Null - Filed Amended Complaint

Case 8:17-cv-02959-EAK-AAS Document 8 Filed 12/20/17 Page 1 of 13 PageID 90
UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ERIC NULL
Plaintiff,
CASE NO.: 8:17-cv-02959
v.
HEALTH NET FEDERAL SERVICES, LLC
Defendant.
FIRST AMENDED COMPLAINT
Plaintiff, Eric Null, by and through his undersigned counsel, files this, his first amended
complaint against Defendant, Health Net Federal Services, LLC (hereinafter, “Defendant”), an
employer as defined in the state of Florida, and states as follows in support thereof:
NATURE OF THE ACTION
1. This is a proceeding for damages and injunctive relief to redress the deprivation of rights
secured to Plaintiff by Sections 501 and 504 of the Rehabilitation Act of 1973 29 U.S.C. §§ 701 et seq.,
the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Hillsborough County Human
Rights Ordinance and the City of Tampa Human Rights Ordinance.
PARTIES
2. Plaintiff is an individual currently residing in Fort Myers, Florida. He is a citizen of the United
States and a resident of the state of Florida. Plaintiff is a person entitled to protection pursuant to the
provisions of the Rehabilitation Act of 1973 29 U.S.C. §§ 701 et seq.
3. At all relevant times, Plaintiff was an employee or employment applicant of Defendant.
4. On information and belief, Defendant Health Net Federal Services, LLC, is a private company
who performs work under contracts with the Federal Government for health coverage for veterans
\with a place of business in Tampa, Hillsborough County, Florida.
1
5. At all times relevant to the allegations in this Complaint, Defendant operated from a facility
in Tampa, Florida.
6. Defendant is engaged in administration of veterans’ health care coverage.
7. At all relevant times, Defendant employed more than 75 people.
8. Defendant was the employer of Plaintiff at all times relevant to this action.
JURISDICTION AND VENUE
9. Federal Question Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343.
This action is authorized and instituted pursuant to Sections 501 and 504 of the Rehabilitation Act of
1973 29 U.S.C. §§ 701 et seq., the Americans with Disabilities Act, Title VII of the Civil Rights Act.
10. Additionally, this Court has jurisdiction over the subject matter of this action pursuant to 28
U.S.C. § 1332(d)(2) (diversity jurisdiction) in that (i) there is complete diversity (Plaintiff is a citizen of
Florida and Defendant is domiciled and incorporated in Delaware and otherwise maintains its
principal place of business in California and the amount in controversy exceeds $75,000.00 exclusive
of interests and costs.
11. Pursuant to 28 U.S.C. § 1391 proper venue for this cause of action is the United States District
Court for the Middle District of Florida. The unlawful employment practices complained of herein
occurred within the Middle District of Florida, specifically, Tampa, Florida.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
12. Plaintiff timely dual filed a Charge of handicap or disability discrimination and retaliation with
the U.S. Equal Employment Opportunity Commission (“EEOC”) and with the Florida Commission
on Human Relations (“FCHR”), copies of which are attached hereto as “Exhibit A”, and accordingly,
is permitted to proceed to court on his claims.
13. On July 22, 2017, Plaintiff received Notice of Right to Sue from the EEOC for his Charge, a
copy of which is attached hereto as “Exhibit B.”
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14. Plaintiff has satisfied all of the administrative procedures that were conditions precedent to
filing this cause of action.
FACTS
15. Plaintiff was employed by Defendant from October 22, 2015 through April 24, 2017.
16. Throughout his employment with Defendant, Plaintiff performed his duties in an exemplary
fashion.
17. Throughout his employment Plaintiff was subjected to pervasive and continued derogatory
comments and negative treatment based on his sex and disability of Obsessive Compulsive Disorder
(“OCD”).
18. Throughout his employment Plaintiff was subjected to pervasive and continued derogatory
comments and negative treatment based on his disability, specifically his diagnosed condition of
Obsessive Compulsive Disorder (“OCD”) for which he undergoes treatment.
19. At all times relevant, Defendant was aware of Plaintiff’s OCD diagnosis.
20. Plaintiff started to receive discriminatory treatment when he started working under supervisor
Jason Gondelman (“Gondelman”).
21. Plaintiff was harassed and treated worse than other employees.
22. On numerous occasions Gondelman ridiculed Plaintiff’s clothing choices in front of other
employees.
23. On numerous occasions, and in the presence of other employees, Gondelman made jokes
regarding Plaintiff’s sexual orientation, effeminate mannerisms, his tone of voice, and hand gestures,
at Plaintiff’s expense, including but not limited to telling Plaintiff to sit on his hands, mimicking
Plaintiff and his mannerisms in the presence of other employees, including supervisors and team leads,
and bringing up Plaintiff’s sexual orientation.
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24. On numerous occasions, and in the presence of other employees, Gondelman made jokes
regarding Plaintiff’s disability of OCD at Plaintiff’s expense, including but not limited to making fun
of Plaintiff’s OCD symptoms to both Plaintiff and other employees and purposely re-arranging items
just to watch Plaintiff change them back due to his disability causing him to compulsively have them
in a certain order or coded with certain colors.
25. In late 2016, Plaintiff applied for a promotion to Operations Manager.
26. Plaintiff’s fellow supervisors advised him they thought he was a shoe-in for the position.
27. On or about December 6, 2016, Plaintiff was interviewed by three operations managers, for
the position of Operations Manager.
28. Soon thereafter, Plaintiff interviewed with Mark Camerire (“Camerire”), Defendant’s Call
Center Director for Defendant’s Tampa location.
29. On or about December 20, 2016, Plaintiff was called into a meeting with Camerire and
Gondelman where he was informed that while there were absolutely no issues with his work
performance, he did not receive the promotion due to his “big personality” and “exaggerated”
mannerisms and hand gestures.
30. Gondelman and Camerire also mentioned symptoms of Plaintiff’s OCD disability as a reason
for his failure to obtain the promotion, including that he had to have items color coded in a very
specific way and his emails were always formatted the exact same way.
31. Camerire cited the above OCD symptoms as barriers to Plaintiff’s advancement within the
company and told Plaintiff he needed to change his personality.
32. Subsequent to the December 20, 2016 meeting, Plaintiff complained to Human Resources
regarding the above unfair treatment.
33. In January 2017, Human Resources manager Paulette Spyke spoke with Plaintiff and
Gondelman, but no further action was taken.
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34. Due to the lack of action and support from Defendant, Plaintiff’s anxiety and OCD symptoms
increased dramatically to the point where he was eventually hospitalized, missing a substantial amount
of time from work.
35. On April 24, 2017, Plaintiff resigned from his employment due to the physical and mental
distress caused by the ongoing harassment from Gondelman and Defendant’s refusal to address
Plaintiff’s allegations regarding same.
36. Defendant never assisted nor supported Plaintiff with any problems he had encountered while
working for Defendants.
37. Defendant failed to properly deal with complaints of discrimination in the workplace.
38. Plaintiff has retained the undersigned counsel in order that his rights and interests may be
protected.
COUNT I
(Violations of Rehabilitation Act)
39. Plaintiff re-alleges and references each and every allegation contained in paragraphs 1 through
38, and incorporates same as if fully restated herein.
40. Plaintiff suffers from Obsessive Compulsive Disorder (“OCD”). This constitutes a physical
impairment that substantially limits one or more major life activities. He both has a record of such
impairment and, upon information and belief, was regarded by his employer as being so impaired.
41. Plaintiff’s disability was both a determining factor and the but for cause of Defendant’s
decision to fail to promote him in or about December 2016.
42. Defendant knowingly and willfully discriminated against Plaintiff on the basis of his disabilities
in violation of the Rehabilitation Act of 1973.
43. In addition, Plaintiff avers that Defendant’s unlawful and discriminatory constructive
termination of his employment on account of his disability violates the provisions of the Rehabilitation
5
Act of 1973 29 U.S.C.§§701 et seq., justifying an award, inter alia, of backpay, front pay, benefits and
compensatory and liquidated damages against Defendant.
44. Plaintiff is Disabled under the Rehabilitation Act of 1973 29 U.S.C. §§701 et seq.
45. Plaintiff was a qualified individual with accommodations for the Operations Manager position.
46. Defendant’s denial of Plaintiff’s promotion to Operations Manager was an adverse
employment action.
47. By denying Plaintiff the promotion, Defendant unlawfully discriminated against Plaintiff
because of the disability.
48. Plaintiff was also discriminated against because of his disability when he was constructively
discharged due to Defendant’s refusal to address the discriminatory behavior of Plaintiff’s superiors.
49. As a direct and proximate consequence of Defendant’s unlawful and discriminatory
employment policies and practices, Plaintiff Eric Null has suffered a loss of income, including, but
not limited to, past and future wages, benefits, expenses, payment for insurance and various other
expenses, pain and suffering, emotional and psychological damages, compensatory damages, and
attorney’s fees and costs, all to be specified at trial.
COUNT II
(Violations of Americans with Disabilities Act)
51. Plaintiff is a qualified individual with a disability within the meaning of the ADA.
52. Plaintiff was denied a promotion and eventually constructively terminated because of his
disability and his record of a disability in violation of Section 102(a) of the ADA.
53. Plaintiff suffered from a disability and/or handicap as that term is defined under the ADA.
54. At all times relevant hereto Plaintiff suffered from Obsessive Compulsive Disorder.
6
55. At all times relevant hereto Defendant regarded Plaintiff as an individual with a disability
and/or an individual with a record of having a disability as a result of Plaintiff being diagnosed with
Obsessive Compulsive Disorder.
56. Defendant is an employer as that term is defined under the ADA.
57. Plaintiff contends that Defendant violated the ADA in engaging in discriminatory conduct
towards him on the basis of his disability.
58. As a result of Defendant’s violations, Plaintiff has suffered damages.
59. As a direct and proximate result of the intentional and discriminatory acts and practices of
Defendant, and/or its employees, including the discriminatory discharge of Plaintiff’s employment,
Plaintiff suffered injury and continues to suffer injury including past and future loss of income and
other employment benefits, emotional pain and suffering, mental anguish, humiliation, loss of
enjoyment of life, embarrassment, damage to his reputation and other past and future pecuniary losses.
60. Defendant’s actions displayed intentional misconduct and/or gross negligence in that either
Defendants had actual knowledge of the wrongfulness of its conduct and the high probability of the
damage to Plaintiff would result, and despite that knowledge, intentionally pursued a course of
conduct resulting in Plaintiff’s injuries and damages, or Defendant’s conduct was reckless and wanton
in care that it constitutes a conscious disregard or indifference to the rights of Plaintiff.
61. In addition to damages, Plaintiff seeks general compensatory and punitive damages. He further
seeks reimbursement of his reasonable attorney’s fees and costs, pursuant to the 42 U.S.C. § 12101 et
seq.
WHEREFORE, Plaintiff, prays that judgment be entered in his favor against Defendant as
follows: That Plaintiff be awarded general and compensatory damages and reinstatement, front pay
and back pay and punitive damages; that Plaintiff be awarded reasonable attorney’s fees and costs
7
pursuant to 42 U.S.C. § 12101 et seq.; that Plaintiff be awarded such other relief as the Court deems
just and proper under the circumstances.
COUNT III
(Violations of FCRA – Sex /Gender discrimination)
63. Section 760.10 of the FCRA states in relevant part:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to foil or refuse to hire any individual, or otherwise to

discriminate against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such individual ‘s
race, color, religion, sex, national origin, age, handicap, or marital
status.”
64. The FCRA accordingly prohibits discrimination based on sex.
65. The treatment to which Plaintiff was subjected by Defendant as set forth above and
incorporated herein, was the result of Plaintiff’s sex/gender, which other male individuals were not
and would not have been subjected, in violation of the FCRA.
66. Defendant’s alleged bases for its adverse conduct against Plaintiff and Defendant’s failure to
promote Plaintiff are pretextual and asserted only to cover up the discriminatory nature of its conduct.
67. Even if Defendant could assert legitimate reasons for its adverse actions against Plaintiff and
Plaintiff’s constructive termination, which reasons it does not have, Plaintiff’s sex/gender was also a
motivating factor for Defendant’s adverse conduct toward Plaintiff and Plaintiff’s constructive
termination.
68. As a result of Defendant’s willful and malicious discriminatory actions as a result of his sex,
Plaintiff has experienced and will continue to experience significant financial and economic loss in the
form of lost wages and lost benefits. Plaintiff has also experienced and will continue to experience
emotional anguish, pain and suffering and loss of dignity damages. Plaintiff accordingly demands lost
8
economic damages in the form of back pay and front pay, interest, lost benefits, compensatory
damages, and attorney’s fees and costs.
COUNT IV
(Violation of Title VII – Sex/Gender Discrimination)
70. Plaintiff is a member of a protected class under Title VII.
71. By the conduct describe above, Defendant has engaged in discrimination against Plaintiff
because of Plaintiff’s sex and subjected the Plaintiff to animosity based on sex.
72. Such discrimination was based upon the Plaintiff’s sex in that Plaintiff would not have been
the object of discrimination but for the fact that Plaintiff is a gay male.
73. Defendant’s conduct complained of herein was willful and in disregard of Plaintiff’s protected
rights. Defendant and its supervisory personnel were aware that discrimination on the basis of sex was
unlawful but acted in reckless disregard of the law.
74. At all times material hereto, the employees exhibiting discriminatory conduct towards Plaintiff
possessed the authority to affect the terms, conditions, and privileges of Plaintiff’s employment with
Defendant.
75. Defendant retained all employees who exhibited discriminatory conduct toward Plaintiff and
did so despite the knowledge of said employees engaging in discriminatory actions.
76. As a result of Defendant’s actions, as alleged herein, Plaintiff has been deprived of rights, has
been exposed to ridicule and embarrassment, and has suffered emotional distress and damage.
77. The conduct of Defendant, by and through the conduct of its agents, employees, and/or
representatives, and Defendant’s failure to make prompt remedial action to prevent continued
discrimination against Plaintiff, deprived Plaintiff of statutory rights under federal law.
9
78. The actions of Defendant and/or its agents were willful, wanton, and intentional, and with
malice or reckless indifference to Plaintiff’s statutorily protected rights, thus entitling Plaintiff to
damages in the form of compensatory and punitive damages pursuant to federal law, to punish the
Defendant for its actions and to deter it, and others, from such action in the future.
79. Plaintiff has suffered and will continue to suffer both irreparable injury and compensable
damages as a result of Defendant’s discriminatory practices unless and until this Honorable Court
grants relief.
WHEREFORE, Plaintiff respectfully prays for the following relief against Defendant:
a. Adjudge and decree that Defendant has violated Title VII, and has done so willfully,
intentionally, and with reckless disregard for Plaintiff’s rights;
b. Enter a judgment requiring that Defendant pay Plaintiff appropriate back pay, benefits
adjustment, and prejudgment interest at amounts to be proved at trial for the unlawful
employment practices described herein;
c. Enter an award against Defendant and award Plaintiff compensatory damages for mental
anguish, personal suffering, and loss of enjoyment of life;
d. Require Defendant to reinstate Plaintiff to the position at the rate of pay and with the full
benefits Plaintiff would have had Plaintiff not been discriminated against by Defendant, or in
lieu of reinstatement, award front pay; award Plaintiff the costs of this action, together with a
reasonable attorney fees; and,
e. Grant Plaintiff such additional relief as the Court deems just and proper under the
circumstances.
COUNT V
Hillsborough County Human Rights Ordinance

10
81. Hillsborough County Ordinance 30-22 states in relevant part:
(1) Employers. It is a discriminatory practice for an employer to:
a. Fail or refuse to hire, discharge, or otherwise discriminate against an individual

with respect to compensation, terms, conditions, or privileges of employment
because of race, color, religion, national origin, sex, age, marital status, disability,
sexual orientation, or gender identity expression; or
b. Limit, segregate, or classify an employee or applicant for employment in a way

which would deprive or tend to deprive, limit, or adversely affect an individual's
employment opportunities or status as an employee on the basis of race, color,
religion, national origin, sex, age, marital status, disability, sexual orientation, or
gender identity or expression.
incorporated herein, was the result of Plaintiff’s sexual orientation, which heterosexual individuals
were not and would not have been subjected, in violation of Hillsborough County’s Human Rights
Ordinance.
Plaintiff’s constructive termination, which reasons it does not have, Plaintiff’s sexual orientation was
also a motivating factor for Defendant’s adverse conduct toward Plaintiff and Plaintiff’s constructive
termination.
85. As a result of Defendant’s willful and malicious discriminatory actions based on his sexual
orientation, Plaintiff has experienced and will continue to experience significant financial and
economic loss in the form of lost wages and lost benefits. Plaintiff has also experienced and will
continue to experience emotional anguish, pain and suffering and loss of dignity damages. Plaintiff
accordingly demands lost economic damages in the form of back pay and front pay, interest, lost
benefits, compensatory damages, and attorney’s fees and costs.
COUNT VI
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City of Tampa Human Rights Ordinance
87. City of Tampa Ordinance 12-26 states in relevant part:
(a) Employers. It is an unlawful employment practice for an employer:
(1) To fail or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to that individual's
compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, national origin, sex, sexual
orientation, gender identity or expression, age, disability, familial status or
marital status; or
(2) To limit, segregate, or classify employees or applicants for employment in

any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect that individual's
status as an employee, because of such individual's race, color, religion,
national origin, sex, sexual orientation, gender identity or expression, age,
disability, familial status or marital status.
incorporated herein, was the result of Plaintiff’s sexual orientation, which heterosexual individuals
were not and would not have been subjected, in violation of the City of Tampa’s Human Rights
Ordinance.
Plaintiff’s constructive termination, which reasons it does not have, Plaintiff’s sexual orientation was
also a motivating factor for Defendant’s adverse conduct toward Plaintiff and Plaintiff’s constructive
termination.
91. As a result of Defendant’s willful and malicious discriminatory actions based on his sexual
orientation, Plaintiff has experienced and will continue to experience significant financial and
12
economic loss in the form of lost wages and lost benefits. Plaintiff has also experienced and will
continue to experience emotional anguish, pain and suffering and loss of dignity damages. Plaintiff
accordingly demands lost economic damages in the form of back pay and front pay, interest, lost
benefits, compensatory damages, and attorney’s fees and costs.
JURY DEMAND
Plaintiff demands trial by jury of all issues triable as of right by jury.
Dated: December 20, 2017
/s/ April S. Goodwin

APRIL S. GOODWIN, ESQ.
FLORIDA BAR NO: 0502537
The Goodwin Firm
801 West Bay Drive, Suite 705
Largo, FL 33770
Attorney for Plaintiff
Phone: (727) 316.5333
april@goodwin-firm.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been electronically
filed with the Clerk of Court this 20th day of December 2017, by using the CM/ECF system which
will send notice of electronic filing to all parties of record.
/s/ April S. Goodwin

APRIL S. GOODWIN, ESQ.
FLORIDA BAR NO: 0502537
The Goodwin Firm
801 West Bay Drive, Suite 705
Largo, FL 33770
Attorney for Plaintiff
Phone: (727) 316.5333
april@goodwin-firm.com
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Case 8:17-cv-02959-EAK-AAS Document 8-1 Filed 12/20/17 Page 1 of 2 PageID 103
EXHIBIT A
EXHIBIT B

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Case 8:17-cv-02959-EAK-AAS Document 8 Filed 12/20/17 Page 1 of 13 PageID 90

UNITED STATES DISTRICT COURT

FIRST AMENDED COMPLAINT

NATURE OF THE ACTION

Rights Ordinance and the City of Tampa Human Rights Ordinance.

provisions of the Rehabilitation Act of 1973 29 U.S.C. §§ 701 et seq.

3. At all relevant times, Plaintiff was an employee or employment applicant of Defendant.

\with a place of business in Tampa, Hillsborough County, Florida.

6. Defendant is engaged in administration of veterans’ health care coverage.

7. At all relevant times, Defendant employed more than 75 people.

JURISDICTION AND VENUE

of interests and costs.

occurred within the Middle District of Florida, specifically, Tampa, Florida.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

is permitted to proceed to court on his claims.

copy of which is attached hereto as “Exhibit B.”

filing this cause of action.

Obsessive Compulsive Disorder (“OCD”) for which he undergoes treatment.

Jason Gondelman (“Gondelman”).

and bringing up Plaintiff’s sexual orientation.

in a certain order or coded with certain colors.

25. In late 2016, Plaintiff applied for a promotion to Operations Manager.

the position of Operations Manager.

Center Director for Defendant’s Tampa location.

mannerisms and hand gestures.

company and told Plaintiff he needed to change his personality.

regarding the above unfair treatment.

Gondelman, but no further action was taken.

of time from work.

Plaintiff’s allegations regarding same.

working for Defendants.

38, and incorporates same as if fully restated herein.

decision to fail to promote him in or about December 2016.

in violation of the Rehabilitation Act of 1973.

compensatory and liquidated damages against Defendant.

46. Defendant’s denial of Plaintiff’s promotion to Operations Manager was an adverse

because of the disability.

49. As a direct and proximate consequence of Defendant’s unlawful and discriminatory

attorney’s fees and costs, all to be specified at trial.

38, and incorporates same as if fully restated herein.

Obsessive Compulsive Disorder.

56. Defendant is an employer as that term is defined under the ADA.

towards him on the basis of his disability.

58. As a result of Defendant’s violations, Plaintiff has suffered damages.

in care that it constitutes a conscious disregard or indifference to the rights of Plaintiff.

just and proper under the circumstances.

38, and incorporates same as if fully restated herein.

63. Section 760.10 of the FCRA states in relevant part:

(1) It is an unlawful employment practice for an employer:

(a) To discharge or to foil or refuse to hire any individual, or otherwise to

64. The FCRA accordingly prohibits discrimination based on sex.

and would not have been subjected, in violation of the FCRA.

damages, and attorney’s fees and costs.

38, and incorporates same as if fully restated herein.

70. Plaintiff is a member of a protected class under Title VII.

unlawful but acted in reckless disregard of the law.

did so despite the knowledge of said employees engaging in discriminatory actions.

intentionally, and with reckless disregard for Plaintiff’s rights;

employment practices described herein;

anguish, personal suffering, and loss of enjoyment of life;

reasonable attorney fees; and,

38, and incorporates same as if fully restated herein.

81. Hillsborough County Ordinance 30-22 states in relevant part:

(1) Employers. It is a discriminatory practice for an employer to: