varner v. shaw group et. al

7/28/2019 Varner v. Shaw Group et. al.

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF SOUTH CAROLINA

ROCK HILL DIVISION

J ack W. Varner, J r., )

)Plaintiff, ))

v. ) COMPLAINT)

The Shaw Group, Inc. (n/k/a CB&I Inc.) )and Francis Lemieux, ) (JURY TRIAL DEMANDED)

)Defendants. )

)

Plaintiff complains of Defendants as follows:

1. This action arises under the laws of the United States and South Carolina.

2. Plaintiff seeks all relief available against Defendant The Shaw Group, Inc.

(now known as CB&I Inc. and referred to in this complaint as (Shaw)) for depriving him

of his rights under the Family and Medical Leave Act, as amended (FMLA), 29 U.S.C.

2601, et seq., the Americans with Disabilities Act, as amended (ADAAA), 42 U.S.C.

12101, et seq., the regulations respectively promulgated under them, and the

common laws of South Carolina. Plaintiff also seeks all relief available against Francis

Lemieux.

JURISDICTION AND VENUE

3. This Court has original jurisdiction pursuant to 29 U.S.C. 2617(a)(2), 42

U.S.C. 12117(a), 42 U.S.C. 2000e-5(f)(3), and 28 U.S.C. 1331, 1337, and 1343,

with supplemental jurisdiction over any state law claims and parties pursuant to 28

U.S.C. 1367. Venue is proper in this District and Division pursuant to 28 U.S.C.

0:13-cv-01550-TLW-KFM Date Filed 06/06/13 Entry Number 1 Page 1 of 25


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1391(b), because the acts alleged below took place and Plaintiffs injuries occurred,

wholly or partially, in this Division. Plaintiff demands a Jury Trial.

PARTIES AND PROCEDURE

4. Plaintiff is a citizen and resident of Lexington County, South Carolina.

5. Plaintiff was employed with The Shaw Group, Inc. from May 2, 2011 until

October 2, 2012. He was a Quality Control Inspector V.

6. At all relevant times, Plaintiff worked at the V.C. Summer Nuclear Station

site in Jenkinsville, South Carolina.

7. At all relevant times, he was an employee covered by the ADAAA and the

FMLA.

8. The Shaw Group, Inc. was a Fortune 500 company headquartered in

Baton Rouge, Louisiana with approximately 25,000 employees.

9. At all relevant times, The Shaw Group, Inc. provided quality control

services for construction projects underway at the V.C. Summer Nuclear Station site.

10. At all relevant times, The Shaw Group, Inc. was an employer within the

meaning of the ADAAA and the FMLA.

11. Around February 13, 2013, The Shaw Group, Inc. was acquired by CB&I

Inc. Upon information and belief, the acquisition was a stock transaction.

12. Upon information and belief, the resultant company is CB&I Inc. which

now has approximately 50,000 employees.

13. Upon information and belief, CB&I Inc. would be liable to Plaintiff for any

damages that may be awarded in this action.



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14. CB&I Inc. is incorporated in the State of Texas. It is licensed to do

business in the State of South Carolina. It does business in at least Fairfield County.

15. CB&I Inc. is an employer within the meaning of the ADAAA and the FMLA.

16. At all relevant times, Francis Lemieux was an employee of the Shaw

Group, Inc. Upon information and belief, he is currently an employee of CB&I Inc.

17. Plaintiff timely and dually filed a charge of ADAAA discrimination /

harassment / hostile work environment with the Equal Employment Opportunity

Commission and the South Carolina Human Affairs Commission. That charge was later

amended to add retaliation and age discrimination.

18. Upon information and belief, Shaw received both Plaintiffs original charge

(called Notice of Charge of Discrimination) and his amended charge (called Amended

Notice of Charge of Discrimination). Shaw was required to file its response no later

than J anuary 18, 2013.

19. Shaw did not file any response to Plaintiffs original charge or amended

charge with either the Equal Employment Opportunity Commission or the South

Carolina Human Affairs Commission.

20. On or after March 9, 2013, Plaintiff received a Notice of Right to Sue from

the Equal Employment Opportunity Commission advising him that he must file suit

within 90 days of receipt.

21. Plaintiff timely filed this lawsuit within that 90 day period.

FACTS

22. Plaintiff worked in the nuclear industry approximately 38 years.



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23. As a Quality Control Inspector V, Plaintiff, among other things, was

responsible for ensuring that construction vendors or subcontractors at the V.C.

Summer Nuclear Station met quality assurance, quality control, and safety standards

under federal law, corporate policy, and contract regarding work performed at Units 2

and 3.

24. Based on Plaintiffs extensive experience in the nuclear industry, this

included double-checking to make sure that employees of construction vendors or

subcontractors were qualified.

25. Also, Plaintiff was responsible for establishing a self-performing Quality

Control group to eventually eliminate the need for Quality Control contractors. There

was only one Quality Control contractor on site and Shaws goal was to take over that

contract. The Quality Control contractor knew of Shaws goal. As a result, Plaintiffs job

often conflicted with the Quality Control contractor.

26. From approximately May 2, 2011 (when Plaintiff began working for Shaw)

until approximately April 2012, his work performance was exemplary.

27. Plaintiffs last performance evaluation was around August 2011. It was

given by Gary MacDonald (MacDonald) who was the Acting Site Quality Director.

28. Upon information and belief, MacDonalds position was 2 levels above

Plaintiffs. In other words, he was Plaintiffs bosss boss.

29. Plaintiffs last performance evaluation was called a Performance and

Development Summary FY 2011.



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33. On Plaintiffs last performance evaluation, MacDonald assessed Plaintiffs

behavior and determined that they met expectations in the areas of:

a. safety

b. innovation and initiative

c. Teamwork

d. Technical or functional excellence

34. On Plaintiffs last performance evaluation, MacDonalds overall comments

regarding behaviors included:

a. Mr. Varners performance is exemplary with quality at the highest

level.

b. Mr. Varner is exceptionally dedicated, responsible and accountable

as exhibited by his diligent actions to complete assignments ensuring the highest level

of quality, safety, attention to detail, customer focus, communication and understanding

in the performance of his work.

35. On Plaintiffs last performance evaluation, MacDonalds comments

regarding behaviors that exceed expectations included:

a. Mr. Varner has exceeded all my expectations in all areas identified

above.

b. Mr. Varner is very proactive, seeks alternative solutions, engages in

all work areas and activities, communicates very well, and is highly respected.

c. Mr. Varners performance is exemplary with quality at the highest

level.



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d. Mr. Varner is exceptionally dedicated, responsible and accountable

as exhibited by his diligent actions to complete assignments ensuring the highest level

of quality, safety, attention to detail, customer focus, communication and understanding

in the performance of his work.

36. On Plaintiffs last performance evaluation, MacDonalds comments

regarding behaviors that do not meet expectation stated Not Applicable.

37. MacDonald advised Plaintiff that he would become a Quality Control

Manager.

38. After MacDonald left the company around October of 2011, J immy

J ohnson became Acting Site Quality Director.

39. Upon information and belief, Mr. J ohnson (J ohnson) knew about plans to

make Plaintiff Quality Control Manager. However, Mr. Ronald Kuhn (Kuhn) was hired

and became Plaintiffs boss.

40. Upon information and belief, Kuhn was less qualified than Plaintiff.

41. In or around J anuary 2012, employees of the Quality Control

subcontractor referenced in paragraph 25 started arriving on site.

42. In the performance of Plaintiffs job, he made decisions that angered

subcontractors, particularly the Quality Control subcontractor, which did not want Shaw

to develop a self-performing Quality Control group.

43. From approximately February 2012, Plaintiff recommended that a high-

ranking employee of the Quality Control subcontractor be replaced because he failed to

perform his assigned duties.



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44. As a result of unpopular positions that he took, the District Manager and

employees of subcontractors, particularly the Quality Control subcontractor, went

behind Plaintiffs back and took actions to circumvent him, thus creating obstacles for

Plaintiff to do his job.

45. Plaintiff received a letter from J ohnson, Acting Site Quality Director, on

Shaw letterhead dated March 19, 2012, which recognized Plaintiff for his high

performance. The letter informed Plaintiff that he received a raise to encourage and

reward (him) for his continued contributions and commitment to Shaw.

46. Also, the March 19, 2012, letter from J ohnson advised Plaintiff that his

support and efforts were critical to Shaws continued success and the company was

proud to have him as part of the team.

47. Mr. Francis Lemieux (Lemieux) became Site Quality Director around

April 9, 2012, approximately 3 weeks after Plaintiff received J ohnsons letter and the

raise discussed in paragraphs 45 and 46 above.

48. Plaintiff was acquainted with Lemieux who had worked for Shaw at the

V.C. Summer Nuclear Station Units 2 and 3 construction sites before becoming Site

Quality Director.

49. Around the time that Lemieux became Site Quality Director, he told

Plaintiff that he was going to get rid of all Shaws Quality Assurance and Quality Control

Managers.

50. Around mid-April 2012, shortly after Lemieux became Site Quality

Director, he initiated a conversation with Plaintiff about guns. They both discussed



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having them. Lemieux admitted to having more guns and using them more often than

Plaintiff.

51. Around the end of April or the beginning of May 2012, Plaintiff was notified

that an Employee Concern had been filed against him for talking about guns.

52. An Employee Concern is a complaint lodged to Shaw to investigate

because the actions complained of had, or were having, a chilling effect on the

employees ability to do his or her job effectively or were creating a hostile work

environment.

53. Though Plaintiff was not advised who filed the Employee Concern, he was

told by the investigator that it was filed by management which was unusual. Plaintiff

explained the conversation about guns that he had with Lemieux (that Lemieux himself

initiated). To Plaintiffs knowledge, nothing more came of it. Because the Employee

Concern immediately followed his conversation with Lemieux, Plaintiff suspected that

Lemieux was the one who filed it.

54. Lemieux took their conversation and other matters out of context.

Lemieux took action against Plaintiff for them. Upon information and belief, Lemieux

used them as an excuse for the imposition of discipline against him.

55. For example, around mid-May 2012, Plaintiff started receiving emails

about weekly reports from Kuhn, his boss. He and Kuhn often bantered and exchanged

jokes. In his emails, Kuhn asked Plaintiff to supply information in bullet form. Plaintiff

complied but Kuhn emailed back and said that he wanted more bullets. Plaintiff then

responded by asking Kuhn what kind of bullets he wanted and then named several

calibers of bullets. Plaintiff, by his response, was trying to give Kuhn the information he



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wanted while joking to get further clarification. Such banter was common with Kuhn and

at the work site in general.

56. Upon information and belief, Kuhn forwarded Plaintiffs email to Lemieux.

57. As another example, Lemieux invited employees to call him on his cell

phone at any time. Plaintiff called him on his cell at approximately 6:00 pm on May 12,

2012 to test run the number. Because the call was made to his cell, Plaintiff did not

know where Lemieux was at when he received the call.

58. As another example, Lemieux initiated a conversation with Plaintiff

wherein he discussed his home and expressed great pride in it.

59. Thereafter, Lemieux invited Plaintiff and other employees to a cookout at

his home around May 19, 2012.

60. Plaintiff, in preparation of attending the cookout, found Lemieuxs home on

Google Earth. Plaintiff then copied the image, put the caption Where is the par 3?

underneath it, and shared it with Lemieux. Plaintiff was engaging in banter that was

common at the work site. It was his way of complimenting Lemieux about his home, of

which he was proud, because it looked big enough to have sand traps in the front yard.

61. Around the evening of May 17, 2012, Plaintiff received a phone call from

J ames Everett, a co-worker who was employed by Shaw on the same level as Plaintiff.

Everett advised Plaintiff that he was going to be fired on Monday, May 21, 2012.

Plaintiff was not aware of it.

62. Around May 19, 2012, Plaintiff filed an Employee Concern. Among other

things it dealt with the hostile work environment and chilling effect at the site, the



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treatment Plaintiff was receiving, and the employees that Lemieux was going to get rid

of.

63. On May 21, 2012, Plaintiff took a vacation day that was approved by

Kuhn, his boss.

64. On the morning of May 22, Lemieux met with Plaintiff. Lemieux was very

agitated and raised his voice to Plaintiff. Lemieux advised Plaintiff that he was being

suspended with pay. Lemieux had Plaintiff escorted offsite and it was done in front of

co-workers and subcontractors.

65. Around May 24, 2012, Shaw required Plaintiff to undergo a for cause

drug screen that is normally administered to employees suspected of policy violations.

It came back negative.

66. While he was on suspension, Shaw required Plaintiff to see a particular

psychologist 4 times. For the first 3 appointments, neither Plaintiff nor the psychologist

knew why Plaintiff had to attend.

67. During the 4th appointment, which was around J une 27, 2012, Plaintiff

learned from the psychologist that Shaw needed him to evaluate Plaintiff and release

Plaintiff to return to work with his security clearance because he had talked about guns

and bullets as set out in paragraphs 50, 55, and 56.

68. The psychologist cleared Plaintiff to return to work.

69. About a week before Plaintiff returned to work, a subordinate employee

contacted him at home. The co-worker said that Lemieux informed many Shaw

employees:

a. that Plaintiff might not return to work,



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b. that even if Plaintiff returned, Lemieux would do everything he

could to ensure that Plaintiff would never be in a supervisory or management position

with Shaw again.

70. Plaintiff returned to work on J uly 9, 2012, obtained his security clearance,

and was told to report to Angela Palmer (Palmer) a Representative in Human

Resources. Plaintiff did as requested.

71. During this meeting, Lemieux also was present with Palmer. Lemieux

began to intimidate and harass Plaintiff. Among other things, Lemieux stated:

a. That Plaintiff should not blame Shaw for any of their quality and

procedural issues because employees were on a learning curve.

b. That he (Lemieux) had discussed Plaintiff negatively with others in

the NDE1 Industry.

72. During this meeting, Plaintiff was issued an Employee Disciplinary Record,

labeled as a Final Warning, for 8 stated reasons. They were:

a. Referencing bullets in an email and thinking that it was humorous,

b. Talking about the types of guns he had at home,

c. Sending an aerial view map image of directors home to the

director, calling the director at 11 pm and saying he just wanted to see if he would

answer his call if he was at home,

d. Confrontational interactions with vendors which has caused his

relationship with the vendors to become very strained,

e. Unpredictable mood swings,

1The acronym NDE stands for Nondestructive Examination which denotes testing thatuses radiography, ultrasonic, and various other methods to determine the integrity of aweld or component without doing it harm.



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f. Disruptive behavior in the workplace presenting a negetive (sic)

impact on the NDE group and the quality organization,

g. Insubordinate to management,

h. Does not represent or demonistrate (sic) a positive leadership roll

(sic) with managing the NDE group.

73. The Final Warning was dated J uly 9, 2012 and was signed by Lemieux

and Palmer.

74. Also during this meeting, Plaintiff was issued a Performance Improvement

Objectives Plan (PIO Plan).

75. The PIO Plan was dated J uly 9, 2012 and was issued by Lemieux. It

provided that Plaintiff was to be evaluated by-weekly. It provided for a final evaluation

date of October 2, 2012.

76. Also during this meeting, Plaintiff was demoted from his Quality Control

Inspector V position, which was a supervisory one, to a nonsupervisory one. The

demotion was effective J uly 9, 2012.

77. At no time was Plaintiff interviewed about any of the reasons for which he

was being disciplined or for which the Performance Improvement Objectives Plan (PIO

Plan) was issued.

78. At no time was Plaintiffs Employee Concern addressed with him.

79. Plaintiff disputed the discipline and the reasons for which it was being

issued.

80. Also, upon information and belief, around this time Kuhn was demoted

and assumed Plaintiffs job.



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81. Plaintiff asked Kuhn if he ever was insubordinate to him while he was his

boss. Kuhn stated no.

82. Plaintiff worked from J uly 9, 2012 until J uly 16, 2012.

83. Between J uly 9, 2012 and J uly 16, 2012, Plaintiff had no further discipline.

84. However, because of the treatment he received, including his demotion

and the hostile work environment, Plaintiff suffered from a massive panic attack on the

morning of J uly 16, 2012.

85. Plaintiff was granted a medical leave of absence due to anxiety and/or his

panic attacks. He was granted FMLA leave from J uly 17, 2012 until October 9, 2012.

He began his FMLA leave on July 17, 2012.

86. Plaintiff periodically reported to the company during his leave as required.

87. Around the time that Plaintiff was on his FMLA leave, he filed 2

discrimination-related charges of which Shaw received notice.

88. Upon information and belief, Plaintiff filed his first charge (Charge 1)

directly with the Equal Employment Opportunity Commission (EEOC) sometime in J uly

2012. It was designated as EEOC 436-2012-00755.

89. In correspondence to the EEOC, Shaw acknowledged that it received

Charge 1 on August 1, 2012.

90. Around August 27, 2012, Plaintiff filed his second charge (Charge 2)

directly with the South Carolina Human Affairs Commission (SCHAC). It was

designated as FEPA claim 3-12-126D / EEOC 14C-2012-00954. Among other things, it

alleged continuing disability-related discrimination / harassment / hostile work

environment under the Americans with Disabilities Act, as amended.



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Charge 2 on September 17, 2012.

92. On September 18, 2012, Plaintiff emailed 2 representatives in Shaws

Human Resources department advising that he intended to return to work on October 8,

2012. He asked them what documentation was needed to do so.

93. On September 20, 2012, SCHAC transferred Charge 2 to the EEOC. In

correspondence to the EEOC, Shaw acknowledged this transfer.

94. Upon information and belief, on September 25, 2012, the EEOC

dismissed Charge 1 because it alleged claims that were not enforced by the EEOC. In

correspondence to the EEOC, Shaw acknowledged this dismissal.

95. The EEOC continued to investigate Charge 2.

96. Plaintiffs FMLA leave was to end on October 9, 2012. Plaintiff was to

return to work on or before that date.

97. Plaintiff advised his supervisor that his doctor released him to return to

work on October 8, 2012. Plaintiff advised his supervisor that he intended to return to

work on that date.

98. On October 2, 2012, Plaintiff was discharged.

99. On October 2, 2012, Mike Croall (Croall), a Shaw HR Representative,

contacted Plaintiff and told him that he was being discharged for failing to complete his

Performance Improvement Objectives Plan (PIO Plan). As set forth in paragraph 75,

October 2, 2012 was the final evaluation date under the PIO Plan.

100. Plaintiff told Croall that he still was on FMLA leave, and had been since

J uly 17, 2012, and therefore he could not complete the PIO Plan.



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101. Croall said that he thought Plaintiff had already returned to work and did

not know that he was still on FMLA leave.

102. Shaw proceeded with Plaintiffs discharge effective October 2, 2012.

103. Plaintiff amended Charge 2 on or around December 17, 2012 to include

retaliation and age discrimination.


amended Charge 2.

105. Upon information and belief, Shaw did not provide any response to

Plaintiffs Charge 2 or amended Charge 2.

106. Plaintiff received a Change in Status Notification from Shaw dated

October 3, 2012 which indicated that Shaw had discharged him for violating policy. No

one advised Plaintiff that he was discharged for that reason. No one advised Plaintiff of

the policy he allegedly violated. No one interviewed Plaintiff to investigate any alleged

violation of policy by him. This notification had the name of Mike Martin, a Human

Resources representative on it.

107. Plaintiff received a letter on Shaw letterhead dated October 26, 2012 from

Mike Martin, a Human Resources representative. The letter indicated that Plaintiff

resigned from Shaw.

108. Plaintiff did not resign.

109. As a direct result of Shaws actions, Plaintiff suffered damages including

but not limited to the loss of his job and lost benefits including but not limited to medical

insurance, dental insurance, short and long term disability insurance, life insurance,



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401(k), etc. Plaintiff also suffered severe stress, embarrassment, humiliation, emotional

distress, and the like as a result of his unlawful discharge.

FOR A FIRST CAUSE OF ACTION (AS TO SHAW)

(FMLA)

110. Plaintiff repeats paragraphs 1 through 109.

111. At all relevant times, Shaw was engaged in an industry affecting

commerce. Shaw was Plaintiffs employer within the meaning of the FMLA. Shaw was

subject to the FMLA.

112. Shaw granted Plaintiff FMLA leave until October 9, 2012.

113. Shaw fired Plaintiff on October 2, 2012 while he was on FMLA leave.

114. Therefore, Shaw willfully did not return Plaintiff to his job as required.

115. Shaw provided Plaintiff with 3 inconsistent reasons why he no longer is

employed. First Shaw told him, on October 2, 2012, that he was being fired for not

complying with the PIO Plan (which set forth October 2, 2012 as the final evaluation

date). However, Plaintiff was on FMLA leave almost the entire time after receiving it.

Though Plaintiff was unable to complete it for legitimate reasons, Shaw nonetheless

fired him and, by doing so, essentially punished him for taking FMLA leave. As a result,

Shaw interfered with Plaintiffs FMLA leave and discriminated against him for taking it.

The next day, on October 3, 2012, Shaw sent Plaintiff a letter advising him that he was

fired for violating policy. No one ever advised Plaintiff of the policy he allegedly violated.

No one interviewed Plaintiff to investigate any alleged violation of policy by him. After

Plaintiff received the PIO Plan on J uly 9, 2012, he only worked 1 week and did not



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receive any further discipline. Then, on October 26, 2012, Shaw sent Plaintiff a letter

advising him that he resigned. Plaintiff did not resign.

116. These inconsistencies evidence that Shaw did not have a legitimate, non-

discriminatory reason for firing Plaintiff.

117. Shaw intentionally and willfully violated the FMLA.

118. Shaw is liable to Plaintiff.

119. Upon information and belief, Plaintiff is entitled to back pay and retroactive

increases, front pay, benefits, actual damages, compensatory damages and/or

liquidated damages, attorneys fees, costs, expert fees, pre-judgment and post-

judgment interest, and such legal and equitable relief as may be appropriate.

FOR A SECOND CAUSE OF ACTION (AS TO SHAW)

(ADAAA - Retaliation)


121. At all relevant times, Shaw was engaged in an industry affecting

commerce. Shaw was Plaintiffs employer within the meaning of the ADAAA. Shaw

was subject to the ADAAA.

122. Around August 27, 2012, while he was on FMLA leave, Plaintiff filed a

charge of ADAAA discrimination / harassment / hostile work environment.

123. Shaw received this charge on September 17, 2012.

124. Shaw fired Plaintiff on October 2, 2012. That was 15 days after Shaw

received the charge.

125. Among other things, the ADAAA prohibits an employer from retaliating

against an employee for filing a charge of discrimination. 42 U.S.C. 12203.



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126. Shaw did not have a legitimate, non-discriminatory reason for firing

Plaintiff (see paragraphs 115 and 116).

127. Shaw intentionally and willfully violated the ADAAA.

128. Shaw is liable to Plaintiff.


increases, front pay, benefits, actual damages, compensatory damages and/or punitive

damages, attorneys fees, costs, expert fees, pre-judgment and post-judgment interest,

and such legal and equitable relief as may be appropriate.

FOR A THIRD AND FOURTH CAUSE OF ACTION (AS TO SHAW)

(ADAAA Discrimination / Harassment - Hostile Work Environment)


131. Plaintiff was an exemplary employee whose performance and behaviors

exceeded the expectations of his first supervisor, Gary MacDonald (paragraphs 29-36).

132. Plaintiffs outstanding performance was reaffirmed by a subsequent

supervisor, J immy J ohnson (paragraphs 45-46). J ohnson praised Plaintiff for his high

performance. He rewarded Plaintiff for his continued contributions and commitment to

Shaw by giving him a raise. He recognized that Plaintiffs support and efforts were

critical to Shaws continued success. He advised Plaintiff that Shaw was proud to have

him as part of the team.

133. Yet, 2 months later, a third supervisor, Francis Lemieux suspended

Plaintiff with pay (paragraph 64). He had Plaintiff undergo a for cause drug screen

that is normally administered to employees suspected of policy violations, which test

came back negative (paragraph 65). He had Plaintiff undergo a psychological



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evaluation in order to return to work, which Plaintiff passed (paragraphs 66-68). All of

this was based on actions that were taken out of context (paragraphs 50-60).

Nonetheless, they were based on Lemieuxs perceptions. He regarded Plaintiff as

having a disability. Plaintiff, therefore, is a person with a disability under the ADAAA.

134. The drug test and/or psychological examination that Plaintiff was required

to have were post-employment medical examinations under the ADAAA. Under all

relevant circumstances, Shaw required that Plaintiff undergo them either to determine

whether or not he was a person with a disability and/or to determine the nature or

severity of a disability that Lemieux perceived. Under all relevant circumstances, Shaw

arbitrarily used them. Under all relevant circumstances, they were not job-related.

Under all relevant circumstances, they were not consistent with business necessity.

135. Yet when Plaintiff was cleared to return to work by the psychologist, Shaw

immediately took further action against him that adversely affected his compensation,

terms and conditions of employment, employment opportunities, and the like. Shaw

immediately demoted and disciplined him and put him on a Final Warning and PIO Plan

for primarily the same reasons for which it had him undergo the medical examinations

prohibited by the ADAAA (paragraphs 70-79). He only worked 1 week before he went

on FMLA leave (paragraphs 82-85). He did not have any further discipline during that

time (paragraph 83). He was fired while on FMLA leave. Shaw did not have a

legitimate business-related reason for demoting, disciplining, or firing him (paragraphs

98-102, 106-108, and 115-116).

136. Under all relevant circumstances, Plaintiff was subjected to harassment

and a hostile work environment that was sufficiently severe or pervasive, objectively and



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subjectively, to alter the terms, conditions, or privileges of Plaintiffs employment. They

created an abusive or hostile working environment.

137. Plaintiff did not welcome them.

138. They were motivated because Shaw and Lemieux perceived Plaintiff to

have a disability.

139. Shaw knew or should have known of the harassment or hostile working

environment and took no effective remedial action.

140. Shaw intentionally and willfully violated the ADAAA.

141. Shaw is liable to Plaintiff


increases, front pay, benefits, actual damages, compensatory damages and/or punitive

damages, attorneys fees, costs, expert fees, pre-judgment and post-judgment interest,

and such legal and equitable relief as may be appropriate.

FOR A FIFTH CAUSE OF ACTION (AS TO SHAW AND LEMIEUX)

(Defamation)


144. A co-worker who was on the same level as Plaintiff told him that he was

going to be fired on Monday May 21, 2012 (paragraph 61). Plaintiff was not aware of it.

Upon information and belief, this information came from Lemieux. Around May 22,

2012, Lemieux had Plaintiff escorted offsite in front of co-workers and subcontractors

(paragraph 64). These constitute statements about Plaintiffs inadequacy in performing

his job, and/or other matters related to Plaintiffs person and/or work. These statements

are defamatory per se and are actionable per se.



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145. Shaw and/or Lemieux had Plaintiff undergo drug and psychological

examinations that were not job-related or consistent with business necessity

(paragraphs 134-135). These actions constitute statements about Plaintiffs sanity,

inadequacy in performing his job, and/or other matters related to Plaintiffs person

and/or work. These statements are defamatory per se and are actionable per se.

146. About a week before Plaintiff returned to work, a subordinate employee

contacted him at home and said the Lemieux informed many Shaw employees that

Plaintiff might not return to work and that, even if he did, Lemieux would do everything

he could to ensure that Plaintiff would never be in a supervisory or management

position with Shaw again (paragraph 69). When Plaintiff returned to work, he

immediately met with Lemieux who admitted to Plaintiff that he had discussed Plaintiff

negatively with others in the NDE Industry (paragraph 71). When Plaintiff returned to

work, he immediately was demoted (paragraph 76). These constitute statements about

Plaintiffs inadequacy in performing his job, and/or other matters related to Plaintiffs

person and/or work. These statements are defamatoryper se and are actionable per

se.

147. The statements set out in paragraphs 144 and/or 145 and/or 146

impeached Plaintiffs honesty, integrity, virtue, and/or reputation.

148. The statements set out in paragraphs 144 and/or 145 and/or 146 were

made with actual or implied malice.


made with reckless disregard for the truth.



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false.


communicated to someone other than Plaintiff or in front of someone besides Plaintiff.


subjected Plaintiff to public hatred, contempt, and ridicule or caused him to be shunned

or avoided, or caused his reputation to be injured.


exceeded the bounds of any qualified or conditional privilege.

154. As a direct and proximate result of all of the foregoing, Plaintiff was

defamed.

155. As a direct and proximate result of the conduct of Shaw and/or Lemieux,

Plaintiff suffered embarrassment, humiliation, emotional distress, and other damages

from the injury to his reputation. Shaw and Lemieux, individually or jointly, are liable to

Plaintiff therefor along with all other damages and relief as may be appropriate.

FOR A SIXTH CAUSE OF ACTION (AS TO SHAW AND LEMIEUX)

(Invasion of Privacy)


157. Lemieux and/or Shaw publicized matters concerning Plaintiff that were not

of legitimate public concern and that were highly offensive to Plaintiff (paragraphs 144-

146).

158. The publicity caused Plaintiff mental distress and injury.



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159. Upon information and belief, the publicity of such private matters would

cause mental distress and injury to any reasonable person.

160. Lemieux and/or Shaw acted with malice.

161. As a direct and proximate result of all of the foregoing, Lemieux and/or

Shaw invaded Plaintiffs privacy.

162. As a direct and proximate result of the conduct of Lemieux and/or Shaw,

Plaintiff suffered embarrassment, humiliation, emotional distress, and other damages

from the invasion of his privacy. Shaw and Lemieux, individually or jointly, are liable to

Plaintiff therefor along with all other damages and relief as may be appropriate.

WHEREFORE, Plaintiff prays that this Court grant him the following relief:

A. As to his First Cause of Action, back pay and retroactive increases, front

pay, benefits, actual damages, compensatory damages and/or liquidated damages,

attorneys fees, costs, expert fees, pre-judgment and post-judgment interest, and such

legal and equitable relief as may be appropriate.

B. As to his Second, Third, and Fourth Causes of Action, back pay and

retroactive increases, front pay, benefits, actual damages, compensatory damages

and/or punitive damages, attorneys fees, costs, expert fees, pre-judgment and post-

judgment interest, and such legal and equitable relief as may be appropriate.

C. As to his Fifth and Sixth Causes of Action, actual damages, compensatory

damages, and/or punitive damages (without any caps), attorneys fees, costs, expert

fees, pre-judgment and post-judgment interest, and such legal and equitable relief as

may be appropriate.



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D. And for such other and further relief as this Court deems necessary, just,

and proper, including retaining jurisdiction over this action to ensure full compliance with

the Order of this Court and with the laws upon which this action is based.

NANCY A. LIPSKI, LLC

By: s/ Nancy A. Lipski____________Nancy A. Lipski (Federal ID #5957).101 Martel DriveLexington, South Carolina 29072Phone: (803) 951-2772Fax: (803) 957-3666Email: [email protected] for Plaintiff

Lexington, South Carolina

J une 6, 2013.


varner v. shaw group et. al

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