Scott v. City of Lake Station
| Decision Date | 31 January 2022 |
| Docket Number | 2:21-CV-117-PPS-JEM |
| Parties | COLE SCOTT, Plaintiff, v. CITY OF LAKE STATION, INDIANA, et al., Defendants. |
| Court | U.S. District Court — Northern District of Indiana |
Cole Scott is a former employee of the City of Lake Station who was fired on February 23, 2021, several months after he tested positive for COVID-19 and after missing a number of work weeks due to illness. The twelve-count second amended complaint is a blunderbuss which includes claims under the Family Medical Leave Act (FMLA) (), violation of the Families First Coronavirus Response Act (FFCRA), other retaliation claims, breach of a collective bargaining agreement (CBA) and of the duty of fair representation, intentional infliction of emotional distress constructive discharge, and violations of the Americans with Disabilities Act (ADA).
There are a number of defendants in this case. They have arranged themselves into two groups, both groups filing a motion to dismiss. The first group is the “Union Defendants” which are comprised of Defendants American Federation of State County and Municipal Employees of Indiana/Kentucky 962 Local 3379 (“the Union”) and Cassandra Stigger (the union representative). The second group is the “City Defendants” made up of City of Lake Station, Indiana William Carroll, Kevin Sowash, Adrian Vera, and unknown supervisors and managers of City of Lake Station, Indiana.
Regarding the Union Defendants' motion to dismiss, Scott concedes that Counts I-VI should be dismissed, which I will do without prejudice. As for Counts VII and VIII which relate to an alleged breach of the CBA and the Union's duty of fair representation, that claim must be dismissed because the operative statute specifically excludes CBAs with governmental entities. So Counts VII and VIII will be dismissed with prejudice as to the Union Defendants. As for the City Defendants' motion to dismiss, it will be denied.
This case involves a real world example of what havoc COVID-19 has wreaked in the workplace, both for the employer and the employee. The facts are taken from the complaint, which I accept as true at this point. Many of the facts set forth in the operative complaint come from laborious text messages between Scott and his supervisor, Kevin Sowash. You'll note that the facts set out below are quite lengthy. This is because Scott has not paid heed to Rule 8 which requires that a complaint only contain a “short and plain statement” which shows an entitlement to relief. Fed.R.Civ.P. 8(a)(2).
Beginning in August 2018, Scott worked full-time as a Street Department Laborer for Lake Station. [Sec. Am. Compl., DE 37, at 3.] He was paid an hourly rate. Id. During his employment he was a member of Local 3379. Id. There was a Collective Bargaining Agreement between the City of Lake Station and Local 3379. [Id. at 15.] Defendant Stigger was a union representative for Local 3379. [Id. at 3.]
On November 12, 2020, Scott texted defendant Sowash (his supervisor), and told him that he felt ill and was going home. [Id.] Scott got tested for COVID-19 that same day. Id. Scott missed worked the next day too. [Id. at 4.] On November 13th, he texted Sowash and told him his parents had COVID and he was awaiting his test results. Id. The next day, November 14, 2020, Scott texted Sowash that he still did not feel well, he had lost his taste, and had muscle pain. Id. Scott learned on November 14th that he tested positive for COVID-19, and forwarded the test results to Sowash. Id.
Sowash checked in on Scott on November 18, 2020. Id. Scott texted Sowash that he was exhausted, coughing a lot, and using the bathroom a lot. Id. On November 24, 2020, Sowash and Scott exchanged texts - Scott indicated he was still coughing and having bad migraines, and said he would get further COVID-19 testing at the end of the week. Id. Sowash tried to get Scott to go to a particular testing site, and told Scott they only “have two guys on the street.” Id. Scott responded that he felt more comfortable going to his own doctor and to the hospital to get tested. Id.
A few days later, on November 28, 2020, Sowash texted Scott “see you Monday.” [Id. at 5.] Scott responded that he did not have his test results back yet, he was still having symptoms, and was still sick. Id. On November 30, 2020, Scott texted Sowash that he received his test results, he was still positive, and he sent the results to Sowash. Id.
On December 2, 2020, Scott called and texted Stigger (his union representative), for guidance. Id. According to Scott, she did not call him back. Id. Scott also alleges that same day he told Sowash that he had “just talked to his doctor, CDC, and Stigger, and ‘they said I have to go get tested next week on the 11th and I can't come back to work positive' or with symptoms.” Id. Sowash didn't respond. Id.
Several events happened next on December 7, 2020. Scott sent Stigger his doctor's note, signed by a nurse practitioner, which indicated Scott was evaluated that day, he should remain off work due to ongoing symptoms, and would be reevaluated in one week. Id. Stigger responded, asking Scott to make sure that Sowash and Vera (another supervisor of Lake Station employees) get a copy, so Scott sent the note to them too. Id. Sowash responded to the text, stating Scott is one of the first people he knows who was “having problems this long that isn't old or has other health problems.” Id.
On December 11, 2020, several more things happened to advance the facts in this case. Scott called Stigger who answered, said she would call him back in 30 minutes, but then said she was having phone trouble and did not call him back. Id. Scott also texted Sowash on December 11th that he was still experiencing symptoms - he was still coughing and his breathing was not 100%. Id. Scott also notified Sowash that his doctor gave him steroids for his lungs, he had to give it a few days to see if the medication would help, and he was aiming to return to work on Wednesday. [Id. at 6.] Sowash responded, “OK as long as you have a doctor's note it is what it is lol.” Id.
Later that same day (still on December 11, 2020), Sowash texted Scott and asked him if he filed for unemployment. Id. Scott texted back that he did apply for unemployment since he has COVID and was off more than two weeks. Id. Sowash responded, “well just because you had covid does not mean you are entitled to unemployment you were paid for two weeks.” Scott texted back, indicating the unemployment office told him he was eligible for unemployment because he had been paid for two weeks, but he was off work for more than two weeks. Id. Scott alleges that Sowash then retaliated against him, stating “just to let you know we denied the claim and I do not know where [it] is going from there.” Id.
Scott also claims that Sowash chastised him for filing unemployment. Sowash texted him, Id. However, Sowash also informed Scott that he “can have as many days as needed unpaid as long as you have a doctor's note and obviously it won't count against you.” Id.
On Monday December 14, 2020, Scott had a doctor's appointment. Id. He told Sowash that same day that his symptoms hit him again, and he would miss the rest of the week. [Id. at 6-7.] Two days later, on December 16, 2021, Sowash texted Scott, asking if he would be back on Monday. [Id. at 7.] Scott said no, and that he would return when he was better. Id. Sowash told Scott that he needed something from his doctor. Id. Pursuant to Sowash's request, on December 18, 2020, Scott sent Sowash and Stigger the doctor's note, which verified the December 14, 2020 appointment and that Scott should remain off work due to ongoing symptoms. Id.
Sowash texted Scott on December 22, 2020, asking him if he was coming back the following week. Id. Scott told him his next doctor's appointment was on January 4, 2020. Id. Sowash stated he had been getting a lot of questions “because you have missed over 40 days and you are negative for covid now.” Id. Scott responded that he was up and moving, but his body was weak, and he was trying to recover from shortness of breath. Id. Scott also told Sowash that people could contact his doctor and the CDC. Id. It seems that Sowash didn't take too kindly to this latest text, and he told Scott he was giving him “a heads up to do what you need to do to get back to work because honestly it is not looking good.” [Id. at 8.] Scott then directly asked Sowash if Lake Station was trying to fire him. Id. Changing the subject, Sowash asked how Scott's parents and girlfriend were doing. Id.
On January 4, 2021, Scott had a doctor's visit with a nurse practitioner. Id. He was referred to a pulmonologist and instructed to remain off work. Id. On January 5, 2021, Sowash texted Scott, asking him what was going on. Id. Scott answered his text, indicated he had to get an x-ray, see a pulmonologist, and after the results came back, he had to go back to his doctor. Id. Also, he told Sowash he would give him a doctor's note the next day. Id.
True to his word, on January 6, 2021, Scott sent Sowash a doctors note dated January 4, 2021, stating he was evaluated on the 4th, he should remain off work due to ongoing COVID symptoms and was being referred to a lung specialist. [Id. at 9.] The next day, Defendant Lake Station sent a letter to Scott...
To continue reading
Request your trial