Case: 5:15-cv-00243-KKC Doc #: 1 Filed: 08/18/15 Page: 1 of 8 - Page ID#: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
____________________________
EVA HAMILTON,
)
No. 5:15-CV-______________
)
Plaintiff
)
Complaint
v.
)
)
ROBERT A. McDONALD, In his
)
Official Capacity as Secretary of
)
Veterans Affairs,
)
)
Defendant
)
____________________________)
Eva Hamilton for her complaint against Robert A. McDonald, in his official
capacity as Secretary of Veterans Affairs states as follows:
I
Nature of the Action
1. This is an action pursuant to 42 U.S.C. 2000e, et. seq., and 29 U.S.C.
633a. Hamilton claims that she was wrongfully denied a promotion in her
employment with the Department of Veterans Affairs as a result of unlawful age
discrimination and retaliation. She seeks instatement to the position to which she
should have been promoted along with recovery of all lost pay and attendant
benefits, liquidated, compensatory and/or punitive damages, attorneys fees, costs
and litigation expenses as allowed by applicable statute or rule.
II
Jurisdiction & Venue
2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1331
as it raises a question of federal law. Venue is proper in this Court because
plaintiffs claims arose in Fayette County, Kentucky.
1

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III
Parties
3. Plaintiff Eva Hamilton is a resident of Fayette County, Kentucky. She is
and, at all times pertinent to this action, has been employed by the United States
Department of Veterans Affairs in Fayette County, Kentucky.
4. Robert A. McDonald is the Secretary of the Department of Veterans
Affairs. He is sued in his official capacity as the defendant-party pursuant to
statute. As the body corporate representative of the United States Department of
Veterans Affairs, defendant, in his official capacity, is and, at all times pertinent
hereto, has been the employer of Hamilton within the meaning of applicable
sections of Titles 29 and/or 42 of the United States Code.
IV
Facts Giving Rise to the Action
5. On or about January 30, 2014, the Department of Veterans Affairs
announced a vacant medical support assistant (PACT Supervisor) position. The
position was job announcement #KK-14-JJC-1039309.
6. Hamilton applied timely for the PACT Supervisor position on or about
February 9, 2014.
7. Applications for the PACT Supervisor position were closed February 14,
2014.
8. 21 applicant packets were reviewed for the PACT Supervisor position.
9. Of the 21 reviewed applicant packets 19 applicants were forwarded for
and accepted interviews.

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10. Included among the 19 applicant packets forwarded for interviews was
the application of a Kristina Curry.
11. The application packet of Kristina Curry was forwarded for interviews
and further consideration, even though, upon information and belief, she was on
probation and not eligible for promotion to the PACT Supervisor position.
12. The procedures followed by VA management personnel to fill the PACT
Supervisor position were irregular and substantial deviations from established
procedures.
13. Kristina Curry was selected for the PACT Supervisor position.
14. The announcement was made by Philip Branham on March 18, 2014,
that Ms. Curry had been selected for the PACT Supervisor position.
15. On April 1, 2014, Hamilton was notified by email that Ms. Curry would
be her immediate supervisor effective immediately.
16. On April 3, 2014, Hamilton met with Mr. Belmont, Associate Director of
the VA Medical Center, and Laura Faulkner, chief of human resources, and advised
them of the irregularities and improprieties that occurred in the process that
ended in Kristina Currys selection for the PACT Supervisor position.
17. On April 4, 2014, Ms. Currys appointment to the PACT Supervisor
position was rescinded and she was reassigned.
18. On April 8, 2014, Hamilton filed an EEO complaint that her
nonselection for the PACT Supervisor position was on account of age
discrimination.

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19. On or about April 28, 2014, the Department of Veterans Affairs reposted
the announcement regarding the vacant medical support assistant (PACT
Supervisor) position. The position was job announcement #KK-14-JJC-1106857.
20. Hamilton applied timely again for the PACT Supervisor position on or
about May 10, 2014.
21. On or about May 18, 2014, Hamilton filed her formal complaint of age
discrimination regarding her nonselection for the PACT Supervisor position that
had been posted as job announcement #KK-14-JJC-1039309.
22. On June 6, 2014, a mediation conference was held regarding possible
resolution of Hamiltons age discrimination charge regarding her nonselection for
the PACT Supervisor position that had been posted as job announcement #KK-14JJC-1039309.
23. Carol Stevens was one of the VA management representatatives that
attended and participated on June 6, 2014, the mediation conference regarding
possible resolution of Hamiltons age discrimination charge regarding her
nonselection for the PACT Supervisor position that had been posted as job
announcement #KK-14-JJC-1039309.
24. Carol Stevens was the selecting official for the VA for the PACT
Supervisor position that had been posted as job announcement #KK-14-JJC1106857.
25. On June 23, 2014, Carol Stevens informed VA human resources that she
had selected Kristina Curry for the PACT Supervisor position that had been posted
as job announcement #KK-14-JJC-1106857.

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26. As of June 23, 2014, the interview process for the PACT Supervisor
position that had been posted as job announcement #KK-14-JJC-1106857 had not
been completed for a number of applicants including Hamilton.
27. Upon information and belief, Kristina Curry did not meet the minimal
qualifications for the PACT Supervisor position that had been posted as job
announcement ##KK-14-JJC-1106857.
28. Hamilton had and has superior qualifications and experience to Curry.
29. Curry is substantially younger than Hamilton, who is greater than 40
years of age.
30. Hamilton was not selected for the PACT Supervisor position that had
been posted as job announcement #KK-14-JJC-1039309 because of unlawful age
discrimination.
31. Hamilton was not selected for the PACT Supervisor position that had
been posted as job announcement #KK-14-JJC-1106857 because of unlawful age
discrimination.
32. Hamilton was not selected for the PACT Supervisor position that had
been posted as job announcement #KK-14-JJC-1106857 because of retaliation for
her age discrimination complaint that she officially filed on or about May 18, 2014.
33. Hamilton has complied with all conditions precedent to filing this
lawsuit.
34. As a direct and proximate result of defendants unlawful actions,
Hamilton has suffered damages including loss of pay and benefits, and emotional
distress and mental anguish.

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35. Defendants conduct and actions have displayed gross, reckless and
wanton disregard for Hamiltons rights.
V
Causes of Action
1 Age Discrimination (Nonselection for PACT Supervisor #KK-14-JJC1039309)
36. Hamilton realleges paragraphs 1 35 as if fully set forth herein.
37. Hamiltons nonselection for the PACT Supervisor position posted as job
announcement #KK-14-JJC-1039309 was on account of age discrimination.
38. As a direct and proximate result of defendants unlawful age
discrimination, Hamilton has suffered damages including loss of pay and benefits,
emotional distress and mental anguish.
2- Age Discrimination (Nonselection for PACT Supervisor #KK-14-JJC1106857)
39. Hamilton realleges paragraphs 1 38 as if fully set forth herein.
40. Hamiltons nonselection for the PACT Supervisor position posted as job
announcement #KK-14-JJC-1106857 was on account of age discrimination.
41. As a direct and proximate result of defendants unlawful age
discrimination, Hamilton has suffered damages including loss of pay and benefits,
emotional distress and mental anguish.
3 Retaliation (Nonselection for PACT Supervisor #KK-14-JJC-1106857)
42. Hamilton realleges paragraphs 1 -41 as if fully set forth herein.

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43. Hamilton engaged in protected activity in filing a complaint of age

discrimination with regard to her nonselection for the PACT Supervisor job posted
as job announcement #KK-14-JJC-1039309.
44. Hamiltons nonselection for the PACT Supervisor position posted as job
announcement #KK-14-JJC-1106857 was on account of retaliation for her
protected activity.
44. As a direct and proximate result of defendants unlawful retaliation,
Hamilton has suffered damages including loss of pay and benefits, emotional
distress and mental anguish.
VI
Demand for Relief
WHEREFORE, plaintiff Eva Hamilton demands against defendant Robert
A. McDonald as follows:
(1)

Entry of a judgment instating her retroactively to the position of

PACT Supervisor effective as of March 19, 2014 or as of such other date as shown
appropriate by the evidence;
(2)

Entry of a judgment awarding her the lost pay and benefits she has

suffered as a result of defendants unlawful age discrimination and/or retaliation;

(3)

Entry of a judgment awarding her compensatory damages for the

emotional distress and mental anguish she has suffered on account of defendants
unlawful actions;
(4)

Entry of a judgment awarding her liquidated and/or punitive

damages to punish defendant for the willful, wanton, reckless and gross disregard
for Hamiltons rights and to deter repetition of similar misconduct;
7

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(5)

Entry of a judgment awarding her attorneys fees, costs, litigation

expenses in accordance with applicable law and rules; and,

(6)

Granting all other and further relief to which she is shown entitled.
Demand for Jury Trial

Hamilton requests pursuant to Fed.R.Civ.Pro. 38 trial by jury on all issues

herein so triable.
Respectfully submitted,
By: /s/ Robert L. Abell
ROBERT L. ABELL
120 N. Upper Street
Lexington, KY 40507
859.254.7076
859.281.6541 fax
Robert@RobertAbellLaw.com
COUNSEL FOR PLAINTIFF

JS 44 (Rev. 12/12)

Case: 5:15-cv-00243-KKC Doc #: 1-1 Filed: 08/18/15 Page: 1 of 1 - Page ID#: 9

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Eva Hamilton

Robert A. McDonald, Secretary of the Department for Veterans Affairs

(b) County of Residence of First Listed Plaintiff

County of Residence of First Listed Defendant

Fayette

(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Robert L. Abell, 120 N. Upper Street, Lexington, KY 40507,

859-254-7076; Robert@RobertAbellLaw.com

II. BASIS OF JURISDICTION (Place an X in One Box Only)

1

U.S. Government
Plaintiff

Federal Question
(U.S. Government Not a Party)

U.S. Government
Defendant

Diversity
(Indicate Citizenship of Parties in Item III)

Fayette

(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

not known at this time

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only)
PTF
Citizen of This State
1

DEF
1

and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State

Citizen of Another State

Incorporated and Principal Place

of Business In Another State

Citizen or Subject of a
Foreign Country

Foreign Nation

IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT

TORTS

110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
190 Other Contract
195 Contract Product Liability
196 Franchise

REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property

PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education

FORFEITURE/PENALTY

PERSONAL INJURY
365 Personal Injury Product Liability
367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
371 Truth in Lending
380 Other Personal
Property Damage
385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
463 Alien Detainee
510 Motions to Vacate
Sentence
530 General
535 Death Penalty
Other:
540 Mandamus & Other
550 Civil Rights
555 Prison Condition
560 Civil Detainee Conditions of
Confinement

625 Drug Related Seizure

of Property 21 USC 881
690 Other

BANKRUPTCY
422 Appeal 28 USC 158
423 Withdrawal
28 USC 157
PROPERTY RIGHTS
820 Copyrights
830 Patent
840 Trademark

LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act

SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))

FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609

OTHER STATUTES

375 False Claims Act

400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes

IMMIGRATION
462 Naturalization Application
465 Other Immigration
Actions

V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding

2 Removed from
State Court

Remanded from
Appellate Court

4 Reinstated or
Reopened

5 Transferred from
Another District
(specify)

6 Multidistrict
Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

42 USC 2000e & 29 USC 633a

VI. CAUSE OF ACTION Brief description of cause:

age discrimination & retaliation related to failure to promote

CHECK IF THIS IS A CLASS ACTION

VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE

CHECK YES only if demanded in complaint:

Yes
No
JURY DEMAND:

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ Robert L. Abell

08/18/2015
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

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...

U.S. District Court Eastern District of Kentucky

Civil
Case Assignment
Case number 5:15-CV-243
Assigned : Judge Karen K. Caldwell
Judge Code : 4313
Assigned on 08/19/2015
Request New Judge .....

http://156.125.6.194/cgi-bin/CaseAssign/CVCA.pl

8/19/2015

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AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT

for the

Eastern District
__________
DistrictofofKentucky
__________
Eva Hamilton

Plaintiff(s)

v.
Robert A. McDonald, Secretary of the Department of
Veterans Affairs

Defendant(s)

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No.

SUMMONS IN A CIVIL ACTION

To: (Defendants name and address)

Robert A. McDonald
c/o Office of the Regional Counsel
Dept. of Veterans Affairs
321 W. Main St., Suite 390
Louisville, KY 40202
(service also on United States AG & US Atty, EDKy)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney,
whose name and address are:
Robert L. Abell, 120 N. Upper Street, Lexington, KY 40507

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.

CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk

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AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)

I personally served the summons on the individual at (place)

on (date)

; or

I left the summons at the individuals residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)

, and mailed a copy to the individuals last known address; or

, who is

I served the summons on (name of individual)

designated by law to accept service of process on behalf of (name of organization)
on (date)

; or

I returned the summons unexecuted because

; or

Other (specify):
.
My fees are $

for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Servers signature

Printed name and title

Servers address

Additional information regarding attempted service, etc:

0.00