Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

7/24/2019 Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID M.JOHNSON, )

PLAINTIFF, ) NO. 1:14-cv-07858

-VS- ))

MELTON TRUCK LINES, INC., ROBERT )

A. PETERSON, MICHAEL DARGEL, )Judge John J. Tharp

RAMONA WILLIAMS, MELTON TRUCK )

LINES, INC. OCCUPATIONAL INJURY )

BENEFIT PLAN, ROBERT ROGAN, )

GREAT WEST CASUALTY COMPANY, )

TANYA JENSEN, BLANE J. BRUMMOND )

and Unknown Defendants, )

DEFENDANTS. ) **JURY DEMANDED**

**SECOND AMENDED**VERIFIED COMPLAINTAT LAW

NOW COMES, Plaintiff DAVID JOHNSONindividually for his and all persons

similarly situated within the United States causes of action against Defendants MELTON

TRUCK LINES, INC. (Melton), ROBERT A. PETERSON (Peterson), MICHAEL

DARGEL (DARGEL), RAMONA WILLIAMS (Williams), MELTON TRUCK

LINES, INC. OCCUPATIONAL INJURY BENEFIT PLAN (the Plan), ROBERT

ROGAN (Rogan), GREAT WEST CASUALTY CO. (Great West), TANYA

JENSEN (Jensen), BLANE J. BRUMMOND (Brummond) and unknown

defendants, the following allegations are made upon information and belief, except as to

allegations specifically pertaining to Plaintiff, which are made upon knowledge states as

follows:

NATURE OF ACTION AND JURISDICTION

1. Defendants Melton, and Peterson have caused to be disseminated across state

lines into interstate commerce that they provide high pay for the purpose of luring Drivers

from other competitors when in fact their compensation is inferior because Drivers, such as

Plaintiff are not paid for all time worked at Conexus, LLCs (Conexus) customers. This

action challenges the Agreements by and between Defendants Melton, Peterson, and

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 1 of 49 PageID #:735


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Conexus pursuant to which Defendants have refused to pay Plaintiff as a Driver for all time

worked at a customer. Defendants have attempted to profit from taking property and

benefits belonging to employees, such as Plaintiff Johnson in violation of the Constitution,

federal, and state laws. Defendants have enforced through threats of discipline, termination,

and retaliation against Plaintiff as a Driver the corporate policy that provides for Wage theft

and discrimination.

JURISDICTION AND VENUE

2. This Court has original jurisdiction under 28 U.S.C. 1331, and 1343 over

Plaintiffs causes of action brought pursuant to Section 4 of the Sherman Act, 15 U.S.C.

4, and to prevent and restrain the Defendants from violating Section 1 of the Sherman Act,

15 U.S.C. 1 (the Sherman Act), Section 43(a) of the Lanham Act, 15 U.S.C. 1125,

et seq. (the Lanham Act), 29 U.S.C. 1132 (ERISA), the Americans With Disabilities

Act (ADA) of 1990,Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105,

and the Fair Labor Standards Act (FLSA) for noncompliance by Defendants as is

hereinafter more fully set forth. Declaratory relief is authorized under 28 U.S.C. 2201

and 2202.

3. Plaintiff and Defendants are completely diverse therefore this Court has

diversity jurisdiction pursuant to 28 U.S.C. 1332. This Court has supplemental

jurisdiction over Plaintiffs causes of action under Illinois law arising from the same

factual circumstances, events, and transactions pursuant to 28 U.S.C. 1367.

4. Defendant Dargel has disclosed in writing Plaintiffs net compensation of

$1.20 cents per mile or $725 accruing each day or $635,100 of lost profits in the 876

between the filing of this Complaint and June 12, 2013. Plaintiff has accordingly

suffered legally cognizable damages in an amount exceeding the $635,100.00, as

proximately caused by the unlawful actions of Defendants in violation of the Constitution,

federal, state, and other applicable laws, as alleged in this Complaint.

5. Venue is proper pursuant to 28 U.S.C. 1391(b)(ii)and ERISA, in that

Defendants hired Plaintiff a resident of Cook County, Illinois, a citizen of the United States

and the State of Illinois, Defendants as part of its trade or business do in fact regularly

transport freight in and/or out of Cook County, Illinois and the State of Illinois, as a result



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Defendants regularly transact business of a substantial and continuous character within the

within the Northern District of Illinois.

ADMINISTRATIVE PROCEDURES

6. On October 28, 2015, Plaintiff has received the Right to Sue from the Equal

Employment Opportunity Commission (EEOC) with regard to the EEOC Charge No.:

440-2016-00093 against Defendant Melton Truck Lines, Inc., and all other prerequisites to

the filing of this suit have been met.

PARTIES

7. Plaintiff David Johnson is a citizen of the United States and of the State of

Illinois at all times relevant herein.

8. Defendant Williams is believed to be a citizen and resident of Tulsa, in theState of Oklahoma, and was acting within the scope of her employment and/or agency with

Defendant Melton at all times as described in this Complaint, except as specifically alleged

otherwise. Defendant Williams is employed by Defendant Melton as a Driver Manager and

is responsible for administering the policies, practices, procedures, and customs applied at

Defendant Melton.

9. Defendant Dargel is believed to be a citizen and resident of Tulsa, in the State

of Oklahoma, and was acting within the scope of his employment and/or agency at all times

with Defendant Melton as described in this Complaint, except as specifically alleged

otherwise. Defendant Dargel is employed by Defendant Melton as the Deputy General

Counsel and is responsible for making and/or implementing policies and practices applied at

Defendant Melton

10. Defendant Peterson is believed to be a citizen and resident of Tulsa, in the

State of Oklahoma, and was acting within the scope of his employment and/or agency with


otherwise. Defendant Peterson is employed by Defendant Melton as the President and is

responsible for making and/or implementing policies and practices applied at Defendant

Melton.



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11. At all relevant times, Defendant Melton Truck Lines, Inc. Occupational Injury

Benefit Plan (the Plan) has been an employee welfare benefit plan and welfare plan

within the meaning of ERISA, 29 U.S.C. 1002.

12. Defendant Rogan is believed to be a citizen and resident of Tulsa, in the State

of Oklahoma, and was acting within the scope of his employment and/or agency with


otherwise. Defendant Rogan is the Plan Administrator as that term is defined by ERISA and

is responsible for making and/or implementing policies and practices applied at Defendant

Melton with regard to the Plan.

13. Defendant Melton is a corporation organized and existing under the laws of

the State of Oklahoma as a trucking company engaged in the business of transporting

personal property in interstate commerce throughout the United States, including to and

from the State of Illinois at all times mentioned in this Complaint with its principal place of

business at 808 N. 161st E. Avenue, Tulsa, in the State of Oklahoma. At all times as

described herein, Defendant Melton was acting by and through its agents, servants, and/or

employees who were acting within the course and scope of their agency or employment,

except as specifically alleged otherwise. Defendant Melton participated in, approved and/or

ratified the unlawful acts omissions by the other Defendants complained of herein.

14. Defendant Jensen is believed to be a citizen and resident of South Sioux City,

in the State of Nebraska, and was acting within the scope of her employment and/or agency

with Defendant Great West at all times as described in this Complaint, except as specifically

alleged otherwise. Defendant Jensen is employed by Defendant Great West as a claims

adjuster and is responsible for administering the policies, practices, procedures, and customs

at Defendant Great West.

15. Defendant Brummond is believed to be a citizen and resident of South Sioux

City, in the State of Nebraska, and was acting within the scope of his employment and/or

agency at all times as described in this Complaint, except as specifically alleged otherwise.

Defendant Brummond is employed by Defendant Great West as the Deputy General

Counsel and is responsible for the supervision and training of Defendant Jensen at all times



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relevant herein. Defendant Brummond as the Deputy General Counsel is further responsible

for making and/or implementing policies and practices used at Defendant Great West.

16. Defendant Great West is a corporation organized and existing under the laws

of the State of Nebraska doing business in the State of Illinois as an insurance company at

all times mentioned in this complaint engaged in the business of insurance in interstate

commerce with its principal place of business at 1100 West 29th Street, South Sioux City, in

the State of Nebraska. At all times as described herein, Defendant Great West was acting by

and through its agents, servants, and/or employees who were acting within the course and

scope of their agency or employment, except as specifically alleged otherwise. Defendant

Great West participated in, approved and/or ratified the unlawful acts omissions by the other

Defendants complained of herein.

17. Defendant John Doe is any unknown employee(s) and/or agent(s) of

Defendant Melton who will be served upon identification by Defendants, all acts and

omissions as alleged herein were duly performed and attributed to all Defendants each

acting as a successor, agent, alter ego, employee, indirect employer, joint employer,

integrated enterprises and/or under the direction and control of the others, except as

specifically alleged otherwise.

FACTUAL ALLEGATIONS

18. At all times relevant herein, Defendants Melton and Peterson have

disseminated and caused others to disseminate across state lines through glassdoor.com,

indeed.com, and in other job postings to Plaintiff as a Driver the statement on its company

website at http://www.meltontruck.com/pay.php that Wages paid by Defendant Melton are

Top 1% Industry Pay and Benefits.

19. Defendant Melton has made the statement that the National Survey of Driver

Pay ranked its Wages as the Top 1% Pay for all Companies Nationwide.

20. Defendant Meltons corporate website, and Defendant Meltons You Tube

video featuring Defendant Peterson disseminated and caused others to disseminate this

commercial advertisement into interstate commerce that Defendant Meltons alleged Wages

ranked in the Top 1%.



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21. Plaintiff states that it can be proven mathematically Defendant Melton, and

Peterson have only contemplated paying its Drivers, such Plaintiff Johnson for his time

physically operating the commercial motor vehicle on the road and not non-drive time as

described in this Complaint. See a copy of Meltons Employee Handbook-Trip Planning

marked as Group Exhibit A and incorporated herein by reference thereto.

22. Plaintiff Johnson further alleges that Defendants Melton and Peterson

allegedly compensate its Average Drivers a hypothetical $50,000 per year as stated on its

corporate website at http://www.meltontruck.com/pay.php equals $1,000 weekly as

compensation for 2,500 miles driven at 40 per mile if and only if the 2,500 miles are

actually driven by a Driver, such as Plaintiff.

23. Plaintiff states that he actually drives at least 55 miles per hour which is the

average speed limit on the highways in the United States for an estimate of 605 miles each

11 hour day this accomplishes the hypothetical 2,500 miles in approximately 45.4545 hours

and Defendant Melton unlike its competitors do not pay Plaintiff such as Drivers for the

remaining approximately 24.55 hours (35%) in the seventy (70) hours work week when he

is performing activities other than not physically operating the commercial motor vehicle.

24. Defendants Melton, and Peterson have the books and records all time worked

by Plaintiff as a Driver that he sent electronically via Macros 24, 25, and 26,

notwithstanding accurate timekeeping is mandated by federal law.

25. Defendants Melton and Peterson do not maintain a billing system for all time

worked by Plaintiff as a Drivers while he was off-duty spent responding to electronic

communication initiated by Defendant Melton and its employees and/or agents

notwithstanding accurate timekeeping of all time worked is mandated by federal law.

26. Plaintiff further alleges that the custom of the industry is that Defendants

Melton, Peterson, and others at their direction must pay Plaintiff as a Driver for all time

worked at the market rate or a reasonable rate of at least $24.00 hourly similar to its

competitor at Fedex as stated at http://www.glassdoor.com/Hourly-Pay/FedEx-Freight-City-

Driver-Hourly-Pay-E15813_D_KO14,25.htm.

27. Defendants Melton, Peterson, and others at their direction have recruited

Drivers, such as Plaintiff residing in State of Illinois soliciting his job application online at:



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https://meltonapps.com/profile/6UYNK9/indeed?loc=Chicago&utm_source=Indeed&utm_

medium=organic&utm_campaign=Indeed&utm_source=Indeed&utm_medium=organic&ut

m_campaign=Indeed for the purpose of conducting its business of transporting freight in

interstate commerce in the United States.

28. Plaintiff has based upon the claim of highpay by Defendant Melton applied

for the position as a Driver from the State of Illinois via internet to Defendant Meltons

corporate website and accepted the offer of employment from Defendant Melton while he

was in Illinois not Ohio, Oklahoma, Alabama, or any other state.

29. Defendants Melton, and Peterson individually and as a group have entered

into Agreements with Conexus wherein compensation is based upon a fixed rate that does

not provide for the actual billing, collecting, and/or reimbursement of Wages to Plaintiff as a

Driver for all time worked among other things these activities: (a) checking oil, grease,

water, tires, etc. on the truck each morning; (b) driving to the shippers site for loading; (c)

waiting in line to be loaded at the materials site; (d) idle time awaiting repair after

breakdown of truck; (e) returning to truck yard from place where last load was delivered at

receivers site; and (f) cleaning up truck and refueling at truck at the days (collectively

non-drive time). See a copy of Conexus Transportation Agreement and Conexus Master

Motor Carrier Agreement marked as Group Exhibit B and incorporated herein by

reference.

30. The activities of Defendant, Melton, Peterson, and Conexus related to the

agreements use among other things, communications, telecommunication networks, the

Internet, and the United States mail have impacted the Wages of Plaintiff as a Driver

payable across state lines in the flow of and substantially affect interstate commerce as

described above.

31. Defendant Meltons decision, policy, plan, and common policies, programs,

practices, procedures, protocols, routines, and rules identified as detention pay, layover

pay, andon-call pay affecting all its estimated one thousand (1,000) Drivers, such

Plaintiff Johnson are set at the corporate level and applied universally to Plaintiff as a Driver.

See a copy of Meltons Employee Handbook marked as Group Exhibit A and incorporated

herein by reference thereto.



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32. Plaintiff Johnson as a Driver has demanded from Defendants Melton, and

Peterson pay him for his non-drive time but he did not receive compensation for time all

worked as set forth in the Agreements, Plaintiff is identifiable as a Driver who performed

the non-drive time for which Defendants only paid him for his drive time.

33. On June 12, 2013, Defendants Melton, Dargel, and Williams have terminated

Plaintiff for the reasons as stated in the email authored by Defendant Dargel that among

other things: (a) Plaintiff went home on unpaid leave with his injured left-hand; (b) Plaintiff

had previously complained of unpaid Wages; and (c) Plaintiff had stolen the commercial

motor vehicle while en-route home pursuant to prior agreement by the parties of

electronically sending a flag via Marco 27 actually sent on or about May 1, 2013.

34. Plaintiff is a Driver in terms of job responsibilities, and title who has suffered

and continues to suffer the same specific harm including but not limited to the estimated

24.55hours (35%) in each 70 hour work week in the loss of Wages, the loss of gains and

profits on the aforesaid Wages, the loss of employment opportunities elsewhere, and the loss

of employees benefits elsewhere from Defendant Meltons manifest standard operating

procedure refusing to pay for non-drive time as agreed by parties and custom of the industry.


and continues to suffer the same specific harm including but not limited to the estimated

24.55 hours (35%) in each 70 hour work week in the loss of Wages, the loss of gains and

profits on the aforesaid Wages, the loss of employment opportunities elsewhere, and the loss

of employees benefits elsewhere from the statements disseminated by Defendants Melton,

and Peterson of highpay to lure Plaintiff as a Driver from its competitors, i.e. Fedex pay

followed by non-payment of the promised high pay.


and continues to suffer the same specific harm including but not limited to the unpaid

Accrued Vacation, unpaid Accrued Bonus, and the unauthorized deduction(s) from the final

paycheck that does not occur without an accounting policy set at the corporate level and

applied universally to Plaintiff as a Driver when his employment is terminated for any

reason.



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37. On May 3, 2013, Plaintiff Johnson was a full-time employee of Defendant

Melton from its hiring area in Chicago, Illinois.

38. Defendant Melton has agreed to provide benefits to Plaintiff in the event he

became injured due to a work-related accident or injury.

39. Upon information and belief, Defendant Melton provides Defendants Peterson,

Dargel, Rogan, and Williams with benefits in the event they are injured due to a work-

related accident or injury.

40. The Melton Truck Lines, Inc. Occupational Injury Benefit Plan as stated in its

Form 5500 available at https://www.efast.dol.gov/portal/app/disseminate?execution=e1s10#

that the Plan provides for the Welfare Benefit Featuresto wit: Health (other than vision

or dental); Dental; Vision; Temporary disability (accident and sickness);Death

benefits (include travel accident but not life insurance); and Other. See a copy of

MeltonInjury Benefit Plans Form 5500for the tax year ended December 31, 2012

marked as Exhibit C and incorporated herein by reference thereto.

41. At all relevant times herein, ERISA 29 U.S.C. 1002(1) states:

(1) The terms employee welfare benefit planand welfare planmean any plan,fund, or program which was heretofore or is hereafter established or maintained byan employer or by an employee organization, or by both, to the extent that such plan,fund, or program was established or is maintained for the purpose of providing for its

participants or their beneficiaries, through the purchase of insurance or otherwise,

(A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness,accident, disability, death or unemployment, or vacation benefits . . .


(5) The term employermeans any person acting directly as an employer, orindirectly in the interest of an employer, in relation to an employee benefit plan; andincludes a group or association of employers acting for an employer in such capacity.


(6) The term employeemeans any individual employed by an employer.


(7) The term participantmeans any employee or former employee of an employer,or any member or former member of an employee organization, who is or maybecome eligible to receive a benefit of any type from an employee benefit plan which



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covers employees of such employer or members of such organization, or whosebeneficiaries may be eligible to receive any such benefit.


(8) The term beneficiarymeans a person designated by a participant, or by the

terms of an employee benefit plan, who is or may become entitled to a benefitthereunder.

46. During the time of Plaintiff Johnsons employment by Defendant Melton,

Plaintiff became eligible to receive including but not limited Health (other than vision or

dental); Dental; Vision; Temporary disability (accident and sickness); Death benefits

(include travel accident but not life insurance); and Otherbenefits for his injury or accident,

and premiums were paid to Defendant Great West in consideration for coverage under the

Group Policy.

47. At all times relevant herein Defendant Melton contracted with Defendant

Great West as to the determination, claim administration, and payment of benefits to

Defendant Melton Inc. employees such as Plaintiff and premiums were paid to Defendant

Great West in consideration for coverage under the Group Policy.

48. Prior to May 3, 2013, upon information and belief Defendants Melton and/or

Great West each of them have sent to the State of Illinois the Certificate of Insurance for the

Insurance Policy identified at http://www.iwcc.il.gov/insurance.htm as WC21114I (the

Group Policy).

49. At all times relevant herein, Defendants Melton and Great West each of them

have informed the State of Illinois that the Group Policy covers all employees hired in

Illinois by Defendant Melton.

50. At all times relevant herein, as stated at http://www.iwcc.il.gov/insurance.htm

Defendant Great West has not rescinded the Group Policy issued to Defendant Melton.

51. On May 5, 2103, Plaintiff Johnson has sent Defendant Melton the electronic

Qualcomm message stating that he injured his left-hand and at some point Plaintiff Johnson

would be seeking medical treatment on his left-hand including an x-ray.

52. On May 5, 2013, Plaintiff Johnson and neither Mr. Floyd his Driver Manager

employed by Defendants nor any other person(s) engage in any dispute, additional



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communication(s), discussion(s), or comment(s) about the injury to Plaintiffs left hand

while working for Defendant Melton on May 3, 2013.

53. On June 12, 2013, Plaintiffs fingers to his left hand from the fall on May 3,

2013 remained completely frozen a physical impairment that substantially limited his ability

to carry and lift heavy items he went to see his doctor while at home on unpaid leave who

advised him to not work and seek treatment from a hand-specialist during the week of June

19, 2013.

54. Plaintiff Johnson is unable to work as the operator of a commercial motor

vehicle because he is disabled due to his medical conditions as described in the preceding

paragraph.

55. On or about June 14, 2013, Plaintiff Johnson has requested information on

obtaining COBRA and the person(s) responsible for handling is injury claim with Defendant

Dargel stating in his email that said injury was in retaliation.

56. On or about, July 5, 2013, Defendant Melton has received a copy of Plaintiffs

disability claim from State of Illinois who transmitted to Defendant Melton.

57. On or about, July 5, 2013, upon information and belief Defendant Melton

forwarded a copy of Plaintiffs disability claim that it received from the State of Illinois to

Defendant Meltons Injury Benefit Plan.

58. On or about, July 5, 2013, upon information and belief Defendant Meltons

Injury Benefit Plan forwarded a copy of Plaintiffs disability claim to its insurer Defendant

Great West.

59. On or about, July 5, 2013, Defendant Great West has assigned G50045W522

to identify Plaintiffs disability claim sent by the State of Illinois and received from its

insured Defendants Melton the sponsor of Defendant Meltons Injury Benefit Plan.

60. On or about August 16, 2013, Plaintiff Johnson through his counsel Mr.

Cherokis had submitted correspondence along with medical records of the treating

physicians to Defendants Melton and Defendant Great West in connection with Plaintiffs

claim for benefits under the Group Policy.



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61. On August 16, 2013, Plaintiff has received an email from Mr. Adrian

Cherokis,Esq. his former attorney stating that there is a dispute as to whether you were

covered by the insurance.

62. On October 3, 2013, Defendants Melton, Great West, Jensen, and Brummond

each of them have solicited and received a favorable pretrial ruling from Illinois

Arbitrator Robert A. Williams (Arbitrator Williams) directing their conduct as described

in this Complaint until his recusal on August 19, 2014.

63. On April 11, 2014, Plaintiff Johnson has in writing requested from Mr. Peter

Carlson defense counsel representing Defendant Great West and Defendant Melton a copy

all of documents related to Plaintiffs disability claim. To date, Mr. Carlson defense has not

provided Plaintiff Johnson or his counsel any documents as requested.

64. Prior to May 5, 2014 and before commencing the Arbitration in Ohio, Plaintiff

has been informed by Ms. Cynthia Daffney at the Alabama Department of Labor

Compliance Division ((334)-353-0515); and Mr. Craig White at the Alabama Department of

LaborCompliance Division ((334) -353-0515) that Defendant Melton has denied coverage

of Plaintiffs disability claim in Alabama.

65. Prior to May 5, 2014 and before commencing the Arbitration in Ohio, Plaintiff

has been informed by Ms. Kay Andrews of the Oklahoma Attorney General ((405) 522-

3403) that Defendant Melton has denied coverage of Plaintiffs disability claim in

Oklahoma.

66. Prior to May 5, 2014 and before commencing the Arbitration in Ohio,

Defendant Melton and Defendant Great West have denied coverage of Plaintiffs disability

claim under the Group Policy but did not file a first report of injury (FROI) or first report

of injury form in any state.

67. On or about May 5, 2014, Plaintiff has communicated with Mr. Carlson

defense counsel representing Defendant Great West and Defendant Melton who stated that

Plaintiff was hired in Ohio not Illinois providing Ohio with exclusive jurisdiction over the

disability claim and not the Group Policy.

68. On or about May 5, 2014, Plaintiff has communicated with Mr. Carlson

defense counsel representing Defendant Great West and Defendant Melton informing him



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that the dispute over coverage of the disability claim under the Group Policy and the

exclusive jurisdiction of Ohio would be arbitrated in Ohio unless Plaintiffs disability

claims was settled by June 12, 2014.

69. On or about May 5, 2014, Plaintiff Johnson and neither Mr. Carlson defense

counsel nor any other person(s) engage in any dispute, additional communication(s),

discussion(s), or comment(s) about arbitration in any other state following the arbitration in

Ohio.

70. On or about June 4, 2014, Defendant Melton received a copy of Plaintiffs

disability claim from State of Ohio.

71. On June 17, 2014, Defendant Melton denied Plaintiffs disability claim

received from State of Ohio transmitting by facsimile stating in its reply that Ohio had no

jurisdiction, retaliation claim, and injury was claimed after employment ended.

72. Prior to June 17, 2014, Plaintiff Johnson did not receive in Illinois from

Defendant Melton, Defendant Jensen, nor any other person(s) a copy of the form entitled

Ohio Bureau of Workers Compensation Employer/Employee Agreement to Select a

State Other Than Ohio as the Exclusive Remedy for Workers Compensation Claims.


received from State of Ohio transmitting by facsimile providing as part of its reply a copy of

the form entitled Ohio Bureau of Workers Compensation Employer/Employee

Agreement to Select a State Other Than Ohio as the Exclusive Remedy for Workers

Compensation Claims.


received from State of Ohio transmitting by facsimile as part of its reply a copy of an email

upon information and belief authored by Defendant Dargel entitled Unauthorized Use of

Vehicle.

75. Plaintiff as stated in the Plan insured by the Group Policy it does not provide

Defendants Melton, Peterson, Dargel, Rogan, Great West, Jensen, Brummond or any other

person any arbitrary, capricious, or discretionary authority to make any determination

related to insurance coverage.



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76. Plaintiff as stated in the Plan insured by Group Policy it does not provide

Defendants Melton, Peterson, Dargel, Rogan, Great West, Jensen, Brummond or any other

person any arbitrary, capricious, or discretionary authority to make any medical

determination related to Plaintiff.

77. Plaintiff Johnson has presented Defendants Melton, Dargel, Great West,

Jensen, and Brummond with objective proof of eligibility for those benefits contained in the

Group Policy, medical proof of his disability, as supported by his treating and examining

physicians, and Defendants refused to accept the same.

78. At all times relevant herein Defendants Melton, Dargel, Great West, Jensen,

and Brummond each of them have unilaterally denied Plaintiffs disability claim under the

Plan insured by Group Policy asserting that Plaintiffs claim is not covered because the

contract for hire purportedly occurred at orientation in Ohio and was under the

exclusive jurisdiction of Ohio.

79. At all times relevant herein Plaintiff has not agreed that Defendants Melton,

Dargel, Great West, Jensen, and Brummond each of them would have any authority to

determine without notice and a hearing that Plaintiffs claim is not covered because the

contract for hire purportedly occurred at orientation in Ohio and was under the

exclusive jurisdiction of Ohio.

80. On August 15, 2014, Plaintiff Johnson has testified at arbitration and the Ohio

Arbitrator found that he has informed Defendant Melton of the injury to his left hand from

the fall on May 3, 2013.

81. On August 15, 2014, Plaintiff Johnson has testified at arbitration and the Ohio

Arbitrator found that he injured his left hand in a fall while working for Defendant Melton

on May 3, 2013.

82. On or about August 15, 2014, Plaintiff has received from the Ohio Industrial

Commission the Record of Proceedings (Ohio Arbitration Award) denying that Plaintiffs

disability claim was coveredby the exclusive jurisdiction of Ohio and not the Plan insured

by Group Policy.

83. At all times relevant herein, Defendants Melton, Great West, Jensen, and

Brummond have stated that they used the Illinois Workers Compensation Act (IWCA)to



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determine that Plaintiff was not entitled to Health (other than vision or dental); Dental;

Vision; Temporary disability (accident and sickness); Death benefits (include travel accident

but not life insurance); and Other benefits under the Plan insured by the Group Policy at any

times since May 3, 2013.

84. At all times subsequent to May 5, 2013, Defendants Melton, Great West,

Brummond, and Jensen individually and as a group have denied Plaintiff Johnson his fringe

benefits and the benefits under Group Policy stating that among other things Plaintiff is not

covered by the Group Policy because it only covers office employees in Illinois and not

disabled employees who are Drivers, such as Plaintiff.

85. At all times subsequent to May 5, 2013, Defendant Melton has made no effort

to inquire from Plaintiff or Plaintiffs former attorneys whether Plaintiff Johnson needed any

accommodations to assist him in performing his job.

86. Plaintiff Johnson has worked for Defendant Melton as its employee until his

termination on June 12, 2013, while on leave.

87. Plaintiff Johnson was disabled and otherwise qualified to perform the job of

DriverManager at Defendant Melton with or without a reasonable accommodation at all

times since June 12, 2013 as described on Defendant Meltons corporate website at

https://rew31.ultipro.com/HAW1002/JobBoard/JobDetails.aspx?__ID=*A6F973996634B91

5. See a copy of Melton Truck Lines Non Driving Opportunities marked as ExhibitD and

incorporated herein by reference.

88. For more than two (2) years since June 12, 2013, Defendants Melton, Peterson,

Rogan, Great West, and Brummond have not engaged Plaintiff Johnson or Plaintiffs former

attorney on the subject of providing reasonable accommodate while they attempt to resolve

their purported coverage dispute that was adjudicated by the Ohio Arbitrator in August,

2014.

89. Defendant Melton has refused to permit Plaintiff Johnson to work as a Driver

Manager following the injury to Plaintiffs left hand.

90. Plaintiff last worked for Defendant Melton was on June 12, 2013, and has

been unable to return to his former job since that time.



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91. Plaintiff Johnson has suffered and continues to economic hardship, emotional

distress, and the loss of his employee benefits because Defendants Melton, Peterson, and

Dargel who have refused to permit Plaintiff to return to work during a time when he was in

great need of health benefits and wages since June 12, 2013.

92. Between July 5, 2013 and August 15, 2014, Defendants Melton, Great West,

Jensen, Brummond and their attorneys have appeared before Illinois Arbitrator Williams for

over one (1) year knowing that he was not impartial and he finally recused himself on

August 19, 2014.

93. On or about August 15, 2014, the Ohio Arbitrator at Arbitration in Ohio found

that Plaintiff Johnson was not hired at orientation in Ohio because Plaintiff arrived there

post-hire from Illinois and four (4) days later Illinois Arbitrator Williams recused himself

from hearing Plaintiffs disability claim.

94. On August 19, 2014, Illinois Arbitrator Williams has recused himself from

hearing Plaintiffs disability claim in Illinois although for more than one (1) year he had

previously presided over and directed the conduct of Defendants Melton, Great West,

Jensen, and Brummond as described above.

95. On or about September 10, 2014, Defendant Brummond has authored a letter

ignoring that the Ohio Arbitrator rejected the assertion by Defendants Melton, Great West,

Jensen, and Brummond that Plaintiffs contract for hire occurred in Ohioinstead stating that

Illinois Arbitrator Williams has purportedly had made the determination at the pretrial

hearing on October 3, 2013, as to the propriety of actions taken by Defendants Melton,

Great West, Jensen, and Brummond.

96. At all times relevant herein, Defendants as described above have denied and

continue to deny to Plaintiff his Health (other than vision or dental); Dental; Vision;

Temporary disability (accident and sickness); Death benefits (include travel accident but not

life insurance); and Other benefits, insurance coverage, medical treatment, or a pre-

deprivation hearing at any times since May 3, 2013.

97. The conduct of Defendants as described above has been left Plaintiff without

food, clothing, or shelter and Plaintiff is also under significant stress because actions by

Defendants that has caused him significant stress and headaches.



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98. Plaintiff has sustained severe economic and emotional damages as a result of

arbitrary and capricious actions by Defendants as described above.

COUNT I

FALSE ADVERSITING, VIOLATION OF FLSA-UNPAID WAGES, AND

RESTRAINT OF INTERSTATE TRADE AND COMMERCE

99. Plaintiff Johnson hereby repeats and realleges the allegations in each of the

preceding paragraphs as if fully set forth herein, including without limitation those acts as

set forth in paragraphs 18-98.

100. At all times relevant herein, Plaintiff Johnson has regularly performed non-

drive time and demanded that Defendants Melton and Peterson compensate him for all time

worked at all customers through the Agreements with Conexus and/or any other person(s).

101. At all times relevant herein, Plaintiff has demanded that Defendants Melton

and Peterson remit payment of his compensation for non-drive time at the agreed rate of

$25.00 per hour.

102. Plaintiff Johnson is entitled to payment from Defendants Melton, Peterson,

and others at their direction for non-drive time as provided for by clearly established federal

law as set forth inMitchell v. Mitchell Truck Line, Inc.,286 F.2d 721, 725 (5th Cir.

1961)(quotingAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed.

1515 (1946)).

103. The Master Motor Carrier Agreement between Defendants Melton, Peterson,

and Conexus states that in part as follows: Freight charges and rates shall be as specified in

written or electronically maintained rate schedule(s) issued by CONEXUS or to which

CONEXUS has signed its approval. Carriers rates and charges cannot be increased, nor

deviated from regarding particular shipments, without CONEXUS express written consent

prior to Carriers movement of the freight in question. Under no circumstance shall Carrier

assess or bill for fuel surcharges or similar adjustments, except in accordance with

CONEXUS issued or approved schedules. Carrier acknowledgesand agrees that payment

of all rates and charges is ultimately the obligation of CONEXUSs customers, not

CONEXUS itself. CONEXUS shall have the right to seek reimbursement or set off of any



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payments made to Carrier by CONEXUS for charges for which CONEXUS has not

collected.

104. Plaintiff as a Driver has not been paid by Defendants Melton and Peterson

24.55 hours (35%) at $25 for his non-drive time worked during the 70 hour work week.

105. Defendant Meltons standard operating procedure is to demand and accept all

work performed by Plaintiff as a Driver in movement of the freight in question and then not

pay him for his services followed by the termination of a Driver in response to his

complaints about the non-payment of Wages.

106. Defendants Melton, Peterson, and others at their direction have complied with

the Master Motor Carrier Agreement not billed Conexuss customers for Plaintiffs non-

drive time except as stated in the Agreements.

107. Defendants Melton, Peterson, and others at their direction have not provided

Plaintiff as a Driver any standard operating procedure for seeking the billing or collection of

his of non-drive time with express written consent of Conexusprior to the movement of the

freight in question.

108. In the months of January, 2013, February, 2013, March, 2013, and on other

dates known to Defendants, Defendant Williams forced dispatch Plaintiff as a Driver to

several customers including but not limited to: the customer located on or around 47th Street

and Western Avenue in Chicago, Illinois; and another customer located on or around 147th

Street and Torrence Avenue in Chicago, Illinois, Plaintiff informed Defendant Williams that

he waited over 12 hours demanding payment of detention pay it was not paid by Defendants.

109. In the months of January, 2013, February, 2013, March, 2013, and on other

dates known to Defendants, Defendant Williams forced dispatch Plaintiff as a Driver back

to the same customers located on or around 47th Street and Western Avenue in Chicago,

Illinois; and another customer located on or around 147th Street and Torrence Avenue in

Chicago, Illinois, Plaintiff informed Defendant Williams that he waited over 12 hours again

demanding payment of detention pay, Defendants Melton, Peterson and Williams sent

deficient paychecks by wire across state lines in interstate commerce to Plaintiff for only a

fraction of what Plaintiff Johnson is entitled to as detention pay with the expectation that

Plaintiff would will rely on the deficient paycheck and continue to work for Defendants.



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110. Defendant Williams forced dispatch Plaintiff as a Driver back to the same

Conexuss customers who did not pay him previously for his non-drive time.

111. Defendants Melton, Peterson, Williams, and others at their direction have

regularly enforced the Agreements including but not limited to the Master Motor Carrier

Agreement through explicit communications of the threats to terminate Plaintiff as a Driver

when he complained of unpaid Wages.

112. Defendant Williams would regularly call Plaintiff as a Driver with of threats of

and the termination of employment without cause when he demanded payment of unpaid

Wages as stated in the email authored by Defendant Dargel.

113. Plaintiff has received numerous telephone calls from Defendant Williams

demanding that Plaintiff as a Driver to be on-call for twenty-four (24) hours a day, seven (7)

days a week so that he could perform the functions of the non-drive time associated with the

duties of operating a commercial motor vehicle in interstate commerce.

114. Defendant Dargel has disclosed in writing that Defendant Melton, Peterson,

and others at their direction expect Plaintiff as a Driver to be on call at all times and not off

the clock, off-duty, or en-route to home-time, on home-time and notwithstanding

any contractual term to the contrary Plaintiff Johnson as a Driver is required to answer

personal cellular phone, personal data assistants (PDAs), such as BlackBerry, or the

Qualcomm, or similar communication devices outside their normal working hours without

receiving any compensation for such hours.

115. Defendants Melton, Peterson, and others at his direction have informed

Plaintiff as a Driver at orientation of the written corporate policy that they give the

customer three hours to load or unload their freight diverting his Wages to Conexuss

customers without compensation.

116. Defendants Melton and Peterson have published a written corporate policy

that states with regard to layover pay that Melton pays no compensation for the first 24

hours; $25 for the second 24 hours; $50 for the third 24 hours; and $50 for each additional

24 hours equaling $125 of compensation for the 4 days not working elsewhere or $1.30

between $2.08 per hour as for layover compensation that maybe paid to Plaintiff as such a

Driver only if certain unpublished conditions are met.



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117. Defendants Melton and Peterson have acted on grounds generally applicable

to Plaintiff Johnson as a Driver by adopting and following the standard operating procedure

manifested as the wrongful taking of property that they know rightfully belong to Plaintiff

as a Drivers through the use of threats of and the termination of employment without cause

that occurred on June 12, 2013.

118. Plaintiff has received from Defendants Melton, Peterson, Williams, and others

at their direction for a seventy (70) hour work week the net earnings of $351.48 for the

payroll ending December 24, 2012 equaling $5 per hour; the net earnings of $569.87 for the

payroll ending January 21, 2013 equaling $8 per hour; the net earnings of $368.60 for the

payroll ending February 6, 2013 equaling $5 per hour; the net earnings of $512.73 for the

payroll ending March 27, 2013 equaling $7 per hour; the net earnings of $493.94 for the

payroll ending April 10, 2013 equaling $7 per hour; and the net earnings of $392.64 for the

payroll ending May 29, 2013 equaling $6 per hour.

119. At all times relevant herein, as described above, Defendants Melton and

Peterson have paid Plaintiff as a Driver less than the agreed, market rate or a reasonable rate

of $25 per hour and the payment of $5 per hour is the standard operating procedure rather

than a sporadic occurrence.

120. At all times relevant herein, Defendants Melton and Peterson have not paid

Plaintiff as a Driver has Vacation earned between January 1 and June 12, 2013 and the

payment of $0 is the standard operating procedure rather than a sporadic occurrence.

121. On or about June 12, 2013, Defendant Melton has unilaterally deducted from

Plaintiffs final paycheck unauthorized miles and truck recovery charges in the amount

of -$1,162, Defendants Melton, Williams, and Plaintiff did not agree to any reimbursements

by Plaintiff to Defendants as a result of the termination on June 12, 2013.

122. Defendants Melton and Peterson are depressing wages that would have

prevailed in competitive markets, and overall substantially diminished competition to the

detriment of the affected employees who were likely deprived of competitive pay, benefits,

and access to better job opportunities in that the Agreements with its brokers including but

not limited to Conexus provide that Plaintiff as a Driver is paid less than he would have

received from a competitor, i.e., Fedex as described above.



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123. Plaintiff would not accepted the offer of employment from Defendants Melton,

Peterson, and others at their direction but for his reliance on the promises of highpay

disseminated by Defendants Melton, Peterson, and others at their direction which are false

by the design to lure in Drivers from other companies who are competitors of Defendants

Melton and Peterson in that $1-$8 per hour is not high pay, Plaintiff as a Driver has

suffered and continues to suffer including but not limited the lost profits from not rendering

his services elsewhere but for the claim of high pay in violation Section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a).

124. The Master Motor Carrier Agreement between Defendants Melton, Peterson,

and Conexus for the purpose of transporting freight in and adversely affected interstate

commerce and business activities in interstate commerce by paying $5 per hour (a) lowered

wages in the relevant markets; (b) reduced output in the relevant markets; and (c) reduced

competition in the relevant market as described above.

125. As a proximate result of the conduct by Defendants Melton, and Peterson as

described above, including but not limited to the failure to pay for non-drive time worked,

Defendant Meltons manifest failure to pay as agreed for non-drive time worked by Plaintiff

as a Driver depressed Wages in violation of the Sherman Act, Plaintiff Johnson has suffered

and continues to suffer including but not limited to loss of wages diverted from him to

others in interstate commerce, loss of wages from compensation paid at rate established by

the labor market and not the Master Motor Carrier Agreement, unpaid regular wages, unpaid

on-call pay, unpaid accrued Vacation, unpaid Accrued Bonus, unauthorized deductions, and

other employee benefits (collectively lost Wages)to his damage in excess of $635,100

with an amount to be established at trial.

126. Pursuant to 15 U.S.C. 1117, Plaintiff as a Driver is further entitled to recover

from Defendant Melton the gains, profits and advantages that Defendant Melton has

obtained as a result of Defendant Meltons acts in violation of 15 U.S.C. 1125(a)in an

amount to be established at trial in excess of $31,937,500.00, exclusive of attorneys fees,

costs and interest for which he is entitled to an award of monetary damages and other relief.



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127. Plaintiff as a Driver is entitled to an award of damages, as well as, reasonable

attorneys fees and costspursuant to Section 4 of the Clayton Act, 15 U.S.C. 15, 15 U.S.C.

1117, and 15 U.S.C. 1125(a).

COUNT II

CLAIM FOR BENEFITS PURSUANT TO ERISA 502(A)(1)(B),AND 29 U.S.C. 1132(A)(1)(B)

128. Plaintiff hereby repeats and realleges the allegations in each of the preceding

paragraphs as if fully set forth herein, including without limitation those acts as set forth in

paragraphs 18-98.

129. At all relevant times herein, Defendant Meltons Injury Benefit Plan is an

employee welfarebenefit plan within the meaning of ERISA, in that it is sponsored by

Defendant Melton to provide a broad range of medical, surgical, or hospital care or benefits,or benefits in the event of sickness, accident, disability, death or unemployment, or vacation

benefits to its employees.

130. At all relevant times herein, Defendant Meltons Injury Benefit Plan is

maintained by Defendant Melton and fully insured by a contract of insurance issued by

Defendant Great West.1

131. At all relevant times herein, the terms of Defendant Meltons Injury Benefit

Plan and its Group Policy are:Sec. 1(b)(2) The term employeemeans:

2. Every person in the service of another under any contract of hire,express or implied, oral or written, including persons whose employment isoutside of the State of Illinois where the contract of hire is made within theState of Illinois.

Sec. 8. The employers liability to pay for such medical services selected bythe employee shall be limited to:

(1) all first aid and emergency treatment; plus

(2) all medical, surgical and hospital services provided by the physician,surgeon or hospital initially chosen by the employee or by any other physician,consultant, expert, institution or other provider of services recommended by

1Larson v United Healthcare Insurance Co., 723 F.3d 905, 913 (7th Cir. 2013)(adopting NinthCircuit analysis that insurer may be proper defendant).



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said initial service provider or any subsequent provider of medical services inthe chain of referrals from said initial service provider; plus

(3) all medical, surgical and hospital services provided by any secondphysician, surgeon or hospital subsequently chosen by the employee or by anyother physician, consultant, expert, institution or other provider of services

recommended by said second service provider or any subsequent provider ofmedical services in the chain of referrals from said second service provider.Thereafter the employer shall select and pay for all necessary medical,surgical and hospital treatment and the employee may not select a provider ofmedical services at the employer's expense unless the employer agrees to suchselection. At any time the employee may obtain any medical treatment hedesires at his own expense. This paragraph shall not affect the duty to pay forrehabilitation referred to above.

(b) If the period of temporary total incapacity for work lasts more than 3working days, weekly compensation as hereinafter provided shall be paid

beginning on the 4th day of such temporary total incapacity and continuing aslong as the total temporary incapacity lasts. In cases where the temporarytotal incapacity for work continues for a period of 14 days or more from theday of the accident compensation shall commence on the day after theaccident.

The compensation rate for temporary total incapacity under this paragraph (b)of this Section shall be equal to 66 2/3% of the employees average weeklywage computed in accordance with Section 10, provided that it shall be notless than 66 2/3% of the sum of the Federal minimum wage under the Fair

Labor Standards Act, or the Illinois minimum wage under the Minimum WageLaw, whichever is more, multiplied by 40 hours. This incapacity under thisparagraph (b) of this Section shall be equal to 66 2/3% of the employeesaverage weekly wage computed in accordance with Section 10, provided thatit shall be not less than 66 2/3% of the sum of the Federal minimum wageunder the Fair Labor Standards Act, or the Illinois minimum wage under theMinimum Wage Law, whichever is more, multiplied by 40 hours. Thispercentage rate shall be increased by 10% for each spouse and child, not toexceed 100% of the total minimum wage calculation, nor exceed theemployee's average weekly wage computed in accordance with the provisions

of Section 10, whichever is less.2. The compensation rate in all cases other than for temporary total disabilityunder this paragraph (b), and other than for serious and permanentdisfigurement under paragraph (c) and other than for permanent partialdisability under subparagraph (2) of paragraph (d) or under paragraph (e), ofthis Section shall be equal to 66 2/3% of the employees average weekly wagecomputed in accordance with the provisions of Section 10, provided that itshall be not less than 66 2/3% of the sum of the Federal minimum wage under



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the Fair Labor Standards Act, or the Illinois minimum wage under theMinimum Wage Law, whichever is more, multiplied by 40 hours. Thispercentage rate shall be increased by 10% for each spouse and child, not toexceed 100% of the total minimum wage calculation, nor exceed theemployees average weekly wage computed in accordance with the provisionsof Section 10, whichever is less.

Sec. 10. The compensation shall be computed on the basis of theAverage weekly wagewhich shall mean the actual earnings of the employeein the employment in which he was working at the time of the injury duringthe period of 52 weeks ending with the last day of the employee's last full payperiod immediately preceding the date of injury, illness or disablementexcluding overtime, and bonus divided by 52; but if the injured employee lost5 or more calendar days during such period, whether or not in the same week,then the earnings for the remainder of such 52 weeks shall be divided by thenumber of weeks and parts thereof remaining after the time so lost has been

deducted. Where the employment prior to the injury extended over a period ofless than 52 weeks, the method of dividing the earnings during that period bythe number of weeks and parts thereof during which the employee actuallyearned wages shall be followed. Where by reason of the shortness of the timeduring which the employee has been in the employment of his employer or ofthe casual nature or terms of the employment, it is impractical to compute theaverage weekly wages as above defined, regard shall be had to the averageweekly amount which during the 52 weeks previous to the injury, illness ordisablement was being or would have been earned by a person in the samegrade employed at the same work for each of such 52 weeks for the samenumber of hours per week by the same employer. In the case of volunteerfiremen, police and civil defense members or trainees, the income benefitsshall be based on the average weekly wage in their regular employment. Whenthe employee is working concurrently with two or more employers and therespondent employer has knowledge of such employment prior to the injury,his wages from all such employers shall be considered as if earned from theemployer liable for compensation.

132. On May 5, 2013, Plaintiff has sustained injuries to his left-hand as the result of

a fall while at work as described above and he has submitted a timely claim for benefits

under Defendant Meltons Injury Benefit Plan insured by the Group Policy.

133. Plaintiff last worked for Defendant Melton on or about June 12, 2013, and has

been unable to return to his former job since that time.

134. At all times relevant herein, Plaintiff was an employee of Defendant Melton

and he was a beneficiary and participant under the terms of Defendant Meltons Injury

Benefit Plan insured by the Group Policy that provides for medical, surgical, or hospital care



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or benefits, or benefits in the event of sickness, accident, and unemployment benefits

payable as a result of the fall while working for Defendant Melton.

135. On August 15, 2014, Plaintiff has exhausted the Plans administrative appeals

process and the dispute over his disability claim was arbitrated in Ohio without a change

thereafter in Defendants position on the disability benefits.

136. Plaintiff has testified at Arbitration that the grounds for denying his benefits

were improper and the Ohio Arbitrator has rejected all of the assertions made by Defendants

at Arbitration, Defendants Meltons Benefit Plan, Dargel, Great West, Jensen, and

Brummond each of them continue uphold its decision to deny Plaintiffs disability claim and

as a result he has not received disability payments or medical treatment.

137. As a direct and proximate result of the conduct by Defendants Melton,

Meltons Injury Benefit Plan, and Great West each of them as described above including but

not limited to failing to acknowledge findings of the Ohio Arbitrator and refusing to apply

the law in effect at the time of Plaintiff Johnsons claim, Defendants manifest breach of

duty to Plaintiff in violation of ERISA, Plaintiff Johnson has suffered and continues to

suffer harm including but not limited to the loss of benefitspayable as a result of the fall

while working for Defendant Melton in excess of $635,100 with an amount to be

determined by a jury and the Court.

COUNT III

BREACH OF FIDUCIARY DUTY

PURSUANT TO ERISA 502(A)(3), 29 U.S.C. 1132(A)(3), AND HIPAA



paragraphs 18-98.

139. Plaintiff is a beneficiary and participant under the terms of Defendant

Meltons Injury Benefit Plan insured by the Group Policy and he is authorized to sue to

enforce the terms of the plan or Title I of ERISA.2

2See Kenseth v. Dean Health Plan,Inc., 610 F.3d 452, 481-82 (7th Cir. 2010).



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140. At all relevant times herein, as described above Defendant Rogan was the

administrator of Defendant Meltons Injury Benefit Plan within the meaning of ERISA, in

that Defendant Meltons Injury Benefit Plan has designated Defendant Rogan as its Plan

Administrator.

141. Defendant Rogan is a fiduciary with respect to Defendant Meltons Injury

Benefit Plan within the meaning of ERISA, in that Defendant Rogan has exercised

discretionary authority and/or discretionary control with respect to the management of

Meltons Injury Benefit Plan and/or exercised authority orcontrol with respect to the

management or disposition of its assets as it is funded by the General assets ofthe sponsor,

and/or in that Defendant Rogan had discretionary authority and or discretionary

responsibility in the administration of Meltons Injury Benefit Plan.

142. At all relevant times, as described above Defendant Dargel was a fiduciary

with respect to Defendant Meltons Injury Benefit Plan within the meaning of ERISA, in

that, Defendant Dargel has exercised discretionary authority and/or discretionary control to

grant or deny claims for Meltons Injury Benefit Plan and/or exercised authority or control

over the Group Policy, and/or in that Defendant Dargel had discretionary authority and or

discretionary responsibility in the administration of Meltons Injury Benefit Plan.

143. At all relevant times herein, as described above Defendant Melton was a

fiduciary and the Plan sponsor with respect to Defendant Meltons Injury Benefit Plan

within the meaning of ERISA, in that, Defendant Melton has exercised discretionary

authority and/or discretionary control with respect to the management of Meltons Injury

Benefit Plan and/or exercised authority or control with respect to the management or

disposition of its assets as it is funded by the General assets of the sponsor, and/or in that

Defendant Melton had discretionary authority and or discretionary responsibility in the

administration of Meltons Injury Benefit Plan.

144. At all relevant times, as described above Defendant Great West was a

fiduciary with respect to Defendant Meltons Injury Benefit Plan within the meaning of

ERISA, in that, Defendant Great West has exercised discretionary authority and/or

discretionary control to grant or deny claims for Meltons Injury Benefit Plan and/or

exercised authority or control over the Group Policy, and/or in that Defendant Great West



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had discretionary authority and or discretionary responsibility in the administration of

Meltons Injury Benefit Plan.

145. At all relevant times, as described above Defendant Jensen was a fiduciary

with respect to Defendant Meltons Injury Benefit Plan within the meaning of ERISA, in

that, Defendant Jensen has exercised discretionary authority and/or discretionary control to

grant or deny claims for Meltons Injury Benefit Plan and/or exercised authority or control

over the Group Policy, and/or in that Defendant Jensen had discretionary authority and or

discretionary responsibility in the administration of Meltons Injury Benefit Plan.

146. At all relevant times, as described above Defendant Brummond was a

fiduciary with respect to Defendant Meltons Injury Benefit Plan within themeaning of

ERISA, in that, Defendant Brummond has exercised discretionary authority and/or

discretionary control to grant or deny claims for Meltons Injury Benefit Plan and/or

exercised authority or control over the Group Policy, and/or in that Defendant Brummond

had discretionary authority and or discretionary responsibility in the administration of

Meltons Injury Benefit Plan.

147. At all relevant times herein, ERISA states as follows:

a. fiduciary must discharge the duties imposed by ERISA with respect toa plan solely in the interest of the participants and beneficiaries, for the

exclusive purpose of providing benefits to participants and fiduciariesand defraying reasonable expenses of administering the plan, and inaccordance with the documents and instruments governing the planinsofar as such documents and instruments are consistent with otherprovisions of ERISA;

b. a fiduciary must discharge the duties imposed by ERISA with the care,skill, prudence, and diligence under the circumstances then prevailingthat a prudent man acting in a like capacity and familiar with suchmatters would use in the conduct of an enterprise of a like character andwith like aims;

c. a fiduciary may utilize advisers and/or administrators to assist him incarrying out his responsibilities. The fiduciary must act prudently inselecting the administrator and must monitor the performance of theadministrator to ensure that the appointment remains appropriate;

d. a fiduciary is responsible for a prudent process in selecting andretaining the plans insurer and negotiating the insurance contract;



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e. a fiduciary must discharge the duties imposed by ERISA and otherapplicable laws in accordance with the documents and instrumentsgoverning the plan insofar as such documents and instruments areconsistent with the provisionsof ERISA;

f. a fiduciary must decline to follow the plan document if the direction

contained in the document is inconsistent with ERISA;g. the Plan sponsor must ensure that plan and trust documents accurately

reflect current administrative practices;

h. a fiduciary is responsible for the breaches of another fiduciary if s/heknowingly participates in or knowingly undertakes to conceal thebreach of the other fiduciary;

i. a fiduciary is responsible for breach of the duties imposed by ERISAthat enables another fiduciary to commit a breach of the duties imposedby ERISA; and

j. a fiduciary is responsible if s/he has knowledge of another fiduciarysbreach of the duties imposed by ERISA and fails to take reasonablesteps to remedy it.

148. At all relevant times herein, the Health Insurance Portability and

Accountability Act of 1996 (HIPAA) states that health insurers are required to renew or

continue health insurance coverage at the policyholders discretion.

149. On or about August 16, 2013, Plaintiff has learned for the first time from his

former attorney that it did not appear that the Plan insured by the Group Policy wouldprovide benefits under definition of Employee consistent with the regulations, rulings,

opinions and exemptions of the Department of Labor.

150. By letter dated September 10, 2014, Defendants Melton, Melton Injury

Benefit Plan, Dargel, Rogan, Great West, Jensen, and Brummond upheld their decision to

deny Plaintiffs disability benefits payable as a result of the fall while working for

Defendant Melton stating that the Plan provides benefits only to an Employee as defined

under the Plan and that on the date of Plaintiffs work injury or accident, the Plan defined

Employee by reference to the IWCA, which purportedly excluded Plaintiff because the

contract for hire allegedly occurred in Ohio.

151. Prior to Plaintiffs injury on May 3, 2013, Defendants Melton, Melton Injury

Benefit Plan, Dargel, Rogan, Great West, Jensen, and Brummond knew or should have



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known that the definition of Employee as defined under the Plan insured by the Group

Policy did not cover an Employee hired in Illinois.

152. At all times relevant herein, Defendants Melton, Melton Injury Benefit Plan,

Dargel, Rogan, Great West, Jensen, and Brummond each of them knew or should have

known among other things that the fiduciaries they were responsible for monitoring were (i)

continuing to use the definition of Employee as defined under the Plan that did not cover an

Employee hired throughout the United States including in Illinois; (ii) allowing the Plan to

continue using the definition of Employee that did not cover an Employee hired throughout

the United States including in Illinois; and (iii) failed timely to engage independent

fiduciaries who could make independent judgments concerning the Plans use the term

Employee as defined under the Plan that did not cover an Employee hired throughout the

United States including in Illinois. Despite this knowledge, Defendants Melton, Melton

Injury Benefit Plan, Rogan, Great West, Jensen, and Brummond each of them have failed to

take action for the purpose of enabling the breaches by Defendants Melton, Melton Injury

Benefit Plan, Rogan, Great West, Jensen, and Brummond, and concomitantly injuring

Plaintiff as a beneficiary and participant of the Plan from the consequences of these failures

by Defendants Melton, Melton Injury Benefit Plan, Rogan, Great West, Jensen, and

Brummond.

153. Subsequent to May 3, 2013 and at all times relevant herein, Defendants

Melton, Melton Injury Benefit Plan, Dargel, Rogan, Great West, Jensen, and Brummond,

each of them have denied to Plaintiff the continuation or renewal of the medical, surgical, or

hospital care or benefits, or benefits in the event of sickness, accident, and unemployment

benefits payable as a result of the fall while working for Defendant Melton.

154. As a direct and proximate result of the conduct by Defendants Melton, Melton

Injury Benefit Plan, Rogan, Great West, Jensen, and Brummond each of them as described

above including but not limited to interpreting the Plan in a manner contrary to applicable

federal law, Defendants manifest breach of their fiduciary duty to Plaintiff in violation of

ERISA, Plaintiff Johnson has suffered and continues to suffer harm including but not

limited to the loss of benefitspayable as a result of the fall while working for Defendant

Melton in excess of $635,100 with an amount to be determined by a jury and the Court.



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COUNT IV

BREACH OF FIDUCIARY DUTY PURSUANT TO ERISA 502(A)(3), 29

U.S.C. 1132(A)(3), AND COBRA


paragraphs as if fully set forth herein, including without limitation those acts as set forth inparagraphs 18-98.

156. Defendant Rogan as the Plan Administrator has violated of ERISA by failing

and refusing to comply with Plaintiffs requests for information that is required to be

furnished to a plan beneficiary and participant under ERISA.

157. At all relevant times herein, ERISA states that a plan administrator must

provide to each participant and each beneficiary receiving benefits under a plan a Summary

Plan Description.

158. Plaintiff has requested from Defendants Melton, Great West, Jensen, and

Brummond, Defendant Meltons Injury Benefit Plan plan documents, Plaintiff is entitled to

$110 a day after 30 days from the failure and refusal to comply with the Plaintiffs request

for the Plan and such other relief as this Court deems proper pursuant to ERISA.

159. Plaintiff has had a conversation with Blue Cross-Blue Shield upon information

and belief, Defendants Melton, Meltons Injury Benefit Plan, Great West, Jensen, and

Brummond each of them have failed to give notice to Plaintiff that he had an opportunity to

elect COBRA continuation coverage, Plaintiff is entitled to $110 a day after 30 days from

the date notice was required of a qualifying event until the present under ERISA.

160. As a direct and proximate result of the conduct Defendants Melton, Meltons

Injury Benefit Plan, Rogan, Great West, Jensen, and Brummond each of them as described

above including but not limited to the failure to provide information necessary for

participants to make fully informed decisions about their benefits, Defendants manifest

breach of their fiduciary duty to Plaintiff in violation of ERISA, Plaintiff has suffered and

continues to suffer harm including, but not limited to loss of benefits for covered disabilities

as a result of the fall while working for Defendant Melton in an amount to be determined by

a jury and the Court.



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COUNT V

VIOLATION OF THE AMERICANS WITH DISABILITIES ACT

42 U.S.C. 12101 et seq.



paragraphs 18-98.

162. Plaintiff Johnson is a Melton employee who fell while working for Defendant

Melton sought the employee benefits available under the Group Policy issued by Defendant

Great West to Defendant Melton.

163. Title I of the ADA in fact states in relevant part:(a) General rule

No covered entity shall discriminate against a qualified individual with adisability because of the disability of such individual in regard to jobapplication procedures, the hiring, advancement, or discharge of employees,employee compensation, job training, and other terms, conditions, andprivileges of employment.

(b) ConstructionAs used in subsection (a) of this section, the term discriminateincludes. . . . .(2) participating in a contractual or other arrangement or relationship that hasthe effect of subjecting a covered entity's qualified applicant or employee witha disability to the discrimination prohibited by this subchapter (suchrelationship includes a relationship with ... an organization providingfringebenefitsto an employee of the covered entity[)]....42 U.S.C. 12112(a)-(b)(emphasis added).

164. Prior to May 1, 2013, Plaintiff Johnson was a non-disabled employee of

enjoying the fringe benefits provided by Defendant Melton.

165. Plaintiff Johnson is informed and believes, and on that basis alleges that

Defendants Peterson, Dargel, Rogan, Williams are non-disabled employees who are

receiving all fringe benefits provided or made available by Defendant Melton.

166. Plaintiff Johnson is disabled former employee of Defendant Melton told by

Defendants Melton, Great West, Jensen, and Brummond that he is not a participant or

beneficiary of Defendant Meltons Injury Benefit Plan insured by the Group Policy stating

that the Plan contained terms that differentiated between and only covered office employees



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who are non-disabled, such as Defendants Peterson, Dargel, Rogan, and William but

excluded Plaintiff only after he became disabled on May 3, 2013.

167. Plaintiff Johnson has been denied and excluded from the benefits of the Plan

insured by the Group Policy by Defendants Melton, Dargel, Great West, Brummond, and

Jensen each of them individually and as a group as described above.

168. As a direct and proximate result of the conduct Defendants Melton, Dargel,

and Rogan each of them as described above including but not limited to the exclusion of

Plaintiff because of his disability from the Plan, Defendants manifest discrimination against

Plaintiff because of his disability in violation of ADA, Plaintiff has suffered and continues

to suffer harm including, but not limited to loss of back pay, front pay and lost future

earnings, including fringe benefits and attorneys fees as providedin the ADA, as well as,

emotional and physical distress caused by the acts of Defendants as described herein.

169. Defendants Melton, Dargel, and Rogan each of them have denied and

excluded Plaintiff from the Plan insured by Group Policy with malice or with reckless

indifference to the rights of Plaintiff as described above.

COUNT VI


42 U.S.C. 12182, et seq.



paragraphs 18-98.

171. On June 12, 2013, Plaintiff Johnson as a Melton employee who fell while

working for Defendant Melton and he sought the employee benefits available under the

Group Policy issued by Defendant Great West to Defendant Melton and Defendant Meltons

Injury Benefit Plan, Plaintiff Johnson has been denied and excluded from the benefits of

Group Policy by Defendants Great West, Brummond, and Jensen each of them individually

and as a group in violation of the duties imposed by the ADA as described herein.

172. At all times relevant herein, Title III of the ADA states:

(a). General Rule. No individual shall be discriminated against on the basisof disability in the full and equal enjoyment of the goods, services, facilities,privileges, advantages, or accommodations of any place of public accommodation by



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any person who owns, leases (or leases to), or operates a place of publicaccommodation. 42 U.S.C. 12182(a).

173. At all times relevant herein, Title III of the ADA states:

(i) Denial of participation

It shall be discriminatory to subject an individual or class of individuals on the basisof a disability or disabilities of such individual or class, directly, or throughcontractual, licensing, or other arrangements, to a denial of the opportunity of theindividual or class to participate in or benefit from the goods, services, facilities,privileges, advantages, or accommodations of an entity. 42 U.S.C. 12182(b)

174. Defendants Great West, Jensen, and Brummond each of them individually and

as a group have as described above excluded Plaintiff from the Group policy and denied him

the opportunity to participate in the plan or to benefit from the goods, services, and activities

provided by the Defendant Great West only after Plaintiff became disabled on May 3, 2013.175. Defendants Melton, Peterson, Dargel, Rogan, Great West, Brummond, and

Jensen each of them individually and as a group have refused and failed to provide Plaintiff

Johnson with reasonable modification to the Group Policy further denying Plaintiff Johnson

the opportunity to fully participate in the program or to benefit from the goods, services, and

activities provided by Defendant Great.

176. As a direct and proximate result of the conduct Defendants Great West, Jensen,

and Brummond each of them as described above including but not limited to the exclusion

of Plaintiff only after he became disabled from the Group Policy, Defendants manifest

discrimination against Plaintiff because of his disability in violation of ADA, Plaintiff has

suffered and continues to suffer harm including, but not limited to loss of back pay, front

pay and lost future earnings, including fringe benefits and attorneys fees as provided in the

ADA, as well as, emotional and physical distress caused by the acts of Defendants as

described herein.

177. Defendants Great West, Jensen, and Brummond each of them have denied and

excluded Plaintiff from the Plan insured by Group Policy with malice or with reckless

indifference to the rights of Plaintiff as described above.



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COUNT VII

FAILURE TO ACCOMMODATE IN


42 U.S.C. 12101, et seq.



paragraphs 18-98.

179. Plaintiff Johnson fell while working for Defendant Melton he suffers from an

injury to his left hand, and is a qualified individual with a disability.

180. At all times relevant herein, 42 U.S.C. 12102(2) states in relevant part that a

disability is defined as: (A) a physical or mental impairment that substantially limits one or

more of the major life activities of such individual;(B) a record of such an impairment; or

(C) being regarded as having such an impairment. 42 U.S.C. 12102(2).

181. At all times relevant herein, 42 U.S.C. 12182(b) states in relevant part that

no covered employer shall discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment. 42 U.S.C. 12112(a).

182. On December 18, 2006, Defendants Melton, and Peterson were made awareby Ms. Barbara Sherman and Yolaine Dauphin that their conduct of misplacing the notice

of claim, medical bills, correspondence, and other dilatory tactics for years while not

providing any reasonable accommodation violated the duties imposed by law.

183. Defendants Great West, Brummond, and Jensen knew or should have known

from their due diligence in underwriting the Group Policy that Defendant Melton has on

numerous occasions failed to provide reasonable accommodation in the event of a work

related injury to an employee, such as Plaintiff hired in Illinois.

184. Plaintiff last worked for the Defendant Melton on or about June 12, 2013, and

has been unable to return to his former job since that time.

185. On June 12, 2013, Plaintiff Johnson took an unpaid leave of absence for

reasons related to his to injury to his left hand, the pain, and disability resulting therefrom.



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186. On June 12, 2013, Defendants Melton, and Dargel informed Plaintiff Johnson

that he was terminated pursuant to its new and unannounced leave policy.

187. Defendants Melton, Great West, Brummond, and Jensen have received the

medical records that during

Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

Documents

Transcript of Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint