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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON Case No. 99cv1262 ALLEN vs. THE BOEING COMPANY Complaint For Wrongful Discharge In Violation Of Family And Medical Leave Act Plaintiff LARRY DALE ALLEN, through his undersigned attorney, alleges as follows: JURISDICTION, VENUE, AND PARTIES 1. This court has original jurisdiction over this claim under the Family and Medical Leave Act (FMLA), 29 U.S.C. ��2601-2654, specifically 29 U.S.C. �2617 (a)(2), as this action is brought by an eligible employee on behalf of himself. 2. Plaintiff LARRY DALE ALLEN is a resident of King County, Washington. 3. Defendant THE BOEING COMPANY is a corporation duly organized and existing under the laws of the State of Delaware, having its principal office and place of business located in King County, Washington, within the territorial jurisdiction of this court, and having its place of business where it employed the plaintiff in Snohomish County, within the territorial jurisdiction of this court. 4. At all times hereinafter mentioned, defendant THE BOEING COMPANY was engaged in the business of providing goods and services in an industry affecting commerce. The defendant employed and continues to employ more than 50 employees during at least 20 weeks of 1999 and during at least 20 weeks of 1998 at the defendant’s Everett Plant, in Everett, Washington, where it employed the plaintiff The defendant owns, rents, or otherwise obtains the use of other facilities in or near Everett, the Tulalip Indian Reservation, Seattle, Issaquah, Seatac, Renton, Tukwila, Kent, and Auburn, all of these facilities are within 75 miles of the location where the defendant employed the plaintiff The defendant employed and continues to employ more than 50 employees during at least 20 weeks of 1999 and during at least 20 weeks of 1998 within 75 miles of where it employed the plaintiff It is an employer within the meaning of 29 U.S.C. �2611 (4), engaged in commerce or in the production of goods for commerce in an industry affecting commerce as defined in 29 U.S.C. �142 (1) and (3), and 29 U.S.C. �2611 (1), in that a labor dispute would hinder commerce and the free flow of commerce. 5. In connection with said business, defendant THE BOEING COMPANY regularly purchases goods and services from sources outside the State of Washington or has traveled in interstate commerce, and produces goods and services for sale outside the State of Washington. 6. From November 4, 1988 to May 17, 1999, defendants employed plaintiff in connection with the business of defendant THE BOEING COMPANY in the capacity of using goods and services purchased from outside the State of Washington or traveled in interstate commerce. Plaintiff was employed for more than 12 months and performed more than 1,250 hours of labor for the defendant within the 12 months prior to May 17, 1999. Plaintiff was an employee and was employed by the defendant within the meaning of 29 U.S.C. �203(e), (g), and 29 U.S.C. �2611(3), and was an eligible employee within the meaning of 29 U.S.C. �2611(2)(A). He was not in the highest paid 10% of all employees employed by the defendant within 75 miles of the Everett Plant where he was employed by the defendant and is therefore not affected by the exemption provided by 29 U.S.C. �2614(b). He is not affected by the exemption provided by 29 U.S.C. �2611(2)(B) because the defendant employed more than 50 employees within 75 miles of the Everett Plant. 7. During the period of the plaintiff’s employment by the defendant, he was a member of the bargaining unit represented by the International Association of Machinists and Aerospace Workers, AFL/CIO, (IAM), and he was and still is a member in good standing with the IAM. At all times relevant to this action, the Collective Bargaining Agreement between the defendant THE BOEING COMPANY and the IAM signed on December 14, 1995 (CBA1995) was and still is in effect. CAUSE OF ACTION 8. During the 12 months previous to May 17, 1999, the plaintiff received two Corrective Action Memorandums (CAM) concerning what the defendant considers to be unacceptable attendance. On September 18, 1998 he received a warning CAM concerning unacceptable attendance. He was a few minutes late to work on two occasions during the 90 days prior to this first CAM. It is the policy of THE BOEING COMPANY that if an employee does not have any other such incidents within six months, the CAM is withdrawn and will no longer exist in the employee’s file. However, the plaintiff received a second CAM concerning unacceptable attendance on November 11, 1998 and was suspended for one day without pay. It is the policy of THE BOEING COMPANY that if an employee receives a third CAM within one year of the first CAM, the employee is fired. However, if the employee does not receive a third CAM, it is also the policy of THE BOEING COMPANY that the two CAM’s are withdrawn and will no longer exist in the employee’s file. 8. The plaintiff suffers a serious medical condition, gout, within the meaning of 29 U.S.C. �2611(11) in that it requires inpatient care or continuing treatment by a health care provider as defined by 29 U.S.C. �2611(6). This condition can be and is exacerbated by physical, mental, and emotional stress. This condition is and has been known to THE BOEING COMPANY. 9. On May 4, 1999, the plaintiffs father passed away. On May 5, 6, and 7, 1999, the plaintiff took Bereavement Leave which was approved by the defendant. CBA1995 �6.6(d) provides for up to 3 days of Bereavement Leave in the event of a death in the employee’s immediate family. 10. On May 10, 11, 12, 13, and 14, 1999, the plaintiff took leave under the FMLA and under CBA1995, Attachment A, Group Benefits Program �19(C) to look after his gout condition, which flared up as a result of the emotional stress of his father’s death, and stress experienced from having to look after his frail mother and funeral arrangements. He is entitled to such leave by 29 U.S.C. �2612(a)(1)(D). At the end of such leave, the plaintiff was entitled to restoration of his position by 29 U.S.C. �2614(a)(1). 11. On May 17, 1999, the plaintiff returned to work. On that day the defendant issued a CAM for unacceptable attendance. Attached to the CAM is a list of the five days the plaintiff took off the previous week, each day listed as “Unexcused Absence”. Because these “Unexcused Absences” took place within a year of the first two CAM’s for unacceptable attendance, the defendant dismissed the plaintiff from employment. 12. The defendant’s actions in defining leave taken as provided by 29 U.S.C. �2612(a)(1)(D) as “Unexcused Absence”, issuing a Corrective Action Memo, and then firing the plaintiff without affording him an opportunity to present certification from his health care provider pursuant to 29 U.S.C. ��2613 and 2614(a)(4) violated 29 U.S.C. �2615 (a)(1) and (2). 13. The plaintiff has filed a grievance with the LAM who is pursuing the matter through the provisions of CBA1995 �19.3. The plaintiff has presented to both defendant THE BOEING COMPANY and to the IAM an FMLA Medical Certification Form (Form X-2835 1 Revised May 19, 1995 by THE BOEING COMPANY) signed by Derek Q. Schroder, M.D. on July 6, 1999. In the meantime, the plaintiff is without employment and the union grievance procedure does not toll the statute of limitations in 29 U.S.C. �2617 (c). 14. As a proximate result of defendants’ conduct alleged above, plaintiff has suffered the loss of wages, benefits, and other compensation and has had to retain the services of the undersigned attorney. 15. Defendants THE BOEING COMPANY is liable for all damages arising under this claim for unlawful discharge for taking a leave authorized by the FMLA. REMEDY WHEREFORE plaintiff, without making any election of remedies, prays that this Court enter judgment as follows: A. Awarding damages against defendant THE BOEING COMPANY for violation of 29 U.S.C. �2615 in the amount of lost wages, employment benefits, and other compensation in an amount to be proved at trial, interest on the lost wages, employment benefits, and other compensation calculated upon the currently prevailing rate, and an award of liquidated damages in an amount equal to the lost wages, employment benefits, and other compensation and the interest on same calculated upon the currently prevailing rate pursuant to 29 U.S.C. �2617(a)(1)(A) of the FMLA. B. Equitable relief awarded to plaintiff and against defendants including emotional distress, punitive damages, and other equitable damages, and employment reinstatement pursuant to 29 U.S.C.�2617(a)(1)(B) of the FMLA. C. Award to plaintiff and against defendants of plaintiff’s costs and reasonable attorney fees pursuant to 29 U.S.C. �2617(a)(3) of the FMLA. D. For such other and further relief as to the Court seems reasonable and equitable. Signature: PAUL H. KING LAW OFFICES OF PAUL H. KING Suite 117318 Sixth Avenue South Seattle 98104 � 2000 Juritas.com. All Rights Reserved.

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