Law Office ofJennifer Dwyer, PLLC1700 West Koch, Suite 9Bozeman, Montana 59715Telephone: (406) 551-2219Facsimile: (406) 556-2177

Attorneyfor Plaintiff

iiil~ FEB 25 Prl Y 25

fiLED vpBY _---'-Cl"'-­

DEPUTi'

MONTANA EIGHTEENTH mDiClAL DISTRICT COURT, GALLATIN COUNTY>II" ... >II

JAMES DARRELL MCMARTIN, ))

Plaintiff, ))

v. ))

COLONEL TOM BUTLER, in his official )capacity as Chief Administrator of the )MONTANA HIGHWAY PATROL, )ATTORNEY GENERAL TIM FOX, in his )official capacity as head of the MONTANA )DEPARTMENT OF mSTICE, and John Does 1- ~V, )

Defendants. )

Case No. j)\J- 1:1- /<oj ~

COMPLAINT AND JURy DEMAND

COMES NOW the Plaintiff, JAMES DARRELL MCMARTIN, by and through his attorney,

Jennifer Dwyer, and for his claims against the Defendants alleges as follows:

FACfS COMMON TO ALL COUNTS

1. Plaintiff James Darrell McMartin (hereinafter uMcMartin") resides in Gallatin County,

Montana.

2. McMartin seeks relief against Defendants Colonel Tom Butler, sued in his official capacity as

acting Chief Administrator ofthe Montana Highway Patrol,-aocl-Attomey General Tim Fox,c-"'" ,.,.

sued in his official capacity as head of the Montana Department ofJustice, and certain John

.-<#- -Does I-V, whose identity is not now known (collectively, uDefendanL'U) liable for its torts and

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those of its employees acting within the scope of their employment or duties pursuant to

Montana Code Annotated Section 2-9-102.

3. Pursuant to Montana Code Annotated Section 2-9-301, Plaintiff McMartin presented this claim

to the Department ofAdministration.

4. Plaintiffwas employed by Montana Highway Patrol in JIDle, 2011. Plaintiffprovided

Defendant with a Veteran's Administrative letter verifying that he was an honorably

discharged disabled veteran.

5. Plaintiff successfully completed Advanced Academy training at the Montana Law

Enforcement Training Center in August, 2011. Plaintiffwas then assigned to patrol in

Bozeman, within District 7. Plaintiff was Plaintiff successfully completed field training status

and was released to patrol duties.

6. Plaintiff satisfied Defendant's one year probationary period of employment as trooper.

7. On February 25, 2013, the Montana Highway Patrol placed Plaintiff on administrative leave

until further notice. Plaintiff was never returned to duty after this.

8. Defendants stated that a reason that Plaintiff was placed on administrative leave was Plaintiffs

PTSD issues.

9. 10 March, PlaintiffvolIDltarily attended a residential treatment facility for Post Traumatic

Stress Disorder ("PTSD") in Sheridan, Wyoming.

10. After completing PTSD treatment, Colonel Hickethier, Administrator at Montana Highway

Patrol ("MHP"), demanded that Plaintiff submit to a psychological "fit-for-duty" assessment

by May 31, 2013. Plaintiff was told that if he did not, he would be denied reinstatement to his

position as Trooper and would be terminated from employment

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11. Plaintiffprovided the Psychological Fit-For-Duty Assessment as required. Ultimately, June

Henderson, MHP Human Resources, received a copy of this assessment. The assessment

detennined that Plaintiff was, in fact, fit to return to duty.

12. Plaintiff obtained verification from another medical professional- a licensed clinical

professional counselor- who opined that Plaintiffwas able to carry out his professional duties

as an anned law enforcement officer.

13. Plaintiff attended another residential treatment for PTSD in Helena, Montana, in August, 2013.

Plaintiff was again assessed and cleared to return to duty.

14. Defendants received several assessments from trained medical professionals who concluded

that Plaintiffwas fit for duty in response to their demand that Plaintiff submit to and disclose

these assessments. Nevertheless, Defendants refused to return Plaintiffto employment.

15. Defendants discriminated against Plaintiff based upon a physical or mental disability.

16. Defendants discriminated against Plaintiff by limiting or imposing a term, condition, or

privilege ofemployment based upon Plaintiff's disability in violation ofMontana and Federal

law.

17. Defendants deprived Plaintiff of a teno, condition, or privilege of employment based upon

unfounded stereotypes that contradicted the conclusions of several mental health experts.

18. Defendants made unwelcome, humiliating, harassing, and degrading remarks to and about

Plaintiff. For example, Defendants referred Chris Doerner (an ex-cop who killed other cops) in

referring to Plaintiff.

19. Defendant's statements and conduct regarding Plaintiff's disability are inaccurate and

discriminatory and created a hostile and abusive work environment.

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20. Though the harassment was unwelcome, Defendants prohibited Plaintiff from complaining

about or reporting the unwelcome remarks and limited the persons with whom Plaintiff could

have contact when Defendants placed Plaintiff on leave in February, 2013.

21. Plaintiff requested a reasonable accommodation in May, 2013. Plaintiff filled out paperwork

that he was told would begin the process of obtaining a reasonable accommodation, but his

request went unanswered.

22. Since Defendants learned ofor discussed that Plaintiffhas PTSD, Plaintiff was subjected to

humiliation, and made to feel unsure about himself as a person within MHPIDOJ, and in public

forums.

23. Defendant's conduct exacerbated Plaintiff's PTSD symptoms.

24. On or about September 25,2013, Plaintiff filed a complaint with the Equal Employment

Opportunity Center, charging that he was discriminated against by Defendants in employment

due to his disability.

25. Defendants retaliated against Plaintiff for reporting the discrimination in the workplace by

tenninating his employment

COUNT I: WRONGFUL DISCHARGE

26. McMartin restates and re-alleges its answers to Paragraphs 1 through 25 above as if fully

incorporated herein.

27. The termination of Plaintiff's employment constitutes wrongful discharge in violation of Mont

Code Ann § 39-2-904(1 )(a), for the reason that it was in retaliation for Plaintiff's refusal to

violate public policy or for reporting a violation of public policy.

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28. The termination of Plaintiff's employment constitutes wrongful discharge in violation ofMont.

Code Ann § 39-2-904(I)(b), for the reason that the discharge was not for good cause and

Plaintiffhad completed Defendant's probationary period ofemployment.

29. The termination ofPlaintiff's employment constitutes wrongful discharge in violation of Mont.

Code Ann § 39-2-904(I)(c), for the reason that the Defendant violated the express provisions

of its own written personnel policy.

30. The termination of Plaintiff's employment has caused him to suffer a loss of wages, bonuses,

and fringe benefits.

31. The Defendants engaged in actual fraud or malice in discharging Plaintiff, entitling Plaintiff to

an award ofpunitive damages.

COUNT II: UNLAWFUL DISCRIMJNATION

32. McMartin restates and re-a1leges its answers to Paragraphs I through 33 above as iffully

incorporated herein.

33. Prior to his termination, Plaintiff filed a Charge ofDiscrimination with the Equal Opportunity

Employment Center and/or Montana Human Rights Bureau, alleging that Defendants

discriminated against him by treating him differently in the terms and conditions of

employment due to his disability, in violation of the Montana Human Rights Act, and Title VII

of the Civil Rights Act of 1964, as amended.

34. Defendants discriminated against Plaintiff by treating him differently in the tenus and

conditions of employment and then retaliated against him for complaining about illegal

discrimination based on his disability by terminating his employment in violation of the

Montana Human Rights Act and Title VII of the Civil Rights Act of 1964, as amended, for

which Defendants are liable to Plaintiff for damages in the amount to be proven at trial.

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REOUEST FOR JURy TRIAL

Plaintiffhereby demands a trial by jury of all issues so triable in this action.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffprays for judgment as follows:

I. For an award oflost wages and fringe benefits for a period offoUT (4) years from October

11,2013, together with interest thereon, in accordance with Mont. Code Ann § 39-2­

905(1);

2. For an award ofpunitive damages in an amount to be determined by the jury in accordance

with Mont. Code Ann. § 39-2-905(2);

3. For all damages allowed under the Montana Human Rights Act, Title VII of the Civil

Rights Act of 1964, as amended, including past and future lost income, fringe benefits,

damages for emotional distress, and liquidated damages.

4. For reasonable attorney's fees, costs and disbursements incurred herein; and

5. For such other and further relief that may be just.

DATED this 25th day ofFebruary, 2014

Law Office ofJennifer Dwyer, PLLC

Plaintiff

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