Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA (Fort Lauderdale Division) ANDREA SANTIAGO, Plaintiff, vs. BROWARD HEALTH, Defendant. / COMPLAINT FOR DAMAGES, Plaintiff, ANDREA SANTIAGO, sues Defendant, BROWARD HEALTH and shows: Introduction 1, This is an action by ANDREA SANTIAGO against her former employer for violations of the Family Medical Leave Act of 1993. By the filing of this action, Plaintiff socks damages and a reasonable attorney's fee. Jurisdietion 2, This action arises under the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, ef seg... The Court has jurisdiction over the claims pursuant to 29 U.S.C. §§ 1331, 13434) and 29 U.S.C, § 216(b). 3, The claim arose within the Southern District of Florida, which is where venue is proper.Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 2 of 7 Parties 4, Plaintiff, ANDREA SANTIAGO (hereinafter “SANTIAGO”) a resident of Broward County, Florida, was at all times material, employed by Defendant, until her termination effective March 25, 2015, 5 At the time of her termination, SANTIAGO was an “eligible cmployee” as defined by the FMLA, 29 U.S.C. § 2611(2), in that she had been employed for at least twelve months by the Defendant and worked at least 1250 hours during the 12 month period prior to when she took FMLA leave for a “serious health condition,” i.c., surgery for breast cancer, 6 Defendant, BROWARD HEALTH, is public hospital district doing business in the Southern District of Fl 1, which operates hospitals in Broward County, Florida, 7. BROWARD HEALTH is also an employer as defined by 29 U.S.C. § 26114), which has employees subject to the provisions of the FMLA in the facility where Plaintiff was employed. Factual Allegations 8 Plaintiff, ANDREA SANTIAGO, was employed by Defendant as a social worker until March 25, 2015, when her employment was terminated in violation of the FMLA. 9. Beginning on February 2, 2015, Plaintiff took approved FMLA leave to have sungery for breast cancer. She was out of work fiom February 2, 2015 until February 20, 2015, ‘when her doctor cleared her to retum to work on February 23, 2015. 10. On February 20, 2015, Plaintiff contacted Employee Health Services to inquire about her impending return to work following her FMLA leave. Based on prior FMLA leave for iff was aware that Defendant had a policy (Policy 7.10) that requires employees, her biopsy, P! ‘who are out of work for three or more days to be seen by the Employee Health Department for a 2Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 3 of 7 clearance for duty. Policy 7.10 further requires employees with open wounds, sutures or staples to obtain a clearance from the Employee Health Services Medical Director before they are allowed to return to work, Under the guise of the policy, Plaintiff had been required to show her breasts to one of Defendant's nurses before she was allowed to return to work. Plaintiff found the experience to be demeaning and humiliating and she did not want to go through it again if t could be avoided. 11, When Plaintiff asked of the examination requirement could be waived, she was told that it could not, and that she would have to submit to a physical examination of her breasts before she would be allowed to return to work from FMLA leave. The nurse with whom Plaintiff spoke suggested that the requirement might be waived if Plaintiff had her doctor write a note stating that she had no open wounds or sutures, 12. After speaking with the nurse, Plaintiff contacted her doctor, who wrote a retum to ‘work note stating that Plaintiff “no longer has drains or sutures and all wound are closed.” Plaintiff ‘emailed the doctor’s note to the nurse. 13. On February 24, 2015, Plaintiff contacted Employee Health Services and was referred to the head of Employee Health Services, Jennifer (last name unknown), Jennifer suggested to Plaintiff that her reluctance to allow a physical examination of her breasts was more of « psychological issue with Plaintiff than an issue with the policy. 14, On, February 24, 2015, Plaintiff spoke with Dr. Berges of Employee Health Services and emailed him a copy of her doctor's note, Dr. Berges informed Plaintiff that the examination requirement of policy would not be weived and that her surgical site was no different than an appendectomy. 15, Also on February 24, 2015, Plaintiff spoke with Grace King, Human Resources Director at Broward Health North, Ms. King informed Plaintiff that the policy would be applied to 3Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 4 of 7 her and that Plaintiff would have to submit to the physical examination before she could retum to work, In response, Plaintiff told Ms. King that she had done rescarch indicating that the examination requirement violated the ADA and the FMLA, and that she did not want to have to hire an attorney. 16. On February 26, 2015, Plaintiff attempted to contact Dionne Wong, HR Director for Broward Health, about her concerns regarding Policy 7.10. Plaintiff left a message for Ms. Wong but did not receive a return call 17, Plaintiff retained the undersigned as her counsel on February 26, 2015. On that date, an email was sent by Plaintiff's attomey to Ms. Wong, explaining the legal basis for Plaintiff's belief that Policy 7.10 violated the FMLA’s return-to-work requirements, 18. On February 27, 2015, Plaintiff spoke with Employee Advocate Melanie Hatcher. in asked that the physical examination be waived and she During this conversation, Plaintiff @ offered to provide a doctor’s note or her medical records in lieu of the examination, She even offered to allow a representative of Employee Health Services to speak with her doctor so that he could explain that Plaintiff had no open surgical site, staples or sutures. Later that day Ms, Hatcher called Plaintiff back and said that Defendant's lawyer would respond to Plait attorney. 19, On March 5, 2015, Defendant’s counsel, Michael Mattimore, Esq., sent a letter to Plaintiff's attorney in which he reiterated that Policy 7.10 would not be waived. 20, When Plaintiff continued her refusal to submit to the examination, an ad letter reiterating the policy was set on March 17, 2015. ‘The March 17" letter set a deadline of March 18, 2015, for Plaintiff to retum to work and submit to the physical examination of her breasts.Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 5 of 7 21, Plaintiff did not return to work on March 18, 2015, because she did not want to submit to @ physical examination of her breasts that she believed was completely medically unnecessary and violative of her rights under the FMLA. 22. On Match 25, 2015, Grace King sent Plaintiff an email with an attached letter. The letter stated that due to Plaintif?’s refusal to submit to Policy 7.10, Defendant considered Plaintiff to have voluntarily resigned her employment effective that date. 23. The assertion that Plaintiff voluntarily tesigned her employment is a fiction; Plaintiff never resigned her employment with Defendant and remained ready, willing and able to fulfill the duties of her position following her doctor's clearance to return to work on February 23, 2015, In fact, Plaintiff was terminated for her refusal to comply with Defendant’s Policy 7.10, which violates the FMLA’s return-to-work requirements, as well asthe fact that she had retained counsel to advise Defendant that its policy was unlawful under the FMLA, 24. ‘There are no legitimate, non-retaliatory reasons for Plaintiff's termination by Defendant. Count /FMLA Violation 25, Plaintiff realleges the allegations of Paragraphs 1 through 24 above. 26. Among the substantive rights granted by the FMLA to eligible employees is the right to “12 workwecks of leave during any 12- month period . .. . {blecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee,” 29 U.S.C. § 2612(a)(1), and the right following leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an equivalent position, 29 U.S.C. § 2614(@)(1).. 27. Plaintiff was engaged in statutorily protected activity when she took FMLA leave 5Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 6 of 7 for her surgery in February 2015, and when she retained counsel to inform Defendant of the reasons that Plaintiff objected to Policy 7.10. 28, By denying SANTIAGO her right to be restored to her position, and then terminating her, Defendant denied or otherwise interfered with Plaintif?'s substantive rights under the PMLA, 29 U.S.C, §§ 2615(a)(1), and unlawfully retaliated against Plaintiff for engaging in activity protected by the FMLA, as proscribed by 29 U.S.C. §§ 2615(a)(I) & (2), 29. There are no legitimate non-discriminatory or non-retaliatory reasons for Plaintiff's termination by Defendant. WHEREFORE, Plaintiff, ANDREA SANTIAGO, prays that this Court will A. Find Defendant's actions toward SANTIAGO to be violative of her rights under the FMLA; B. _ Reinstate Plaintiff to the position that she had before she took FMLA leave; C, Award SANTIAGO payment of all back wages and lost benefits found by the Court to be due under the FMLA; D. Award SANTIAGO an additional equal amount as liquidated damages for Defendant's willful violation of the FMLA; E, Grant such other and further relief as is just; and F. Award Plaintiff her costs, including a reasonable attomey’s fee.Case 0:15-cv-60680-RNS Document 1 Entered on FLSD Docket 04/03/2015 Page 7 of 7 Dated: April 3, 2015 Respectfully submitted, &. Christopher C. Sharp, F Fla. Bar No, 996858 E-Mail: esharplaw@zol.com SHARP LAW FIRM, P.A. 660 East Hillsboro Blvd., Suite 105 Deerfield Beach, Florida 33441 Telephone: (954) 332-9077 (954) 919-1502 Counsel for PlaintifFCase 0:15-cv-60680-RNS Document 1-1 Entered on FLSD Docket 04/03/2015 Page 1 of 1 ISA des) CIVIL COVER SHEET sans rpc ne space lig ae! serie of pangs fer mapers as eied By a Ge pad Dee pst iar Sucnacr er requ fr este othe kek oF Cot er Be The 18-44 inl epg die ond odode nics eae rs Feist of tang noc deters Satins en ward oF Ps eR 1. @) PLAINTIFGS DEFENDANTS Rodos Santiago Browacd Heath 1) CovmtyofResdsac Fit Lied Pint! rowan | omy of Resdone oF Fat Listed Defend eee (ANCHPT TS PAN CEES. fives PRunne cassomam NOTE. FYLANDCOMDRIATION CASE, USE UE LacantOxOr ARREARS RRO ES tenes (6), vanes me me. es Cohvistopher C. Sharp, E5q sharp La £660 East Hllsbore Bid, Sule 105 Deerfiaid Beach, FL 33441 954 Ti, BASIS OF JURISDICTION fas s 0 i a0 S077, eenarpisw@adl.com Fi. 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