DALLAS COUNTY 4/8/2014 11:02:43 AM
GARY FITZSIMMONS DISTRICT CLERK
Pointer Tonya
DONALD VIDETICH,
§ Plaintiff, § § v. § § TRANSPORT WORKERS UNION OF § AMERICA, AFL-CIO, HARRY LOMBARDO, § JOHN SAMUELSEN, ALEX GARCIA, § JOHN BLAND, and GARY MASLANKA, § § §
____ JUDICIAL DISTRICT
DALLAS COUNTY, TEXAS
Defendants.
PLAINTIFF’S ORIGINAL PETITION AND JURY DEMAND
TO THE HONORABLE COURT: Plaintiff Donald Videtich petitions the Court for relief against Defendants Transport
Workers Union of America, AFL-CIO (“TWU”), Harry Lombardo, John Samuelsen, Alex Garcia, John Bland, and Gary Maslanka.
Discovery Control Plan
1. Videtich intends discovery to be conducted under TEX. R. CIV. P. 190.3 (Level 2).
The Parties and Service of Process
2. Defendant TWU is an association and may be served by serving its International Vice President, Garry Drummond, at 1791 Hurstview Drive, Hurst, Texas 76054.
3. Defendant Harry Lombardo is President of TWU. He regularly conducts business in Texas and may be served with process by serving the Secretary of State of Texas who may serve Lombardo at the offices of TWU, 501 3rd St. NW - 9th Floor, Washington, D.C. 20001.
4. Defendant John Samuelsen is Executive Vice President of TWU. He regularly conducts business in Texas and may be served with process by serving the Secretary of State of
Plaintiff’s Original Petition and Jury Demand Page 1Texas who may serve Samuelsen at the offices of TWU, 501 3rd St. NW - 9th Floor, Washington, D.C. 20001.
5. Defendant Alex Garcia is Secretary Treasurer of TWU. He regularly conducts business in Texas and may be served with process by serving the Secretary of State of Texas who may serve Garcia at the offices of TWU, 501 3rd St. NW - 9th Floor, Washington, D.C. 20001.
6. Defendant John Bland is Administrative Vice President of TWU. He regularly conducts business in Texas and may be served with process by serving the Secretary of State of Texas who may serve Bland at the offices of TWU, 15522 Marble Canyon Way, Houston, Texas 77044.
7. Defendant Gary Maslanka is Administrative Vice President of TWU. He regularly conducts business in Texas and may be served with process by serving the Secretary of State of Texas who may serve Maslanka at the offices of TWU, 501 3rd St. NW - 9th Floor, Washington, D.C. 20001.
8. Each of the Defendants conducts business in Dallas County, with American Airlines, Southwest Airlines, and Videtich.
Background Facts
9. TWU offers sick leave and short-term disability benefits to its employees. A copy of the policy is attached (the “Short-Term Disability Policy”).
10. TWU acknowledged the disability of Videtich and his eligibility for benefits under the Short-Term Disability Policy.
11. TWU began paying Videtich payroll and insurance continuation under the Short- Term Disability Policy by September 14, 2013, after acknowledging his disability and eligibility. Plaintiff’s Original Petition and Jury Demand Page 2
12. The Short-Term Disability Policy, in Section G(3), provides that an employee on sick leave or disability leave will continue to be an employee of TWU for twelve consecutive months from the last day worked prior to commencing the leave, except for conditions related to the employee returning to work earlier.
13. On November 1, 2013, TWU unilaterally terminated Videtich’s employment and disability benefits without justification, causing extreme hardship on Videtich and his wife.
Cause of Action BREACH OF CONTRACT
14. TWU offered and Videtich accepted the benefits under the Short-Term Disability Policy in exchange for his services.
15. TWU violated the Short-Term Disability Policy by terminating Videtich’s benefits and employment.
16. The violation caused severe harm to Videtich and his wife, and continues to cause severe harm to them. The damages include the loss of the benefits and consequential damages reasonably foreseeable.
BREACH OF FIDUCIARY DUTY
17. Defendants Lombardo, Samuelsen, Garcia, Bland, and Maslanka are officers of the TWU and members of TWU’s International Administrative Committee.
18. Defendants are responsible for administering the Short-Term Disability Policy. 19. Videtich is a beneficiary under the Short-Term Disability Policy. 20. Defendants pay the benefits directly from the funds of TWU. 21. Defendants have a fiduciary responsibility to properly administer the benefits in a
fair and reasonable manner without regard to the effect financially to TWU.
Plaintiff’s Original Petition and Jury Demand Page 3
22. Videtich relied upon the Short-Term Disability Policy, TWU’s representations concerning the Short-Term Disability Policy, and the conduct of payments under the Short-Term Disability Policy.
23. Defendants breached their fiduciary responsibilities by terminating the benefits and terminating Videtich’s employment.
24. Defendants failed to administer the Short-Term Disability Policy fairly and reasonably, and administered the plan for their own benefit and advantage.
25. Defendants are responsible for the harms and losses caused by their breach of their fiduciary responsibilities, including compensatory damages and attorneys’ fees. The compensatory damages include not only loss of income and benefits, but mental anguish, pain and suffering, loss of enjoyment of life, and inconvenience, as well.
26. The harm with respect to which Videtich seeks recovery resulted from malice and a recovery of exemplary damages is proper.
VIOLATION OF TEXAS PROPERTY CODE
27. Section 121.001 of the Texas Property Code provides that a pension trust includes an express trust containing or relating to property created by an employer as part of a disability benefit plan to which contributions are made by the employer and created for the principal purpose of distributing to the employees their beneficial interest in the trust or the principal or income of the property held in trust. Property includes tangible or intangible, legal or equitable, and includes contractual rights to receive benefits.
28. Section 113.051 of the Texas Property Code provides that a trustee shall administer the trust in good faith according to its terms and the Texas Property Code.
Plaintiff’s Original Petition and Jury Demand Page 4
29. Section 121.001 of the Texas Property Code provides that a trustee may be removed for cause, including materially violating or attempting to violate the terms of the trust.
30. Section 121.001 of the Texas Property Code provides that a trustee who commits a breach of trust is chargeable with any damages resulting from the breach of trust.
31. Section 121.001 of the Texas Property Code provides that for a breach of trust that has occurred or might occur, the court may provide a remedy including compel the trustee to perform the trustee’s duty or duties, enjoin the trustee from committing a breach of trust, order a trustee to account, appoint a receiver, suspend or remove the trustee, and impose a lien or constructive trust.
32. Defendants violated the Texas Property Code related to trusts by materially violating the terms of the Short-Term Disability Policy.
33. Because of the violation, Defendants are responsible for the resulting harms and losses, including attorneys’ fees and expenses. Further, Defendants should be compelled to perform as required under the Short-Term Disability Policy or removed as trustees. A lien or constructive trust should be imposed upon sufficient funds to provide for the damages.
ATTORNEYS= FEES 34. Videtich was required to retain the services of the undersigned attorneys to prosecute the cause. Videtich is entitled to a reasonable amount for attorneys’ fees and expenses
for a trial or trials of this cause, additional attorneys' fees and expenses in the event a motion for a new trial is filed, an additional amount in the event of an appeal to the Court of Appeals, and an additional amount if application for writ of error is made to the Texas Supreme Court, as provided in the agreement and Section 38.001 et seq. of the Texas Civil Practice and Remedies Code.
Plaintiff’s Original Petition and Jury Demand Page 5
Jury Demand
35. Videtich requests a trial by jury.
WHEREFORE, Videtich requests that Defendants be cited to appear and answer and that on final trial, Videtich have judgment against Defendants for compensatory and consequential damages, expert fees, injunctive and equitable relief as alleged, interest as provided by law, costs of suit; that Defendants should be compelled to perform as required under the Short-Term Disability Policy or removed as trustees, and a lien or constructive trust be imposed upon sufficient funds to provide for the damages. Videtich should have further judgment against Defendants for any additional relief to which he may be entitled.
Plaintiff’s Original Petition and Jury Demand
Page 6
Respectfully submitted,
SANFORDBETHUNE
By: /s/ Brian P. Sanford Brian P. Sanford
Texas Bar No. 17630700 David B. Norris Texas Bar No. 24060934
3610 Shire Blvd., Suite 206 Richardson, Texas 75082 Telephone: (972) 422-9777 Facsimile: (972) 422-9733
ATTORNEYS FOR PLAINTIFF DONALD VIDETICH
