lps / fnis breaking federal rules to expedite foreclosure process

I� THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, I� A�D FOR

DUVAL COU�TY, FLORIDA

ADRIAN LOFTON, Plaintiff, v. FIDELITY NATIONAL INFORMATION SERVICES, Defendant,

CASE NO.: 16-2008-CA-009772 DIVISION: CV-C

PLAI�TIFFS’ THIRD AME�DED

COMPLAI�T A�D DEMA�D FOR

JURY TRIAL

Employment Discrimination: Race; Failure To Prevent Discrimination; Employment Discrimination: Retaliation; Encouraging Violations of Terms and Conditions in the FIS Employee Handbook; Negligent Hiring, Retention, and Supervision; Wrongful Termination In Violation Of The Gramm-Leach-Bliley Act; Wrongful Termination In Violation Of The Sarbanes-Oxley Act; Wrongful Termination In Violation Of Public Policy and Whistle Blower Act; Negligence Defamation; Negligent Infliction of Emotional Distress; Intentional Infliction of Emotional Distress

_______________________________

COMPLAI�T

Now comes Plaintiff in the above styled action, and files this Complaint and further shows

the Court as follows:

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PARTIES

1. Plaintiff, Adrian Lofton, is an African American male and a citizen of the United States who

resides at 4269 Timuquana Road, Jacksonville, FL 32210.

2. Plaintiff is informed and believes and thereon alleges that Defendant FIDELITY NATIONAL

INFORMATION SERVICES is a for-profit foundation default mortgage servicing company and

authorized to do business in the State of Florida, with its principal place of business at 601

Riverside Avenue, Jacksonville, FL 32205. Defendant FIDELITY NATIONAL INFORMATION

SERVICES employs more than 15 employees in this State, within the meaning of the Florida Civil

Rights Act of 1992 (“FCRA”), Florida Statute section 760.03.

3. Plaintiff is informed and believes that FIDELITY NATIONAL INFORMATION SERVICES is a

publicly traded company, whose principal place of business is Duval County. FIDELITY

NATIONAL INFORMATION SERVICES employs more than 15 employees in this

State and are engaged in interstate commerce within the meaning of the Florida Civil Rights Act of

1992

VE�UE A�D JURISDICTIO�

4. Plaintiff brings this Complaint for violations of the Florida Civil Rights Act of 1992, and the

amount in controversy exceeds the minimum required by this Court. Accordingly, this Court has

jurisdiction over the claims in this matter.

5. All conditions precedent under FCRA have occurred or been complied with:

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a. Charges alleging discrimination by the defendant on the basis of Plaintiff’s race was filed

with the Jacksonville Human Rights Commission(“JHRC”) within 180 days of the

discriminatory actions alleged in the charge and at the Equal Employment Opportunity

Commission (“EEOC”) within 300 days of the discriminatory actions alleged in the

charge.

b. Plaintiff received Notification of Rights to Sue regarding his EEOC charges.

c. This complaint has been filed within three year of the last discriminatory act alleged in the

Plaintiffs EEOC charges.

d. This complaint has been filed within 90 days of receipt of the Notification of Rights.

6. Given that the various events underlying this lawsuit occurred in Duval County and Defendants

principal place of business is in Duval County, venue is proper in this district pursuant to the

Florida Civil Rights Act of 1992 insofar as all the discriminatory employment practices alleged in this

complaint were committed within Duval County, the Plaintiff resides in Duval County, the Defendant

conducts business in Duval County and has substantial business contacts in Duval County.

EXHAUSTIO� OF ADMI�ISTRATIVE REMEDIES

7. In accordance with the appropriate regulations, codes, and statutes, including but not

limited to the Florida Civil Rights Act of 1992, the plaintiff has exhausted his administrative

remedies by filing timely complaints with the Jacksonville Human Rights Commission (“JHRC”)

and the Equal Employment Opportunity Commission (“EEOC”).

Plaintiff received the “right to sue” letters as to the Defendants identified herein from the

EEOC dated June 30, 2008.

8. All of the acts alleged herein were in the nature of a continuing violation and/or

continuing torts. All of the misconduct alleged herein was part of the same continuous pattern of

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discrimination and harassing practices, and at least some of the misconduct occurred within one

year of the date Plaintiff filed his claims with the EEOC.

GE�ERAL ALLEGATIO�S

9. Plaintiff was hired on November 1, 2006 as a Financial Support Representative.

10. Plaintiffs work performance was always satisfactory and he did not receive any warnings until he

challenged the discriminatory actions of Bill Geary. He did not receive any reprimands until he refused

to continue to participate in the illegal use to the clients system.

11. On or around April 4, 2007, Plaintiff requested to work from home, because he was having to

commute to and from Lake City Florida which is in excess of 60 miles to care for elderly parents and

management requested additional information and met with the Plaintiff the following day.

12. After receiving no feedback, Plaintiff sent a second e-mail on May 4, 2007 and Plaintiff was advised

to address the issues with Bill Geary.

13. Between April 4, 2007 and May 8, 2007, Plaintiff was not apprized of the fact that his work

performance was in question.

14. On May 8, 2007, Plaintiff sent an e-mail to Bill Geary for a follow-up.

15. On May 8, 2007, Plaintiff was advised by Bill Geary that no work from home positions were

available, but he would adjust the Plaintiffs time and notify him if any work from home positions

became available.

16. Upon information and belief, about or around July of 2007, Plaintiff discovered Shauna Blackly; a

Caucasian female was allowed to work from home.

17. Upon information and belief, about or around July of 2007, Plaintiff went to Ingrid Pittman, his

Supervisor, who apprized him of the fact that Shauna Blackly had not gone through the chain of

command, but went directly to Bill Geary for her approval.

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18. Upon information and belief, about or around July of 2007, Plaintiff apprized his Human Resources

department of the disparate treatment and was told the incident would be investigated.

19. Upon information and belief, about or around July of 2007, Plaintiff began to be harassed by his

superiors.

20. On July 25, 2007, the Plaintiff was counseled by his Supervisor, Lorenzo Roundtree over an issue

where no updated policies where in place.

21. On July 25, 2007, the Plaintiff addressed his concerns with Roundtree over Roundtree’s failure to

provide him with performance evaluations.

22. On July 25, 2007, Roundtree told the Plaintiff he was too busy to do any performance evaluations.

23. On or around August 10, 2007, the Plaintiff received a fax from a window distributor.

24. On or around August 10, 2007, the Plaintiff’s fax was withheld and taken to Bill Geary.

25. On or around August 14, 2007, the Plaintiff after being harassed by Roundtree was given the fax.

26. On August 22, 2007, the Plaintiff and every other associate received an e-mail from James Dorrian,

Assistant Vice President of Security and Compliance.

27. The August 22, 2007 e-mail detailed Dorrian’s recent discovery of the sharing of login credentials in

violation of the company policy.

28. The August 22, 2007 e-mail in substance said:

There are a couple of security topics that need to be addressed this month:

Sharing of Login Credentials

Recently it was discovered that several employees were sharing login credentials (username and password) for an external system. Username and password information should NEVER be shared between users. If one of the people logging in under that account chooses to do something malicious, the blame could fall to the wrong individual. If another person gains access somehow then the difficulty in finding the correct offender becomes more difficult. Treat your username and password as your driver’s license; you wouldn’t loan it to a coworker.

29. Upon receipt of the August 22, 2007 e-mail the Plaintiff called James Dorrian to express his

concerns per page 19 and 20 of Plaintiffs FIS employee handbook:

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(excerpt page 19 FIS Employee Handbook)

PROBLEM RESOLUTION

PURPOSE AND SCOPE

The Company is committed to providing the best possible working conditions for its employees. Part

of this commitment is encouraging an open and frank atmosphere in which any problem, complaint,

suggestion or question receives a timely response from supervisors and management.

OPEN DOOR POLICY

The Company encourages employee participation in decisions affecting them and their daily

professional responsibilities. Employees who have job-related concerns or complaints are encouraged

to discuss them first with their immediate supervisor. If the concerns are not addressed to the

satisfaction of the employee, the employee is then encouraged to discuss the concerns with any other

management representative with whom he or she feels comfortable or their designated Human Resources

representative. The Company strongly believes that employee concerns are best addressed through this

type of open communication.

Employees are encouraged to raise their work-related concerns as soon as possible after the events

that cause the concern. Employees are further encouraged to pursue discussion of their work-related

concerns until the matter is fully resolved. Although the Company cannot guarantee that in each

instance the employee will be satisfied with the result, the Company will attempt in each instance

to explain the result to the employee if the employee is not satisfied. The Company will also

attempt to keep all such expressions of concern, the results of its investigation, and the terms of

the resolution confidential. In the course of investigating and resolving the matter, however, some

dissemination of information to others may be appropriate under the circumstances.

Employees who conclude that their work-related concerns were not adequately addressed through the

Open Door Policy, may avail themselves of the “Problem Review Process” below.

This policy is also intended to cover complaints made either by or against third parties, as long as

the complaints arise out of the normal course of an employee’s work at the Company. For example, the

Company will investigate complaints of discriminatory treatment filed by outside vendors against you

as a Company employee, or filed by you as a Company employee against outside vendors, as long as the

alleged discriminatory activity occurred in connection with your responsibility at the Company. The

process outlined in this section is also applicable to complaints in connection with the Company’s

policy against harassment and discrimination.

PROBLEM REVIEW PROCESS

If employees disagree with the established rules of conduct, policies or practices, they can express

their concern through the problem resolution procedure. Employees will not be penalized for using

the problem resolution procedure to voice their complaint in a reasonable, business-like manner.

If a situation occurs where an employee believes that a condition of employment or a decision

affecting him/her is unjust or inequitable, he/she is encouraged to take the following steps:

1) An employee should first present the problem to his/her immediate supervisor after the

incident occurs and his/her designated Human Resources representative. If the supervisor is

unavailable or if the employee believes it would be inappropriate to contact this person,

the employee may present the problem to the next level of management.

2) If the employee does not believe that his/her concerns have been adequately addressed after

attempting an informal resolution, as set out in the paragraph above, he/she should contact

the Director of Corporate Human Resources and request a formal review of his/her complaint.

Although the Company would prefer that a written request be submitted, it is not required.

If the request for a formal review is in writing, it should describe in reasonable detail the reason

for the complaint, including, but not limited to: the individual(s) involved, the action or

treatment giving rise to the complaint, the approximate time period involved, the identity of any

known witnesses who can corroborate the claim, the description or copies of any documents that

support the employee’s position and what remedy is sought.

(excerpt Page 20 FIS Employee Handbook)

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INVESTIGATION OF COMPLAINT

Once the employee has submitted either a written or an oral request for a formal review, the

complaint will be investigated promptly and thoroughly by either the Corporate Human Resources

Department, or its designated representative (which may include, at the Company’s option, an outside

consultant). The investigation will include interviews with appropriate individuals and review of

any relevant documents. The subject matter of the complaint will be discussed only with individuals

directly involved, those with pertinent information as appropriate, and

Company or outside counsel.

After the investigation is concluded, the Corporate Human Resources Department or its designated

representative will discuss the results of the investigation, if applicable, and appropriate under

the circumstances and any remedies sought or the Company proposes. Although any written work product

produced during the course of the investigation will remain the property of the Company, the

employee will be informed of any corrective measures to be taken, and be reminded that you are

protected from any retaliation for having filed a complaint in good faith.

No employee will be harassed, discharged or otherwise retaliated against as a result of having filed

a complaint in good faith.

RESOLUTION

Not every problem can be resolved to everyone’s total satisfaction but only through understanding

and discussion of mutual problems can employees and management develop confidence in each other.

This confidence is important to the operation of any efficient and harmonious work environment and

helps to ensure everyone’s job security.

30. On August 22, 2007, the Plaintiff told Dorrian that access to millions of sensitive consumer records

and information that should always be guarded and protected was being mishandled or breached on a

daily basis.

31. On August 22, 2007, the Plaintiff told Dorrian that he wanted to forgo continuing to violate the

company and client policy by sharing his login credentials because he felt like his login credentials were

being used to close issues out of standard in his name.

32. On August 22, 2007, Dorrian told the Plaintiff that another associate with similar concerns had

contacted him; Dorrian requested the name of the Plaintiffs Supervisor and Manager and told the

Plaintiff he would correct the issue immediately.

33. On August 24, 2007, the Plaintiff was advised to go to the conference room by Roundtree.

34. Upon entering the conference room, the Plaintiff saw Roundtree and his Team Lead, Chris Gordon.

35. After entering the conference room Roundtree told the Plaintiff to take a seat. Roundtree closed the

door and slammed the e-mail from Dorrian on the table in front of the Plaintiff.

36. Roundtree, in violation of the codes in the FIS employee handbook threatened the Plaintiffs

employment.

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37. Roundtree, without regard to professionalism unleashed a vial; hate filed, bitter, profane and

derogatory verbal assault on the Plaintiff.

38. Gordon was in the room.

39. Gordon witnessed the entire verbal assault.

40. Gordon failed to intervene.

41. Gordon, in violation of the FIS employee handbook failed to report the retaliatory assault.

42. On August 24, 2007, Plaintiff sent an e-mail to Roundtree then went to management and verbally

requested to be reassigned.

43. On August 29, 2007, Roundtree and Brock Suriano, Plaintiffs Team Lead, called the Plaintiff into a

meeting to give him a Verbal Warning on his issue resolution.

44. Upon information and belief, Plaintiff sent an e-mail on August 29, 2007 because he was not

reprimanded after an unbiased performance evaluation was conducted, but after strategically targeted

intercoms were pulled and over exaggerated.

45. On August 30, 2007, Plaintiff sent another e-mail to Roundtree and Suriano after he pulled various

intercoms from some of his colleagues with situations that were similar in nature requesting a meeting to

discuss them.

46. On October 1, 2007, Plaintiff sent another e-mail to Roundtree and Suriano after he did not receive a

response to the August 30, 2007 e-mail.

47. On October 1, 2007, Plaintiff was written up on the pretense of causing a loss to the company.

48. On October 1, 2007, Plaintiff was taken into a conference room by Carlos Branum, Plaintiffs

Manager and told to sign off on the loss.

49. Seeing as though the sharing of login credentials in violation of the company policy were rampant,

Plaintiff challenged the loss and sought to ascertain verification that he caused the loss.

50. On October 1, 2007, Branum dismissed the Plaintiffs argument. Plaintiff was instructed to sign the

loss or be released for insubordination.

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51. On October 3, 2007, Roundtree responded to the October 1, 2007 e-mail saying in substance: Issues

with other associates are discusses on an individual basis with that associate and he would not meet

with Plaintiff.

52. On October 8, 2007, Plaintiff requested to be reassigned by e-mail.

53. On October 10, 2007, Plaintiff was returning from lunch with Terri Smith and Lynette Byrd.

54. Plaintiff escorted Byrd and Smith to their desk and spoke to them for a moment or two before being

grabbed by the arm and escorted to his desk by Charles Martisek, Assistant Vice President of Attorney

Management.

55. While walking Plaintiff to his desk, Martisek requested the name of Plaintiffs supervisor and

manager saying Plaintiff was being disruptive.

56. On October 10, 2007, Martisek never told the Plaintiff that he heard him make racial comments.

57. On October 10, 2007, Plaintiff sent an e-mail to Martisek apologizing for the purported disturbance

of his staff.

58. On October 11, 2007, Plaintiff was called into a meeting with Roundtree, Branum and Anna Dosen a

FIS Human Resource staff member.

59. Plaintiff was advised that he was being terminated as a result of his ongoing performance issues and

his failure to improve. In addition to his performance, Plaintiff was told his October 10, 2007 comments

were against company policy, when Plaintiff saw the purported comments he challenged the authenticity

and requested to speak with Martisek.

60. Martisek was located and brought into the room. Martisek read the comments said the comments

were incorrect, revised the purported comment and had Branum to change and re-print the revised

comments.

61. Plaintiff continued to challenge the purported allegation on the premise that an allegation of this

nature was severe enough to warrant immediate attention.

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62. When Martisek was questioned on his failure to walk the Plaintiff to his manager and immediately

address the situation he had no response.

63. Plaintiff continued to challenge the authenticity of the comment, requested to speak with Byrd and

Smith, but was denied after Dosen said Martisek had numerous witnesses to substantiate the allegations.

FIRST CLAIM FOR RELIEF- EMPLOYME�T DISCRIMI�ATIO�: RACE

(Florida Statutes § 760.01, ET SEQ., DISPARATE TREATME�T)

64. Plaintiff incorporates by reference paragraphs 1 through 63 as though fully set forth

herein. Plaintiff also incorporates by reference each and every other paragraph of this Complaint

except those that are inconsistent with a cause of action for race discrimination in violation of the

FCRA.

65. At all times herein mentioned, Florida Statutes § 760.01, et seq., was in full force and effect and

was binding upon Defendant. Said sections require Defendant to refrain from discriminating against

an employee because of race, among other things. Within the time provided by law, Plaintiff made a

complaint to the Equal Employment Opportunity Commission ("EEOC").

66. At all times herein mentioned, Plaintiff was an employee within the meaning and scope of the

FCRA, Florida Statutes § 760.02 (6) and, as such, Plaintiff had the right to maintain his

employment without experiencing discrimination on the basis of his race.

67. At all times herein mentioned, Defendant was an employer, or agents of employers, within the

meaning of the FCRA, Florida Statutes § 760.02 (7) and, as such, are barred from discriminating in

employment decisions on the basis of race.

68. From July 2007, and continuously thereafter until he was terminated from his employment,

Defendants maintained and required Plaintiff to work in an environment which was discriminatory.

69. Defendant violated Florida Statutes § 760.10(4) by discriminating against Plaintiff based on his

race. Specifically, Defendant subjected Plaintiff to disparate treatment in the terms and conditions

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of employment, including when Plaintiff was subjected to harassment and race discrimination,

workplace violence, and Plaintiff was treated in a disparate manner in the application of work rules

and employee discipline. Plaintiff was also discriminated against on the basis of race on the basis

Defendant failed to respond effectively to his complaints of harassment, discrimination and

retaliation.

70. The misconduct of Defendant, which constitutes a discrimination upon race, includes but is

not limited to the facts alleged in each paragraph of this Complaint.

71. Plaintiff reported the misconduct of FIDELITY NATIONAL INFORMATION SERVICES

management team. However, FIDELITY NATIONAL INFORMATION SERVICES did not

appropriately investigate the matter, nor did they take appropriate action to cause the management

teams behavior to cease, or to prevent any similar misconduct from occurring in the future.

72. Defendant failed to properly, promptly and effectively acknowledge the existence of racial

discrimination which exists at FIDELITY NATIONAL INFORMATION SERVICES. Defendant

further failed to respond to Plaintiff’s complaints, to develop a plan for dealing with the

discrimination and harassment in the future, and to inform Plaintiff of such a plan or any actions

that they were taking. Defendant’s failure to follow up on these complaints and/or to take any

action to eradicate the harassing and/or discriminating practices at FIDELITY NATIONAL

INFORMATION SERVICES unfairly, negatively and disparately impacted Plaintiff in particular.

73. Plaintiff is informed, believes and thereon alleges that FIDELITY NATIONAL

INFORMATION SERVICES failed to comply with their statutory duty under the FCRA to take all

reasonable and necessary steps to prevent discrimination based on race from occurring and to

eliminate such discrimination from the workplace, including but not limited to (a) failing to have an

ineffective policy regarding workplace harassment and discrimination; (b) failing to have an

12

effective procedure for addressing or investigating complaints of harassment and discrimination;

(c) failing to effectively implement any procedure it may have had for investigating complaints of

harassment and discrimination; (d) failing to adequately investigate Plaintiff’s complaints, despite

his numerous complaints to FIDELITY NATIONAL INFORMATION SERVICES management,

and (e) failing to appropriately train its employees.

74. The aforementioned discrimination and harassment against Plaintiff in the terms, conditions,

and/or privileges of employment on the basis of race constitutes an unlawful employment practice

and is expressly prohibited under the FCRA. The Defendant, by refusing to take action to abate the

offensive and continuing discriminatory and/or harassing conduct, acted and/or failed to act and/or

attempted to act in such a way as to aid, abet, incite, compel and/or coerce their associates in doing

such acts prohibited by the FCRA, as alleged above.

75. The aforementioned conduct of Defendant constitutes a continuing violation of Plaintiff’s rights

from the first act to the latest action.

76. As a direct, foreseeable, and proximate result of Defendant’s action, Plaintiff has suffered and

continues to suffer humiliation, embarrassment, mental and emotional distress and discomfort, all to

Plaintiff’s damage in an amount in excess of the minimum jurisdiction of this court, the precise

amount to be proven at trial.

77. As a direct and proximate result of the harassment of the Plaintiff and hostile and offensive

work environment, as described above, the Plaintiff has incurred, and will continue to incur medical

expenses, loss of deferred compensation, benefits, earning capacity, wages, opportunities for

employment and advancement, loss of professional reputation, work experience, all to his damage

in an amount according to proof.

13

78. Plaintiff is informed and believes and thereon alleges that the conduct of Defendant was grossly

intentional, negligently reckless, willful, wanton, malicious, oppressive and/or unmindful of

obligations to Plaintiff and/or exhibits that entire want of care which would rise to the presumption

of conscious indifference to the consequences so as to warrant the imposition of punitive damages

in an amount sufficient to punish, penalize or deter Defendant, for which Defendant is liable to

Plaintiff. The Defendant either intentionally personally engaged in such outrageous misconduct, as

alleged herein, or had advance knowledge of the harassing, discriminatory conduct of their

managers and nevertheless failed to take action to abate the wrongful conduct and continue to

employ the offenders with conscious disregard of the rights and safety of the Plaintiff and other

employees, or otherwise authorized or ratified the wrongful conduct of the offenders. Indeed, said

Defendant aided and abetted or otherwise incited each of their named employees into doing acts

forbidden by the FCRA, as alleged herein. As a result, the Plaintiff is entitled to recover punitive

damages against said Defendants, and each of them.

WHEREFORE, Plaintiff prays for judgment against Defendants as set forth below.

SECO�D CLAIM FOR RELIEF

FAILURE TO PREVE�T DISCRIMI�ATIO�

(Florida Statutes § 760.10 (1))

79. Plaintiff incorporates paragraph 1 through 78 as though fully set forth herein. Plaintiff also

incorporates by reference each and every other paragraph of this Complaint except those that are

inconsistent with a cause of action for failure to prevent discrimination in violation of the FCRA.

80. Defendants’ conduct as alleged in this Complaint violates the Florida Civil Rights Act, Florida

Statutes § 760.10(1), et seq., prohibiting workplace Discrimination based on race.

14

81. Florida Statutes § 760.10(1) requires an employer to take all reasonable steps necessary to

prevent discrimination from occurring.

82. Plaintiff is informed, believes and thereon alleges that FIDELITY NATIONAL

INFORMATION SERVICES (a) had an ineffective policy regarding workplace discrimination; (b)

had no effective procedure for addressing or investigating complaints of discrimination; (c) failed to

effectively implement any procedure it may have had for investigating complaints of

discrimination; (d) did not adequately investigate Plaintiff’s complaints; and (e) failed to

appropriately train its employees. FIDELITY NATIONAL INFORMATION SERVICES knew or

should have known about the discriminatory conduct toward Plaintiff and were remiss in failing to

take immediate and appropriate corrective action. FIDELITY NATIONAL INFORMATION

SERVICES are also strictly liable for the unlawful conduct of its supervisors.

83. Plaintiff made FIDELITY NATIONAL INFORMATION SERVICES aware about the

misconduct described in this complaint. FIDELITY NATIONAL INFORMATION SERVICES did

not take seriously, or ignored, Plaintiff’s statements, which made them aware of Geary’s unlawful

conduct. FIDELITY NATIONAL INFORMATION SERVICES failed to take immediate and

effective steps to conduct a fair, impartial and comprehensive investigation of the incidents.

84. In doing the acts and omissions set forth above, Defendant directly discriminated against

Plaintiff, failed to take immediate and appropriate corrective action to stop the discrimination

reported by Plaintiff, and failed to prevent the discrimination from occurring, thereby violating

Florida Statutes § 760.10(1).

85. As a direct, foreseeable, and proximate result of Defendants actions, Plaintiff has suffered and

continues to suffer humiliation, embarrassment, mental and emotional distress and discomfort, all to

15

Plaintiff’s damage in an amount in excess of the minimum jurisdiction of this court, the precise

amount to be proven at trial.

86. Plaintiff is informed and believes and thereon alleges that the conduct of Defendant was grossly

intentional, negligently reckless, willful, wanton, malicious, oppressive and/or unmindful of



in an amount sufficient to punish, penalize or deter FIDELITY NATIONAL INFORMATION

SERVICES and the individuals, for which Defendant is all liable to Plaintiff.

WHEREFORE, Plaintiff prays for judgment against Defendant as set forth below.

THIRD CLAIM FOR RELIEF- RETALIATIO�

(Florida Statutes § 760.10(1))

87. By this reference, Plaintiff hereby incorporates paragraphs 1-86 of this document as if they were

set forth within this cause of action. Plaintiff also incorporates into this cause of action each and

every allegation set forth in every paragraph of this Complaint, except those that are inconsistent

with a cause of action for retaliation in violation of the FCRA.

88. At all times herein mentioned, Florida Statutes § 760.10(1), et seq., was in full force and effect

and was binding upon Defendant. Said sections require Defendant to refrain from retaliating against

a person who opposes discrimination forbidden by the Florida Civil Rights Act (“FCRA”), or who

files a complaint, or who assists in any proceeding under the FCRA.

89. At all times during Plaintiff’s tenure with Defendant FIDELITY NATIONAL INFORMATION

SERVICES, Plaintiff performed his duties in an exemplary fashion. He continued to expeditiously

respond to and close issues, he received numerous bonuses and was praised in his performance

evaluation for his ability to deduce and reply under pressure.

16

90. Defendant retaliated against Plaintiff by:

a. Failing to adequately investigate Plaintiffs repeated complaints of harassment, discrimination and

workplace violence;

b. Failing to take appropriate and sufficient correct action to stop the harassment and discrimination

in employment or prevent any similar misconduct from occurring in the future;

c. Failing to keep Plaintiff informed about the progress of the “investigation,” of his complaints,

if such investigation took place;

d. Soliciting negative feedback regarding Plaintiff’s job performance after he made complaints of

harassment, discrimination and workplace violence.

e. Failing to effectively counsel Geary and Roundtree that retaliatory conduct would not be

tolerated;

f. Failing to assure Plaintiff in words and action that retaliation would not be tolerated;

g. Failing to recognize retaliation by Geary and Roundtree when it occurred;

h. Attacking Plaintiff in their responses to perspective employers, falsely informing potential

employers that Plaintiff caused an unsubstantiated loss;

i. Failing to address Plaintiff’s complaints that his work had been intentionally sabotaged;

and that Roundtree was undermining Plaintiff’s work after he made complaints of violations of

the Florida Civil Rights Act;

j. Refusing to address Plaintiff’s complaints of harassment, discrimination, retaliation and

workplace violence;

k. Discussing Plaintiff’s confidential employment issues with third parties in violation of Plaintiff’s

right to privacy as guaranteed by the Florida Constitution Article I, Sec. I.;

17

l. Threatening Plaintiff up an to the extent of termination if he continued to make complaints of

violations of company policies;

m. Threatening to terminate employment on the basis of insubordination if he refused to acquiesce

to FIDELITY NATIONAL INFORMATION SERVICES demand that he signoff on a loss;

n. Falsely informing individuals that Plaintiff had made explicit sexual comments with no

documentation to support the allegations;

o. Terminating Plaintiff’s employment.

91. Plaintiff is informed and believes that in addition to the practices enumerated in this

Cause of Action, Defendant has engaged in other retaliatory practices, which are not fully known

by Plaintiff. The above-enumerated acts of retaliation are not meant to be exhaustive, but merely

exemplary of the kinds of acts of retaliation against Plaintiff.

92. The Defendant, by refusing to take action to abate the offensive and continuing discriminatory

and/or harassing conduct of each of their employees, acted and/or failed to act and/or attempted to

act in such a way as to aid, abet, incite, compel and/or coerce each of the associates in doing such

acts prohibited by the FCRA, as alleged above.

93. The aforementioned conduct of Defendant constitutes a continuing violation of

Plaintiff s rights from the first act to the latest action.

94. As a direct, foreseeable, and proximate result of Defendant’s actions, Plaintiff has

suffered and continues to suffer humiliation, embarrassment, mental and emotional distress and

discomfort, all to Plaintiff’s damage in an amount in excess of the minimum jurisdiction of this

court, the precise amount to be proven at trial.

95. As a direct and proximate result of the harassment of the Plaintiff and hostile and

offensive work environment, as described above, the Plaintiff has incurred, and will continue to

18

incur medical expenses, loss of deferred compensation, benefits, earning capacity, wages,

opportunities for employment and advancement, loss of professional reputation and work

experience, all to his damage in an amount according to proof.

96. Plaintiff is informed and believes and thereon alleges that the conduct of Defendant

was grossly intentional, negligently reckless, willful, wanton, malicious, oppressive and/or

unmindful of obligations to Plaintiff and/or exhibits that entire want of care which would rise to the

presumption of conscious indifference to the consequences so as to warrant the imposition of

punitive damages in an amount sufficient to punish, penalize or deter Defendants, for which

Defendants are all liable to Plaintiff. Defendants, and each of them either intentionally personally

engaged in such outrageous misconduct, as alleged herein, or had advance knowledge of the

harassing, discriminatory conduct of the other Defendants and nevertheless failed to take action to

abate the wrongful conduct and continue to employ the offenders with conscious disregard of the

rights and safety of the Plaintiff and other employees, or otherwise authorized or ratified the

wrongful conduct of the offenders. Indeed, said Defendant aided and abetted or otherwise incited

their management staff into doing acts forbidden by the FCRA, as alleged herein. As a result,

the Plaintiff is entitled to recover punitive damages against said Defendant.

WHEREFORE, PLAINTIFF prays for judgment as hereinafter set forth.

FOURTH CLAIM FOR RELIEF- E�COURAGI�G VIOLATIO�S OF THE TERMS A�D

CO�DITIO�S I� THE FIS EMPLOYEE HA�DBOOK

97. By this reference, Plaintiff hereby incorporates paragraphs 1-96 of this document as

if they were set forth within this cause of action. Plaintiff also incorporates into this cause of action

each and every allegation set forth in every paragraph of this Complaint, except those that are

19

inconsistent with a cause of action for encouraging violations the terms and conditions in the FIS

Employee Handbook.

98. Despite notice by Plaintiff, FIDELITY NATIONAL INFORMATION SERVICES failed to

adequately investigate the violations of the FIS Employee Handbook. FIDELITY NATIONAL

INFORMATION SERVICES failed to take appropriate and sufficient corrective action to stop the

violations of the FIS Employee Handbook from occurring in the future. Per page 13 and 14 of the

FIS Employee Handbook:

(excerpt page 13 and 14 of the FIS Employee Handbook)

WORKPLACE VIOLENCE PREVENTION POLICY Mission Statement The Company is committed to workplace safety. As part of this commitment, the Company is specifically committed to providing a workplace that is free of threats or acts of violence and in protecting its employees from such conduct on its premises. In keeping with this commitment, the Company has established a strict policy that prohibits any employee from behavior that is violent, threatening or intimidating, while on Company property or on Company business. This policy applies to all employees, including management and non-supervisory staff. The Company has zero tolerance for employees who make threats, engage in threatening behavior or commit acts of violence against others. In addition, non-employees, such as visitors, guests, customers, vendors or family members of its employees, commit the Company to preventing violent or threatening behavior on its premises. Prohibited Conduct and Dangerous Items This policy prohibits not only physically violent behavior, but also behavior that is threatening, harassing or intimidating. Prohibited behavior includes, but is not limited to: • Possession of firearms, explosives, weapons such as knives, or any other hazardous or dangerous devices on any employer property, including vehicles, or at any Company function, whether on or off premises. Additionally, use of any item as a weapon is prohibited • Disorderly conduct on Company property, including fighting, inciting/provoking another to fight, battery, assault, attempted bodily injury or physically abusing any employee or visitor • Using abusive or threatening language, coercing, threatening or otherwise harassing any employee or visitor • Actual or threatened physical violence towards another employee or visitor Policy and Response Guidelines Keeping the workplace free of violence can only be accomplished if every employee takes personal responsibility for being aware of and reporting potentially violent behavior. Therefore, all employees are responsible for reporting immediately to their manager, local Human Resources representative or Corporate Human Resources Department any incident involving threats or acts of violence. The matter will be

20

investigated and any appropriate corrective action taken. Violations of this policy will lead to disciplinary action, up to and including termination of employment. In addition, to assist the Company in its efforts to maintain a violence-free workplace, employees are strongly encouraged to notify management or their local Human Resources Representatives about any restraining order in effect or any potentially violent situation outside of work that could result in violence in the workplace. Employees who become aware of any other workplace security hazards or who have suggestions for increasing security in the workplace should also bring this to the attention of management. Employees making reports as encouraged by this policy will not be retaliated against, and the Company will not tolerate any such retaliation.

99. Such action and inactions by FIDELITY NATIONAL INFORMATION SERVICES constitute

implicit approval of and sanction for violations of the terms and conditions conferred on its

employees. Through its various forms of action and inaction, as specified above, FIDELITY

NATIONAL INFORMATION SERVICES encouraged violations of the terms and conditions to

occur.

100. The Defendant, by refusing to take action to abate the offensive and continuing discriminatory

and/or harassing conduct, acted and/or failed to act and/or attempted to act in such a way as to aid,

abet, incite, compel and/or coerce their managers in doing acts prohibited by their corporate policy,

as alleged above.

101. The acts/and or omissions and/or attempts of the Defendant, undertaken for the purpose of, of

which had the effect of, aiding, abetting, inciting, compelling and/or coercing the other Defendants

to violate the corporate policy, constitutes unlawful conduct on the part of the Defendants.

102. As a direct and proximate result of the role of Defendant, in aiding, abetting, inciting,

compelling and/or coercing their employees to commit harassment, and retaliation from August 24,

2007 through the termination of the Plaintiff employment as described above, the Plaintiff has

suffered and will continue to suffer embarrassment, humiliation, mental anguish, sever emotional

and physical distress.

103. As a further direct and proximate result of the role of Defendant, in aiding, betting, inciting,

compelling and/or coercing their managers to commit harassment and retaliation as described

21

above, the Plaintiff has and will continue to incur medical expenses, loss of deferred compensation,

benefits, earning capacity, wages, opportunities for employment and advancement, loss of

professional reputation, and work experience, all to his damage in an amount according to proof.

104. Plaintiff is informed and believes and thereon alleges that the conduct of Defendant was

grossly intentional, negligently reckless, willful, wanton, malicious, oppressive and/or unmindful of



in an amount sufficient to punish, penalize or deter Defendant, for which Defendant are all liable to

Plaintiff. Defendant, either intentionally personally engaged in such outrageous misconduct, as

alleged herein, or had advance knowledge of the harassing, discriminatory conduct of the managers

and nevertheless failed to take action to abate the wrongful conduct and continue to employ the

offenders with conscious disregard of the rights and safety of the Plaintiff and other employees, or

otherwise authorized or ratified the wrongful conduct of the offenders. Indeed, said Defendant aided

and abetted or otherwise incited each of the managers into doing acts forbidden by the terms and

conditions in the corporate policy, as alleged herein. As a result, the Plaintiff is entitled to recover

punitive damages against said Defendant.

WHEREFORE, PLAINTIFF prays for judgment as hereinafter set forth.

FIFTH CLAIM FOR RELIEF-�EGLIGE�T HIRI�G, RETE�TIO� A�D SUPERVISIO�

105. By this reference, Plaintiff hereby incorporates paragraphs 1-107 of this document as

if they were set forth within this cause of action. Plaintiff also incorporates into this cause of action

each and every allegation set forth in every paragraph of this Complaint, except those that are

inconsistent with a cause of action for negligent hiring, retention and supervision.

22

106. At all times relevant herein, Defendant FIDELITY NATIONAL INFORMATION SERVICES

knew or reasonably should have known that the harassing, discriminatory and retaliatory conduct,

acts and omission of their employees, as described elsewhere in this Complaint and incorporated by

reference into this cause of action, violated Plaintiff’s rights under federal and state statutes, and

municipal statutes, codes and ordinances, and that said Defendant and said associates of FIDELITY

NATIONAL INFORMATION SERVICES were engaged in the unlawful behavior as described

herein above.

107. FIDELITY NATIONAL INFORMATION SERVICES knew or should have known Geary was

unfit for his position because of his history of lackadaisical employee concerns, abuse of employees

feelings, short and sarcastic remarks, and similar conduct. FIDELITY NATIONAL

INFORMATION SERVICES knew or should have known that Geary required supervision and/or

discipline, including but not limited to termination, in order to curb his behavior.

108. FIDELITY NATIONAL INFORMATION SERVICES knew or should have known Roundtree

was unfit for his position because of his history of shouting, engaging in acts of violence,

harassment, retaliation, and similar conduct. FIDELITY NATIONAL INFORMATION SERVICES

knew or should have known that Roundtree required supervision and/or discipline, including but not

limited to termination, in order to curb his behavior.

109. At all times relevant herein, said Defendant, knew, or in the exercise of reasonable care should

have known, that unless they intervened to protect Plaintiff, and adequately supervised, prohibited,

controlled, regulated, disciplined and/or otherwise penalized the improper conduct, acts and

omission of the offending employee as described herein, Defendants failure to so protect, supervise

and intervene would have the effect of encouraging, ratifying, condoning, exacerbating, worsening

23

and continuing said conduct, acts and failures to act, thereby subjecting Plaintiff to personal injury

and emotional distress.

110. At all times relevant herein, Defendant, had the power, ability, authority, and duty to so

intervene, supervise, prohibit, control, regulate, discipline and /or penalize the conduct of offending

supervisors, agents, or employees as described herein above.

111. Despite said knowledge, power and duty, Defendant negligently failed to act so as to prevent,

supervise, prohibit, control, regulate, discipline, and/or penalize the offending conduct described

above, or to otherwise protect Plaintiff from such conduct.

112. As a direct and proximate result of the negligent hiring, retention, and supervision of Geary,

and other employees named herein, and each of them, as described above, Plaintiff has suffered and

will continue to suffer embarrassment, humiliation, mental anguish and severe emotional and

physical distress.

113. As a direct and proximate result of the negligent hiring, retention, and supervision Roundtree

and other employees named herein, and each of them, as described above, Plaintiff has and will

continue to incur medical expenses, loss of deferred compensation, benefits, earning capacity,

wages, opportunities for employment and advancement, loss of professional reputation, and work

experience, all to his damage in an amount according to proof.

114. Plaintiff is informed and believes and thereon alleges that the conduct of Defendant was

grossly intentional, negligently reckless, willful, wanton, malicious, oppressive and/or unmindful of



in an amount sufficient to punish, penalize or deter Defendants, for which Defendant is liable to

Plaintiff. The Defendant, either intentionally personally engaged in such outrageous misconduct, as

24

alleged herein, or had advance knowledge of the harassing, discriminatory conduct of the other

Defendants and nevertheless failed to take action to abate the wrongful conduct and continue to

employ the offenders with conscious disregard of the rights and safety of the Plaintiff and other

employees, or otherwise authorized or ratified the wrongful conduct of the offenders. Indeed, said

Defendant aided and abetted or otherwise incited each associate into doing acts forbidden by the

FCRA, as alleged herein. As a result, the Plaintiff is entitled to recover punitive damages against

said Defendant.

WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.

SIXTH CLAIM FOR RELIEF- WRO�GFUL TERMI�ATIO� I� VIOLATIO� OF THE

GRAMM-LEACH-BLILEY ACT

115. Plaintiff realleges and incorporates by reference Paragraphs 1 through 114 of this

Complaint as if fully set forth herein. Plaintiff also incorporates into this cause of action each and


with a cause of action for wrongful termination in violation of The Gramm-Leach-Bliley Act U.S.C,

§ 6801. The Gramm-Leach-Bliley Act, U.S.C § 6801 provides:

Protection of nonpublic personal information

(a) Privacy obligation policy

It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information.

(b) Financial institutions safeguards

In furtherance of the policy in subsection (a) of this section, each agency or authority described in section 6805(a) of this title shall establish appropriate standards for the financial institutions subject to their jurisdiction relating to administrative, technical, and physical safeguards -

(1) to insure the security and confidentiality of customer records and information;

25

(2) to protect against any anticipated threats or hazards to the security or integrity of such records; and

(3) to protect against unauthorized access to or use of such records or information which could result in substantial harm or inconvenience to any customer.

116. Plaintiff received an e-mail from James Dorrian on August 22, 2007 addressing the ramifications

that could result over the sharing of passwords. Attached to the e-mail were several examples of

incidents that occurred when other financial institutions failed to protect sensitive consumer records.

After reading the e-mail the Plaintiff called Dorrian on August 22, 2007 and told him that access to

millions of sensitive consumer records and information that should always be guarded and protected was

being mishandled or breached on a daily basis.

117. Plaintiff reported The Gramm-Leach-Bliley Act violations in accordance to the rules in his

08/02/06 Access Agreement from Ann Thorn of Washington Mutual and his employee handbook.

Plaintiff objected to and refused to continue to breach the client’s login credentials.

118. After Plaintiff reported The Gramm-Leach-Bliley Act violations, James Dorrian sent an e-mail

to Dave Funk -Senior Manager of FNIS, Jonathan Fleetwood - Senior Manager of FNIS and

Michael Cloin - AVP of FNIS on August 22, 2007. All of these individuals had a legal obligation

to investigate and correct the violations, but failed to do so. In addition to them failing to investigate

the violations, they reported, the call to the Plaintiffs supervisor Lorenzo Roundtree on August 24,

2007.

119. On August 24, 2007 Lorenzo Roundtree verbally assaulted, and forced the Plaintiff to continue

to put millions of consumer records at risk by sharing his credentials until he was terminated.

120. In acting as alleged herein, Defendant FIDELITY NATIONAL INFORMATION SERVICES

placed the general public at risk and terminated the Plaintiffs employment violation of The Gramm-

Leach-Bliley Act U.S.C, § 6801.

26

121. As a proximate result of said conduct, Plaintiff has suffered and continues to suffer discomfort,

anxiety, humiliation, destruction of credit, destruction of community standing and emotional

distress, and will continue to suffer serious emotional distress in the future, all to his damage in an

amount according to proof.

122. Plaintiff is informed and believes that the wrongful acts and/or conduct alleged herein which

was perpetuated by Defendant was done maliciously, oppressively, and/or fraudulently and with a

wrongful intent of harming and injuring Plaintiff and did in fact harm Plaintiff with an improper and

evil motive amounting to malice and in conscious disregard of the Plaintiff’s rights

WHEREFORE, Plaintiff prays for relief as set forth below.

SEVE�TH CLAIM FOR RELIEF- WRO�GFUL TERMI�ATIO� I� VIOLATIO� OF

THE SARBA�ES-OXLEY ACT

123. Plaintiff realleges and incorporates by reference Paragraphs 1 through 122 of this

Complaint as if fully set forth herein. Plaintiff also incorporates into this cause of action each and


with a cause of action for wrongful termination in violation of The Sarbanes-Oxley Act, Security

Exchange Commission, § 302. S.E.C § 302 provides:

Corporate Responsibility For Financial Reports

(a) REGULATIONS REQUIRED.—The Commission shall, by rule, require, for each company filing periodic reports under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m, 78o(d)), that the principal executive officer or officers and the principal financial officer or officers, or persons performing similar functions, certify in each annual or quarterly report filed or submitted under either such section of such Act that—

(1) the signing officer has reviewed the report;

(2) based on the officer’s knowledge, the report does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to

27

make the statements made, in light of the circumstances under which such statements were made, not misleading;

(3) based on such officer’s knowledge, the financial statements, and other financial information included in the report, fairly present in all material respects the financial condition and results of operations of the issuer as of, and for, the periods presented in the report;

(4) the signing officers—

(A) are responsible for establishing and maintaining internal controls; (B) have designed such internal controls to ensure that material information relating to the issuer and its consolidated subsidiaries is made known to such officers by others within those entities, particularly during the period in which the periodic reports are being prepared; (C) have evaluated the effectiveness of the issuer’s internal controls as of a date within 90 days prior to the report; and (D) have presented in the report their conclusions about the effectiveness of their internal controls based on their evaluation as of that date;

(5) the signing officers have disclosed to the issuer’s auditors and the audit committee of the board of directors (or persons fulfilling the equivalent function)—

(A) all significant deficiencies in the design or operation of internal controls which could adversely affect the issuer’s ability to record, process, summarize, and report financial data and have identified for the issuer’s auditors any material weaknesses in internal controls; and

(B) any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal controls; and

(6) the signing officers have indicated in the report whether or not there were significant changes in internal controls or in other factors that could significantly affect internal controls subsequent to the date of their evaluation, including any corrective actions with regard to significant deficiencies and material weaknesses.

124. Sarbanes-Oxley contains many features, but there is one that stands out from an IT security

perspective.

28

125. Sections 302(a)(4) and 404 require a public company and its top officers to make disclosures

and certifications to the Securities and Exchange Commission regarding the company's system of

internal controls.

126. Internal controls cover an enormous range of methods and procedures that an organization

employs to ensure it is using resources as intended, preventing fraud, protecting assets from damage

and waste and so on. Among those methods and procedures are IT security techniques to thwart

hackers, viruses, criminals and other pests that might abuse the organization's IT infrastructure

(degrade its performance, use it to steal money, transform it into a clandestine spam mill, etc.).

127. One way a serious violation might occur would be for the company, the CEO and the CFO to

disclose to the SEC essentially "we have been diligent and thorough in pursing control and security

over our IT resources," when in fact the company was handling IT security and control in a slipshod

way.

128. Plaintiff sent an e-mail to Lee Kennedy, CEO of FNIS on October 15, 2007 to let him know

that his employment was terminated after he reported The Gramm-Leach-Bliley Act violations. Lee

Kennedy knew his IT infrastructure was flawed. He knew his internal controls for protecting

millions of his client’s customers had been breached, were being breached and are continuing to be

breached. Instead of Lee Kennedy investigating this himself, he sent the e-mail to Michael Oates,

AVP of Human Resources and Ron Cook, AVP of Law who did nothing to investigate the

violations or they failed to provide any evidence to substantiate the fact they investigated the

violations.

29

129. As CEO and Chairman of the Board Lee Kennedy and William Foley had a legal obligation

under the SEC guidelines to either personally investigate or appoint a committee to investigate the

infractions.

130. In as much as no evidence to substantiate the fact that an internal investigation was conducted,

Plaintiff can only surmise that FNIS and their senior executives in violation of state and federal

regulation, engaged in a pattern of systemic, chronic failures to enforce their own corporate

oversights. Their failure to enforce these corporate policies placed millions of their client’s

customers at risk and even after being apprized of these violations on June 30, 2006 by an FNIS

employee Ms. Niki Stone; their senior executives chose to look the other way.

131. FNIS took it upon themselves to throw caution to the wind in an effort to increase the

company’s bottom line. They in violation of state and federal law abused the login credential

policies to expedite the foreclosure process, increase their referral rate, response rate and

productivity. Seeing as though William Foley and Lee Kennedy have numerous shares of FNIS,

they have a unilateral interest in the company’s profitability. As such, their refusal to address these

concerns makes them guilty of unjust enrichment and ill-gotten gains.

132. Attached hereto is the signature page of Lee Kennedy for the Third Quarter SEC Filings dated

November 09, 2007. In this document, Lee Kennedy attests to the fact that all of his internal

controls were in compliance for the third quarter when they were not.





30






EIGHTH CLAIM FOR RELIEF- WRO�GFUL TERMI�ATIO� I� VIOLATIO� OF

PUBLIC POLICY A�D THE WHISTLE BLOWER ACT

135. Plaintiff realleges and incorporates by reference Paragraphs 1 through 134 of this Complaint as

if fully set forth herein. Plaintiff also incorporates into this cause of action each and every allegation

set forth in every paragraph of this Complaint, except those that are inconsistent with a cause of

action wrongful termination in violation of public policy and The Whistle Blower Act.

136. It is a fundamental, substantial and well-established public policy under Florida law that a

workplace be free of harassment, discrimination, and retaliation. This fundamental public policy is

expressed under Florida Constitution Art. 1§ 8, and Florida Statutes § 760.01, et seq. It is also a

fundamental, substantial and well-established public policy of Florida as expressed in Florida Labor

Code Section 448.102(1) that no employer shall retaliate against an employee for disclosing or

threatening to disclose information to a government or law enforcement agency, where the

employee has objected to, or refused to participate in, any activity, policy, or practice of the

employer which is in violation of a law, rule, or regulation.

137. Plaintiff’s amended complaint seeks damages for a violation of section 448.102(3), Florida

Statutes, of The Whistleblower Act. Section 448.102(3), Florida Statutes (2005), provides:

Prohibition.--An employer may not take any retaliatory personnel action against an employee because the

employee has:

31

(3) Objected to, or refused to participate in, any activity, policy, or practice of the employer which is in

violation of a law, rule, or regulation. 138. Section 448.101(2) of The Whistleblower Act defines “employee” as “a person who performs services for and under the control and direction of an employer for wages or other remuneration. 139. Plaintiff objected to and refused to participate in the illegal use of the client’s login

credentials. Plaintiff reported The Gramm-Leach-Bliley Act violations in accordance to the rules in

his employee handbook and Plaintiff was reported, assaulted, and terminated through a series of

unsubstantiated allegations.

140. In acting as alleged herein, Defendant FIDELITY NATIONAL INFORMATION SERVICES

discharged Plaintiff arbitrarily, without just cause, and in violation of statutes and/or fundamental

public policies of the State of Florida.










�I�TH CLAIM FOR RELIEF – �EGLIGE�CE DEFAMATIO�



32


action for Defamation.

144. After deposing the would be witnesses the Plaintiff has conflicting accounts to refute

Martisek’s accusations; evidence to prove Martisek made false statements that were defamatory in

nature; evidence to substantiate the fact that Martisek never had witnesses to corroborate his

allegations and evidence to substantiate the fact that Martisek conspired with the Defendant, who in

due order of succession, published these defamatory statements. Martisek and Anna Dosen, FIS

Human Resources personnel, said they had witnesses to these defamatory comments on the day of

the Plaintiff's termination, and told the Plaintiff that the names would be provided, but they have yet

to produce one witness.

145. The courts acknowledge two forms of defamation:

In law, issuance of false statements about a person that injure his reputation or that deter others

from associating with him. Libel and slander are the legal sub categories of defamation. Libel is

defamation in print, pictures, or any other visual symbols. Slander is defamation by oral

communication. An action for slander may be brought without alleging and proving special

injury if the statement has a plainly harmful character, as by imputing to the plaintiffs criminal

guilt, serious sexual misconduct, or a characteristic negatively affecting his business or

profession. "Defamation." Merriam-Webster's Collegiate Dictionary. Electronic ed., version 1.5,

1996.

146. This theory applied here. In law, Slander is the oral communication of false statements

injurious to a person's reputation. "Slander." Merriam-Webster's Collegiate Dictionary. Electronic

ed., version 1.5, 1996. Martisek’s defamatory oral communications had a plainly harmful character

that negatively affected the Plaintiff's profession and lively hood. In law, Libel is defamation in

33

print, pictures, or any other visual symbols. "Libel." Merriam-Webster's Collegiate Dictionary.

Electronic ed., version 1.5, 1996. Defendants failure to investigate, but print and publish the

defamatory oral communications had a plainly harmful character that negatively affected the

Plaintiff's profession and lively hood makes them guilty of negligence.

147. Attached hereto are e-mails from the Plaintiff to Norman Gamble. The e-mails were sent to

Norman Gamble, AVP of Law, after he requested that all correspondence be directed to his

attention. The e-mails serve to substantiate the fact that the Plaintiff's lively hood has been

adversely affected to the extent of destitution and the e-mails confirm the Plaintiff's inability to

ascertain employment as a result of the Defendant's contributory negligence.

148. The Plaintiff, denied the allegations on the day of his termination and requested to speak to the

Defendant's witnesses, but was not allowed to do so. Martisek changed his recollection of what he

thought he heard from "there’s too many black people in the area so there will be problems over

here." on October 10, 2007 to "there’s too many black people in the area. " on October 11, 2007

but failed to produce the names of these witnesses after repeated request. After numerous e-mails,

Ms Dosen replied to the Plaintiff's e-mail "saying she did not and or that she never had the names

of any witnesses"

149. It is the Plaintiff's argument that he was not walking the floor, but returning from lunch with

Lynnette Byrd, Financial Services Representative and Terri Smith, Financial Services

Representatives on October 10, 2007. The Plaintiff was in the midst of concluding his conversation

that centered on the Jena 6 debate with the aforementioned associates when he was escorted to his

desk while being asked who his manager was. Counsel for the Defendant asserted that Florida law

is well settled that "[a] communication made in good faith on any subject matter by one having

an interest therein, or in reference to which he had a duty, is privileged if made to a person

34

having a corresponding interest or duty, even though it contains matter which would otherwise be

actionable, and though the duty is not a legal one but only a moral or social obligation."

American Airlines, 960 So.2d at 833 citing Nodar v. Galbreath, 462 So.2d 803, 809 (Fla. 1984).

150. This theory applies here. Martisek, prior to contributing his testimony, had a duty, not a legal

one, but a moral or social obligation to request clarification on what he thought he heard.

Furthermore, it would appear as though he nor Ms Anna Dosen, Mr. Lorenzo Roundtree, Mr. Carlos

Branum or Mr. Bill Geary, the parties with a corresponding interest or duty failed to make a

concerted effort to question Ms Byrd, Ms Smith or any other associate in the immediate vicinity on

October 10, 2007 for clarification prior to publishing the defamatory statements. Martisek failed to

substantiate his allegation, but conspired with management to publish false and defamatory

statements concerning the Plaintiff, without reasonable care as to whether those statements were

true or false, which resulted in actual financial damage to the Plaintiff.

151. In addition to the aforementioned, it is the Plaintiff's argument that Martisek initially accused

the Plaintiff of saying "I wanted to get on Jamie’s team, but they said there are too many black

people on there already" to Jamie Gooden, Supervisor of Financial Services. The Defendant said

these comments were made in the lunchroom some four or five months ago, but the Defendant

failed to assert his duty and apprize the Plaintiff's superiors of the comments at that time.

152. Leaving aside the Defendant's duty, but reflecting more importantly on the Defendant's

unethical conduct. It is the Plaintiff's argument that Charles Martisek is the best friend of Bill

Geary, Assistant Vice President of Financial Services. After reflecting on the close acquaintance,

the Plaintiff hereby contends Martisek misused his authority to assuage a personal vendetta against

the Plaintiff after the Plaintiff reported the discriminatory actions of Bill Geary to Anna Dosen in on

or around July of 2007.

35

153. On twelve interviews in the last seven months, the Plaintiff has had to explain the cause of his

termination to potential employers and the stigma of the accusation has prevented him from

ascertaining employment in his field.

154. It is the Plaintiff’s claim that the Defendant is guilty of Gross Negligence because the

Defendant maliciously defamed the Plaintiff’s character by failing to verify the slanderous

allegation of their Assistant Vice President prior to publishing the defamatory comments.

155. It is the Plaintiff’s argument that the allegation was a contributing factor in the termination of

the Plaintiff’s employment and the defamatory allegations have affected the Plaintiff’s lively hood,

caused the Plaintiff pain, injury and distress.



distress, and will continue to suffer serious emotional distress in the future.




evil motive amounting to malice and in conscious disregard of the Plaintiff’s rights.

TE�TH CLAIM FOR RELIEF - �EGLIGE�T I�FLICTIO� OF EMOTIO�AL DISTRESS




action for negligent infliction of emotional distress.

36

159. By engaging in the conduct set forth herein, Defendant has negligently breached their duty of

care not to engage in the conduct alleged.

160. Defendant, knew or should have known that their actions were likely to result in serious

emotional harm, anguish and distress to Plaintiff.

161. As a proximate result of said conduct, Plaintiff has suffered and continues to suffer

discomfort, anxiety, humiliation, destruction of credit, destruction of community standing and

emotional distress, and will continue to suffer serious emotional distress in the future.

162. Plaintiff is informed and believe that the wrongful acts and/or conduct alleged herein which




As a result, Plaintiff is entitled to recover punitive damages against said Defendant.

ELEVE�TH CLAIM FOR RELIEF- I�TE�TIO�AL I�FLICTIO� OF EMOTIO�AL

DISTRESS




action for intentional infliction of emotional distress.

164. The conduct set forth hereinabove by Defendant was extreme and outrageous. Said conduct

was intended to cause and did cause severe emotional distress, or was done in conscious disregard

of the probability of causing such distress.

37


anxiety, humiliation, destruction of credit, destruction of community and emotional distress, and

will continue to suffer serious emotional distress in the future.





As a result, Plaintiff is entitled to recover punitive damages against said Defendant.

38

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for relief and judgment against Defendant as follows:

a. That process be issued and served as provided by law, requiring Defendant to appear and

answer or face judgment;

b. That Plaintiffs employee file be cleared of each and every allegation;

c. That Plaintiff has and recovers a judgment in the amount of $1.2 million against Defendant

at trial as general, special, actual, compensatory and/or nominal damages;

d. That Plaintiff has and recovers a judgment in the amount of $1.2 million against

Defendant for punitive damages at trial sufficient to punish, penalize and/or deter

Defendant;

e. That Plaintiff have and recover a judgment against Defendant enjoining Defendant from

engaging in each of the unlawful practices set forth in this Complaint;

f. For disgorgement of Defendant’s profits as a result of their unlawful business practices;

g. That Plaintiff recovers pre-judgment and post-judgment interest; and That Plaintiff has

such other relief, as this Court deems just and appropriate.

39

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the forgoing has been furnished to Bradley R Johnson, Esquire, 50 N Laura Street, Suite 3500 Jacksonville, Florida 32202 via US mail, this 18th day of March 2009

Respectfully submitted,

_____________________________

Adrian Lofton, Pro Se Email: [email protected] 4269 Timuquana Rd Jacksonville, FL 32210 Phone: 904.384.6646 Cell: 904.651.0016

lps / fnis breaking federal rules to expedite foreclosure process

Documents