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

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, LLCs (Conexus) customers. This
action challenges the Agreements by and between Defendants Melton, Peterson, and

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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

Plaintiffs 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

Plaintiffs 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-roadrecruiters.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.
10.

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

CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1263-67 (6th Cir. 1996)(holding that contacts and
contracts 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.3d
644, 647 (5th Cir. 1994).
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11.

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 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.


13.

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

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 where
the 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 Plaintiffs causes of action under the
Lanham Act, STAA, ERISA, and ADA this Court has under the doctrine of pendent
jurisdiction4 over Plaintiffs causes of action arising from the same factual circumstances,
events, and transactions as described in this Complaint.
19.

This Court has supplemental jurisdiction over Plaintiffs 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

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

For a description of the IDHR and EEOCs 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
Defendant Melton at all times as described in this Complaint, except as specifically alleged
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
Defendant Melton at all times as described in this Complaint, except as specifically alleged
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 claims
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.
40.

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

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.
41.

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

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-CityDriver-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, tires, etc. on the truck each morning; (b) driving to the shippers 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
receivers site; and (f) cleaning up truck and refueling at truck at the days (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.
51.

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
24.55 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.
52.

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 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) Plaintiff 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 workrelated 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 Plans 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 the
extent that such plan, fund, or program was established or is maintained for
the 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 of
sickness, accident, disability, death or unemployment, or vacation
benefits . . .

60.

At all relevant times herein, ERISA 29 U.S.C. 1002(5) in relevant part states:
(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 employer
in such capacity.

61.

At all relevant times herein, ERISA 29 U.S.C. 1002(6) in relevant part states:
(6) The term employee means any individual employed by an employer.

62.

At all relevant times herein, ERISA 29 U.S.C. 1002(7) in relevant part states:
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(7) The term participant means any employee or former employee of an


employer, or any member or former member of an employee organization,
who is or may become eligible to receive a benefit of any type from an
employee benefit plan which covers employees of such employer or members
of such organization, or whose beneficiaries may be eligible to receive any
such benefit.
63.

At all relevant times herein, ERISA 29 U.S.C. 1002(8) in relevant part states:
(8) The term beneficiary means a person designated by a participant, or by
the terms of an employee benefit plan, who is or may become entitled to a
benefit thereunder.

64.

During the time of Plaintiff Johnsons 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 Plaintiffs left hand
while working for Defendant Melton on May 3, 2013.
71.

On June 12, 2013, Plaintiffs 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 Plaintiffs

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 Plaintiffs 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 Plaintiffs disability claim to its insurer Defendant
Great West.
77.

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

to identify Plaintiffs 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 Plaintiffs
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 Plaintiffs 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 Plaintiffs 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) 5223403) that Defendant Melton has denied coverage of Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs

disability claim from State of Ohio.


89.

On June 17, 2014, Defendant Melton denied Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs disability claim under the
Plan insured by Group Policy asserting that Plaintiffs 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 Plaintiffs 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 Plaintiffs
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 Plaintiffs 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 Plaintiffs 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 Plaintiffs 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 Plaintiffs disability claim.
112.

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

hearing Plaintiffs 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 Plaintiffs 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 predeprivation 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.

See, e.g., Am. Council of Certified Podiatric Physicians & Surgeons v. Am. Bd. of Podiatric
Surgery, 185 F.3d 606, 613 (6th Cir. 1999) SmithKline Beecham Consumer Healthcare L.P., 131
F.3d 430, 435 (4th Cir. 1997); Rhone-Poulenc Rorer Pharms. Inc. v. Marion Merrell Dow, Inc., 93
F.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. Carriers rates and charges cannot be increased, nor
deviated from regarding particular shipments, without CONEXUS express written consent
prior to Carriers 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 CONEXUSs 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 Conexuss customers for Plaintiffs nondrive 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

Conexuss 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 (PDAs), 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 Conexuss
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
Melton's Drive Time Wages Hourly CPM:
Melton's "Trip Planning/En Route" (MPH)(See Ftn.1)
Melton's CPM (See Ftn. 2)
Melton's Drive Time Wages Hourly
Melton's Non-Drive Time Hourly:
Melton's Non-Drive Time Wages Hourly (See Ftn. 2)
Melton Driver's Avg Hourly Rate of Basic Pay
Schedule of Annual Hours (70hours x 52weeks)(See Ftn. 3)
Estimate Annual Driver Pay
Less: Melton's Annual Salary Paid (See Ftn. 2)
Driver Unpaid Wages (Diff)
#Employees (See Ftn. 4)
Total Loss

12/31/2010

12/31/2011

12/31/2012

12/31/2013

12/31/2014

12/31/2015

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.40
$20.00

50
$0.43
$21.50

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
31,900,000.00

$25.00
$22.50
3,640
$81,900.00
(50,000.00)
$31,900.00
1,000
31,900,000.00

$25.00
$23.25
3,640
$84,630.00
(60,000.00)
$24,630.00
1,047
25,787,610.00

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

Plaintiffs 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 Meltons 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 Plaintiffs 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 his
rights under the terms of the plan, or to clarify his rights to future benefits
under the terms of the plan . . .

Larson v United Healthcare Insurance Co., 723 F.3d 905, 913 (7th Cir. 2013)(adopting Ninth
Circuit 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 is
outside of the State of Illinois where the contract of hire is made within the
State of Illinois.
Sec. 8. The employers liability to pay for such medical services selected by
the 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 by
said initial service provider or any subsequent provider of medical services in
the 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 any
other physician, consultant, expert, institution or other provider of services
recommended by said second service provider or any subsequent provider of
medical 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 such
selection. At any time the employee may obtain any medical treatment he
desires at his own expense. This paragraph shall not affect the duty to pay for
rehabilitation referred to above.
(b)
If the period of temporary total incapacity for work lasts more than 3
working 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 temporary
total incapacity for work continues for a period of 14 days or more from the
day of the accident compensation shall commence on the day after the
accident.
The compensation rate for temporary total incapacity under this paragraph (b)
of this Section shall be equal to 66 2/3% of the employees average weekly
wage computed in accordance with Section 10, provided that it shall be not
less than 66 2/3% of the sum of the Federal minimum wage under the Fair
Labor Standards Act, or the Illinois minimum wage under the Minimum Wage
Law, 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 employees
average weekly wage computed in accordance with Section 10, provided that
it shall be not less than 66 2/3% of the sum of the Federal minimum wage
under the Fair Labor Standards Act, or the Illinois minimum wage under the
Minimum Wage Law, whichever is more, multiplied by 40 hours. This
percentage rate shall be increased by 10% for each spouse and child, not to
exceed 100% of the total minimum wage calculation, nor exceed the
employee's average weekly wage computed in accordance with the provisions
of Section 10, whichever is less.
2. The compensation rate in all cases other than for temporary total disability
under this paragraph (b), and other than for serious and permanent
disfigurement under paragraph (c) and other than for permanent partial
disability under subparagraph (2) of paragraph (d) or under paragraph (e), of
this Section shall be equal to 66 2/3% of the employees average weekly wage
computed 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 under
the Fair Labor Standards Act, or the Illinois minimum wage under the
Minimum Wage Law, whichever is more, multiplied by 40 hours. This
percentage rate shall be increased by 10% for each spouse and child, not to
exceed 100% of the total minimum wage calculation, nor exceed the
employees average weekly wage computed in accordance with the provisions
of 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 during
the 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 disablement
excluding overtime, and bonus divided by 52; but if the injured employee lost
5 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 the
number of weeks and parts thereof remaining after the time so lost has been
deducted. Where the employment prior to the injury extended over a period of
less 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 actually
earned wages shall be followed. Where by reason of the shortness of the time
during which the employee has been in the employment of his employer or of
the casual nature or terms of the employment, it is impractical to compute the
average weekly wages as above defined, regard shall be had to the average
weekly 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 same
grade employed at the same work for each of such 52 weeks for the same
number of hours per week by the same employer. In the case of volunteer
firemen, police and civil defense members or trainees, the income benefits
shall be based on the average weekly wage in their regular employment. When
the employee is working concurrently with two or more employers and the
respondent employer has knowledge of such employment prior to the injury,
his wages from all such employers shall be considered as if earned from the
employer liable for compensation.
162.

On May 5, 2013, Plaintiff has sustained injuries to his left-hand as the result of

a 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
Plaintiffs 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.
166. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Defendant Great West, Defendants Jensen and Brummond each of them
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.
167. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Defendant Great West, Defendants Jensen and Brummond each of them
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.
170. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Defendant Great West, Defendants Jensen and Brummond each of them
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 Plaintiffs ERISA
rights failed to take corrective action, Defendant Melton Injury Benefit Plans 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 Plans 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 Plaintiffs 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 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 Dargel had discretionary authority and or discretionary
responsibility in the administration of Melton Injury Benefit Plan.

10

See Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 481-82 (7th Cir. 2010).

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185.

At all relevant times herein, as described above Defendant Melton was a

fiduciary and the Plan sponsor with respect to Defendant Melton Injury Benefit Plan within
the meaning of ERISA, in that, Defendant Melton 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 Melton
had discretionary authority and or discretionary responsibility in the administration of
Melton Injury Benefit Plan.
186.

At all relevant times, as described above Defendant Great West was a

fiduciary with respect to Defendant Melton Injury Benefit Plan within the meaning of
ERISA, in that, Defendant Great West has exercised discretionary authority and/or
discretionary control to grant or deny claims for Melton Injury Benefit Plan and/or exercised
authority or control over the Group Policy, and/or in that Defendant Great West had
discretionary authority and or discretionary responsibility in the administration of Melton
Injury Benefit Plan.
187.

At all relevant times, as described above Defendant Jensen was a fiduciary

with respect to Defendant Melton Injury Benefit Plan within the meaning of ERISA, in that,
Defendant Jensen has exercised discretionary authority and/or discretionary control to grant
or deny claims for Melton Injury Benefit Plan and/or exercised authority or control over the
Group Policy, and/or in that Defendant Jensen had discretionary authority and or
discretionary responsibility in the administration of Melton Injury Benefit Plan.
188.

At all relevant times, as described above Defendant Brummond was a

fiduciary with respect to Defendant Melton Injury Benefit Plan within the meaning of
ERISA, in that, Defendant Brummond has exercised discretionary authority and/or
discretionary control to grant or deny claims for Melton Injury Benefit Plan and/or exercised
authority or control over the Group Policy, and/or in that Defendant Brummond had
discretionary authority and or discretionary responsibility in the administration of Melton
Injury Benefit Plan.
189.

Plaintiff states and alleges that in relevant part ERISA 404(a), 29 U.S.C.

1104(a) states as follows:


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(a) Prudent man standard of care


(1) Subject to sections 1103(c) and (d), 1342, and 1344 of this title, a fiduciary
shall discharge his duties with respect to a plan solely in the interest of the
participants and beneficiaries and
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character and with
like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of
large losses, unless under the circumstances it is clearly prudent not to do so;
and
(D) in accordance with the documents and instruments governing the plan
insofar as such documents and instruments are consistent with the provisions
of this subchapter and subchapter III. . .
190.

Plaintiff states and alleges that in relevant part ERISA 502(a)(3), 29 U.S.C.

1132(a)(3) states as follows:

A civil action may be brought


(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice
which violates any provision of this subchapter or the terms of the plan, or (B)
to obtain other appropriate equitable relief (i) to redress such violations or (ii)
to enforce any provisions of this subchapter or the terms of the plan. . .
191.

On or about August 16, 2013, Plaintiff has learned for the first time from his

former attorney that it did not appear that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen, and Brummond each of them would provide benefits
under the Plan using the definition of Employee consistent with the regulations, rulings,
opinions and exemptions of the Department of Labor.
192.

By letter dated September 10, 2014, Defendants Melton, Melton Injury

Benefit Plan, Dargel, Ragan, Great West, Jensen, and Brummond upheld their decision to
deny Plaintiffs disability benefits payable as a result of the fall while working for
Defendant Melton stating that the Plan provides benefits only to an Employee as defined
under the Plan and that on the date of Plaintiffs work injury or accident, the Plan defined
Employee by reference to the IWCA.
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193.

Prior to Plaintiffs injury on May 3, 2013, Defendants Melton, Melton Injury

Benefit Plan, Dargel, Ragan, Great West, Jensen, and Brummond knew or should have
known from operating the Plan under ERISA that the definition of Employee is defined by
ERISA not state law.
194.

At all times relevant herein, Plaintiff states and alleges that despite this

knowledge of the definition of Employee as defined by ERISA, Defendants Melton, Melton


Injury Benefit Plan, Ragan, Great West, Jensen, and Brummond each of them have failed to
take action leading to failures by Defendants Melton, Melton Injury Benefit Plan, Ragan,
Great West, Jensen, and Brummond to comply with ERISA as described above.
195. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Defendants Jensen and Brummond each of them subjected
Plaintiff to loss benefits by among other things allowing Defendants Melton, Melton Injury
Benefit Plan, Dargel, Ragan, Great West, Jensen and Brummond each of them to prevent
injured employees from participation benefit plans as described above.
196.

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

Ragan, Jensen, and Brummond either singly or jointly to continue their operation of
Defendant Melton Injury Benefit Plan and the insurance arrangement with an indifference to
the definition of an Employee as defined by ERISA, Defendants Peterson, Dargel, Ragan,
Jensen, and Brummond knew or should have known that Defendants Melton, Melton Injury
Benefit Plan, Dargel, Ragan, Defendant Great West, Jensen and Brummond each of them
would violate ERISA, federal law, and Illinois law leading to the harm suffered by Plaintiff
in Illinois, as described above.
197.

As a direct and proximate result of the conduct by Defendants Peterson,

Dargel, Ragan, Great West, Jensen, and Brummond each of them as described above
including but not limited to interpreting the Plan in a manner contrary to applicable the law,
Defendants manifest breach of their fiduciary 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.
198.

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


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COUNT IV
BREACH OF FIDUCIARY DUTY PURSUANT TO ERISA 502(a)(3), 29
U.S.C. 1132(a)(3), AND COBRA
199.

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.
200.

Defendant Ragan as the Plan Administrator has violated of ERISA by failing

and refusing to comply with Plaintiffs requests for information that is required to be
furnished to a plan beneficiary and participant under ERISA.
201.

Plaintiff states and alleges that in relevant part ERISA 502(c), 29 U.S.C. 1132(c)

states as follows:
(c) Administrators refusal to supply requested information; penalty for failure
to provide annual report in complete form
(1) Any administrator (A) who fails to meet the requirements of paragraph (1) or (4)
of section 1166 of this title, section 1021(e)(1) of this title, section 1021(f) of this
title, or section 1025(a) of this title with respect to a participant or beneficiary, or (B)
who fails or refuses to comply with a request for any information which such
administrator is required by this subchapter to furnish to a participant or beneficiary
(unless such failure or refusal results from matters reasonably beyond the control of
the administrator) by mailing the material requested to the last known address of the
requesting participant or beneficiary within 30 days after such request may in the
courts discretion be personally liable to such participant or beneficiary in the amount
of up to $100 a day from the date of such failure or refusal, and the court may in its
discretion order such other relief as it deems proper.
202.

Plaintiff has requested from Defendants Melton, Great West, Jensen, and

Brummond, Defendant Melton Injury Benefit Plan documents on July 5, 2013.


203.

At all times relevant herein, Defendants Melton, Melton Injury Benefit Plan,

Ragan, Great West, Jensen, and Brummond each of them have failed11 to provide Plaintiff
with a copy of the Plan document, Plaintiff is entitled to $110 a day after 30 days from the
failure and refusal to comply with the Plaintiffs request for the Plan and such other relief as
this Court deems proper pursuant to ERISA.
11

ERISA 502(c)(1) also provides for similar penalties for an administrators failure to provide
COBRA notices and required notices related to transfers of excess pension plan assets to a health
benefits account.
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204.

Plaintiff has had a conversation with Blue Cross-Blue Shield upon information

and belief, Defendants Melton, Melton Injury Benefit Plan, Great West, Jensen, and
Brummond each of them have failed to give notice to Plaintiff that he had an opportunity to
elect COBRA continuation coverage, Plaintiff is entitled to $110 a day after 30 days from
the date notice was required of a qualifying event until the present under ERISA.
205.

As a direct and proximate result of the conduct Defendants Melton, Melton

Injury Benefit Plan, Ragan, Great West, Jensen, and Brummond each of them as described
above including but not limited to the failure to provide information necessary for
participants to make fully informed decisions about their benefits, Plaintiff has suffered and
continues to suffer harm including but not limited to 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 and COBRA.
206.

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

COUNT V
VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. 12101 et seq.
207.

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.
208.

Plaintiff Johnson is a Melton employee who sought the employee fringe

benefits available under the Group Policy issued by Defendant Great West to Defendant
Melton.
209.

Plaintiff states and alleges that 42 U.S.C. 12112(a)-(b)(Title I of the ADA )

in relevant part states:


(a) General rule
No covered entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and
privileges of employment.
(b) Construction
As used in subsection (a) of this section, the term discriminate includes
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.....
(2) participating in a contractual or other arrangement or relationship that has
the effect of subjecting a covered entity's qualified applicant or employee with
a disability to the discrimination prohibited by this subchapter (such
relationship includes a relationship with ... an organization providing fringe
benefits12 to an employee of the covered entity[)].... (emphasis added).
210.

Plaintiff states and alleges that the ADA13 prohibits discrimination in the

provision of health and life insurance and other benefits.


211.

Prior to May 1, 2013, Plaintiff Johnson was a non-disabled employee of

enjoying the fringe benefits provided by Defendant Melton.


212.

Plaintiff Johnson is informed and believes, and on that basis alleges that

Defendants Peterson, Dargel, Ragan, Williams are non-disabled employees who are
receiving all fringe benefits provided or made available by Defendant Melton.
213.

Plaintiff Johnson is disabled former employee of Defendant Melton told by

Defendants Melton, Great West, Jensen, and Brummond that he is not a participant or
beneficiary of employee fringe benefits insured by the Group Policy stating that the Plan
contained terms that differentiated between and only covered office employees who are nondisabled, such as Defendants Peterson, Dargel, Ragan, and William but excluded Drivers,
such as Plaintiff only after he became disabled on May 3, 2013.
214.

Plaintiff states and alleges that Defendant Melton, Melton Injury Benefit Plan,

Dargel, Ragan, Great West, Jensen and Brummond each of them subjected Plaintiff to loss
employee fringe benefits by among other things allowing Defendants Melton, Melton Injury
Benefit Plan, Dargel, Ragan, Great West, Jensen and Brummond each of them to prevent
injured employees from participation in employee fringe benefit plans as described above.
215.

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

Ragan, Great West, Jensen, and Brummond either singly or jointly on behalf of Defendants
Melton and Melton Injury Benefit Plan to continue deny Plaintiff his employee fringe

12

Fringe benefits include medical, hospital, accident, life insurance and retirement benefits; profitsharing and bonus plans; leave; and other terms, conditions, and privileges of employment. 29
C.F.R. 1604.9.
13

See 42 U.S.C. 12112(a).


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benefits with an indifference to the definition of a qualified disability as defined by the


ADA, Defendants Melton, Melton Injury Benefit Plan, Peterson, Dargel, Ragan, Jensen, and
Brummond knew or should have known that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen and Brummond each of them would violate the ADA,
federal law, and Illinois law leading to the harm suffered by Plaintiff as described above.
216.

As a direct result of conduct described herein by Defendant Melton including

but not limited to after learning of the indifference targeted against Plaintiff because of his
disability failed to take corrective action, Defendant Meltons manifest breach of the duty to
Plaintiff in violation of the ADA, Plaintiff has suffered and continues to suffer general and
special damages as is more fully alleged above in excess of $758, 350 with an amount to be
established at trial, as well as, reasonable attorneys fees and costs pursuant to the ADA.
217.

At all times relevant herein, the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs federal rights as described
herein, or Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive
damages against Defendant in an amount to be proven at the trial of this matter.
218.

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

COUNT VI
VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. 12182, et seq.
219.

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.
220.

On June 12, 2013, Plaintiff Johnson as a Melton employee who sought the

employee benefits available under the Group Policy issued by Defendant Great West to
Defendant Melton and/or Defendant Melton Injury Benefit Plan, Plaintiff Johnson has been
denied and excluded from the benefits of Group Policy by Defendants Great West,
Brummond, and Jensen each of them individually and as a group in violation of the duties
imposed by the ADA as described herein.
221.

Plaintiff states and alleges that 42 U.S.C. 12182(a)( Title III of the ADA ) in

relevant part states:


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222.

(a). General Rule. No individual shall be discriminated against on the basis


of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation.
Plaintiff states and alleges that 42 U.S.C. 12182(b)( Title III of the ADA ) in

relevant part states:


(i) Denial of participation
It shall be discriminatory to subject an individual or class of individuals on the
basis of a disability or disabilities of such individual or class, directly, or
through contractual, licensing, or other arrangements, to a denial of the
opportunity of the individual or class to participate in or benefit from the
goods, services, facilities, privileges, advantages, or accommodations of an
entity.
223.

Defendants Great West, Jensen, and Brummond each of them individually and

as a group have as described above excluded Plaintiff from the Group policy leading to the
denial of the opportunity to participate in the plan or to benefit from the goods, services, and
activities provided by the Defendant Great West only after Plaintiff became disabled on
May 3, 2013.
224.

Defendants Melton, Peterson, Dargel, Ragan, Great West, Brummond, and

Jensen each of them individually and as a group have refused and failed to provide Plaintiff
Johnson with reasonable modification to the Group Policy further denying Plaintiff Johnson
the opportunity to fully participate in the program or to benefit from the goods, services, and
activities provided by Defendant Great in Illinois.
225. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen and Brummond each of them subjected Plaintiff to loss
benefits from the Group Policy issued by Defendant Great West to Defendant Melton by
among other things allowing Defendants Melton, Dargel, Ragan, Great West, Jensen and
Brummond each of them to prevent injured employees from participation benefit plans as
described above.
226.

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

Ragan, Jensen, and Brummond either singly or jointly to continue deny Plaintiff his benefits
under the Group Policy with an indifference to the definition of a qualified disability as
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defined by the ADA, Defendant Great West knew or should have known that Defendant
Great West, Jensen and Brummond each of them would violate the ADA, federal law, and
Illinois law leading to the harm suffered by Plaintiff as described above.
227.

As a direct result of conduct described herein by Defendant Great West

including but not limited to after learning of the indifference targeted against Plaintiff
because of his disability failed to take corrective action, Defendant Great Wests manifest
breach of the duty to Plaintiff in violation of the ADA, Plaintiff has suffered and continues
to suffer general and special damages as is more fully alleged above in excess of $758, 350
with an amount to be established at trial, as well as, reasonable attorneys fees and costs
pursuant to the ADA.
228.

At all times relevant herein, the conduct of Defendant Great West as described

above was undertaken with malice or indifference to Plaintiffs federal rights as described
herein, or Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive
damages against Defendant in an amount to be proven at the trial of this matter.
229.

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

COUNT VII
FAILURE TO ACCOMMODATE IN
VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. 12101, et seq.
230.

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.
231.

Plaintiff Johnson fell while working for Defendant Melton he suffers from an

injury to his left hand that made it very painful he is unable to secure the freight onto the
trailer; carry and lift a heavy tarp; attach the bungee cords to the tarp, it was painful for
Plaintiff to drive Defendant Melton trucks with a clutch, drive for long hours using his left
hand, and similar activities the use of his left hand is substantially limiting on June 12,
2013.
232.

Defendants Melton, Dargel, Ragan, Williams, Great West, Jensen, and

Brummond are aware from Plaintiff of the injury to his left hand as described above.

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233.

On June 12, 2013, Plaintiff Johnson took an unpaid leave of absence for

reasons related to his to injury to his left hand, the pain, and disability resulting therefrom.
234.

Defendants Melton, Great West, Brummond, and Jensen have received the

medical records that during the relevant times wherein, doctors diagnosed Plaintiff Johnson
as having an impairment that required he limit his carrying and lifting heavy items.
235.

Defendants Melton, Peterson, Dargel, Great West, Brummond, and Jensen

have regarded Plaintiff has having an impairment that substantially limits his ability to work
as a Driver, in that his present inability to carry and lift a heavy tarp, attach the bungee cords
to the tarp, and similar activities with the left hand is substantially limiting on June 12,
2013.
236.

Plaintiff states and alleges that the ADA defines disability, in 42 U.S.C.

12102(1) as (A) a physical or mental impairment that substantially limits one or more
major life activities ...; (B) a record of such an impairment; or (C) being regarded as having
such an impairment....14
237.

At all times relevant herein, C.F.R. 1630.2(i) in relevant states:


(i) Major life activities
(1) In general. Major life activities include, but are not limited to:
(i) Caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, sitting, reaching, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working.

238.

At all times relevant herein, C.F.R. 1630.2(o) in relevant states:


(o) Reasonable accommodation.
(1) The term reasonable accommodation means:
(i) Modifications or adjustments to a job application process that enable a
qualified applicant with a disability to be considered for the position such
qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily
performed, that enable an individual with a disability who is qualified to
perform the essential functions of that position; or

14

Gogos v. AMS Mechanical Systems, 737 F.3d 1170, 1173 (7th Cir. 2013).
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(iii) Modifications or adjustments that enable a covered entity's employee with


a disability to enjoy equal benefits and privileges of employment as are
enjoyed by its other similarly situated employees without disabilities.
(2) Reasonable accommodation may include but is not limited to:
(i) Making existing facilities used by employees readily accessible to and
usable by individuals with disabilities; and
(ii) Job restructuring; part-time or modified work schedules; reassignment to a
vacant position; acquisition or modifications of equipment or devices;
appropriate adjustment or modifications of examinations, training materials, or
policies; the provision of qualified readers or interpreters; and other similar
accommodations for individuals with disabilities.
(3) To determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive process
with the individual with a disability in need of the accommodation. This
process should identify the precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those limitations.
(4) A covered entity is required, absent undue hardship, to provide a
reasonable accommodation to an otherwise qualified individual who meets the
definition of disability under the actual disability prong (paragraph (g)(1)(i)
of this section), or record of prong (paragraph (g)(1)(ii) of this section), but
is not required to provide a reasonable accommodation to an individual who
meets the definition of disability solely under the regarded as prong
(paragraph (g)(1)(iii) of this section).
239.

Plaintiff states and alleges that the the ADA obligates the employer to

engage with the employee in an interactive process to determine the appropriate


accommodation under the circumstances.15
240.

Defendant Melton has failed to consider Plaintiff Johnson for any

accommodation that would have returned him to work, including but not limited to,
reassignment to an open position for which he was qualified as described herein.
241.

At all times relevant herein, Plaintiff Johnson was qualified for the position of

Driver Manager because among other things is an actual Driver who has performed the
duties as set forth the job description of the position of Driver Manager and upon
information and belief neither Mr. Floyd nor Defendant Williams possess above average

15

EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)(quoting Gile v. United
Airlines, Inc., 213 F.3d 365, 373 (7th Cir.2000)).
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successful driver relation experience or extensive knowledge of Innovative


IES Transportation Software running on the IBM System i (AS/400) platform.
242.

At all times relevant herein, Plaintiff Johnson was able to perform all essential

functions of the position of Driver Manager with or without accommodations.


243.

Defendant Melton has failed to consider Plaintiff Johnson for reassignment or

reinstated for open positions for which he was qualified for, such as the Driver Manager.
244.

On December 18, 2006, Defendants Melton, and Peterson were made aware

by Ms. Barbara Sherman and Yolaine Dauphin that their conduct of among other things
misplacing the notice of claim, medical bills, correspondence, and other dilatory tactics
for years while not providing any reasonable accommodation violated the duties imposed by
law.
245.

Defendants Great West, Brummond, and Jensen knew or should have known

from their due diligence in underwriting the Group Policy that Defendant Melton has on
numerous occasions failed to provide reasonable accommodation in the event of a work
related injury to an employee, such as Plaintiff hired in Illinois.
246.

On June 12, 2013, Defendants Melton, and Dargel informed Plaintiff Johnson

that he was terminated pursuant to its new and unannounced leave policy.
247.

Defendants Melton, Peterson, Dargel Great West, Brummond, and Jensen

have failed to engage Plaintiff or Plaintiffs former attorney in any discussion to


accommodate the injury to Plaintiffs left hand.
248.

Defendants Melton and Peterson have provided to Ms. Wendi Russell the

proposed reasonable accommodation of a job offer that required her to relocate and was
deemed inappropriate.
249.

Plaintiff last worked for the Defendant Melton on or about June 12, 2013, and

has been unable to return to his former job since that time.
250. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen and Brummond each of them subjected Plaintiff to
damages by failing to provide a reasonable accommodation as described above.
251.

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

Ragan, Great West, Jensen, and Brummond either singly or jointly to continue deny Plaintiff
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any reasonable accommodation with an indifference to the definition of a reasonable


accommodation as defined by the ADA, Defendants Peterson, Dargel, Ragan, Great, Jensen,
and Brummond knew or should have known that Defendant Melton would violate the ADA,
federal law, and Illinois law leading to the harm suffered by Plaintiff as described above.
252.

As a direct result of conduct described herein by Defendant Melton including

but not limited to after learning of the indifference targeted against Plaintiff because of his
disability failed to take corrective action, Defendant Meltons manifest breach of the duty to
Plaintiff in violation of the ADA, Plaintiff has suffered and continues to suffer general and
special damages including but not limited to back pay, front pay lost future earnings, lost
raises, diminished earnings capacity, lost career and business opportunities, fringe benefits,
the deprivation of needed medical care, humiliation, embarrassment, inconvenience,
emotional and physical distress, great pain and suffering in excess of $758, 350 with an
amount to be established at trial, as well as, reasonable attorneys fees and costs pursuant to
the ADA.
253.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs federal rights as described
herein, or Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive
damages in an appropriate amount to punish and deter such conduct in the future the exact
amount of such damages being subject to proof at trial.
254.

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

COUNT VIII
VIOLATION OF THE ILLINOIS HUMAN RIGHTS ACT
775 ILCS 5/1-101, et seq.
255.

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.
256.

Plaintiff states and alleges that the Illinois Human Rights Act (IHRA), in

735 ILCS 5/1-102 states that it prohibits discrimination on the basis of physical or mental
disability . . .

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257.

Defendants Melton, Peterson, Dargel, Great West, Brummond, and Jensen

violated the IHRA as described above by: (a) Defendants Peterson, Dargel, and Ragan each
of them enjoying the fringe benefits at Defendant Melton but excluded Plaintiff because of
his disability; (b) refusing to grant Plaintiff the accommodation of being allowed to work
with her doctors restrictions of no carrying or lifting heavy items while routinely granting
the same accommodation to other, non-disabled employees who were similar in their ability
to work, such as Ms. Russell; and (c) failing to reinstate Plaintiff to the open positions at
Defendant Melton.
258. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen and Brummond each of them subjected Plaintiff to
damages by failing to provide a reasonable accommodation as described above.
259.

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

Ragan, Great West, Jensen, and Brummond either singly or jointly to continue deny Plaintiff
any reasonable accommodation with an indifference to the definition of a reasonable
accommodation as defined by the IHRA, Defendants Peterson, Dargel, Ragan, Great, Jensen,
and Brummond knew or should have known that Defendant Melton would violate the IHRA
leading to the harm suffered by Plaintiff as described above.
260.

As a direct result of conduct described herein by Defendant Melton including

but not limited to after learning of the indifference targeted against Plaintiff because of his
disability failed to take corrective action, Defendant Meltons manifest breach of the duty
to Plaintiff in violation of the IHRA, Plaintiff has suffered and continues to suffer general
and special damages as is more fully alleged above in excess of $758, 350 with an amount
to be established at trial, as well as, reasonable attorneys fees and costs pursuant to the
IHRA.
261. Plaintiff states and alleges that the conduct of Defendant Melton as described
above was undertaken with malice or indifference to Plaintiffs federal rights as described
herein, or Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive
damages in an appropriate amount to punish and deter such conduct in the future the exact
amount of such damages being subject to proof at trial.
262.

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


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COUNT IX
Constitutional and Civil Rights Pursuant to 42 U.S.C. 1985(3)
263.

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.
264.

By virtue of the foregoing, Defendants Melton, Melton Injury Benefit Plan,

Dargel, Great West, Jensen and Brummond agrees with Illinois16 Arbitrator Robert
Williams (Williams), and Illinois Arbitrator Lynette Thompson-Smith (:ThompsonSmith) singly or jointly each of them denied Plaintiff the free exercise or enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of made available by
Defendants to the general public they set in motion the chain of events depriving Plaintiff
because of his disability equal protection of the law; equal protection and immunities under
the law; interfering with Plaintiff in the free exercise or enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of made available by Defendants to the
general public leading to a violation of the 42 U.S.C. 1985(3), and denying Plaintiff the
right not to be deprived of property and liberty without due process of law.
265.

Plaintiff states and alleges that 42 U.S.C. 1985(3) in relevant part states:

(3) Depriving persons of rights or privileges


If two or more persons in any State or Territory conspire or go in disguise on the
highway or on the premises of another, for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; or for the purpose of preventing or
hindering the constituted authorities of any State or Territory from giving or securing
to all persons within such State or Territory the equal protection of the laws; or if two
or more persons conspire to prevent by force, intimidation, or threat, any citizen who
is lawfully entitled to vote, from giving his support or advocacy in a legal manner,
toward or in favor of the election of any lawfully qualified person as an elector for
President or Vice President, or as a Member of Congress of the United States; or to
injure any citizen in person or property on account of such support or advocacy; in
any case of conspiracy set forth in this section, if one or more persons engaged

16

Dombrowski v. Dowling, 459 F.2d 190, 194 (7th Cir. 1972)(Section 1985(3) does not expressly
identify any state involvement requirement.).

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therein do, or cause to be done, any act in furtherance of the object of such
conspiracy, whereby another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United States, the
party so injured or deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or more of the
conspirators.
266. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Dargel, Ragan, Great West, Jensen and Brummond agrees with Illinois Arbitrator Robert
Williams, and Illinois Arbitrator Lynette Thompson-Smith to have the State of Illinois adopt
policies or practices, i.e., the Texas Opt-Out ERISA Plan having the effect of discriminating
against disabled citizens who are residents of other states injured in Illinois; disabled
citizens who are hired in Illinois by out-of-state employers; disabled citizens who are hired
by in-state employers; citizens who are residents of other states by the negligence of a third
party in Illinois; and to deprive Plaintiff of his Fourteenth Amendment right to the equal
protection of the laws.
267.

Plaintiff states and alleges that Illinois Arbitrator Williams, Illinois Arbitrator

Thompson-Smith, Defendants Melton, Melton Injury Benefit Plan, Dargel, Ragan, Great
West, Jensen and Brummond individually and as a group deprived Plaintiff of a fair hearing
before the Commission since July 5, 2013.17
268.

Plaintiff states and alleges that Illinois Arbitrator Thompson-Smith states she

agrees with the telecommunication sent across state lines by Defendants Melton, Melton
Injury Benefit Plan, and Dargel that the employment contract indicated that Plaintiffs
claim was subject to Oklahoma law in furtherance of the object of the conspiracy to have
the State of Illinois adopt policies or practices, i.e., the Texas Opt-Out ERISA Plan whereby
Plaintiff was deprived of equal protection of the law; equal protection and immunities under
the law; interfering with Plaintiff in the free exercise or enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of made available by Defendants to the
general public, and denying Plaintiff the right not to be deprived of property and liberty
without due process of law as described above.
17

Cf., Falls v. Town of Dyer, 875 F.2d 146, 149 (7th Cir.1989)(If Falls can prove that the law of
Dyer is that Phillip H. Falls may not use portable signs, and everyone else may, then he has stated
a claim of irrational state action, of a bill of attainder by another name.).
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269.

Plaintiff states and alleges that Illinois Williams states he agrees with the

telecommunication sent across state lines statements by Defendants Great West, Jensen, and
Brummond that the employment contract indicated that Plaintiffs claim was subject to Ohio
law in furtherance of the object of the conspiracy to have the State of Illinois adopt policies
or practices, i.e., the Texas Opt-Out ERISA Plan whereby Plaintiff was deprived of equal
protection of the law; equal protection and immunities under the law; interfering with
Plaintiff in the free exercise or enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of made available by Defendants to the general public and
denying Plaintiff the right not to be deprived of property and liberty without due process of
law as described above.
270. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Peterson, Dargel, Ragan, Great West, Jensen, and Brummond each of them subjected
Plaintiff to damages by depriving Plaintiff of equal protection of the law as described above.
271.

Plaintiff states and alleges that by allowing Defendants Melton, Melton Injury

Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond to continue deny
Plaintiff the free exercise or enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of made available by Defendants to the general public with
an indifference to Plaintiffs Fourteenth Amendment right to the equal protection of the laws,
Defendants Peterson, Dargel, Ragan, Great, Jensen, and Brummond knew or should have
known that Defendants Melton, Melton Injury Benefit Plan, Peterson, Dargel, Ragan, Great
West, Jensen, and Brummond would violate to Plaintiffs Fourteenth Amendment right to
the equal protection of the laws as described above.
272.

As a direct result of conduct described herein by Defendants Melton, Melton

Injury Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond including
but not limited to their agreement to have the State of Illinois adopt policies or practices, i.e.,
the Texas Opt-Out ERISA Plan, Defendant Meltons manifest deprivation of Plaintiffs
Fourteenth Amendment right to the equal protection of the laws, Plaintiff has suffered and
continues to suffer general and special damages as is more fully alleged above in excess of
$758, 350 with an amount to be established at trial, as well as, reasonable attorneys fees
and costs pursuant to the 42 U.S.C. 1988.
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273.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs federal rights as described
herein, or Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive
damages in an appropriate amount to punish and deter such conduct in the future the exact
amount of such damages being subject to proof at trial.
274.

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


COUNT XI
(INVASION OF PRIVACY)

275.

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.
276.

Plaintiff states and alleges that Defendants Melton, and Dargel each of them

have disseminated Plaintiffs nonpublic identification, address, personal telephone number,


social security, dates of birth, medical records, and medical condition about Plaintiff to
Defendants Great West, Jensen, and Brummond without Plaintiffs permission which was
used for the purpose of an alleged ongoing contract dispute between Defendants Melton,
Melton Injury Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond
only after the event giving arise to the claim under the Plan insured by the Group Policy.
277.

At all relevant times herein, Plaintiff has not granted Defendants Melton,

Melton Injury Benefit Plan, Peterson, Dargel, Ragan, and others at their direction
permission to share any of his nonpublic personal information with Defendants Great West,
Jensen, and Brummond for the purpose of among other things determining the existence
of coverage that purportedly occurred only after the injury on May 3, 2013.
278.

At all times relevant herein, Plaintiff states and alleges that he had a

reasonable expectation of privacy to his nonpublic identification, address, personal


telephone number, social security, and medical records obtained by Defendants Great West,
Jensen, and Brummond for its commercial use without Plaintiffs permission as described
above.
279.

Plaintiff states and alleges that Section 652B of the Restatement (Second) of

Torts provides: One who intentionally intrudes, physically or otherwise, upon the solitude
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or seclusion of another or his private affairs or concerns, is subject to liability to the other
for invasion of his privacy, if the intrusion would be highly offensive to a reasonable
person. 18
280.

Plaintiff states and alleges that Defendants Dargel, Great West, Jensen, and

Brummond investigated Plaintiffs disability claim by gathering his personal information is


not a matter of public concern.
281. At all relevant times herein, Plaintiff states and alleges that Defendants Melton,
and Dargel by disseminating Plaintiffs nonpublic identification, address, personal telephone
number, social security, dates of birth, medical records, and medical condition about
Plaintiff to Defendants Great West, Jensen, and Brummond without Plaintiffs permission
attributed specific statements as to the contract dispute between Defendants Melton, Melton
Injury Benefit Plan and Defendant Great West to Plaintiff without his permission.
282.

Plaintiff states and alleges that Defendants Dargel, Great West, Jensen, and

Brummond knew or should have known that obtaining Plaintiffs medical records or
medical condition without his permission was highly offensive to a reasonable person.
283.

Plaintiff states and alleges that Defendants Melton, and Dargel knew or should

have known that by disseminating Plaintiffs nonpublic identification, address, personal


telephone number, social security, dates of birth, medical records, and medical condition
about Plaintiff to Defendants Great West, Jensen, and Brummond without Plaintiffs
permission would be highly offensive to a reasonable person.
284.

At all relevant times herein, Defendants Melton, Dargel, Melton Injury

Benefit Plan, Great West, Jensen, and Brummond either singly or jointly are using
Plaintiffs nonpublic personal information without Plaintiffs consent for the purpose of
among other things to facilitate the commercial advantage to Defendants Melton, Melton
Injury Benefit Plan, and Great West from denying the existence of coverage.
285. Plaintiff states and alleges that Defendants Melton, Melton Injury Benefit Plan,
Peterson, Dargel, Ragan, Great West, Jensen, and Brummond each of them subjected

18

Lawlor v. North American Corporation of Illinois, 983 N.E.2d 414, 424 (2012).
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Plaintiff to damages by disseminating, selling, or otherwise exploit Plaintiffs personal


information as described above.
286.

Plaintiff states and alleges that by allowing the examination of Plaintiffs

medical records or medical condition without Plaintiffs permission which was used for the
purpose of an alleged ongoing contract dispute between Defendants Melton, Melton Injury
Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond only after the
event giving arise to the claim under the Plan insured by the Group Policy Defendants
Melton, Melton Injury Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and
Brummond knew or should have known that the commercial exploitation of Plaintiffs
injuries would exacerbate and increase Plaintiffs injuries leading to the harm suffered by
Plaintiff as described above.
287.

As a direct result of conduct described herein by Defendants Melton, Melton

Injury Benefit Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond including
but not limited to the dissemination of Plaintiffs nonpublic personal information,
Defendants manifest invasion of Plaintiffs right to privacy, Plaintiff has suffered and
continues to suffer general and special damages as is more fully alleged above in excess of
$758, 350 with an amount to be established at trial, as well as, reasonable attorneys fees
and costs as provided by law.
288.

Plaintiff states and alleges that the conduct of Melton, Melton Injury Benefit

Plan, Peterson, Dargel, Ragan, Great West, Jensen, and Brummond as described above was
undertaken with Melton, Melton Injury Benefit Plan, Peterson, Dargel, Ragan, Great West,
Jensen, and Brummond malice or indifference to Plaintiff Johnsons injury expectation of
privacy, and peace of mind, or Plaintiffs need for medical treatment, Plaintiff seeks
exemplary and punitive damages in an appropriate amount to punish and deter such conduct
in the future the exact amount of such damages being subject to proof at trial.
289.

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

COUNT XII
BREACH OF CONTRACT, CONVERSION, AND UNJUST ENRICHMENT

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290.

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.
291.

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 from Defendant Melton while he
was in Illinois not Ohio, Oklahoma, Alabama, or any other state.
292.

Plaintiff states and alleges that Defendant Melton made an offer for

employment of Plaintiff.
293.

Plaintiff states and alleges that he accepted in Illinois Defendant Melton offer

for employment of Drivers, such as Plaintiff as described above.


294.

Plaintiff states and alleges in consideration for rendering his services to

customers of Defendant Melton including but not limited to Conexus and Defendant Melton
agreed to pay Plaintiff for all time worked as described above.
295.

Plaintiff states and alleges that he is and the person who made the offer of

employment on behalf of Defendant Melton are of mature age able to comprehend the
nature of the transaction and to protect his or her interest at all times relevant herein.
296.

Plaintiff states and alleges that the legal purpose of his employment agreement

with Defendant Melton is to render services to its customers including but not limited to
Conexus as described above.
297.

At all times relevant herein, Defendants Melton, Defendant Williams and

Plaintiff agreed in writing that Plaintiff would receive 2-6 days each month as time-off
referred to as home-time without pay, the parties agreed that notice of home-time would
be provided in advance solely by a flag sent electronically by Plaintiff Johnson to
Defendant Melton referred to as Macro 27-Home Time.
298.

At all times relevant herein, Defendants Melton, Williams and Plaintiff agreed

in writing that Plaintiff while at home would park the tractor and trailer in Gary, Indiana.
299.

On or about May 1, 2013, Plaintiff sent to Defendants his flag for time-off via

Macro 27 approximately six (6) weeks in advance setting it for June 12, 2013 at no time

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between May 1, 2013 and June 11, 2013 did any Defendant or third person(s) contact
Plaintiff about his performance, pay, time-off, disability, or anything else.
300.

On June 12, 2013, Plaintiff Johnson was off-duty and he had satisfied all of

his job duties to Defendants Melton and Williams on June 11, 2013 or by 8a.m. on June 12,
2013.
301.

Prior to June 12, 2013, Plaintiff as a Driver has performed the non-drive time

as described above including but not limited to waiting at customers for over 12 hours in
some cases and not leaving for work elsewhere Defendants failed have refused to pay
Plaintiff for his time.
302.

Prior to June 12, 2013 and at all times relevant herein, Defendants and

Plaintiff did not agree that Plaintiff was on-call at any time while off-duty nor did
Defendants pay Plaintiff for on-call time while off-duty.
303.

Prior to June 12, 2013 and at all times relevant herein, Defendants and

Plaintiff did not agree that Defendants would to pay Plaintiff for answering his personal
telephone, emails, PDAs while off-duty, or enroute to his home for time-off.
304.

On June 12, 2013, Defendants Melton and Williams while Plaintiff was off-

duty and enroute to his time-off for medical treatment to his injured left-hand demanded that
he continue to work and Defendant Williams threaten to call the police.
305.

On June 12, 2013, Defendants Melton and Williams have demanded that

Plaintiff while off duty, en-route to home, and otherwise on home-time relinquish his
possession of the commercial motor vehicle to a third party as recorded in the police report
#13G031971 by Police Department of Gary, Indiana.
306.

On June 12, 2013, Defendants Melton, Williams, and others at their direction

terminated Plaintiff from his employment as stated in the email authored by Dargel because
Plaintiff was not off-duty instead he had stolen the tractor while en-route home with an
injured left-hand and Police Department for the City of Gary was summoned to the scene
Plaintiff was detained for questioning ultimately he removed his personal property from the
vehicle.

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307.

Defendant Dargel has stated in writing stated that it was a poor decision for

Plaintiff to actually go home pursuant to the notice as agreed rather than Plaintiff being oncall while disabled and they ultimately terminated Plaintiff on June 12, 2013.
308.

Defendants and Plaintiff agreed in writing that Plaintiff upon termination of

his employment for any reason he would return all company property to Defendant Melton
terminal or a location designated by a safety officer and the parties did not agree that
Plaintiff would reimburse Defendants for transportation of anything from a location
designated by Defendant Melton safety officer to anywhere else.
309.

Plaintiff states and alleges that Defendants Melton, Dargel, and Williams each

of them subjected Plaintiff to damages by failing to perform obligations under the contract
as described above.
310.

Plaintiff states and alleges that Defendant Melton has withheld the identifiable

funds referred to as accessorial pay which Plaintiff continues his demand that Defendants
turn-over all funds collected from any third party that has received services rendered by a
Driver, such as Plaintiff, i.e., as wait-time, detention, lay-over which Plaintiff had demanded
and to which Plaintiff had an unfettered and immediate right to his funds as described above.
311.

Plaintiff states that any set-off from his final paycheck by Defendant Melton is

without any prior agreement19 with Defendant Melton.


312.

Plaintiff states and alleges that that Defendant Melton has withheld the

identifiable funds referred to as unauthorized miles and truck recovery charges in the
amount of -$1,162.00 which Plaintiff had demanded and to which Plaintiff had an unfettered
and immediate right to his funds as described above.
313.

Plaintiff states and alleges that that Defendant Melton has withheld the

identifiable funds referred to as accrued bonus pay; or accrued vacation pay which
Plaintiff had demanded and to which Plaintiff had an unfettered and immediate right to his
funds as described above.
19

An employer shall not deduct from an employees pay or otherwise demand reimbursement
from an employee for cash and/or inventory shortages unless the employees express written
consent is given freely at the time the deduction or demand for reimbursement is made. 56 Ill.
Adm. Code 300.730 (emphasis added).

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314.

As a direct and proximate result of the unlawful acts as described herein by

Defendant Melton acting by and through and its agents, servants and employees, including
but not limited to terminating Plaintiff while he was off-duty and en-route home, unpaid
Wages and benefits, Defendant Melton manifest breach of contract, Plaintiff would not have
lost his employment, reinstatement, the employee benefits, nor Defendants would have
profited from the conversion of funds belonging to Plaintiff, Plaintiff has suffered and
continues to suffer general and special damages as is more fully alleged above in excess of
$758, 350 with an amount to be established at trial, as well as, reasonable attorneys fees
and costs as provided by law.
315.

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

COUNT XIII
(WRONGFUL TERMINATION (VIOLATION OF PUBLIC POLICY))
316.

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.
317.

On or about July 14, 2014, Plaintiff Johnson has brought the conduct of

Defendant Melton to the attention of the U.S. Department of Labor and he has not received
a final Order in the more than 210 days.
318.

Plaintiff upon information and belief alleges that Defendant Melton in its his

retention, training, and/or supervision of Defendants Peterson, Dargel, Ragan, and Williams
or others at their direction assigned, authorized, allowed, or entrusted the employment of
Plaintiff; Plaintiffs rights under the Surface Transportation Assistance Act (STAA), 49
U.S.C. 31105 that Defendant Melton do so in a reasonable manner and within the clearly
established law on July 5, 2013.
319.

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

duly authorized employees, Defendants Dargel, Williams, and others at their direction
terminated Plaintiff from his employment as stated in the email authored by Defendant
Dargel stating because of among other things: Plaintiff took time off with an injury to
injured left-hand requiring medical treatment; Plaintiffs complaints of conditions that put
Drivers health and safety at risk by working off the clock, and Plaintiff was going to report
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these conditions to the Department of Labor does not relieve Defendant Melton of its
liability under the STAA that was clearly established on June 12, 2013 and at all times
relevant herein.
320.

Plaintiff states and alleges that Defendants Melton and Great West subjected

Plaintiff to damages including but not limited to the loss Wages, and deprivation of needed
medical treatment without corrective action, as described above.
321.

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

Ragan, and Williams to continue their employment at Defendant Melton without corrective
action Defendant Melton knew or should have known that Defendants Peterson, Dargel,
Ragan, and Williams each of them would retaliate against Plaintiff for speaking out about
the violations of the Constitution, federal law, FMCSRs, and Illinois law leading to the harm
suffered by Plaintiff in Illinois, as described above.
322.

As a proximate result of the conduct by Defendant Melton acting by and

through its duly authorized employees Defendants Dargel, Williams, and others at their as
described above Defendant Melton manifest breach of the employment contract, Plaintiff
has suffered and continues to suffer general and special damages as is more fully alleged
above in excess of $758, 350 with an amount to be established at trial, as well as, reasonable
attorneys fees and costs pursuant to the STAA.
323.

Plaintiff states and alleges that the acts as described above, which resulted in

Plaintiffs wrongful termination against public policy, were obnoxious, despicable, and
ought not to be suffered by any member of the community.
324.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs rights as described herein, or
Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive damages in an
appropriate amount to punish and deter such conduct in the future the exact amount of such
damages being subject to proof at trial.
325.

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

COUNT XIV
(RETALIATION IN VIOLATION OF THE ILLINOIS WORKERS
COMPENSATION ACT)
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326.

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.
327.

On or about June 17, 2014, Defendants Melton acting by and through its duly

authorized employees and/or agents served upon the Ohio Arbitrator in direct reply to the
arbitration of Plaintiffs workers compensation claim the email stating therein that among
other things: (a) Plaintiff was terminated for while on unpaid leave for his disability; (b)
Plaintiffs complaints and reports of conditions that put Drivers health and safety at risk by
working off the clock, and (c) Plaintiffs alleged stealing of a tractor and trailer on June
12, 2013.
328.

Plaintiff upon information and belief alleges that Defendant Melton in its his

retention, training, and/or supervision of Defendants Peterson, Dargel, Ragan, and Williams
or others at their direction assigned, authorized, allowed, or entrusted the employment of
Plaintiff; Plaintiffs benefits under the Illinois Workers Compensation Act, medical
treatment, and the insurance coverage decision for the medical treatment that Defendant
Melton do so in a reasonable manner and within the clearly established law on July 5, 2013.
329.

Plaintiff states and alleges that the unlawful conduct by Defendants Melton,

Dargel, Williams or other at their direction of implying that Plaintiff was terminated for
cause does not relieve Defendants of their liability under the Illinois Workers
Compensation was clearly established on June 12, 2013.20
330.

Plaintiff states and alleges that Defendant Dargel has states in his email that

Plaintiff Johnsons workers compensation claim was in retaliation for his termination as
described herein.
331.

Plaintiff states and alleges that Defendants Melton and Great West subjected

Plaintiff to damages including but not limited to the deprivation of needed medical
treatment without corrective action as described above.
20

See Interstate Scaffolding, Inc. v. Illinois Workers Compensation Commn, No. 107852, 2010
WL 199914 (Jan. 22, 2010); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 181, 23 Ill.Dec. 559, 563 384
N.E.2d 353, 357 (Ill. 1978); Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153 ( 2011); 85A O.S.
7.

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332.

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

Ragan, and Williams to continue their employment at Defendant Melton without corrective
action Defendant Melton knew or should have known that Defendants Peterson, Dargel,
Ragan, and Williams each of them would retaliate against Plaintiff for speaking out about
the violations of the Constitution, federal law, FMCSRs, and Illinois law leading to the harm
suffered by Plaintiff in Illinois as described above.
333.

As a proximate result of the conduct by Defendants Melton acting by and

through its duly authorized employees Defendants Dargel, including among other things
disclosing to the Ohio Arbitrator Plaintiffs complaints and reports of conditions that put
Drivers health and safety at risk by working off the clock, Defendant Melton manifest
retaliation against Plaintiff in violation of public policy, Plaintiff has suffered and continues
to suffer general and special damages as is more fully alleged above in excess of $758, 350
with an amount to be established at trial, as well as, reasonable attorneys fees and costs as
provided by law.
334.

Plaintiff states and alleges that the acts as described above, which resulted in

Plaintiffs wrongful termination, retaliatory discharge, and failure to reinstate ought not to
be suffered by any member of the community.
335.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs rights as described herein, or
Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive damages in an
appropriate amount to punish and deter such conduct in the future the exact amount of such
damages being subject to proof at trial.
336.

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

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COUNT XV
(UNLAWFUL AND UNPERMITTED ACTIVITY UNDER ILLINOIS WORKERS
COMPENSATION ACT PUBLIC21 AND PRIVATE NUISANCE AGAINST
DEFENDANTS, MELTON, PETERSON, DARGEL, AND RAGAN)
337.

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.
338.

Plaintiff is informed and believes, and on that basis alleges, that Defendant

Melton is operating without workers compensation insurance that complies with the Illinois
Workers Compensation Act, which is likely to injure workers it comes into contact with
while continuously soliciting employment applications in Illinois from Drivers, such as
Plaintiff causing immediate and irreparable harm to the public22 in the form of widespread
infliction of emotional distress, which will not be compensable by money damages.
339.

Plaintiff states and alleges that so as not to reduce its own profitability

Defendant Great West Casualty Company states that no insurance23 exists for injuries
suffered by Plaintiff, which is likely to injure those people Defendant Melton comes into
contact with causing immediate and irreparable harm to the public in the form of widespread
irreparable injuries that cannot compensable by money damages, such as not giving a
plaintiff needed medical treatment.
340.

Plaintiff states and alleges that Defendant Melton by submitting the certificate

of insurance identified as WC24111I to the Illinois Workers Compensation Commission


21

Restatement (Second) of Torts, 821B. The three circumstances are:


(a) Whether the conduct involves a significant interference with the public health, the public safety,
the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect,
and, as the actor knows or has reason to know, has a significant effect upon the public right. See
Wheat v. Freeman Coal Mining Corp., 23 Ill. App. 3d 14, 18 (1974)(citing Illinois cases from 1901
to support conclusion that Illinois courts have adopted the Restatement definition of nuisance);
Gilmore v. Stanmar, Inc., 261 Ill. App. 3d 651, 660 (1994)(summarizing cases).
22

See In re Methyl Teriary Butyl Ether (MTBE) Products Liability Litigation, 175 F. Supp. 2d
593, 627-30 (S.D. N.Y. 2001)(denying motion to dismiss the public nuisance claims and various
defenses).
23

See Southern County Mutual Insurance Company v. Great West Casualty Company, 436 S.W.3d
348 (2014).
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(IWCC) for whom Defendants Melton, Peterson, Dargel, Ragan or others at their
direction assigned, authorized, allowed, or entrusted the fair hearing of Plaintiffs temporary
disability, benefits, medical treatment, and the insurance coverage decision for the medical
treatment that they do so in a reasonable manner and within the clearly established law on
July 5, 2013.
341.

Plaintiff states and alleges that a public nuisance has been defined under

Illinois law as the doing of or the failure to do something that injuriously affects the safety,
health or morals of the public, or works some substantial annoyance, inconvenience or
injury to the public.24
342.

Plaintiff states and alleges that 820 ILCS 305/25.5 in relevant part states:
Sec. 25.5. Unlawful acts; penalties.
(a) It is unlawful for any person, company, corporation, insurance carrier,
healthcare provider, or other entity to:

(2) Intentionally make or cause to be made any false


or fraudulent material statement or material representation for the
purpose of obtaining or denying any workers compensation benefit.
(6) Intentionally make or cause to be made any false
or fraudulent material statement or material representation on an
initial or renewal self-insurance application or accompanying
financial statement for the purpose of obtaining self-insurance status
or reducing the amount of security that may be required to be
furnished pursuant to Section 4 of this Act.
(8) Intentionally assist, abet, solicit, or conspire
with any person, company, or other entity to commit any of the acts
in paragraph (1), (2), (3), (4), (5), (6), or (7) of this subsection (a).
(9) Intentionally present a bill or statement for the
payment for medical services that were not provided.
For the purposes of paragraphs (2), (3), (5), (6), (7), and (9), the term
statement includes any writing, notice, proof of injury, bill for
services, hospital or doctor records and reports, or X-ray and test
results.
(b) Sentences for violations of subsection (a) are as follows:
24

Village of Wilsonville v. SCA Services, Inc., 86 Ill. 2d 1, 21-22 (1981), quoting W. Prosser, Torts
88, at 583 n.29 (4th ed. 1971).

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(1) A violation in which the value of the property


obtained or attempted to be obtained is $300 or less is a Class A
misdemeanor.
(2) A violation in which the value of the property
obtained or attempted to be obtained is more than $300 but not more
than $10,000 is a Class 3 felony.
(3) A violation in which the value of the property
obtained or attempted to be obtained is more than $10,000 but not
more than $100,000 is a Class 2 felony.
(4) A violation in which the value of the property
obtained or attempted to be obtained is more than $100,000 is a
Class 1 felony.
343.

Plaintiff states and alleges that Defendant Melton, Peterson, Dargel, Ragan,

and others at their direction have presented 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
(hereinafter the Ohio Form) not approved for use in Illinois by the Illinois Department of
Insurance to the Illinois Workers Compensation Commission (IWCC) leading to the
blocked or obstructed right to workers compensation in Illinois and is likely to injure the
public in the form of widespread irreparable injuries that cannot compensable by money
damages, such as not giving a plaintiff needed medical treatment.
344.

Plaintiff states and alleges that Defendant Great West, Jensen, Brummond,

and others at their direction have presented non-arbitrable issue(s), 25 including but not
limited to: the insurance coverage under the policy issued to Defendant Melton for the
liability imposed by the Illinois Workers Compensation Act to the IWCC leading to the
blocked or obstructed the right to workers compensation in Illinois and is likely to injure
the public in the form of widespread irreparable injuries that cannot compensable by money
damages, such as not giving a plaintiff needed medical treatment.
345.

Plaintiff states and alleges that Defendant Melton, Peterson, Dargel, Ragan,

and others at their direction have presented non-arbitrable issue(s), as described above

25

See Southern County Mutual Insurance Company v. Great West Casualty Company, 436 S.W.3d
348 (2014).
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leading to the blocked or obstructed workers compensation in Illinois by Plaintiff and


depriving Plaintiff of needed medical treatment since June 12, 2013.
346.

Plaintiff states and alleges that Defendant Great West, Jensen, Brummond,

and others at their direction have presented non-arbitrable issue(s), as described above to
the IWCC leading to the blocked or obstructed the right to workers compensation in Illinois
by Plaintiff and depriving Plaintiff of needed medical treatment since June 12, 2013.
347.

Pursuant to Rule 201(b)(2) of the Federal Rules of Evidence, Plaintiff states

and alleges that Lawmakers have determined in a Letter (hereinafter referred to as a Race
to the Bottom Letter or Letter) to the Department of Labor through the reports of
ProPublica and NPR at https://www.propublica.org/article/the-demolition-of-workerscompensation as described in Group Exhibit F attached hereto and incorporated herein by
reference and http://www.npr.org/sections/thetwo-way/2015/05/06/404762323/illinoisassemblys-rare-hearing-challenges-proposed-workers-comp-cutbacks that the blocking or
obstructing the right to workers compensation in Illinois by Defendants including but not
limited to deprivation of medical treatment to an injured worker in need of medical
treatment involves a significant threat to the health, the public safety, the public peace, the
public comfort or the public convenience.
348.

Plaintiff is informed and believes, and on that basis alleges that so as not to

reduce its own profitability Defendant Melton indifference towards the harm targeted
against individuals who have suffered a physical impairment from an injury at work, such as
Plaintiff even when significant losses from the deprivation of need medical treatment are
probable consequences of its actions leading to the inevitable homelessness is so arbitrary and

abusive as to shock the conscience.


349.

Plaintiff is informed and believes, and on that basis alleges that so as not to

reduce their own bonuses Defendants Peterson, Dargel, and Ragan each of them act with
indifference towards the harm targeted against individuals who have suffered a physical
impairment from an injury at work, such as Plaintiff even when significant losses from the
deprivation of need medical treatment are probable consequences of its actions leading to the

inevitable homelessness is so arbitrary and abusive as to shock the conscience.

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350.

As more fully described above, Plaintiff states and alleges that the Illinois

Legislature has rejected the Race To The Bottom and recommended that Defendants comply
with the Illinois Workers Compensation Act without amendments thereto, Defendants have
refused to comply with the Illinois Legislatures recommendation and Report, and has
offered no valid reason for such refusal to discontinue the conduct is proscribed by a
statute, ordinance or administrative regulation.26
351.

As more fully described above, Plaintiff states and alleges that Defendants

each of them have presented non-arbitrable issue(s), as described above leading to the
blocked or obstructed workers compensation in Illinois by Plaintiff and depriving Plaintiff
of needed medical treatment since June 12, 2013 and is of a continuing nature.
352.

As more fully described above, Plaintiff states and alleges that Defendants

Melton, Peterson, Dargel, and Ragan each of them individually and as group had knowledge
that their indifference towards the harm targeted against individuals, such as Plaintiff who
have suffered a physical impairment from an injury at work identified as 85WC014695;
86WC023188; 01WC055066; 01WC055050; 02WC057122; 04WC059134; 06WC1152;
07WC051882; 08WC018857, and 13WC021814 leading to the inevitable homelessness is
of a continuing nature.
353.

Plaintiff states and alleges that Defendants Melton and Great West subjected

Plaintiff to damages including but not limited to the deprivation of needed medical
treatment without corrective action, as described above.
354.

As more fully described above, Plaintiff states and alleges that so as not to

reduce their own profitability Defendants Melton, Peterson, Dargel, Ragan, or others at their
direction by blocking or obstructing the right to workers compensation in Illinois
Defendants Melton, Peterson, Dargel, and Ragan knew or should have known that blocking
or obstructing the right to workers compensation in Illinois would lead to a significant
threat to the health, the public safety, the public peace, the public comfort or the public
convenience.

26

Restatement (Second) of Torts 821B(2)(1979).


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355.

As a direct result of conduct described herein by Defendants Melton, Peterson,

Dargel, and Ragan including but not limited to blocking or obstructing the right to workers
compensation in Illinois, Defendant Melton manifest breach of the duty to Plaintiff in
violation of the duties imposed by federal and state law, Plaintiff has suffered and continues
to suffer general and special damages as is more fully alleged above in excess of $758, 350
with an amount to be established at trial, as well as, reasonable attorneys fees and costs as
provided by law.
356.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs rights as described herein, or
Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive damages in an
appropriate amount to punish and deter such conduct in the future the exact amount of such
damages being subject to proof at trial.
357.

An injunction would be appropriate because Defendant Melton is illegally

transporting personal property for compensation to and from Illinois without complying
with the Illinois Workers Compensation Act designed to protect the public health, safety
and welfare as outlined above.
358.

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

COUNT XVI
27

(Negligent Hiring, Retention, or Supervision Against Defendant Melton)


359.

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.

It is the majority rule in Illinois that once an employer admits responsibility under respondeat
superior, a plaintiff may not proceed against the employer on another theory of imputed liability.
Gant v. L.U. Transport, Inc., 770 N.E.2d 1155, 1159 (Ill. App. Ct. 2002); Ledesma v. Cannonball,
Inc., 538 N.E.2d 655, 661 (Ill. App. Ct. 1989); Neff v. Davenport Packing Co., 268 N.E.2d 574, 575
(Ill. App. Ct. 1971). Under this rule, if it is undisputed that the employer is liable for the employees
negligence under respondeat superior, then a cause of action under another theory of imputed
liability like negligent hiring, entrustment, or supervision is duplicative and unnecessary.
Thompson v. Northeast Ill. Regl Comm. R.R. Corp., 854 N.E.2d 744, 747 (Ill. App. Ct. 2006).
Lambert v. Jung, No. 1:13-cv-6030, (N.D.Ill. Nov. 4, 2015).
27

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360.

At all times relevant herein, the acts or omissions were committed by

Defendants Peterson, Dargel, Ragan, and Williams occurred within the scope of
employment at Defendant Melton who has failed to take corrective action upon learning of
among other things the violation of Plaintiffs federal rights; unpaid Wages; wrongful
termination; breach of contract; retaliation; and the indifference to the discrimination
targeted against Plaintiff because of his disability by Defendants Dargel and Ragan as
described above.
361.

Plaintiff upon information and belief alleges that Defendant Melton in its his

retention, training, and/or supervision of Defendants Peterson, Dargel, Ragan, and Williams
or others at their direction assigned, authorized, allowed, or entrusted the employment of
Plaintiff; Plaintiffs benefits under ERISA, medical treatment, and the insurance coverage
decision for the medical treatment that Defendant Melton do so in a reasonable manner and
within the clearly established law on July 5, 2013.
362.

Plaintiff states and alleges that Defendant Melton is in receipt of its operating

authority issued by the Federal Motor Carrier Safety Administration (FMCSA) at all times
relevant herein.
363.

Plaintiff states and alleges that Congress28 states in the Motor Carrier Act of

1980, P.L. 96-296 (MCA) that the purpose of section 30 was to create additional incentives
to carriers to maintain and operate their trucks in a safe manner as well as to assure that
carriers maintain an appropriate level of financial responsibility.
364.

Plaintiff states and alleges that the FMCSA states: In addition to filing an

application for operating authority, all applicants for motor carrier, forwarder, and broker
authorities must have specific insurance and legal process agent documents on file before
the FMCSA will issue the authorities at https://www.fmcsa.dot.gov/registration/insurancerequirements.

28

H.R. Rep. No. 96-1069, at 419 (1980)


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365.

Plaintiff states and alleges that 387.5 of the FMCSR in relevant part states:
As used in this subpart
Accident includes continuous or repeated exposure to the same conditions
resulting in public liability which the insured neither expected nor intended.
Bodily injury means injury to the body, sickness, or disease including death
resulting from any of these. . .
Public liability means liability for bodily injury or property damage and
includes liability for environmental restoration.

366.

Plaintiff states and alleges that 387.7 of the FMCSR in relevant part states:

(a) No motor carrier shall operate a motor vehicle until the motor carrier has obtained and
has in effect the minimum levels of financial responsibility as set forth in 387.9 of this
subpart.
367.

Plaintiff states and alleges that Defendant Melton is subject to all of the

FMCSRs as described above.


368.

Plaintiff states and alleges that Defendant Melton knew or should have known

of the activities as described in Exhibit G attached hereto and incorporated herein reference
Defendant Peterson within the scope of his employment is among individuals who commit
violations of the FMCSRs, specifically the continuous recruitment in Illinois of Drivers,
such as Plaintiff with the promise of high pay that remains unpaid as well as the failure to
meet the minimum levels of financial responsibility as set forth in 387 without litigation,29
and failed to warn, train, or educate the public about the unpaid Wages and the false
Endorsement for Motor Carrier Policies of Insurance for Public Liability under Sections 29
and 30 of the Motor Carrier Act of 1980 Form MCS 90 to the FMCSA and Illinois
allowing them to continuing operations across state lines to and from Illinois where they
would have access to unwitting professional Drivers, such as Plaintiff in Illinois in
conscious disregard of the substantial likelihood that Drivers from Illinois would suffer
irreparable injuries as a result of its actions, as described above.
369.

Plaintiff states and alleges that Defendant Melton subjected Plaintiff to

damages including but not limited to loss wages by among other things allowing Defendants
29

See Southern County Mutual Insurance Company, supra.


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Peterson, Dargel, Ragan, and Williams to continue their employment at Defendant Melton
without corrective action.
370.

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

Ragan, and Williams to continue their employment at Defendant Melton without corrective
action Defendant Melton knew or should have known that Defendants Peterson, Dargel,
Ragan, and Williams each of them would violate the Constitution, federal law, FMCSRs,
and Illinois law leading to the harm suffered by Plaintiff in Illinois, as described above.
371.

As a direct result of conduct described herein by Defendant Melton including

but not limited to after learning of its employees violation of Plaintiffs federal rights failed
to take corrective action, Defendant Melton manifest breach of the duty to Plaintiff in
violation of the duties imposed by federal and state law, Plaintiff has suffered and continues
to suffer general and special damages as is more fully alleged above in excess of $758, 350
with an amount to be established at trial, as well as, reasonable attorneys fees and costs as
provided by law.
372.

Plaintiff states and alleges that the conduct of Defendant Melton as described

above was undertaken with malice or indifference to Plaintiffs rights as described herein, or
Plaintiffs need for medical treatment, Plaintiff seeks exemplary and punitive damages in an
appropriate amount to punish and deter such conduct in the future the exact amount of such
damages being subject to proof at trial.
373.

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

WHEREFORE, Plaintiff David Johnson respectfully requests entry of a judgment


against Defendants MELTON TRUCK LINES, INC., ROBERT A. PETERSON,
RAMONA WILLIAMS, MICHAEL DARGEL, MELTON TRUCK LINES, INC.
OCCUPATIONAL INJURY BENEFIT PLAN, ROBERT RAGAN, GREAT WEST
CASUALTY COMPANY, TANYA JENSEN, BLANE J. BRUMMOND and all of them,
jointly and severally, as follows:
(1)

For general and special damages according to proof at trial;

(2)

Treble damages for as authorized by law;

(3)

For punitive damages as authorized by law against Defendants, and each of


them according to proof at trial;
- 69 -

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 70 of 207 PageID #:1342

(4)

For civil penalties and such other penalties per each separate violation as
authorized by statute;

(5)

Declaratory relief that he is entitled to disability benefits, past and present,


plus pre and post judgment;

(6)

Awarding pre- and post-judgment interest;

(7)

Award litigation costs and expenses;

(8)

Attorneys fees to the Plaintiff as a Driver where authorized by statute or law;

(9)

Award any other appropriate equitable relief to the Plaintiff as a Driver; and

(10)

Award any additional and further relief as this Court may deem just and
proper.
JURY DEMAND

Pursuant to Fed.R.Civ.P. 38(b), Plaintiff demands trial by jury of all issues so triable
under the law.
Respectfully submitted this May 9, 2016.
BY:_______/s/___________________________
DAVID JOHNSON
VERIFICATION BY CERTIFICATION
Under penalties as provided by law 28 U.S.C. 1746, the undersigned certifies that
the statements set forth in this instrument are true and correct, except as to matters therein
stated to be on information and belief and as to such matters the undersigned certifies that he
verily believes the same to be true.
________/s/___________________________
DAVID JOHNSON
DAVID JOHNSON
DAVID JOHNSON
901 East 56th Street, 1C
Brooklyn, NY 11234
718-251-6063

- 70 -

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 71 of 207 PageID #:1343

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Print

Page 1 of 3
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 89 of 207 PageID #:1361

Subject:

Ask Any Melton Driver Why They Drive Melton

From:

Melton Truck Lines (priboy@ad-drivers.com)

To:

djohn1201@yahoo.com;

Date:

Saturday, May 7, 2016 10:05 AM

Click here to Call Now 877-258-3796, Learn More


$2K signing bonus extended through May 31st
Call now to speak with a Melton Recruiter, that will answer any and all
questions about a career with Melton honestly and help you get started on
the Road to Success or click the "Learn More" link below.

Ask Any Melton Driver, Why They Drive Melton, We Do.


We ask all of them and from time to time we want to share some of their
answers with you, but please, we encourage you to, "Ask Any Melton
Driver Why", you'll be glad you did.
At Melton, our pay is in the Top 1%, our fleet is one of the newest on the
road, our commitment to your safety, your health, and your success are
second to none, so make the call now (8772583796) to change your life.
Melton Truck Lines wants You to join our growing fleet of professional
drivers. Here is what a few of our drivers said when we asked them why
they Drive Melton:
"I really appreciate the way I'm treated here. You can

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Page 2 of 3
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 90 of 207 PageID #:1362

walk into any department and they all know your


name and who you are, and you will always get a
hug... I've been here 9 years, and I plan to drive for
Melton until they put me in the ground."
Melton Million Miler Mitch Henize

"I've been here six years and I wouldn't go anywhere


else. Melton is better than any other company I've
worked for and really intune to drivers' needs. We
got two pay raises in the last year, which is unheard
of, and everyone cares about your success and your
safety. Melton wants the best for their drivers;
everyone cares about your success and your safety.
It's not just a job; you're part of a family." Melton
Blue Knight Eva Gray
"I've been with Melton for 22 years. Melton's owner,
Bob, and all of the staff not only listens to drivers'
concerns, but also takes care of them. Here, you're
not just a number, you're a face with a name. Melton
has tremendous respect for us and our families.
Spouses are just as much a part of Melton as drivers.
They know that a happy driver is more successful."
Melton Ambassador of the Road Alton Jackson and
his wife Rosie.
Call Now and take advantage of
our high freight which will keep
you moving in our driver friendly
shipping lanes year round. Join us
and see what makes Melton the
Best.
Sincerely,
Melissa Stephan
Recruiting Manager
Melton Truck Lines
8772583796

Melton Truck Lines Recruiting Video

Apply Now Online

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5/9/2016

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Page 3 of 3
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 91 of 207 PageID #:1363

Get in to Melton's Paid Orientation sooner by filling


out our full online application now by clicking on the
link to the right. Not ready for a full app, click the
"Learn More" link below and there is a short online
form available there along with more information
about a career with Melton Truck Lines.
~ Learn More ~

Copyright 2016.
All Rights Reserved.
Melton Truck Lines, 808 N. 161st East Ave., Tulsa, OK 74116
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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 92 of 207 PageID #:1364

Subject:

Get Fit, Financially and Physically with Melton

From:

Melton Truck Lines (priboy@ad-drivers.com)

To:

djohn1201@yahoo.com;

Date:

Saturday, April 30, 2016 10:05 AM

Call Now: 877-258-3796 |Learn More/Apply Now | Recruiter Live Chat

Flatbed Drivers
The Best Of The Best
The Highest Paid - The Most Fit - The Most Respected
At Melton Truck Lines, every driver "counts"!
We care about our drivers' happiness, and their
health, because they are part of our family. In
addition to Top 1% pay in the industry and the
best equipment on the road, we also offer:
* FREE Onsite Health and Dental Clinics
* FREE membership to our Tulsa and Laredo gym with State-of-the-Art equipment
* BCBS Health, Dental and Vision Coverage
Flatbed is tough work, but our drivers enjoy the workout and pride of strapping their loads
safely. Take the first "step" to getting paid to get fit; ask a Melton driver why he loves
flatbed or call a recruiter at 877-258-3796. Upgrade your physical and financial fitness! Be
a Melton Flatbedder.
Melton Truck Lines, a premier air-ride flatbed carrier based in Tulsa, OK, was recently
named a Best Fleet to Drive For by the Truckload Carriers Association (TCA) and
CarriersEdge.

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Page 2 of 3
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 93 of 207 PageID #:1365

Melton is hiring Class A CDL Drivers with recent OTR


experience as well as recent CDL school graduates.

Top 1% Pay
401K/Health Insurance
Free Onsite Clinics/Dentist
$40 Tarp Pay
CSA Friendly Equipment
Strong Safety Culture
Pet & Rider Programs
Learn More/Apply Now

Melton Truck Lines


877-258-3796
meltontruck.com

Make customers smile with a quick "thank you" note. Respond to actions your readers have
taken, such as signing up to your email program, making a purchase, being loyal customers,
and more.

Melton Truck Lines, 808 N. 161st East Ave., Tulsa, OK 74116


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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 94 of 207 PageID #:1366
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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 95 of 207 PageID #:1367

Subject:

Get Fit, Financially and Physically with Melton

From:

Melton Truck Lines (priboy@ad-drivers.com)

To:

djohn1201@yahoo.com;

Date:

Tuesday, April 26, 2016 10:08 AM

Call Now: 877-258-3796 |Learn More/Apply Now | Recruiter Live Chat

Flatbed Drivers
The Best Of The Best
The Highest Paid - The Most Fit - The Most Respected
At Melton Truck Lines, every driver "counts"!
We care about our drivers' happiness, and their
health, because they are part of our family. In
addition to Top 1% pay in the industry and the
best equipment on the road, we also offer:
* FREE Onsite Health and Dental Clinics
* FREE membership to our Tulsa and Laredo gym with State-of-the-Art equipment
* BCBS Health, Dental and Vision Coverage
Flatbed is tough work, but our drivers enjoy the workout and pride of strapping their loads
safely. Take the first "step" to getting paid to get fit; ask a Melton driver why he loves
flatbed or call a recruiter at 877-258-3796. Upgrade your physical and financial fitness! Be
a Melton Flatbedder.
Melton Truck Lines, a premier air-ride flatbed carrier based in Tulsa, OK, was recently
named a Best Fleet to Drive For by the Truckload Carriers Association (TCA) and
CarriersEdge.

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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 96 of 207 PageID #:1368

Melton is hiring Class A CDL Drivers with recent OTR


experience as well as recent CDL school graduates.

Top 1% Pay
401K/Health Insurance
Free Onsite Clinics/Dentist
$40 Tarp Pay
CSA Friendly Equipment
Strong Safety Culture
Pet & Rider Programs
Learn More/Apply Now

Melton Truck Lines


877-258-3796
meltontruck.com

Make customers smile with a quick "thank you" note. Respond to actions your readers have
taken, such as signing up to your email program, making a purchase, being loyal customers,
and more.

Melton Truck Lines, 808 N. 161st East Ave., Tulsa, OK 74116


SafeUnsubscribe djohn1201@yahoo.com

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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 97 of 207 PageID #:1369
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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 98 of 207 PageID #:1370

Subject:

Get Fit, Financially and Physically with Melton

From:

Melton Truck Lines (priboy@ad-drivers.com)

To:

djohn1201@yahoo.com;

Date:

Saturday, April 9, 2016 10:02 AM

Call Now: 877-258-3796 |Learn More/Apply Now | Recruiter Live Chat

Flatbed Drivers
The Best Of The Best
The Highest Paid - The Most Fit - The Most Respected
At Melton Truck Lines, every driver "counts"!
We care about our drivers' happiness, and their
health, because they are part of our family. In
addition to Top 1% pay in the industry and the
best equipment on the road, we also offer:
* FREE Onsite Health and Dental Clinics
* FREE membership to our Tulsa and Laredo gym with State-of-the-Art equipment
* BCBS Health, Dental and Vision Coverage
Flatbed is tough work, but our drivers enjoy the workout and pride of strapping their loads
safely. Take the first "step" to getting paid to get fit; ask a Melton driver why he loves
flatbed or call a recruiter at 877-258-3796. Upgrade your physical and financial fitness! Be
a Melton Flatbedder.
Melton Truck Lines, a premier air-ride flatbed carrier based in Tulsa, OK, was recently
named a Best Fleet to Drive For by the Truckload Carriers Association (TCA) and
CarriersEdge.

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5/9/2016

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Page 2 of 3
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 99 of 207 PageID #:1371

Melton is hiring Class A CDL Drivers with recent OTR


experience as well as recent CDL school graduates.

Top 1% Pay
401K/Health Insurance
Free Onsite Clinics/Dentist
$40 Tarp Pay
CSA Friendly Equipment
Strong Safety Culture
Pet & Rider Programs
Learn More/Apply Now

Melton Truck Lines


877-258-3796
meltontruck.com

Melton Truck Lines, 808 N. 161st East Ave., Tulsa, OK 74116


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Page 1 of 2
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 101 of 207 PageID #:1373

Subject:

Melton is Hiring Drivers Now

From:

Melton Truck Lines (priboy@meltontruck.com)

To:

djohn1201@yahoo.com;

Date:

Thursday, March 17, 2016 10:15 AM

Call Now: 877-258-3796 |Learn More/Apply Now | Recruiter Live Chat

No Flatbed Experience, No Problem, We'll Train You to Succeed.

Call 877-258-3796 Now to Speak With a Melton Recruiter.


Recently, we welcomed almost 100 of our top tenured drivers to our annual Ambassador's
breakfast and Company Awards Banquet in Tulsa, OK. We conducted several roundtables
and asked these top hands, "Why flatbed?". Overwhelmingly, these professionals said that
they loved the challenge and simply wouldn't do anything else because they love to be
challenged mentally and physically -and knew they make more money. In addition, these
drivers appreciated that they don't have to mess with the hassles of lumpers, grocery
warehouses, 2am unloading times, and bumping docks.
We know flatbedders are the cream of the crop, the fittest drivers in the industry, and the
most respected. At Melton, we appreciate every driver and offer our drivers all of the
support they need to be successful. Our proactive Maintenance department, dedicated

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Page 2 of 2
Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 102 of 207 PageID #:1374
Driver Services team, 24/7 support lines for our drivers and their families, combined with
the respect and friendliness with which all of our drivers are treated are what make Melton
different.
The camaraderie among flatbedders is something special and Melton drivers are known for
their courteousness and willingness to help others. Our senior drivers are always willing to
show those newer to flatbed the correct way to secure loads and offer tips and tricks of the
trade to help them succeed. Almost every Melton driver you speak with has a story of how
another Melton driver helped them when they were getting started and they love to, "pay it
forward".

Melton is hiring Class A CDL Drivers with recent OTR


experience as well as recent CDL school graduates.

Top 1% Pay
401K/Health Insurance
Free Onsite Clinics/Dentist
$40 Tarp Pay
CSA Friendly Equipment
Strong Safety Culture
Pet & Rider Programs
Learn More/Apply Now

Melton Truck Lines


877-258-3796
meltontruck.com

Melton Truck Lines, 808 N. 161st East Ave., Tulsa, OK 74116


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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 103 of 207 PageID #:1375

EXHIBIT B

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 104 of 207 PageID #:1376

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 105 of 207 PageID #:1377

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 106 of 207 PageID #:1378

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 107 of 207 PageID #:1379

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 108 of 207 PageID #:1380

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 109 of 207 PageID #:1381

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 110 of 207 PageID #:1382

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 111 of 207 PageID #:1383

EXHIBIT C

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 112 of 207 PageID #:1384

MASTER MOTOR CARRIER AGREEMENT


THIS AGREEMENT, effective as of _______________, 20___, is made by and between CONEXUS, LLC, 808
N.
th E. A e., Tulsa, OK
CONEXU , a d ______________________, ith a office at
___________________, __________________ , ___ _____ Ca ie .
WHEREA, CONEXU a a ges t a spo tatio se i es as a logisti s o pa , shippe s age t o
property broker for and on behalf of various customers; and
WHEREAS, Carrier is a motor carrier providing contract carriage services, with U.S. interstate operating
authority at U.S. Docket No. MC-__________, and/or U.S. DOT No. ______________, (and if applicable,
U.S. state and/or Canadian provincial authority for the state(s)/province(s) of ________________ at
Docket No(s). ____________ [Note attach separate schedule if needed, but in any case, attach copies
of all operating authorities]); and
WHEREAS, Carrier is legally authorized to provide all freight transportation and related services
hereunder as a motor contract carrier, and Carrier represents it can and will meet the distinct and
particular transportation needs and preferences of CONEXUS and its customers in accordance with the
terms and conditions hereof;
NOW, THEREFORE, for value received, the parties agree as follows:
1. Contract Carriage. All freight tendered by CONEXUS and transported by Carrier, and all services
provided by Carrier to or for the benefit of CONEXUS or its customers shall be deemed contract
carriage (49 U.S.C. 14101(b)) subject to this Agreement; to any applicable schedules, addenda or
do u e tatio o o he eafte issued o autho ized CONEXU olle ti el s hedules ; to a
appli a le usto e se i e e ui e e ts se i e e ui e e ts ; a d to a U..C. Title 49 rights
or remedies not inconsistent with this Agreement. No contrary or inconsistent terms and conditions
shall appl , hethe i Ca ie s u e t o futu e ules ta iffs, ules o ate pu li atio s, ills of
lading, waybills, manifests, shipping documentation, or otherwise. Pursuant to 49 U.S.C.
14101(b)(1), the parties waive Title 49 rights or remedies (except registration, insurance or safety
fitness provisions) that conflict or are inconsistent with this Agreement.

2. Operating Authorities, Safety Rating and Insurance Coverage. Carrier warrants that it has a
singular carrier operating authority under the name and number reflected above, and does not have
or maintain separate broker authority under which to transfer or otherwise assign loads tendered
under this contract. Carrier understands and agrees that all carriage assigned under this Agreement
must be performed by trucks operating specifically under the DOT authority (name and number
above) and by no other carrier. Carrier has and will maintain a satisfactory safety rating; that its
aforesaid governmental authorities are valid and in good standing; that Carrier always will remain
Initial_______
Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116
(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 10 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 113 of 207 PageID #:1385

authorized to lawfully furnish all transportation and related services provided for herein; and that
Carrier will immediately notify CONEXUS in writing of any loss, suspension or reduction of its
operating authorities, safety rating, insurance coverages, or where at any given time it exceeds
threshold levels in any two CSA categories. Carrie autho izes CONEXU to he k Ca ie s fi a ial
status at any time via D&B reports or similar services.

3. Receipts and Bills of Lading Carrier shall issue and sign a standard uniform straight bill of lading or
receipt acceptable to CONEXUS and its customers for each shipment, but the absence or loss
thereof shall not relieve Carrier of its obligations with respect to any shipment. Carrier and its
drivers will inspect each bill of lading at time of pickup to assure that Carrier --not CONEXUS -- is
show thereo as the arrier, Carrier will i
ediately otify CONEXU of a y pro le with the
bill of lading before accepting the load and Carrier will defend, indemnify and hold harmless
CONEXUS and its affiliated companies (including Melton Truck Lines, Inc.) from and against any
liability for failure to do so. Upon delivery of each shipment, Carrier shall obtain and deliver to
CONEXUS a delivery receipt or receipts from the consignee(s), in a form required or permitted by
CONEXUS, showing the goods delivered, the condition of such goods and the date and time of
delivery. Per Paragraph 1 above, any term or matter written or printed on a bill of lading or delivery
receipt to which CONEXUS has not specifically agreed in this Agreement shall be ineffective. If any
delivery receipt or bill of lading is not clear or if a freight bill is incomplete or incorrect, payment of
Ca ie s f eight ha ges a e dela ed o ithheld pe di g esolutio of a f eight lai . Ca ie
shall have no lien, and hereby waives any right to claim any lien, on any shipment.

4. Independent Contractor. The parties understand and agree that CONEXUS is merely a freight
oke ; that Ca ie s elatio ship ith CONEXU a d its usto e s is solel that of a i depe de t
contractor, that Carrier alone employs, leases or retains on its own behalf all drivers and other
pe so s i ol ed i Ca ie s se i es u de this Ag ee e t; a d su h pe so s a e not employees or
agents of CONEXUS or its customers. Although Carrier agrees to comply with such reasonable
customer rules, procedures, policies and requirements as may be communicated from time to time
CONEXU, the pa ties u de sta d a d ag ee that Ca ie s t a spo tatio se i es he eu de a d
all drivers and other persons connected therewith are subject to direction, control and supervision
by Carrier, not by CONEXUS or its customers. Carrier agrees that it, and not CONEXUS nor its
customers, is responsible for and will pay all federal, state or local taxes, withholdings and
obligations i ludi g ut ot li ited to o ke s o pe satio , u e plo e t, disa ilit , a d
social security insurance), all road, fuel and other taxes, fees or operating permits, and all other
ope ati g e pe ses a d fi a ial o ligatio s elati g to Ca ie s operations or transportation
performed hereunder. Carrier will not subcontract, broker, or otherwise permit shipments to be
transported by a third party and the use of a third party, not specifically contracted and operating
u de Ca ie s autho it a d i surance shall be fraud, such that neither CONEXUS nor its Customer
shall owe any amounts for the shipping or transportation related expenses. Further, should Carrier
Initial_______
Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116
(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 11 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 114 of 207 PageID #:1386

so fraudulently assign or permit a third party to accept or transport any carriage under this contract,
it shall compensate CONEXUS and its Customer for any added costs, charges or fees arising from
said transportation, indemnifying and holding CONEXUS and its Customer from any and all liability
arising therefrom.
5. Carriers Operations. Carrier will efficiently and timely transport all shipments in good order and
condition to the designated consignee using equipment and qualified drivers operating only under
Ca ie s autho it . When the Shipper or consignee have assigned a pickup or delivery date and/or
appoi t e t ti e, Ca ie ag ees that it is the Ca ie s sole espo si ilit to e if that its d i e s
have available hours of service to complete the pickup/delivery within the assigned date and time.
If circumstances arise during loading, transport or delivery that require changing an appointment
ti e, Ca ie ust i
ediatel o ta t CONEXU. Ho e e , CONEXU assista e i s heduli g o
es heduli g pi kup o deli e ti es shall i o e e t alte Ca ie s espo si ility to provide a
driver or drivers with available hours of service to complete pick up and / or delivery as scheduled,
and failure to provide at least 24 hour notice for rescheduling will preclude Carrier from receiving
any detention or truck order not used pay. Carrier will properly inform its drivers and agents of their
responsibilities for the protection and care of shipments hereunder, and will assure that its
e uip e t, pe so el a d all othe aspe ts of Ca ie s ope atio s full o pl ith o e eed all
DOT and other applicable legal requirements, including but not limited to hours of service;
equipment safety; loading, load securement and movement of all shipments; etc. Written or oral
directions provided by CONEXUS or its customer are solely for i fo atio al pu poses. It is Ca ie s
sole responsibility to confirm that it may lawfully operate a loaded vehicle of any weight, commodity
or dimension over any road, bridge or route, and Carrier is solely responsible for any fines, penalties,
citations or legal violations regarding operation of its vehicles. Carrier warrants that all of its
equipment used for transportation of food grade products will comply with the requirements of The
Sanitary Food Transportation Act; that no equipment provided for the transportation of food or
food grade products has been or will be used for the transportation of any waste, garbage,
hazardous materials or any other commodity that might adulterate or contaminate food, food
products or cosmetics. Carrier acknowledges and agrees to devote its equipment and trailer
exclusively to each shipment arranged by Conexus, unless otherwise agreed by both parties in
writing. No additional freight for any other party shall be loaded or unloaded, before or after, while
any piece of Co e us usto e s f eight is o su h t aile . Failu e to o pl ith these te s a
lead to changes to the rate after the shipment has delivered.

6. Insurance. Carrier will procure and continuously maintain for the benefit of CONEXUS and its
custome s, at Ca ie s o
e pe se, all i su a e o e age e ui ed
the U..D.O.T. a d states
where services may be performed, or by other applicable laws, rules or regulations. Specifically,
Carrier agrees to maintain the following coverage: One Million ($1,000.000.00) in both General
Liability and Auto Liability coverage; One- Hundred Thousand ($100,000.00) in Cargo Liability
Initial_______
Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116
(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 12 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 115 of 207 PageID #:1387

coverage; Workers Compensation Coverage; and Employee Liability Coverage. Carrier immediately
will notify CONEXUS of any insurer or coverage change, cancellation or insolvency. At least semiannually and upon other request, Carrier shall provide CONEXUS certificates of its insurance
coverages, which also shall assure CONEXUS at least thirty (30) days written notice of cancellation,
non- e e al o
ate ial odifi atio . Ca ie s lia ilit a d e ess/u
ella i su a e shall e
deemed primary coverage, and CONEXUS and its customers shall be endorsed as additional
insureds, with respect to personal injury, death and property damage arising out of or relating to
Ca ie s a ti ities he eu de .
7. Indemnification. Rega dless of the easu e o e te t of Ca ie s a go lia ilit u de appli a le
law or otherwise, Carrier will defend, indemnify and hold harmless CONEXUS against all cargo or
freight loss, delay or damage claims, costs, damages or liabilities regarding shipments tendered to
transported by Carrier hereunder. Carrier also will defend, indemnify and hold harmless CONEXUS
and its affiliated and related companies (i ludi g Melto T u k Li es, I . a d CONEXUs
customers from and against all personal or bodily injury, death, property damage or other losses,
damages, actions, claims and expenses caused by, arising from or relating to the negligence, fault, or
contra tual ea h o o pe fo a e
Ca ie o its age ts, e plo ees o o t a to s. Ca ie s
indemnification obligations under this paragraph shall include legal fees and expenses, and shall
survive any termination or expiration of this Agreement.

8. Rates and Charges. 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.
Ca ie s ates a d ha ges a ot e i eased, o de iated f o ega ding particular shipments,
ithout CONEXU e p ess itte o se t p io to Ca ie s o e e t of the f eight i uestio .
Under no circumstance shall Carrier assess or bill for fuel surcharges or similar adjustments, except
i a o da e ith CONEXU issued or approved schedules. Carrier acknowledges and agrees that
pa e t of all ates a d ha ges is ulti atel the o ligatio of CONEXUs usto e s, ot CONEXU
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.
9. Freight Payments. CONEXU ill pa Ca ie s i oi es fo li ehaul ha ges ithi
da s, if the
are complete, correct and accompanied by a signed clear delivery receipt or bill of lading in
accordance with Paragraph 3 above. Permitted accessorial charges, if any, will be paid only if and
after CONEXUS collects payments from its customer under Paragraph 8 above. CONEXUS reserves
the right to specify if charges for any shipment shall e p epaid o olle t, a d if the olle tio of
charges from any consignee will be without recourse to CONEXUS, according to the provisions of
Section 7 of the Uniform Straight Bill of Lading.
Initial_______

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 13 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 116 of 207 PageID #:1388

10. Non-exclusive Agreement. This Agreement is not exclusive by either party. CONEXUS is free to
utilize the services of any other carrier, and Carrier is not required to accept any shipment tendered
by CONEXUS hereunder. However, by accepting any shipment, Carrier agrees to comply with this
Agreement, applicable schedules and customer service requirements, and any delivery deadline
requested by CONEXUS or its customer. Carrier specifically acknowledges that CONEXUS or its
customers may designate certain shipments as "critical," "hot," or otherwise as time sensitive, and
that if Carrier accepts such shipments, Carrier will make all arrangements to legally transport such
carriage in strict compliance with such delivery requirements.
11. Nonsolicitation. Ca ie a k o ledges that CONEXU usto e s and prospects are a valuable
business asset of CONEXUS. Therefore, for value received, Carrier agrees that during the term of
this Agreement and for one year after the last load tendered under this contract or any
supplemental contracts or one-time agreements thereto, Carrier will not directly or indirectly (1)
solicit or back-solicit any CONEXUS customer or prospect, or (2) perform transportation services,
ithout CONEXU pa ti ipatio o p io
itte o se t, fo a CONEXU usto e fo ho
Carrier has been tendered or offered freight hereunder. If Carrier believes it has a prior relationship
or circumstance with any CONEXUS customer or prospect that justifying an exemption from these
restrictions, Carrier should request and obtain a written waiver sig ed
CONEXU CEO o
President before Carrier performs any transportation services for such customer or prospect.
Except to the extent Carrier seeks and obtains such an exemption, Carrier agrees that these
restrictions are necessary and reasonable to p ote t CONEXU legiti ate usi ess i te ests, a d
Carrier agrees to pay CONEXUS 10% of the freight charges for each and every shipment transported
in violation of this provision.

12. Freight Loss or Damage or Service Failure. Carrier contractually assumes the liability of a common
carrier under 49 U.S.C. 14706(a) for the full actual value of lost or damaged freight, unless otherwise
agreed by written schedule hereto issued or signed by CONEXUS. Any other purported cargo
liability limitations or exclusio s e.g., i Ca ie s ules ta iffs, shippi g do u e tatio , et . shall e
ineffective. Procedurally, all freight claims will be handled in accordance with the freight and cargo
claim procedures of the Uniform Straight Bill of Lading and the federal freight claim regulations
(currently 49 CFR 370 et seq.) in effect on the date of this Agreement and shall be governed by the
time limitations thereunder. Upon request of CONEXUS or its customer, Carrier will not salvage
damaged freight, but shall return it to CONEXU usto e at said usto e s e pe se. CONEXUs
usto e , o CONEXU o its usto e s ehalf, a set off u paid f eight lai s o o e ha ges
agai st Ca ie s f eight ha ges. CARRIER ag ees, pu sua t to this Ag ee e t, to pe fo se i es in
an efficient manner. In the event that CARRIER fails to timely arrive at the scheduled time for a
pickup or delivery, CARRIER will be responsible for any charges incurred due to service failures (i.e.,
crane charges, etc.). CONEXUS reserves the right to deduct the charges aforementioned from the
CARRIER f eight ill.
Initial_______

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 14 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 117 of 207 PageID #:1389

13. Confidentiality. E ept as e ui ed


la o upo CONEXU p io
itte o se t, eithe this
Ag ee e ts te s o p o isio s, o a
shippi g ates o othe i fo ation pertaining to
ship e ts he eu de , o a of CONEXU o its affiliates o usto e s o fide tial, usi ess o
p op ieta i fo atio shall e dis losed
Ca ie to pe so s othe tha Ca ie s e plo ees a d
agents in the ordinary course of Carrie s usi ess, o shall su h i fo atio e used fo a
pu pose othe tha p o idi g se i es to CONEXU a d CONEXU usto e s he eu de .
14. Customer Shipments. Carrier acknowledges that shipments and goods tendered by CONEXUS may
belong to CONEXUS' customers or their consignors/consignees, not CONEXUS, regardless of whether
CONEXUS issues or is named in any bill of lading or other shipping documentation. Accordingly,
Carrier warrants that its cargo responsibility, liability and insurance hereunder shall run and inure to
the benefit of CONEXUS' customers and their consignors/consignees as well as to CONEXUS itself,
and Carrier covenants that CONEXUS' customers may assert cargo claims directly against Carrier
ithout CONEXU i ol e e t o joi de .
15. Term, Termination and Modification. This Agreement shall be effective for an initial period of one
(1) year from the date hereof, and shall automatically renew from year to year thereafter. Either
CONEXUS or Carrier may terminate this Agreement at any time, with or without cause upon at least
thirty (30) days prior written notice to the other, but any obligations accruing prior to the
termination or expiration hereof, or which by their nature would survive same (including but not
li ited to Ca ie s i de it o ligatio s a d the pa ties fo u sele tio ag ee e t shall su i e
any cancellation, termination or expiration of this Agreement. No modification or waiver of this
Agreement or any term thereof shall be effective unless in writing.

16. Dispute Resolution. This Agreement will be interpreted according to Oklahoma law, and for value
received, Carrier irrevocably consents and agrees that any matters, claims or disputes between the
pa ties ill at CONEXU e uest e dete i ed e lusi el i a d
the District Court of Tulsa
County, Oklahoma. Carrier waiving any jurisdictional or other objection to said court and any
removal or transfer rights therefrom.

17. Agreement Controlling; Miscellaneous. If there is any inconsistency between this Agreement and
any schedule o othe ag ee e t o et ee these pa ties, this Ag ee e ts te s shall o t ol,
unless the parties expressly and specifically agree otherwise in writing, with specific reference to
this Agreement. Being a product of mutual negotiation, this Agreement should be construed
neutrally and not in favor of or against either party. Facsimile signatures shall be effective as
originals.
Initial_______

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 15 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 118 of 207 PageID #:1390

CONEXUS, LLC

_________________________________
Ca ie s Legal Na e

By: ________________________________

By: ______________________________

Title: _______________________________

Title: _____________________________

Date: _______________________________

Date: _____________________________

Initial_______

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 16 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 119 of 207 PageID #:1391

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 17 of 17

CONEXUS, LLC 04/13/15

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 120 of 207 PageID #:1392

CONEXUS TRANSPORTATION AGREEMENT


FOR VALUE RECEIVED, THIS AGREEMENT, effective as of __________________, 2014
(the "Effective Date"), is made by and between ____________________________, having an office at
__________________________________, together with any of its subsidiaries and affiliated companies
identified in the exhibits hereto (collectively "Customer"), and CONEXUS, LLC, with an office at 808 N.
161st East Avenue, Tulsa, Oklahoma 74116. The term Agreement as used herein includes all schedules
and exhibits currently attached or subsequently added, supplemented or revised by written mutual
agreement.
1.

SERVICES, EXCLUSIVITY AND WARRANTY.

(a) CONEXUS, LLC will arrange transportation of Customer's shipments set forth in the attached
rate schedules or pursuant to individual rate agreements for specific loads (Scheduled Traffic) from
pickup to the place of destination via authorized motor carriers, and will provide cargo claim assistance,
shipment tracking and other logistics services set forth in the attached schedules, all in accordance with
this Agreement. All Scheduled Traffic and any other Customer shipments handled by CONEXUS, LLC
while this Agreement is in effect will be considered contract (not common) carriage, subject to and
governed by the terms of this Agreement, and any legal rights or remedies contrary to this Agreements
provisions are hereby waived to the extent permitted by applicable law.
(b) Customer warrants that it is or will be the owner of the shipments tendered hereunder and/or
that it otherwise is fully authorized to agree to all terms herein with respect to said shipments; that the
person signing on Customers behalf is fully authorized to do so and to bind Customer hereto; and that
this Agreements terms shall be binding upon Customers successors and assigns and all consignees,
customers, subrogees or other persons claiming any interest in said shipments.
2.
SHIPMENT DOCUMENTATION. A shipping receipt, bill of lading or comparable
documentation in a generally accepted form will be issued for each shipment, but the absence or loss of
such shipping documentation, in and of itself, shall not relieve either party of its obligations or
responsibilities hereunder with respect to any shipment. If and to the extent that standard-form bills of
lading, etc., are employed by the parties as shipping documentation, such forms pre-printed or other
terms, conditions or provisions shall have no effect nor application to the parties' shipments to the extent
they contradict or otherwise conflict with this Agreement.
3.

RATES, CHARGES AND FREIGHT PAYMENTS.

(a) Rates, charges and other terms and conditions of service shall be as specified in attached Rate
Schedules, which may be supplemented or revised at any time by written mutual agreement. CONEXUS,
LLC also may adjust its transportation rates and charges as necessary to compensate for increases in
carrier rates or other transportation costs, upon thirty (30) days prior written

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 1 of 5
CONEXUS, LLC 07/16/14

Initial _______

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 121 of 207 PageID #:1393

notice to Customer or in accordance with any fuel surcharge or similar schedule attached to this
Agreement.
(b) CONEXUS LLC freight bills shall be paid by Customer within fifteen (15) days after receipt
by Customer. Customer agrees to pay collection costs, including reasonable attorneys fees, and interest at
the highest legal rate on past due accounts. Customer shall pay CONEXUS shipment invoice within the
time frame aforementioned and shall notify CONEXUS immediately in the event of any discrepancy.
Customer acknowledges that invoices for shipments shall be treated separately from any and all claims.
Customer shall not offset any invoice for shipment due to any outstanding claim. Upon Customer
request, CONEXUS LLC may provide confirmation that the carrier has been paid.
(c) CONEXUS LLC requests that all Carriers deliver shipments tendered in a timely fashion.
CONEXUS LLC acknowledges that such delivery is essential in meeting the Customers needs and
obligations. However, CONEXUS LLC will not bear the costs of delivery failure or untimely delivery by
a Carrier. Carrier, not CONEXUS LLC, is responsible for any and all charges (i.e, crane charges)
necessitated by Carriers failure to timely deliver any and all shipments.
4.
CONEXUS, LLC COMMITMENTS/OBLIGATIONS. CONEXUS, LLC will comply
with this Agreement and all laws and regulations applicable to CONEXUS, LLC relating to Customer's
freight and shipments; and will perform its obligations as an independent contractor and not as the agent
or employee of Customer. CONEXUS, LLC will arrange transportation of Customer's shipments via
motor carriers who have submitted proof of authority and insurance, and whom have agreed to comply
with applicable laws; deliver shipments promptly and efficiently; employ competent, able and legally
licensed personnel; maintain their equipment in good repair and condition; perform their transportation
services in a careful and business-like manner; and maintain such insurance coverages, if any, legally
required of such carriers. Other logistics services to be performed by CONEXUS, LLC, and the terms and
scope thereof and compensation therefor, may be set out in additional schedules to be attached hereto.
However, the agreement to perform any additional services, or to forward along any additional special
requests or instructions, shall in no way change the agreed contracted relationship of CONEXUS, LLC as
an independent contractor and transportation broker or require any added supervisory responsibilities or
liabilities for the carrier or other contractors performance of such transportation related services.
5.

CARGO LIABILITY AND INSURANCE.

(a) CONEXUS, LLC will maintain during the term of this agreement, the following forms and
amounts of insurance: (1) Broker Liability Insurance in the amount of Two Million ($2,000,000.00);
Workers Compensation Coverage; and Contingent Cargo Liability Coverage in the amount of One
Hundred Thousand ($100,000.00). Limits of coverage may be satisfied by the use of excess or umbrella
policies. CONEXUS, LLC can furnish Customer evidence of said coverage. Nothing contained herein
shall in any way be construed as an acceptance by CONEXUS, LLC, or the imposition upon CONEXUS,
LLC, of any liability of any kind with respect to shipment(s) tendered by Customer to CONEXUS, LLC
pursuant to this agreement.
Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116
(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 2 of 5
CONEXUS, LLC 07/16/14

Initial _______

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 122 of 207 PageID #:1394

(b) CONEXUS, LLC shall not be liable for the acts or omissions of customs officials, customs
brokers, loaders, unloaders, lumpers or other third parties who may be involved in the loading or handling
of cargo at pickup, delivery, including pickup and/or delivery at or near the USA-Mexican border; nor for
incidental, consequential or other special damages of any type. Further, CONEXUS, LLC shall not be
liable under any circumstances for losses or claims occurring or arising outside the U.S.A. and/or
Canada. Customer shall notify CONEXUS, LLC in writing within twenty-four (24) hours of
discovery of any freight and/or cargo claim and shall clearly note such claim on the bill of lading or
other shipping document. Procedurally, all freight and cargo claims shall be handled in accordance
with the freight and cargo claim procedures of the Uniform Straight Bill of Lading and the federal
freight claim regulations (currently 49 CFR 370 et seq.) in effect on the date of the Agreement and
shall be governed by the time limitations thereunder. Customer further agrees that CONEXUS, LLC
shall not be liable for, and Customer shall hold CONEXUS, LLC harmless from, cargo damage claims
other than as set forth herein.
(c) Customer acknowledges and understands that cargo liability (loss, damage, delay, etc.) for
shipments under this Agreement will be affected and may be substantially limited by application of
various countries laws, treaties, conventions, etc. Customer specifically understands that cargo liability
under Mexican law may be severely limited unless Customer arranges to purchase its own cargo
insurance. At Customers request, CONEXUS, LLC may assist Customer in attempting to obtain cargo
insurance for Mexico shipments, but only under and pursuant to a specific written agreement to do so,
signed by CONEXUS, LLCs Director or Vice President and specifically stating the scope of CONEXUS,
LLCs duties, obligations and compensation in such regard. Absent such written agreement, Customer
assumes full responsibility and risk for assessing its own cargo liability needs and situation, purchasing
any cargo insurance it may desire, and/or taking whatever actions Customer deems appropriate to satisfy
and protect itself regarding cargo liability for all shipments hereunder.
(d) CONEXUS, LLC will use for Customers shipments hereunder only those Mexican, USA and
Canadian motor carriers who agree to maintain at least the minimum insurance coverages, if any, required
by the respective laws and jurisdictions under which such carriers operate, and CONEXUS, LLC shall
reasonably assist and fully cooperate with Customer in connection with cargo claims made by Customer
against such a carrier. Customer is responsible for adequately insuring Mexico shipments pursuant to
Section 5(b) herein.
6.
INDEMNITY. Customer shall indemnify and hold CONEXUS, LLC, its officers,
employees, agents, insurers, and affiliated corporations, harmless to the fullest extent of the law, from any
and all losses, damages, expenses (including attorney fees), claims, suits, and liabilities arising out of its
own negligence under this agreement. CONEXUS, LLC shall likewise defend and indemnify and hold
Customer, its officers, employees, agents, insurers, and affiliated corporations, harmless to the fullest
extent permitted by law, from any and all losses, damages, expenses (including attorney fees), claims,
suits, and liabilities arising out of its own negligence under this agreement.

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 3 of 5
CONEXUS, LLC 07/16/14

Initial _______

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 123 of 207 PageID #:1395

7.
FORCE MAJEURE. Neither Customer nor CONEXUS, LLC shall be liable for
damages for any transportation delay or failure, nor any delay or failure to perform any of this
Agreements terms and provisions, arising from causes beyond its control, including but not limited to
acts of God or public enemies, acts of civil or military authority, labor disputes, fires, riots, wars or
conditions of war, embargoes, accidents, epidemics, floods or other unusually severe weather, closing or
obstruction of highways, bridges or ferries, or shortage of raw materials or power, any of which have a
material, substantial and adverse effect on either party's ability to perform pursuant to the terms of this
Agreement.
8.

MISCELLANEOUS.

(a) This Agreement shall continue for one (1) year from the Effective Date above and shall
automatically renew thereafter from year to year unless and until terminated. Either party may terminate
this Agreement at any time, with or without cause, upon at least thirty (30) days prior written notice to the
other party.
(b) This Agreement, all matters arising out of or relating hereto, and all aspects of the parties
current or future transportation transactions or relationships shall be governed by Oklahoma law without
regard to Oklahomas conflicts of law provisions, and for value received, Customer
irrevocably
consents and agrees to submit any and all such matters, claims and disputes at CONEXUS, LLCs request
to the exclusive jurisdiction of the District Court of Tulsa County, Oklahoma, and waives any
jurisdictional or venue objections to said court and any removal or transfer rights therefrom.
(c) No modification of this Agreement and no waiver of its terms or provisions shall be effective
unless and until made in writing and signed by both parties. Unless specifically agreed otherwise in
writing, all contract modifications or changes will be effective only prospectively, not retroactively. This
Agreement may not be assigned, in whole or in part, by either party without the written consent of the
other.
(d) Until terminated or modified as provided herein, this Agreement shall govern and apply to
all transportation related dealings between Customer and CONEXUS, LLC, and the terms hereof shall
override and replace any contrary or inconsistent terms or provisions of any current or future
documentation by or between the parties, even if such documentation is signed by either or both parties
hereto, unless both parties' Presidents sign a written statement expressly referring to this Agreement and
expressly agreeing that such other terms supersede this Agreements terms.
(e) Unless otherwise agreed in writing or clearly indicated by the context, all monetary references
in this Agreement and schedules should be in U.S. currency.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized
representatives' signatures the day and year first above written.
___________________________________________ ____________________________________
Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116
(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 4 of 5
CONEXUS, LLC 07/16/14

Initial _______

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 124 of 207 PageID #:1396

CUSTOMER

CONEXUS, LLC

By: _____________________________

By: _________________________

Title: ____________________________

Title: __________________________

Date: ____________________________

Date: ________________________

Conexus / 808 North 161st E. Avenue / Tulsa, OK 74116


(800) 545-6617
FAX: (918) 200-0174
www.conexuslogistics.com
Page 5 of 5
CONEXUS, LLC 07/16/14

Initial _______

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 125 of 207 PageID #:1397

EXHIBIT D

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 126 of 207 PageID #:1398

Form 5500
Department of the Treasury
Internal Revenue Service

Annual Return/Report of Employee Benefit Plan


This form is required to be filed for employee benefit plans under sections 104
and 4065 of the Employee Retirement Income Security Act of 1974 (ERISA) and
sections 6047(e), 6057(b), and 6058(a) of the Internal Revenue Code (the Code).

Department of Labor
Employee Benefits Security
Administration

This Form is Open to Public


Inspection

Annual Report Identification Information

For calendar plan year 2012 or fiscal plan year beginning

2012

 Complete all entries in accordance with


the instructions to the Form 5500.

Pension Benefit Guaranty Corporation

Part I

OMB Nos. 1210-0110


1210-0089

This return/report is for:

This return/report is:

X
X
X
X

and ending

06/13/2012
a multiemployer plan;
a single-employer plan;
the first return/report;
an amended return/report;

X
X

a multiple-employer plan; or

X
X

the final return/report;

a DFE (specify)

06/12/2013

_C_

a short plan year return/report (less than 12 months).

If the plan is a collectively-bargained plan, check here. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Check box if filing under:

X
X

Form 5558;

X the DFVC program;


X
ABCDEFGHI ABCDEFGHI ABCDE

automatic extension;

special extension (enter description) ABCDEFGHI

Part II
Basic Plan Informationenter all requested information
1a Name of plan
ABCDEFGHI
ABCDEFGHI INJURY
ABCDEFGHI
ABCDEFGHI ABCDEFGHI
MELTON TRUCKABCDEFGHI
LINES, INC OCCUPATIONAL
BENEFIT ABCDEFGHI
PLAN
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
2a

Plan sponsors name and address; include room or suite number (employer, if for a single-employer plan)

1b
1c
2b

Employer Identification
Number (EIN)
73-1383475
012345678

2c

Sponsors telephone
number
0123456789
800-545-6645

2d

Business code (see


instructions)
484120
012345

MELTON TRUCK LINES, INC

ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI


D/B/A ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
ABCDEFGHI
808 NORTH 161ST EAST AVE
808 NORTH 161ST EAST AVE
c/o
ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDEFGHI
ABCDEFGHI
ABCDEFGHI ABCDEFGHI
TULSA,
OK 74116
TULSA, OK
74116
123456789 ABCDEFGHI ABCDEFGHI ABCDE
123456789 ABCDEFGHI ABCDEFGHI ABCDE
CITYEFGHI ABCDEFGHI AB, ST 012345678901
UK

Three-digit plan
501
001
number (PN) 
Effective date of plan
06/13/2003
YYYY-MM-DD

Caution: A penalty for the late or incomplete filing of this return/report will be assessed unless reasonable cause is established.
Under penalties of perjury and other penalties set forth in the instructions, I declare that I have examined this return/report, including accompanying schedules,
statements and attachments, as well as the electronic version of this return/report, and to the best of my knowledge and belief, it is true, correct, and complete.
SIGN
HERE

Filed with authorized/valid electronic signature.


Signature of plan administrator

SIGN
HERE

Filed with authorized/valid electronic signature.


Signature of employer/plan sponsor

SIGN
HERE

01/14/2014
YYYY-MM-DD

ROBERT RAGAN
ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDE

Date

Enter name of individual signing as plan administrator

01/14/2014
YYYY-MM-DD

ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDE
ROBERT RAGAN

Date

Enter name of individual signing as employer or plan sponsor

YYYY-MM-DD

ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDE

Signature of DFE
Date
Enter name of individual signing as DFE
Preparers name (including firm name, if applicable) and address; include room or suite number. (optional)
Preparers telephone number
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI (optional)

ABCDEFGHI ABCDEFGHI ABCDEFGHIABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI


ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHIABCDEFGHI ABCDEFGHI ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHIABCDEFGHI ABCDEFGHI
ABCDEFGHI ABCDEFGHI
For Paperwork Reduction Act Notice and OMB Control Numbers, see the instructions for Form 5500.

Form 5500 (2012)


v. 120126

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 127 of 207 PageID #:1399
Page 2

Form 5500 (2012)

3a

Plan administrators name and address X Same as Plan Sponsor Name

X Same as Plan Sponsor Address

3b

Administrators EIN

012345678
ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
c/o ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI
123456789 ABCDEFGHI ABCDEFGHI ABCDE
123456789 ABCDEFGHI ABCDEFGHI ABCDE
CITYEFGHI ABCDEFGHI AB, ST 012345678901
UK
4 If the name and/or EIN of the plan sponsor has changed since the last return/report filed for this plan, enter the name,

3c

Administrators telephone
number

0123456789

4b

EIN and the plan number from the last return/report:

012345678
4c

Sponsors name

ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI ABCDEFGHI


5
6

EIN

Total number of participants at the beginning of the plan year

PN

012
5

123456789012
239

Number of participants as of the end of the plan year (welfare plans complete only lines 6a, 6b, 6c, and 6d).

Active participants .....................................................................................................................................................................

6a

123456789012
243

Retired or separated participants receiving benefits.................................................................................................................

6b

123456789012

Other retired or separated participants entitled to future benefits.............................................................................................

6c

123456789012

Subtotal. Add lines 6a, 6b, and 6c...........................................................................................................................................

6d

123456789012
243

Deceased participants whose beneficiaries are receiving or are entitled to receive benefits. ..................................................

6e

123456789012

Total. Add lines 6d and 6e. ......................................................................................................................................................

6f

123456789012
243

Number of participants with account balances as of the end of the plan year (only defined contribution plans
complete this item) ....................................................................................................................................................................

6g

123456789012

Number of participants that terminated employment during the plan year with accrued benefits that were
less than 100% vested ..............................................................................................................................................................
Enter the total number of employers obligated to contribute to the plan (only multiemployer plans complete this item) .........

6h
7

123456789012

7
8a
b

If the plan provides pension benefits, enter the applicable pension feature codes from the List of Plan Characteristics Codes in the instructions:

If the plan provides welfare benefits, enter the applicable welfare feature codes from the List of Plan Characteristics Codes in the instructions:

4A

9a

(3)
(4)

4E

4F

4L

4Q

Plan funding arrangement (check all that apply)


(1)
X Insurance
(2)

10

4D

X
X
X
X

9b

Plan benefit arrangement (check all that apply)


(1)
X Insurance

Code section 412(e)(3) insurance contracts

(2)

Trust

(3)

General assets of the sponsor

(4)

X
X
X
X

Code section 412(e)(3) insurance contracts


Trust
General assets of the sponsor

Check all applicable boxes in 10a and 10b to indicate which schedules are attached, and, where indicated, enter the number attached. (See instructions)
Pension Schedules
(1)
X R (Retirement Plan Information)
(2)

(3)

General Schedules
(1)

MB (Multiemployer Defined Benefit Plan and Certain Money


Purchase Plan Actuarial Information) - signed by the plan
actuary

(2)

SB (Single-Employer Defined Benefit Plan Actuarial


Information) - signed by the plan actuary

(5)

X
X
X
X
X

(3)
(4)
(6)

H (Financial Information)
I (Financial Information Small Plan)
___ A (Insurance Information)
C (Service Provider Information)
D (DFE/Participating Plan Information)
G (Financial Transaction Schedules)

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 128 of 207 PageID #:1400

LIST OF PLAN CHARACTERISTICS CODES FOR LINES 8a AND 8b (Continued)

3H

Plan sponsor(s) is (are) a member(s) of a controlled


group (Code sections 414(b), (c), or (m)).

3I

Plan requiring that all or part of employer contributions


be invested and held, at least for a limited period, in
employer securities.

3J

CODE

U.S.-based plan that covers residents of Puerto Rico and


is qualified under both Code section 401 and section
1165 of Puerto Rico Code.

4K

Scholarship (funded).

4L

Death benefits (include travel accident but not life


insurance).

4P

Taft-Hartley Financial Assistance for Employee Housing


Expenses.

4Q

Other.

4R

Unfunded, fully insured, or combination unfunded/fully


insured welfare plan that will not file an annual report for
next plan year pursuant to 29 CFR 2520.104-20.

4S

Unfunded, fully insured, or combination unfunded/fully


insured welfare plan that stopped filing annual reports in
an earlier plan year pursuant to 29 CFR 2520.104-20.

4T

10 or more employer plan under Code section


419A(f)(6).

4U

Collectively-bargained welfare benefit arrangement


under Code section 419A(f)(5).

Welfare Benefit Features

4A

Health (other than vision or dental).

4B

Life insurance.

4C

Supplemental unemployment.

4D

Dental.

4E

Vision.

4F

Temporary disability (accident and sickness).

4G

Prepaid legal.

4H

Long-term disability.

4I

Severance pay.

4J

Apprenticeship and training.

-20-

Instructions for Part I and Part II of Form 5500

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 129 of 207 PageID #:1401

EXHIBIT E

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 130 of 207 PageID #:1402

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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 132 of 207 PageID #:1404

GROUP EXHIBIT F

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 133 of 207 PageID #:1405

!!!"

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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 134 of 207 PageID #:1406

The Demolition of Workers Comp


Over the past decade, states have slashed workers compensation benefits, denying injured workers help when they
need it most and shifting the costs of workplace accidents to taxpayers.
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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 135 of 207 PageID #:1407

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Inside Corporate Americas


Campaign to Ditch Workers Comp
One Texas lawyer is helping companies opt out of
workers compensation and write their own rules.
What does it mean for injured workers?
by Michael Grabell, ProPublica, and Howard Berkes, NPR October 14, 2015

STANDING BEFORE A GIANT MAP in his Dallas office, Bill Minick doesnt seem
like anyones idea of a bomb thrower. But backed by some of the biggest names in
corporate America, this mild-mannered son of an evangelist is plotting a revolution
in how companies take care of injured workers.
Over the past decade, states have slashed workers compensation benefits, denying
injured workers help when they need it most and shifting the costs of workplace
accidents to taxpayers.
Each state determines its own workers compensation benefits, which means
workers in neighboring states can end up with dramatically different compensation
for identical injuries.
His idea: Let them opt out of state workers compensation laws and write their
own rules.
Minick swept his hand past pushpins marking the headquarters of Walmart,
McDonalds and dozens of his other well-known clients, and hailed his plan as not
only cheaper for employers, but better for workers too.
Were talking about reengineering one of the pillars of social justice that has not
seen significant innovation in 100 years, Minick said.
Minicks quest sounds implausible, but hes already scored significant victories.
Many of the nations biggest retail, trucking, health care and food companies have
already opted out in Texas, where Minick pioneered the concept as a young lawyer.
Oklahoma recently passed a law co-written by Minick allowing companies to opt out

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 160 of 207 PageID #:1432

there. Tennessee and South Carolina are seriously considering similar measures. And
with a coalition led by executives from Walmart, Nordstrom and Lowes, Minick has
launched a campaign to get laws passed in as many as a dozen states within the next
decade.
But as Minicks opt-out movement marches across the country, there has been little
scrutiny of what it means for workers.
ProPublica and NPR obtained the injury benefit plans of nearly 120 companies who
have opted out in Texas or Oklahoma many of them written by Minicks firm to
conduct the first independent analysis of how these plans compare to state workers
comp.
The investigation found the plans almost universally have lower benefits, more
restrictions and virtually no independent oversight.
Already in Texas, plans written by Minicks firm allow for a hodgepodge of
provisions that are far different from workers comp. Theyre why McDonalds doesnt
cover carpal tunnel syndrome and why Brookdale Senior Living, the nations largest
chain of assisted living facilities, doesnt cover most bacterial infections. Why Taco
Bell can accompany injured workers to doctors appointments and Sears can deny
benefits if workers dont report injuries by the end of their shifts.
And its Minicks handiwork that allows Costco to pay only $15,000 to workers who
lose a finger while its rival Walmart pays $25,000.
Unlike traditional workers comp, which guarantees lifetime medical care, the Texas
plans cut off treatment after about two years. They dont pay compensation for most
permanent disabilities and strictly limit payouts for deaths and catastrophic injuries.
The list of what the plans dont cover runs for pages. They typically wont pay for
wheelchair vans, exposure to asbestos, silica dust or mold, assaults unless the
employee is defending an employers business or property, chiropractors or any
more than 75 home health care visits. Costco wont cover external hearing aids
costing more than $600. The cheapest external hearing aid Costco sells? $900.

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The plans in both Texas and Oklahoma give employers almost complete control over
the medical and legal process after workers get injured. Employers pick the doctors
and can have workers examined and reexamined as often as they want. And
they can settle claims at any time. Workers must accept whatever is offered or lose
all benefits. If they wish to appeal, they can to a committee set up by their
employers.

Bill Minick is leading a national effort, backed by some of the biggest names in corporate
America, to let companies "opt out" of workers' comp and create their own injury benefit
plans. (Dylan Hollingsworth for ProPublica)

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In many cases, ProPublica and NPR found, the medical director charged with
picking doctors and ultimately reviewing whether injuries are work-related is
Minicks wife, Dr. Melissa Tonn, an occupational medicine specialist who often
serves as an expert for employers and insurance companies.
Workers comp was founded on the premise that employers owed a duty to injured
workers and their families. And laws in every state require them to pay workers
medical bills and some of their lost wages until they recover or for life if they cant.
Earlier this year, a ProPublica and NPR investigation detailed how states have chipped
away at these guarantees. A series of new laws has cut benefits, given employers and
insurers more control over medical care, and made it more difficult for workers to
qualify for coverage. But other than Texas and Oklahoma, no state has allowed
companies to simply opt out.
Minick, 55, markets his vision as a cure for the endless cycle of cuts.
Its not about reducing benefits, he said. We can objectively show you that we
have saved our clients over a billion dollars against Texas workers comp over the
past decade. When youre saving that kind of money, you dont have to get hung up
on squeezing the employee.
Yet Minicks push has united an unlikely set of allies unions, trial lawyers and
insurance companies. They say his idea isnt progress, but a return to the Industrial
Age before workers comp, when workers and their families had to sue their
employers or bear the costs of on-the-job injuries themselves.
Thats the system we had in place 100 years ago, said Trey Gillespie, senior
workers comp director for the Property Casualty Insurers Association of America.
This is not an innovative concept.
Mike Pinckard, a Fort Worth truck driver for 31 years, remembered when his
employer, Martin-Brower, McDonalds largest distributor, announced last November
that it would be switching to an opt-out plan.
They told us this was going to be the best thing, that this was going to be better than
workers comp, he said.

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Two months later, Pinckard said, he was pulling a cart loaded with frozen French
fries when he slipped on some ice in his trailer and suffered a hernia. He had
previously had two hernias on the job that were covered by workers comp and
figured this time would be no different.
But the denial letter said the plan for Reyes Holdings, which owns Martin-Brower,
only covers two types of hernias not the kind Pinckard suffered.
The only way it was covered was if it was directly under my belly button, he said.
Mine was slightly above my belly button.
In this instance, as in others ProPublica and NPR found, the costs of the injury were
shifted to the employee, group health or government programs.
Pinckard, 58, said hes spent over $10,000 in deductibles and copays after getting
the hernia covered by his health plan.
I gave my body and soul to the company, and they were doing the same back until
last year, he said. Its just an easy way for the company to get out of when you get
hurt. Its all it is.

The Texas Way


Texas has always allowed employers to opt out of workers comp. But until insurance
premiums started rising rapidly in the late 1980s, most companies considered it
foolish because carrying workers comp protected them from lawsuits.
Minick was a young lawyer for one of Dallas oldest firms in 1989, when some of the
firms business clients, gambling that the cost of any lawsuits would be cheaper,
began dropping workers comp. The senior partners assigned Minick and several
colleagues to come up with an alternative.
They found it in the Employee Retirement Income Security Act, a federal law passed in
the early 1970s to protect workers as employers were shedding their pensions.
ERISA had been applied similarly to other worker benefits, such as health plans and
disability policies. Minick and his colleagues decided it could provide a legal
framework for plans covering on-the-job injuries.

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Texas courts agreed, even though, compared to workers comp, the ERISA-based
plans gave employers critical advantages. Under ERISA, appeals are heard in federal
court, rather than state workers comp courts. And in general, judges could rule only
on whether a denial was reasonable not whether it was fair. This gave employers
far greater control.
As more and more companies adopted plans, in 1994 Minick struck out on his own.
His consulting firm, PartnerSource, soon became a one-stop shop for companies
looking to drop workers comp. For a flat fee, PartnerSource hooks companies up
with insurance carriers, claim administrators, medical networks and defense lawyers.
It also serves as the first line of defense, reviewing claims and advising companies
how to avoid lawsuits.
Already, such plans cover nearly 1.5 million workers in Texas and Oklahoma more
than are covered under 21 states workers comp systems. PartnerSource writes
about 50 percent of the opt-out plans in Texas and nearly 90 percent in Oklahoma,
alone covering more workers than 14 state programs.

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Bill Minick's company PartnerSource writes about 50 percent of the opt-out plans in
Texas and nearly 90 percent in Oklahoma. Were talking about reengineering one of the
pillars of social justice that has not seen significant innovation in 100 years, he said.
(Dylan Hollingsworth for ProPublica)

PartnerSources offices overlook a posh part of Dallas. The firms walls are a
monument to Minicks success, decorated with framed thank you letters from
companies whove hired him. Inside his office, the mementos are different, reflecting
his values. There are pictures of Boy Scouts trips hes led and letters from charities
hes supported. The radiant plumage of a pheasant he shot is stuffed and mounted
next to the doorway.

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Minick sells his idea earnestly, speaking with a matter-of-fact certainty that disarms
skeptics and defies arguments to the contrary.
With practiced ease, he rattled off the common gripes about workers comp:
Companies dig in their heels at the first sign of a claim and turn workers into
adversaries. Insurers dont communicate about benefits, causing workers to hire
lawyers. Doctors are often picked based on discounts rather than quality. And the
system, he said, has created a huge bureaucracy in the name of protecting workers
rights.
As a result, injured workers no longer have any accountability, he said. They can
report claims late, skip doctors appointments and appeal every perceived wrong to
workers comp court rather than trying to work it out with their employers.
Under opt-out plans, Minick said, companies must be engaged in the process,
educating new workers about their benefit plans and managing their medical care if
they get hurt. This control allows employers to better monitor workers progress and
ensure they return to work as soon as possible, he said.
This is not the Industrial Age, he said. Workers compensation systems grew up at
a time when employers did not care about their employees. If one got hurt, you cast
him aside and brought in the next immigrant to fill that job. Now companies are
competing to be a best place to work.
An analysis by Minicks firm shows that opt-out plans save companies between 40
and 90 percent because they have lower costs per claim, get injured employees back
to work faster and handle fewer disputes. That means greater employee satisfaction,
Minick said.
If the analysis is correct, Minicks plans would herald an important answer to the
nations eroding workers comp systems.
But the only data available to assess his claims comes from his firm. More than 30
companies contacted by ProPublica either wouldnt discuss their programs in detail
or didnt return calls.

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Steve Schaal, associate general counsel of Tyson Foods, said the company opted out
in Texas to give it more control over which doctors workers can see and to try to get
our injured employees the best possible medical care. Schaal said the company
hasnt taken a position on expanding opt out to other states. Tyson wouldnt provide
an updated copy of its plan.
Employers arent required to submit any information about their plans with the state,
since Texas doesnt regulate opt-out plans. For several legislative sessions,
employers have fought bills that would have required them to share their data.
PartnerSources analysis comes with some significant, unstated caveats: Employers
with opt-out plans tend to work in safer industries like retail, which typically has less
severe, less expensive claims. The plans also dont offer entire categories of benefits
that state laws require and give employers more options to exclude complicated
claims.
For example, workers comp gives employees 30 days to report an injury in Texas.
Under opt-out plans, employees typically must report by the end of the shift or in 24
hours or lose all benefits.
Costco, which saw its costs drop 53 percent after opting out, acknowledged in a 2012
industry report that it denied some employees with legitimate work injuries because
they reported late. Those workers, the report said, used their denial letters to get
treatment under the company health plan.
Minick and other proponents say while plans can make exceptions, such rules ensure
workers get medical care as soon as possible, speeding their recovery.

The Fallout of Workers Comp Reforms: 5 Tales of Harm


But public health experts say workers might not report minor injuries right away for
valid reasons: They fear looking like troublemakers or worry about child care if they
need to see a doctor or stay late filling out forms.
Or, like Rebecca Amador, they simply might not realize an injurys severity.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 168 of 207 PageID #:1440

Amador, a nursing assistant, was helping a patient transfer to a wheelchair at a


Stephenville, Texas, nursing home in November 2013, when the chairs brake
unlocked, causing her to support the patients weight.
I felt like a pinch in my back and I thought well, its been a long day, Im tired, said
Amador, then 51. So I paid no mind to it. I figured it would go away. Usually it goes
away.
She took a hot shower and went to bed. By the next morning, she remembers being
in so much pain she could hardly breathe.
As soon as she got to work, Amador told her supervisor, who sent her to the hospital.
Only 19 hours had passed. But her employer, Fundamental Long Term Care, rejected
her claim, saying she had failed to report it by the end of her shift.
The companys decision left Amador in a Catch-22. Even though her injury
happened at work, the companys Texas plan wouldnt cover it. But because it was
work-related, neither would her health insurance or short-term disability plan. Had
she worked for Fundamental in one of the other states where it operates, her injury
would have been covered under workers comp.
Amador sought help at a publicly funded health clinic, where her doctor
recommended a specialist. But she couldnt afford one. She tried light-duty work
until her doctor warned she could do further damage.
Since then, Amador said, shes been living off her sons Social Security benefits and
borrowing from a lawsuit settlement fund set up for him after his father died of
mesothelioma. Her daughters help pay for medications, and shes applying for Social
Security disability.
Sitting in her trailer nearly two years after the incident, she said her back burns like
shes in a fire, and she cant even carry a two-liter soda bottle.
I would probably still be working there if Fundamental had workers comp,
Amador said. Maybe I could have gotten better, maybe I could have gotten my
therapy done, and I wouldnt be in the situation Im in.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 169 of 207 PageID #:1441

Reading the Fine Print


The fine print of opt-out plans contains dozens of opportunities for companies to
deny benefits. Employers can terminate workers benefits for being late to doctors
appointments, failing to check in with the company or even consulting their personal
doctors.
One truck driver for a food and beer distributor complained in court documents that
his direct supervisor accompanied him to medical appointments for his hernia a
requirement under the plan.
Some plans have restrictions that read like the terms of criminal probation. While
theyre healing, injured workers at W. Silver, a steel products manufacturer in El
Paso, are prohibited from leaving the area, even temporarily, or engaging in any
pleasure that may delay recovery.
Sometimes the plans of PartnerSource and others abandon fundamental principles
of workers comp.
For nearly 40 years, every state has covered occupational diseases and repetitive
stress injuries, recognizing medical research that some conditions develop over time.
But in Texas, a number of companies, including McDonalds and the United Regional
Health Care System, dont cover cumulative trauma such as carpal tunnel. U.S. Foods,
the countrys second largest food distributor, also doesnt cover any sickness or
disease regardless of how contracted, potentially allowing it to dodge work-related
conditions such as heat stroke, chemical exposures or even cancer.
Since its beginning, workers comp has paid benefits regardless of whether the
employer or worker was at fault. But several companies, including Home Depot, Pilot
Travel Centers and McDonalds, exclude injuries caused by safety violations or the
failure to obtain assistance with a particular task.
Under workers comp, employees cant be fired in retaliation for a claim. But
employers that opted out argued that their workers werent entitled to that
protection, and in 1998 the Texas Supreme Court agreed.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 170 of 207 PageID #:1442

Gillespie, of the insurance association, said such provisions blatantly shift costs to
taxpayers, in the form of Social Security disability, Medicare and Medicaid. Some
plans state it explicitly: The plan for Russell Stover Candies said its benefits are
secondary to all other sources of benefits. Home Depot requires its employees to take
whatever benefits are available, including enrolling in Social Security disability.
And as Joe Becker, a truck driver in Abilene, Texas, discovered, workers no longer
have the promise of lifetime medical care for on-the-job injuries.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 171 of 207 PageID #:1443

After truck driver Joe Becker herniated discs in his back on the job, his employer, Dent
Truck Lines, paid for surgery. But when he needed a second operation to remove screws
causing him pain, Dent refused to pay, saying it was past the two-year time limit. Becker,
who lives in Abilene, Texas, now lives on Social Security disability. (Dylan
Hollingsworth for ProPublica)

Becker said he herniated several discs in his lower back in June 2012 when he
hopped off his flatbed trailer after adjusting a load. His employer, Dent Truck Lines,
paid for surgery that put rods and screws in his back. The surgery helped, but the
screws dig into his back, occasionally hitting a nerve.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 172 of 207 PageID #:1444

The doctor recommended surgery to remove the screws in 2014, medical records
show. But because Dents benefit plan provides only two years of medical care,
Becker was out of luck.
His boss, Cliff Dent, said hed go out of business if he had to carry workers comp and
doesnt think Becker is deserving.
The whole deal is just kind of silly, like most of these deals are people looking for
free money, he said.
On the edge of being homeless, Becker, 44, applied and qualified for Social Security
disability. He struggles to pay bills. For several weeks this spring, he said, he
subsisted on a half a can of ravioli or SpaghettiOs a day.
Sometimes I have to make a choice, he said, sitting uncomfortably on his worn sofa.
Do I buy my pain meds or whatever other medicine that I need or do I buy
groceries?

So, Sue Me Or, Rather, Arbitrate


Under the bargain of workers comp, employees gave up their right to sue their
employers in return for guaranteed care and wages. The tradeoff in Texas is that
injured workers covered by opt-out plans can sue their employers for negligence,
potentially winning millions of dollars.
This risk is why many companies cap medical benefits at two years, Minick said.
When injuries are severe enough to require lengthy medical care, many companies
settle with workers, giving them a lump sum to cover future medical expenses and
permanent disabilities.
On a more basic level, the threat of lawsuits, Minick and other proponents assert,
creates a healthy incentive for companies to keep their workplaces safe.
But over the years, large companies have found a series of ways to reduce the risk of
lawsuits.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 173 of 207 PageID #:1445

Under workers comp, employees denied benefits can typically get hearings before
administrative law judges. They can appeal further to a workers comp commission
and even up to the state supreme court.
Under opt-out plans, workers only avenue of appeal is a committee set up by their
employers for what is largely a paperwork review. Lowes hardware and Albertsons
supermarkets have contracted out their appeals to a Pennsylvania company called
ELAP Services, which describes its mission as helping employers control employee
health care costs.
ELAPs president said the goal is to provide an objective review of the claim outside
of the companys basic business model of reducing medical bills.
But Gillespie said, Its potentially still somebody who either has a vested interest or
is employed by somebody who has a vested interest.
If the claim is still denied, workers can file an ERISA lawsuit in federal court. But the
judge is typically limited to deciding if the company followed its plan or acted
arbitrarily and capriciously not whether the company was right.
A number of rulings by Texas courts have added to employers leverage, creating a
higher bar for workers to prove their employers were negligent for common slipand-fall and lifting injuries.
Many companies have further limited the risk by requiring employees to sign
arbitration agreements. Instead of going before a jury, workers disputes are handled
confidentially, out of court, before an arbitrator, typically a former judge or defense
lawyer.
A 2010 survey of large employers with opt-out plans by a Stanford law professor
found that 85 percent used arbitration agreements. Arbitration appeared to save
companies money. Only a quarter of those companies had paid a claim over
$500,000. And only 10 percent had paid more than one claim over $500,000
compared with 38 percent of companies that didnt use arbitration.
More strikingly, 81 percent of employers reported having no or hardly any trouble
with litigation.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 174 of 207 PageID #:1446

For many years, several companies that opted out required new employees to sign
pre-injury waivers saying they wouldnt sue the company if they got hurt. Texas
banned that practice in 2001.
But many large meat and poultry companies, such as Tyson Foods, Cargill and
Pilgrims Pride, continued to use post-injury waivers. After reports of workers
signing waivers at hospitals sometimes while still bleeding the legislature tried to
ban that too.
The debate over waivers presented a turning point for Minick to demonstrate his
political savvy.
The largest group for employers that opted out, the Texas Association of Responsible
Nonsubscribers, decided to support the ban, considering such practices abusive.
That rankled several members of the states business chamber, who had opted out
and wanted to preserve their ability to avoid lawsuits.
With Minicks help, they drafted legislation in 2005 that allowed waivers so long as
there was a cooling off period of 10 days after the injury. Following the success of
that measure, Minick helped chamber members form a new group for employers
with opt-out plans. They called it the Texas Alliance of Nonsubscribers and hired the
chambers longtime lobbyist, Richard Evans, who had been deputy legislative affairs
director for George W. Bush when he was governor.
For the first time, Minick became his clients political partner, guiding their
ambitions to shape legislation and the future of workplace injury benefits.
Recognizing the growth potential, the global insurance brokerage Arthur J. Gallagher
& Co. acquired PartnerSource in 2009 in a deal that left Minick in charge. The
financial terms werent disclosed, but documents filed with securities regulators in
2012 reveal that Minick and his partners, which included two charities, received $7
million in Gallagher shares as a bonus payment.
Minick would soon begin justifying the investment. Spurred by Texas clients eager to
opt out in other states, PartnerSource started looking at opportunities elsewhere.
Their first target was due north: Oklahoma.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 175 of 207 PageID #:1447

Sweepin Down the Plain


Year after year, Oklahomas legislature had tried to overhaul its workers comp
system to lower insurance rates, which were higher than those in surrounding states.
But the changes only brought modest drops.
In 2011, Minick brought a group of his frustrated clients together in the Oklahoma
Injury Benefit Coalition, led by Hobby Lobby and the Unit Corp. drilling company. The
group recruited Steve Edwards, the former state Republican Party chairman, as its
lobbyist.
Our claims process in Texas was a lot quicker and resolved a lot faster than
anything we ever had in Oklahoma, said Mark Schell, Units senior vice president
and general counsel. Weve had claims in other states including Oklahoma that are
two to three years old because we cant get them resolved. You have no control over
them and they just drag on and on. (Unit recently opted back in in Texas after a
spate of serious injuries during the oil boom increased their legal costs. But Schell
said he still believes in opt out.)
The groups first effort to pass an opt-out bill was narrowly defeated in 2012. But
they returned in 2013 with a new partner, the State Chamber of Oklahoma, and a
more ambitious plan not only to pass an opt-out option, but to rewrite the entire
Oklahoma workers comp law.
The bill differed from Texas version in two ways. Employers would have to provide a
minimum level of benefits matching state law. And, unlike Texas, employers would
get to keep their immunity from lawsuits.
A chamber lobbyist and a Unit lawyer wrote the bill, incorporating language from
various interests, including Minick. I was one of the primary drafters, Minick said.
Is there a potential conflict of interest between our desire to see workers comp
options adopted in other states and our firms revenue model? Yes, he said. But the
conflicts of interest are only a problem when theyre not disclosed.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 176 of 207 PageID #:1448

One thing not disclosed: the Oklahoma bill copied language nearly verbatim from
PartnerSource plans making the definition of accident more restrictive than it
was in traditional workers comp.

Walmarts Plan Vs. Oklahoma Law


Oklahomas opt-out law is remarkably similar to PartnerSource plans when it comes
to the definition of "accident."
Walmarts 2012 Plan

Oklahomas 2013 Law

"Accident" means an event involving


factors external to the Participant which:

An "accident" means an event involving


factors external to the employee that:

(a) was unforeseen, unplanned, and


unexpected;

(1) was unintended, unanticipated,


unforeseen, unplanned and unexpected,

(b) occurred at a specifically identifiable


time and place;

(2) occurred at a specifically identifiable


time and place,

(c) occurred by chance or from unknown


causes; and

(3) occurred by chance or from unknown


causes, and

(d) resulted in physical injury (or mental


or emotional injury, in the event of a
Violent Crime) to the Participant;

(4) was independent of sickness, mental


incapacity, bodily infirmity or any other
cause.

Walmarts Texas plan, which Minick wrote the year before, defines accident as an
event involving factors external to the participant which was unforeseen, unplanned
and unexpected, that occurred at a specifically identifiable time and place, and
occurred by chance or from unknown causes.
The Oklahoma bill defined it as an event involving factors external to the employee
that was unintended, unanticipated, unforeseen, unplanned and unexpected, that
occurred at a specifically identifiable time and place, and occurred by chance or
from unknown causes.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 177 of 207 PageID #:1449

Gillespie, of the insurance association, said the wording could be used to deny
almost any claim because nearly every injury has a cause.
Since the law took effect last year, 59 companies, covering an estimated 22,500
workers, have opted out, ranging from small home health care agencies to national
brands like Macys and Swift Transportation. Fifty-three have plans that were written
by PartnerSource.
On paper, the benefits look similar to or even better than state workers comp.
Both replace at least 70 percent of workers wages. Some plans pay 90 or even 100
percent of wages.
But theres one big difference. Benefits under opt-out plans are subject to income
and payroll taxes; under workers comp, theyre not. As a result, 80 percent of the
plans actually provide lower benefits, ProPublica and NPRs analysis found.
Minick said that the analysis missed a key point: Because the plans that offer
benefits above the minimum are larger employers, the majority of workers under
opt-out plans receive equal or higher benefits. In addition, he said, those companies
start benefits on the first day of the injury instead of waiting three days, like workers
comp does.
And their plans dont have wage limits. As part of the 2013 law, the Oklahoma
legislature capped benefit payments under workers comp at $561 a week. In March,
ProPublica and NPR profiled an injured Goodyear Tire worker whose family was
evicted from their home when his income dropped so much they could no longer
afford the rent.
But the Oklahoma plans incorporate many of the rigid rules from Texas. As opt-out
got underway, injured workers, lawyers and even the insurance commissioner
quickly learned what that meant.

Learning the Hard Way

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 178 of 207 PageID #:1450

Rachel Jenkins, 32, was denied further treatment after a doctor hired by her company
said she had a shoulder condition caused by aging, not her work accident. "What's age
got to do with anything?" she asked. (Nick Oxford for ProPublica)

Last March, Rachel Jenkins was working as a job coach and personal care aide for
ResCare, the nations largest private provider of services for the physically and
mentally disabled, when a man attacked her client at an Oklahoma City facility.
While trying to pull the assailant off her client, she was thrown to the ground,
injuring her shoulder. ResCare told her to bring her client home, and after finishing
her shift, Jenkins went to the emergency room. The doctor prescribed pain
medication, which knocked her out, she said.

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The next day, ResCare sent Jenkins to its doctor, where she called the companys
claims hotline. The adjuster told her the injury wouldnt be covered because she
called 27 hours after it happened instead of the required 24.
They told me that I should have called the next morning at 10 oclock. But I was
asleep. I was on meds, said Jenkins, a single mother with four kids, ages 1 through
12.
Jenkins supervisor, who witnessed the incident, complained to the corporate office,
and a week later, ResCare reversed its decision.
To ResCare and Minick, who wrote the companys plan, Jenkins case illustrates the
discretion that companies have, in this case to accept claims even when theyre not
reported on time.
The system worked and took care of her and fully paid her benefits, Minick said.
Not so, said Jenkins. Her shoulder remains in constant pain, she said, preventing
her from returning to work fulltime.
In May, the company sent her for an MRI of her shoulder. Reading it, the doctor
ResCare sent her to an ear-nose-and-throat doctor at an urgent care clinic
noted inflammation and recommended that she see an orthopedic specialist, medical
records show.
But ResCares adjuster wouldnt authorize it. Instead, the company scheduled an
independent medical exam with a doctor flown in from Arizona to review her case.
That doctor said the MRI didnt reveal any evidence of an acute injury that could be
causing the pain and instead showed a wearing of her rotator cuff caused by aging.
Jenkins is 32.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 180 of 207 PageID #:1452

Rachel Jenkins praises her daughter's good grades at their home in Boley, Oklahoma.
Jenkins, who works with disabled adults, was initially denied care for an on-the-job
injury because she reported it in 27 hours instead of the required 24. (Nick Oxford for
ProPublica)

Whats age got to do with anything? she asked. Until the incident, I didnt have no
problems with my shoulder at work.
Workers lawyers in Oklahoma also noticed that many companies, including ResCare,
were using a Dallas physician, Dr. Melissa Tonn, as the medical director responsible
for managing workers care.

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Tonn, they learned, not only once shared an office with PartnerSource, she was
Minicks wife.
The situation had been an open secret in Texas, where lawyers grumbled privately
for years. Melissa Tonn has a vested interest in PartnerSource making more money,
said James Grantham, a Houston lawyer who has handled about 700 opt-out cases
in the last few years.
As medical care is often the most expensive part of a claim, Tonn can greatly
influence how much claims cost. And that ultimately affects how much money
PartnerSource saves employers, allowing it to keep clients happy and recruit more
business.
So if Melissa Tonn says you dont need back surgery, PartnerSource will profit from
that, Grantham said. Its absolutely rigged.
Tonn insisted her assessments were based on workers conditions and were
unaffected by the interests of employers or PartnerSource.
The decisions I make are not based on how much money is going to be saved, Tonn
said.
Minick said his wife stood on her own credentials as the former director of two
hospitals occupational health programs and as past president of both the Texas
College of Occupational and Environmental Medicine and a national organization of
physicians who evaluate disabilities.
The couple were already independently successful, Minick said, when they met at a
workers comp opt-out conference. As their businesses grew and they started having
clients in common, they took steps to keep them separate, he said. Tonn moved to an
office one floor up in the same building. And Minick discloses the relationship in
client contracts.
They can visit with whatever vendor they want to, Minick said. And Tonn is one of
them that they should consider.
While opt-out plans have to be submitted to Oklahomas insurance commissioner,
there is little review.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 182 of 207 PageID #:1454

ProPublica and NPR obtained more than 2,000 pages of internal emails between the
Oklahoma Insurance Department and companies that wanted to opt out.
The emails regarding a chain of long-term care facilities are typical. An insurance
department lawyer notes that a paragraph is missing a period, causing a run-on
sentence. But he fails to point out that the paragraph promises no interference
with the doctor-patient relationship while at the same time warning workers that
seeing their own doctor may result in a complete denial of benefits.
Gordon Amini, the departments general counsel, said the insurance commissioner
doesnt have the power to question such provisions and cant reject plans under the
law.
We are supposed to confirm; it never uses the word approve, he said.
The law also states that settlements must be voluntary. But our review of Oklahoma
plans written by PartnerSource showed that nearly every one contains a section
titled Mandatory Final Compromise and Settlement, which instructs workers that
no further benefits will be payable if they refuse the companys offer.
After being made aware of the inconsistency by NPR and ProPublica, Amini said the
insurance department immediately took action and contacted PartnerSource to
revise it.
The reality is, under the current scheme there is no regulation of these plans, said
Bob Burke, a longtime Oklahoma workers comp attorney. He said its setting a
dangerous precedent. We cant as a society say, Okay, employers, write whatever
plan you want to write, provide what benefits or lack of benefits you want to, set up
whatever scheme you want to award those benefits, and by the way, no one is looking
over your shoulder.

Where Else Can We Do It?


Studying the map in PartnerSources office, Minick surveyed the country like a
commander strategizing the next offensive.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 183 of 207 PageID #:1455

Tennessee, he said. Theres more dots there than anywhere else. You get all these
Tennessee companies that know what its like to have better care, lower costs. So
then they start saying, Where else can we do it?
In 2012, Tennessee seemed primed to allow employers to opt out of workers comp.
For the first time in at least a century, Republicans controlled both legislative
chambers and the governors office. Employers were already pushing for major
changes to the workers comp system. And the new governors family owned Pilot
Travel Centers, which had opted out in Texas.
But after a series of public meetings, the state workers comp division hired
consultants who produced a scathing report, raising concerns that letting companies
opt out would shift costs to government programs.
Giving firms this option would have potentially significant consequences on some
injured workers, other Tennessee employers, and the state taxpayers generally, the
consultants wrote.
The legislature passed an overhaul of workers comp in 2013, but it contained
nothing about opting out.
Despite the defeat, Minick started pulling together employers and others. In
December 2013, they formed a group called the Association for Responsible
Alternatives to Workers Compensation.
K. Max Koonce, Walmarts senior director of risk management became chairman.
Nordstroms vice president of risk management was appointed president, Lowes
vice president of risk management was vice president, and the chief executive of the
Combined Group insurance company was treasurer. Minick became secretary.
The rest of the board was made up of top managers at Kohls, J.B. Hunt, Big Lots,
Sysco, Safeway, Brookdale Senior Living and others in the insurance industry. Joined
by Macys, Whole Foods and Brinker International (owner of Chilis Grill & Bar),
they paid as much as $25,000 each to finance ARAWCs efforts, according to
association webpages.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 184 of 207 PageID #:1456

The group planned to go state by state to pass opt-out legislation, starting with the
South.
The associations address was the lobbying firm of Richard Evans, whom Minick had
worked with at the Texas alliance. In addition, the group hired Edwards, who ran the
successful Oklahoma effort. In each new state, they would team up with connected
local lobbyists to navigate the politics.
In February 2015, a bill pushed by ARAWC was introduced in the Tennessee
legislature that contained a mix of the Texas and Oklahoma laws. Like Oklahoma,
employers had to provide a minimum level of benefits up to three years of medical
care, or $500,000. That was less than the benefits provided by the states workers
comp law, which set no limits on medical care.
But, like Texas, catastrophically injured workers could sue for higher benefits. Their
employers would face limited damages and have additional legal defenses that Texas
employers dont.
The bill stalled in April, after it failed to be endorsed by the states workers comp
advisory council. But supporters plan to revive it in the next legislative session.
With the Tennessee push underway, ARAWC settled on its next target: South
Carolina.
As lobbyists, it hired former political directors of the national and state GOP.
A bill was introduced in the state assembly in May, with the goal of generating
discussion before the legislature reconvenes next year.
Rep. David Hiott, a small business owner frustrated with workers comp, said he
sponsored it after receiving a synopsis of the bill from another legislator and
ARAWCs lobbyists. They told me they would tell me more about it this fall, he said.
The bill represented a new gambit for ARAWC and Minick.
The Tennessee campaign drew so much criticism from employee advocates saying
that we were trying to reduce benefits, Minick said, that we said fine, just to prove

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 185 of 207 PageID #:1457

thats not the point, the South Carolina bill was introduced to say well pay benefits
higher than workers comp.
While workers comp replaces 66 percent of wages, South Carolina employers that
opt out would have to pay at least 75 percent, albeit taxable. They would not be
allowed to cap medical benefits and would have to match the state maximum of 500
weeks of death benefits. Burial benefits are three times as high.
The intent of this movement is to pay better benefits, Minick said.
But in Texas, where the movement began, people like Krystle Meloy are hardpressed to say how it has made things better for injured workers and their families.
Meloy was 23 with a 4-month-old daughter when her husband, Billy Walker, fell 180
feet from a communications tower in 2012.
Under the companys opt-out plan, she and her daughter, Kaylee, were entitled to
$250,000 for his death. She tried to sue after federal investigators found the
company had violated safety laws. But the company filed for bankruptcy a few weeks
later.
Under workers comp, she would have received 75 percent of her husbands wages
until her daughter finished college and until death if she never remarried. Based on
his wages in previous years, that would have guaranteed Meloy and her daughter at
least as much as the opt-out plan and likely far more potentially $1 million or
more, depending on the circumstances.
On a recent day, Kaylee, now 3, climbed up on a cushy chair and flipped through a
small photo album containing pictures of the day she was born.
See, look, mamas going to doctor, she said in a chipmunk voice. Turning to a
picture of her father cradling her in his arms, she giggled. Look at him. Daddy Billy.
Meloy receives Social Security survivor benefits and is applying for food stamps.
Shed like to get a job, she said, but cant afford daycare.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 186 of 207 PageID #:1458

I have to go through this for the rest of my life; Im having to teach our daughter
who her daddy is through a picture, she said. If other states are considering not
having workers comp, I mean, look what happened to me.
Hearing her story, Minick, who climbed radio towers when he was in college, paused
reflectively.
This is a difficult situation, it sounds like, he said. Theres no occupational injury
system that weve found yet that will provide perfect results in a 100 percent of cases.
Whats more important, he said, was which system would provide the best results in
most cases. In an earlier interview, Minick described what drove him to launch his
crusade to remake Americas system for caring for injured workers.
All you can do is pray that the Lord gives you a calling where you can really do good
for society, he said. Thats what gets me up every day, knowing that Im getting
better employee satisfaction and generating economic development. Thats as good
as it gets.
Update, October 15, 2015: After this article published, the Association for
Responsible Alternatives to Workers Compensation released this statement.
NPR intern Courtney Mabeus contributed to this report. Produced by Emily Martinez.
This story was co-published with NPR.

Michael Grabell covers economic and labor issues for ProPublica.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 187 of 207 PageID #:1459

Howard Berkes is a correspondent for the NPR Investigations Unit who has reported
on coal mine and workplace safety.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 188 of 207 PageID #:1460

EXHIBIT D

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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 196 of 207 PageID #:1468

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 197 of 207 PageID #:1469

EXHIBIT F

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 198 of 207 PageID #:1470

Insult To Injury: America's Vanishing Worker Protections

Oklahoma Commission Declares Workers' Comp


Alternative Unconstitutional
Updated February 29, 20166:23 PM ET Published February 29, 20165:22 PM ET

Howard Berkes Michael Grabell, ProPublica


An Oklahoma law that lets employers opt out of state-regulated workers compensation
has been rejected and declared unconstitutional by state regulators.
The Oklahoma Workers Compensation Commission called the alternative workplacebenefit plans that some employers adopted under the law a water mirage on the highway
that disappears upon closer inspection.
The unanimous ruling by the commission, issued Friday, is expected to be appealed.
NPR and ProPublica have also learned that the U.S. Department of Labor is looking at
whether opt-out plans in Oklahoma and Texas violate federal law.
Since 2013, employers in Oklahoma have had the ability to set up their own workplace
injury plans and avoid state-regulated workers comp benefits. An NPR and ProPublica
analysis of Oklahoma's opt-out plans shows that most provide fewer benefits, make it
easier for employers to deny benefits, give employers control over medical assessment
and treatment, leave appeals in the hands of employers, and force workers to accept
lump-sum settlements.
The ruling stops opt-out in its tracks, says Bob Burke, an Oklahoma City attorney who
has filed 17 cases challenging the law.
It stems from the case of Jonnie Yvonne Vasquez, who was injured at work while lifting
boxes of shoes at a Dillard's department store in 2014. Dillard's denied benefits, citing a
pre-existing condition. The company also rejected Vasquez's appeal.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 199 of 207 PageID #:1471

Burke, who represents Vasquez, argued that the injury would have been covered under
the states workers comp law and that the rejection by Dillards constitutes disparate
treatment of injured workers.
The Workers Compensation Commission agreed, noting other examples in the Dillards
plan, including denial of benefits for illnesses caused by exposure to asbestos, even
though those illnesses would be covered under state workers comp law.
The employer acts as the Legislator, by defining the injuries for which benefits will be
available, the commission wrote.
Bill Minick, the architect of the Oklahoma opt-out system, did not immediately respond
to requests for comment from NPR and ProPublica. The Dallas lawyer and his company,
PartnerSource, wrote and service most of the state's opt-out plans and are working to
expand opt-out to other states.
Minick indicated he would provide a statement sometime today.
We are extremely disappointed with the decision, but are continuing to review the ruling
with our legal experts to consider our legal and legislative options, Fred Morgan, State
Chamber of Oklahoma president and CEO, told The Tulsa World News.
A spokeswoman for Dillard's declined comment. The next step for Dillards is an appeal
to the Oklahoma Supreme Court.
The decision is very vulnerable to appeal, says Michael Duff, a professor of law at the
University of Wyoming and author of a textbook on workers compensation law.
The conversion of an administrative agency to a court raises significant separation of
powers and administrative law questions, Duff says.
The ruling comes as four other states have tabled consideration of similar opt-out
legislation.
A measure in Tennessee is off the Legislatures schedule, and a bill in South Carolina
appears to have stalled. Opt-out opponents in Mississippi and Georgia say expected
legislation in those states has yet to be introduced.
The Oklahoma decision puts a pretty serious crimp into the idea for the rest of this year,
says Fred Bosse of the American Insurance Association, an industry group that opposes
opt-out.
Minick and a national opt-out lobbying group, the Association for Responsible
Alternatives to Workers Compensation, have targeted a dozen states.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 200 of 207 PageID #:1472

This decision is not the final word. says AJ Donelson, a spokesman for ARAWC. The
case is far from over.
He also says the opt-out alternative to workers comp provides better medical outcomes,
fewer benefit claims disputes and greater costs savings for employers.
Minick claims $1 billion in savings in a decade for his opt-out clients alone in Oklahoma
and Texas, where he first introduced the concept.
Only five employers in Oklahoma have submitted opt-out plans for state approval since
NPR and ProPublica began reporting on the system in October. Before the stories, nearly
60 employers had opted out.
Ten ranking Democrats on U.S. Senate and House committees have asked the
Department of Labor to investigate.
One of the starkest developments in state workers compensation laws is the emergence
of opt-out provisions, wrote Sharon Block, a deputy assistant secretary of labor, in a
letter last week to Sen. Sherrod Brown, D-Ohio.
We are actively monitoring these developments, Block said, adding that the agency
has been in contact with the company cited in the ProPublica/National Public Radio
report that is offering services to employers in Texas and Oklahoma who opt out of
workers comp.
That description fits Minick's PartnerSource, which is the largest provider of opt-out
plans in Oklahoma and Texas.
Opponents of the opt-out movement say the plans violate the Employee Retirement
Income Security Act, which governs workplace-benefits plans.
We are currently evaluating whether the companys plans or models contain provisions
that interfere with or prevent the exercise of ERISA rights by covered employees, Block
said.

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 201 of 207 PageID #:1473

EXHIBIT G

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 202 of 207 PageID #:1474

F*?
i 314
I

BEFORE THE
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATlQm

MELTON TRUCK LINES, INC.,

;i:

I 16: 1 5

) U C ~ ~ ~ - A Q O + W ~ ; ~
se # 99-25-34666

Petitioner.
i

FINAL ORDER UNDER 49 C.F.R. 0 385.15


This matter comes before me on a December, 28, 1999, Petition for Administrative
Review submitted by Robert A. Peterson, President of Melton Truck Lines, Inc. (Melton),
seeking review of a proposed conditional safety rating issued on November 30, 1999. That
\\

.-

proposed rating ultimately became the assigned rating of this carrier on January 14,2000. This
proceeding is governed by the Federal Motor Carrier Safety Administrationss (FMCSA) Safety
Fitness Procedures, 49 C.F.R. Part 385. This Petition for Review was timely filed.
1.

Background
The FMCSA conducted a compliance review (CR) of Melton Truck Lines, Inc., which

concluded on November 30, 1999. The review documented fifteen (15) different categories of
violations of the Federal Motor Carrier Safety Regulations (FMCSRs). Of these categories of
violations only one was identified as critical or acute as listed in 49 C.F.R. Part 385, Appendix B,
Subsection VII, and consequently it was only those violations that had an effect on this carriers
assigned safety rating. This category of violations is found in sequence 10 on the CR and is

Page 1 of 6

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 203 of 207 PageID #:1475

described as "false reports of records of duty status," violations of 49 C.I-'.R.


?j395.8(e), a critical violation under the regulations.

The CR outlines the carrier's proposed safety fitness rating as coriditional. A review of
the information concerning the rating indicates that Melton received a satisfactory rating in the
following rating factors: factor one (General=Parts 387 and 390); factor two (DriveFParts 382,
383, and 390); factor four (Vehicles=Parts 393 and 396); factor five (Hazardous Materials=Parts
397, 171, 177, and 1SO) and factor six (Accident Factor=Recordable rate). -Melton received an
unsatisfactory rating in factor three (Operational=Parts 383 and 395).
2.

Decision
Based upon the record before me, I find that this carrier has argued factual and procedural

issues as required by the regulations found at 49 C.F.R.

5 385.15(b).

It is my decision that

Melton's safety rating will be upgraded to "satisfactory" for the reasons described below. This
change in Melton's safety fitness rating shall take effect immediately
A.

The internal data provided FMCSA investigators was discovered by Melton to be


flawed and consequently unreliable for log accuracy comparison.
The regulations found at 49 C.F.R. 0 385.15(b), requires ever$ petition for administrative

review of a proposed safety rating to be in writing, and to outline the errors and all factual and
procedural issues in dispute. The regulations also advise the petitioning carrier that they may
attach any information or documents the motor carrier is relying upon as the basis for its petition.
In its petition, Melton advises that they have discovered, post review, that data provided
to the investigator is flawed and consequently unreliable for log accuracy comparison. Its
petition argues that fueling times at approximately six locations have been found to be inaccurate

Page2of 6

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 204 of 207 PageID #:1476

on several occasions making those locations unreliable for the purpose of log accuracy
i

monitoring, and that its own dispatch records do not represent the actual time of dispatch. The
latter merely being the time that someone entered the data into the dispatch system.
Nowhere does petitioner explain how the fueling times were inaccurate, nor does the
petitioner include written examples or other evidence that explain that the fuel reporting
documents are incorrect. No affidavits have been filed with this office from managers of the
reported six locations explaining the inaccurate and unreliable information, no affidavits have
been submitted from the fueling card company explaining the problem, m d finally no
information has been submitted from company dispatchers outlining the dispatch errors.
Consequently, I find that petitioner has failed to comply with the provisions of 49 C.F.R.
tj

'\

385.15 to the extent that relief can be granted because the petition is not accompanied by

sufficient information, documents, or arguments that would allow me tc rule otherwise.

B.

Faise reports of records of duty status.

I review this category of violations sua sponte. I conclude that the safety investigator
failed to adhere to the minimum sampling requirements as outlined in the FMCSA Field
Operation Training Manual (FOTM). The FOTM is instructive as to the minimum number of
records to be reviewed for a carrier the size of petitioner. Here, petitioner has 467 drivers subject
to the FMCSRs. Therefore, a minimum of 17 drivers and 5 10 records of duty status (RODS)
must be reviewed against supporting documents for falsification. The manual also allows for a
deviation from the minimum sampling for "good cause" shown, in that, the manual states that an
investigator can only review RODS that have supporting documents. In that case, the
investigator must fully outline within the four comers of the CR the reason(s) for failing to
Page 3 of 6

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 205 of 207 PageID #:1477

adhere to the FOTM requirements. The investigator, in Part C to the CR in question states:
"[D]ue to the lack of supporting documents, the minimum number offalse logs reviewed was
less than the required sample." I hope the investigator actually means that the minimum number
of "duty activities" reviewed was less than the required sample, because not all such records
amount to "false logs." Nonetheless, the investigator's bare bones explanation does not go far
..

enough to explain why he could not obtain sufficient numbers of documents. A sufficient
explanation, at a minimum, should explain who was asked for the required supporting
documents, what documents were requested, what documents were made available, and must
outline the company's answer as to why certain documents were not available.
My decision today is consistent with prior agency case law. See Rediehs Transportation

Company, No. 96-43121 8 (Final Order January 10, 1997); Buchan Trucking, LLC., No. 98-04-

',

153854 (Final Order June 1998); Professional Transportation Services, h c . , No. 99-05-393273
(Final Order July 6, 1999); Trek Transportation, Znc., No. 99-02-587225 (Final Order April 15,
1999); Quaker Transport, Inc., No. 98-07-619559 (Final Order September 2, 1998); Eastern
I .

Express, Inc., No. 98-06-162408 (Final Order September 15, 1998): D MManufucturing Co.,
.

No. 98-09-243571 (Final Order September 2 1, 1998); and Gorrell Lumber, Inc. (d.b.a. Jensen

Sales Company), No. 98-08-438960 (Final Order November 3, 1998).


I find herein that one hundred and sixty-one (16 1) RODS reviewed, without a "good
faith" explanation why a total of 5 10 records could not be review, simply does not meet the
minimum requirements of the FOTM. Therefore, I must give petitioner the benefit of the doubt
and conclude that this carrier committed 29 violations of the 5 10 (required) records reviewed. A
violation rate below the ten percent threshold. The two points originally assigned to factor 3 of
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Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 206 of 207 PageID #:1478

the rating table will be removed.

3.

Conclusion
It is hereby ORDERED that Melton Truck Lines' motion lor a change in its safety rating

is granted in part, and denied in part, as outlined within the above decision. As a result of this
opinion Melton's safety rating is upgraded to "satisfactory" effective immediately.
This Order constitutes final agency action. Any party aggrieved by a final order may,
within 60 days after its entry, file a petition to review the order in the court of appeals wherein
venue lies. 28 U.S.C. tj 2344. See MST Express. Inc. v. DeDartment of Transportation, Federal
Highway Administration, 108 F. 3d 401 (D.C. Cir. 1997).

Issued this

7h day of February, 2000.

, -n

Steve Barber, Acting Director


Office of Enforcement and ?ompliance'

'Pursuant to an internal reorganization, the Director, Office of Enforcement and


Compliance, performs the functions previously performed by the Director, Office of Motor
Carrier Enforcement. The Director, Office of Motor Carrier Eniorcement. *#ursuantto an earlier
internal reorganization, performed the functions previously performed by the Director, Office of
Motor Carrier Field Operations. See, 49 C.F.R. 9 385.15(a).
Page 5 of 6

Case: 1:14-cv-07858 Document #: 175 Filed: 05/09/16 Page 207 of 207 PageID #:1479

CERTIFICATE OF SERVICE

This is to certify that on the


day of>&
, 2000, the undersigned served in the
following manner the designated number of copies oathis Final Order Under 49 C.F.R. 4 385.15
to each party listed below:
John Grimm, Director
Federal Motor Carrier Safety Administration
Data Analysis and Information Systems
400 7th Street, SW., Room 3104
Washington, D.C. 20590
Jerry Cooper
Federal Motor Carrier Safety Administration
Area Administrator
Southern Field Operations
61 Forsyth Street, SW., Suite 17T26
Atlanta, GA 30303-3 104

One Copy
Hand Delivery

One Copy
U.S. Mail

Robert A. Peterson, President


Melton Truck Lines, Inc.
P.O. Box 271
Tulsa, OK 74 10 1-027 1

One Copy
U.S. Mail

Jerry Kirk
Federal Motor Carrier Safety Administration
Oklahoma State Director
300 N. Meridian, Suite 106-S
Oklahoma City, OK 73107-6560

One Copy
U.S. Mail

Edward D. Greenberg, Esq.


Gallard Kharasch Greenberg Fellman &
Swirsky, P.C.
Counsel for Melton Truck Lines, Inc.
Kana1 Square
1054 3 1". Street, NW., Suite 200
Washington, D.C. 20007
Fax: 202/342-52 19

"

One Copy
U.S. Mail and Fax

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