6/8/2016 4:51:57 PM 16CV18514 1 2 3 4 5 6 IN THE CIRCUIT COURT FOR THE STATE OF OREGON 7 FOR THE COUNTY OF MARION 8 GERRITT LAW, Plaintiff, 9 10 11 12 v. OREGON DEPARTMENT OF TRANSPORTATION, an Agency of the State of Oregon, Jane Lee, an Individual, and Gregg Dal Ponte, an Individual 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 16CV18514 Case No._____________________ COMPLAINT– Violations of ORS 659A.199 ORS 659A.203, and ORS 659A.230 (Whistleblowing); ORS 654.062 (OSHA Retaliation); and 42 U.S.C. 1983 (Due Process) (Judge______________________) (Prayer: $950,000) (Jury Trial Requested; Subject to Mandatory Arbitration) 15 16 Plaintiff alleges: 17 JURISDICTION AND VENUE 18 1. 19 Gerritt Law (“Plaintiff”) is a resident of Marion County, Oregon. ODOT, Oregon 20 Department of Transportation (“ODOT”), is an agency of the State of Oregon, headquartered in 21 Marion County, Oregon. Defendant, Jane Lee (“Lee”), was at all relevant times, an employee 22 of ODOT in the position of Chief Human Resources Officer. Defendant, Gregg Dal Ponte 23 (“Dal Ponte”), was at all relevant times, an employee of ODOT in the position of Administrator 24 for Motor Carrier Transportation. Plaintiff requests a jury trial in this matter. Page 1 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 2. 2 Venue is appropriate in this Court, because the events giving rise to this complaint 3 occurred in Marion County and ODOT is headquartered in Marion County. Pursuant to ORS 4 30.275, Plaintiff filed a Tort Claim Notice on or about March 11, 2016. 5 preconditions to this lawsuit have been satisfied. 6 FACTUAL ALLEGATIONS 7 8 9 All necessary 3. Plaintiff was hired by ODOT on or around May 6, 2013, as a Civil Engineering Specialist 2 (field operations weigh-in-motion coordinator). Plaintiff reported to manager 10 David McKane (“McKane”), Division Administrator Dal Ponte, and lead worker David Fifer 11 (“Fifer”). 12 4. 13 Fifer was primarily responsible for giving Plaintiff his work assignments, including 14 installing camera equipment, network DVRs, power supplies, and power circuits; terminating, 15 splicing and connecting inductance loops or sensors to controllers inside the weigh-in-motion 16 (WIM) cabinet; accessing Variable Message Signs (VMS) and replacing power supplies, 17 motherboards, or performing diagnostics to troubleshoot signs; replacing and diagnosing red 18 light and green light systems at weigh stations; calibrating, diagnosing, and repairing equipment 19 for the WIM sites, including working near traffic; installing submersible pumps to remove water 20 from scale pits; and testing, calibrating, diagnosing, and repairing static scale equipment, often 21 inside the scale, a permit-required confined space (PRCS). Plaintiff was not given adequate 22 training, tooling, or planning by ODOT, and frequently had to request specific information from 23 McKane to be able to perform the assigned duties as efficiently, effectively, and safely as 24 possible. Page 2 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 5. 2 Throughout his employment, Plaintiff disclosed information that he reasonably believes 3 to be violations of state or federal law, rule, or policy, or mismanagement, gross waste of funds, 4 or abuse of authority or substantial and specific danger to public health and safety resulting 5 from the action of the state. Thos disclosures included without limitation the following: 6 a. State employees providing engineering services without a license to do so. 7 b. Contractors conducting work under state contracts without proper permits. 8 c. Contractors conducting work under state contracts without proper licensure. 9 d. Contractors overbilling the state for services provided. 10 e. ODOT using and paying contractors to perform services that employees could do. 11 f. Instructing employees to perform services without proper licensure. 12 g. Requiring employees to use faulty/inappropriate equipment and materials creating 13 unsafe working conditions for employees and unsafe conditions for the public. 14 h. Purchasing equipment that is inappropriate and/or unsafe for the application it is 15 used for. 16 i. Subjecting Plaintiff to a hostile work environment. 17 j. Failing to perform work up to applicable code and/or require contractors to perform 18 work up to code. 19 k. Failing to respond to reports of conditions creating a safety risk to employees and/or 20 the public. 21 l. Paying contractors to redo work that was previously done incorrectly. 22 m. Fragmenting purchases and/or contracts for the purpose of circumventing 23 24 procurement statutes. /// Page 3 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 2 3 4 n. Writing job descriptions in such a manner that only a predetermined contractor would qualify to bid. o. Requiring qualifications for contractors that are not necessary for the work to be performed. 5 p. Failing to properly post contracts. 6 q. Failing to maintain safety in the workplace for employees and the public by not 7 notifying Over Dimensional Permits w/MCTD ensuring that a width restriction was 8 in place for that section of Highway/Freeway. 9 6. 10 Plaintiff made the disclosures described in the previous paragraph by e-mailing 11 McKane, Fifer, and Human Resources; by verbally discussing the issues in person with James 12 Hanseling and Nancy McDaniel, by filing a hostile work environment complaint and a union 13 grievance, and by speaking with McKane and Fifer. 14 15 7. ODOT began retaliating against Plaintiff because of the disclosures, and taking steps to 16 interfere with his disclosures and complaints, shortly after the disclosures began. 17 retaliation included, without limitation, the following: 18 19 Such a. Confining Plaintiff to the shop and not allowing him to do work out in the field where he often witnessed the violations of state or federal law, rule, or policy. 20 b. Preventing Plaintiff from working with contractors and vendors. 21 c. Requiring Plaintiff to do work outside of his licensure. 22 d. Requiring Plaintiff to work on job sites in dangerous conditions. 23 e. Placing Plaintiff on administrative leave and investigating him for allegedly 24 disparaging two ODOT contractors about whom Plaintiff had complained. Page 4 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 f. Providing Scales Northwest, another ODOT contractor, with Plaintiff’s personal and 2 confidential medical information related to Plaintiff’s medical leave, to be used by 3 Scales Northwest to lodge a complaint against Plaintiff with the Mid-Willamette 4 Industrial Apprenticeship Committee. 5 g. Instructing Plaintiff to stop complaining and to stop making written disclosures; 6 h. Withholding an education reimbursement check to be paid to Plaintiff. 7 i. Failing to provide Plaintiff with the same equipment for performance of his duties as 8 9 10 other departments and employees receive. j. Instructing Plaintiff to work after Plaintiff disclosed that the job assignment was unsafe and/or that he did not have the proper licensure to do the work. 11 k. Instructing Plaintiff to stop complaining about contractors. 12 l. Failing to respond to concerns raised by Plaintiff in a timely fashion, or at all. 13 m. Not providing Plaintiff and his union with an investigative file and policies allegedly 14 15 16 17 violated for review prior to the scheduled pre-dismissal meeting. n. Not providing Plaintiff and his union with a requested continuance to prepare for the pre-dismissal meeting. o. Terminating Plaintiff’s employment effective April 14, 2016. 18 FIRST CLAIM AGAINST ODOT–WHISTLEBLOWER RETALIATION 19 (Count I: Violation of ORS 659A.199) 20 8. 21 Plaintiff realleges paragraphs 1-7. Pursuant to ORS 659A.199, “[i]t is an unlawful 22 employment practice for an employer to discharge, demote, suspend or in any manner 23 discriminate or retaliate against an employee with regard to promotion, compensation or other 24 terms, conditions or privileges of employment for the reason that the employee has in good faith Page 5 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 reported information that the employee believes is evidence of a violation of a state or federal 2 law, rule or regulation.” ODOT is an employer as defined by ORS Chapter 659A. 3 9. 4 Plaintiff reported information he reasonably believed to be evidence of a violation of 5 state or federal law, rule, or regulation when he made the disclosures and complaint described in 6 Paragraph 5, above. 7 employment as described in Paragraph 7, above, in direct violation of ORS 659A.199. 8 ODOT retaliated against Plaintiff in the terms and conditions of 10. 9 As a result of ODOT’s unlawful employment actions, Plaintiff suffered humiliation, 10 anxiety, distress, and impairment of Plaintiffs personal dignity and right to be free from 11 discrimination or interference with Plaintiffs statutory rights. Plaintiff has also suffered 12 economic damages, including, but not limited to, past wages, past benefits, front pay and other 13 expenses. 14 11. 15 Plaintiff is entitled to non-economic damages sufficient to compensate Plaintiff for 16 emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other 17 nonpecuniary losses. 18 12. 19 20 Plaintiff is entitled to equitable relief, including, but not limited to, an award of back pay, lost benefits, and other compensatory damages. 21 13. 22 Plaintiff requests a declaration by this Court that ODOT violated ORS 659A.199. 23 /// 24 /// Page 6 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 14. 2 As a result of ODOT’s violations of ORS 659A.199, Plaintiff requests equitable relief, 3 economic damages not to exceed $100,000 and to be determined by a jury at the time of trial for 4 back pay, front pay, and benefits, in addition to compensatory damages not to exceed $450,000 5 and to be determined by a jury at the time of trial. 6 15. 7 8 Pursuant to ORS 659A.885, Plaintiff is entitled to his reasonable attorney fees, costs, expert witness fees, and disbursements in this action. 9 (Count II: Violation of ORS 659A.203) 10 16. 11 According to ORS 659A.203(1)(b)(A), (B), “it is an unlawful employment practice for 12 any public employer to prohibit any employee from disclosing, or take or threaten to take 13 disciplinary action against an employee for the disclosure of any information that the employee 14 reasonably believes is evidence of a violation of any federal or state law, rule or regulations by 15 the state, agency or political subdivision” or “mismanagement, gross waste of funds or abuse of 16 authority or substantial and specific danger to public health and safety resulting from action of 17 the state, agency or political subdivision.” According to ORS 659A.203(1)(d), it is also an 18 unlawful employment practice to “discourage, restrain, dissuade, coerce, prevent or otherwise 19 interfere with disclosure or discussions described in this section.” 20 21 17. ODOT is a public employer pursuant to ORS 659A.200. 22 18. 23 Plaintiff disclosed information that he believed was evidence of violations of federal 24 law, state law, agency rule and regulation, and were mismanagement, a gross waste of funds, Page 7 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 and abuse of authority, and ODOT took disciplinary action against him, and also discouraged, 2 restrained, dissuaded, prevented, or otherwise interfered with his disclosures and discussions, as 3 outlined above, in direct violation of this statute.. 4 19. 5 As a result of ODOT’s unlawful employment actions, Plaintiff suffered humiliation, 6 anxiety, distress, and impairment of Plaintiff’s personal dignity and right to be free from 7 discrimination or interference with Plaintiff’s statutory rights. Plaintiff also suffered economic 8 damages, including, but not limited to, past wages, past benefits, front pay and other expenses. 9 20. 10 Plaintiff is entitled to non-economic damages sufficient to compensate Plaintiff for 11 emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other 12 nonpecuniary losses. 13 21. 14 15 Plaintiff is entitled to equitable relief, including, but not limited to, an award of back pay, lost benefits, front pay and other compensatory damages. 16 22. 17 Plaintiff requests a declaration by this Court that ODOT violated ORS 659A.203. 18 23. 19 As a result of ODOT’s violations of ORS 659A.203, Plaintiff requests equitable relief, 20 economic damages not to exceed $100,000 and to be determined by a jury at the time of trial for 21 back pay and benefits, in addition to compensatory damages not to exceed $450,000 and to be 22 determined by a jury at the time of trial. 23 /// 24 /// Page 8 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 2 3 24. Pursuant to ORS 659A.885, Plaintiff is entitled to his reasonable attorney fees, costs, expert witness fees, and disbursements in this action. 4 (Count III: Violation of ORS 659A.230) 5 25. 6 Plaintiff realleges paragraphs 1-24. According to ORS 659A.230, “it is an unlawful 7 employment practice for an employer to discharge, demote, suspend or in any manner 8 discriminate or retaliate against an employee . . . for the reason that the employee has in good 9 faith reported criminal activity by any person, has in good faith reported criminal activity by 10 any person, has in good faith caused a complainant’s information or complaint to be filed 11 against any person,” or “has in good faith cooperated with any law enforcement agency 12 conducting a criminal investigation.” 13 14 26. ODOT is an employer pursuant to ORS 659A.230. 15 27. 16 Plaintiff disclosed what he reasonably believed to be criminal activity to his supervisors 17 and others in good faith, and was retaliated against as described above for disclosing the 18 conduct as described above. ODOT’s conduct directly violates ORS 659A.230. 19 28. 20 As a result of ODOT’s unlawful employment actions, Plaintiff suffered humiliation, 21 anxiety, distress, and impairment of Plaintiffs personal dignity and right to be free from 22 discrimination or interference with Plaintiffs statutory rights. Plaintiff has also suffered 23 economic damages, including, but not limited to, past wages, past benefits, front pay and other 24 expenses. Page 9 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 29. 2 Plaintiff is entitled to non-economic damages sufficient to compensate Plaintiff for 3 emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other 4 nonpecuniary losses. 5 30. 6 7 Plaintiff is entitled to equitable relief, including, but not limited to, an award of back pay, lost benefits, front pay and other compensatory damages. 8 31. 9 Plaintiff requests a declaration by this Court that ODOT violated ORS 659A.230. 10 32. 11 As a result of ODOT’s violations of ORS 659A.230, Plaintiff requests equitable relief, 12 economic damages not to exceed $100,000 and to be determined by a jury at the time of trial for 13 back pay and benefits, in addition to compensatory damages not to exceed $450,000 and to be 14 determined by a jury at the time of trial. 15 33. 16 17 Pursuant to ORS 659A.885, Plaintiff is entitled to his reasonable attorney fees, costs, expert witness fees, and disbursements in this action. 18 SECOND CLAIM AGAINST ODOT–OSHA RETALIATION 19 34. 20 Plaintiff realleges paragraphs 1-33. Pursuant to ORS 654.062, “It is an unlawful 21 employment practice for any person to bar or discharge from employment or otherwise 22 discriminate against any employee or prospective employee because the employee or prospective 23 employee has …Opposed any practice forbidden by” the Oregon Safe Employment Act. 24 /// Page 10 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 35. 2 ODOT is an employer pursuant to by ORS 654.062. 3 36. 4 Plaintiff opposed practices forbidden by the Oregon Safe Employment Act when he 5 complained about unsafe conditions and lack of licensure as described in Paragraph 5, above. 6 ODOT retaliated against Plaintiff as described in Paragraph 7, above, which is a direct violation 7 of this statute. 8 37. 9 As a result of ODOT’s unlawful employment actions, Plaintiff suffered humiliation, 10 anxiety, distress, and impairment of Plaintiffs personal dignity and right to be free from 11 discrimination or interference with Plaintiffs statutory rights. Plaintiff has also suffered 12 economic damages, including, but not limited to, past wages, past benefits, front pay, and other 13 expenses. 14 38. 15 Plaintiff is entitled to non-economic damages sufficient to compensate Plaintiff for 16 emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other 17 nonpecuniary losses. 18 39. 19 20 Plaintiff is entitled to equitable relief, including, but not limited to, an award of back pay, lost benefits, front pay and other compensatory damages. 21 40. 22 Plaintiff requests a declaration by this Court that ODOT violated ORS 654.062. 23 /// 24 /// Page 11 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 41. 2 As a result of ODOT’s violations of ORS 654.062, Plaintiff requests equitable relief, 3 economic damages not to exceed $100,000 and to be determined by a jury at the time of trial for 4 back pay and benefits, in addition to compensatory damages not to exceed $450,000 and to be 5 determined by a jury at the time of trial. 6 7 8 42. Pursuant to ORS 659A.885, Plaintiff is entitled to his reasonable attorney fees, costs, expert witness fees, and disbursements in this action. 9 THIRD CLAIM AGAINST DAL PONTE and LEE - 10 VIOLATION OF 42 U.S.C. § 1983 11 43. 12 Plaintiff realleges paragraphs 1-42. Plaintiff has constitutional rights under the Fourth 13 and Fourteenth Amendments to due process of law. 42 U.S.C. § 1983 provides that a party 14 shall be liable when it “subjects, or causes to be subjected, any person of the United States . . . 15 deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the 16 United States.” 17 18 44. Plaintiff had a protected property interest in his employment with ODOT. 19 20 21 45. At all times material to this complaint, Defendants Dal Ponte and Lee acted or purported to act in the performance of official duties under state statutes or regulations. 22 46. 23 ODOT conducted a disciplinary investigation into Plaintiff’s employment. This led to 24 the scheduling of a pre-dismissal hearing. On March 18, 2016, Plaintiff’s union, on behalf of Page 12 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 Plaintiff, requested a copy of ODOT's investigatory file and copies of policies allegedly violated 2 in order to review the facts and gather mitigating evidence for that hearing. Lee refused to 3 provide that information prior to the pre-dismissal hearing as noted in a March 18, 2016 4 communication. In addition, Plaintiff’s union, on behalf of Plaintiff, requested a continuance of 5 the pre-dismissal meeting in order to review the evidence and adequately prepare to provide a 6 response and mitigating evidence at the pre-dismissal hearing. Lee denied this request as well. 7 47. 8 9 Dal Ponte terminated Plaintiff’s employment with ODOT without providing Plaintiff with due process under Lee’s direction not to do so. 10 48. 11 Dal Ponte and Lee’s conduct, was well defined by law and Defendants knew or 12 reasonably should have known that their conduct was below the standard prescribed by law 13 herein. Defendants misused their official powers with a willful and malicious intent to deprive 14 Plaintiff of his due process rights and cause him grievous injuries thereby. Defendants, in acting 15 to deprive Plaintiff of his due process rights, acted intentionally, knowingly, willfully, and with 16 gross disregard to Plaintiff’s rights. Plaintiff was denied process due by law and any process 17 given was not meaningful or effectual. Plaintiff was denied the opportunity to be heard at a 18 reasonable time and in a reasonable manner prior to being deprived of his property interest in 19 state employment. 20 49. 21 Dal Ponte and Lee violated Plaintiff’s procedural and substantive due process rights 22 protected by the Fourteenth Amendment of the United States Constitution by engaging in the 23 conduct as alleged above. 24 /// Page 13 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 50. 2 The actions and inactions of Dal Ponte and Lee, as alleged in the paragraphs above, 3 constitute a violation of 42 U.S.C. § 1983 for which Plaintiff is entitled to relief. The violations 4 of 42 U.S.C. § 1983 enacted by the individual Defendants resulted in Plaintiff being deprived of 5 his rights, privileges, or immunities secured by the Constitution and laws of the United States. 6 51. 7 8 Plaintiff requests an order by this Court declaring that Dal Ponte and Lee, and Saxton individually and collectively violated 42 U.S.C. § 1983. 9 52. 10 As a direct and proximate cause of Dal Ponte and Lee’s violations of 42 U.S.C. § 1983, 11 Plaintiff requests equitable relief, economic damages not to exceed $100,000 and to be 12 determined by a jury at the time of trial, and compensatory damages to be capped at $400,000 13 and determined by a jury at the time of trial. 14 53. 15 16 Pursuant to 42 U.S.C. § 1988, Plaintiff is entitled to his reasonable attorney fees, costs, expert witness fees, and disbursements in this action. 17 WHEREFORE, Plaintiff requests equitable relief, liquidated damages, economic 18 damages not to exceed $100,000 including back pay, benefits, and front pay in addition to 19 compensatory damages to be capped at $850,000, and determined by a jury at the time of trial. 20 /// 21 /// 22 /// 23 /// 24 /// Page 14 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com 1 Pursuant to ORS 659A.885 and 42 U.S.C. § 1988, Plaintiff requests his reasonable attorney fees 2 and costs in this action. 3 DATED this 8th day of June, 2016. 4 5 Larry L. Linder Larry L. Linder OSB #010724 Douglas J. Davis OSB #140577 Attorneys for Plaintiff Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, Oregon 97301 Telephone: (503)585-1804 Facsimile: (503)585-1834 info@salememploymentlawyer.com 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 15 - Complaint Law Office of Larry L. Linder, LLC 3000 Market Street NE, Suite 150 Salem, OR 97301 (T)(503)585-1804 (f) (503)585-1834 info@salememploymentlawyer.com