johnson v. melton truck lines, inc., 14-cv-07858 third amended complaint (public nuisance) 050916

8/17/2019 Johnson v. Melton Truck Lines, Inc., 14-cv-07858 THIRD AMENDED COMPLAINT (PUBLIC NUISANCE) 050916

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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 RAGAN, )

GREAT WEST CASUALTY COMPANY, )

TANYA JENSEN, BLANE J. BRUMMOND )

and Unknown Defendants, )

DEFENDANTS. ) **JURY DEMANDED**

**THIRD AMENDED**VERIFIED COMPLAINT AT LAW

NOW COMES, Plaintiff DAVID JOHNSON individually 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

RAGAN (“Ragan”), 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, LLC’s (“Conexus”) customers. This

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

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 1 of 207 PageID #:1273


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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

Plaintiff’s 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”), the Fair Labor Standards Act (“FLSA”), Surface

Transportation Assistance Act (STAA), 49 U.S.C. §31105, 29 U.S.C. §1132 (“ERISA”),

and the Americans With Disabilities Act (ADA) of 1990 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 states and alleges that the parties are completely diverse therefore

this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.

4. Plaintiff states and alleges that Defendant Dargel has disclosed in writing

Plaintiff’s net compensation of $1.20 cents per mile or $725 accruing each day or

$758,350 of lost profits in the 1,046 days between the filing of this Complaint and June

12, 2013. Plaintiff has accordingly suffered legally cognizable damages in an amount

exceeding the $758,350, 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. Plaintiff states and alleges that Defendant Melton operates across state lines

into Illinois for the purpose transportation of property to and from its customers in Illinois at

all times relevant herein.

6. 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 to

and from its customers in Illinois.1

7. Plaintiff on information and belief states that Defendants Melton, Peterson,

and others at their direction had knowledge of its duly authorized RoadRecruiter(s) who at

http://www.thetruckersreport.com/truckingindustryforum/threads/melton-road-

recruiters.240153/ state “I was one. You basically just talk to drivers on the road and try to

get them to Melton” which occurred in Illinois on more than seven (7) occasions leading to

Defendant Melton hiring and employing at least seven (7) Drivers, such as Plaintiff from its

hiring area identified as Illinois.

8. Plaintiff on information and belief states that commencing on January of 1986

and at all times thereafter a representative of Defendant Melton has approached Drivers in

Illinois for the purpose of rendering transportation services to its customers in Illinois and

soliciting applications from Drivers in Illinois to perform the transportation services for

customers to and from Illinois.

9. Plaintiff states and alleges that Defendants Melton acting by and through its

duly authorized employees and/or agents made the telephone call into Illinois to Plaintiff in

order to initiate the hiring process and solicit the services of Plaintiff a resident of Illinois.


duly authorized employees and/or agents made the telephone call into Illinois to Plaintiff in

order to initiate the hiring process and solicit the services of Plaintiff a resident of Illinois

they discussed among other things compensations, benefits, home-time, training, and

likewise.

1 CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263-67 (6th Cir. 1996)(holding that contacts andcontracts negotiated through the Internet with a party in a different state were sufficient to grant personal jurisdiction in that state); Logan Prod., Inc. v. Optibase, Inc., 103 F.3d 49, 52 (7th Cir.1996); Kuenzlev v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453, 455 (10th Cir. 1996);Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1996); Verotex Certainteed Corp.v. Consolidated Fiber Glass Product Co., 75 F.3d 147, 150 (3rd Cir. 1995); Wilson v. Belin, 20 F.3d644, 647 (5th Cir. 1994).



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duly authorized employees and/or agents made the telephone call into Illinois to Plaintiff at

which time an offer was made and accepted by Plaintiff in Illinois.

12. Plaintiff states and alleges that Defendant Melton hired Plaintiff from its

hiring area in Illinois and he completed his post-hire orientation in Ohio.


duly authorized employees and/or agents advertised or solicited business in Illinois to which

on more than seven (7) occasions at least seven (7) Drivers, such as Plaintiff from its hiring

area identified as Illinois rendered services on behalf of Defendant Melton to its customer in

Illinois.

14. Plaintiff states and alleges that he has been injured in Illinois2 by the unlawful

conduct of Defendants Melton, Peterson, Dargel, Ragan, and Williams each of them as

described in this Complaint.

15. Plaintiff states and alleges that in Effingham, Illinois he received the telephone

call from Defendant Williams who terminated Plaintiff in Illinois and Defendants threaten to

call the law enforcement in Illinois because Plaintiff had refused to continue working

without pay and with his injured left hand.

16. Plaintiff states and alleges that Defendants knew or should have known that

Plaintiff would receive the telephone call terminating him in Illinois because he was located

at the Illinois border and en-route to Illinois while off-duty for leave that was provided to

Defendant approximately six (6) weeks in advance in the manner as agreed to by the parties.

17. Plaintiff states and alleges that asserts his termination was in violation of the

public policy of Illinois3 and Defendants already travels to Illinois for the purpose of

repeatedly litigating non-arbitrable issue(s), including but not limited to the “Ohio Bureau of

Workers’ Compensation Employer/Employee Agreement to Select a State Other than Ohio

as the Exclusive Remedy for Workers’ Compensation Claim” form before the Illinois

Workers’ Compensation Commission (“IWCC”).

2 See Illinois v. Milwaukee, 599 F.2d 151 (7th Cir. 1979)(“‘a tort is committed in the place wherethe injury occurs’” quoting McBreen v. Beech Aircraft Corp., 543 F.2d 26, 28 (7th Cir. 1976)).

3 See 820 ILCS 305/1, et seq.



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18. Plaintiff states and alleges that the wrongful termination claim, public

nuisance, and private nuisance are so interrelated with Plaintiff’s causes of action under the

Lanham Act, STAA, ERISA, and ADA this Court has “under the doctrine of pendent

jurisdiction”4 over Plaintiff’s causes of action arising from the same factual circumstances,

events, and transactions as described in this Complaint.

19. This Court has supplemental jurisdiction over Plaintiff’s causes of action

under Illinois law arising from the same factual circumstances, events, and transactions

pursuant to 28 U.S.C. §1367.

20. 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; the payment

for the ERISA Plan was to be received by Plaintiff in the Northern District, as a result

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

within the Northern District of Illinois.

ADMINISTRATIVE PROCEDURES

21. 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. 5

PARTIES

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

Illinois at all times relevant herein.

23. 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

4 Scovill Mfg. Co. v. Dateline Elec. Co., 461 F.2d 897, 899 (7th Cir.1972).

5 For a description of the IDHR and EEOC’s workshare agreement, see Sofferin v. American Airlines, Inc., 923 F.2d 552 (7th Cir.1991).



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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 in Illinois by the other Defendants complained of herein.

24. Defendant Melton is the sponsor of 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.

25. Defendant Williams is believed to be a citizen and resident of Tulsa, in the

State 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 by

Defendant Melton in Illinois.

26. 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

by Defendant Melton in Illinois. Defendant Dargel is the Plan Administrator as that term is

defined by ERISA and is responsible for making and/or implementing policies and practices

applied by Defendant Melton with regard to the Plan in Illinois.

27. Defendant Ragan 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 Ragan is the Plan Administrator as that term is defined by ERISA and

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

Melton with regard to the Plan in Illinois.



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28. 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 by Defendant

Melton in Illinois.

29. 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 in Illinois

by the other Defendants complained of herein.

30. 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 claim’s

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

by Defendant Great West in Illinois.

31. 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

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

for making and/or implementing policies and practices used by Defendant Great West in

Illinois.



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32. 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

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

disseminated and caused others to disseminate across state lines into Illinois 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”.

34. 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”.

35. Defendant Melton corporate website; Defendant Melton You Tube® video

featuring Defendant Peterson; and the commercial advertisement disseminated across state

lines as described in Exhibit A attached hereto and incorporated herein by reference and

caused others to disseminate this commercial advertisement into interstate commerce that

Defendant Melton alleged Wages ranked in the Top 1%.

36. Plaintiff states and alleges that it can be proven mathematically Defendants

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 “ Melton Employee Handbook-Trip

Planning” marked as Exhibit B and incorporated herein by reference thereto.

37. Plaintiff states and 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.



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38. Plaintiff states and alleges 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.

39. For Judicial Notice pursuant to Rule 201(b) of the Federal Rules of Evidence,

Plaintiff states and alleges that the 70 hour work week is readily verifiable by the general

public at https://www.fmcsa.dot.gov/regulations/title49/section/395.3.


Plaintiff states and alleges that the Richard Schumann - Department of Labor Statistics at

http://www.bls.gov/opub/mlr/cwc/work-schedules-in-the-national-compensation-survey.pdf

states: “The number of weeks worked per year is 52”.


Plaintiff states and alleges that Defendants Melton, Peterson, and recruit and hire annually

approximately 1,000 Drivers such as Plaintiff is readily verifiable by the general public at

http://safer.fmcsa.dot.gov/query.asp?searchtype=ANY&query_type=queryCarrierSnapshot

&query_param=USDOT&original_query_param=NAME&query_string=34666&original_q

uery_string=MELTON TRUCK LINES INC.

42. 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.

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

worked by Drivers, such as Plaintiff including but not limited to: off-duty time 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.

44. 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



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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.

45. 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, tir es, etc. on the truck each morning; (b) driving to the shipper’s 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

receiver’s site; and (f) cleaning up truck and refueling at truck at the day’s (collectively

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

Motor Carrier Agreement ” marked as Exhibit C and incorporated herein by reference.

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

agreements cannot be accomplished without the use of 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 into Illinois in the flow of and

substantially affect interstate commerce as described above.

47. Defendant Melton decision, policy, plan, and common policies, programs,

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

pay,” and “on-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 Melton Employee Handbook marked as Exhibit B and incorporated herein by

reference thereto.

48. Plaintiff has based upon the claim of “high” pay by Defendant Melton applied

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

corporate website and accepted the offer of employment initiated by Defendant Melton on

the telephone to Plaintiff while he was in Illinois not Ohio, Oklahoma, Alabama, or any

other state.



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49. 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 for the reasons 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.

50. 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 Melton 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 “high” pay 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.

53. Plaintiff states and alleges that pursuant to prior agreement by the parties of

electronically sending a flag via Marco 27 as stated in Defendant Melton Employee

Handbook he actually sent it on or about May 1, 2013.

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

Melton from its hiring area in Chicago, Illinois.

55. 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



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

had previously complained of unpaid Wages; and (c) Plaintif f had “stolen” the commercial

motor vehicle while en-route home to Illinois

56. Plaintiff states and alleges that Defendant Melton has agreed to provide

benefits to Plaintiff in the event he became injured due to a work-related accident or injury.

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

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

related accident or injury.

58. 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 Features” to 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

“ Melton Injury Benefit Plan’s Form 5500” for the tax year ended December 31, 2012

marked as Exhibit D and incorporated herein by reference thereto.

59. At all relevant times herein, ERISA 29 U.S.C. § 1002(1) in relevant part states:

“(1) The terms ‘employee welfare benefit plan’ and ‘welfare plan’ mean any plan, fund, or program which was heretofore or is hereafter established or

maintained by an employer or by an employee organization, or by both, to theextent that such plan, fund, or program was established or is maintained forthe 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 ofsickness, accident, disability, death or unemployment, or vacation benefits . . .”


“(5) The term ‘employer ’ means any person acting directly as an employer, or

indirectly in the interest of an employer, in relation to an employee benefit plan; and includes a group or association of employers acting for an employerin such capacity.”


“(6) The term ‘employee’ means any individual employed by an employer. “




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“(7) The term ‘ participant’ means any employee or former employee of anemployer, or any member or former member of an employee organization,who is or may become eligible to receive a benefit of any type from anemployee benefit plan which covers employees of such employer or membersof such organization, or whose beneficiaries may be eligible to receive anysuch benefit.”


“(8) The term ‘ beneficiary’ means a person designated by a participant, or bythe terms of an employee benefit plan, who is or may become entitled to a benefit thereunder.”

64. During the time of Plaintiff Johnson’s 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 Other benefits for his injury or accident,

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

Group Policy.

65. 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.66. 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”).

67. 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.

68. 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.

69. 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.



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70. 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

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

while working for Defendant Melton on May 3, 2013.

71. On June 12, 2013, Plaintiff’s 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.

72. 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.

73. 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”.

74. On or about, July 5, 2013, Defendant Melton has received a copy of Plaintiff’s

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

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

forwarded a copy of Plaintiff’s disability claim that it received from the State of Illinois to

Defendant Melton Injury Benefit Plan.

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

Injury Benefit Plan forwarded a copy of Plaintiff’s disability claim to its insurer Defendant

Great West.

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

to identify Plaintiff’s disability claim sent by the State of Illinois and received from its

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

78. 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 Plaintiff’s

claim for benefits under the Group Policy.



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79. 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.”

80. 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.

81. 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 Plaintiff’s disability claim. To date, Mr. Carlson defense has not

provided Plaintiff Johnson or his counsel any documents as requested.

82. 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

Labor – Compliance Division ((334) -353-0515) that Defendant Melton has denied coverage

of Plaintiff’s disability claim in Alabama.

83. 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 Plaintiff’s disability claim in

Oklahoma.

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

Defendant Melton and Defendant Great West have denied coverage of Plaintiff’s 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.

85. 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.

86. 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 Plaintiff’s disability

claims was settled by June 12, 2014.

87. 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.

88. On or about June 4, 2014, Defendant Melton received a copy of Plaintiff’s

disability claim from State of Ohio.

89. On June 17, 2014, Defendant Melton denied Plaintiff ’s 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”.

90. 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.”

91. On June 17, 2014, Defendant Melton denied Plaintiff’s disability claim

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.”

92. On June 17, 2014, Defendant Melton denied Plaintiff’s disability claim

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”.

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

Defendants Melton, Peterson, Dargel, Ragan, 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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94. Plaintiff as stated in the Plan insured by Group Policy it does not provide

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

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

determination related to Plaintiff.

95. 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.

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

and Brummond each of them have unilaterally denied Plaintiff’s disability claim under the

Plan insured by Group Policy asserting that Plaintiff’s claim is not covered because the

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

“exclusive” jurisdiction of Ohio.

97. 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 Plaintiff’s claim is not covered because the

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

“exclusive” jurisdiction of Ohio.

98. 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.

99. 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.

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

Commission the Record of Proceedings (“Ohio Arbitration Award) denying that Plaintiff’s

disability claim was covered by the “exclusive” jurisdiction of Ohio and not the Plan insured

by Group Policy.

101. 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.

102. 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.

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

to inquire from Plaintiff or Plaintiff’s former attorneys whether Plaintiff Johnson needed any

accommodations to assist him in performing his job.

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

termination on June 12, 2013, while on leave.

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

“Driver Manager” at Defendant Melton with or without a reasonable accommodation at all

times since June 12, 2013 as described on Defendant Melton 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 Exhibit E and

incorporated herein by reference.

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

Ragan, Great West, and Brummond have not engaged Plaintiff Johnson or Plaintiff’s 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.

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

Manager following the injury to Plaintiff’s left hand.

108. 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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109. 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.

110. 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.

111. 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 Plaintiff’s disability claim.

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

hearing Plaintiff’s 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.

113. 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 Plaintiff’s contract for hire occurred in Ohio instead 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.

114. 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.

115. 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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116. 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

117. 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 33-116.

118. Plaintiff states and alleges that Defendant Melton claims of study found that

its “high” pay in the top 1% is false, misleading, or confusing to Plaintiff as a Driver who

Defendants Melton and Peterson failed to compensate him for all time worked paid, as

described above.

119. At all times relevant herein, Plaintiff Johnson as a Driver 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).

120. 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

approximately $25.00 per hour.

121. Plaintiff Johnson states and alleges that no study6 exists proving Defendant

Melton claims of “high” pay in the top 1% and is entitled to payment from Defendants

Melton, Peterson, and others at their direction for non-drive time as provided for by clearly

established federal7 law on June 12, 2013 and at all times relevant herein.

6 See, e.g., Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of PodiatricSurgery, 185 F.3d 606, 613 (6th Cir. 1999) SmithKline Beecham Consumer Healthcare L.P., 131F.3d 430, 435 (4th Cir. 1997); Rhone-Poulenc Rorer Pharms. Inc. v. Marion Merrell Dow, Inc., 93F.3d 511, 514-15 (8th Cir. 1996); Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62 (2d Cir.1992)).7 See Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721, 725 (5th Cir. 1961)(quoting

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946)).



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123. 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. Carrier’s rates and charges cannot be increased, nor

deviated from regarding particular shipments, without CONEXUS’ express written consent

prior to Carrier’s 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 acknowledges and agrees that payment

of all rates and charges is ultimately the obligation of CONEXUS’s customers, not

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

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

collected.”

124. 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.

125. Defendant Melton 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.

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

the Master Motor Carrier Agreement not billed Conexus’s customers for Plaintiff’s non-

drive time except as stated in the Agreements.

127. 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 Conexus prior to the “movement of the

freight in question.”

128. 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



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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.

129. 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.

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

Conexus’s customers who did not pay him previously for his non-drive time.

131. 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.

132. 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.

133. 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.

134. 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 (“PDA’s”), such as BlackBerry, or the



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

receiving any compensation for such hours.

135. 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 Conexus’s

customers without compensation.

136. 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.

137. 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.

138. 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.

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

Peterson, or others at their direction but for his reliance on the promises of “high” pay when

$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).



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140. Plaintiff states and alleges that Master Motor Carrier Agreement between

Defendants Melton, Peterson, and Conexus for the purpose of transporting freight in

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.

141. 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.

142. As more fully described above, Plaintiff states and alleges that Defendant

Melton has profited from luring Plaintiff as Driver in the amount stated as follows:

Melton Truck Lines, Inc.

Schedule of Loss

For the period ending December 31, 2015

Description 12/31/2010 12/31/2011 12/31/2012 12/31/2013 12/31/2014 12/31/2015

Melton's Drive Time Wages Hourly CPM:

Melton's "Trip Planning/En Route" (MPH)(See Ftn.1) 50 50 50 50 50 5

Melton's CPM (See Ftn. 2) $0.40 $0.40 $0.40 $0.40 $0.40 $0

Melton's Drive Time Wages Hourly $20.00 $20.00 $20.00 $20.00 $20.00 $21.5

Melton's Non-Drive Time Hourly:

Melton's Non-Drive Time Wages Hourly (See Ftn. 2) $25.00 $25.00 $25.00 $25.00 $25.00 $25.0

Melton Driver's Avg Hourly Rate of Basic Pay $22.50 $22.50 $22.50 $22.50 $22.50 $23

Schedule of Annual Hours (70hours x 52weeks)(See Ftn. 3) 3,640 3,640 3,640 3,640 3,640 3,64

Estimate Annual Driver Pay $81,900.00 $81,900.00 $81,900.00 $81,900.00 $81,900.00 $84,630

Less: Melton's Annual Salary Paid (See Ftn. 2) (50,000.00) (50,000.00) (50,000.00) (50,000.00) (50,000.00) (60,000.0

Driver Unpaid Wages (Diff) $31,900.00 $31,900.00 $31,900.00 $31,900.00 $31,900.00 $24,630

#Employees (See Ftn. 4) 1,000 1,000 1,000 1,000 1,000 1,04

Total Loss 31,900,000.00$ 31,900,000.00$ 31,900,000.00$ 31,900,000.00$ 31,900,000.00$ 25,787,610.0$

References:

1. Insurance Institute for Highway Safety (IIHS) and State Highway Safety Offices.

2. https://meltontruck.com/drivers.php

3. http://www.bls.gov/opub/mlr/cwc/work-schedules-in-the-national-compensation-survey.pdf and https://www.fmcsa.dot.gov/regulations/title49/section/395.3

4. http://safer.fmcsa.dot.gov/query.asp?searchtype=ANY&query_type=queryCarrierSnapshot&query_param=USDOT&original_query_param=NAME&query_string=34666&original_query_string=MELTON TRUCK LINES INC

143. 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.



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

Plaintiff’s final paycheck “unauthorized miles” and “truck recovery” charges in the amount

of -$1,162.00, 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.

145. Plaintiff states and alleges that Defendants Melton and Peterson subjected

Plaintiff to damages including but not limited to loss wages by among other things allowing

Defendant Peterson his employment at Defendant Melton while he made false, misleading,

or confusing to Plaintiff as a Driver who Defendants Melton and Peterson failed to

compensate him for all time worked paid, as described above.

146. As more fully described above, Plaintiff states and alleges that by allowing

Defendant Peterson, Dargel, and Williams to continue their employment at Defendant

Melton without corrective action Defendant Melton knew or should have known that

Defendants Peterson, Dargel, and Williams each of them would violate the Lanham Act,

FLSA, and Illinois law leading to the harm suffered by Plaintiff in Illinois as described

above.

147. As more fully described above, 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 and at all times

relevant herein.

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

described above, including but not limited to Defendant Melton’s manifest false, misleading,

or confusing claim of “high” pay in a study; the failure to pay for non-drive time worked;

the 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



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employee benefits (collectively lost “Wages”) to his damage in excess of $758,350.00 with

an amount to be established at trial.

149. 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 Melton acts in violation of 15 U.S.C. § 1125(a) in an

amount to be established at trial in excess of $31,000,000.00, exclusive of attorneys’ fees,

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

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

attorneys’ fees and costs pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15, 15 U.S.C.

§ 1117, and 15 U.S.C. § 1125(a).

151. Plaintiff does not have any agreement or understanding with Defendants

Melton, Peterson, or any other person(s) for the payment of minimum wage or overtime.

152. Plaintiff requests relief as described in the Prayer for Relief below.

COUNT II

CLAIM FOR BENEFITS PURSUANT TO ERISA § 502, ERISA §510, AND 29

U.S.C. § 1132(a)

153. 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 33-116.

154. At all times relevant herein, Plaintiff states and alleges that as an employee of

Defendant Melton he is entitled to the “medical, surgical, or hospital care or benefits, or

benefits in the event of sickness, accident, disability, death or unemployment, or vacation

benefits” provided by Defendant Melton Injury Benefit Plan, as described above.

155. At all relevant times herein, Plaintiff states and alleges that as an employee of

Defendant Melton he is entitled to the “medical, surgical, or hospital care or benefits, or

benefits in the event of sickness, accident, disability, death or unemployment, or vacation



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benefits” provided by Defendant Melton Injury Benefit Plan and fully insured by a contract

of insurance issued by Defendant Great West.8

156. On May 5, 2013, Plaintiff in writing submitted a claim for benefits under

Defendant Melton Injury Benefit Plan and Defendant Melton, Defendant Melton Injury

Benefit Plan have directed Plaintiff’s claim to Defendant Great West, Defendants Jensen

and Brummond who denied the claim stating that the Plan provides benefits only to office or

administrative staff as defined under the Plan not Drivers, such as Plaintiff.

157. On June 12, 2013, Plaintiff states and alleges that Defendant Dargel acting on

behalf of Defendant Melton Injury Benefit Plan has stated in writing that Plaintiff does not

qualify for benefits under the Plan because he was terminated by Defendant Melton

pursuant to an unwritten “job-abandonment” policy.9

158. On June 12, 2013 and at all times relevant herein, Plaintiff states and alleges

that he requested a copy the insurance policy between Defendants Melton, Defendant

Melton Injury Benefit Plan from Defendants Melton, Great West, Jensen, and Brummond,

Defendants Melton, Great West, Jensen, and Brummond each of them have failed to provide

Plaintiff with a copy of it, Defendants Melton, Defendant Melton Injury Benefit Plan,

Dargel, Ragan, Great West, Jensen, and Brummond each of them have failed to provide a

copy of the Plan document and concealed the existence of the Plan from Plaintiff.

159. Plaintiff states and alleges that Section 502(a)(1)(B), 29 U.S.C. § 1132(a) in

relevant part states:

“A civil action may be brought —

(1) by a participant or beneficiary —

(A) for the relief provided for in subsection (c) of this section, or

(B) to recover benefits due to him under the terms of his plan, to enforce hisrights under the terms of the plan, or to clarify his rights to future benefits

under the terms of the plan . . .”

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

9 Salus v. GTE Directories Serv. Corp., 104 F.3d 131, 135 (7th Cir.1997).



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160. Plaintiff states and alleges that 29 U.S.C. § 1140, in relevant part states: “It

shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or

discriminate against a participant or beneficiary for exercising any right to which he is

entitled under the provisions of an employee benefit plan . . . or for the purpose of

interfering with the attainment of any right to which such participant may become entitled

under the plan . . . . The provisions of section 1132 of this title shall be applicable in the

enforcement of this section.”

161. At all relevant times herein, Plaintiff states and alleges that the terms of

Defendant Melton Injury Benefit Plan and its Group Policy are:

Sec. 1(b)(2) The term “employee” means:

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 employer’s 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 bysaid 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 second physician, surgeon or hospital subsequently chosen by the employee or by anyother physician, consultant, expert, institution or other provider of servicesrecommended 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 of

medical 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 as



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long 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 employee’s 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 FairLabor Standards Act, or the Illinois minimum wage under the Minimum WageLaw, whichever is more, multiplied by 40 hours. This incapacity under this paragraph (b) of this Section shall be equal to 66 2/3% of the employee’saverage 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. This

percentage 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 provisionsof 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 employee’s average weekly wagecomputed in accordance with the provisions of Section 10, provided that it

shall be not less than 66 2/3% of the sum of the Federal minimum wage underthe Fair Labor Standards Act, or the Illinois minimum wage under theMinimum Wage Law, whichever is more, multiplied by 40 hours. This percentage 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 provisionsof Section 10, whichever is less.

Sec. 10. The compensation shall be computed on the basis of the“Average weekly wage” which shall mean the actual earnings of the employee

in 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 pay period 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 beendeducted. Where the employment prior to the injury extended over a period ofless than 52 weeks, the method of dividing the earnings during that period by



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the 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 or

disablement 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.

162. On May 5, 2013, Plaintiff has sustained injuries to his left-hand as the result ofa fall while at work as described above and he has submitted a timely claim for benefits

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

163. 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.

164. At all times relevant herein, Plaintiff as an employee of Defendant Melton he

was a beneficiary and participant under the terms of Defendant Melton Injury Benefit Plan

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

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

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

165. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,

Dargel, Ragan, Defendant Great West, Defendants Jensen and Brummond each of them

have failed to comply with the terms of the Plan and apply the law in effect at the time of

Plaintiff’s claim leading to the denial of the benefits due to Plaintiff under the terms of the

Plan; and his rights to future benefits under the terms of the Plan, as described above.



state that Defendant Melton Injury Benefit Plan requires continued employment after



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disability in order for a disabled participant to maintain eligibility for disability benefits

after a participant incurs a covered disability.



instituted and applied unwritten “job-abandonment” policy to prevent injured employees

from participation benefit plans so as to reduce the amount of money the Plan spent on its

health care and disability benefit plans.

168. Plaintiff states and alleges that Defendants Dargel and Ragan on behalf on

Defendant Melton Injury Benefit Plan state that Defendant Melton Injury Benefit Plan only

covers the administrative staff and not Drivers, such as Plaintiff.

169. Plaintiff was terminated before he had received his benefits under Defendant

Melton Injury Benefit Plan and insurance arrangement with Defendant Great West.



subjected Plaintiff to loss benefits by among other things allowing Defendants Dargel and

Ragan on behalf of Defendant Melton Injury Benefit Plan to prevent injured employees

from participation benefit plans as described above.

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

Melton, Melton Injury Benefit Plan, Dargel, Ragan, 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 by the Plan.

172. Plaintiff states and alleges that by allowing Defendants Peterson, Dargel,

Ragan, Jensen, and Brummond to continue their operation of Defendant Melton Injury

Benefit Plan and the insurance arrangement without corrective action Defendant Melton

Injury Benefit Plan knew or should have known that Defendants Melton, Melton Injury

Benefit Plan, Dargel, Ragan, Great West, Defendants Jensen and Brummond each of them

would violate ERISA, federal law, and Illinois law leading to the harm suffered by Plaintiff

as described above.



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173. As a direct result of conduct described herein by Defendant Melton Injury

Benefit Plan including but not limited to after learning of its violation of Plaintiff’s ERISA

rights failed to take corrective action, Defendant Melton Injury Benefit Plan’s manifest

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

continues to suffer harm including but not limited to the loss of benefits in excess of

$758,350 with an amount to be determined by a jury and the Court, as well as, reasonable

attorneys’ fees and costs pursuant to ERISA.

174. On August 15, 2014, Plaintiff has exhausted the Plan’s administrative appeals

process and the “dispute” over his disability claim was arbitrated in Ohio at the demand of

the Plan without a change thereafter in Defendants’ position on the disability benefits.

175. 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 Melton Benefit Plan, Dargel, Great West, Jensen, and Brummond

each of them continue uphold its decision to deny Plaintiff’s disability claim and as a result

he has not received disability payments or medical treatment.

176. Plaintiff states and alleges that if his ERISA claim is not resolved following

the arbitration and/or in written response to Section 502(a)(1)(B), 29 U.S.C. § 1132(a)

above, Defendants Melton, Peterson, Dargel, Ragan, Williams, Great West, Jensen,

Brummond, and Melton Injury Benefit Plan either singly or jointly may invoke the

administrative appeals process in the Plan, including an expedited or streamlined appeal.

177. Plaintiff states and alleges that the administrative appeals process in the Plan

may be initiated by Defendants Melton, Peterson, Dargel, Ragan, Williams, Great West,

Jensen, Brummond, and Melton Injury Benefit Plan either singly or jointly, or by the Plan

on behalf of employees.

178. Plaintiff states and alleges that Defendants Melton, Peterson, Dargel, Ragan,

Williams, Great West, Jensen, Brummond, and Defendant Melton Injury Benefit Plan each

of them have failed to initiate the administrative appeals process in the Plan for the

processing, and final disposition of the appeal as described above.

179. Plaintiff requests relief as described in the Prayer for Relief below.



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COUNT III

BREACH OF FIDUCIARY DUTY –

PURSUANT TO ERISA § 502(a)(3), AND 29 U.S.C. § 1132(a)(3)

180. 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 33-116.

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

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.10

182. At all relevant times herein, as described above Defendant Ragan is the

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

Defendant Melton Injury Benefit Plan has designated Defendant Ragan as its Plan

Administrator.

183. Defendant Ragan is a fiduciary with respect to Defendant Melton Injury

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

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

Melton 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 Ragan had discretionary authority and or discretionary

responsibility in the administration of Melton Injury Benefit Plan.

184. Defendant Dargel is a fiduciary with respect to Defendant Melton Injury

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

discretionary authority and/or discretionary control with

johnson v. melton truck lines, inc., 14-cv-07858 third amended complaint (public nuisance) 050916

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