verified complaint - 9-26-14 final

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

PAUL E. FERRARO, Plaintiff,

v. CASE NO.:

THE BOARD OF TRUSTEES OF THE UNIVERSITY OF CENTRAL FLORIDA and UCF ATHLETICS ASSOCIATION, INC., Defendants. _____________________________/

VERIFIED COMPLAINT FOR DAMAGES WITH REQUEST FOR EQUITABLE RELIEF AND DEMAND FOR JURY TRIAL

COMES NOW the Plaintiff, PAUL E. FERRARO (Plaintiff or FERRARO),

and hereby sues Defendants, THE BOARD OF TRUSTEES OF THE UNIVERSITY OF

CENTRAL FLORIDA (UCF) and the UCF ATHLETICS ASSOCIATION, INC.,

(UCFAA and, collectively, Defendants), and alleges as follows:

INTRODUCTION

1. This is a claim for breach of express contract, unpaid wages,

whistleblowing, tortious interferences, and civil conspiracy in which Plaintiff is seeking

damages in excess of $15,000.00, exclusive of interest, attorneys fees and costs.

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PARTIES

2. At all times material to this action, Defendant UCF was and is a public

university within the State University System of the State of Florida, with its principal

offices and primary campus located within Orange County, Florida.

3. At all times material hereto, Defendant UCF was and is an agency

within the definitions of Florida Statutes and a state agency, pursuant to

216.011(1)(qq), Florida Statutes.

4. Defendant UCFAA is as private, not-for-profit corporation that operates

the athletics program at Defendant UCF.

5. At all times material hereto, FERRARO was a resident of the State of

Florida, and an employee of Defendant UCFAA.

JURISDICTION

6. The instant suit includes claims for damages in excess of $15,000.00, and

this Court therefore has original, exclusive jurisdiction pursuant to 26.012(2), Florida

Statutes.

7. This Court is vested with jurisdiction to order compensation for lost

wages, benefits and other remuneration, injunctive relief, reinstatement, attorneys fees,

court costs, expenses, prejudgment and post-judgment interest, and may permit a jury

trial.

VENUE

8. Venue is proper pursuant to 47.051, Florida Statutes because Defendant

maintains its primary offices and conducts business within Orange County, Florida.

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9. In addition, the acts and omissions that give rise to this action occurred in

Orlando, Orange County, Florida. Venue is therefore also proper in this Circuit and

before this Court, pursuant to 47.011, Florida Statutes.

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

10. FERRARO was initially hired by Defendant UCFAA on or about

December 26, 2013, pursuant to a written contract with UCFAA (Employment

Agreement). A copy of the Employment Agreement is attached as Exhibit A.

11. FERRARO was hired by UCFAAs head football coach George OLeary

(OLeary), following the resignation of Defensive Coordinator Jim Fleming

(Fleming).

12. FERRARO has more than 30 years of coaching experience, including

many years as a defensive coordinator, and he previously coached at two other

universities (Georgia Tech University and Syracuse University) under OLearys

supervision.

13. When hiring FERRARO, OLeary opined that Fleming had over-

complicated the defensive schemes by doing too much, and that he was seeking to

simplify the UCF defense.

14. Upon his hire at UCF, FERRARO was instructed to delay his official

Defensive Coordinator coaching duties until after the team played in the Fiesta Bowl

football game in early January 2014.

15. When FERRARO was hired by OLeary, he was told by OLeary to be

seen, but not heard during the Fiesta Bowl practices, as OLeary did not wish to

overhaul the UCF football teams defensive scheme prior to the Fiesta Bowl.

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16. FERRARO complied with OLearys pre-Fiesta Bowl instructions and,

upon his hire, attended but merely observed the bowl preparation practices.

17. In the interim, OLeary elevated a young assistant coach, Tyson Summers

(Summers), as Interim Defensive Coordinator for the Fiesta Bowl.

18. Summers performed well as Interim Defensive Coordinator both prior to

and during UCFs victory in the 2014 Fiesta Bowl.

19. In fact, under Summers direction, UCFs defense held Baylor

Universitys offense well below its statistical offensive per game averages for yards and

points, which helped UCF win its first and only Bowl Championship Series (BCS)

Bowl victory.

20. Following the Fiesta Bowl, FERRARO commenced his duties as

Defensive Coordinator in earnest, including attending staff and unit meetings, performing

player evaluations, reviewing game film, and implementing plans for spring practice.

21. After Summers performance in the Fiesta Bowl as Interim Defensive

Coordinator, FERRARO noticed a marked change in behavior exhibited by OLeary

towards FERRARO.

22. Specifically, after UCFs victory in the Fiesta Bowl, OLeary micro-

managed the defense and instructed FERRARO to install a complex defensive scheme.

23. OLearys instructions to FERRARO to implement a complex defensive

scheme post the Fiesta Bowl countermanded his pre-Fiesta Bowl instructions.

24. In addition, following the Fiesta Bowl, OLeary engaged in continuous

and unwarranted criticism of FERRAROs work, including, by way of example,

(a). after previously instructing FERRARO to simplify the defense,

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after the Fiesta Bowl asking FERRARO to install a complex defense;

(b). by giving conflicting directives and messages, such as approving

certain drills for an off season workout in UCFs indoor practice facility on or

about February 12, 2014 and then, a few hours later, verbally berating

FERRARO when OLeary witnessed FERRARO leading the very same approved

drills;

(c). in early February 2014, after a student-athlete requested to speak to

FERRARO before a defensive coaching staff meeting, he (FERRARO) ceased the

meeting because OLeary had not yet arrived for the meeting. By the time

FERRARO re-convened the meeting, OLeary had arrived and berated and

belittled FERRARO with profanities in the presence of subordinate coaches and

staff;

(d). by quizzing FERRARO in defensive staff coach meetings on

different scenarios in the presence of subordinate coaches and staff, in hopes of

embarrassing or berating FERRARO depending upon his answers to the

scenarios; and

(e). in general, by micro-managing the defense, contrary to what he

had led FERRARO to be the case.

25. OLearys words and conduct appeared to indicate an intention to not

honor FERRAROs Employment Agreement (an anticipatory breach); and, instead, to

replace FERRARO with Summers after Summers coaching performance in the Fiesta

Bowl.

26. OLeary also created a work environment that was permeated by bullying,

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threatening behavior, and repeated discriminatory epithets by OLeary. This was different

from OLearys conduct towards FERRARO when FERRARO had worked under him at

Georgia Tech and Syracuse.

27. Some of the discriminatory remarks were uttered about FERRARO in his

presence and concerned his Italian heritage. Specifically, OLeary called FERRARO a

Guinea.

28. OLeary also made discriminatory remarks about African-Americans and

persons of Jewish descent. Specifically, when discussing with OLeary the possible hire

of an African-American coach if Summers left for a position at the University of Georgia

(as was rumored at the time), the conversation turned to UCF not having an African

American coach on the defensive staff.

29. OLeary stated, if we can find one [an African-American coach], hire

one, but that all those coons are in the NFL. Its [the NFL] one big Ru-Ru tribe.

30. While in OLearys office the following week, OLeary stated to

FERRARO that he had spoken with a former assistant, who is now a head coach in the

NFL, and that he (OLeary) had advised his former assistant that, while at the upcoming

NFL combine in Indianapolis, to check the [African-American] players to make sure

that their gums are blue, because they are bigger, faster and stronger than [African-

American] players with red gums.

31. FERRARO eventually had enough of the offensive and discriminatory

remarks. As a result, on February 25, 2014, FERRARO wrote and sent an e-mail

message to OLeary objecting to OLearys actions. FERRARO copied his fellow

assistant coaches on the e-mail. A copy of the e-mail sent by FERRARO is attached

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hereto as Exhibit B.

32. After FERRARO sent his e-mail to OLeary, he was called by UCFs

Associate Athletic Director for Human Resources, Brian Reed (Reed), later that same

day, February 25th.

33. As Assistant Athletic Director, Reed reports directly to Defendant UCFs

Vice President and UCFAAs Director of Athletics, Todd Stansbury (Stansbury).

34. During their call, FERRARO confirmed the discriminatory and hostile

work environment to Reed.

35. When FERRARO was asked by Reed if he was tendering his resignation,

FERRARO expressly told Reed that he was not resigning, but simply reporting the

conduct.

36. Upon information and belief, Reed reported FERRAROs compliant to

Stansbury.

37. Upon further information and belief, Reed also advised Stansbury that

FERRARO was not resigning.

38. On February 26, 2014, the very next day after sending his e-mail,

FERRARO was placed on notice of his alleged resignation, with the effective date being

March 11, 2014, by Stansbury (Termination Letter). A copy of the Termination Letter

from Stansbury is attached as Exhibit C.

39. In his letter, Stansbury concluded that that FERRARO was leaving the

Orlando area permanently[and] ha[d] no intent to return to [his] post as Defensive

Coordinator.

40. Stansburys conclusion that FERRARO resigned was reached despite the

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fact that FERRARO never tendered a resignation, verbally or in writing, as required by

the Employment Agreement.

41. Nowhere within FERRAROs e-mail to OLeary of February 25, 2014 did

FERRARO expressly indicate that he was resigning, quit, or left his position as

Defensive Coordinator for personal reasons.

42. Stansbury was the authorized signatory of UCFAA on the Employment

Agreement with FERRARO. Stansbury was thus well aware that written notice from

FERRARO was required to effectuate his alleged resignation.

43. Stansburys termination letter to FERRARO was dated February 26, 2014,

just one day following FERRAROs e-mail to of February 25, 2014 to OLeary.

44. Stansbury referenced FERRAROs February 25, 2014 e-mail to OLeary

in the termination letter.

45. Stansbury never spoke directly to FERRARO following the submission of

FERRAROs e-mail on February 25, 2014 to OLeary.

46. After sending the February 25, 2014 e-mail to OLeary, FERRARO was

later contacted and interviewed by telephone on February 28, 2014 by Maria Beckman

(Beckman), UCFs Equal Employment Opportunity Director.

47. FERRARO again reiterated to Beckman some, but not all of OLearys

discriminatory, bullying and threatening comments.

48. FERRARO signed a prepared summary of the telephone interview on

March 11, 2014, which was drafted by Beckman, entitled Interview Report (Report).

49. The Report did not include all facts discussed with Beckman.

50. Additionally, FERRARO admittedly did not disclose all of the offensive

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and discriminatory remarks uttered by OLeary to Beckman. Instead, he merely

summarized some of his concerns.

51. By way of example, FERRARO omitted discussing the coon, Ru-Ru

tribe and blue gum comments made by OLeary.

52. Nowhere within the Report prepared by Beckham does it state that

FERRARO expressly resigned.

53. The words resign or quit are not found in the Report. Moreover, the

phrase leave for personal reasons is also not within the Report.

54. It was not FERRAROs intention to create disruption or have OLeary

fired but, instead, to merely have his work environment improve.

55. After he was advised of his termination, FERRARO wanted to amicably

resolve his dispute with the Defendants and negotiate a fair resolution.

56. Although he did return to Maine prior to the start of spring practice on

March 12th, FERRARO made it clear that he wanted to return to work in an environment

free from OLearys bullish and discriminatory tactics and that he did not and was not

resigning.

57. It was FERRAROs understanding that Defendants would investigate and

take action to improve his work environment.

58. After the interview with Beckman, FERRARO waited for a period of time

for a response. After several weeks passed, he attempted to reach Reed in April and left

him a voice message.

59. When Reed returned his call, FERRARO inquired of the status of the

situation; however, Reed did not provide any details or any update.

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60. During his last conversation with Reed, FERRARO once again confirmed

that he had not and would not be resigning.

61. The Employment Agreement expressly states, Employee may terminate

this agreement without cause upon written notice to the Director of Athletics effective

14 days after receipt of said notice (Athletic Director may waive 14 day notice).

(Emphasis added). FERRARO never tendered a written resignation as required by his

Employment Agreement.

62. UCF and UCFAA treated FERRAROs February 25, 2014 e-mail to

OLeary as if FERRARO had resigned.

63. FERRARO was not terminated pursuant to Paragraph 3(A) of the


64. FERRARO was not terminated pursuant to Paragraph 3(B) of the


65. FERRARO was not terminated pursuant to Paragraph 3(C) of the


66. FERRARO was not terminated pursuant to Paragraph 3(D) of the


67. FERRARO was not terminated pursuant to Paragraph 3(E) of the


68. FERRARO was not terminated pursuant to Paragraph 3(F) of the


69. FERRARO was not terminated pursuant to Paragraph 3(G) of the


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70. FERRARO did not resign from his position with UCFAA.

71. FERRARO was terminated by Defendants without cause.

72. Following his separation from UCFAA, FERRARO was replaced by

Summers as Defensive Coordinator.

73. FERRAROs separation, in the form of an alleged resignation, was merely

a pretext to breach the Employment Agreement so that Summers could be elevated to the

position of Defensive Coordinator, and out of retaliation against FERRARO for reporting

discrimination.\1

74. From April 2014 to the time of filing this Complaint, FERRARO has not

been told anything more about the status or outcome of UCFs investigation into his

complaints, as he has not heard further from Reed, Beckman, or anyone within UCF or

UCFAA.

CONDUCT COMPLAINED OF:

COUNT I

BREACH OF EXPRESS CONTRACT BY UCFAA

75. This is a cause of action by Plaintiff FERRARO seeking damages for

breach of the parties Employment Agreement by UCFAA.

76. FERRARO repeats, adopts, and re-alleges the allegations of paragraphs 1

through 74, as if set forth more fully herein.

1 On July 1, 2014, FERRARO filed a Charge of Discrimination asserting retaliation under retaliation for reporting and opposing discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, as amended by the Civil Rights Act of 1991, 42 U.S.C. 1981a (collectively Title VII): as well as the Florida Civil Rights Act of 1992, (FCRA), 760.01-760.11, Florida Statutes. Upon the passage of 180 days from the date of its filing, the Charge will become judicially ripe for purposes of seeking to amend the Complaint and add a count for retaliation.

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77. Defendant UCFAA entered into the Employment Agreement with

FERRARO attached as Exhibit A.

78. Under such Employment Agreement, FERRARO was to be provided

compensation for coaching services for two years.

79. FERRARO provided and was ready, willing and able to continue to provide

coaching services for UCFAA under the Employment Agreement.

80. Defendants (through Stansbury), caused the termination of the

Employment Agreement without notice and based upon false reasons.

81. UCFAA did not terminate FERRARO with cause as such term is

defined in the Employment Agreement.

82. Because FERRARO was not terminated with cause as defined in the

Employment Agreement, he is owed the balance of the compensation owed under the

Employment Agreement, less any interim earnings.

83. To date, UCFAA has failed to pay FERRARO any additional amounts

owed under the Employment Agreement since the effective date of his separation of

employment with UCFAA.

84. Defendants refusal to honor the terms of the Employment Agreement has

caused FERRARO to incur damages.

85. As a result of the Defendants conduct alleged herein, FERRARO has

retained the legal services of the law firm Wilson McCoy, P.A. to litigate the claims

alleged herein.

DEMAND FOR RELIEF

WHEREFORE, FERRARO demands judgment against UCFAA for:

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(a) All sums found to be due and owing under the Employment

Agreement;

(b) Prejudgment interest; and

(c) Such other relief as this Court deems just and equitable.

COUNT II

UNPAID WAGES UNDER 448.08 FLORIDA STATUTES AGAINST UCFAA

86. This is a cause of action by Plaintiff FERRARO solely against UCFAA,

seeking recovery of unpaid wages due under the terms of the parties Employment

Agreement.

87. Plaintiff FERRARO re-alleges and incorporate herein the allegations

contained in paragraphs 1 through 74 above, as if set forth more fully herein.

88. The foregoing conduct has and continues to result in unpaid wages due

Plaintiff under Florida law within the meaning of 448.08, Florida Statutes.

89. As a result of Defendants failure to pay the wages due and owing to

FERRARO, Defendants have violated and continue to violate Florida law.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff FERRARO demands a judgment against UCFAA

for:

(a) Unpaid wages found to be due and owing;

(b) Prejudgment interest;

(c) His reasonable attorneys fee and costs; and

(d) Such other relief as this Court deems just and equitable.

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COUNT III

VIOLATION OF PRIVATE SECTOR WHISTLEBLOWER ACT BY UCFAA UNDER FLORIDA STATUTES, 448.101 et seq.

90. This is a cause of action by Plaintiff FERRARO solely against UCFAA

for breach of Floridas private-sector whistleblower act, pursuant to 448.101, et. seq.,

Florida Statutes.

91. Plaintiff FERRARO re-alleges and incorporate herein the allegations

contained in paragraphs 1 through 74 above, as if set forth more fully herein.

92. At all times hereto, UCFAA was and is a private, not-for-profit

corporation that operates the athletics program at Defendant UCF and, in such capacity,

is a recipient of donations and is bound by the laws, rules and regulations governing a

non-profit corporate recipient of such funds.

93. Pursuant to 448.102(3), Florida Statutes, a cause of action exists for any

employee who has been the object of a retaliatory personnel action for object[ing] to or

refusing to participate in any activity, policy, or practice of the employer which is in

violation of a law, rule, or regulation.

94. At all times material to this action, FERRARO was an employee within

the meaning of 448.101(2), Florida Statutes, in that he performed services for and under

the control and direction of an employer for wages and other remuneration.

95. At all times material to this action, UCFAA was and is an employer

within the meaning of, 448.101(3) Florida Statutes, in that UCFAA is a corporation that

regularly employed ten (10) or more persons.

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96. UCFAA is also an employer as defined by 760.02(7), Florida Statutes;

the Florida Civil Rights Act (FCRA).

97. UCFAA must comply with the requirements of the FCRA. Through the

actions of OLeary as described herein, UCFAA violated the FCRA.

98. FERRARO notified UCFAA of and objected to actual violations of laws,

rules or regulations governing UCFAAs conduct including, but not limited to, OLeary

creating a work environment that was permeated by repeated discriminatory epithets.

99. As a direct result and proximate cause of FERRAROs legally protected

objection to OLearys conduct, which is in violation of the FCRA, both to OLeary via

e-mail dated February 25, 2014 and his conversation with Reed the same day, FERRARO

was involuntarily terminated on February 26, 2014, effective March 11, 2014, by

Defendant UCFAAs Director of Athletics, Stansbury.

100. UCFAAs agents, managers, officers and/or directors, primarily through

Stansbury, actively and knowingly participated in the retaliatory personnel action against

FERRARO because of his objections to the violation of civil rights laws concerning the

work environment.

101. UCFAAs agents, managers, directors and/or officers, primarily through

Stansbury, possessed constructive and/or actual knowledge of the wrongfulness of their

conduct and the high probability that injury or damage to FERRARO would result and/or

acted with such reckless disregard or absence of reasonable care to constitute a conscious

disregard or indifference to the rights of FERRARO, and/or acted with such gross

negligence that they contributed to FERRAROs damages, injuries and losses.

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102. As a consequence of these actions, FERRARO has and continues to suffer

damages including, but not limited to: loss of income, lost wages and benefits; as well as

damage to his personal and professional reputation, damage to his standing in the college

football coaching community, emotional distress, shame, embarrassment, humiliation and

other non-pecuniary injuries.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff FERRARO demands a judgment against

Defendant UCFAA for:

(a) compensatory damages for lost wages, benefits and any other

applicable remuneration;

(b) other compensatory damages as permitted by law;

(c) prejudgment interest;

(d) Plaintiffs attorneys fees and costs of this action; pursuant to

448.104, Florida Statutes;

(e) injunctive relief consisting of an Order prohibiting further

retaliatory action as provided under 448.103(2)(a), Florida Statutes; and

(f) any other such relief as this Court deems just and proper.

COUNT IV

TORTIOUS INTERFERENCE WITH A CONTRACTUAL RELATIONSHIP AGAINST DEFENDANT UCF

103. This is a cause of action by Plaintiff FERRARO solely against UCF for

tortious interference with a contractual relationship.

104. Plaintiff re-alleges paragraphs 1 through 74 as though fully set forth and

incorporated herein.

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105. Defendant UCF, through its officers, managers, supervisors, employees

and agents, including Stansbury, knew or should have known that UCFAA and

FERRARO had an existing employment relationship, as evidenced by, the Employment

Agreement attached to this Complaint as Exhibit A.

106. Defendant UCF, through its officers, managers, supervisors, employees

and agents, intentionally and unjustifiably interfered with the relationship between

FERRARO and UCFAA.

107. Specifically, Defendant UCF, through its officers, managers, supervisors,

employees and agents, willfully encouraged, persuaded, or induced UCFAA to violate the

terms of the Employment Agreement between UCFAA and FERRARO.

108. Defendant UCFs actions constitute tortious interference with the

contractual relationship FERRARO had with UCFAA.

109. As a result of the tortious interference with business and/or contractual

relationships, FERRARO has suffered damages including, but not limited to: loss of

income, lost wages and benefits; as well as damage to his personal and professional

reputation, damage to his standing in the college football coaching community, emotional

distress, shame, embarrassment, humiliation and other non-pecuniary injuries arising out

of the Employment Agreement between FERRARO and UCFAA.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff FERRARO demands judgment against UCF as follows:

(a) General damages;

(b) Compensatory damages for Defendants tort violations;

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(c) Plaintiffs reasonable expenses for searching for other

employment; and

(d) Any and all further relief this Court deems just and proper.

COUNT V

CIVIL CONSPIRACY AGAINST DEFENDANTS UCFAA AND UCF

110. This is a cause of action by Plaintiff FERRARO against Defendants

UCFAA and UCF for civil conspiracy.

112. Plaintiff re-alleges Paragraphs 1 through 74 as though fully set forth and

incorporated herein.

113. UCFAA, through its officers, managers, supervisors, employees and

agents, and UCF, through its officers, managers, supervisors, employees and agents,

conspired to terminate Plaintiffs employment with UCFAA.

114. On or about February 25, 2014 or February 26, 2014, Defendants

knowingly and willfully conspired and agreed among themselves to damage the Plaintiff

by causing UCFAA to terminate FERRAROs employment with UCFAA.

115. Because the termination of FERRAROs employment as conspired by

Defendants could not be accomplished as set forth in FERRAROs Employment

Agreement with UCFAA, it could only be accomplished by UCFAA willfully breaching

its Employment Agreement with FERRARO.

116. Pursuant to the conspiracy, and in furtherance of the conspiracy, UCFAA

did wrongfully terminate FERRAROs employment on or about February 26, 2014,

effective March 11, 2014, at the demand of UCF.

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117. FERRAROs termination resulted in the breach of the Employment

Agreement between FERRARO and UCFAA.

118. As a direct and proximate result of these wrongful, intentional, and

malicious acts on the part of both Defendants, FERRARO has suffered humiliation and

actual damages.

DEMAND FOR RELIEF

WHEREFORE, the Plaintiff FERRARO demands judgment against the

Defendants, jointly and severally, for:

(a) general damages;

(b) pre-judgment interest;

(c) Plaintiffs reasonable expenses for searching for other employment;

(d) costs of suit as incurred in this action; and

(e) any other and further relief as this Honorable Court may deem

appropriate.

RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint to seek punitive

damages against Defendant UCFAA in accordance with the requirements of 768.72,

Florida Statutes.

DEMAND FOR JURY TRIAL

Plaintiff FERRARO hereby respectfully demands trial by jury on all issues triable

of right before a jury, as permitted.

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DATED this 26th day of September, 2014.

Respectfully submitted, s/ Gary D. Wilson_______________ Gary D. Wilson, Esq.

Florida Bar No.: 0846406 Nathan A. McCoy, Esq. Florida Bar No.: 0676101

WILSON MCCOY, P.A. 711 N. Orlando Ave., Suite 202 Maitland, FL 32751 Telephone: (407) 803-5400 Facsimile: (407) 803-4617 E-mail: [email protected] E:mail: [email protected]

Attorneys for Plaintiff, PAUL E. FERRARO

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VERIFICATION

verified complaint - 9-26-14 final

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