PLAINTIFF’S ORIGINAL COMPLAINT

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF TEXAS

 

OMOTAYO O. KAYODE,     §

Plaintiff,     §

  • CIVIL ACTION NO.
  1.     §

CLARA IRIELE; AMAZING     §

CAREGIVERS HOME HEALTH INC., and     §

TEXAS WORK COMMISSION,     §

Defendants.     §

 

PLAINTIFF’S ORIGINAL COMPLAINT

NOW COMES Omotayo O. Kayode, Plaintiff, complaining of Defendants, Mrs. Clara Iriele, Amazing Caregivers Home Health Inc., and the Texas Work Commission and for cause would show the Honorable Court as follows:

  • NATURE OF THE ACTION 
  1. This is an action brought by the Plaintiff against the Defendants, for their failure to pay the Plaintiff her unemployed benefits under Section 207.021 of the Texas Unemployment Compensation Act.
  2. The Plaintiff alleges that the Defendants failed to pay her unemployment benefits after she involuntarily quit her job for Covid-19 related reasons. For this cause of action and others discussed herein, the Plaintiff seeks compensation.

  • PARTIES
  1. Plaintiff Omotayo Kayode is a female adult of sound mind and a resident of 19518 Yucca Valley LN Cypress TX 77433-7520.
  2. Defendant Clara Iriele, is a female adult of sound mind and a resident of Insert Clara’s Address. She is being sued in her individual and official capacity as the owner of Amazing Caregivers Home Health Inc.
  3. Defendant Amazing Caregivers Home Health Inc. is the Plaintiff’s employer. Its physical address is Insert Amazing Caregiver’s Address.
  4. Defendant Texas Work Commission (TWC) is the state agency charged with overseeing and providing workforce development services to employers and job seekers of Texas.

  • JURISDICTION AND VENUE
  1. Jurisdiction exists in this court pursuant to Article V, Section 8, of the Texas Constitution.  
  2. Venue is proper in this court because the causes of action occurred within the Southern District of Texas.

  • PRECEDENCE OVER OTHER CIVIL CASES
  1. Texas Labor Code section 212.208 states that a Texas Workforce Commission judicial review action, “shall be given precedence over all other civil cases except cases arising under the workers’ compensation laws of this state.” Therefore, Plaintiff requests a prompt, preferential setting the final trial to the court, pursuant to this mandate.

  • NO FEES
  1. No filing fee or other fee can be charged. Pursuant to Texas Labor Code Section 207.007, neither a court nor an officer of the court may charge Plaintiff a fee to file this suit, to obtain citation, or have the citation served on Defendants. Texas Labor Code states:
  1. An individual claiming benefits under this subtitle may not be charged a fee in a proceeding under this subtitle by:
  1. The commission or a representative of the commission, or
  2. A court or an officer of a court.
  1. An individual claiming benefits in a proceeding before the commission or a court may be represented by counsel or another authorized agent. Counsel or an agent representing an individual under this subtitle may charge and collect a fee for the counsel’s or agent’s services.
  2. A person who violates this section commits an offense. An offense under this section is punishable by:
  1. A fine of not less than $50 and not more than $500;
  2. Imprisonment for not more than six months; or
  3. Both a fine and imprisonment.

  • STANDARD OF REVIEW
  1. Official review of the commission’s determination in this case is by trial de novo based on the substantial evidence rule. Texas Labor Code Section 212.202.
  2. Cases reviewed under a substantial evidence trial de novo standard have only a question of law. Fireman’s and Policeman’s Civil Service Comm’n v Brinkmeyer, 662 S.W.2D 953, 956 (Tex. 1984).
  3. A court may set aside the Commission’s decision if it finds the decision was “made without regard to the law or the facts and therefore was unreasonable, arbitrary or capricious.” Mercer v Ross, 701 S.W.2d 830, 831 (Tex. 1986). When the Commission applies an improper legal standard then that standard can be reviewed by a court.

  • REQUEST FOR DISCLOSURE
  1. Plaintiff requests that Defendant disclose, within 50 days of the service of this request the information or material described in Rule 194.2.
  2. Pursuant to Texas Rules of Civil Procedure 1990.2(b)(6), Plaintiff requests disclosure of all documents, electronic information, and tangible items that Defendants have in their possession, custody, or control and that they may use to support their defense of Plaintiff’s claims and that they may have used in arriving at their decision or to support their defense of Plaintiff’s Texas Work Commission filing. A request for disclosure made pursuant to this paragraph is not considered a request for production.

  • FACTS
  1. The Plaintiff started working for Amazing Caregivers Home Health Inc. on March 4th 2019. The Plaintiff met Clara, Mrs. Osinowo (the patient the Plaintiff cared for) and Ms. Osinowo (adult daughter of the patient) who coordinated the patient’s care. This meeting was at the home of Ms. Osinowo.
  2. Clara completed review of the Plaintiff’s paperwork and provided orientation on the same day. Following this one meeting, the Plaintiff never met her in person again. They still communicated over the phone.
  3. The Plaintiff worked in the private residence of Ms. Osinowo where Mrs. Osinowo (the patient) and other family members also lived.
  4. Ms. Osinowo (patient’s daughter) acted as supervisor and intermediary between the Plaintiff and Clara. She acted as Clara’s agent and was the Plaintiff’s de facto supervisor.
  5. The Plaintiff’s job was to aid the patient with meal preparations, physical therapy, giving medications, personal hygiene, and assisting with other functions within the patient’s home. The Plaintiff used to return to her home when the patient’s daughter returned from work.
  6. The Plaintiff’s son, Yusuf Kayode, is an active duty member of the U.S Army. He is stationed in El Paso, Texas. He is a single parent with two minor children aged 6 and 8 years old who live with the Plaintiff. These children were normally in school or after-school program while the Plaintiff worked. On March 13th 2020, all CyFair ISD schools were closed due to Covid-19. 
  7. Following Covid-19 outbreak and news reports, the Plaintiff was worried about personal health and risk of Covid-19 working in a private residence with exposure to several people in the patient’s household. The Plaintiff expressed her concerns to Clara with a voicemail message. She also informed Ms. Osinowo (patient’s daughter, de facto supervisor and intermediary) on March 15th 2020 of her health concerns, lack of PPE and concerns for her minor grandchildren following announcement of school closures. She also needed to get medicine, food, and other supplies as lockdown loomed.
  8. Ms. Osinowo later informed the Plaintiff that she sent a text message to and spoke with Clara about the Plaintiff’s concerns. Clara and Ms. Osinowo planned for a new hire to replace the Plaintiff. They asked the Plaintiff to hang on until a replacement was hired. The Plaintiff agreed and continued working without any personal protective equipment until March 25 2020.
  9. The Plaintiff’s last day at work was March 25th 2020, with the new caregiver starting work the next day, March 26th 2020.
  10. In April 2020, (you have to provide a specific date) the Plaintiff filed for unemployment benefits at the Texas Work Commission. Clara called the Plaintiff to harass her about filing for unemployment benefits.
  11. On April 14th 2020, Texas Work Commission issued a determination in favor of the Plaintiff.
  12. On July 1st 2020, Texas Work Commission issued a determination that disqualified the Plaintiff under Section 207.045 of the Texas Unemployment Compensation Act because she voluntarily resigned without good cause connected to the work.

  • HEARING BEFORE THE TEXAS WORK COMMISSION
  1. The Hearing Officer ignored the fact that the Plaintiff followed clear health warnings from all levels of government regarding a presidentially declared deadly pandemic disease that could kill her, especially in an unsafe environment with no PPE, no training, and no plans to care for suddenly out of school minor children.
  2. The Hearing Officer failed to allow the Plaintiff to pose all her questions to Clara to demonstrate that she had knowledge of the Plaintiff’s concerns by abruptly ending the hearing after only one question.
  3. The Hearing Officer failed to ask the Plaintiff if she has other questions or evidence and abruptly ended the hearing after scolding Clara for lack of personal protective equipment.
  4. The Hearing Officer ignored Clara’s clear statement that she was informed of the Plaintiff’s concerns on care for children whose father (single parent) is on active military duty in El Paso, Texas. 
  5. The Hearing Officer ignored the fact that regardless of whether the employer was informed, the emergency nature of the pandemic renders the Plaintiff’s work separation as involuntary in accordance with Section 207.045 of the Texas Unemployment Compensation Act.
  6. In issuing the determination, the Hearing Officer relied on Appeal No. 5156-AT-69 (affirmed by 589-CA-69 as precedent. It was held that when a claimant leaves her work to care for her children during the summer while school is out, the separation is voluntary and without good cause connected with the work. The Plaintiff would like to distinguish the facts of that case to this present one. In the precedent case, the claimant left her work to care for her children while in this case, the Plaintiff left her work for health reasons related to a national emergency. In the precedent case, schools were closed as per the school calendar while in this case, schools were closed as a result of the Covid-19 pandemic that limited human interaction. The Hearing Officer erroneously applied precedent.
  7. There is no evidence that supports the determination of the Texas Work Commission issued on July 1st 2020.

  • GOOD CAUSE FOR QUITTING EMPLOYMENT
  1. Section 207.045(a) of the Texas Unemployment Compensation Act stipulates that an individual is disqualified for benefits if the individual left the individual’s last work voluntarily without good cause connected to the individual’s work.
  2. Good cause means a compelling reason, one that would have caused someone who truly wanted to keep the job to quit.
  3. Covid-19 is an unprecedented global pandemic. Human interaction had to be limited to prevent the spread of the deadly virus. U.S Department of Health & Human Services, the World Health Organization and other agencies advised people to stay at home and avoid contact with other people to contain the spread of Covid-19. People above the age of 55 were said to be at a very high risk of succumbing to the virus in case they got infected. The Plaintiff was 67 years old at the time.
  4. On March 13 2020, former President Donald Trump declared Covid-19 a nationwide emergency pursuant to Section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act.
  5. The Stafford Act defines an emergency as any occasion or instance for which, in the determination of the President, Federal assistance is needed to supplement State and local efforts and capabilities to save lives and to protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.
  6. The President declared a national emergency to save lives and to protect public health and safety. 
  7. The Covid-19 pandemic, declaration of a nationwide emergency and regulations from the World Health Organization and other agencies are beyond the Plaintiff’s control, thus the Plaintiff quit her employment involuntarily.
  8. The Plaintiff meets all the requirements in Section 207.021 of the Texas Unemployment Compensation Act.
  9. The Plaintiff is one of many hardworking Americans who are unable to continue to work from home. She was forced to quit for health reasons and care for her grandchildren. Texas Work Commission was fully aware of the presidentially declared pandemic and totally ignored it.
  10. As a 67-year-old, she should not have been forced to face a dangerous and deadly virus at work during a government-mandated lockdown in response to a deadly pandemic. It is clear that there are too many errors in the submissions of the hearing officer of the Texas Work Commission. 
  11. Texas Work Commission should not be looking for ways to deny the Plaintiff her duly earned benefits by deliberately skirting around clear unemployment benefit law provisions, abruptly ending hearings, not asking for closing statements or asking if the Plaintiff had additional questions for the employer.

  • PRAYER FOR RELIEF

WHEREFORE, the Plaintiff respectfully requests this Honorable Court to grant the following reliefs:

  1. A declaration that Texas Work Commission’s determination issued on July 1st 2020 is set aside;
  2. A declaration that the Plaintiff is eligible for unemployment benefits from the Defendants;
  3. An order of specific performance compelling the Defendants to pay the Plaintiff unemployment benefits in the sum of (Insert amount you would like to be awarded in Dollars);
  4. Award the Plaintiff punitive damages, pre and post judgment interests, costs of this suit and attorney fees as allowed by law;
  5. Such equitable relief as may be appropriate under the circumstances; and
  6. Award such further relief as this Honorable Court deems necessary and proper.

 

Respectfully Submitted,

______________________________

Omotayo O. Kayode

19518 Yucca Valley LN 

Cypress TX 77433-7520

Insert Phone Number

Insert Email

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