EVANS v. BOMBARDIER, INC. et al Complaint

8/7/2019 EVANS v. BOMBARDIER, INC. et al Complaint

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILLIAM S. EVANS, an ) NO.

individual, )

)Plaintiff, )

)

vs. )

)

BOMBARDIER, INC., a corporation, and )

BOMBARDIER TRANSPORTATION ) JURY TRIAL DEMANDED

(HOLDINGS) USA INC., a corporation, )

) Electronically Filed

Defendants. )

)

COMPLAINT

AND NOW, comes the Plaintiff, William S. Evans, though undersigned counsel, and

files this Complaint for damages and other relief because of violations of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. 2000e et seq., the Age Discrimination in Employment Act, 29

U.S.C. 621 et seq., the Employee Retirement Income Security Act, 28 U.S.C. 1001 et seq.,

and the Pennsylvania Human Relations Act, 43 P.S. 951 et seq.

I. JURISDICTION

1. Jurisdiction of this Court over the matters in this Complaint is founded upon 28

U.S.C. 1331, 28 U.S.C. 1367(a), and on 42 U.S.C. 2000e-5(j)(3).

II. VENUE

2. The events related in this Complaint occurred in Allegheny County, Pennsylvania,

in the Western District of Pennsylvania; therefore, venue is proper in this Court.

III. PARTIES

3. Plaintiff William S. Evans (hereinafter Plaintiff or Mr. Evans) is an adult

Case 2:10-cv-00751-AJS Document 1 Filed 06/02/10 Page 1 of 19


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years of service;

b. Plaintiff is entitled to thirty and five hundred ninety two thousandths

(30.592) additional weeks of severance pay based on the fact that since he

is to receive two (2) weeks of severance pay for each five thousand dollars

($5,000.00) earned over fifty thousand dollars ($50,000.00), and that his

annual salary (which in total was one hundred twenty six thousand four

hundred eighty dollars ($126,480.00)) above fifty thousand dollars

($50,000.00) was seventy six thousand four hundred eighty dollars

($76,480.00), which is fifteen and two hundred ninety six thousandths

(15.296) times five thousand dollars ($5,000.00) of annual earnings over

fifty thousand dollars ($50,000.00) and that he is entitled to two (2) weeks

of weekly salary above for each five thousand dollars ($5,000.00) earned

annually above fifty thousand ($50,000.00);

c. Plaintiff is entitled to eight (8) additional weeks of severance pay based on

the fact that he was forty eight (48) years old at the time of his termination.

18. The cumulative amount of severance pay due and owing to Plaintiff is one

hundred three thousand three hundred ninety six and ninety five cents ($103,596.95), based on

the product of Plaintiffs weekly salary, two thousand four hundred thirty two dollars and thirty

one cents ($2,432.31) multiplied by forty two and five hundred ninety two thousandths (42.592)

weeks.

19. At the time of his termination, Plaintiffs annual salary was one hundred twenty

six thousand four hundred eighty dollars ($126,480.00).

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20. At the time of his termination, Plaintiffs weekly salary was two thousand four

hundred thirty two dollars and thirty one cents ($2,432.31).

21. Plaintiff was initially praised for his performance by his supervisors.

22. Prior to 2009, Plaintiff was given annual merit increases in pay as a result of his

performance.

23. In a letter dated March 16, 2007, Mr. Allen noted to Plaintiff that the Contracts

Department would fall apart without the input provided by Plaintiff.

24. Based upon knowledge and belief, Plaintiff was complemented on the quality of

his work by his colleagues at Bombardier Transportation.

25. On or about October 5, 2007, Plaintiff was promoted in rank with a corresponding

increase in salary.

26. Plaintiff was given a separate office as a result of his work on sensitive and

confidential legal matters.

27. Mr. Allen was later replaced as Vice President of Contracts for Bombardier

Transportation by Jill Hampton (hereinafter Ms. Hampton) as part of a corporate

reorganization of Bombardier Transportation undertaken in July of 2008.

28. After Ms. Hampton was promoted to Vice President of Contracts, Plaintiff again

reported to Ms. Kimball.

29. Within months after Ms. Hampton and Ms. Kimball took over control of the

Contracts Department, Plaintiff was put on a performance improvement plan (hereinafter PIP).

30. After Ms. Hampton and Ms. Kimball took over control of the Contracts

Department, Plaintiff was required to work alongside two substantially younger but less

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experienced colleagues, Peter Vitelli (hereinafter Mr. Vitelli) and Stacie Beale (hereinafter

Ms. Beale).

31. On or about November 7, 2008, when she placed Plaintiff on the PIP, Ms.

Kimball claimed that Mr. Evans was unduly aggressive and was not a team player.

32. The goals of the PIP appeared to be arbitrary and a pretext for a pre-determined

decision to remove Plaintiff from his position as Legal Counsel.

33. Subsequent to being placed on the PIP, Plaintiff was contacted by means of email

by Ron Lawrence (hereinafter Mr. Lawrence) and was described as a team player.

34. Plaintiff had been complimented by employees of Defendant on the quality of his

work.

35. Plaintiff had previously been qualified for, and had received, incentive pay.

36. Ms. Kimball publically berated Plaintiff.

37. Ms. Kimball used an expletive when addressing Plaintiff after he failed to credit

a business outcome to her.

38. Plaintiffs supervisors, including Ms. Hampton and Ms. Kimball, denied Plaintiff

the opportunity to engage in certain training programs that were required as part of the

performance management process/plan.

39. Pursuant to his responsibilities as a Legal Counsel, Plaintiff received and

reviewed estimates of legal costs submitted by outside counsel for anticipated legal services

rendered for Bombardier Transportation.

40. During 2009, Plaintiff received from the law firm of Jones Day (hereinafter

outside counsel) an estimate for future outside legal costs amounting to one million and eight

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hundred thousand dollars ($1,800,000.00).

41. In order to create an appearance that the legal costs were within budget and to

falsely underestimate the amount of Bombardier Transportations exposure, Plaintiff avers that

Ms. Hampton and Ms. Kimball falsely decreased the estimate from outside counsel by an amount

of one million dollars ($1,000.000.00), thus rendering the estimate as eight hundred thousand

dollars ($800,000.00).

42. After Plaintiff became aware of this intentionally false underestimate of the legal

costs that would be incurred by Bombardier Transportation due to the use of outside counsel,

Plaintiff complained about actions done by Ms. Hampton and Ms. Kimball pursuant to the

creation of this false underestimate to the management of both Bombardier Transportation and of

the Parent Corporation.

43. Bombardier Transportation has been viewed by employees as a womens club

due to hiring preferences favoring women.

44. Eran Gartner (hereinafter Mr. Gartner), President of the Systems Division of

Bombardier Transportation, publically stated at a meeting in Washington, D.C., of Bombardier

Transportations employees that women are smarter than men.

45. David Penhorwood (hereinafter Mr. Penhorwood), a Vice President of the Rail

Control Solutions Division for Bombardier Transportation, confided with Plaintiff that

Bombardier Transportation treats female employees better than male employees, due in part to a

fact that there are more women in positions of power within Bombardier Transportation and that

Bombardier Transportation is overcompensating for past gender imbalances.

46. After returning from a business trip to China, Ms. Hampton brought back gifts for

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all of the female employees in her department, but did not bring any gifts for any of the male

employees.

47. Ms. Kimball needlessly, publically, and aggressively berated Plaintiff after he

apparently failed to mention her name in connection with a business accomplishment.

48. Plaintiff was terminated from his position as Legal Counsel for Bombardier

Transportation on or about May 22, 2009.

49. Plaintiff had worked for Bombardier Transportation for a period of four (4) years.

50. Plaintiff had been promoted at least one (1) time during the time period in which

he worked at Bombardier Transportation.

51. Upon his termination from employment, Bombardier Transportation presented a

separation agreement to Plaintiff.

52. Pursuant to the Older Workers Benefit Protection Act (hereinafter the

OWBPA), Plaintiff was given a notice of his rights under the OWBPA.

53. Remarkably, the date of this aforementioned OWPBA notice was September 6,

2008, long before Plaintiffs actual date of termination.

54. The date of the aforementioned OWPBA notice was shortly after the corporate

reorganization of Bombardier Transportation but prior to the date of the PIP.

55. The 2009 Performance Management Process objectives (hereinafter PMP or

PMP objectives) for Plaintiff were saved into the system on or about May 19, 2009, three

days before Plaintiff was terminated.

56. The aforementioned PMP is the annual review form which is used by

Bombardier Transportation to set employee objectives for the upcoming year, to identify a

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personal development plan for an employee, to provide mid-year and year-end reviews of

employee performance, to identify leadership commitments, core values, and to provide an

employee with an overall performance rating.

57. The date of the aforementioned OWPBA notice suggests that the decision to

terminate Plaintiff was predetermined.

58. Plaintiff never consented to the aforementioned separation agreement.

59. Subsequent to his termination, Bombardier Transportation advertised for a

vacancy in Plaintiffs position, seeking a replacement with only four (4) years of experience, far

fewer years of legal experience than is possessed by Plaintiff.

60. Plaintiff believes and therefore avers that the failure to award to him severance

pay after four years of dedicated service is unduly harsh, disingenuous, and discriminatory.

61. The aforementioned advertisement could appear to be targeted towards a

significantly younger individual.

62. Plaintiff avers that he did not receive any severance pay per Bombardier

Transportations severance policy.

VI. CLAIMS

COUNT I: TERMINATION IN VIOLATION OF TITLE VII

42 U.S.C. 2000e et seq.

63. Paragraphs 1 through 62 are incorporated as if set forth at length herein.

64. Plaintiff is a male and, accordingly, is a member of a class protected by Title VII.

65. Plaintiff was qualified for the position of Legal Counsel for Bombardier

Transportation.

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67. Plaintiff suffered an adverse employment action when he was terminated from his

position as Legal Counsel for Bombardier Transportation, and subsequently his severance was

denied.

68. Plaintiffs termination was motivated by his gender.

69. Plaintiff avers that the non-discriminatory reasons given for his termination are

pretextual.

70. Plaintiff avers that the pre-dated notice of his rights under the OWPBA suggests

that the decision to terminate him from his employment was predetermined.

71. Bombardier Transportation and the Parent Corporation are unusual employers

who engage in gender-based discrimination against males and favoritism of females.

72. The sexist statement made by Mr. Gartner stating that women are smarter than

men displays an unfortunate anti-male animus among senior management of Bombardier

Transportation.

73. Based on knowledge and belief, at least one (1) less qualified employee within the

Contracts Department who was a female was not terminated by Bombardier Transportation.

74. By failing to terminate the female employee(s), Bombardier Transportation

discriminated against Plaintiff on the basis of gender.

COUNT II: HOSTILE WORK ENVIRONMENT IN VIOLATION OF TITLE VII

42 U.S.C. 2000e et seq.


76. Plaintiff is a male and, accordingly, is a member of a class protected by Title VII.

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Transportation.


position as Legal Counsel for Bombardier Transportation, and subsequently his severance pay

pursuant to the Bombardier Transportation severance pay and furlough policy was denied.

80. Plaintiff was subjected to a hostile work environment on the basis of his gender in

the form of hostile and sexist insults to men in general and Plaintiff in particular made by Ms.

Hampton, Ms. Kimball, Mr. Gartner, and other senior employees of Bombardier Transportation.

81. Plaintiff avers that women were not subjected to similar treatment.

82. Plaintiff avers that the hostile and sexist insults directed towards him were severe

and pervasive.

83. Plaintiff avers that the negative employment action he suffered, namely his

termination, was caused in part by the hostile work environment that he experienced while

working as Legal Counsel for Bombardier Transportation.

COUNT III: TERMINATION IN VIOLATION OF ADEA

29 U.S.C. 621 et seq.


85. Plaintiff is over forty (40) years old, and hence is a member of the class protected

by the ADEA.



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employee benefits plan as defined by ERISA.


position as Legal Counsel with Bombardier Transportation, and subsequently when his severance

pay was denied.

99. Had he not been involuntarily discharged for a pretextual cause, Plaintiff would

have been eligible for severance pay per the applicable policy.

100. The stated reason of the denial of severance pay was the termination of Plaintiff

for cause.

101. Contrary to Bombardier Transportations stated reason for terminating Plaintiff,

Bombardier Transportations actual reason for terminating Plaintiff involved interference with

his attainment of right(s) to which he might have been entitled if he had not been discharged.

102. Despite Plaintiffs entitlement to severance pay under the terms of the policy,

Bombardier Transportation improperly terminated Plaintiffs benefits in contravention of the

severance policy and Plaintiffs rights under ERISA.

103. Plaintiff has met all of the conditions precedent to bringing this action.

WHEREFORE, Plaintiff requests the entry of judgement against Bombardier

Transportation and the Parent Corporation for damages including, but not limited to, past due

contractual benefits, future benefits, attorneys fees due pursuant to 29 U.S.C. 1132(g)(1), plus

interest, costs incurred in bringing this action, and for such other relief as this Court deems

equitable, just, and proper.

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COUNT V: GENDER DISCRIMINATION IN VIOLATION OF THE PENNSYLVANIA

HUMAN RELATIONS ACT

43 P.S. 951 et seq.


105. The elements of a discrimination claim under the Pennsylvania Human Relations

Act mirror the elements of a discrimination claim under Title VII.

106. Plaintiff is a male, and hence is a member of a class protected by the Pennsylvania

Human Relations Act.



Transportation.


position as Legal Counsel for Bombardier Transportation, and subsequently when his severance

was denied.

110. Plaintiffs termination was motivated by his gender.

111. Plaintiff avers that the non-discriminatory reasons given for his termination are

pretextual.

112. Plaintiff avers that the pre-dated notice of his rights under the OWPBA reflects

that the decision to terminate him from his employment was predetermined.

113. Bombardier Transportation and the Parent Corporation are unusual employers

who engage in gender-based discrimination against males.

114. The sexist statement made by Mr. Gartner stating that women are smarter than

men displays an unfortunate anti-male animus among senior management of Bombardier

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Transportation.

115. Based on knowledge and belief, at least one (1) less qualified employee within the

Contracts Department who was a female was not terminated by Bombardier Transportation.

116. By failing to terminate the female employee(s), Bombardier Transportation

discriminated against Plaintiff on the basis of gender.

117. Plaintiff avers that he is not seeking damages related to any severance pay in

relation to this claim arising under the Pennsylvania Human Relations Act.

118. Plaintiffs claim arising under the Pennsylvania Human Relations Act is not

preempted by ERISA.

COUNT VI: AGE DISCRIMINATION IN VIOLATION OF THE PENNSYLVANIA

HUMAN RELATIONS ACT

43 P.S. 951 et seq.


120. The elements of a discrimination claim under the Pennsylvania Human Relations

Act are identical to the elements of a discrimination claim under the ADEA.

121. Plaintiff is over forty (40) years of age, and hence is a member of a class protected

by the Pennsylvania Human Relations Act.



Transportation.



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Pennsylvania Human Relations Act.



Transportation.



pay under the severance and furlough policy was denied.

138. Plaintiff was subjected to a hostile work environment on the basis of his gender in

the form of hostile and sexist insults to men in general and Plaintiff in particular made by Ms.

Hampton. Ms. Kimball, Mr. Gartner, and by other senior employees of Bombardier

Transportation.

139. Plaintiff avers that female employees were not subjected to similar treatment.

140. Plaintiff avers that the hostile and sexist insults directed towards him were severe

and pervasive.

141. Plaintiff avers that the negative employment action he suffered, namely his

termination, was caused in part by the hostile work environment that he experienced while

working as Legal Counsel for Bombardier Transportation.

142. Plaintiffs claim arising under the Pennsylvania Human Relations Act is not

preempted by ERISA.

VII. DAMAGES


144. Plaintiff has lost substantial back pay that provided additional income as a

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direct and proximate result of Bombardier Transportations discriminatory and retaliatory

conduct towards him.

145. Plaintiffs prospective future employment opportunities have been harmed as

a direct and proximate result of the Defendants discriminatory and retaliatory conduct against

him, therefore Plaintiff is entitled to receive payment from Bombardier Transportation and from

the Parent Corporation of future employment opportunity damages.

146. Plaintiff is likely to suffer future loss of salary increases, resulting in a substantial

loss of front pay, therefore, Plaintiff entitled to receive payment of damages for future pay losses

from Bombardier Transportation and from the Parent Corporation.

147. Plaintiff is entitled to punitive damages flowing from Bombardier

Transportations intentional discriminatory actions taken against him.

148. Plaintiff is entitled to declaratory relief determining that Bombardier

Transportation and the Parent Corporation has discriminated against him.

149. Plaintiff is entitled to any and all severance pay due per the severance policy.

150. Plaintiff is entitled to declaratory relief determining that Bombardier

Transportation has violated the severance policy.

151. Plaintiff has incurred substantial expenses and is entitled to the payment by

Bombardier Transportation and by the Parent Corporation to him of the costs of this lawsuit,

including reasonable attorneys fees.

WHEREFORE, Plaintiff demands back pay, damages for prospective future

employment, damages for prospective harm in his present position, damages for intentional

and/or negligent infliction of emotional distress, punitive damages, injunctive and declaratory

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relief, payment of any severance pay due and owing, and payment of his litigation costs,

including reasonable attorneys fees, plus interest.

Respectfully Submitted,

s/ James B. Lieber

James B. Lieber

PA I.D. No. 21748

Thomas M. Huber

PA I.D. No. 83053

Jacob M. Simon

PA I.D. No. 202610Lieber & Hammer, P.C.

5528 Walnut Street

Pittsburgh, PA 15252

(412) 687-2231 (tel.)

(412) 687-3140 (fax)

Email: [email protected]

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EVANS v. BOMBARDIER, INC. et al Complaint