Case 7:11-cv-00325 Document 1

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION RAFAEL G. LEAL, Plaintiff, vs.

CIVIL ACTION NO. __________ (Jury Requested)

MERCEDES INDEPENDENT SCHOOL DISTRICT, Defendant

PLAINTIFF RAFAEL G. LEALS ORIGINAL COMPLAINT

TO THE HONORABLE U.S. DISTRICT COURT: COMES NOW, RAFAEL G. LEAL, (hereinafter referred to as Plaintiff) complaining of MERCEDES INDEPENDENT SCHOOL DISTRICT (hereinafter referred to as the Defendant or the Defendant School District) and for such causes of action would respectfully show unto the Court and the Jury as follows: I. Parties 1.1 Plaintiff, Rafael G. Leal, is an individual residing in Mercedes, Hidalgo

County, Texas. 1.2 Defendant, MERCEDES INDEPENDENT SCHOOL DISTRICT is a school

district and a political subdivision of the State of Texas and may be served with citation by serving its Superintendent: Daniel Trevino, Jr., Superintendent of Schools, 206 E. 6th Street, Mercedes, Texas 78570.

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II. Venue and Jurisdiction 2.1 The action arises under a federal question as hereinafter more fully appears.

This Court has supplemental jurisdiction over state law claims, if any, discussed below under 28 U.S.C. Section 1367(a) because they arise out of the same case or controversy. III. Nature Of Action 3.1 This is an action under the Age Discrimination in Employment Act, as

amended, and the Americans with Disabilities Act, as amended to correct unlawful employment practices. IV. Administrative Procedures 4.1 Within 300 days of the occurrence of the acts complained of, Plaintiff filed his

initial complaint with the Equal Employment Opportunity Commission alleging that the Defendant School District had committed unlawful employment practices against the Plaintiff in violation of the Age Discrimination in Employment Act. The formal charge and the Dismissal and Notice of the Right to File Civil Action Letter were filed and received as follows: Formal Complaint Filed: Notice of Right to File A Civil Action Letter Received: October 30, 2009

August 1, 2011

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4.2

On August 1, 2011, Plaintiff received from the U.S. Equal Employment

Opportunity Commission, Plaintiffs Right to File Civil Action letter allowing the Plaintiff to file this lawsuit within ninety days of its receipt. Plaintiffs statutory claims have been filed within sixty days of its receipt. A copy of this notice is attached as Exhibit A and is incorporated for all purposes by reference. Plaintiff further invokes the relation back theory as well as any and all equitable doctrines necessary to satisfy the administrative requirements set forth by law. All conditions precedent to jurisdiction have occurred or been complied with: a charge of discrimination was filed with the Equal Employment Opportunity Commission within three-hundred days of the acts complained of herein and Plaintiff's Complaint is filed within ninety days of Plaintiff's receipt of the Equal Employment Opportunity Commission's issuance of a right to sue letter. A copy of plaintiffs right to sue letter is attached as Exhibit A.

V. Factual Background 5.1 Plaintiff Rafael Leal accepted employment with the Defendant School District

in or around 1985 as a Mercedes High School Teacher. Plaintiff diligently completed his first assignment with the Defendant School District and worked his way up to the position of Principal and then Assistant Superintendent of the Defendant School District. During his last year of employment the Plaintiff was earning approximately $89,500.00 annually plus fringe benefits. During his approximately twenty-two (22) years of service with the Defendant School District, Plaintiff performed all the duties assigned to him with dedication,

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undivided loyalty and hard work. As a result of Plaintiffs strong work ethic and dedication, he received several pay raises, promotions and increases in responsibility. 5.2 However, during the last six months of his employment Plaintiff began to

experience discrimination on account of his age (53; DOB: 12-21-55) and was subjected to a hostile work environment and disparate treatment. Plaintiff was then reassigned by then Superintendent Beto D. Gonzalez who told Plaintiff that he was not in the 21st century, that he was of retirement age and that he wanted someone who could last 5-7 more years. Superintendent Beto D. Gonzalez then told Plaintiff to clean out his office and that he was too old to accomplish the standards set for the High School. Plaintiff had always accomplished the standards of the High School as well as all the standards set by the Defendant School District. He was then stripped of his supervisory duties and reassigned to the position of an elementary school principal. When Plaintiff was younger he was treated as a valuable member of the educational team at Mercedes Independent School District, however as he became older he began to be treated in a discriminatory manner designed to create a hostile work environment under which no reasonable person would continue to endure. The reassignment for the alleged best interests of the Defendant School District was a pretextual reason to mask the discriminatory animus against older workers. Moreover, the individual hired to replace Plaintiff, Vanessa De Leon, was under 40 years of age and had no prior administrative experience. 5.3 Plaintiff further avers that he was discriminated against due to his medical

conditions, High Blood Pressure and Diabetes. Plaintiff was perceived and/or regarded as being disabled due to his record of impairment. Plaintiff is a qualified individual with a disability that significantly impairs at least one major life function, who either with or without

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a reasonable accommodation can perform the essential functions of his job with the Defendant School District. 5.4 Plaintiff asserts that he was discriminated against because he was 53 years

old at that time (DOB: 12-21-55), in violation of the Age Discrimination in Employment Act. 5.6 Additionally, Plaintiff asserts he was discriminated against due to the fact that

he was perceived as being disabled and/or regarded as being disabled due to his record of impairment (High Blood Pressure and Diabetes), in violation of the Americans with Disabilities Act. Plaintiff alleges that there was no legitimate business justification for his termination in that the Plaintiff had always performed a satisfactory job for the Defendant School District during his employment with the Defendant, and that there was work available and there continues to be work available which Plaintiff could perform. Plaintiff further asserts and intends to prove that the mistreatment received by him including but not limited to, age discrimination and disability discrimination, among other things, was part of a pattern and practice engaged in by the Defendant School District towards the Plaintiff and others similarly situated, i.e., older employees with a disability. VI. Causes of Action - Wrongful Discharge A. Violations of the Age Discrimination in Employment Act and the Americans with Disabilities Act. 6.1 Background. 6.2 Plaintiff alleges that he was discriminated against by the Defendant School Plaintiff re-alleges the allegations contained in Section V, entitled Factual

District due to his age, 53 (DOB: 12-21-55) and/or due to his disabilities or record of impairment (High Blood Pressure and Diabetes).

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6.3

On or about July 7, 2009, under the threat of reassignment and continued

professional embarrassment, Plaintiff was constructively discharged and forced to submit his resignation and take retirement. Plaintiff was wrongfully discharged by the Defendant School District due to the culmination of discriminatory conduct directed against him by the Defendant School District. wrongfully terminated him. 6.4 The Defendant employer illegally discriminated and retaliated against the The Defendant discriminated against this Plaintiff and

Plaintiff, and constructively discharged the Plaintiff on account of his age (53; DOB: 12-2155) in violation of the Age Discrimination in Employment Act. 6.5 Plaintiff further alleges that he was discriminated against due to his medical conditions (High Blood Pressure and Diabetes) in violation of the Americans with Disabilities Act of 1990, as amended. 6.6 The Defendant employer, its agents, servants and employees discharged,

retaliated or in some other manner discriminated against Plaintiff because of his age (53; DOB: 12-21-55) and/or because of his disabilities (High Blood Pressure and Diabetes). 6.7 As a result of the discriminatory treatment and other wrongful conduct

described above, Plaintiffs constructive discharge and the acts described herein, the Plaintiff has suffered damages as further alleged in this Petition. VII. Actual Damages 7.1 As a result of the incident made the basis of this suit, Plaintiff has incurred

damages in the following respects:

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A.

Lost Earnings and Special Damages 7.2 At the time of the incident complained of, Plaintiff was gainfully employed.

As a proximate result of the wrongful acts of the Defendant corporation and Defendant Boudreaux, the Plaintiff was unable to attend to his occupation and thereby suffered a loss of income for which he hereby sues. As a result of the wrongful acts of the Defendant corporation and Defendant Boudreaux, the Plaintiffs earnings, retirement and capacity to earn a livelihood were severely impaired. In all reasonable probability, the Plaintiffs loss of earnings and loss of earning capacity will continue long into the future, if not for the balance of the Plaintiffs natural life. Plaintiff therefore sues for any lost earnings in the form of back pay, lost wages, front pay, retirement benefits, fringe benefits, lost future earnings and/or diminished earning capacity to the extent permitted by law due to the acts complained of above. B. Past and Future Mental Anguish 7.3 As a result of the incident described above, that is made the basis of this suit,

Plaintiff has suffered physical injuries, sickness and/or illness as well as severe mental pain and anguish. The Plaintiff has suffered feelings of anxiety, worthlessness, embarrassment, and inferiority. The Plaintiff has further suffered ill health effects including, but not limited to, sleeplessness, anxiety, restlessness, loss of appetite, depression and loss of selfesteem due to the tortious acts of the Defendants including, but not limited to, abuse of process, malicious prosecution, discriminatory treatment and/or wrongful discharge. In all reasonable probability, the Plaintiff will continue to suffer such severe mental and physical pain and anguish for a long time into the future, if not for the balance of his natural life.

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VIII. Attorneys Fees 8.1 By reason of the allegations of this petition and should the plaintiff be

designated the prevailing party, Plaintiff is entitled to recover attorneys fees in a sum that is reasonable and necessary. In this connection, Plaintiff will show that he has employed the undersigned attorney to assist him in the prosecution of this action. Plaintiff further seeks an upward adjustment or enhancement to the lodestar amount of attorneys fees to be determined in the prosecution of this lawsuit. A reasonable attorneys fee is further requested for the work expended in the preparation and trial of this cause along with a reasonable fee for any and all appeals to other courts. If ultimately successful in this case, Plaintiff fully expects that the Defendant corporation will appeal this case. Plaintiff seeks attorneys fees to compensate the Plaintiff for the attorneys fees he has and will incur in the prosecution of this lawsuit, both at trial and on appeal. Plaintiff further pleads for the recovery of reasonable and necessary expenses for the use of paralegals, associate counsel and/or law clerks that assist in the prosecution of the case. As permitted, Plaintiff also seeks to re-coup all litigation expenses expended in the prosecution of this lawsuit. IX. Exemplary Damages 9.1 The conduct of the Defendant corporation, as set out above, was carried out

and constituted such an entire want of care as to constitute a conscious indifference to the rights or welfare of the Plaintiff. Because of the spite, ill-will, malicious and fraudulent intent held by the Defendant corporation and Defendant Boudreaux toward the Plaintiff, such defendants, acting in a willful and intentional manner, committed certain acts

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calculated to cause injury and/or damage to the Plaintiff. Accordingly, the Defendants acted with malice, actual malice and/or a specific intent to injure the Plaintiff. The Plaintiff is hereby entitled to recover exemplary or punitive damages to deter such cruel and undignified procedures by the Defendants in the future. Accordingly, Plaintiff requests that punitive damages be awarded against the Defendants as a result of its egregious violations of the law. X. Demand for Trial by Jury 10.1 Plaintiff, by and through his attorney of record make and file this Demand for

Trial by Jury in the above styled and numbered cause. Plaintiff requests that this case be set on the jury docket of the court for disposition in due order and as soon as practicable. WHEREFORE, RAFAEL G. LEAL Plaintiff herein, prays that this Honorable Court grant the following: (1) Judgment against the Defendant MERCEDES INDEPENDENT SCHOOL DISTRICT for the Plaintiffs actual damages; Punitive damages; Attorneys fees; Pre-judgment interest allowed by law; Interest on said judgment at the legal rate from the date of judgment; For costs of suit herein; and

(2) (3) (4) (5)

(6)

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(7)

For such other and further relief at law or in equity to which the Plaintiff may show himself justly entitled to receive and for which he shall forever pray. Respectfully submitted,
THE LAW OFFICES OF CARLOS E. HERNANDEZ, JR., P.C.

101 North Tenth Avenue Edinburg, Texas 78539 Telephone: (956) 386-0900 Facsimile: (956) 380-0771

By: /s/carlos e. hernandez, jr. Carlos E. Hernandez, Jr. State Bar No. 00787681 Federal ID No. 17022
ATTORNEY FOR PLAINTIFF, RAFAEL G. LEAL

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