Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 1 of 17 PAGEID #: 46 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

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1 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 1 of 17 PAGEID #: 46 LEAH MARZOUGUI, : UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Plaintiff, : Case No: 1:11-cv-803 -vs- : Judge: : Magistrate Judge: CINCINNATI CHILDREN S : HOSPITAL MEDICAL CENTER, : DAWN DENNO, : Defendants. : Complaint and Demand for Jury Trial INTRODUCTION Plaintiff Leah Marzougui brings this case against Defendants Cincinnati Children s Hospital Medical Center (hereinafter CHMC ) and Dawn Denno, in her official and individual capacities, for claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act and Ohio Revised Code Each paragraph incorporates all others without specific restatement. JURISDICTION Nature of the Action 1. This action seeks a remedy for: Defendants retaliation against Plaintiff for exercising her rights under the Americans with Disabilities Act; failure to provide reasonable accommodations to Plaintiff, a qualified individual with a disability, to allow her to perform the essential functions of her position at Defendant CHMC s daycare center; the denial of her request for a reasonable accommodation without engaging in the interactive process; and, the

2 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 2 of 17 PAGEID #: 47 subsequent termination of Plaintiff s employment on the basis of her disability, all of which constitute violations of Title I of the Americans with Disabilities Act, as amended, Section 504 of the Rehabilitation Act and Ohio Revised Code Chapter Plaintiff was damaged as a result of Defendants discriminatory acts and omissions and seeks appropriate relief, including reinstatement to her former position with appropriate accommodations, back pay and front pay, compensatory damages, attorneys fees, and costs. Parties 3. Plaintiff is a resident of the city of Cincinnati, located in Hamilton County, Ohio. 4. Defendant CHMC is a non profit pediatric health care center located in Cincinnati, Ohio. 5. Upon information and belief, Defendant Dawn Denno is an employee of CHMC and is the Director of Childcare Services at Defendant CHMC s daycare center. Jurisdiction and Venue 6. This Court has jurisdiction over the subject matter of this Complaint pursuant to 28 U.S.C (federal question jurisdiction) and 28 U.S.C (supplemental jurisdiction). 7. Venue is proper in this district under 28 U.S.C because all parties reside in this district and the events or omissions giving rise to Plaintiff s claims occurred in this district. FACTUAL ALLEGATIONS 8. Plaintiff has a visual impairment, aphasia, and a learning disability as a result of a brain tumor. 2

3 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 3 of 17 PAGEID #: As a result of her medical conditions, Plaintiff experiences some tunnel vision and difficulty with spelling. 10. Plaintiff began working for Defendant CHMC in December At that time, Defendant CHMC had two locations for its preschool program one at the hospital site and one on Linton Street. 11. In early 2000, Plaintiff voluntarily terminated her employment with Defendant CHMC. Later that year, she was contacted by Defendant CHMC and asked to come back. She was offered a higher salary and accepted the offer to work as a scheduler. 12. At the time of hiring and for some time thereafter, Plaintiff was using a cane to assist her in navigating to and from work due to her vision impairments. 13. During the hiring process with Defendant CHMC, Plaintiff informed hiring personnel about her disabilities and that, as a result, she had trouble spelling. Plaintiff was told not to worry about it, as other staff members could assist her. 14. During a staff team building meeting in December 1999, Plaintiff explained that she used the cane because she had a vision impairment, that she sometimes had seizures, and had dyslexia. 15. On or around the time of her hiring, Plaintiff specifically discussed her disabilities and difficulty spelling with her supervisor, Shelly Bowers, and the site manager, Cathy Hatters. As a result, Plaintiff was assisted with proofreading of her written work and spelling by other staff members, including Shelly Bowers, until approximately two weeks before her employment was terminated. 16. When Plaintiff attended trainings, a co-worker would sit next to her and read her whatever was written on boards or screens. 3

4 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 4 of 17 PAGEID #: On one occasion, Cathy Hatters, the site manager, took Plaintiff to the emergency room when she thought she was having a seizure. 18. From 2000 through April 2010, Plaintiff received several promotions, pay raises, and had positive annual evaluations. At the time of her termination by Defendants, Plaintiff held the position of Lead Teacher, which meant she was in charge of the other two teachers in her classroom. 19. Ohio law requires that individuals in Plaintiff s position be of good character, possess adequate physical and emotional health, be equipped by education, training, and/or experience for the work they are to perform. Ohio Admin. Code (B). 20. Ohio law requires that each staff member undergo a medical examination prior to employment and that such medical statement shall be on file and be available for review by the Ohio department of education. Employee medical statements shall be updated on a regular basis. Ohio Admin. Code (E). 21. To insure that its staff meet the above requirements, Defendants periodically required staff to undergo physical examinations and submit updated medical statements. 22. Plaintiff underwent and passed all of these examinations. 23. In January 2010, Defendant CHMC consolidated the daycare center site at the hospital with the one on Linton Street. Several teachers were laid off and others were demoted. 24. Defendant CHMC retained Plaintiff in her position as a Lead Teacher. 25. In April 2010, Plaintiff was contacted by her local Social Security Administration (SSA) office and informed that it had discovered mistakes it had made with her case and was reviewing her file. The SSA indicated that Defendant CHMC may be eligible to receive 4

5 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 5 of 17 PAGEID #: 50 financial incentives for employing Plaintiff and requested permission to contact Defendants to obtain information about Plaintiff s dates of employment. 26. On or about April 22, 2010, Plaintiff was in Cathy Hatters office along with her supervisor, Shelly Bowers, and relayed the information from the SSA to them. 27. Defendant Denno overheard Plaintiff discussing her disabilities and the SSA. 28. On April 23, 2010, Defendant Denno entered Plaintiff s classroom and, in the presence of parents and children, demanded to know about Plaintiff s disabilities. 29. Plaintiff told Defendant Denno she was being inappropriate and refused to disclose the information in front of parents and children. 30. Defendant Denno requested that Plaintiff come to her office. Plaintiff refused to leave her classroom unattended to go to Defendant Denno s office, but later did so when there was someone to cover the class. 31. During the meeting, Defendant Denno told Plaintiff that she was not aware of her disabilities and wanted statements from Plaintiff s doctors describing her disabilities, any facts about them, and what caused them. 32. Defendant Denno did not state that the request for the medical documentation was job related or consistent with business necessity. 33. On or around April 27, 2010, Plaintiff contacted her doctors to request the information. After expressing their concerns with the legality of Defendant Denno s request, Plaintiff s doctors asked that the request for information about her disabilities be in writing. 34. On April 28, 2010, Plaintiff told Defendant Denno that she needed the request for medical information in writing. 5

6 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 6 of 17 PAGEID #: On May 5, 2010, Defendant Denno gave Plaintiff Fitness for Duty forms to give to her doctors to complete. Such forms were routinely used when a staff member was returning from medical leave. 36. Defendant Denno reminded Plaintiff on May 11, 14, 17, 18, and May 21, 2010, to have the forms submitted by May 28, Plaintiff submitted the forms by the deadline. The forms indicated that she was fit to perform the duties of her position. 38. After the April 23, 2010, incident, Defendant Denno and Shelly Bowers (Master teacher), frequently visited Plaintiff s classroom to observe her work. Prior to April 23, 2010, they rarely visited her classroom. 39. Defendant Denno and Ms. Bowers did not visit other teachers classrooms as frequently as they visited Plaintiff s. 40. These visits caused Plaintiff a great deal of stress and anxiety. 41. Following the April 23, 2010 incident, Plaintiff received several disciplinary write ups. 42. Plaintiff was singled out for harsher treatment than other similarly situated employees. 43. After the April 23, 2010, incident, Plaintiff received a subpoena to appear in court as a witness in a case in which she was not a party. 44. Plaintiff requested leave from work several days before she was to appear in court and listed the subpoena as the reason for the leave request. 6

7 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 7 of 17 PAGEID #: Upon information and belief, at least two other staff members were approved by Defendants for leave under similar circumstances one pursuant to a subpoena and one pursuant to a summons for jury duty. 46. Defendants denied Plaintiff s request for leave, and Plaintiff was told that if she did not show up for work on the date in question she could be terminated from employment. 47. As stated on the back of the subpoena, Plaintiff informed Defendants that Ohio law provides that a failure to obey a subpoena duly served may be punishable as contempt of court and the individual subjected to a fine and/or term of imprisonment. (Ohio Rev. Code (C)). However her leave request was still denied. 48. Plaintiff was written up for lying about a child s compliance with that day s activity. Each child was to show a picture. Unbeknownst to Plaintiff, one particular child had left his picture in his parent s car and, when it was his time to show the picture, he used another child s picture. Plaintiff indicated that the child had successfully completed the task. 49. When the mistake was discovered, Plaintiff discussed and resolved the situation with the child s parent and the child submitted his own picture. Nevertheless, Plaintiff was written up for lying. 50. A similar incident occurred with another teacher, who was not written up. 51. In June 2010, an incident occurred wherein a child in the care of the two other teachers in Plaintiff s classroom left the classroom without permission. Plaintiff was written up for this even though she was not present in the classroom. 52. The two other teachers were not written up. 53. Ohio law requires that preschool facilities be inspected twice a year to insure their compliance with applicable rules and standards. 7

8 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 8 of 17 PAGEID #: Defendants practice was that once the inspection report was received, staff were given an opportunity to correct any deficiencies and were not disciplined for those deficiencies. 55. Plaintiff received disciplinary write ups for two minor deficiencies found in an inspection report without being given an opportunity to correct the deficiencies. 56. On July 2, 2010, Plaintiff was put on a performance improvement plan (PIP). 57. Defendant Denno provided Plaintiff the PIP in large print. 58. The PIP required her to hand in all written work with correct spelling and grammar. 59. The PIP gave Plaintiff less time to do her written work than other teachers similarly situated. 60. Plaintiff was only permitted to use the computer in the classroom for 30 minutes a day. 61. Other teachers had unlimited use of the computer. 62. Plaintiff was to have her reports handed in by the 23rd of the month. 63. Other teachers had until the first of the next month to hand in their reports. 64. Prior to this Plaintiff had unlimited time on the computer and had to hand in her reports by the first of the month. 65. On September 13, 2010, Plaintiff was summarily told that other staff could no longer correct her spelling. 66. Defendants took the position that in order to be a preschool teacher an individual had to be able to spell correctly. 67. On September 16, 2010, Plaintiff was told not to go to her classroom and instead report to another room to participate in a video shoot. 8

9 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 9 of 17 PAGEID #: Plaintiff completed the video shoot and went out to the playground to meet her class. 69. At all times during this incident there were other classes and teachers on the playground. 70. Plaintiff was given her class attendance list by another teacher in her classroom. 71. This list showed that 15 students were present that day. 72. Plaintiff counted 15 students in her line and proceeded to take the students into the building. 73. When they were coming off the elevator, Dana, another teacher in her classroom came running out and stated that a sixteenth student had arrived late and was still on the playground. Dana went downstairs and retrieved him. 74. As a result, Plaintiff was accused of leaving a child unattended on the playground. 75. On September 22, 2010, Plaintiff s employment was terminated. 76. After the April 23, 2010, incident, Defendants discriminated against Plaintiff because of her disabilities and retaliated against Plaintiff because she asserted her right not to discuss her disabilities in front of others. 77. After April 23, 2010, Defendants treated Plaintiff differently than others similarly situated. 78. Plaintiff has been unable to find new employment. 79. Plaintiff has suffered emotional distress, humiliation, anxiety, mental anguish, and depression as a result of the incidents listed above. 80. Plaintiff filed a charge of discrimination with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission. 9

10 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 10 of 17 PAGEID #: On August 17, 2011, she received a Right to Sue letter dated August 11, FIRST CAUSE OF ACTION - VIOLATION OF TITLE I OF ADA BY DEFENDANT CHMC 82. Plaintiff has physical and mental impairments that substantially limit several major life activities, including, but not limited to, seeing, reading, and writing, and is therefore a person with a disability as defined by Title I of the Americans with Disabilities Act and its implementing regulations. 42 U.S.C (1)(A), 29 C.F.R (g)(1). 83. Plaintiff is a qualified individual with a disability protected by Title I of the ADA and its implementing regulations because she could perform the essential functions of her position, with or without reasonable accommodations, and because she satisfies the requisite skills, experience, education, and other job-related requirements of the position. 42 U.S.C (8); 29 C.F.R (m). 84. Defendant CHMC is an entity covered by Title I of the ADA because it is engaged in an industry affecting commerce and it has 15 or more employees for each working day in each of 20 or more calendar weeks in the current and preceding calendar year. 42 U.S.C (5)(A), 29 C.F.R (e). 85. A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be jobrelated and consistent with business necessity... A covered entity may make inquiries into the ability of an employee to perform job-related functions. 42 U.S.C (d)(4)( A) and (B). 86. Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, 42 U.S.C.12112(d)(3)(B).). 10

11 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 11 of 17 PAGEID #: By making a request for medical information about Plaintiff s disabilities which was not job-related; consistent with business necessity; nor related to Plaintiff s ability to perform job-related functions, Defendant CHMC violated Plaintiff s rights under Title I of the Americans with Disabilities Act. 88. By making a request for information about Plaintiff s disabilities in front of other people, Defendant CHMC violated Plaintiff s rights under Title I of the Americans with Disabilities Act. 89. By summarily denying Plaintiff the reasonable accommodation of checking her spelling, without engaging in the interactive process, Defendant CHMC discriminated against Plaintiff on the basis of her disability, thereby violating her rights under Title I of the ADA. 90. As a result of these actions of Defendant CHMC, Plaintiff suffered lost wages, as well as damage to her professional reputation, humiliation, emotional distress, and mental anguish. SECOND CAUSE OF ACTION RETALIATION BY DEFENDANT CHMC 91. No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter U.S.C (a). 92. A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be jobrelated and consistent with business necessity... A covered entity may make inquiries into the ability of an employee to perform job-related functions. 42 U.S.C (d)(4)( A) and (B). 93. Information obtained regarding the medical condition or history of an employee is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that supervisors and managers may be informed regarding 11

12 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 12 of 17 PAGEID #: 57 necessary restrictions on the work or duties of the employee and necessary accommodations. 42 U.S.C (d)(4)(C) and (d)(3)(b)(i). 94. Plaintiff engaged in a protected activity when she told Defendant Denno that her asking about Plaintiff s disabilities in front of others was inappropriate. 95. Defendant CHMC s action, through its employees and agents, in treating Plaintiff more harshly than others similarly situated, in refusing to provide her with reasonable accommodation, in limiting her time on the computer and shortening the deadlines for her handing in written work, in denying her request for leave to honor the subpoena and in terminating her employment were taken in retaliation for her telling Defendant Denno that her request for information about her disabilities was inappropriate. 96. The causal connection is demonstrated by the significant time correlation between Plaintiff s statement to Defendant Denno and the adverse employment actions and thus violated Plaintiff s rights under Title I of the Americans with Disabilities Act. 97. As a result of these actions of Defendant CHMC, Plaintiff suffered lost wages, as well as damage to her professional reputation, humiliation, emotional distress, and mental anguish. THIRD CAUSE OF ACTION VIOLATION OF SECTION 504 OF THE REHABILITATION ACT BY DEFENDANT CHMC 98. Plaintiff has physical and mental impairments that substantially limit several major life activities, including, but not limited to, seeing, reading, and writing, and is therefore a person with a disability within the meaning of 29 U.S.C Plaintiff is a qualified person with a disability within the meaning of 29 U.S.C. 794(a) because she can safely and substantially perform the essential functions of her position, 12

13 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 13 of 17 PAGEID #: 58 with or without reasonable accommodations and because she satisfies the requisite skills, experience, education, and other job-related requirements of the position No otherwise qualified person with a disability shall on the basis of disability be excluded from participation in, be denied the benefits of, or otherwise subjected to discrimination in a program or activity which receives Federal funds. 29 U.S.C On information and belief, Defendant CHMC receives federal funds Defendant CHMC is a private organization, which is principally engaged in the business of providing health care and is thus subject to the anti-discrimination provisions of Section U.S.C. 794(b)(3) In making a request for medical information about Plaintiff s disabilities which was not job-related, consistent with business necessity, nor related to Plaintiff s ability to perform job-related functions, Defendant CHMC violated Plaintiff s rights under Section 504 of the Rehabilitation Act By making a request for information about Plaintiff s disabilities in front of other people, Defendant CHMC violated Plaintiff s rights under Section 504 of the Rehabilitation Act By summarily denying Plaintiff the reasonable accommodation of checking her spelling, without engaging in the interactive process, Defendant CHMC discriminated against Plaintiff on the basis of her disability, thereby violating her rights under Section 504 of the Rehabilitation Act Plaintiff engaged in a protected activity when she told Defendant Denno that her asking about Plaintiff s disabilities in front of others was inappropriate Defendant CHMC s action in treating Plaintiff more harshly than others similarly situated, in refusing to provide her with reasonable accommodation, in limiting her time on the 13

14 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 14 of 17 PAGEID #: 59 computer and shortening the deadlines for her handing in written work, in denying her request for leave to honor the subpoena and in terminating her employment were taken in retaliation for her telling Defendant Denno that her request for information about her disabilities was inappropriate The causal connection is demonstrated by the significant time correlation between Plaintiff s statement to Defendant Denno and the adverse employment actions and thus violated Plaintiff s rights under Section 504 of the Rehabilitation Act As a result of these actions of Defendant CHMC, Plaintiff suffered lost wages, as well as damage to her professional reputation, humiliation, emotional distress, and mental anguish. FOURTH CAUSE OF ACTION - CHAPTER 4112 OHIO REVISED CODE BOTH DEFENDANTS 110. Plaintiff has physical and mental impairments that substantially limit several major life activities, including, but not limited to, seeing, reading, and writing, and is therefore a person with a disability as defined by Ohio Revised Code (A)(13) Plaintiff is a qualified person with a disability because she can safely and substantially perform the essential functions of her position, with or without reasonable accommodations and because she satisfies the requisite skills, experience, education, and other job-related requirements of the position. Ohio Admin. Code (K) Defendant CHMC employs four or more persons within the State of Ohio and is therefore an employer within the meaning of Ohio Rev. Code (A)(2) Defendant Denno was acting within the course and scope of her employment at all relevant times described in this complaint. 14

15 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 15 of 17 PAGEID #: Defendant Denno was acting directly or indirectly in the interest of her employer, Defendant CHMC Defendant Denno is an employer as defined in Ohio Rev. Code (A)(2) and may be held jointly and/or severally liable with her employer for discriminatory conduct under Ohio Rev. Code Chapter Under Ohio law an employer is permitted to inquire about an employee s disability only if it is necessary to determine whether the employee can perform the job without significantly increasing the occupational hazards to himself or others and to determine if the employee can perform the essential functions of the job with or without reasonable accommodations. Information obtained as a result of this inquiry shall be kept confidential as medical records. Ohio Admin. Code By making a request for medical information about Plaintiff s disabilities, which was not related to any occupational hazards or her ability to perform the essential functions of the job, Defendants violated Plaintiff s rights under Chapter 4112 of the Ohio Revised Code By asking Plaintiff for information about her disabilities in front of others, Defendants violated Plaintiff s rights under Chapter 4112 of the Ohio Revised Code Plaintiff engaged in a protected activity when she told Defendant Denno that her asking about Plaintiff s disabilities in front of others was inappropriate Defendants actions in treating Plaintiff more harshly than others similarly situated, in refusing to provide her with a reasonable accommodation, in limiting her time on the computer and shortening the deadlines for her handing in written work, in denying her request for leave to honor the subpoena and in terminating her employment were taken in retaliation for 15

16 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 16 of 17 PAGEID #: 61 her telling Defendant Denno that her request for information about her disabilities was inappropriate The causal connection is demonstrated by the significant time correlation between Plaintiff s statement to Defendant Denno and the above described adverse employment actions and thus violated Ohio Rev. Code (I) By summarily denying Plaintiff the reasonable accommodation of checking her spelling, without engaging in the interactive process, Defendants discriminated against Plaintiff on the basis of her disability, thereby violating her rights under Chapter 4112 of the Ohio Revised Code As a result of these actions of the Defendants, Plaintiff suffered lost wages, as well as damage to her professional reputation, humiliation, emotional distress, and mental anguish. PRAYER FOR RELIEF Plaintiff Leah Marzougui respectfully prays for judgment in her favor and against Defendants and the following relief: A. Injunctive relief, including reinstatement to the position she held immediately preceding her termination, with appropriate accommodations for her disability, as well as back pay and front pay. B. Compensatory damages, including compensation for Plaintiff s past and future pain, emotional distress, humiliation, and mental anguish caused by Defendants unlawful discriminatory conduct. C. Plaintiff s attorneys fees and costs. D. Such other relief as is just and equitable. 16

17 Case: 1:11-cv HJW Doc #: 3 Filed: 12/08/11 Page: 17 of 17 PAGEID #: 62 Complaint. JURY TRIAL DEMAND Plaintiff Leah Marzougui requests a trial by jury on all questions of fact raised by her Respectfully submitted, /s/ Barbara S. Corner Barbara S. Corner ( ) Trial Attorney Ronda J. Cress ( ) Ohio Legal Rights Service 50 W. Broad Street, Suite 1400 Columbus, OH Telephone (614) Facsimile (614) Attorneys for Plaintiff 17

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