Petition for Writ of Certiorari — Anderson v. Vanguard Car Car Rental Rental USA, Inc. (No. 09-146)

| aH Cl) Supreme Court, U.S.

QO9°*146 MAY 2 8 2009

N°: —_ 9S RICE OF THE CLERK

IN THE

SUPREME COURT of the UNITED STATES

LENNON ANDERSON,

Petitioner

VANGUARD CAR RENTAL USA, INC.

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCU:,

PETITION FOR WRIT OF CERTIORARI

ennon Anderson, pro-se

P.O. Box 8610

Coral Springs, FL 33075

Phone: 954/757-0329

QUESTIONS FOR REVIEW

Whether it is legal for an employer to set

performance standards beyond human

ohysical capabilities and then discharge an

employee for not meeting those standards.

Whether doubt was created to prevent a

dismissal under Federal Rules of Civil Procedure

}2(b) (6).

TABLE OF CONTENTS

QUESTIONS PRESERiFe aeons...

TABLES OF AUTHIQORE i itepcgeatee eet ss ss.

OPINIONS AND ORDERS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS..

STATEMENT OF THE CASE

REASONS FOR GRANTING THE PETITION.........

CONCLUSION

Appendix A: Order denying rehearing

Appendix B: Opinion of the Appeals Court

Eleventh CeCiN ees... AOD. S

Appendix C: Order Dismissing Second

Amended Complaint

: Seconda Amended

il

TABLE OF AUTHORITIES

tT —

rage

Arnold v. Board of Education of Escambia

County, 880 F2.d 305 (1 1'"Cir. 8/10/1989)... 7

Chapman vy. Transport, 229 F.3d

(11 Cir. 10/02/2000)

Conley v. Gibson, 355 U:S. 45-46(1957)

Wagner v. Daewoo Heavy American Corp.

(289 F.3d 1268 (11! Cir. 4/23/2002}

|

OPINION AND ORDERS BELOW

The Florida Southern District Court's Order

dismissing the Second Amended Complaint is

Unpublished. Likewise, the Court's opinion of the

Appeals Court of the Eleventh Circuit, including

the order denying rehearing are also Unpublished.

STATEMENT OF JURISDICTION

The Appellant's motion for rehearing in the

Appeals Court of the Eleventh Circuit was denied

on February 27, 2009. Pursuant to Supreme Court

Rule 13.3, this Court has jurisdiction.

CONSTITUTIONAL AND STATUTARY PROVISIONS

The Thirteenth Amendment to the United States

Constitution:

|. Neither slavery nor involuntary servitude

except as a punishment for crime whereof

the party shall have been duly convicted,

shall exist within the United States, or any

place subject to their jurisdiction

Congress shall have the power to

this article DY ANpropnate le JISh WO

an

}

ys:

Section 1985(3) provides in relevant part: “If fwo or

more persons in any state or terrifory conspire or go

in disguise on the highway or on the premises of

another, for the purpose of depriving, either

directly or indirectly, any person or class of persons

of ihe equal protection of the laws, or of equal

privileges and immunities under the laws; ... the

parly so injured or deprived may have an action

for the recovery of damages occasioned by such

injury or deprivation, against any one or more of

the conspirators.

STATEMENT OF THE CASE

On August 11, 2005, the original complaint

was filed against the defendant. The complaint

included six counts: {{} involuntary servitude under

18 U.S.C. §1584; (Il) discharge without cause under!

18 U.S.C. §1584; (IIl} depriving persons of rights or

privileges under 42 U.S.C. §1985(3); (IV) peonage

under 42 U.S.C. §1994; (V) equitable accounting

Under Florida law; and (V1!) negligence under

Florida law. The defendant filed a mation to

dismiss pursuant to FRCP fei >) (6), which the «

court granted on January 2006. The district

coun dismissed the case Bt it prejudice and

closed the case for adminisirative purposes

pending plaintiff's filng of an amended co

Plainttf filed an amende

The amended compk

d three counts: (I) Depriving pers

rights or privileges Under 42 U.S.C. §1985(3}

j Hy" 4 ; ‘ 4 a}, +, FF"

IEHDeIra4¢ne W) i| f —% lt \é meT@ Ones »

4

J)

Thirteenth Amendment rights under the

Constitution; and (II) and (Ill) Violations of the

Florida Civil Remedies for Criminal Practices Act

under Fiorida Statutes §772.103{3) - (4) (Florida's

civil RICO statute) [D.E. 39]. Defendant responded

by filing a Motion to Dismiss, pursuant to FRACP

12(b)(6), and a Motion to Sinke the Amended

Complaint. The district court dismissed the case

without prejudice as Plaintiff failed lo state a cause

upon which relief could be granted.

Plaintiff fled a Second Amended Complaint,

which included five counts. [he Plaintiff voluntarily

dismissed three of the counts. The remaining

counts were Counts | and IV: Deliberate

indifference in the deprivation of Plaintiff's Fifth

and Thirteenth Amendment Constitutional Rights in

violation of 42 U.S.C. §1985(3); and (IV) Conspiracy

to violate the civil rights of the Plaintiff. Defendant

filed a motion to dismiss the Second Amended

Complaint pursuant to FRCP 12(b)(6) and a motion

to strike portions of the Second Amended

Complaint pursuant to FRCP 12(f), as being

immaterial, impertinent and/or redundant. The

motion to dismiss the Second Amended Complaint

was granted with prejudice on February 29, 2(

The motion to strike was denied as moot

mm Marcn ae) d O¢ Te} tt —

] ] th ¢ rut

vwirmMe

On February 27, 2009 the Appeals Court for

the Eleventh denied rehearing

STATEMENT OF FACTS

|. The district court made a finding that Vanguard

requires servicing of four vehicles per hour to

company standards [District Court's Order

(1/05/06) at page 2]

». The panel of the appeals court also made a

finding that Vanguard's standard requires

detailing four vehicles per hour to meet

quantity and quality [Appeals Court's Decision

at page 2].

3. Nether the aistrict court nor the appeals Court

made a finding that the standard of servicing

four vehicles per hour cannot be met alfhough

the appellant suomitted evidence in detail that

Vanguard failed to demonstrate that its

standards can be met within fifteen minutes or

less [See Second Amended Complaint af 44 1:

Tat Q

Ind | ,]

} 1G pe;ninoner « nplainea that many

employes ited that the standard of se¢

four vehicles ner hor r t f met [Ss

( r 1 Arnie r 1¢ C) r plain 17 44 p q

INd 34

i \¢ eal! YTT 1¢ op } fCUEIKE

manaatg MA : nd Mr. Pelman

Vanguard were terminated within one week of

filing the original complaint

REASON FOR GRANTING THE PETITION

lt is undisputed that Vanguard has sel

standards for ifs service agents, which requires

servicing four vehicles per hour to meet quantity

and quality. Quantity is not a sudsjective standard;

however, the quality portions of the standards ar

subjective. Throughout the second amended

ompiaint the petitioner complained that meeting

the standards of servicing four vehicles per hou!

an be met if quality is ignored. The Appeals

Court of the Eleventh Circuit has held that if is

necessary to grant re-hearing en banc primarily to

decide some important issues that arise regularly i

job discrimination cases. Those issues have to do

with an employer's ability to select ifs own criteria

for making employment decisions and with tne

permussibility of using subjective criteria. See

(Chapman v. Transport, 229 F.3d 1012 (11 Ci

)/Q2/200

ict thata pa ft }Opr

has affirmed tl listrict ris decision in th

ase, then it is nece wy To raise 1 ve itil

egal ft 1 ploye maaras tha

} y ahuman ot J IDA! } ) i ther

arg e empl ornot: hing Tt

ftandarads. At sonat Vid agree

nat nem ver wit Te): OF }

6

employer must be able to give training and

demonstrate that the way in which it wants a

particular job to be completed that it can be

done within the time allotted. The record in this

case at no time showed that Vanguard

demonstrated that its standards of servicing four

vehicles per hour to 45 standards could be met

Vanguard is a company that has operations

across the entire United States, which affects many

service agents. The decision in Chapman is not

consistent with the decision of this case

The en banc court in Chapman \ooked at nis

35-year record and drew inferences relative f

other employees. The petitioner in this case had

no problems with his job performance until

Vanguard took over National Car Rental. The

reason for this is because prior owners of Nationa

Car Rental had standards that were reasonable

not like Vanguard's unreasonable standards (See

second Amended Complaint at j 66]

Ihe Gecision of {he Qppeals Cour! pane

Ihis case is nol Consistent with the decision in

Wagner v. Daewoo Heavy America | Of PD

F.3d 1268(11 Cir 4/23/2002). A motion to dismiss a

omplaint under Federal Rules of Civil Proocedur

12(b) (6) shouid not be granted unless the movi

party has met the burden of showing beyond

IOUDT nat tne pl untiff can prove no sel of fact:

ee Conk isson, 355 U.S. 41, 45-46 (15

| burden has not been met oy Vanguard on |

' j ) Ina 1 nase ge, ented any

that ft naisputed standara

servicing four vehicles per hour can be met. (2)

Vanguard has not presented any evidence as to

why it terminated the employment of two white

managers within one week after the original

’

110)

this case stated that this fact does not create an

complaint was filed. The appeals court pane

issue regarding whether the allegations in the

second amended complaint amount to a “badge

of slavery’. Neither the panel nor the petitioner

knows the true reasons for the terminations

However, any reasonabie person would question

why were they terminated because of doubt:

regarding their actions. It was Mr. Decker who

terminated the petitioner and his supervisor was

Mr. Pelman. Discovery is needed to erase the

doubis. See Arnold v. Board of Education of

Escambia County, 880 F2.qa 305(11'" Cir

8/10/1989). In Arnold, the complaint was

amended several times and discovery wa

allowed. The same snovuld happen to ihe petitioner

mtn 1S¢

re Unit } | | yr] ) AD PDpeé | T if

nth Circuit ha far departed from the

pted and u Ul fiud 1|

eedings, as to call | reise of th

CONCLUSION

} » | | a: )< ) } | I

( | } é 1c TY? i ft r\y t

? , ?

Respectfully suobmilled

ennon Anderson, Pro

P.O. Box 8610

Coral Springs, FL 3307!

(954) 757-0329

App. |

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

LENNON ANDERSON led FEB. 27, 2009)

Plaintiff-Appellant

VANGUARD CAR RENTAL USA, INC

Defendant-Appellee

On Appeal from the United States district Court fo

the Southern District of Florida

FOR REHEARING EN BANC

Before: ANDERSON, CARNLS and WILSON, Circuit

Appellate Procedure}, the Petition(s) for Rehearing

En Banc are DENIED.

/s/ R. Lanier Andersor

R. Lanier Anderson, Judge

App. 3

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

No. 08-11176-CC

(DO NOT PUBLISH)

OPINION

(Non-Argument Calendar}

LENNON ANDERSON (Filed DEC. 23, 2008)

Plaintiff-Appellant,

VANGUARD CAR RENTAL USA, INC

Defendant-Appellee.

the Southern District of Florida

IefsoOn, proceeaing Pro-se,

ssal with prejudice of his 42 U.S.C.

§ 1985(3) civil complaint, for failure to state a «

yoon which relief could be granted. On aGoupea

itisfied the pleadir

App. 4

Vanguard, his former employer, deprived him of

rights or privileges under the Thirteenth

Amendment and by alleging that there was a

racial animus behind Vanguard's actions. In the

alternative, Anderson argues that the district Court

erred by dismissing his second amended

complaint with prejudice, because he could

remedy and defect through amendment.

Anderson was employed by Vanguard Car

Rental USA, Inc. (“Vanguard”) as a service agent.

He was expected to detail four vehicles per hour

while meeting Company quality standards.

Anderson alleges that this requirement was

impossible to meet. He complained to

management and suggested new ways to meet

Vanguard's quality and quantity expectations. On

June 11, 2005, his hours were cut 4] percent. On

July 23, 2005, Anderson was terminated for low

productivity. Anderson asserts that 99.9 percent of

the service agents employed by Vanguard af the

Ft. Lauderdale Internationa! Airport are black.

several of the managers are white. Furthermore

Vanguard contracted with Hispanic “temp”

agents who were not subject to the same

impossible -fo-meet standards as the service

agents employed by Vanguard. Anderson alleges

that Vanguard used “threats of employment

tormination to force job compiction and create

fear in he process." He claims that the impossible

-

-meet work standard amounied toa “badae of

Wery | rnbted ay the Thirteenth Amer dment.”

App. 5

We review de-novo the district Court's grant

of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) for the failure to state a claim,

accepting the factual allegations in the complaint

as true and construing them in the light most

favorable to the plaintiff. D.P. ex. Rel. E.P.v. Sch.

Bd. Of Broward County, 483 F.3d 725, 728 (11'? Cir.

2007). “[P]lro-se pleadings are neld to a less

stringent standard than pleadings drafted by

attorneys and will, therefore, be liberally

construed.” Trawinski v. United Tech., 313 F.3d

1295, 1297 (11! Cir. 2002). “while a complaint

attacked by Rule 12(b)(6} motion to dismiss does

not need detailed factual allegations, a plaintiff's

Obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels

and conclusions, and a formulaic recitation of a

cause of action’s elements will not do.” Bell

Atlantic v. Wombly, 550 U.S. ee oy. 1955,

1964-65, 167, L.Ed.2d 929 (2007) (cifation omitted).

Section 1985(3) provides a remedy for

conspiracy to interfere with civil rights. See 42

U.S.C. § 1985(3). To state a claim under § 1985(3)},

a plaintiff must allege: (1) a conspiracy; (2) for the

purpose of deoriving, eliher directly or indireclly,

any person or ciass of persons of the equal

protection of the laws, or of equal privileges and

immunities under the laws; and (3) an act in

furtherance of the conspiracy; (4) whereby a

person Is etiher injured in his person or property or

deprived of any right or privilege of a citizen of the

United States.” Lucero v. Operation Recue of

App. 6

Birmingham, 954 F.2d 624, 627 {1 t'" Cir. hes lO

prove the second element, the plaintiff must show

a deprivation of rights under a specific statute or

constitutional provision and “some racial, or

perhaps otherwise classbased, invidiously

discriminatory animus behind the conspirators’

action.” Id. At 628.

Anderson faiis to state a claim under 42

J.S.C. § 1985(3) because the second amended

complaint failed to allege any racial or other

discriminatory animus behind Vanguard's actions.

In support of this conclusion, the district court

noted: (1) although the complaint alleges that

Hispanic "temp" workers were not required to

meet the same impossible work standards as other

service agents (detailing four cars per hour), if also

stated that the temporary workers were nof

employed directly by Vanguard: (2) Anderson

never alleged that the temporary workers were

treated differently on account of race; (3) by

stating that 99.9 percent of service agents were

black, Anderson indicated that at least some non

black service agents were subjected to the same

+

impossible-to-meet work standards; and (4)

Anderson characterized Vanguard's motive

“making money’ and “maximizing profit.” We find

no error in the district Court's analysis

Anderson also tails to state a claim under 42

U.S.C. § 1985(3) because he fails fo assert a valid

claim under the Thirteenth Amendment. Anderson

hat the Vanguard's impossible-to-meet

wT. +, ' | rk.

vork standards are a Wqe lavery’ prohibite

App. /

by the Thirteenth Amendment. However,

Anderson did not allege that Vanguard, or its

agents, forced him to work, nor has he sufficiently

alleged any racial animus behind Vanguard's

action. Thus Vanguard's work standards “cannot

be equated to an actual restraint on the liberty of

black citizens that is in any sense Comparable to

the odious practice the Thirteenth Amendment

was design to eradicate.” City of Memphis v.

Greene, 451 U.S. 100, 128, 101 S.Ct. 1584, 1600, 67

L.Ed.2d 769 (1981). Anderson has also abandoned

any attempt to argue that he was subject to

involuntary servitude. Accordingly, Anderson

failed to plead a deprivation of the rights or

privileges under the Thirteenth Amendment.!

When a complaint fails to state a claim for

relief, a district court can grant leave to amend

subject to reasonable conditions and limitations.

Garfield v. NDC Health Corp., 466 F. 3d 1255, 1270

(1 1'* Cir. 2006). However, the leniency afforded

pro-se pleadings "does not give a court license to

serve as a de facto counsel for a party ... or to

rewrile an otherwise deficient pleading in order to

sustain action.” GJR Inv., Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1369 (1 1" Cir. 1998)

(cilation omitted). A distnct court need not allow

App. 8

an amendment: "(1) where there has been undue

delay.... or reoeated failure to cure deficiencies

by amendments previously allowed; (2) where

allowing amendment would cause undue

prejudice to the opposing part; or (3) where

amendment would cause undue prejudice to the

opposing part; or where amendment oe be

futile.” Bryont v. Dupree, 252 F.3d 1161, 1163 (11"

Cir. 2001). We review denial of leave to Meet for

abuse of discretion. Garfield, 466 F.3d at 1270.

The district court noted that Anderson had two

opportunities to amend his complaint but failed to

cure its deficiencies each time. Furthermore, the

district court found that on the facts, as alleged, If

appeared that Anderson would be unable to state

a cause of action by amending the complaint

and, as aresult, additional amendment would be

futile. We discern no abuse of discretion.

Accoraingly, is the reasons set forth above,

we affirm the district court's dismissal with

prejudice of po dana s civil action pursuant to

Federal Rules of Civil Procedure |2(b)(6).

AFFIRMRD.:

App. 9

APPENDIX C

UNITED STATES DISTRICT COURT SOUTHERN

DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION

No. 05-61359-CIV-GRAHAM/SULLIVAN

LENNON ANDERSON (Filed FEB. 29, 2008)

Plaintiff,

VANGUARD CAR RENTAL USA, INC

Detendant.

ORDER

THIS CAUSE came before the Cour* upon

Defendant's Motion to Dismiss Plaintiff's Second

Amended Complaint! [D.E. 45] and Motion fo Strike

Second Amended Complaint [D.E. 46]

THE COURT has considered the Motions, the

pertinent portions of the record, and is otherwise

fully advised in the premises

BACKGROUND

2005, the Plaintiff, proce:

pro se, filed his Original Complaint against

Defendant. The Complaint included six Cou

involuntary servitude under 18 |

WIS Narae NIT yiyt CVWISe )] CS | |

A +

At i *, ae.

depriving persons of rights or privileges Under 42

U.S.C. § 1985(3); (IV) peonage under 42 U.S.C

§1994:; (V} equitable accounting under Florida

law; and (VI} negligence under Florida law.

Defendant filed a Motion to Dismiss [D.E.16], which

this Court granted on January 10, 2006. The Court

dismissed the case without prejudice and closed

the case for administrative purposes pending

Plaintiff's filing of an amended complaint (D.E. 36]

Plaintiff fled an Amended Complaint on

January 9, 2007. The Amended Complaint

included three counts: (I)Depriving persons of

rights or privileges Under 42 U.S.C. § 1985(3)

through deliberate indifference to the Plaintiff

Fifth and Thirteenth Amendment rights Under the

Constitution; and (Il) and (Ill) violations of the

Florida Civil Remedies for Criminal Practices Act

Under Fla. St tal. § (adsenicbi, (Florida's civil RICO

statute) (D.E. 2 9] Defendant responded by filing a

Motion to Dismiss and a Motion to Strike the

Amended ( nolaint. The Court again dismiss:

the case without UCICE , Plaintiff failed to

Vid be GI

1d Amen

ING Amende

aCe

TO LAY

App 1 |

Complaint for purposes of resolving the pending

Motions. The Second Amended Complaint,

however, contains five counts, three of which

have been voluntarily dismissed by the Plaintiff.

See [D.E. 55]. The remaining Counts, | ana lV,

claim: (1) deliberate indifference in the deprivation

of Plaintiff's Fifth and Thirteenth Amendment

Constitutional Rights in violation of 42 U.S.C. §

19851 3}; and (IV) Conspiracy to violate “ civil

rights of the Plaintiff [D.E.]. Defendant has now

filed a Motion to dismiss Plaintiff's Second

Amended Complaint for failure to state a cause

— i h relief may be granted, pursuant to

ed. R. P. 12(b)(6}. Defendant also seeks fo

trike arti is Of the Plaintiff's Second Amended

—

Complaint pursuant to Fed. R. Civ. P. 12(f), as

being immatenial, impertinent and/or redundant

[D.E

| LAW AND DISCUSSION

A. Motion to dismiss Pursuant to Fed. R. Civ. Pro.

12(b)(6)

A complaint snot la not be aismissea wher

there are enouah facts to state a claim to relief

Ihat is plausible on its face. See Bell Atlantic Cor

v. Twombly, 127 S.Ct. 1955, 11974 (May 21, 2007)

|

Once a complaint sates all claims adequately

complaint in the light most favorable to plaintif|

Scheuer v. Rhodes, 94 S.Ct. 1683, 416 U.S. 232

(1974). The threshold of sufficiency that a

complaint must meet is exceedingly low. Anacta

v. Prison Health Serv. Inc., 769 F.2d /O00, 703 (1 1' Cir

1985): Jackson v. Okaloosa County, Fla., 21 F.3d

1531, 1534 (11 Cir. 1994).

In addition, “pro se pleadings are held toa

less stringent standard than pleading drafied by

attorneys and will, therefore be liberally

construed.” Trawinski Vv. United Jlech., 313 F.3d

1295, 1297 (11'" Cir. 2002) (quoting Tannenbaum v

United States, 148 F.3d 1262, 1263 (11'" Cir. 1998))

“This leniency does not give a court license to

serve as a de facto counsel for a party... or to

rewrite an otherwise ceficient pleading in order

sustain an action.” GIR Inv. Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1369 (1 1'" Cir. 1998)

(citations omitted). In fact, a court may dismiss a

plaintiff's complaint with prejudice where th

plaintiff has becn given the opportunity fo ame

his complaint in order to state a claim on whict

relief could be granted, and further attempts f

amen -COMNAaIN' WOUIG be Tuttle oryant Vv

(1 |

F.3d 1161, 1163 |

I

B. 42 U.S.C. §1985(3)

Detrendant asserts that Cunt |

+

efendant acted with deliberat:

oriving Plaintiff of his Constitutiona

4) { .- TURE! 2

4 Q |

3

Y os

Wd) NOT

) .

t ¢

Plaintiff of the same constitutional right:

aisrmssed for Plaintiff's failure to establist

>

‘er ie claim [D.| 45} Ihe < ou.’ agrer

In the Court's first Order granting

Defendants Motion to Dismiss Piainttt

omplaint, the Court explained that the

ection |9%8&

1. Deprivation of Equal Protection Under the Law

Nd doubt that 42

nants itself: it merely

»nignts if

\7 iS [ ey'

» substantive

remedy for violation of the

Great American Federal Saving

Novotny, 99 S.Ct 2345, 2349, 442 U

tyr? ale

provides n

provides a

desianate

Loan AS:

344 37% 79). Indeed, the

f

SUpre me C4

7

§ 1985( 4] CT é Yer SMO Pr Wn

medial statute providing a «

'

» of action when some otherwise

lefined federal right equal protection of ft!

or equal privileges and immunities

der th

|

breached by a «

ene)’ sal

7

CIWS 15

ia. At 3/6 nus. for Plaintiff’:

must assert a deprivation o

fatute or constitutional provision United

of Carpenters ana Jointers of Ame

A 2 |

46.5 's

Brotherhood

Local 610 AFL-Cl

a) Fifth Amendment

rt. inofr

Ihe Fifth Amendment applies to the federal

government only and not to private action:

Anthony v. Franklin County, 799 F.2d 681, 683 n

(11'" Cir. 1986). See also Knoetze v, United States,

634, F.2d 207, 211 (5'" Cir. 1981) (citing Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694 (1972))

(stating that Fifth Amendment protection attache:

“only when the Plaintiff does not dispute that

Defendant is a private corporation and thus is no

a state actor, therefore Plaintiff has failed to stat

q valid Fifth Amendment claim

b) Thirteenth Amendment

In the Original Complaint, Plaintiff alegea

that Defendant hela him ina state of indentured

rvitude, in violation of 18 U:S.! & 1584 and the

Ihirteenth Amendment of the United State

onstitution. In dismissing the Original Complaint

this Court found that Plaintiff did not oroperly stat

1 cause of action as Plaintiff failed to allege

Oohysical restraint, ohysical injutl the

threat of legal ercion through | or th gal

PrO% is required um of inaentul

ervitude under | 1584 and the Thirteenth

t nament {l »Piainnt end

nplaint, Pl iff altered the ft attern ht

maa ried that Ork mial } CQ

Miurteet i a ! }

if Ina TI | i

App. 16

Amended Complaint still failed to assert a valid

claim of involuntary servitude.

The Second Amended Complaint, while

now sole asserting a Thirteenth Amendment claim

and no longer including 18 U.S.C. § 1584, still fails to

correct this deficiency. In the Second Amended

Complaint, Plaintiff alleges that, Defendant used

*...threats of employment termination to force job

completion and create fear in the process" and,

that “[w]ork of this nature (servicing four vehicles

per hour to company standards) is a badge of

slavery prohibited by the Thirteenth Amendment to

the United States Constitution.” [D.E. 44 al § 14}.

This is virtually identical to Plaintiff's allegations in

both the Orginal Complaint and the Amended

Complaint. Piaintiff does not allege anywhere in

the Second Amended Complaint that Defendant

coerced him through the use or threat of physical

restraint or physical injury or by the use or threat of

coercion through law or the legal process. See

U.S. v Kozminiski, 108 S.Ct. 2751, 2765, 487 U.S. 93)

952 (1988). The Supreme Court has held that

coercion does not extend to cases where an

employee merely asserts that his will fo quit nas

been subdued by threat wnich seriously affecis his

future welfare but as to which he still has a choice

however painful. See Kozminski, 487 U.S. at 950

+

(quoting United States v. Schackney, 333 F. 2d

475, 487 (2° Cir. 1964)). Such is the case. herein

Thus, Plaintiff has not properiy alieged tnat his

Thirteenth Amendment rig

App. 17

2. Invidiously Discriminatory Animus

Plaintiff faiis to state a claim under 42 U.S.C.

§1895(3}), on a different ground, as well. In

dismissing the Plaintiff's Original Complaint, this

Court held that, pursuant to the Eleventh Circuit

holding tn Lucero v. Operation Rescue of

Birmingham, 954 F. 2d 624, 628 (11'" Cir. 1992),

Plaintiff was required to allege some racial, or

otherwise class-based, invidiously discriminatory

animus behind Defendant's actions in order to

meet the second elemeni of a cause of action

under Section 1985(3) [D.E. 36 at 7]. This Court

found that Plaintiff failed to properly plead a

cause of action under 42 U.S.C. §1985(3) as the

Original Complaint failed to allege any racial or

other discriminatory animus behind the

Defendant's actions [D.E. 36 at 7]. In dismissing

Plaintiff's amended Complaint, this Court held that

while Plaintiff asserted that, "99.9% of the service

agents.... are blacks,” the complaint still lacked

any allegation of racial or class-based invidiously

discriminatory animus behind Defendant's actions

([D.E. 43 at 5).

In. an effort fo correci this omission, Plaintiff

hat he and "99.9% of Service Aqents

working tor Defendant at Fort Lauderdale

now alleges t

International Airoort are black and they are

subjected to badges of slavery through racial

discrniminalory me yy servicing tour vehicle

hour to defendant's 45 standards” [Of

‘

Plaintiff also alleges that two managemen

App. 18

are white, the other management official is a non-

white of Hispanic origin, and that Hispanic “temp”

agents who serviced vehicles were not held to the

same standard as the Plaintiff and the other

agents. [D.E. 44 at 9] 47-48]. However, Plaintiff

states that the Hispanic temporary workers were

contracted from other counines and were not

employed directly by the Defendant. Id. In

addition, Plaintiff does not even allege that the

Black workers were treated differently than the

temporary Hispanic workers on the account of

race.! In fact, the Plaintiff's facts as alleged in the

complaint, indicate that at least some segment of

the employees subjected to the alleged unfair

working standards were not black.? In addition,

'To the extent that Plaintiff is attempting to allege

employment discrimination by a private employer, whether

directly or through disparate impact, such a claim should be

brought pursuant to 42 U.S.C. 2000(e), et seaq., (Title Vili). The

Supreme Court hela in Great Amer. Fed. Savings and loans

Ass'n v. Novotny, 99 S.Ct. 2345, 2350, 442 U.S. 366, 375 (1979),

thai a violation of Title Vil may not be asserted through a 42

U.S.C. §1985{3) complaint and stated, "[I]f a violation of Title

Vil could be asserted through 42 U.S.C. §1985(3) a complaint

could completely bypass the administrative process, which

such a crucial role in the scheme established by

onaress n Title V | 2s ld. In this case there iSnoINn yication

that Plaintiff has attempted to exhaust any administrative

cedures under Title Vil or to otherwise avail himself to any

tential relief under Title VIl provision:

§ tnat the agents

App. 19

although the Plaintiff has included “racial

discrimination” language in the Complaint, the

Plaintiff characterizes the Defendant's conspiracy

as being motivated by “making money” and

“maximizing profits.” Such motivation does not

satisfy the “invidious discriminatory animus"

requirement of a 42 U.S.C. §1985(3) claim. See

United Brotherhood of Carpenters and Joiners of

Amer., Local 610 AFL-CIO v. Scott, 463 U.S. 825, 839,

103 S.Ct. 3352, 3362 (1983)(opining that cour|

cannot construe §1985(3}) to reach conspiracies

motivated by economic or commercial animus).

Thus the Second Amended Complaint remains

without any cable allegation of racial, or otherwise

class-based, invidiously discriminatory animus

behind Defendant's actions.

Accordingly, Counts | and IV again fail to

state a cause of action under 42 U.S.C. § 1985(3).

Thus, Plaintiff after three attempts has yet to assert

Qa valid claim under the law. Further, tf does not

appear that given the factual scenario presented

by Plaintiff, that Plaintiff is able to state a valid

cause of action by amending the Complaint, and

thus Plaintiff's action is due to be dismissed with

prejudice. See Bryant v. Dupree, 252 F.3d 1161

(11! Cir. 2001) (Holding that dismissal with

working conditions. Sec [D.E. 44 at 4] 46}. Plaintiff nas fared

to aliege that those employees were treated differently tnan

+}, Sry P . )

the Black employees, or were discriminated against be

i ‘thew race

App. 20

prejudice without allowing an amendment is

proper where an amendment would be futile.

Ill. CONCLUSION

Based upon the foregoing, it ts

ORDERED AND ADJUDGED Defendant's

Motion to Dismiss with prejudice is GRANTED [D.E.

45]. Defendant's Motion to strike [D.E. 46] and all

other motions are DENIED as MOOT.

DONE AND ORDERED in Chambers at Miami,

Florida, this 29'» day of February 2008

/s/ Donald L. Graham

Donald L. Graham, Judge

App. 2]

APPENDIX D

UNITED STATES DISTRICT COURT SOUTHERN

DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION

No. 05-61359-CIV-GRAHAM/SULLIVAN

LENNON ANDERSON (Filed AUG. 9, 2007)

Plaintiff,

VANGUARD CAR RENTAL USA, INC.

Defendant.

SECOND AMENDED COMPLAINT

im]

Plaintiff, Lennon Anderson, ("Plaintiff

hereafter) pursuant to the applicable Federal

Rules of Civil Procedures and the July 19, 2007

Order of the Court, hereby sues Defendant,

Vanguara Car Rental USA, Inc., (“Defendant”

hereafter), and states as follows:

PARTIES

Plaintiff was an employee (Service

Agent) of National Car Rental, Inc., {[NCR) located

at the Fort Lauderdale International Airport

Broward County. Florida, from Novernber 1999 to

July 23, 2005. Plaintitf was a manual laborer whose

App. 22

work was characterized largely by physical

exertion

2. Defendant is a global, nationwide, for

profit, corporation that owns and operates NCR

and Alamo Car Rental {ACR) with an office for the

transaction of its customary business situated al

the Fort Lauderdale International Airport, in

Broward County, Florida. NCR and ACR are

“affiliated corporations’ which conduct the affairs

of the defendant.

JURISDICTION AND VENUE

+

3. This case arises under the United

States Constitution and the laws of the United

States and presents federal questions under the

fifth and thirteenth amendment, 42 U.S.C. §1985(3),

and 28 U.S.C. §1331. The Court has authority to

grant injunctive relief pursuant to the Declaratory

Judgment Aci, 28 U.S.C.§2201. The Court has

authority to award cost under 28 U.S.C.§2412

Venue is proper in the district under 28

U.S.C.§1391(e)

DEFINITIONS

(According to the Webster Dictionary and

Historical Documents)

Badaqes of Slavery: The belief and

treating black people as intenor

ft not limited to: What

-

| i

6 ;ONHOWS DI

App. 23

man {bus driver) telling Rosa Parks to give up her

seat ona bus to someone white; separation of

blacks in railcars, public parks, theaters, ...efc., not

allowing blacks to buy homes in white

neighborhoods, baring blacks from getting an

education.

5. Labor is (1) physical or mental

exertion; work. (2) a specific task; (3) a. all wage

earning workers distinguished from capital or

management; b. all manual workers whose work is

characterized largely by physical exertion:

distinguished from white collar or professional

workers.

6. Liberty is freedom or release from

slavery, imprisonment, captivify or any other form

of arbitrary control.

7 Conspiracy is a planning and acting

together secretly, especially for an unlawful or

harmful purpose

STATEMENT OF FACTS

8. On April 10, 2005, the defendant, in

bad faith, suspended the plaintiff from work due to

low production of serviced vehicles (see Exhibit 10

under attached Exhibit A of original complaint) 3

Exhibit A, attached to the original complaint

explains why the plaintiff's production of serviced

App. 24

vehicles have been low and what the defendant

could have done to improve quantity and quality.

9. On April 14, 2005, in good faith, the

plaintiff informed his supervisor, Mr. Rodrigo

Zaldumbide about quality customer service

through production from service agents (see

Exhibit A of fhe original comptaint). Exhibit } under

Exhibit A, attached to the original complaint,

defines the duties of a service agent. Exhibit |

does not define the quantity of vehicles required

to be serviced per hour. Also, the service manual

for service agents does not define the quantity of

vehicles required to be serviced per hour.

LO. The defendant declared in Exhibit 7

under Exhibit A, atlached fo the original

complaint, that the quantity standard expected

from service agents is four vehicles per hour

yielding 32 vehicles in an 8-hour shift. This work

standard is a badge of slavery.

L 1. The plaintiff has made it clear to

defendant's management that the expected

standard is impossible to do, unless the service

agent ignores quality. Ignoring quality not only

violates the duties of a service agent; but, also the

ethical standards of the defendant. Violation of

the ethical standards of the defendant violates the

compliance program of the defendant

|2 The plaintiff had been threatened that

he increase his production of serviced vehicles or

face termination of employment. The plaintiff

discussed at page 3 of Fxhibit A, attached to the

namwal molarnt. that his proactive nature wi

App. 25

not allow him to ignore quality and does not fear

the threat of employment termination.

13. The plaintiff refused to ignore quality,

which resulted in low production of serviced

vehicles. In the past, prior to certification, the Ff.

Lauderdale station failed an audit and Mr.

leonard T. Carey, Operations Manager, called the

plaintiff into his office and reprimanded him for not

properly servicing a vehicle. The vehicle had tne

previous Customer's contract in the glove

compartment.

14. The plaintiff declared at page | under

Exhibit A, attached to the original complaint, that

he and his coworkers are neither robots nor slaves.

The plaintiff does not object to hard work as

demonstrated at page 8 of Exhibit A, attached f:

the original complaint, where he let customers

know that he does not mind doing extra work as

long as they are satisfied. The plaintiff objects to

hard work when it is a badge of slavery and il

cannot be completed within the timeframe

allowed by the defendant, including using threats

of employment termination to force job

completion and create fear in the process. Work

of this nature (servicing four vehicles per hour to

company standards) is a badge of slavery

prohibited by the 13'' Amendment to the United

States Constitution. This amendment prohibits

slavery and involuntary servitude, including all

badges and incidents of slavery

1S Ata June 7, 2005 tele

the presence: As. Vivian Burba

App. 26

Resource Manager, Mr. William Decker, City

Manager, agreed to provide training

demonstrating that four vehicles per hour can be

serviced to company standards.

16. On June 11, 2005, in bad faith, Mr.

Zaldumbide slashed the plaintiff's work hours by

41%. He stated that the plaintiff's hours were being

slashed due to slow business. The plaintiff

explained to him that his explanation couldn't be

true because the defendant was still hiring temps

and fulltime employees (see Exhibit 2 under

attacned Exhibit B, attached to the original

complaint,). Furthermore, the defendant was not

reducing or restructuring its workforce; and, the

plaintiff had seniority over temps and newly hired

fulltime employees. No other employee's hour

were slashed by 41% as the plaintiff's

LT. On June 12, 2005, Mr. Decker said tha}

the defendant does not need the plaintiff. This

occuned when the plaintiff discussed his work

hours being slashed by 41% and issues regarding

training

18 On June 12, 2005, Mr. Eddie, lead

service agent, attempted to demonstrate that

vehicles can be serviced per hour yielding 3?

vehicles serviced te the label standards inansg

hour shift (see Exhibit 2 under Exhibit B, attached t

the onginali « pierces ). He failed to demonstrate

that iy uur vehicles Could be serviced in an hour. |n

acl, he stated that tf is ttmpossible to do. If ar

be done. he would like to know wil at NCk el

service a vehicle in 15 minutes or less fo company

standards to yield 32 vehicles in an 8-hour shift

19 Another lead service agent, Mr.

Dolyres, stated to the plaintiff that servicing four

vehicles per hour to company standards is

impossible to do. He also stated that he can give

management 3? vehicles in an 8-hour shiff bul

they will not be done to company standards. He

also added that in order to give management 32

vehicles that are serviced to company standards

inan &-hour shift, one would have to work like a

slave (see page 2 at Exhibit 2 under Exhibit B

attached to the original complaint)

»() On June 18, 2005, the plaintiff met with

Mr. Decker fo discuss the defendant's new

incentive program that went into effect on July |

2005 (see Exhibit | Under Exhibit B, attached to the

onginal complaint). He stated that there will be no

more raises given. To get extra money, service

agents will have to earn it through the incentive

program. He also stated that service agents are

spending too much time on vehicles. The vehicies

must be serviced quickly in order to meet the

quantity needed for the incentive pay (see page

of Exhibit B, attached to the onginal complaint). |

the meeting. qualiiv aid not seem lo be a concetr

Ar. Decker, wt his a violation of defendant

App LO

teak that we have to Improve Our Qui ntity 1O

make the day easy.

)? Ihe defendant through ls managers

specifically, Mr. Eli Pelman, General Manager, Mi

Decker and Mr. Zaldumbide compelled service

agenis to service four vehicles per hour to

company standards which js impossible to do

uniess quality is ignored. Ignoring qualily is a

violation of defendant's ethics. At times, Mr

Zaldumbide would yell at service agents, including

the plaintiff, that he wants four vehicles per hour as

he walks around on the production tloor. At time

he would invade plaintiff's and other service

agents’ personal space at yell directly in on

face

3 On June 19, 2005, the plaintiff and Mi

Herdy lelfort worked as a team and demonstrated

that through synergy, the defendant can achieve

quantity and qualify (see Exhibit B, allached Io the

original complaint).

4 On June 30, 2005, in qood {

plaintiff reported to the President/CEO, Mr. Willian

the production problem with a solution

(see Exhibit B, attached to the original complaint)

Ihe solution had to do with service agents working

n teams rather inan individually. Tne plaintiff als

discussed that tt will be difficult for employees f

get the incentive under the curr

The plaintiff did nol rr

Corrective Action Notice - Final Warning

regarding low production of serviced vehicles

26 Ihe plaintiff, in good taith, responded

on July 8, 2005. See Exhibit C, attached to the

riginal complaint. The plaintiff complained that

he did not received the training necessary to meel

the company standards for servicing four vehicle:

per hour to yield 32 vehicles in an 8-hour shiff. In

addition, the plaintiff complained that Mr. Decker

did not comply with the June 7, 2005 agreement

which was to provide training demonstrating that

four vehicles per hour can oe serviced t

ompany standards. Mr. Decker did not

acknowledge the fact that the plaintiff's

performance improved under a different

yperahonal procedure as discussed in paragrapt

7 On July 15, 2005, the plainttf, in good

faith, reported to Ms. Burbage, documentaton on

Mr. Decker. See Exhibit D, attached fo the origina

mplaint. A question was proposed to M

Burbage: specifically, “Is Mr. Decker's action

iustitiied nmsidgering the fact that he did nol

comply with the June agreement which was 1

orovide training Gemonstrating that four vehicle

per hour can be serviced to company standara:

Ind thereby y wna 32 velnicles oer 8 hour shift

28. lt is the defendant's practice to have

employees sign off on important issues such as

training and receiving important documents. For

example, the plaintiff had to sign that he received

the booklet containing the defendant's corporate

compliance policies and that he attended the

training seminar for the corporate compliance

policies which was taught by Mr. Carey; however,

the plaintiff never signed any document that he

received training demonstrating that four vehicles

per hour can be serviced to company standards

nor did he receive a certificate from the

defendant indicating that he has been trained to

service four vehicles per hour to company

standards

29. Another example of the plaintiff

signing off on a document is the “Customer

Service Memo” shown at Exhibit 9 under Exhibit A,

attached to the original complaint.

30 Furthermore, with the training

received from the defendant, the plaintiff was

able fo service a vehicle 10 company standard:

within 45 minutes to an hour. This is the reason why

the plaintiff's production has been low. See Lxhibit

4 under Exhibit A, allached to the ongitnal

omplaint. Nowhere Is If documented on the

certificate that the plaintiff had been trained t

service four vehicles per hour to Company

Standards. there was no training given that

demonstrated that four vent les pel hour ¢

ed to company standards

ihe plaintiff knows of no empk

» 10 get a venicl erfified ir

minutes orless. Toreceive the certificate, the

plaintiff had to service six classes of vehicles:

economy, midsize, luxury, SUV, minivan and

convertible. To service these vehicles for

certification, none took 15 minutes or less. On this

basis, if was not possible for the plaintiff to service

four vehicles per hour fo company standards,

unless he ignored quality which would cause

complaints from customers and violated

defendant's ethics, including violation of the

“Customer Service Memo" discussed at paragraph

29? above.

32. During the plaintiff's last week, he

asked several coworkers how they produced high

numbers. Mr. Jean responded by stating that he

cannot do everything and produce four vehicles

per hour. This fact is supported by a video sent to

Ms. Burbage which shows an employee ignoring

quality to service 40 vehicles in an 8-hour shift.

33. On July 17, 2005, another service

agent, Ms. Twanda, fold fhe plaintiff that servicing

four vehicles per hour lo Company standards

couldn't be done unless you ignore things. She

also stated that she feels like asave

+4. On July 23, 2005, Mr. Keith, lead

service agent ai ACR, said to the plaintiff that if

service agents do all that is required, then the

detendant will not be able to meet the quantity

vehicles required for the customers

When service agents ignore quality

Hs Complain thus tigqgenng QsP (quality

gram). lf there is « SP in any mont

nts do not receive the incentive

requirea was met. Ur

App. 32

the current operational procedures, service agents

are actually in bondage under badges of slavery

because if they service vehicles to meet quantity,

Quality is ignored and QSPs prevents the incentive

pay. If service agents work on quality to avoid

QSPs, quantity prevents the incentive pay.

36. Exhibit E, aitached to the original

complaint, shows a QSP for the month of July 2005:

July 9, 2005, 1 QSP, mechanical/electric windows

not working. Other QSPs can be seen at Exhibit 8

Under Exhibil B, attached to the original complaint.

af. The defendant is aware of the quality

problems. See “Customer Service Memo” from Mr.

Carey at Exhibit 9 under Exhibit A, attached to the

original complaint.

38. The “Customer Service Memo" has not

been retracted by the defendant. The best is

expecied from service agents. Based on thts

memorandum, ignoring quality is not only

unethical, but if is unacceptable. The

memorandum states, ‘Everyone will be expected

to offer the highest level of service to our

customers. We [the defendant] will no longer

accept anything less than this” (emphasis added).

The memorandum did not state that service

agents must service tour vehicles per hour to yield

32 vehicles in an &-hour shift, and ignore quality

Ihe memo adaressed quality, not quantity.

19 On July 23, 2005, in bad faith, Mr

Decker terminated the plaintiffs employment in

e of Mr. Zaldumbide claiming low

hich was approved by Ms. Viviar

App. 33

Burbage. The memorandum !o this effect is Exhibit

F, attached to the original complaint. Mr. Decker

did not give the plaintiff anything in writing at the

time of termination. The low productivity of

vehicles serviced was not the plaintiff's fault; buf, if

isa problem within the defendant's management.

The defendant cannot have quantity and quality

Under its current operational procedures.

40. The defendant's current operational

procedures for service agents is a lose/lose system.

Itis a system that operates on badges of slavery.

the operational procedures currently in place for

service agents will work if customers return their

vehicles meeting the defendant's 45 standards.

Getting returned vehicles that already meet the

defendant's 45 standards is rare; a service agent

may not have to fill up the gas tank because the

customer opted to return the vehicle’s fuel tank

full; also, the service agent may not have to fill up

the washer fluid tank because !f was already full:

however, there will be other work for the service

agent to do such as vacuuming, removing stains

from the carpet and mats: removing bugs from the

front end of the vehicle and windshield etc..,

based on the 45 standards. Asample of what a

service agent encounters on a dally basis is shown

In Exhibit G, attached to the original complaint.

This vehicle was serviced by the plaintiff

4 The defendant's managers, Mr.

Pelman. Mr. Decker and Mr. Zaladumbide aive the

imoression that the service agent's job 1s simple

App. 34

and very liffle cleaning is needed which is not true.

The defendant's standards require checking the

vehicles for proper operations such as checking

the tire pressures, lights, horn, air condition, etc..

These are requirements which most service agents

do not do and these managers (Mr. Pelnnoan, Mr.

Decker and Mr. Zaldumbide) do not care because

they allow vehicles fo be serviced and given to

the customers that do not meet all 45 standards,

which violates the customer service memorandum

and the expectation of Mr. Lobeck. For example,

a customer found marijuana in a rental vehicle

which caused adjustment of the customer's

contract (see page | of Exhibit B, attached to the

original complaint). This isa management

problem which the plaintiff explained at page 2 of

Exhibit B, attached to tne original compiaini.

42. With the 15 minutes time frame given

by the defendant to service a vehicle, the Current

operational procedures do not work to deliver

quantity and quality when vehicles are returned

with lots of sand on the carpet and mats or spilled

drinks on dash board, seats, carpet and mats

which create stains, not to mention the garbage

leff behind by the customers, including finger prints

on the windows, etc.. The defendant's example in

the service agent's training manual has a

completion time of 30 minutes (see Exhibit 34

under Exhibit A, attached to fhe original

complaint).

43 The defendant has a system for

»qaents that works if the returned vehicles

App. 35

already meet the 45 standards (best case

scenarios) which is rare; but, the Current

operational procedural system fails which ts very

common for service agents. Under the current

operational procedures, more than 15 minutes per

vehicle is needed to properly service a vehicle to

the expected standards of the defendant,

pursuant to the 45 standards, pursuant to the

“Customer Service Memo" and pursuant to the

expectation of Mr. Lobeck that all associates

provide quality service throughout every level of

the defendant with business conduct at the

nighest standards attainable both legally and

ethically (see Exhibit H, attached to the original

complaini).

44. The plaintiff was suspended from work

with the threat of employment termination if his

production of vehicles did not improve.

45. The plaintiff and all the employees

mentioned above in paragraphs 18, 19, 32, 33 and

34 are all of the black race.

46. 99.9 percent of the Service Agents

located at the Fl. Lauderdale International Airport

for Vanguard Car Rental are blacks and they are

subjected to badges of slavery through racial

discriminatory means by servicing four vehicles per

hour to defendant's 45 standards.

47. The defendant contracted temps

from Brazil and other latin countnes to assist with

servicing the vehicles tn order to meet the quantity

tf vehicles needed daily. Each Hispanic woula

service a vehicle, just as the plaintiff, so that if

App. 36

could be rented by customers of NCR. The

Hispanic service agents, however, were not

subjected to the same 45 standards as the plaintiff

and other service agents who were employed

directly by the defendant. Additionally, they were

not even required to wear uniforms while fhe

plaintiff could not report to work without his

uniform. Af times, the Hispanic service agents

would comment to the plaintiff that “National

have you working like a slave” which created a

sense of inferiority.

48. Mr. Eli Pelman and Mr. William Decker

are whites and neither of them has demonstrated

that the defendant's standard of servicing four

vehicles per hour can be met. Nonetheless, they

inflicted badges of slavery on the plaintiff.

49. Mr. Rodrigo Zaldumbide is non-white

of Hispanic origin. He is, however, not of the black

race.

SO. On several occasions, Mr. Rodrigo

Zaldumbide placed in the plaintiff's workstation

vehicles that were very dirty and he would

comment as he existed the venicles that he wants

the vehicles in 10 minutes. Sometimes he would

say five minutes. He was told by the plaintiff that

he couldn't have them in 10 minutes considering

the condition of the vehicles.

S1. On several occasions, Mr. Rodrigo

Zaldumbide called the plaintiff. a “turtle” for not

producing vehicles in 10 minutes.

App. 37

Si, On several occasions, Mr. Rodrigo

Zaldumbide would come over to the plaintiff and

ask him how many hours he ts working for the day.

When he was told 15 hours or 12 hours, he would

respond that he wants 60 vehicles or 48 vehicles,

respectively, at the end of the shiff. Since my hours

were slashed by 41%, | was werking 8-hour days

and Mr. Zaldumbide would state that he wanted

32 vehicles at the end of the shift.

$3. Mr. Eli Pel man, Mr. William Decker and

Mr. Rodrigo Zaldumbide created a hostile working

environment for service agents, including the

plaintiff, because service agents under badges of

slavery were compelled to do labor beyond

human physical limitation wifh inducement of fear

and the threat of employment termination. This

treatment is like operating a machine that was

designed to produce 4 widgets per hour at a rate

of 10 widgets per hour. Operating the machine

beyond its designed capacity may work for a short

time; however, if is bound to fail. Demanding that

the plaintiff produce work that is beyond human

ohysical limitation is putting the plaintiff health at

risk just as slaves.

54. Ihe plaintiff has never been duly

convicted of any crime to be treated in the

manner in which he was treated by the defendant

which violated the plaintiff's constitutional nght:

55 Mr. Eli Pel man and Mr. Willam Decker

were ferminated from employment with Vanguard

Car Rental within one week after service of the

Onan | er my lour t AUQUS] 1Y POO‘

App. 38

S6 Ihe defendant has violated its own

procedures in the disciplinary process. The

disciplinary process is shown in Exhibit |, attached

to the original complaint.

57. The plaintiff had to sign off that he

received the associate handbook. The associate

handbook established contractual rights between

the plaintiff and the defendant which have been

breached.

58. There are four steps in the corrective

action process. The defendant complied with

Steps Il through IV; but, has failed to comply with

Step |, Coaching Discussion. Step Il can be

reviewed at Exhibits 7 and 8 under Exhibit A,

attached fo the original complaint. Step Ill can be

reviewed at Exhibit C, attached to the original

complaint. In the writing discussions the defendant

failed to give specific instructions on how to

service four vehicles per hour to company

standards. In fact, none of the written

documentations specifically stated how to service

four vehicles per hour to company standards and

none specifically stated what the defendant had

done to aid the plaintiff in improving his

productivity. Step IV can be reviewed at Exhibit |}

attached to the original complaint.

59 Ine definition of coaching pursuant f

the Webster dictionary is to train intensively by

Instruction, demonstration, and practice

Coaching to service four vehicles per nour ft

ompany standards was never provided by the

defendant and was never siqned off by the

App. 39

plaintiff. The defendant failed to instruct and

demonstrate that four vehicles per hour can be

serviced to company standards.

60 The defendant failed to acknowledge

the improvement of the plaintiff regarding an idea

that was presented and tested by the plaintiff on

June 19, 2005 in which quantity and quality can be

achieved.

61. The defendant on July 3, 2005 stated

through Mr. Decker that efforts were made by the

defendant and the plaintiff did not improve. Mr.

Decker's sfafement So the fact that the

olaintiff was never trained to service four vehicles

per hour to company loutenaie Mr. Decker’'s

statement also contradicts the fact that he did not

comply with the June 7, 2005 agreement to

provide training demonstrating that four vehicles

per hour can be serviced to Company standaras.

Mr. Decker's statement also contradicts the fact

that the plaintiff did improve as discussed above

at paragraph 23

6? The fendant through Ms. Burbage

failed to instruc . Mr. Decker to provide training

er the plaintiff informed her that Mr. Decker did

ot provide the training pursuant to the June 7

2005 agreement which was to demonstrate that

hictes per hour can be serviced [to

mpany standards (see Exhibit C, attached to

onginal complaint).

63 Ihe defendant fatle«

plaintiff's low production of service

olely the fault of the platr

App. 40

defendant considering the facts regarding the

defendant's lose/lose operational system

procedures for service agents based on badges of

slavery, the customer service memorandum

requiring quality at the highest level, Mr. Lobeck's

expectation requiring quality service at the highest

standards attainable (both legally and ethically)

and the lack of providing proper training to meet

the standard of four vehicles per hour serviced to

company standards.

64. Ihe plaintiff was never offered a

severance package

65 Ihe defendant failed to establish just

cause when the plaintiff was terminated on July

23, 2005.

66 Prior to February 28, 2003, the plaintiff

under ANC (former parent company of ACR and

NCR) was never reprimanded for vehicle

produc tion, was never Corry elled to service four

vehicle per hour to company standards through

badges of slavery, and was never susoended fron

WoOrk

7 Ihe hagages of slavery began after

February 28, 2003, under the defendant. |t

continued up fo and including plaintiff's

employment termination date, July 23, 2!

background discussion at page 2 und

attached to the original complaint)

O8 Ihe defendant still practi

javery with existing servic

69 he plaintiff had n

quitting his employment with th

because he has ideas on how the defendant can

save millions of dollars and generate billions

70 The plaintiff submitted many

multimillion dollar ideas to defendant's

management on how millions could be saved by

making simple changes in its operations. In fact

the plaintiff's idea submitted under Exhibit A

attached to the original complaint, has the

potential to generate $1.44 billion for the

defendant (see page 2 at Exhibil A, atlached to

the original complaint).

7] Ihe defendant's conduct has caused

the plaintiff tremendous mental stress: stress from

iis badges of slavery; stress from slashing the

plaintiff's work hours by 41%; stress from terminating

the plaintiff's employment without just cause and

stress from preparing this suit

Ine defendant puts making money

over the ¢ ty of its customers. For example

service agents do not check tire pressures for eact

as does the plaintiff (see page 5 of Exhibit

attached to the original complaint)

The defendant puts making money

ivilrights of its employees, incluaing the

plaintiff, by inflicting badges of slavery, although

ntormed defendants management of

TVSC ¢ nauct

Ihe plaintitt ret

hn result

App. 4.

15 As of September 3, 2006, the

defendant still requires service agents to service

vehicles for its customers with an emphasis on

quality, not quantity. See attached Exhibits A, B

and C of the Amended Complaint. Exhibits A, B

and C are job postings for Service Agents in

Oklahoma City (Oklahoma), Huntsville (Alabama)

and Dallas (Texas). Af no time did the job

descriptions state how many vehicies per hour are

required to be serviced. The job descriptions are

identical to plaintiff's job description prior to his

employment termination. Quality includes making

sure vehicles are properly cleaned (all exterior and

interior windows and mirrors, vacuum interior, floor

seats ashtray and trunk) and that safety

equipment (lights, tires, brakes, wipers, horn

belts, mirrors and back-up lights} are in proper

working condition.

16 As of December 19, 2006, the

lefendant still requires service agents to se

vehicles for its customers with an empha

quality, not quantity. S

Amended Complaint

Belween July |

007 the detendant advertis

service s. The defer

rvice four vehicles pe

standards. See attached Exhibit A

18 NCR has 2! locations in Fonda ana

yOproximately 3,000 locations in the United State:

anada, Europe, Latin America, the Caribbean

Asian-Pacific, Africa anda Australia

Lauderdale International Airport lov

apacity to accommodate approximately

ervice agents: with 2] locations in Florida

Stimated that there are 378 service agents |

Florida and 9,450 service agents in the Unit

States of America that are affected by

Cy fendants badae: { rsiavery

COUNT |

Deliberate Indifference

Ine allegations set forth u

re realleged and incorpo

& Ihe defendant through it manager's

acted with deliberate indifference violating the

plaintiff's constitutional nights guaranteed by the

Wn and 13'* Amendment to the United slates

Constitution which was by motivated greed

relaliation and racial discrimination

83 Ihe defendant ts liable to the plaintiff

under 42 U.S.C. $1985(3) which states in part ...if

lwo or more persons in any state or territory

conspire for the purpose of depriving, either

directly or indirectly, and person or class of persons

of the equal protection of the laws, or of equal

orivileges and immunities under the laws, ....fhe

party so injured or deprived may have an action

for the recovery of damages occasioned by such

injury or deprivation, against any one or more of

the conspirators

84. The plaintiff informed defendant's

management on several occasions about its

intentional wrong doings and even offered

solutions fo the problems. Nonetheless

defendant's management showed its indiffere:

»y Cutting plaintiff's work hours by 41%,

naing innumane w

>MDEe’IS ¢ »f

Oo themselyv

At )P 45

and other service agents by focusing on making

money through racial discrimination under badges

of slavery and promising rewarding opportunities

through a deceptional incentive pay program.

New hire (employees) were not told up front that

they must be able to service four vehicles per nour

to company standards. The job postings shown in

Exhibit’s A, B, C and D (attached to the Amended

Complaint) and attached Exhibit A for service

agents has three “must” requirements which does

not include the defendant's standard of four

vehicles per hour serviced to company standards

because such standard is a badge of slavery

prohibited by the 13'" Amendment to the USS.

Constitution.

86 Mr. Lobeck stated in his written

presidential address to all employees that VCR ts tn

compliance will all laws. His statement contradicts

the fact that VCR employs racial discriminatory

practices in violation of the 13'" Amendment to the

U.S. Constitution and 42 VU.S.C.§1985(3}.

87. Ihe defendant exposed the plaintiff

and other service ba gabe to substantial risk of

serious harm such as health risks including

exhaustion, strokes, h eee attacks and brain

damage by demanaing the plaintif and other:

work »eyond ther physical and human

apa ilities as slaves and robots

88

App. 46

pay was not obtainable under defendant's

operational procedures, which included badges

of slavery

89. Ihe defendant failed to make a good

faith effort to investigate the problems and fix

them. Management at the highest level (Mr.

William Lobeck) was informed about the problems:

but, through deliberate indifference, did nothing

other than terminate the plaintiff in retaliation.

90. The defendant's actions, orders,

approvals, and omissions in violation 42

U.S.C.§1985(3) give rise to a Cause of action for

damages directly under the constitution.

COUNT Il

Outrageous conduct

91. The allegations set forth in paragraphs

1 through 90 are realleged and incorporated

herein by reference.

92. The defendant wantonly intended to

terminate the employment of the plaintiff because

the plaintiff would accept being treated as if he is

f was threatened with

a slave. The plaintif

employment fermination

93 Plaintiff's work hours were reduced

significantly

94 Plaintiff was suspended and

eventually terminated because he refu:

allow the defendant to treat him as if he |

r cause him feelings of inferiority

App. 47

9S. The defendant has shown no remorse

regarding its policy for service agents after

terminating the plaintiff without just cause;

because, two years later, the defendant ts still

recruiting service agents without letting them know

via the job posting that service agents must be

able to service four vehicles per hour to company

standards which is impossible to do within 15

minutes, unless quality is ignored which is not

tolerated pursuant to defendant's quality

assurance program.

96. The defendant's actions, orders,

approvals, and omissions in violation of 42 U.S.C.

1985(3) give rise to a cause of action for damages

directly under the constitution.

COUNT III

Breach of Contract

97. The allegations set forth in paragraphs

| through 96 are realleged and incorporated

herein by reference.

98. The defendant established a contract

with the plaintiff via the Associate Handbook

99. The defendant breached tts contract

with the plaintiff regarding disciplinary procedui

The defendani failed to comply with Step | of tne

corrective action process

100. The defendant's actions,

approvals, and omissions in violation o

1985(3) give rise to a cause of action for

directly under the constitution

App. 48

COUNT IV

Conspiracy

10 The allegations set forth in paragraphs

| through 100 are realleged and incorporated

herein by reference.

102. The defendant through it managers

conspired to vi dilate the civil rights of the plaintiff

and other service agents and still continues today

to conspire by focusing on making money through

racial discriminatory practices and promising

rewarding opportunities through a deceptional

incentive pay program. New hires (employees)

were not told up fron that they must be able to

service four vehicles per hour to company

standards. The job postings shown in attached

Exhibit A for service agents has three "must"

requirements which does not include the

defendant's standard of four vehicles per hou!

serviced to company standards because it Is a

badge of slavery prohibit by fhe 13'" Amendment

to the U.S. Constiiution.

103. With 99.9 percent of defendant's

service agents being blacks, the conspiracy theory

of maximizing profits through racial discrimination

Under the badges of slavery is a reality for the

defendant because service agents including the

plaintiff were compelled to produce four vehicles

per hour to company standards while Hispanic:

were nol held fo the same oppressive slandara

104 The defendant's actions, orders,

-~ “ic ~ | ‘ ‘ é

INA OMISSIONS IN VIO!lAaTION Of 4.

App. 49

U.S.C.§1985(3) give rise to a Cause cf action for

damages directly under the constitution.

COUNT V

Wrongful Termination

iOS. The allegations set forth in paragraphs

| through 104 are realleged and incorporated

herein by reference.

106. The defendant did not provide the

training necessary to show that service agents can

service four vehicles per hour to yield 32 vehicles in

an 8-hour shift and meet the quality standards

expected of service agents. Also, the defendant

did not follow its own procedure in the disciplinary

process.

107. —- Plaintiff's employment termination was

motivated by greed, malice, racial discriminatior

and other improper purposes.

108. The defendant's actions, orders,

approvals, and omissions in violation of 42 U.S.C.

1985(3) give rise to a cause of action for damages

directly under the constitution.

PRAYER FOR RELIEF

WHEREFORE plaintiff respectfully requests thal the

are) eT

Permanently enjoin defendant from

ntlicting involuntary servitude Upon service agents

)

Permanently enjoin defendant from

standards without proper training

At ) f ) 50

3 Reasonable compensation to the

plaintiff should the defendant implement any of his

ideas

4. Award plaintiff $1,036,152.00 for

compensatory damages.

S. Award plaintiff costs.

6. Grant such other and further relief as

the Court deems equitable and proper.

The plaintiff requests a trial by jury!

Respectfully submitted,

/s/ Lennon Anderson

Lennon Anderson, pro-se

PO Box 8610

Corai Springs, FL 33075

Phone 954/757-2021