26. Provance later learned that Mathers had not spoken to his
doctor at all, as Mathers had originally told him; but rather, l:thers had
had a Counly employee talk to his physician's assistant. Whk Provance
spoke to the PA, the PA told Provance that someone from woA had called
and said Provance "needed restrictions in order to return to wo~k,·and that
he, the PA, had then filled out a furm. The PA did not realize Jat Provance
had not given his consent and filled out a furm fur Mathers It Provance
had not seen before.
27. After hanging up on Mathers, Provance turned his vehicle
around and went to the County's administrative offices. PrOV'l ce spoke to
COMPLAINT - 8
Case 2:13-cv-00081-DlC Documen~- Filed 10/25/13 pat 9 of 16
Commissioner Joe Skinner about the incident and how Provanl thought it
should be resolved. Commissioner Skinner was not concernld at all, so
Provance went to Mathers' office and angrily referred to him in a pejorative
manner, and said he would sue him for violating his pri cy without
seeking consent.
28. e ne a~tem ...er..12,..2J.l12,.Provance.was.l] orme~
roVlih~'was"tO"'Xneet"Witlr~ommi~oners:a5iiiiil(ffiS'allgea)inprofessinoaJ.:belIaviOl1 The Commissioners refus d to discuss
Mathers' illegal conduct at the un-noticed, illegal meeting, an were only
concerned about his brief display of anger in Mathe: o!':va!@J
£diS~greea:with-:tlreir:asse~sment:of;tlie;situ'1ftio~bute wa •.. Vi -rele-ss
mI~"'O-n.-a:~~Y~§Y$p.e1!~jml:..ID1liQ!LP~Y, ..even. o.ug~P.DYanc~..liaa
Wier.:lieJ~n:diS'Ciplinea:IQr~aI],if,IDng:Defore:aI!a:ma:not:thr eaen w
29. WiiISatUraaY,1Seilt~mlier1:J,5=--2_0]'..2;xtdJnjJlgXhi~s~p~torr)J
Cl!mVance1recei¥e'dlaj,letter.urom~.I.tliaf!stat~~(wmiIiatea:fiom:;I:ij~p'osifion+and"ffiiQJiveaays·to:re"s~oIiiY pJIvance was
emotionally devastated. Provance responded on Monday, Se I tember 17,
2012, and apologized for his anger and words in order to get hb job back,
although Provance did not agree with the harshness of the susJension and
COMPLAINT - 9
-- -- --------------------------------------,
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Pag~ 10 of 16
termination to begin with. Provance's greatest fear was to be discharged for
"gross misconduct" which would result in the loss of his ~enefits and
greatly affect his planned November surgery on his other shoul~er.
30. On Wednesday, September 19, 2012, just before a rl:J.eeting with
Mathers and the two Commissioners, [PIDyancexwasxrJrmsnea.m,I
m~eemeiifb"YHeftZogi.wfficli.womaallpw.tlie]lolln®~hay..e..a~cJ;s..s....toJiIl:Qf1!
ffiis':'meaical':'ana':'psy..c.hQrngieal:iiiformlltiQu:aJla:tL~atm~nt~na:ano~
~ement:J;~ursuIDit,o:wniCh-:1&oian~~.....)YOii1a:have:to:meet~~heal!21!
,care:l!rovider:from:tli~Collii~s:EmplOyee:ASSistanc_e:Ef.Qgr~or:wImg
(l'rovanc{rJiii"<lerStOOd,:wmrroDe a COllll$e--LinMPP.<>intm~P.i.:Q~nceilid.'iifltZJI
@CRl~"agreement...and...reluctantlY;sim!ed:1t:oiily':Decause:p~p'yan~e:w@J• I
(toldit-:wanh-e-onI!-chnice"'Pro~fiCe-mRltf·Pmvance·wantOO~ep~~JE.rI,
I
31. On October 1, 2012, Provance went to the Commissipners' officeI
and spoke with Commissioner Bill Murdock who had just retutned from a!I
lengthy vacation. Murdock asked how things were going and P~ovancetold!
him about the events that had transpired during his absenc~. MurdockI
replied, "They can't do that; that's constructive discharge," and 'tl don't care
what you did, you deserve better treatment than that."i
32. Provance found out later that the County expected ~im to get ar
full-blown psychological examination done by a psychiatrist!i in Helena.:
COMPLAINT - 10
Case 2:13-cv-00081-DLC Document1 Filed 10125113 pa9ill of 16
Provance told Hertzog that Provance did not feel comfortaH e driving to
Helena alone, especially with winter weather being forecast. ere was also
a clinical psychologist available locally, Dr. Watson, that had d ne work for
the County in the past, who could have done a proper inqui I , if justified
(and Provance alleges it was not justified), of whether Prov nce had an
anger issue that interfered with his ability to do the essential functions of
the job ofBridge and Road Superintendent.
33. Provance still could not lift any weight with his ri ht arm and
his left was too damaged to assist himself in the event f a vehicle
breakdown. OO:iout:.a:.w.~ecl.IlRa::(Ql!rl.~ra:ffei':'ooJ:reinsta~&.<>1l!l!lc.e~.ceiYea:a:J.efter:aatea:oCto~i8~20i2;'lliat:Eiiikn~::wouJc!J
Uiay.e...to_s~.e...ftP-$Y.cIiiaffist:in:Helena:Qn..QCtolier~29:201~
34. Provance told Hertzog that she knew that Provane would not
go and this was an attempt to constructively discharge him, lowing that
Provance did not want anyone Interfering in his personalll~ to include
everything mental, physical or financiaL Provance told her Jt he was as
angry then as the day Mathers decided to intrude into his Ph~iCal health
issues, but Provance was controlled at that time. She told hik she knew
how Provance felt, since Mathers was pressuring her to get a flu shot, which!!
she is conscientiously opposed to, and she said, would cause lier to quit if
COMPLAINT - 11
Case 2:13-cv-00081-DlC Document 1 Filed 10/25/13 Pag~ 12 of 16
forced to get one.i
35.. ~n:o~f~g3:2012:E:rOy.anc~:s.ufifuittea:twn:Ie~¥e:slipsi.forJlI
(COlnp:time;tvacauQnlanarBick":leave':"tG:.tiJie1liis1.e_IDPlo;Y-IDpntrtIirQugIg
rpecember'£2012:'~lna:ijjfonn~d:tlie':CQJlnfi;.tha.t:lie:w.ou*1ie:r~tffirig~i
teffective:Decelfioor:Iz,~2Q1~Mathers had indicated at a Depaftment Headi
meeting in late September, 2012, that the County's ITS Uirector bad
abruptly retired and they were allowing him to run out his a~crued leave
through January. ,
36. Provance felt he had no choice but to terminate ~is position
with the County, given the illegal practices it had subjected hi~ to, but heII
desired to do so in a manner that would allow him to leave ~is positioni
gracefully and without too much disruption to his Departme~t while theI
'i
County Commissioners looked for a replacement.I
37. [,provance:did,mt:'want:to.:relire~cr~understfO'<I:"tliat:~
~aYbl::fu:ed:if:he:-diaI-qQt:su6je.ctrmY-EteJf~J!l.tlle:illekalI:m~aicaIJII
texamiilatipnJifHe1en1ED 'i
38. Mathers signed his leave slips the same day as submitted
October 23, 2012, in effect, granting his request to take le~ve through
December 14, 2012.
39. An editorial and article were published in The Bel~rade News
COMPLAINT - 12
-------------_.._ ... - .... -_. _.'.
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Paglle 13 of 16
I
on October 26, 2012, concerning Provance's retireme~t and theII
circumstances surrounding his upcoming, involuntary retireme~t.
4d.%t.Jie.26!!@[O~OlgJ was to be his last daya~at work
before going on extended leave for his next surgery and vacati~n.At about
one o'clock p.m. on the 26th of October, 2012, Hertzog called Provance toI
tell him that Provance had to pick-up a letter at the County's administrative
offices at the end of his shift ...U:gon.recelVl.11g.Jlie....letter.at-.a?out...3..P..JIb,I
(:P.rowDce:--discp.xer.e.d1.t1l-at:""ll:'''"'M"'::'a-:=tli~er-.s":";"li-ad":~t~e-rm~iii'-a.-:"te-a1'lll:F'ili"'i-m-;:-"'fa~ :AtnoIstateQJ'I
{reason;:~ecth,e-thardat!FJ
STATEMENT OF CLAIMi
~illiti.iiJj>..!!!LtYsJVelIness ID:Qgram.viOlared~.I
42. Provance believed in good faith that the wellness program
violated the ADA.
43. Provance opposed the legality of the wellness program in good
faith.
44. (fhe':'Galnmn~Coun!YIAdffiiiiistrator!fimrretaliatea:againstJ
:etOVan--CEf1:fecau~e'OfJiiSOJmosifion to)he1l1eg~ty_of.tlie....¥l.eluri~1?rogr~1!1
mY..:criticizingjiifu-:for:provance'S:lawfiil:onnosffion:tD:it:ID:fiis:E..elIDt.J!..ry..!)'
~jii2;:EeIformaric['APm.ai~
45. ,TIre:.Gallifiii:countY::kdffiiiiistrator.vioIaf'i[d:ure:AD4:wli'eii:HeJ
COMPLAINT - 13
-----------------------
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 14 of 16
mhysiciIDIa:bourhjSTOtator:e1.Iff-g~~
46. Provance opposed in good faith the County Administrator's
illegal medical inquiry.
C:f2::. 47- ~ounmt.egall~X:ag!!im;:tnrpvan~~
! ~PPOSi~ttte:GQJ~n~-AiIiIifiiistrator:S:illegal~medica[inquiry:tiy.:suspendi:gg]
llIi~UiQJ!.fl[~~dJl1~JiPJ
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 15 of 16
experience emotional distress.
52. Provance is entitled to an award of his attorney fees, and his
expert witness fees, if any.
WHEREFORE, Plaintiffdemands judgment against Defendant for:
A J3acfiiayitramuunt't~ke'nim:wliQlEJ
B. 'ffiffifp!yjn+amount to malie:liim...wliQrn;
C. 0h:amOiiijfno':'compensate:liim:'fQl"~ms:.IQ$t:tring~~~fifS
analor:tli~Yalue:Q£lhej].iffeten~e ..netiIeen-:wh"it:lj~:wa~~l"~c.eiYi.ng ..~~':fffug.e
henefit§...wliil.e:e.tnpIQ~ea])iGalliiiii~coUiit;and:after:liis ..em:mpYIDc:mt:witlJ:r
vmlat!!:~~up!y'yas:t~~d1iIiliWfiillYTJ
D. mn:am!!unt!to!COIp-R.~,§ate:-lijDjIfol""Ztli'~~!RQ.§gnalrais-~
c~usedby,Ga.!latin~Gounty's"illeg!!:a.-cti9~;n
E. Q%!!i§~attorney..fe~s;]
F. Any expert witness fees he may incur in pursuing this action;
G. Pre- and post-judgment interest;
H. His taxable costs; and,
I. Any other reliefwhich the Court deems just.
Demand for Jury Trial
Provance requests a jury trial on all questions of fact raised by his
Complaint.
COMPLAINT - 15
-- ---------------
Case 2:13-cv-00081-DLC Document 1 Filed 10/25/13 Page 16 of 16
Dated this 25th day of October, 2013.
KASTING, KAUFFMAN & MERSEN, P.C.
IslWilliam B. Hanson
COMPLAINT - 16
