Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 1 of 49 PageID #:735
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 ROGAN,
)
GREAT WEST CASUALTY COMPANY,
)
TANYA JENSEN, BLANE J. BRUMMOND
)
and Unknown Defendants,
)
DEFENDANTS.
) **JURY DEMANDED**
**SECOND 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
ROGAN (Rogan), 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
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), 29 U.S.C. 1132 (ERISA), the Americans With Disabilities
Act (ADA) of 1990, Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105,
and the Fair Labor Standards Act (FLSA) 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 and Defendants are completely diverse therefore this Court has
diversity jurisdiction pursuant to 28 U.S.C. 1332. 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.
4.
Defendant Dargel has disclosed in writing Plaintiffs net compensation of
$1.20 cents per mile or $725 accruing each day or $635,100 of lost profits in the 876
between the filing of this Complaint and June 12, 2013. Plaintiff has accordingly
suffered legally cognizable damages in an amount exceeding the $635,100.00, 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.
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, as a result
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Defendants regularly transact business of a substantial and continuous character within the
within the Northern District of Illinois.
ADMINISTRATIVE PROCEDURES
6.
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.
PARTIES
7.
Plaintiff David Johnson is a citizen of the United States and of the State of
Illinois at all times relevant herein.

8.
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 at
Defendant Melton.
9.
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 at
Defendant Melton
10.
Defendant Peterson is believed to be a citizen and resident of Tulsa, in the
State of Oklahoma, and was acting within the scope of his employment and/or agency with
otherwise. Defendant Peterson is employed by Defendant Melton as the President and is
responsible for making and/or implementing policies and practices applied at Defendant
Melton.
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11.
At all relevant times, 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.
12.
Defendant Rogan is believed to be a citizen and resident of Tulsa, in the State
of Oklahoma, and was acting within the scope of his employment and/or agency with
otherwise. Defendant Rogan is the Plan Administrator as that term is defined by ERISA and
is responsible for making and/or implementing policies and practices applied at Defendant
Melton with regard to the Plan.
13.
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
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 by the other Defendants complained of herein.
14.
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
at Defendant Great West.
15.
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
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relevant herein. Defendant Brummond as the Deputy General Counsel is further responsible
for making and/or implementing policies and practices used at Defendant Great West.
16.
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 by the other
Defendants complained of herein.
17.
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
18.
At all times relevant herein, Defendants Melton and Peterson have
disseminated and caused others to disseminate across state lines 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.
19.
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.
20.
Defendant Meltons corporate website, and Defendant Meltons You Tube
video featuring Defendant Peterson disseminated and caused others to disseminate this
commercial advertisement into interstate commerce that Defendant Meltons alleged Wages
ranked in the Top 1%.
-5-
21.
Plaintiff states that it can be proven mathematically Defendant 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 Meltons Employee Handbook-Trip Planning
marked as Group Exhibit A and incorporated herein by reference thereto.
22.
Plaintiff Johnson further 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.
23.
Plaintiff states 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.
24.
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.
25.
Defendants Melton and Peterson do not maintain a billing system for all time
worked by Plaintiff as a Drivers while he was off-duty 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.
26.
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
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.
27.
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 in
interstate commerce in the United States.
28.
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 Meltons
corporate website and accepted the offer of employment from Defendant Melton while he
was in Illinois not Ohio, Oklahoma, Alabama, or any other state.
29.
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 Group Exhibit B and incorporated herein by
reference.
30.
The activities of Defendant, Melton, Peterson, and Conexus related to the
agreements use 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 in the flow of and substantially affect interstate commerce as
described above.
31.
Defendant Meltons 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 Meltons Employee Handbook marked as Group Exhibit A and incorporated
herein by reference thereto.
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32.
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 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.
33.
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
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 pursuant to prior agreement by the parties of
electronically sending a flag via Marco 27 actually sent on or about May 1, 2013.
34.
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 Meltons manifest standard operating
procedure refusing to pay for non-drive time as agreed by parties and custom of the industry.
35.
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.
36.
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.
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37.
On May 3, 2013, Plaintiff Johnson was a full-time employee of Defendant
Melton from its hiring area in Chicago, Illinois.

38.
Defendant Melton has agreed to provide benefits to Plaintiff in the event he
became injured due to a work-related accident or injury.

39.
Upon information and belief, Defendant Melton provides Defendants Peterson,
Dargel, Rogan, and Williams with benefits in the event they are injured due to a workrelated accident or injury.
40.
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 C and incorporated herein by reference thereto.
41.
At all relevant times herein, ERISA 29 U.S.C. 1002(1) 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 . . .
42.
(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.
43.
(6) The term employee means any individual employed by an employer.

44.
(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
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covers employees of such employer or members of such organization, or whose

beneficiaries may be eligible to receive any such benefit.
45.
(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.
46.
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.
47.
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.
48.
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).
49.
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.
50.
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.
51.
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.
52.
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
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communication(s), discussion(s), or comment(s) about the injury to Plaintiffs left hand

while working for Defendant Melton on May 3, 2013.
53.
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.
54.
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.
55.
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.
56.
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.

57.
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 Meltons Injury Benefit Plan.
58.
On or about, July 5, 2013, upon information and belief Defendant Meltons
Injury Benefit Plan forwarded a copy of Plaintiffs disability claim to its insurer Defendant
Great West.
59.
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 Meltons Injury Benefit Plan.
60.
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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61.
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.
62.
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.
63.
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.
64.
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.
65.
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.
66.
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.
67.
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.
68.
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.
69.
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.
70.
On or about June 4, 2014, Defendant Melton received a copy of Plaintiffs
disability claim from State of Ohio.

71.
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.
72.
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.
73.
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.
74.
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.
75.
Plaintiff as stated in the Plan insured by the Group Policy it does not provide
Defendants Melton, Peterson, Dargel, Rogan, 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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76.
Plaintiff as stated in the Plan insured by Group Policy it does not provide
Defendants Melton, Peterson, Dargel, Rogan, Great West, Jensen, Brummond or any other
person any arbitrary, capricious, or discretionary authority to make any medical
determination related to Plaintiff.
77.
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.
78.
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.
79.
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.
80.
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.
81.
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.
82.
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.
83.
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.
84.
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.
85.
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.
86. Plaintiff Johnson has worked for Defendant Melton as its employee until his
termination on June 12, 2013, while on leave.
87.
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 Meltons 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 D and
incorporated herein by reference.
88.
For more than two (2) years since June 12, 2013, Defendants Melton, Peterson,
Rogan, 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.
89.
Defendant Melton has refused to permit Plaintiff Johnson to work as a Driver
Manager following the injury to Plaintiffs left hand.

90.
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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91.
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.
92.
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.
93.
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.
94.
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.
95.
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.
96.
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.
97.
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.
- 16 -
98.
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
99.
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 18-98.
100.
At all times relevant herein, Plaintiff Johnson 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).
101.
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
$25.00 per hour.
102.
Plaintiff Johnson is entitled to payment from Defendants Melton, Peterson,
and others at their direction for non-drive time as provided for by clearly established federal
law as set forth in 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)).
103.
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
- 17 -
payments made to Carrier by CONEXUS for charges for which CONEXUS has not
collected.
104.
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.
105.
Defendant Meltons 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.
106.
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.
107.
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.
108.
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
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.
109.
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.
- 18 -
110.
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.
111.
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.
112. 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.
113.
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.
114.
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
Qualcomm, or similar communication devices outside their normal working hours without
receiving any compensation for such hours.
115.
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.
116.
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.
- 19 -
117.
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.
118.
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.
119.
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.
120.
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.
121.
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, 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.
122.
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.
- 20 -
123. Plaintiff would not accepted the offer of employment from Defendants Melton,
Peterson, and others at their direction but for his reliance on the promises of high pay
disseminated by Defendants Melton, Peterson, and others at their direction which are false
by the design to lure in Drivers from other companies who are competitors of Defendants
Melton and Peterson in that $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).
124.
The Master Motor Carrier Agreement between Defendants Melton, Peterson,
and Conexus for the purpose of transporting freight in and adversely affected 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.
125.
As a proximate result of the conduct by Defendants Melton, and Peterson as
described above, including but not limited to the failure to pay for non-drive time worked,
Defendant Meltons manifest 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 employee benefits (collectively lost Wages) to his damage in excess of $635,100
with an amount to be established at trial.
126.
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 Meltons acts in violation of 15 U.S.C. 1125(a) in an
amount to be established at trial in excess of $31,937,500.00, exclusive of attorneys fees,
costs and interest for which he is entitled to an award of monetary damages and other relief.
- 21 -
127.
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).
COUNT II
CLAIM FOR BENEFITS PURSUANT TO ERISA 502(A)(1)(B),
AND 29 U.S.C. 1132(A)(1)(B)
128.
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 18-98.
129.
At all relevant times herein, Defendant Meltons Injury Benefit Plan is an
employee welfare benefit plan within the meaning of ERISA, in that it is sponsored by
Defendant Melton to provide a broad range of medical, surgical, or hospital care or benefits,
or benefits in the event of sickness, accident, disability, death or unemployment, or vacation
benefits to its employees.
130.
At all relevant times herein, Defendant Meltons Injury Benefit Plan is
maintained by Defendant Melton and fully insured by a contract of insurance issued by

Defendant Great West.1
131.
At all relevant times herein, the terms of Defendant Meltons 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
1
Larson v United Healthcare Insurance Co., 723 F.3d 905, 913 (7th Cir. 2013)(adopting Ninth
Circuit analysis that insurer may be proper defendant).
- 22 -
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
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
- 23 -
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
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.
132.
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 Meltons Injury Benefit Plan insured by the Group Policy.
133.
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.

134.
At all times relevant herein, Plaintiff was an employee of Defendant Melton
and he was a beneficiary and participant under the terms of Defendant Meltons Injury
Benefit Plan insured by the Group Policy that provides for medical, surgical, or hospital care
- 24 -
or benefits, or benefits in the event of sickness, accident, and unemployment benefits

payable as a result of the fall while working for Defendant Melton.
135.
On August 15, 2014, Plaintiff has exhausted the Plans administrative appeals
process and the dispute over his disability claim was arbitrated in Ohio without a change
thereafter in Defendants position on the disability benefits.
136.
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 Meltons 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.
137.
As a direct and proximate result of the conduct by Defendants Melton,
Meltons Injury Benefit Plan, and Great West each of them as described above including but
not limited to failing to acknowledge findings of the Ohio Arbitrator and refusing to apply
the law in effect at the time of Plaintiff Johnsons claim, Defendants manifest breach of
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 payable as a result of the fall
while working for Defendant Melton in excess of $635,100 with an amount to be
determined by a jury and the Court.
COUNT III
BREACH OF FIDUCIARY DUTY
PURSUANT TO ERISA 502(A)(3), 29 U.S.C. 1132(A)(3), AND HIPAA
138.
paragraphs 18-98.
139.
Plaintiff is a beneficiary and participant under the terms of Defendant
Meltons 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.2
See Kenseth v. Dean Health Plan, Inc., 610 F.3d 452, 481-82 (7th Cir. 2010).
- 25 -
140.
At all relevant times herein, as described above Defendant Rogan was the
administrator of Defendant Meltons Injury Benefit Plan within the meaning of ERISA, in
that Defendant Meltons Injury Benefit Plan has designated Defendant Rogan as its Plan
Administrator.
141.
Defendant Rogan is a fiduciary with respect to Defendant Meltons Injury
Benefit Plan within the meaning of ERISA, in that Defendant Rogan has exercised
discretionary authority and/or discretionary control with respect to the management of
Meltons 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 Rogan had discretionary authority and or discretionary
responsibility in the administration of Meltons Injury Benefit Plan.
142.
At all relevant times, as described above Defendant Dargel was a fiduciary
with respect to Defendant Meltons Injury Benefit Plan within the meaning of ERISA, in
that, Defendant Dargel has exercised discretionary authority and/or discretionary control to
grant or deny claims for Meltons Injury Benefit Plan and/or exercised authority or control
over the Group Policy, and/or in that Defendant Dargel had discretionary authority and or
discretionary responsibility in the administration of Meltons Injury Benefit Plan.
143.
At all relevant times herein, as described above Defendant Melton was a
fiduciary and the Plan sponsor with respect to Defendant Meltons 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 Meltons 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 Meltons Injury Benefit Plan.
144.
At all relevant times, as described above Defendant Great West was a
fiduciary with respect to Defendant Meltons 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 Meltons Injury Benefit Plan and/or
exercised authority or control over the Group Policy, and/or in that Defendant Great West
- 26 -
had discretionary authority and or discretionary responsibility in the administration of

Meltons Injury Benefit Plan.
145.
At all relevant times, as described above Defendant Jensen was a fiduciary
with respect to Defendant Meltons 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 Meltons 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 Meltons Injury Benefit Plan.
146.
At all relevant times, as described above Defendant Brummond was a
fiduciary with respect to Defendant Meltons 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 Meltons 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
Meltons Injury Benefit Plan.
147.
At all relevant times herein, ERISA states as follows:

a.
fiduciary must discharge the duties imposed by ERISA with respect to

a plan solely in the interest of the participants and beneficiaries, for the
exclusive purpose of providing benefits to participants and fiduciaries
and defraying reasonable expenses of administering the plan, and in
accordance with the documents and instruments governing the plan
insofar as such documents and instruments are consistent with other
provisions of ERISA;
b.
a fiduciary must discharge the duties imposed by ERISA 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.
a fiduciary may utilize advisers and/or administrators to assist him in

carrying out his responsibilities. The fiduciary must act prudently in
selecting the administrator and must monitor the performance of the
administrator to ensure that the appointment remains appropriate;
d.
a fiduciary is responsible for a prudent process in selecting and

retaining the plans insurer and negotiating the insurance contract;
- 27 -
148.
e.
a fiduciary must discharge the duties imposed by ERISA and other

applicable laws in accordance with the documents and instruments
governing the plan insofar as such documents and instruments are
consistent with the provisions of ERISA;
f.
a fiduciary must decline to follow the plan document if the direction

contained in the document is inconsistent with ERISA;
g.
the Plan sponsor must ensure that plan and trust documents accurately
reflect current administrative practices;
h.
a fiduciary is responsible for the breaches of another fiduciary if s/he

knowingly participates in or knowingly undertakes to conceal the
breach of the other fiduciary;
i.
a fiduciary is responsible for breach of the duties imposed by ERISA

that enables another fiduciary to commit a breach of the duties imposed
by ERISA; and
j.
a fiduciary is responsible if s/he has knowledge of another fiduciarys

breach of the duties imposed by ERISA and fails to take reasonable
steps to remedy it.
At all relevant times herein, the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) states that health insurers are required to renew or
continue health insurance coverage at the policyholders discretion.
149.
On or about August 16, 2013, Plaintiff has learned for the first time from his
former attorney that it did not appear that the Plan insured by the Group Policy would
provide benefits under definition of Employee consistent with the regulations, rulings,
opinions and exemptions of the Department of Labor.
150.
By letter dated September 10, 2014, Defendants Melton, Melton Injury
Benefit Plan, Dargel, Rogan, 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, which purportedly excluded Plaintiff because the
contract for hire allegedly occurred in Ohio.
151.
Prior to Plaintiffs injury on May 3, 2013, Defendants Melton, Melton Injury
Benefit Plan, Dargel, Rogan, Great West, Jensen, and Brummond knew or should have
- 28 -
known that the definition of Employee as defined under the Plan insured by the Group
Policy did not cover an Employee hired in Illinois.
152.
At all times relevant herein, Defendants Melton, Melton Injury Benefit Plan,
Dargel, Rogan, Great West, Jensen, and Brummond each of them knew or should have
known among other things that the fiduciaries they were responsible for monitoring were (i)
continuing to use the definition of Employee as defined under the Plan that did not cover an
Employee hired throughout the United States including in Illinois; (ii) allowing the Plan to
continue using the definition of Employee that did not cover an Employee hired throughout
the United States including in Illinois; and (iii) failed timely to engage independent
fiduciaries who could make independent judgments concerning the Plans use the term
Employee as defined under the Plan that did not cover an Employee hired throughout the
United States including in Illinois. Despite this knowledge, Defendants Melton, Melton
Injury Benefit Plan, Rogan, Great West, Jensen, and Brummond each of them have failed to
take action for the purpose of enabling the breaches by Defendants Melton, Melton Injury
Benefit Plan, Rogan, Great West, Jensen, and Brummond, and concomitantly injuring
Plaintiff as a beneficiary and participant of the Plan from the consequences of these failures
by Defendants Melton, Melton Injury Benefit Plan, Rogan, Great West, Jensen, and
Brummond.
153.
Subsequent to May 3, 2013 and at all times relevant herein, Defendants
Melton, Melton Injury Benefit Plan, Dargel, Rogan, 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 as a result of the fall while working for Defendant Melton.
154.
As a direct and proximate result of the conduct by Defendants Melton, Melton
Injury Benefit Plan, Rogan, 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
federal 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 payable as a result of the fall while working for Defendant
Melton in excess of $635,100 with an amount to be determined by a jury and the Court.
- 29 -
COUNT IV
BREACH OF FIDUCIARY DUTY PURSUANT TO ERISA 502(A)(3), 29
U.S.C. 1132(A)(3), AND COBRA
155.
paragraphs 18-98.
156.
Defendant Rogan 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.
157.
At all relevant times herein, ERISA states that a plan administrator must
provide to each participant and each beneficiary receiving benefits under a plan a Summary
Plan Description.
158.
Plaintiff has requested from Defendants Melton, Great West, Jensen, and
Brummond, Defendant Meltons Injury Benefit Plan plan documents, 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.
159.
Plaintiff has had a conversation with Blue Cross-Blue Shield upon information
and belief, Defendants Melton, Meltons 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.
160.
As a direct and proximate result of the conduct Defendants Melton, Meltons
Injury Benefit Plan, Rogan, 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, Defendants manifest
breach of their fiduciary duty to Plaintiff in violation of ERISA, Plaintiff has suffered and
continues to suffer harm including, but not limited to loss of benefits for covered disabilities
as a result of the fall while working for Defendant Melton in an amount to be determined by
a jury and the Court.
- 30 -
COUNT V
VIOLATION OF THE AMERICANS WITH DISABILITIES ACT
42 U.S.C. 12101 et seq.
161.
paragraphs 18-98.
162.
Plaintiff Johnson is a Melton employee who fell while working for Defendant
Melton sought the employee benefits available under the Group Policy issued by Defendant
Great West to Defendant Melton.
163.
Title I of the ADA in fact states in relevant part:

(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
.....
(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
benefits to an employee of the covered entity[)]....42 U.S.C. 12112(a)(b)(emphasis added).
164.
Prior to May 1, 2013, Plaintiff Johnson was a non-disabled employee of
enjoying the fringe benefits provided by Defendant Melton.

165.
Plaintiff Johnson is informed and believes, and on that basis alleges that
Defendants Peterson, Dargel, Rogan, Williams are non-disabled employees who are
receiving all fringe benefits provided or made available by Defendant Melton.
166.
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 Defendant Meltons Injury Benefit Plan insured by the Group Policy stating
that the Plan contained terms that differentiated between and only covered office employees
- 31 -
who are non-disabled, such as Defendants Peterson, Dargel, Rogan, and William but
excluded Plaintiff only after he became disabled on May 3, 2013.
167.
Plaintiff Johnson has been denied and excluded from the benefits of the Plan
insured by the Group Policy by Defendants Melton, Dargel, Great West, Brummond, and
Jensen each of them individually and as a group as described above.
168.
As a direct and proximate result of the conduct Defendants Melton, Dargel,
and Rogan each of them as described above including but not limited to the exclusion of
Plaintiff because of his disability from the Plan, Defendants manifest discrimination against
Plaintiff because of his disability in violation of ADA, Plaintiff has suffered and continues
to suffer harm including, but not limited to loss of back pay, front pay and lost future
earnings, including fringe benefits and attorneys fees as provided in the ADA, as well as,
emotional and physical distress caused by the acts of Defendants as described herein.
169.
Defendants Melton, Dargel, and Rogan each of them have denied and
excluded Plaintiff from the Plan insured by Group Policy with malice or with reckless
indifference to the rights of Plaintiff as described above.
COUNT VI
42 U.S.C. 12182, et seq.
170.
paragraphs 18-98.
171.
On June 12, 2013, Plaintiff Johnson as a Melton employee who fell while
working for Defendant Melton and he sought the employee benefits available under the
Group Policy issued by Defendant Great West to Defendant Melton and Defendant Meltons
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.
172.
At all times relevant herein, Title III of the ADA states:
(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
- 32 -
any person who owns, leases (or leases to), or operates a place of public
accommodation. 42 U.S.C. 12182(a).
173.
At all times relevant herein, Title III of the ADA 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. 42 U.S.C. 12182(b)
174.
Defendants Great West, Jensen, and Brummond each of them individually and
as a group have as described above excluded Plaintiff from the Group policy and denied him
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.
175.
Defendants Melton, Peterson, Dargel, Rogan, 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.
176. As a direct and proximate result of the conduct Defendants Great West, Jensen,
and Brummond each of them as described above including but not limited to the exclusion
of Plaintiff only after he became disabled from the Group Policy, Defendants manifest
discrimination against Plaintiff because of his disability in violation of ADA, Plaintiff has
suffered and continues to suffer harm including, but not limited to loss of back pay, front
pay and lost future earnings, including fringe benefits and attorneys fees as provided in the
ADA, as well as, emotional and physical distress caused by the acts of Defendants as
described herein.
177.
Defendants Great West, Jensen, and Brummond each of them have denied and
excluded Plaintiff from the Plan insured by Group Policy with malice or with reckless
indifference to the rights of Plaintiff as described above.
- 33 -
COUNT VII
FAILURE TO ACCOMMODATE IN
42 U.S.C. 12101, et seq.
178.
paragraphs 18-98.
179.
Plaintiff Johnson fell while working for Defendant Melton he suffers from an
injury to his left hand, and is a qualified individual with a disability.

180.
At all times relevant herein, 42 U.S.C. 12102(2) states in relevant part that a
disability is defined as: (A) a physical or mental impairment that substantially limits one or
more of the major life activities of such individual;(B) a record of such an impairment; or
(C) being regarded as having such an impairment. 42 U.S.C. 12102(2).
181.
At all times relevant herein, 42 U.S.C. 12182(b) states in relevant part that
no covered employer 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. 42 U.S.C. 12112(a).
182.
On December 18, 2006, Defendants Melton, and Peterson were made aware
by Ms. Barbara Sherman and Yolaine Dauphin that their conduct of 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.
183.
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.
184.
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.
185.
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.
- 34 -
186.
On June 12, 2013, Defendants Melton, and Dargel informed Plaintiff Johnson
that he was terminated pursuant to its new and unannounced leave policy.
187.
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.
188.
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.
189.
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.
190.
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.
191.
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.
192.
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
successful driver relation experience or extensive knowledge of Innovative
IES Transportation Software running on the IBM System i (AS/400) platform.
193.
At all times relevant herein, Plaintiff Johnson was able to perform all essential
functions of the position of Driver Manager with or without accommodations.

194.
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.
- 35 -
and Brummond each of them as described above including but not limited to the failure to
provide reasonable accommodation to Plaintiff because of his disability, Defendants
manifest discrimination against Plaintiff because of his disability in violation of ADA,
Plaintiff has suffered and continues to suffer harm including, but not limited to loss of back
pay, front pay and lost future earnings, including fringe benefits and attorneys fees as
provided in the ADA, as well as, emotional and physical distress caused by the acts of
Defendants as described herein.
196.
Defendants Melton, Peterson, Dargel, Rogan, Great West, Brummond, and
Jensen each of them have denied Plaintiff any reasonable accommodation with malice or
with reckless indifference to the rights of Plaintiff as described above.
COUNT VIII
VIOLATION OF THE ILLINOIS HUMAN RIGHTS ACT
775 ILCS 5/1-101, et seq.
197.
paragraphs 18-98.
198.
At all times relevant herein, the Illinois Human Rights Act (IHRA) states
that it prohibits discrimination on the basis of physical or mental disability . . . 735 ILCS
5/1-102.
199.
violated the IHRA as described above by: (a) Defendants Peterson, Dargel, and Rogan 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.
and Brummond each of them as described above including but not limited to the failure to
- 36 -
provide reasonable accommodation to Plaintiff because of his disability, Defendants

manifest discrimination against Plaintiff because of his disability in violation of IHRA,
Plaintiff has suffered and continues to suffer harm including, but not limited to loss of back
pay, front pay and lost future earnings, including fringe benefits and attorneys fees as
provided in the IHRA, as well as, emotional and physical distress caused by the acts of
Defendants as described herein.
201.
each of them have discriminated against Plaintiff with malice or with reckless indifference
to the rights of Plaintiff as described above.
COUNT IX
Constitutional and Civil Rights Pursuant to 42 U.S.C. 1983, 1988
Violation of Due Process Property Interest/Fair Hearing
202.
paragraphs 18-98.
203.
Plaintiff Johnson is a Melton employee who fell while working for Defendant
Melton sought the employee benefits available as set forth in the Plan insured by Group
Policy, IWCA, and other applicable laws.
204.
At the time of the complained of events, Plaintiff had a clearly established
Constitutional right under the Due Process Clause of the Fourteenth Amendment to fair
hearing before an impartial decision-maker as to his eligibility under the Plan insured by
Group Policy, IWCA, and other applicable laws.3
205.
Prior to the Ohio Arbitration, Plaintiff Johnson has objected on numerous
occasions to the appearance by Defendants Melton, Peterson, Dargel, Great West, Jensen,
and Brummond each of them before Illinois Arbitrator Williams because he refused and
failed to arbitrate Plaintiffs disability claim after more than one (1) year.
See e.g., Goldberg v. Kelly, 397 U.S. 254 (1970)(requiring a hearing before an impartial decisionmaker).
- 37 -
206.
The Plan insured by Group Policy and IWCA define the benefits and the
eligibility of Plaintiff for benefits not Defendants Melton, Peterson, Dargel, Great West,
Jensen, nor Brummond.
207.
At all times relevant herein, Defendants Peterson, Dargel, Jensen, and
Brummond each of them individually and as group have made the determination that
Plaintiff was not eligible under the Plan insured by Group policy because of a purported
coverage dispute that was within the exclusive jurisdiction of Ohio notwithstanding the
Plan insured by Group Policy, IWCA, and other applicable laws do not afford Defendants
Peterson, Dargel, Rogan, Jensen, and Brummond the authority to make said determination
of anything unless authorized by law.
208.
At all times relevant herein, Plaintiff has been denied benefits under the Plan
insured by Group Policy, IWCA, and other applicable laws by Defendants Peterson, Dargel,
Jensen, and Brummond each of them at the direction of Illinois Arbitrator Williams acting
under color of state law as described above.
209.
Prior to the Arbitration in Ohio, Plaintiff was denied a hearing as to his
disability claim in Illinois before Illinois Arbitrator Williams acting under color of state law
and Defendants Melton, Great West, Jensen, and Brummond for more than a year
knowingly continued to appear before Illinois Arbitrator Williams acting under color of
state law who subsequently recused himself because of his lack of impartiality.
210.
Defendants Melton, Peterson, Dargel, Great West, Jensen, and Brummond
each of them have appeared and solicited relief for over a year but did not disclose to
Plaintiff or Plaintiffs former attorney their relationship with Illinois Arbitrator Williams
warranted his recusal prior to his recusal that only occurred within four (4) days after a
denial by Ohio that it had jurisdiction as opposed to Illinois.
211.
Defendants Melton, Peterson, Dargel, Great West, Jensen, and Brummond
each of them pursuant to an official custom, practice, decision, policy, training, and
supervision of the State of Illinois and Illinois Arbitrator Williams acting under color of
state law that allowed Defendants Melton, Peterson, Dargel, Great West, Jensen, and
Brummond each of them knowingly to appear before Illinois Arbitrator Williams who
- 38 -
recused himself only after the Ohio Arbitration of Plaintiffs disability claim against
Defendants.
212.
At the Ohio Arbitration, the Ohio Arbitrator did not find that Plaintiffs
disability claim was covered in Ohio as opposed to the Plan insured by Group Policy, IWCA,
and other applicable laws.
213.
Defendants Peterson, Dargel, Jensen, and Brummond each of them
individually and as group have refused to comply with the determination made by an
impartial decision-maker instead of Illinois Arbitrator Williams who has recused himself
and as a proximate result Plaintiff Johnson has suffered and continues to suffer injuries and
damages including but not limited to back pay, front pay and lost future earnings, including
fringe benefits and attorneys fees, as well as, emotional and physical distress caused by the
acts of Defendants Peterson, Dargel, Brummond, and Jensen as described above.
214.
As a direct and proximate result of the conduct as described above that denied
Plaintiffs disability claim without a hearing before an impartial decision-maker and their
refusal to comply with the determination made by the impartial decision-maker violates
Plaintiff Johnsons constitutional rights, Plaintiff Johnson has suffered and continues to
suffer actual physical and emotional injuries, including but not limited lost salary, lost
employee benefits, lost raises, diminished earnings capacity, lost career and business
opportunities, litigation expenses including attorneys fees, humiliation, embarrassment,
inconvenience, mental and emotional anguish and distress and other compensatory damages,
in excess of $635,100 with an amount to be in an amount to be determined by a jury and the
Court.
215.
On information and belief, Plaintiff may suffer lost future earnings and
impaired earnings capacities from the not yet fully ascertained left hand injury, in amounts
to be ascertained by a jury and the Court.
216.
In addition to compensatory, economic, consequential and special damages,
Plaintiff is entitled to punitive damages against each of the individually named Defendants
under 42 U.S.C. 1983, in that the actions of each of these individual Defendants have been
taken maliciously, willfully or with a reckless or wanton disregard of the constitutional
rights of Plaintiff as described above.
- 39 -
COUNT X
Constitutional and Civil Rights Pursuant to 42 U.S.C. 1983, 1988
Violation of Due Process Property Interest/IWCA
217.
paragraphs 18-98.
218.
On July 5, 2013, Plaintiff has applied to Defendant Melton insured by
Defendant Great West for the benefits made available under IWCA.
219.
Plaintiff has not been notified by the State of Illinois that he failed to satisfy
all conditions to be eligible to receive the benefits of the Plan insured by Group Policy,
IWCA, and other applicable laws.
220.
At the time of the complained of events, Plaintiff had a clearly established
Constitutional right under the Due Process Clause of the Fourteenth Amendment to his
benefits under IWCA.4
221.
Defendant Great West has agreed in writing that the timely payment of
disability claims to residents in the State of Missouri is within 14 days and notwithstanding
Plaintiff Johnson has had an expectation that his benefits would be also be timely received
within 14 days from Defendants Melton, Meltons Injury Benefit Plan, Peterson, Dargel,
Rogan, Great West, Jensen, and Brummond.
222.
The procedures that Defendants Melton, Meltons Injury Benefit Plan,
Peterson, Dargel, Rogan, Great West, Jensen, and Brummond have adopted to enforce the
IWCA, grant Defendants unlimited and unguided discretion to interpret what constitutes
eligibility a coverage dispute or dispute in its compliance with the requirements of the
223.
Plaintiffs application for benefits was unilaterally denied by Defendant
Jensen stating that there was a coverage dispute whether Plaintiffs contract for hire
occurred in Ohio as opposed to Illinois and Plaintiff Johnson has never received an
4
See e.g., Board of Regents v. Roth, 408 U.S. 564, 577 (1972)(defining the property interest
protected by the Fourteenth Amendment as a legitimate claim of entitlement to the item
or benefit in question); Goldberg v. Kelly, 397 U.S. 254 (1970)(Medicaid); Mathews v. Eldridge,
424 U.S. 319(1976)(Medicare).
- 40 -
administrative review of the determination made by Defendant Jensen instead Defendant

Brummond in response to the Illinois Department of Insurance (IDI) stated she was
correct based upon the direction provided by Illinois Arbitrator Williams acting under color
of state law who subsequently recused himself because of his lack of impartiality.
224.
On or about July 5, 2013, Defendants Melton, Great West, and Jensen have
made the determination no medical care would be provided to Plaintiff in accordance with
the requirements of the applicable federal and state laws until after the purported coverage
dispute was resolved by Defendants at the direction of Illinois Arbitrator Williams.
225.
At all times relevant herein, Defendants Melton, Meltons Injury Benefit Plan,
Peterson, Dargel, Rogan, Great West, Jensen, and Brummond have denied all medical
treatment to Plaintiff without notice or a hearing as required by 42 C.F.R. 405.702,
405.801, 431.10(c)(2)(1999), and other applicable laws.
226.
Defendants Melton, Meltons Injury Benefit Plan, Peterson, Dargel, Rogan
Great West, Jensen, and Brummond have never resolved their purported coverage dispute
over Plaintiffs disability claim since June 12, 2013.
227.
By exercising unauthorized, unlimited, unguided discretion over applications
for statutory benefits, Defendants Peterson, Dargel, Rogan Jensen, and Brummond at the
direction of Illinois Arbitrator Williams acting under color of state law each of them have
denied Plaintiffs statutory benefits as described above.
228.
Subsequently, the Ohio Arbitrator has rejected the assertion by Defendants
Melton, Meltons Injury Benefit Plan, Peterson, Dargel, Rogan, Great West, Jensen, and
Brummond that Plaintiffs contract for hire occurred in Ohio as opposed to the Illinois for
purposes of the IWCA they have chosen to continue making references to Illinois Arbitrator
Williams who has recused himself over Plaintiffs disability claim.
229.
Defendants Melton, Meltons Injury Benefit Plan, Peterson, Dargel, Rogan,
Great West, Jensen, and Brummond have produced to Plaintiff no admissible documentary
evidence in its possession supporting any coverage dispute over Plaintiffs eligibility for
benefits under the Plan insured by Group Policy, IWCA, and other applicable laws.
230.
Defendants Melton, Meltons Injury Benefit Plan, Peterson, Dargel, Rogan,
Great West, Jensen, and Brummond produced to Plaintiff no witness(es) or witness

- 41 -
statements and interview notes for those individuals seeking to testify in supported any
dispute over Plaintiffs eligibility for benefits under the Plan insured by Group Policy,
231.
As a direct and proximate result of the conduct as described above that denied
the eligibility of Plaintiff his disability benefits without cause in violation of the
Constitution, federal, and state law, Plaintiff Johnson has suffered and continues to suffer
actual physical and emotional injuries, including but not limited lost salary, lost employee
benefits, lost raises, diminished earnings capacity, lost career and business opportunities,
litigation expenses including attorneys fees, humiliation, embarrassment, inconvenience,
mental and emotional anguish and distress and other compensatory damages, in excess of
$635,100 with an amount to be in an amount to be determined by a jury and the Court.
232.
The conduct of Defendants Peterson, Dargel, Jensen, and Brummond as
described above were malicious and/or involved reckless, callous, and deliberate
indifference to Plaintiff Johnsons clearly established federally protected rights to the
benefits under the Plan insured by Group Policy, IWCA, and other applicable laws.
COUNT XI
(INVASION OF PRIVACY)
233.
paragraphs 18-98.
234.
At all relevant times herein, the Constitution, ADA, Title V of the Gramm-
Leach-Bliley Act (GLBA), the laws of the State of Illinois, and other applicable laws
prohibit Defendants Melton, and Meltons Injury Benefit Plan from sharing nonpublic
personal information such employee addresses, photos, social security numbers, dates of
birth, protected class information and medical records, or medical condition about Plaintiff
with Defendants Great West, Jensen, and Brummond for the purpose of an alleged contract
between Defendants only after the event giving arise to the claim, in that he is not a
recipient of benefits under the Group Policy.
235.
At all relevant times herein, Constitution, ADA, GLBA, the laws of the State
of Illinois, and other applicable laws prohibit Defendants Melton, and Meltons Injury
- 42 -
Benefit Plan from attributing specific statements as to the insurance arrangement between
Defendants Melton, Meltons Injury Benefit Plan and Defendant Great West to Plaintiff
without his permission.
236.
At all relevant times herein, Defendants Melton, Meltons Injury Benefit Plan,
Great West, Jensen, and Brummond each of them have and are using Plaintiffs nonpublic
personal information without Plaintiffs consent for the purpose of among other things to
facilitate the commercial advantage to Defendants Melton, Meltons Injury Benefit Plan,
and Great West from denying the existence of coverage.
237.
At all relevant times herein, Plaintiff has not granted Defendants Melton,
Meltons Injury Benefit Plan, Peterson, Dargel, Rogan, 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.
238.
As a direct and proximate result of the conduct by Defendants Melton,
Meltons Injury Benefit Plan, Peterson, Dargel, and Rogan including but not limited to the
failure to protect Plaintiffs nonpublic personal information from the deliberate use by
Defendants in a manner as described above that is not in the best interests of Plaintiff, and
Defendants manifest commercial advantage that is not specifically authorized by law,
Plaintiff Johnson has suffered and continues to suffer actual physical and emotional injuries,
including but not limited lost salary, lost employee benefits, lost raises, diminished earnings
capacity, lost career and business opportunities, litigation expenses including attorneys fees,
humiliation, embarrassment, inconvenience, mental and emotional anguish and distress and
other compensatory damages, in excess of $635,100 with an amount to be in an amount to
be determined by a jury and the Court.
239.
The conduct of Defendants Melton, Meltons Injury Benefit Plan, Peterson,
Dargel, and Rogan as described above were malicious and/or involved reckless, callous, and
deliberate indifference to Plaintiff Johnsons clearly established rights to privacy under the
Constitution, federal, and state laws.
- 43 -
COUNT XII
BREACH OF CONTRACT, CONVERSION, AND UNJUST ENRICHMENT
240.
paragraphs 18-98.
241.
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.
242.
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.
243.
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
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.
244.
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.
245.
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.
246.
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.
247.
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.
- 44 -
248.
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.
249.
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.
250.
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.
251.
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.
252.
Defendants and Plaintiff agreed in writing that Plaintiff upon termination of
his employment for any reason he would return all company property to Defendant Meltons
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 Meltons safety officer to anywhere else.
253.
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, Defendants manifest breach of contract, Plaintiff would not have lost
his employment, reinstatement, the employee benefits, nor Defendants would have profited
from the conversion of Wages belonging to Plaintiff, Plaintiff has suffered and continues to
suffer severe mental anguish and emotional distress, including but not limited to lost profits,
lost wages, lost back pay and front pay, lost bonuses, lost benefits, loss of society, lost
- 45 -
interest, attorneys fees and costs for which he is entitled to an award of monetary damages
in excess of $635,100 with amount determined at trial and other relief.
COUNT XIII
(WRONGFUL TERMINATION (VIOLATION OF PUBLIC POLICY))
254.
255.
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.
256.
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 these conditions to the Department
of Labor as constituting a violation of the Surface Transportation Assistance Act (STAA),
49 U.S.C. 31105 and the Illinois Occupational Safety and Health Act, 820 ILCS 219/1, et
seq.
257.
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 Meltons manifest breach of the employment contract, Plaintiff
has suffered and continues to suffer loss of back pay, front pay and lost future earnings,
including fringe benefits and attorneys fees, as well as, emotional and physical distress to
his damage in excess of $635,100 with an amount to be established at trial.
258. Defendant Melton and its employee Defendants Dargel, Williams and others at
their direction have acted hereinabove alleged, intentionally, oppressively, and maliciously
with an evil and malevolent motive to injure Plaintiff. These 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.
- 46 -
259. All actions of Defendant Melton its their employees and agents, and each of
them as herein alleged, were known, ratified and approved by the officers or managing
agents of Defendant Melton leading to the termination of Plaintiff in violation of public
policy, Plaintiff is entitled to punitive or exemplary damages against the Defendant
Employer, in an amount to be determined at the time of trial.
COUNT XIV
(RETALIATION IN VIOLATION OF THE ILLINOIS WORKERS
COMPENSATION ACT)
260.
261.
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.
262.
Defendant Dargel has stated in his email that Plaintiff Johnsons workers
compensation claim was in retaliation for his termination as described herein.

263.
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 Meltons manifest
retaliation against Plaintiff in violation of public policy, Plaintiff has suffered and continues
to suffer loss of back pay, front pay and lost future earnings, including fringe benefits and
attorneys fees, as well as, emotional and physical distress to his damage in excess of
$635,100 with an amount to be established at trial.
264. Defendant Melton and its employees Defendant Dargel, and others at their
direction have acted hereinabove alleged, intentionally, oppressively, and maliciously with
- 47 -
an evil and malevolent motive to injure Plaintiff. These 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.
265. All actions of Defendant Melton its employees and agents, and each of them as
herein alleged, were known, ratified and approved by the officers or managing agents of
Defendant Melton against Plaintiff in violation of public policy, Plaintiff is entitled to
punitive or exemplary damages against the Defendant Employer, in an amount to be
determined at the time of trial.
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 ROGAN, 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;
(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.
- 48 -
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 November 5, 2015.
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
901 East 56th Street, 1C
Brooklyn, NY 11234
312-912-5035
- 49 -

Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

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Johnson v. Melton Truck Lines, Inc. 1:14-cv-07858 Second Amended Complaint

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Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 1 of 49 PageID #:735

IN THE UNITED STATES DISTRICT COURT

NATURE OF ACTION AND JURISDICTION

Defendants Melton, and Peterson have caused to be disseminated across state

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 2 of 49 PageID #:736

diversity jurisdiction pursuant to 28 U.S.C. 1332. This Court has supplemental

Defendant Dargel has disclosed in writing Plaintiffs net compensation of

Venue is proper pursuant to 28 U.S.C. 1391(b)(ii) and ERISA, in that

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 3 of 49 PageID #:737

Illinois at all times relevant herein.

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

Defendant Dargel is believed to be a citizen and resident of Tulsa, in the State

Defendant Peterson is believed to be a citizen and resident of Tulsa, in the

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 4 of 49 PageID #:738

Defendant Rogan is believed to be a citizen and resident of Tulsa, in the State

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

Defendant Jensen is believed to be a citizen and resident of South Sioux City,

Defendant Brummond is believed to be a citizen and resident of South Sioux

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 5 of 49 PageID #:739

Defendant John Doe is any unknown employee(s) and/or agent(s) of

At all times relevant herein, Defendants Melton and Peterson have

Defendant Meltons corporate website, and Defendant Meltons You Tube

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 6 of 49 PageID #:740

Plaintiff states that it can be proven mathematically Defendant Melton, and

Plaintiff Johnson further alleges that Defendants Melton and Peterson

worked by Plaintiff as a Drivers while he was off-duty spent responding to electronic

Defendants Melton, Peterson, and others at their direction have recruited

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 7 of 49 PageID #:741

Defendants Melton, and Peterson individually and as a group have entered

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

agreements use among other things, communications, telecommunication networks, the

Defendant Meltons decision, policy, plan, and common policies, programs,

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 8 of 49 PageID #:742

Plaintiff Johnson as a Driver has demanded from Defendants Melton, and

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 9 of 49 PageID #:743

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

Melton from its hiring area in Chicago, Illinois.

Defendant Melton has agreed to provide benefits to Plaintiff in the event he

became injured due to a work-related accident or injury.

Upon information and belief, Defendant Melton provides Defendants Peterson,

Form 5500 available at https://www.efast.dol.gov/portal/app/disseminate?execution=e1s10#

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

At all relevant times herein, ERISA 29 U.S.C. 1002(5) states:

At all relevant times herein, ERISA 29 U.S.C. 1002(6) states:

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

At all relevant times herein, ERISA 29 U.S.C. 1002(7) states:

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 10 of 49 PageID #:744

covers employees of such employer or members of such organization, or whose

At all relevant times herein, ERISA 29 U.S.C. 1002(8) states:

(8) The term beneficiary means a person designated by a participant, or by the

During the time of Plaintiff Johnsons employment by Defendant Melton,

At all times relevant herein Defendant Melton contracted with Defendant

Great West as to the determination, claim administration, and payment of benefits to

At all times relevant herein, as stated at http://www.iwcc.il.gov/insurance.htm

Case: 1:14-cv-07858 Document #: 103 Filed: 11/05/15 Page 11 of 49 PageID #:745

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

Plaintiff Johnson is unable to work as the operator of a commercial motor

On or about June 14, 2013, Plaintiff Johnson has requested information on

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.

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

On or about, July 5, 2013, upon information and belief Defendant Meltons

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