Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`
`Case No.
`
`Plaintiff,
`
`
`
`
`
` Jury Trial Demanded
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`
`
`FRANK REYES FONTANEZ,
`
`
`
`vs.
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`TEVA PHARMACEUTICALS USA, INC.,
`a Foreign Profit Corporation,
`
`
`
`
`
`
`Defendant.
`_______________________________________/
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`
`
`
`
`
`
`COMPLAINT
`
`The Plaintiff, Frank Reyes Fontanez, by his undersigned attorney, makes the
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`
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`following Complaint against the Defendant, Teva Pharmaceuticals USA, Inc.:
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`Jurisdiction and Venue
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`1.
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`This action is brought to redress violations of the Family and Medical Leave
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`Act of 1993 (“FMLA”), as amended, 29 U.S.C. § 2601 et seq. This court has jurisdiction of
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`this action pursuant to 29 U.S.C. § 2617(2) and 28 U.S.C. § 1331.
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`2.
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`The Defendant resides in this district, the claims asserted in this action arose
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`within this district, and the alleged statutory violation occurred in this district. Venue of this
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`action is proper pursuant to 29 U.S.C. § 2617(2) and 28 U.S.C. § 1391.
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`Parties
`
`3.
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`The Plaintiff, Frank Reyes Fontanez, is and at all times relevant to this
`
`complaint was an adult citizen and resident of the State of Florida.
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`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`
`Case No.
`
`Plaintiff,
`
`
`
`
`
` Jury Trial Demanded
`
`
`
`FRANK REYES FONTANEZ,
`
`
`
`vs.
`
`TEVA PHARMACEUTICALS USA, INC.,
`a Foreign Profit Corporation,
`
`
`
`
`
`
`Defendant.
`_______________________________________/
`
`
`
`
`
`
`
`COMPLAINT
`
`The Plaintiff, Frank Reyes Fontanez, by his undersigned attorney, makes the
`
`
`
`following Complaint against the Defendant, Teva Pharmaceuticals USA, Inc.:
`
`Jurisdiction and Venue
`
`1.
`
`This action is brought to redress violations of the Family and Medical Leave
`
`Act of 1993 (“FMLA”), as amended, 29 U.S.C. § 2601 et seq. This court has jurisdiction of
`
`this action pursuant to 29 U.S.C. § 2617(2) and 28 U.S.C. § 1331.
`
`2.
`
`The Defendant resides in this district, the claims asserted in this action arose
`
`within this district, and the alleged statutory violation occurred in this district. Venue of this
`
`action is proper pursuant to 29 U.S.C. § 2617(2) and 28 U.S.C. § 1391.
`
`Parties
`
`3.
`
`The Plaintiff, Frank Reyes Fontanez, is and at all times relevant to this
`
`complaint was an adult citizen and resident of the State of Florida.
`
`
`
`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 2 of 9
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`4.
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`The Defendant, Teva Pharmaceuticals USA, Inc. is and at all times relevant
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`to this complaint was a corporation organized in the state of Delaware with a principal
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`place of business in New Jersey. The Defendant is authorized to do business in the state of
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`Florida and maintains offices in multiple Florida locations, including the city of Sunrise in
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`Broward County.
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`General Allegations
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`5.
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`The plaintiff was employed by the Defendant or its affiliates at various
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`locations in Puerto Rico and the United States from 2005 through 2021.
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`6.
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`In August 2016 and continuing until his discharge in 2021, the Defendant
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`employed the Plaintiff in the Defendant’s office in Sunrise, Broward County, Florida.
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`7.
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`On August 10, 2021, the Plaintiff felt in good health when he reported to
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`work. As the morning progressed, however, the plaintiff began to develop a cough.
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`8.
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`The Plaintiff advised his supervisor, Jaimie Morales, that in light of his cough,
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`he needed time off from work to obtain a COVID-19 test. Morales agreed to give plaintiff
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`time off from work to complete COVID-19 testing.
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`9.
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`In order to have his health condition evaluated, the Plaintiff obtained an
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`antigen test for COVID-19 on August 11, 2021 and received a positive result on that same
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`day. The Plaintiff advised the Defendant of that result and of his need for continued time off
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`for further evaluation and testing of his health condition.
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`10.
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`The Plaintiff also spoke to Geraldine Miller-Myrie, a Human Resources
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`employee, on August 11, 2021. The plaintiff advised Miller-Myrie of his test result. Miller-
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`Myrie instructed the plaintiff to obtain further testing to confirm the result.
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 3 of 9
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`11.
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`The Plaintiff was given another antigen test for COVID-19 on August 12,
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`2021 and received a negative result on that same day. The Plaintiff advised the Defendant of
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`that result and of his need for continued time off for further testing.
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`12.
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`The Plaintiff was given another antigen test for COVID-19 on August 13,
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`2021 and received a negative result on that same day. The Plaintiff emailed his negative test
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`results to Miller-Myrie and asked whether he should resume work on August 16, 2021 or
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`should await the results of a PCR test. Miller-Myrie responded that he should obtain a
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`negative PCR test result before returning to work.
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`13.
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`The Plaintiff was given a PCR test for COVID-19 on August 14, 2021. On
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`August 16, 2021, he received a negative result.
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`14.
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`The Plaintiff emailed the negative PCR test result to Miller-Myrie on August
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`16, 2021 and asked if he could return to work on August 17, 2021. Miller-Myrie emailed the
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`Defendant at 4:00 PM that day and said: “Hello Frank and thank you for the emails. Great
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`- you are cleared to return to work tomorrow barring any symptoms.”
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`15.
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`Later in the evening on August 16, 2021, Miller-Myrie called the Plaintiff and
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`told him that an investigation was being conducted by HR, that she was unaware of the
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`investigation when she cleared him to return to work, and that he was suspended pending
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`the result of the investigation. She also told him that someone from HR would notify him of
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`the result of the investigation.
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`16.
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`The Plaintiff then called Morales, who denied knowledge of any
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`investigation.
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`17.
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`The Defendant terminated the Plaintiff’s employment, effective August 19,
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`2021.
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 4 of 9
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`18.
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`The letter notifying the Plaintiff of his termination alleged that he was being
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`discharged because he reported to work ill on August 2, 2021, that he did not leave when
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`asked to do so by an unidentified member of senior management, and that he returned to
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`work ill on August 3, 2021 and was again told by an unidentified person to leave work.
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`Those allegations were false and were known to be false by the Defendant.
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`19.
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`The Plaintiff was not ill on August 2 or 3, 2021 and was not asked to leave
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`work on either of those dates. No facts existed which could have been reasonably
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`interpreted as supporting those allegations.
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`20.
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`The termination letter also accused the Plaintiff of not “divulging” his illness
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`to security when he reported to work and of exposing co-employees to his illness. Those
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`accusations were false. The defendant did not become ill until after he reported to work on
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`August 11, 2021 and did not expose any co-employees to his illness. No facts existed which
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`could have been reasonably interpreted as supporting the accusations made in the
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`termination letter.
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`21.
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`The termination letter also accused the Plaintiff of poor job performance.
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`Those accusations were untrue, as is evidenced by a satisfactory mid-year performance
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`evaluation that the Defendant provided to the Plaintiff in August 2021, shortly before his
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`employment was terminated. The performance evaluation makes no suggestion that the
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`Plaintiff’s employment was in jeopardy and is inconsistent with the claim that his job
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`performance justified the termination of his employment.
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`FMLA Eligibility
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`22.
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`The Defendant had 50 or more employees on each working day during each
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`of 20 or more workweeks during calendar years 2020 or 2021.
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 5 of 9
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`23. At all times relevant to this Complaint, the Defendant had at least 50
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`employees working within 75 miles of the worksite where the Plaintiff was employed.
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`24. At all times relevant to this Complaint, the Defendant was an “employer” as
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`that term is defined in the FMLA, 29 U.S.C. § 2611(4).
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`25.
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`The Plaintiff was employed by the Defendant for more than 12 months and
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`worked for more than 1,250 hours of service within the 12 months prior to the date on
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`which he requested an FMLA leave.
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`26. At all times relevant to this Complaint, the {laintiff was an “eligible
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`employee” as that term is defined in the FMLA, 29 U.S.C. § 2611(2).
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`27.
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`The Plaintiff was entitled to FMLA leave pursuant to 29 U.S.C. §
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`2612(a)(1)(D) and 29 C.F.R. § 825.113(c) to obtain examinations and evaluations to
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`determine whether he suffered from COVID-19, a serious health condition.
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`28.
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`The Plaintiff provided timely notice of his need for a leave by giving notice as
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`soon as was practicable.
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`29.
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`The Plaintiff provided the Defendant with sufficient information to make the
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`Defendant aware of his need for an FMLA-qualifying leave.
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`First Claim: FMLA Interference
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`30.
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`The Plaintiff realleges and incorporates paragraphs 1 to 29 of this Complaint.
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`31.
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`The Plaintiff was eligible for the FMLA’s protection.
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`32.
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`The Defendant was covered by the FMLA.
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`33.
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`The Plaintiff was entitled to leave under the FMLA.
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`34.
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`The Plaintiff gave the Defendant notice of his intent to take a leave that was
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`subject to the protections of the FMLA.
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 6 of 9
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`35.
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`The Defendant denied the Plaintiff a benefit to which she was entitled under
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`the FMLA by refusing to reinstate the Plaintiff to his employment after his need for a leave
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`ended.
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`36. As a direct, proximate, and substantial result of the interference with the
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`Plaintiff’s rights under the FMLA, the Plaintiff suffered monetary harm, including but not
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`limited to a loss of wages and benefits.
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`Second Claim: FMLA Retaliation
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`37.
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`The Plaintiff realleges and incorporates paragraphs 1 to 29 of this Complaint.
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`38.
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`The Plaintiff was eligible for an FMLA-protected leave.
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`39.
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`The Plaintiff engaged in activity protected by the FMLA by giving the
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`Defendant notice of his intent to take a leave that was subject to the protections of the
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`FMLA, by taking a FMLA-protected leave, and by requesting reinstatement to his position
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`when the need for a leave ended.
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`40.
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`The Defendant knew that the Plaintiff had engaged in activity protected by
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`the FMLA.
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`41.
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`The Plaintiff suffered an adverse employment action when his employment
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`was suspended.
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`42.
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`The Defendant suspended the Plaintiff’s employment because he engaged in
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`activities protected by the FMLA.
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`43.
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`The Plaintiff suffered an adverse employment action when his employment
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`was terminated.
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`44.
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`The Defendant terminated the Plaintiff’s employment because he engaged in
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`activities protected by the FMLA.
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 7 of 9
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`45.
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`By suspending and terminating the Plaintiff’s employment because he
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`engaged in protected activity by taking a job-protected leave and requesting reinstatement,
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`the Defendant acted with an unlawful retaliatory intent and discriminated against the
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`Plaintiff in violation of 29 U.S.C. § 2615(a)(2).
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`46.
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`Facts that evidence the defendant’s unlawful retaliatory intent include but are
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`not limited to:
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`a.
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`The suspension was imposed less than one week after the Plaintiff
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`began his protected leave.
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`b.
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`The termination occurred less than one week after the Plaintiff
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`announced his intent to exercise his statutory right to be reinstated to his
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`employment.
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`c.
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`The Defendant’s human resources officer told the Plaintiff that he was
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`cleared to return to work just hours before the suspension was imposed.
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`d.
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`Neither the Defendant’s supervisor nor the human resources officer
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`who cleared the Plaintiff to return to work were aware that an alleged “investigation”
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`of the Plaintiff had been commenced.
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`e.
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`The alleged grounds for the investigation, suspension, and termination
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`were false and the Defendant knew them to be false because the Plaintiff was not ill
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`on the dates alleged his termination letter and no evidence could reasonably have
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`suggested otherwise. The alleged grounds for termination were a pretext to conceal a
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`discriminatory motivation.
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`f.
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`The alleged grounds for the investigation, suspension, and termination
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`were false and the Defendant knew them to be false because the Plaintiff was not ill
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`
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 8 of 9
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`when he reported for work and no evidence could reasonably have suggested
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`otherwise. The alleged grounds for termination were a pretext to conceal a
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`discriminatory motivation.
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`g.
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`The alleged grounds for the investigation, suspension, and termination
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`were false and the Defendant knew them to be false because allegations about the
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`Plaintiff’s poor job performance were inconsistent with a favorable mid-year
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`performance review provided to the Plaintiff just days before his discharge. The
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`performance review did not suggest that the Plaintiff’s employment was in jeopardy.
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`The alleged grounds for termination were a pretext to conceal a discriminatory
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`motivation.
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`47. As a direct, proximate, and substantial result of the above-described
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`discrimination, the Plaintiff suffered harm, including but not limited to a loss of wages and
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`benefits.
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`Relief Requested
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`WHEREFORE, Plaintiff Frank Reyes Fontanez requests judgment against the
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`Defendant, Teva Pharmaceuticals USA, Inc. for:
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`a.
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`lost wages, the value of lost benefits, and other monetary losses in amounts to
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`be proved at trial;
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`b.
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`c.
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`interest;
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`liquidated damages equal to the sum of the monetary losses and the interest
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`requested above;
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`d.
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`reinstatement or an award of future wage loss and such other equitable or
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`injunctive relief as the court deems just;
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`Case 0:21-cv-62532-XXXX Document 1 Entered on FLSD Docket 12/20/2021 Page 9 of 9
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`
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`e.
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`an award of reasonable attorney’s fees and the costs of this action pursuant to
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`29 U.S.C. § 2617(a)(3); and
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`f.
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`such further relief as is just.
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`PLAINTIFF DEMANDS A TRIAL BY JURY
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`Dated: December 20, 2021
`Plantation, Florida
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`Respectfully submitted,
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`/s/Robert S. Norell
`Robert S. Norell, Esq.
`Fla. Bar No. 996777
`E-Mail: rob@floridawagelaw.com
`ROBERT S. NORELL, P.A.
`300 N.W. 70th Avenue
`Suite 305
`Plantation, Florida 33317
`Telephone: (954) 617-6017
`Facsimile: (954) 617-6018
`Counsel for Plaintiff
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`
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