COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT CANO: LTTSCV OOP J BRIAN GOMES, ) } Plaineift : BRISTOL, SS SUPERIOR COURT Vs, 5) FILED ) SOUTHCOAST HEALTH ) DEC 2.1 2017 SYSTEM, INC, SAINT) MARC J. SANTOS, ESQ. LUKE'SHEALTHCARE =) CLERK/MAGISTRATE SYSTEM, INC, and ) SOUTHCOAST HOSPITALS ) GROUP, INC. i] ) Defendant j ) COMPLAINT ; tion 1, The Plaintiff, Mr. Brian Gomes (“Gomes”), brings this complaint to seek redress for ‘wrongful discharge from his employment. Gomes was a 29-year employee of St. Luke’s Hospital, In September 2015 Gomes was advised that a recent employee had complained of sexual harassment based upon Gomes giving a hug to his co-worker. The incident in question began when Gomes advised a new St. Luke's Hospital employee, with whom Gomes was acquainted as the girlfriend of a friend, that using a mobile phone in the middle of the hospital hallway was frowned upon. The employee took offense to these comments. ‘Two days later Gomes approached the employee to apologize for the prior conversationabout the phone. Gomes then hugged the new employee. Although Gomes denied any ‘wrongful conduct, he agreed to a corrective action that provided for a two day suspension from work based on the assurances from the Defendants that all work-related issues were resolved if he accepted the 2015 corrective actions. 2. Approximately two years later, with no subsequent complaints or discipline incidents of any kind, the Defendants terminated Gomes without warning, Defendants have violated their published policies and procedures and committed other violations of law by using a two-year-old sexual harassment allegation (previously disposed of) as a pretext to terminate Gomes in order to shield themselves from threatened litigation by third parties. Parties 3. Gomes is of legal age, and resides at 66 Clara Street, New Bedford, Massachusetts 02744. 4, Defendant Southcoast Health System, Inc. (‘Southcoast Health’) is a Massachusetts corporation, with its principal office located at 101 Page Street, New Bedford, Massachusetts 02740. Southcoast Health consists of three incorporated entities and includes Saint Luke’s Health Care System, Inc. (“St. Luke's Health"), which is also located at 101 Page Street, New Bedford, Massachusetts 02740, 5. Defendant Southcoast Hospitals Group, Ine, (‘Southcoast Hospitals”) is a Massachusetts corporation, with its principal office located at 363 Highland Avenue, Fall River, Massachusetts 02720, Southcoast Hospitals consists of three hospitals and includes Saint Luke's Hospital of New Bedford, Inc. (“St. Luke's Hospital"), which is located at 101 Page Street, New Bedford, Massachusetts 02740.6. Hereinafter Southcoast Health, Southcoast Hospitals, St. Luke's Health, and St. Luke's Hospital will be referred to collectively as Defendants. Gomes’ Employment at St. Luke’s Hospital On October 25, 1988 St. Luke's Hospital hired Gomes to work full-time as a Nursing Assistant in the Perioperative Services Department. From his hire date until June 23, 2017 Gomes was a full-time employee of St. Luke's Hospital. 8, tthe time of his termination Gomes worked as an OR Assistant Ill-Anesthesia Tech. Gomes’ duties included the following: supporting Perioperative Services, Anesthesia, ASU, 0B, Cath Lab, and Interventional locations in the hospital; cleaning and maintenance of perioperative, endoscopy, and anesthesia equipment and supplies; assisting perioperative and anesthesia team; and assisting nursing personnel in providing patient care and related duties within assigned areas. 9. During Gomes’ nearly 29 years of employment, he received 29 separate staff performance evaluations. These evaluations have always indicated that Gomes meets or exceeds the standards for employment. 10. From 1989 to 1993, Dorothy Lynch (“Lynch”), the Clinical Nurse Manager, completed Gomes’ performance evaluations. The following is a sample of comments made on Gomes’ performance evaluations during this period: “Brian is a welcome addition to the Perioperative Services. He is quiet, efficient, and most pleasant. He shows eager interest in work and communicates well with others.” (Feb, 1989); “Brian is quiet and is always willing to cooperate, He has adjusted well to the OR. Shows interest in patients.” (Sep. 1989); “Brian assists in maintaining a clean and safe environment in the OR. Demonstrates[sic] a knowledge of equipment and supplies in the OR. Brian works on establishing a good rapport and working relationship with departmental personnel.” (Dec. 1990); Brian is “pleasant, tactful, caring when dealing with patients and families ... Brian is patient caring, Has good job knowledge.” (Oct. 1992); and “Brian is a pleasant, personable assistant. Helpful to patients.” (Nov. 1993). 11. From 1994 to 1997, and in 1999, Lori LaValley (“LaValley”), the Perioperative Department Head, completed Gomes’ performance evaluations, The following is a sample of comments made on Gomes’ performance evaluations during this period: “Brian consistently communicates well w pts [sic] and families.” (Oct. 1995) . . . “Brian is supportive of patients of all ages, involves family in pedi care .... Brian responds effectively in emergency situations, seeks assistance when needed . . . Brian often stays over to help others at end of shift... Brian suggests areas of improvernent, has grown in performance, supports SLH mission in community . .. Brian supports SLH in community, functions well under stress.” (Dec. 1997); “Brian assists patients and families by reassuring them and answering their questions, Brian follows through by assisting customers and allaying their anxieties, He is very customer focused, Positively reflects hospital mission ... Brian assures that patient belongings are cared for appropriately.” (Oct. 1999), 12, From 2000 to 2003, and in 1998 and 2006, Iria Viera, the Perloperative Clinical Nurse Manager, completed Gomes’ performance evaluations. The following is a sample of comments made on Gomes’ performance evaluations during this period: “Brian is very supportive of patients and their families ... Brian has good judgment and decision making skills in regards to OR assistant role... Brian recognizes not only problems but solutions to the problems.” (Dec, 1998); “Brian does a good job taking care of patients . . . Brian hasgood decision making skills .. . Brian has a good handle on cost awareness . . . Brian communicates all pertinent information to the appropriate people... Brian documents ina timely manner . . . Brain does a good job in cleaning the rooms and turning them over.” (Dec, 2000). 13. In 2007, Kellie Medeiros, a certified perioperative nurse, completed Gomes’ performance evaluation, and made the following comments: “Brian is a resource to his peers. We recently reinstated the ORA program to our O.R. Brian has been instrumental in training our new employees. Brian is willing to help wherever needed, On many occasions this summer PACU was short staffed. Brian was assigned to that area on numerous occasions.” (Nov. 2007). 14, From 2008 to 2011, Marguerite Collins completed Gomes’ performance evaluations. ‘The following is a sample of comments made on Gomes’ performance evaluations during this period: “Brian takes an active role in organizing, planning and implementing projects for the ORA’s, During our recent monthly inservice day, he volunteered to present an inservice to his co-workers on proper patient positioning, making excellent use of otherwise down-time. He rallies his peers to do cleaning projects when time allows . . ‘Turnover time is excellent, focusing on the job at hand and helping to ensure the rooms stay on schedule .. , Brian displays a tremendous amount of compassion and kindness in his interactions with patients and family; explaining, calming and sometimes just listening to help allay anxiety . .. Brian has served as preceptor for newly hired ORAs during past year, He takes great pride in this assignment and strives to develop our new employees at the highest level of performance. He utilizes down-time in the OR for clean-up projects and has presented an inservice on positioning for his peers.” (Oct. 2008); “Brian continues totake an active role in fostering educational opportunities for the ORAs, Establishes projects for his peers to utilize down time . . . Brian consistently recognizes situations needing attention and formulates plans to correct them .. . Turnover time is éxcellent, focusing on the tasks and helping to keep the rooms on schedule.” (Oct. 2009); “Brian has been in training for the expanded role into anesthesia since Sept 13. He has embraced the challenge and become a quick study. He continues to take a lead role in assisting the ORAs with prioritizing their tasks and in acceptance of this new endeavor. As we work out the site- specific hindrances, Brian is vital in helping coordinate, train, encourage and support the team as we progress through this .... As the senior ORA, Brian takes pride in helping coordinate tasks, disseminating information, fostering a team spirit and providing on-going training to his co-workers.” (Oct. 2010). St. Luke's Hospital also evaluates employee performance on a numerical scale between 0 and 5.0. In 2010 Gomes received a performance rating of 3.65 ~ excellent performance, which indicated that Gomes “fulfills and frequently exceeds expectations of the job.” 15. The following comment was made on Gomes’ 2014 performance evaluation: “Brian does an excellent job as ORA/Anesthesia Tech. . .. Brian keeps the patients as his first priority. He will always offer a blanket or other assistance if needed.” (Nov. 2014). During 2012 and 2014, Gomes overall performance ratings, 3.0 and 3.15 respectively ~ good solid performance, which further indicated that Gomes “fulfills expectations of the job.” 16. Following his 2014 performance evaluation, Gomes was promoted from ORA IL (listed In his 2014 review) to ORA III (listed in his 2017 review). This promotion also increased Gomes’ salary grade from SC009 to SC010.17, in 2013, Catherine Breton (“Breton”), the Operating Room ("OR") charge nurse and cone of Gomes’ supervisors, completed Gomes’ performance evaluation and made the following comments: “Brian continues to do well in his ORA I role, he has adapted well to all the changes that have been implemented with ORA assignments and accountability over the last year, He is consistently helpful & pleasant with all his patients.” (Oct. 2013). Gomes overall performance evaluation rating, 2.9 - good, solid performance, which further indicated that Gomes “fulfills expectations of the job.” 18. Gomes’ most recent staff performance and evaluation was completed by Breton on April 25, 2017, roughly two months prior to his termination from St. Luke's Hospital. See Exhibit a. 19. Overall, Gomes was awarded 2.91 total points, which indicates that Gomes was fulfilling the expectations of the Job, with good, solid performance under Defendants’ rating system, Moreover, because Gomes fulfilled or exceeded the expectations of his position, he received a 2% raise to his annual salary. 20. St. Luke's Hospital’s performance rating system is weighted by four categories Including: performance standards (50%), service behaviors (20%), values (30%), and project/goals (0%). The essential functions and performance standards category, weighted at 50%, relates to the essential functions of the position listed, and other related duties reasonably expected of the position. In 2017, Gomes was awarded an overall total of 2.9 for essential functions. See Exhibit A, 21, The service behaviors category, weighted at 20%, relates to the provisions of care and attendance to the needs of patients, families, team members, and communities. In 2017, Gomes was awarded an overall total of 2.8 for service behaviors. See Exhibit A.22, The values category, weighted at 30%, relates to the promotion of St. Luke's Hospital's values including the following: excellence, innovation, integrity, respect, responsibility, and attendance, Breton rated Gomes at 3.0 within the good, solid performance range. Breton’s comments for this section stated: “Brian docs know his job very well, when he does have any questions he does seek out the appropriate answers.” See Exhibit A, 23. Attached to Gomes’ performance evaluation is Gomes’ transcript of Healthcare Source Net learning, The transcript indicates that on April 20, 2017 Gomes completed the following trainings: Restraints - Unlicensed; Death Dying and New England Organ Bank; Laser Safety; Bariatric Sensitivity; 2017 AMT Fire Safety; 2017 AMT Workplace violence; 2017 AMT Ethics, Integrity, and Compliance; 2017 AMT Cultural Competency; 2017 AMT Patient Confidentiality; 2017 AMT Risk Management; 2017 AMT Information Security Awareness; 2017 AMT Infection Prevention; 2017 AMT Sexual Harassment Awareness; and 2017 AMT Abuse, Neglect, and Exploitation. 24. ‘Throughout Gomes’ nearly 29 years of employment with Defendants, Gomes received a raise every single year, except in 1999 and 2014. Gomes performance evaluation from 1999 notes “0 increase wage freeze online.” Gomes 2014 raise was incorporated into the 2014 salary grade increase with his promotion, as referenced in 715. Southcoast Policies and Procedures 25, During Gomes’ employment, Defendants established certain policies and procedures in their administrative policy manual and human resources policy manual, which contained certain terms and conditions of employment that applied to Gomes.26. The Administrative Policy Manual includes the following policies: Sexual Harassment and Other Forms of Harassment Policy, SHS-ADM-HR-4.38, ("Sexual Harassment Policy”) see Exhibit B; Code of Conduct and Mutual Respect Policy, SHS-ADM- HR-7.01, ("Conduct Policy’) see Exhibit C; and the Corrective Action and Disciplinary Measures Policy, SHS-ADM-HR-4.40, (“Corrective Action Policy") see Exhibit D. 27. The stated purpose of the Sexual Harassment Policy is to provide a workplace that is free of sexual and other forms of harassment. The Sexual Harassment Policy provides an outline of the procedure that is to be pursued once a complaint has been brought to the attention of Human Resources. The policy states: “1. A prompt and impartial investigation of the complaint is conducted by Human Resources. That investigation may include (but will not necessarily be limited to) interviews with the employee who made the complaint, with the person or persons against whom the complaint was made and with employees and others who may have witnessed the reported incident or incidents. 2. Upon completion of the investigation, Human Resources will meet with the employee who made the complaint and with the employee or employees against whom the complaint was made, to report the results of the investigation and, where an action is determined to be appropriate, to inform the parties of the steps that will be taken to correct the situation.” See Exhibit B at 3. Moreover, the policy provides that “claims and allegations must be handled expeditiously, diligently and to the extent possible confidentially.” See Exhibit B at 4. 28, The stated purpose of the Code of Conduct and Mutual Respect policy is to enhance patient safety and quality care by creating opportunities for staff to communicate critical issues to other members through professional and respectful communication and interaction, The procedure section states: “Code Zero may be utilized by any individualwho is exposed to and/or witnesses inappropriate behavior shall address the behavior in the moment, if the circumstances allow, by taking the following steps: respectfully approach the individual and quietly indicate to him/her that it is a Code Zero situation.” See Exhibit € at 2. “In response to the Code Zero statement itis the obligation of the individual to cease the inappropriate behavior. It is expected that this feedback will be received by the individual in a positive and professional manner. If the inappropriate behavior continues or escalates, the individual who initiated the Code Zero is expected to report the situation to an appropriate member of leadership.” Exhibit € at 3. 29. Upon information and belief, a Code Zero has never been initiated in response to any of Gomes’ actions or behavior during his employment at St. Luke’s Hospital. 30. The stated purpose of the Corrective Actions Policy is for employees to accept personal responsibility for high standards of conduct and job performance, and outlines corrective action and disciplinary measures. This policy states: “All corrective action is documented using either the Corrective Action Form or a memorandum or Jetter to the employee. Any corrective documentation forwarded to the Human Resources should be shared with the employee, who is encouraged to sign the document.” See Exhibit D at 2. ‘The policy describes oral counseling as “a supportive discussion occurs between a supervisor and employee about job performance issues, violation of guidelines, policies or regulations. Leaders should notify the employee that counseling is the first step in the corrective action process and maintain written documentation of counseling in departmental files. See Exhibit, at 2. The policy describes a written warning as a “formal document regarding poor performance of violations of guidelines, policies or regulations. A Written Warning usually follows counseling and would be a starting point for corrective 10action for more serious situations.” See Exhibit D at 2. The policy describes final written warning and/or suspension as a “formal document regarding poor performance or violations of guidelines, policies or regulations. A final written warning follows a written ‘warning and could be a starting point for corrective action for more serious situations and is usually the last step prior to termination. See Exhibit D at 2. Finally, the policy describes termination as applicable when “it is determined by the applicable leadership, in consultation with the Director, Human Resources, that corrective action is not likely to result in improved performance, or that the misconduct at issue is sufficiently serious to warrant immediate termination, the employee's employment may be terminated, even if prior disciplinary action has not been imposed.” See Exhibit D at 2. 31, The Corrective Action Policy also describes the process that if “an issue with performance or conduct arises, leaders are expected to gather and document all relevant facts starting first with meeting with the employee to discuss the situation to get his / her perspective, In situations where it is in the best interest of SHS and the employee to not have an employee at work during an investigation, an employee may be placed on administrative leave pending outcome of such investigation, Human Resources will be consulted prior to an employee being suspended from work due to an investigation.” See Exhibit D. at 2, “All documentation of corrective actions, including oral counseling, is retained in the employee's departmental record. Documentation of corrective action other than counseling is forwarded to the Human Resources department and retained in the employee's file. See Exhibit D at 3. crSeptember 2015 St, Luke's Sexual Harassment Investigation 32, _ In September 2015 Gomes was informed, for the first time, by Breton and a Human Resources representative that he was being investigated for behavior in violation of the Southcoast Code of Conduct. Specifically, Gomes was told he had been accused of sexual harassment because he hugged a coworker with whom he was socially acquainted, 33, The incident in question began when Gomes advised a new St. Luke's Hospital employee, with whom Gomes was acquainted as the girlfriend of a friend, that using a mobile phone in the middle of the hospital hallway was frowned upon. The employee took offense to these comments. Two days later Gomes approached the employeé to apologize for the prior conversation about the phone. Gomes then hugged the new employee. 34, After Gomes was informed of the investigation, Breton told Gomes to go home with pay and that Human Resources would be in contact with him, 35. A few days later, Breton contacted Gomes and requested Gomes come to the hospital to meet with her and Ms. Deborah Rideout (“Rideout”) on September 14, 2015. 36. During the September 14, 2015 meeting, Gomes was provided with a Corrective Action Form that indicated the corrective action being taken. The action included: final written warning and suspension, from Monday, September 14, 2015 to Friday, September 18, 2015 (5 days). See Exhibit B. Moreover, it indicated that Gomes’ performance evaluation period would be extended and a formal evaluation and rate adjustment will not occur in October, as it had since he was hired in 1988. Rather, it would be suspended for 6 months without retroactive pay. See Exhibit E. 237. ‘The specific results of the sexual harassment investigation were not provided to Gomes, nor did Defendants follow their policies and procedures regarding sexual harassment allegations, 38. The Corrective Action Form discussed unrelated incidents in vague terms. Gomes’ behavior was characterized as “loud,” “inappropriate,” and “disrespectful,” but no dates, times, coworkers, supervisors, or specific conduct was referenced. See Exhibit E. Gomes questioned these characterizations and was told that the whole matter would be resolved if Gomes would sign the Corrective Action Form. 39, Gomes was also told he could “forget about the sexual harassment stuf?” ifhe signed the Corrective Action Form. Although Gomes had done nothing wrong, he signed the Corrective Action Form in order to return to work ftom the suspension and avoid any further adverse employment consequences. 40. Gomes continued working at St. Luke's Hospital based on the assurances that all work-related issues had been resolved when he accepted the 2015 corrective actions. As detatled supra 47 17-22, Gomes met the standards for employment at St, Luke's Hospital between September 2015 and June 2017. 41. Specifically, Gomes’ delayed performance review, conducted on April 25, 2017, indicated that Gomes performed his job well enough to merit a 2% raise to his annual salary. 42, During the winter of 2016-17, the employee who was involved in the September 2015 incident with Gomes walked off her job at St. Luke's Hospital during her shift and began posting comments critical of hospital management on her Facebook account. Upon 13information and belief, this employee began threatening the hospital with litigation on a host of matters including a hostile workplace complaint. ne 2 ke’ ital 43, On June 23, 2017 Gomes was terminated from St. Luke's Hospital. Gomes had not had any additional disciplinary action since September 2015. Upon information and belief, Gomes’ termination, based on two-year-old allegations of sexual harassment, is being used asa pretext to shield St. Luke's Hospital from liability to third parties. 44, After Gomes completed his shift in the operating room at St. Luke's Hospital on June 23, 2017, Gomes was asked to report to Rideout’s office. When Gomes arrived at Rideout’s office, Rideout exited; the parties remaining inside the office were Gomes, St. Luke's Hospital security officers, Mrs, Wendy Baker ("Baker"), who was Human Resources Employee Relations Manager at St. Lukes Hospital, and Mr. David DeJesus Jr. (“DeJesus”), who was Senior Vice President of Human Relations at Southcoast Health. DeJesus informed Gomes that Gomes was terminated effective immediately. Gomes was escorted by security to clean out his locker and leave the hospital premises. 45. Gomes was not provided a copy of any human resources or administrative policies or procedures during this meeting, nor were any policies and procedures given with the documentation provided by DeJesus. During this meeting, DeJesus simply provided Gomes with a letter regarding his termination of employment. (“Termination Letter”). 46, Gomes’ termination was not the result of any post-2015 conduct or finding. Indeed, as alleged supra in ${]17-22, Gomes’ last performance evaluation on April 25, 2017 indicated that Gomes met the standards for employment by St. Luke’s Hospital. 1447. Gomes’ termination, based on the two-year-old allegations of sexual harassment, is in fact a pretext to shield Defendants from threatened litigation. Gomes had already denied these allegations, and Gomes had only accepted corrective action in September 2015 upon the promise of resolving the matter. Indeed, Gomes’ termination is an effort to avoid third party litigation by manufacturing a defense based on St. Luke's Hospital's policies and procedures. 48. Defendants had not taken any action in their investigation of Gomes since 2015. ‘Terminating Gomes nearly two years after the alleged incident is plainly a violation of the procedure outlined in Defendants’ written policies and can be explained only by Defendants’ ulterior motive to manufacture a defense to third party litigation. 49. The termination letter states: “Your group health and dental benefit plan coverages will expire on June 23, 2017. ... A COBRA election form will be mailed after your last day of coverage separately for you and any eligible dependents to your home address unless we receive mailing instructions for another address.” 50. Gomes did not receive any COBRA election form in the mail from the Defendant employer after the termination of his employment. Additionally, even to date (at the filing ofthis complaint), Gomes has not been provided with COBRA election forms by Defendants. 51. Gomes was also provided with an offer of severance pay and other benefits (‘Severance Offer’), during the meeting where his employment was terminated. See Exhibit F. In exchange for severance pay for a period up to twenty-six (26) weeks following the separation date and other benefits, Gomes would be required to waive any further claim of benefits from Defendants; agree to confidentiality and non-disclosure of the agreement terms, conditions, and existence of the agreement; and provide to Defendants a 15covenant not to sue, thereby releasing Defendants from any liability connected to Gomes’ employment at and termination from St. Luke's Hospital. 52, Gomes did not sign and return the severance offer, drafted by DeJesus. 53. Defendants’ breach of their published policies and procedures, Defendants’ breach of the agreement reached during the September 14, 2015 meeting with Gomes, and Defendants’ bad faith termination of Gomes to insulate themselves from third party litigation caused Gomes to experience the following damages: loss of employment, loss of ‘wages, loss of employment benefits and loss of health insurance coverage. Gomes also suffered emotional distress as a result of his discharge including but not limited to loss of sleep, inability to eat, loss of weight, stress and financial strain. cOUNTI BREACH OF CONTRAC 54, Gomes repeats and realleges the above paragraphs as though fully set forth herein, 55. Defendants adopted written policies and procedures with respect to sexual harassment, grievances, code of conduct, and termination processes that were in effect during Gomes’ employment. 56. Defendants published these written policies and procedures to their employees, including Gomes. 57. The Administrative and Human Resources policies and procedures developed and published by Defendants to Gomes establish express and implied terms of an employment contract between Defendants and Gomes. 58. Defendants and Gomes gave valid consideration for these Policies and Procedures. 1659, Defendants have breached their employment contract with Gomes by failing to provide Gomes with the results of the September 2015 sexual harassment investigation in accordance with its own stated policies, and by terminating the Plaintiff for sexual harassment two years after the alleged sexual harassment matter was cleared, in violation of its own stated policies of expediency. 60. Defendants have further breached their agreements with Gomes by terminating him for conduct that was addressed during the September 14, 2015 meeting in which Gomes signed a Corrective Action Form, over protests, so that the disciplinary matter would be resolved and Gomes could “forget about the sexual harassment stuff.” 61. Moreover, Defendants breached their employment contract with Gomes by failing to provide Gomes with a COBRA notice and COBRA election form. 62. _ Finally, Defendants have breached their employment contract with Gomes by failing to provide Gomes with the Grievance Policy, and failing to explain the steps necessary for Gomes to contest his termination from St. Luke’s Hospital. COUNT IL BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 63. Gomes repeats and realleges the above paragraphs as though fully set forth herein. 64. Defendants adopted written policies and procedures with respect to sexual harassment, grievances, code of conduct, and termination processes that were in effect during Plaintiff's employment. 65. Defendants published these written policies and procedures to their employees, including Plaintiff. 766. The Administrative and Human Resources policies and procedures developed and published by Defendants to Plaintiff establish express and implied terms of an employment contract between Defendants and Plaintiff, 67. Defendants and Plaintiff gave valid consideration to these Policies and Procedures. 68. Every Massachusetts contract imposes the implied duty of good faith and fair dealing upon the parties in performance and enforcement of the contract. 69. Defendants wrongfully and intentionally breached the duty of good faith by terminating Gomes for conduct that was addressed during the September 14, 2015 meeting, in which Gomes was told if he signed a Corrective Action Form over Gomes’ protests, the disciplinary matter would be resolved and Gomes could “forget about the sexual harassment stuff” 70. Defendants wrongfully and intentionally breached the duty of good faith by not following the policies and procedures they adopted internally to manage employment disputes, 71. Defendants wrongfully and intentionally breached the duty of good faith because employment feedback provided in Gomes’ employee performance reviews always indicated that Gomes was fulfilling the requirements of the position at St. Luke's Hospital; however, Gomes’ Termination Letter states Gomes “engaged in misconduct by creating a sexually hostile work environment... [and that Gomes] caused employees to resign and request transfers from the OR” 72, Defendants wrongfully and intentionally breached the duty of good faith because Gomes’ performance evaluations do not reflect the level of misconduct that is provided as justification for Gomes’ termination. 1873. _ Defendants wrongfully and intentionally breached the duty of good faith by denying Gomes the benefits to which he was entitled under the policies and procedures, including but not limited to completing a prompt and impartial investigation, a meeting with the employee at the conclusion of the investigation, a report of the results of the investigation, and informing Gomes of the steps that Defendants choose to be taken to correct the situati 74. — Finally, Defendants breached the implied covenant of good faith and fair dealing by terminating Gomes in bad faith to shield Defendants from threatened third party litigation. 75. Defendants’ breaches of the covenant of good faith and fair dealing have proximately and directly caused damages to Gomes. WHEREFORE, Plaintiff requests that this Court: 1. Order the Defendants to reinstate Mr. Gomes to his position as nursing assistant or equivalent position; 2, Award Mr. Gomes money damages and other damages including but not limited to: compensatory damages, damages for emotional distress, damages for humiliation, consequential damages, back pay, front pay, lost employment benefits, lost opportunity, and punitive damages for its breach of the written agreement; and 3. Grantsuch other relief as the Court deems just and proper. PLAINTIFF DEMANDS TRIAL BY JURY ON ALL COUNTS SO TRIABLE. 19Date: December 20, 2017 Plaintiff, Brian Gomes, By His Attorneys ‘The Baez Law Firm —Ceorge tax ire, Esq. (BBO # 294270) 66 N. Second St. New Bedford, MA 02740 Kuft J, Hagstrom, &sq, (BBO # 692154) 66 N. Second St. New Bedford, MA 02740 508-993-0333 kurt@leontirelaw.com 20DOCKET NUMBER J Trial Court of Massachusetts 19773CV 0109@ | The Superior Court amen: “DRAW Cours foounry pooness: +t 5g SUPERIOR COURT “BRISTOL B FORD, FREEPUTEE Sou TCONET Healt Systet4, My rome Geoee e = }aoonees: blo 12. Secon SreeeT MARC J. SRAEOS, plo 7 p My New Bencoeb MA Os7Y0 CLERKS TET oF Cuen Ma amo esc: da ; WQISY pesoer ust "TYPE OF ACTION AND TRAGK DESIGNATION (aoe reverse aide) DENG, TYPE OF ACTION (specify) ‘TRACK HAS A JURY CLAIMA BEEN MADE? Bueroymewr Commpeacr x YES Co sir~omer please describe: CIVIL ACTION COVER SHEET ‘SATEWENT OF DAMAGES PURSUANT TO GL. 6.232, 638 |r fotowing ia ul tomied and dete alert the fact on wich the undersigned paket or psf counsels lo dteine money damages. For jis form, cetogard double or reble damage claims; rdiate eine damages only. ‘TORT CLAIMS {ottach edatonal sheets as nocossary) Documented medical expenses toda: 1. Tolal hospital expenses. 2. Total doctor expenses 8, Total ehivpracticoxp ‘4 Total phyaieal therapy expenees 55 Total ther expenses (descr bsiow) [B. Documented fost wanes and compensation to date. IC. Documented property damages to dated. D. Reasonably antipated future medical and hospital expenses Ie, Reasonably aniipated lost wage IF: Cer docunented fms of damages (sca below) |G. Brety deverbe plots injury, Inetucing the nature and extent of inary: TOTAL (AFIS SONTRACT CLAINS (attach addtional sheets as necessery) [Provide a detaved description of claims(s): IROUSEUL “Te MIWETTION FROM ExPLoybeNT; rorat:s 1509000, Signature of Attorney!Pro Se Plaintif: X aa Date: )2-a/-) IRELATED ACTIONS: Pioase provide the c2¥6 number, Gass name, apd Counly of any related saions ponding inthe Suparior Court CERTIFICATION PURSUANT TO SJG RULE 1:18 Irhereby cert that | have complied with requirements cf Rule 6 of the Supreme Jdiclal Court Uniform Rules on Dispute Resolufon (SJC 'Rule 1:18) requiring that | provide my clents with information about court-connected dispute resolution services and discuss with them the jadyantages and disadvantages of the various. of dispute resolution, 'Signature of Attomey of Record: X Date: 12-2)-I7) ST