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First Amended Complaint_Redacted

First Amended Complaint_Redacted

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Published by: Len Harris on Jun 22, 2012
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Plaintiff Pro Se
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
Plaintiff,
vs.
Sullivan Motor Company, inc., et al
Defendant.
Case no.
The Honorable John Ditsworth
PLAINTIFF’S FIRST AMENDED
VERIFIED COMPLAINT
Under authority of the Rules of Civil Procedure, Rule 15(a).
INTRODUCTION
¶1. Comes now the Plaintiff, ., a natural born law abiding American,
a lay person unschooled in the practice of law, who is over the age of 18 and a
resident of Mesa, Arizona.
¶2. The Defendant, Sullivan Motor Company, inc.,(SMC) is a for profit corporation
domiciled in Arizona, the county of Maricopa. SMC operates an entity at 1515 W.
Broadway Rd., Mesa, AZ 85202 of the same name, a ‘used car lot’ replete with a
sales department, service department, vehicle detail department and vehicle towing
department. With buildings, offices, structures, equipment and staff to facilitate the
operation.
¶3. Keith Canete (Mr. Canete) is SMC’s Service Department Manager and charged with
the task of implementing and managing the newly formed towing department.
Fabian is the General Manager of SMC.
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June 1, 2012
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JURISDICTION AND VENUE
¶4. This court has original jurisdiction pursuant to ARS Title 12, Chapter 1, Article 2
§123 and the Arizona Constitution Article VI §14.
¶5. Venue is proper pursuant to ARS Title 12, Chapter 4, Article 1 §401.
JURY DEMAND
¶6. Pursuant to the Arizona Constitution Article VI §17, Plaintiff demands jury trial.
BACKGROUND
¶7. Plaintiff was employed by the Defendant as a Tow Truck Driver. Plaintiff’s
immediate supervisor was Mr. Canete and Fabian above him in the hierarchy of
SMC.
¶8. On December 23, 2011, about 8:15am Mr. Canete informed Plaintiff that there is a
mandatory company meeting at 9:00am. Around 8:30am Mr. Canete instructed
Plaintiff to assist a person loading a vehicle on a car trailer in ‘the dirt lot’. This task
overran the time frame for the entire meeting.
¶9. About 9:30am while passing through the meeting area Fabian handed Plaintiff a
paper with no further explanation or instructions, he just handed
1
It to me as I passed through. The paper was from Icon Employer Service, inc. a
Professional Employer Organization (POE) and addressed to the employees of SMC.
It was signed by Gary C. Mecham an officer of the POE.
¶10. Mr. Mecham and his organization have not damaged the Plaintiff because of his being
wrongfully terminated by the Defendant and that is why the POE is not named as a
Defendant party to this civil action. To wit:
¶11. The paper is a memo that Mr. Mecham has arranged a company wide drug test for
all employees of SMC, who are willing to “ [v]oluntarily go to the area you are directed
and provide your specimen.” This instruction is unambiguous: Any employee wishing to
Attachment: Plaintiff Exhibit A.
1
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participate in and don’t mind having the very private act of urinating disturbed may do so.
¶12. About 10:00am Mr. Canete asked me if I took the drug test, told him I had issue with
it and that if he could show me in the written policy were this drug test is authorized
I would take the test, otherwise it is an invasion of privacy and I don’t have to.
¶13. Mr. Canete found the written policy and showed it to me the only condition drug
testing of employees is allowed is post-accident, I had not been involved in an
accident, therefor am not subject to a drug test under the authority of Arizona Law
so Plaintiff exercised his lawfully protected right not to participate.
¶14. At this point Mr. Canete turned Plaintiff over to Fabian who in turn ushered Plaintiff
into his office. He asked why I wouldn’t take the drug test and I explained he did
not have the lawful authority to arbitrarily drug test employees and that if he wanted
me to respect his rules he has to respect the laws that govern him as an employer.
Fabian obviously disagrees with this notion as manifest in his next actions:
¶15. Fabian ridiculed and made fun of Plaintiff by insinuating that because I wouldn’t
urinate in a little plastic cup and hand it over to a perfect stranger so he/she could in
turn deliver it to a laboratory for medical analysis, combined with the fact that no
one else questioned Defendant’s authority that I “must be on drugs”.
¶16. Plaintiff considers this behavior degrading and appalling and right out of the
communist play book: Saul Alinsky’s Rules for radicals Number 7 Tactics rule 5:
“Ridicule is man's most potent weapon. It is almost impossible to counteract
ridicule. Also it infuriates the opposition, which then reacts to your advantage.”
Fabian could not win that argument, it’s fallacious inasmuch as the truth is one hundred
and eighty degrees opposite of Fabian’s contention that I ‘must be on drugs’ for not
wanting to take a drug test, when the truth is: Someone on drugs would be better off
taking a drug test.
¶17. The common, well known fact is that drug testing is not a perfect science and the results
are not one hundred percent accurate, therefor it would only stand to reason that if a
person was on drugs the logical thing to do would be to take the drug test in hopes of a
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false negative result rather than refuse which is considered to be a positive result with no
chance of a negative result. Anyway when Plaintiff insisted on maintaining
his lawfully protected right to privacy Fabian retaliated by terminating his employment.
2
¶18. Plaintiff was singled out and made an example of. It is Defendants game and he set the
parameters in an attempt to make anyone who disagrees look guilty of something and he
does this by more behavior right out of the communist play book:
¶19. Saul Alinsky’s rules for radicals: Number7 Tactics Rule 3: “Whenever possible,
go outside the expertise of the enemy. Look for ways to increase insecurity,
anxiety and uncertainty.” Employer drug testing of employees is quite
commonplace today and employees depend on the employer to just do the right thing
and normally they do. However SMC does not.
¶20. However unbeknownst to the Defendant, Plaintiff is well educated in employee drug
testing. In the early 1990's as General Superintendent of Ceiling Concepts Plaintiff
took on the task of completing a comprehensive feasability study on implementing a
‘drug-free workplace’. Interestingly Plaintiff found that the odds of being sued by an
employee was far too great to justify implementing a 'drug-free workplace", for the
simple reason it is only mandatory for federal grantees.
Plaintiff told Fabian, “ I don’t know the statutes to cite, but I know your violating me
and when I find out the laws you are breaking I will let you know.”
¶21. In Arizona drug testing of employees is promulgated in ARS Title 23, Chapter 1,
Article 14, employer compliance with the requirements of the written policy, albeit
voluntary [ARS 23-493.08.C], non compliance of the article strips the employer of
lawful authority to drug test [ARS 23-493.07.A]. Therefore Plaintiff alleges for an
employer to retaliate against an employee by terminating his employment for exercising a
protected right, under Arizona Law [ARS 23-1501.3,(c),(I).] the employee shall have the
right to bring a tort claim for wrongful termination in violation of the public policy.
///
Arizona Constitution Article II, §8.
2
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CLAIM FOR REDRESS
¶22. Plaintiff incorporates ¶1. Through ¶21. By reference.
¶23. Protection from the immoral, unethical, deceitful and unlawful actions perpetrated
by the Defendant upon the Plaintiff causing him monumental personal damage is set
forth in ‘Arizona’s Employee Protection Act of 1996’ as defined and put into law in
ARS 23-1501-2 for the sole purpose of reigning in out of control persons like
Sullivan Motor Company, inc.
¶24. Based on these facts Plaintiff asserts: Defendant’s ‘firing the Plaintiff’ in retaliation
for exercising his protected constitutional right to privacy is WRONGFUL
TERMINATION IN VIOLATION OF THE PUBLIC POLICY for which
Plaintiff seeks redress:
¶25. ARS 23-1501: “The public policy of this state is that:”
¶26. ARS 23-1501 3.(c)(I):
“An employee has a claim against an employer for termination of employment
only if one or more of the following circumstances have occurred:
The employer has terminated the employment relationship of an
employee in retaliation for any of the following:
The refusal by the employee to commit an act or omission that would violate
the Constitution of Arizona . . .”
¶27. Plaintiff refusal to commit the act of urinating as instructed by Defendant against the
wishes of Plaintiff and without authority of law violates the Constitution of Arizona
Article II, §8: Right to privacy
“No person shall be disturbed in his private affairs, or his home invaded,
without authority of law.”
¶28. Also see: Arizona Supreme Court CV-98-0495-SA and CV-98-0580-SA opinion
¶17: “With the 1996 passage of the EPA, the legislature
limited plaintiffs to three avenues of relief for claims
asserted against employers on the theory of wrongful discharge.
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The EPA permits such employee claims if: (a) the discharge was
in violation of an employment contract, (b) the discharge
violated a statute of this state, or © the discharge was in
retaliation for the employee’s assertion of certain rights
protected by state law.”
BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
¶29. Plaintiff incorporates ¶1. Through ¶28. By reference.
¶30. Plaintiff entered into an agreement with the Defendant on or about December 12, 2011.
Plaintiff agreed to work Monday-Friday 8:00am till 5:00pm and be on call the
rest of the time. Defendant in return compensates Plaintiff five hundred and fifty
dollars per week for an indefinite period of time. Severable by either party at any
time. For any good reason or for no reason at all.
¶31. The public policy of the State of Arizona holds that the employer/employee
relationship is contractual in nature. Arizona courts have long held that every
contract contains an implied duty to act in good faith and with fair dealing. The
Arizona Supreme Court expanded on this and found that for reasons inconsistent
with the other party’s justified expectations constitutes a breach [AZ Supreme Court;
Wells Fargo Bank v. Arizona Laborers, Teamsters and Cement Masons Local No.
395 Pension Trust]. Plaintiff alleges that he certainly is justified in expecting more
than two weeks work especially as Plaintiff had been gainfully employed by Speedy
Towing for two years prior to Defendant soliciting Plaintiff for a job! Also:
¶32. On December 23, 2011 Defendant acted in bad faith by terminating the contract for
no other reason than Plaintiff refusing to give into Defendant’s arbitrary violation of
Plaintiff’s lawfully protected constitutional right to privacy and did so on it’s own
authority completely void of any lawful authority whatsoever.
///
///
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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
¶33. Plaintiff incorporates ¶1. Through ¶32. By reference.
¶34. 1. The Defendant engaged in negligent conduct or a willful violation of a statutory
standard; By retaliating against Plaintiff for exercising his right to privacy,
knowing full well that Defendant’s written drug testing policy woefully lacked the
statutory standard set forth in ARS 23-493.04.
2. The Plaintiff suffered serious emotional distress; By being unemployed and not
knowing when gainful employment will be found. Facing losing everything he
worked so hard for and not knowing weather or not he will become homeless.
3. The Defendant's negligent conduct or willful violation of statutory standards was a
cause of the serious emotional distress. The Defendant’s willful violation of
Plaintiff’s protected Constitutional right to privacy is the cause of Plaintiff
suffering serious emotional distress.
PRAYER FOR RELIEF
¶35. Plaintiff incorporates ¶1. Through ¶34. By reference.
¶36. Plaintiff prays that this Honorable Court finds in favor of the Plaintiff and against the
Defendant in all matters of this complaint, just and equitable:
¶37. That this Honorable Court orders the Defendant to reinstate his employment and pay
him retroactive back-pay from the day Plaintiff was wrongfully terminated, and that
Plaintiff keeps his seniority for all purposes, just as though his employment was
never interrupted, or in the alternative order Defendant to pay compensatory
damages to the Plaintiff in the amount equal to fulfilling the agreement between
Plaintiff and Defendant that Defendant breached in bad faith in the amount of five
hundred fifty dollars per week for each and every week Plaintiff is unable to replace
employment minus all amounts paid to Plaintiff for substitute employment.
¶38. That this Honorable Court order the Defendant to pay Plaintiff for hardship, pain and
suffering an amount equitable and just as determined by the Jury.
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¶39. That this Honorable Court order the Defendant to pay Plaintiff punitive damages an
amount equitable and just as determined by the Jury.
¶40. Grant to Plaintiff such other and further relief as may be just and proper under the
circumstances.
I swear or affirm and declare (or certify, verify or state) under penalty of perjury that the
foregoing is true and correct so help me God. Executed this First day of June, 2012.
X______________
Plaintiff Pro Se
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Linford J. Harris Jr.
4632 E. Caballero St. 1
Mesa AZ 85205
(480)'297-9546
Plaintiff Pro Se
COPY
JUN -5 2012
Mi.;HAEL K. JEANES, CLERK
A. NOYES
DEPUTY CI.F.RK
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
Linford J. Harris Jr.
Plaintiff,
vs.
Sullivan Motor Company, inc., et al
Defendant.
Case no. CV2012-090514
The Honorable John Ditsworth
PLAINTIFF'S CERTIFICATE OF
SERVICE OF FIRST AMENDED
COMPLAINT
CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of June, 2012. I served a copy of Plaintiffs First
Amended Complaint by 1st class US mail. Upon:
BROENING OBERG WOODS & WILSON, P.C.
Sarah L. Barnes (020362)
.com
Box 2052 I
PhoeniJS., AZ 85036
(602) 2 tl -7700
Attorneys for Defendant
28 Plaintiff Pro Se
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