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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

____________________________ EVA HAMILTON, ) No. 5:15-CV-______________ ) Plaintiff ) Complaint v. ) ) ROBERT A. McDONALD, In his ) Official Capacity as Secretary of ) Veterans Affairs, ) ) Defendant ) ____________________________) Eva Hamilton for her complaint against Robert A. McDonald, in his official

capacity as Secretary of Veterans Affairs states as follows:

I

Nature of the Action

1. This is an action pursuant to 42 U.S.C. § 2000e, et. seq., and 29 U.S.C. §

633a. Hamilton claims that she was wrongfully denied a promotion in her

employment with the Department of Veterans Affairs as a result of unlawful age

discrimination and retaliation. She seeks instatement to the position to which she

should have been promoted along with recovery of all lost pay and attendant

benefits, liquidated, compensatory and/or punitive damages, attorney’s fees, costs

and litigation expenses as allowed by applicable statute or rule.

II

Jurisdiction & Venue

2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331

as it raises a question of federal law. Venue is proper in this Court because

plaintiff’s claims arose in Fayette County, Kentucky.

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III

Parties

3. Plaintiff Eva Hamilton is a resident of Fayette County, Kentucky. She is

and, at all times pertinent to this action, has been employed by the United States

Department of Veterans Affairs in Fayette County, Kentucky.

4. Robert A. McDonald is the Secretary of the Department of Veterans

Affairs. He is sued in his official capacity as the defendant-party pursuant to

statute. As the body corporate representative of the United States Department of

Veterans Affairs, defendant, in his official capacity, is and, at all times pertinent

hereto, has been the employer of Hamilton within the meaning of applicable

sections of Titles 29 and/or 42 of the United States Code.

IV

Facts Giving Rise to the Action

5. On or about January 30, 2014, the Department of Veterans Affairs

announced a vacant medical support assistant (PACT Supervisor) position. The

position was job announcement #KK-14-JJC-1039309.

6. Hamilton applied timely for the PACT Supervisor position on or about

February 9, 2014.

7. Applications for the PACT Supervisor position were closed February 14,

2014.

8. 21 applicant packets were reviewed for the PACT Supervisor position.

9. Of the 21 reviewed applicant packets 19 applicants were forwarded for

and accepted interviews.

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10. Included among the 19 applicant packets forwarded for interviews was

the application of a Kristina Curry.

11. The application packet of Kristina Curry was forwarded for interviews

and further consideration, even though, upon information and belief, she was on

probation and not eligible for promotion to the PACT Supervisor position.

12. The procedures followed by VA management personnel to fill the PACT

Supervisor position were irregular and substantial deviations from established

procedures.

13. Kristina Curry was selected for the PACT Supervisor position.

14. The announcement was made by Philip Branham on March 18, 2014,

that Ms. Curry had been selected for the PACT Supervisor position.

15. On April 1, 2014, Hamilton was notified by email that Ms. Curry would

be her immediate supervisor effective immediately.

16. On April 3, 2014, Hamilton met with Mr. Belmont, Associate Director of

the VA Medical Center, and Laura Faulkner, chief of human resources, and advised

them of the irregularities and improprieties that occurred in the process that

ended in Kristina Curry’s selection for the PACT Supervisor position.

17. On April 4, 2014, Ms. Curry’s appointment to the PACT Supervisor

position was rescinded and she was reassigned.

18. On April 8, 2014, Hamilton filed an EEO complaint that her

nonselection for the PACT Supervisor position was on account of age

discrimination.

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19. On or about April 28, 2014, the Department of Veterans Affairs reposted

the announcement regarding the vacant medical support assistant (PACT

Supervisor) position. The position was job announcement #KK-14-JJC-1106857.

20. Hamilton applied timely again for the PACT Supervisor position on or

about May 10, 2014.

21. On or about May 18, 2014, Hamilton filed her formal complaint of age

discrimination regarding her nonselection for the PACT Supervisor position that

had been posted as job announcement #KK-14-JJC-1039309.

22. On June 6, 2014, a mediation conference was held regarding possible

resolution of Hamilton’s age discrimination charge regarding her nonselection for

the PACT Supervisor position that had been posted as job announcement #KK-14-

JJC-1039309.

23. Carol Stevens was one of the VA management representatatives that

attended and participated on June 6, 2014, the mediation conference regarding

possible resolution of Hamilton’s age discrimination charge regarding her

nonselection for the PACT Supervisor position that had been posted as job

announcement #KK-14-JJC-1039309.

24. Carol Stevens was the selecting official for the VA for the PACT

Supervisor position that had been posted as job announcement #KK-14-JJC-

1106857.

25. On June 23, 2014, Carol Stevens informed VA human resources that she

had selected Kristina Curry for the PACT Supervisor position that had been posted

as job announcement #KK-14-JJC-1106857.

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26. As of June 23, 2014, the interview process for the PACT Supervisor

position that had been posted as job announcement #KK-14-JJC-1106857 had not

been completed for a number of applicants including Hamilton.

27. Upon information and belief, Kristina Curry did not meet the minimal

qualifications for the PACT Supervisor position that had been posted as job

announcement ##KK-14-JJC-1106857.

28. Hamilton had and has superior qualifications and experience to Curry.

29. Curry is substantially younger than Hamilton, who is greater than 40

years of age.

30. Hamilton was not selected for the PACT Supervisor position that had

been posted as job announcement #KK-14-JJC-1039309 because of unlawful age

discrimination.

31. Hamilton was not selected for the PACT Supervisor position that had

been posted as job announcement #KK-14-JJC-1106857 because of unlawful age

discrimination.

32. Hamilton was not selected for the PACT Supervisor position that had

been posted as job announcement #KK-14-JJC-1106857 because of retaliation for

her age discrimination complaint that she officially filed on or about May 18, 2014.

33. Hamilton has complied with all conditions precedent to filing this

lawsuit.

34. As a direct and proximate result of defendant’s unlawful actions,

Hamilton has suffered damages including loss of pay and benefits, and emotional

distress and mental anguish.

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35. Defendant’s conduct and actions have displayed gross, reckless and

wanton disregard for Hamilton’s rights.

V

Causes of Action

1 – Age Discrimination (Nonselection for PACT Supervisor #KK-14-JJC-1039309)

36. Hamilton realleges paragraphs 1 – 35 as if fully set forth herein.

37. Hamilton’s nonselection for the PACT Supervisor position posted as job

announcement #KK-14-JJC-1039309 was on account of age discrimination.

38. As a direct and proximate result of defendant’s unlawful age

discrimination, Hamilton has suffered damages including loss of pay and benefits,

emotional distress and mental anguish.

2- Age Discrimination (Nonselection for PACT Supervisor #KK-14-JJC-1106857)

39. Hamilton realleges paragraphs 1 – 38 as if fully set forth herein.

40. Hamilton’s nonselection for the PACT Supervisor position posted as job

announcement #KK-14-JJC-1106857 was on account of age discrimination.

41. As a direct and proximate result of defendant’s unlawful age

discrimination, Hamilton has suffered damages including loss of pay and benefits,

emotional distress and mental anguish.

3 – Retaliation (Nonselection for PACT Supervisor #KK-14-JJC-1106857)

42. Hamilton realleges paragraphs 1 -41 as if fully set forth herein.

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43. Hamilton engaged in protected activity in filing a complaint of age

discrimination with regard to her nonselection for the PACT Supervisor job posted

as job announcement #KK-14-JJC-1039309.

44. Hamilton’s nonselection for the PACT Supervisor position posted as job

announcement #KK-14-JJC-1106857 was on account of retaliation for her

protected activity.

44. As a direct and proximate result of defendant’s unlawful retaliation,

Hamilton has suffered damages including loss of pay and benefits, emotional

distress and mental anguish.

VI

Demand for Relief

WHEREFORE, plaintiff Eva Hamilton demands against defendant Robert

A. McDonald as follows:

(1) Entry of a judgment instating her retroactively to the position of

PACT Supervisor effective as of March 19, 2014 or as of such other date as shown

appropriate by the evidence;

(2) Entry of a judgment awarding her the lost pay and benefits she has

suffered as a result of defendant’s unlawful age discrimination and/or retaliation;

(3) Entry of a judgment awarding her compensatory damages for the

emotional distress and mental anguish she has suffered on account of defendant’s

unlawful actions;

(4) Entry of a judgment awarding her liquidated and/or punitive

damages to punish defendant for the willful, wanton, reckless and gross disregard

for Hamilton’s rights and to deter repetition of similar misconduct;

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(5) Entry of a judgment awarding her attorney’s fees, costs, litigation

expenses in accordance with applicable law and rules; and,

(6) Granting all other and further relief to which she is shown entitled.

Demand for Jury Trial

Hamilton requests pursuant to Fed.R.Civ.Pro. 38 trial by jury on all issues

herein so triable.

Respectfully submitted,

By: /s/ Robert L. Abell ROBERT L. ABELL 120 N. Upper Street Lexington, KY 40507 859.254.7076 859.281.6541 fax Robert@RobertAbellLaw.com COUNSEL FOR PLAINTIFF

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JS 44 (Rev. 12/12) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except asprovided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 400 State Reapportionment’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 ’ 410 Antitrust’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 430 Banks and Banking’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 450 Commerce

& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 460 Deportation’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 470 Racketeer Influenced and’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 840 Trademark Corrupt Organizations

Student Loans ’ 340 Marine Injury Product ’ 480 Consumer Credit (Excludes Veterans) ’ 345 Marine Product Liability LABOR SOCIAL SECURITY ’ 490 Cable/Sat TV

’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 850 Securities/Commodities/ of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud Act ’ 862 Black Lung (923) Exchange

’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) ’ 890 Other Statutory Actions’ 190 Other Contract Product Liability ’ 380 Other Personal Relations ’ 864 SSID Title XVI ’ 891 Agricultural Acts’ 195 Contract Product Liability ’ 360 Other Personal Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 893 Environmental Matters’ 196 Franchise Injury ’ 385 Property Damage ’ 751 Family and Medical ’ 895 Freedom of Information

’ 362 Personal Injury - Product Liability Leave Act Act Medical Malpractice ’ 790 Other Labor Litigation ’ 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 791 Employee Retirement FEDERAL TAX SUITS ’ 899 Administrative Procedure’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: Income Security Act ’ 870 Taxes (U.S. Plaintiff Act/Review or Appeal of ’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee or Defendant) Agency Decision’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party ’ 950 Constitutionality of’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 State Statutes’ 245 Tort Product Liability Accommodations ’ 530 General’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION

Employment Other: ’ 462 Naturalization Application’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration

Other ’ 550 Civil Rights Actions’ 448 Education ’ 555 Prison Condition

’ 560 Civil Detainee - Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

State Court’ 3 Remanded from

Appellate Court’ 4 Reinstated or

Reopened’ 5 Transferred from

Another District(specify)

’ 6 MultidistrictLitigation

VI. CAUSE OF ACTIONCite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): Brief description of cause:

VII. REQUESTED IN COMPLAINT:

’ CHECK IF THIS IS A CLASS ACTIONUNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions):

JUDGE DOCKET NUMBERDATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Eva Hamilton

Fayette

Robert L. Abell, 120 N. Upper Street, Lexington, KY 40507, 859-254-7076; Robert@RobertAbellLaw.com

Robert A. McDonald, Secretary of the Department for Veterans Affairs

Fayette

not known at this time

42 USC 2000e & 29 USC 633a

age discrimination & retaliation related to failure to promote

08/18/2015 /s/ Robert L. Abell

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...

U.S. District Court Eastern District of Kentucky

CivilCase Assignment

Case number 5:15-CV-243

Assigned : Judge Karen K. CaldwellJudge Code : 4313

Assigned on 08/19/2015

Request New Judge .....

Page 1 of 1U.S. District Court Eastern District of Kentucky DCN Site

8/19/2015http://156.125.6.194/cgi-bin/CaseAssign/CVCA.pl

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AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature of Clerk or Deputy Clerk

Eastern District of Kentucky

Eva Hamilton

Robert A. McDonald, Secretary of the Department of Veterans Affairs

Robert A. McDonaldc/o Office of the Regional CounselDept. of Veterans Affairs321 W. Main St., Suite 390Louisville, KY 40202

(service also on United States AG & US Atty, EDKy)

Robert L. Abell, 120 N. Upper Street, Lexington, KY 40507

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

’ I personally served the summons on the individual at (place)

on (date) ; or

’ I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

’ I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

’ I returned the summons unexecuted because ; or

’ Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00

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