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`AMY FITZGERALD,
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`Plaintiff,
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`vs.
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`TYSON FOODS, INC.
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`Defendant.
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` §

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`CIVIL ACTION NO.
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`________________
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 1 of 8 PageID 1Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 1 of 8 PageID 1
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`UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`PLAINTIFF'S ORIGINAL COMPLAINT AND JURY DEMAND
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`The plaintiff, Amy Fitzgerald, (“Plaintiff” or “Fitzgerald”), complains of Tyson Foods, Inc.
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`(“Defendant” or “Tyson Foods”), as follows:
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`VENUE AND JURISDICTION
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`1. Fitzgerald is a citizen of the United States and a resident of the State of Texas.
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`2. Fitzgerald was a Regional Sales Manager for Tyson Foods and venue is proper because she
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`has been subjected to unlawful employment practices committed in the State of Texas,
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`Northern District, Dallas Division.
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`3. Tyson Foods is primarily involved in the business of processing and marketing chicken,
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`beef, and pork.
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`4. Tyson Foods is a Delaware corporation, conducting business in Texas at 4114 Mint Way,
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`Dallas, Texas, in the Northern District, and elsewhere, and this action accrued in whole or
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`in part in the Northern District.
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`5. Tyson Foods may be served with process by serving its registered agent in Texas: CT
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`Corporation System, 1995 Bryan Street, Suite 900, Dallas, Texas 75201.
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`Plaintiff’s Original Complaint and Jury Demand – Page 1
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 2 of 8 PageID 2Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 2 of 8 PageID 2
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`6. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1331, 28 U.S.C. §1343(a)(4),
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`and 28 U.S.C. §1337. The complaint seeks declaratory relief pursuant to 28 U.S.C. §§
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`2201, 2202. This suit is authorized and instituted pursuant to the Age Discrimination in
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`Employment Act of 1967 (“ADEA”), 29 U.S.C. §621, et seq.
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`7. This is a proceeding for compensatory and punitive damages, injunctive and other legal
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`and equitable available to secure the rights of Fitzgerald under the ADEA. It is brought to
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`prevent Tyson Foods from maintaining policies, practices, customs or usages of
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`discriminating against Fitzgerald in regard to terms, conditions, and privileges of
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`employment in violation of these statutes.
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`8. This matter in controversy exceeds, exclusive of interest and costs, the minimum
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`jurisdictional limits of this Court.
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`STATEMENT OF FACTS
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`9. Amy Fitzgerald is a female and currently age fifty.
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`10. Fitzgerald first became employed by Advance Food Company as an Operator Specialist in
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`September 1994, a predecessor company of Tyson Foods. Advance Food Company merged
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`with Pierre Foods in approximately 2010 and it became AdvancePierre Foods. In 2017,
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`AdvancePierre Foods was acquired by Tyson Foods.
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`11. Fitzgerald was promoted to Regional Sales Manager in 1995, and to Brand Manager in
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`1996. In 2000, due to restructuring Fitzgerald returned to her position as Regional Sales
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`Manager. Fitzgerald held the title of Regional Sales Manager when the company was
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`acquired by Tyson Foods in 2017. Fitzgerald performed her job successfully, regularly
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`receiving meets or exceeds performance review ratings throughout her employment until
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`the review she received in October 2019.
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`Plaintiff’s Original Complaint and Jury Demand – Page 2
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 3 of 8 PageID 3Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 3 of 8 PageID 3
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`12. Fitzgerald worked remotely for Tyson from her home office in Dallas, Texas. On
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`approximately October 1, 2018, Tyson did some restructuring and Fitzgerald began
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`reporting to Jed Wells (“Wells”), Director of Sales, approximate age 47. Wells reports to
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`Bill Shearin (“Shearin”), Senior Director of Sales, Food Service.
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`13. Fitzgerald worked in the SW division, consisting of Texas, New Mexico, Oklahoma,
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`Arizona, and Las Vegas. As Regional Sales Manager, Fitzgerald was responsible for
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`calling on distributors and operators in the North Texas region, which includes West Texas.
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`There were six total Regional Sales Managers in the SW division. Additionally, there were
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`three salespersons that handled operator accounts.
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`14. In March 2019, Fitzgerald received a mid-year review from Wells that indicated she was
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`meeting expectations. At times after Wells became her manager, Fitzgerald asked him to
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`travel with her to visit clients relating to marketing programs or conversions, but he rarely
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`went on client visits with her. During the time she reported to Wells, he went to only two
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`or three meetings with her at BEK DFW only. He never went to any other distributor to
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`make a call. He had lunch with Fitzgerald two times and went to a few other broker
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`meetings at Waypoint in Dallas only. He never went to Lubbock or Amarillo despite
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`Fitzgerald asking him for help in Amarillo. Throughout the time Fitzgerald worked with
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`Wells, she received little support from him in performing her job duties.
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`15. On October 17, 2019, Fitzgerald received her year-end performance review from Wells.
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`For the first time in approximately 25 years of employment, Fitzgerald received an
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`“inconsistent” performance rating on her annual performance review. In the review, Wells
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`stated that Fitzgerald was distracted and spending too much time with her family.
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`Fitzgerald was dumbfounded because she had no idea why he would make such statements.
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`Wells had not previously told Fitzgerald that he thought her job performance was
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`Plaintiff’s Original Complaint and Jury Demand – Page 3
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 4 of 8 PageID 4Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 4 of 8 PageID 4
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`inadequate. Wells requested that she sign the review and return it by the next day. The next
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`day Fitzgerald texted Wells and said she did not agree with the performance review, but
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`she indicated that she would sign it and return it due to his request that she do so.
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`16. Before the 2019 performance review, Wells had never discussed with Fitzgerald any
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`perception that she was distracted due to family issues. Fitzgerald had taken two separate
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`Fridays off to visit colleges with her daughter, but she used accrued paid time off.
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`17. In 2019, Tyson did a SAP transition that joined Tyson, Sara Lee and AdvancePierre into
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`one system. This transition caused massive chaos for six months to a year because
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`employees often could not see inventory levels or get trucks to get orders to customers.
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`Additionally, sometimes it appeared there was product in the freezer but there would not
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`be any there. Fitzgerald believes that none of the salespersons in her division made their
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`quotas in 2019 and 2020 because there were major shortages to customers.
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`18. On October 31, 2019, Wells held a mandatory conference call for the Southwest Division.
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`On that call, without any warning ahead of time, Wells took away eighty percent of
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`Fitzgerald’s accounts and gave the largest of her accounts, BEK DFW, to Luis Fuerte,
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`approximate age 40.
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`19. Fitzgerald had spent over twenty years building the North Texas territory. After her
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`termination, Fitzgerald learned that BEK DFW had repeatedly asked for her to be put back
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`on the account after Wells had assigned it to Fuerte, but it was not returned to her.
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`20. From October 2019 to February 2020, Fitzgerald repeatedly asked Wells for more
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`operators as there was no way Fitzgerald could meet her sales goals with the distributions
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`and operators that she had left. Wells did not provide Fitzgerald any operators despite her
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`requests.
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`Plaintiff’s Original Complaint and Jury Demand – Page 4
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 5 of 8 PageID 5Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 5 of 8 PageID 5
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`21. In November 2019, Fitzgerald attended the national sales meeting. At that meeting they
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`acknowledged employees who had reached milestone years at the company. Fitzgerald did
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`not receive any acknowledgement despite having met the 25 year milestone of service.
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`22. At the time Fitzgerald received her performance review, Wells had not told her how
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`negatively it would affect her year-end bonus. In January or February 2020, due to the
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`negative performance rating on her 2019 year-end review, Fitzgerald received a
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`substantially lower bonus than her counterparts.
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`23. On February 28, 2020, Wells placed Fitzgerald on a performance improvement plan
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`(“PIP”). In the PIP, Fitzgerald was criticized for ineffective CRM usage. However, many
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`salespersons at the company struggled with working with the CRM system. Indeed, at the
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`national sales meeting, Fitzgerald became aware that some salespersons in other regions
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`did not even know how to get into the CRM system.
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`24. Fitzgerald was aware at the time she was put on a PIP that substantially younger and/or
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`male counterparts who had difficulty making quota and who were not effectively using the
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`CRM tool, were not counseled or disciplined. On March 14, 2020, all salespersons at Tyson
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`Foods were grounded from travel, and as a result Fitzgerald’s PIP was suspended because
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`of the inability to call on clients.
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`25. At the end of June 2020, Luis Fuerte, who had been given Fitzgerald’s largest account
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`when Wells took most of her accounts away, resigned from Tyson Foods. After he resigned,
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`Wells divided the accounts that Fuerte had, giving the BEK account to Corr and all the
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`operators to Keaton Hicks, approximate age late 20s, a salesperson who sold to operators
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`in the Dallas area. Fitzgerald questioned Wells about why she was not getting any of the
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`accounts and he said it was because all of the accounts could be called on from home due
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`Plaintiff’s Original Complaint and Jury Demand – Page 5
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 6 of 8 PageID 6Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 6 of 8 PageID 6
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`to Covid-19. After this call, Wells redid Fitzgerald’s PIP so she could do it out of her office
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`during Covid-19.
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`26. Wells provided the new version of the PIP to Fitzgerald on June 26, 2020, with an ending
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`date of July 24, 2020. After Wells reinstituted the PIP, Fitzgerald contacted Director of
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`Human Resources Locken, to complain about the PIP and about the discriminatory and
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`retaliatory way Wells was behaving in the PIP meetings.
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`27. On July 30, 2020, Wells terminated Fitzgerald’s employment. Wells told her that she had
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`improved but was being terminated for failing to successfully complete the PIP in the
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`timeframe allotted.
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`ADEA
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`28. Fitzgerald incorporates by reference paragraphs 9 to 27 herein.
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`29. Fitzgerald was born April 28, 1970 and is currently age 50. Fitzgerald is a member of the
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`protected age group within the meaning of the ADEA.
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`30. At all times material to this action, Tyson Foods employed at least twenty employees and
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`is an employer with the meaning of the ADEA.
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`31. A.Tyson Foods employs more than 100 employees;
` B. Tyson Foods employs more than 200 employees;
` C. Tyson Foods employs more than 500 employees.
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`32. All conditions precedent to the filing of this suit have been met:
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`A. On or around September 22, 2020, Fitzgerald filed a charge of discrimination with the
`Equal Employment Opportunity Commission (“EEOC”) and Texas Workforce
`Commission (“TWC”), alleging age, sex and retaliation discrimination;
`B. More than 60 days have passed since the date the charge was filed.
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`37. Fitzgerald alleges that Tyson Foods, in a continuing course of conduct, discriminated
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`against her in the terms, conditions and privileges of employment because of her age, and
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`specifically in subjecting Fitzgerald to less favorable working conditions than those to
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`Plaintiff’s Original Complaint and Jury Demand – Page 6
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 7 of 8 PageID 7Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 7 of 8 PageID 7
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`which younger employees were subjected, including in failing to apply employee rules
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`and/or performance standards equally and in terminating her employment.
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`38. Fitzgerald alleges that Tyson Food’s age discrimination conduct is willful under the
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`ADEA.
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`39. Fitzgerald has no plain or adequate remedy at law to correct the wrongs complained of
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`herein, and has thus instituted this suit for damages, declaratory relief and injunctive relief
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`provided for under the ADEA. Further, Fitzgerald is now suffering and will continue to
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`suffer irreparable injury from Tyson Food’s policies, practices, customs, and usages, set
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`forth herein.
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`RELIEF REQUESTED
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` 39. Fitzgerald requests that this Court grant her the following relief from Tyson Foods:
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`A. A declaratory judgment against Tyson Foods, declaring its past practices herein
`complained of to be unlawful under the ADEA;
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`B. A permanent injunction, enjoining Tyson Foods from continuing to discriminate
`against her on account of age, in violation of the ADEA;
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`C. Backpay, front pay, retroactive seniority, pension benefits, bonus payments, health
`benefits, and any other relief necessary to compensate Fitzgerald for damages for
`ADEA;
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`D. Liquidated damages for Tyson Food’s willful violation of the ADEA;
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`E. Implementation of a clear and effective grievance procedure for employment
`discrimination complaints with an effective non-retaliation provision and
`advisement to all employees over the age of 40 of Tyson Foods of such grievance
`and non-retaliation provisions;
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`F. Attorney fees from Tyson Foods for the prosecution of her ADEA claim;
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`G. Costs for the prosecution of the ADEA claim, including the cost of expert witness
`fees;
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`H. Pre-judgment interest at the legally prescribed rate from the date of the violations
`until judgment as well as post-judgment interest as applicable;
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`Plaintiff’s Original Complaint and Jury Demand – Page 7
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`Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 8 of 8 PageID 8Case 3:21-cv-00331-B Document 1 Filed 02/16/21 Page 8 of 8 PageID 8
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`I. Such other general relief to which Fitzgerald is justly entitled.
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` 40. Fitzgerald demands a jury on all ADEA claims, specifically, the ultimate issues of fact as
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`JURY DEMAND
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`to the merits of the dispute, backpay, frontpay, employee benefits, and compensatory and
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`punitive damages, excepting the attorneys' fees issues.
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` Respectfully Submitted,
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`
`
`/s/ Jane Legler
`Jane Legler
`Texas Bar No. 03565820
`Christine Neill
`Texas Bar No. 00796793
` Kyla Gail Cole
` Texas Bar No. 24033113
`
` Neill Legler Cole PLLC
` 3141 Hood Street, Ste. 200
` (214) 748-7777
` (214) 748-7778 (facsimiles)
` christine@nlcemployeelaw.com
` jane@nlcemployeelaw.com
` kyla@nlcemployeelaw.com
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`Attorneys for Plaintiff
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`Plaintiff’s Original Complaint and Jury Demand – Page 8
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`

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