IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ) ) ) ) ) ) ) ) ) ) COMPLAINT FOR DAMAGES

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION KATHERINE DORNEMANN, v. Plaintiff, COBB ENERGY PERFORMING ARTS CENTRE FOUNDATION, INC., Defendant. Civil Action No. JURY TRIAL DEMANDED COMPLAINT FOR DAMAGES COMES NOW, Plaintiff Katherine Dornemann (hereinafter Plaintiff or Ms. Dornemann, by and through undersigned counsel, and files this, her Complaint for Damages, and respectfully shows the Court as follows: JURISDICTION AND VENUE 1. Plaintiff invokes the jurisdiction of this court pursuant to 28 U.S.C and 42 U.S.C. 2000e-5(f. 2. The unlawful employment practices alleged in this Complaint were committed within this District. 1

2 3. Specifically, the unlawful employment practices alleged herein were committed at Defendant Cobb Energy Performing Arts Centre Foundation, Inc. s (hereinafter Defendant place of business at 2800 Cobb Galleria Parkway, in Atlanta, Georgia Therefore, in accordance with 28 U.S.C and 42 U.S.C. 2000e-5(f, venue is appropriate in this Court. PARTIES 5. Plaintiff is a female citizen of the United States of America and a current resident of the State of Georgia. 6. During Plaintiff s employment with Defendant, and at all times material hereto, Plaintiff was a resident of the State of Georgia and accordingly is subject to the jurisdiction of this Court. 7. Defendant is qualified and licensed to do business in Georgia, and at all times material hereto has conducted business within this District. 2

3 8. Defendant is now, and at all times relevant hereto, has been an employer engaged in an industry affecting commerce within the meaning of 701(b, (g and (h of Title VII, 29 U.S.C. 2000e(b, (g & (h, and has employed more than fifteen (15 persons for the requisite duration under Title VII. 9. Defendant may be served with process by delivering a copy of the summons and complaint to its registered agent, Michele L. Swann, at Two Galleria Parkway, Atlanta, Georgia ADMINISTRATIVE PROCEDURES 10. Plaintiff timely filed a Charge of Discrimination against Defendant with the Equal Employment Opportunity Commission (hereinafter EEOC on May 15, The EEOC issued a Notice of Right to Sue on July 25, 2013, entitling an action to be commenced within ninety (90 days of Plaintiffs receipt of that notice; this action follows accordingly. 3

4 FACTUAL ALLEGATIONS 12. Defendant first hired Plaintiff on approximately August 13, 2010, as a stagehand and member of the stage crew for Defendant s Theater Operations Department. 13. On approximately June 19, 2012, Defendant promoted Plaintiff to Head Electrician. 14. Defendant provided that Plaintiff s primary responsibility in her new role as Head Electrician was the direct supervision and coordination of assigned workers to operate and maintain stage equipment related to major theatrical productions and ensure safe, effective and efficient work activities along with protection of stage and related equipment. 15. From June 19, 2012, until January 19, 2013, Defendant approved of Plaintiff s performance in her new role as Head Electrician, and gave Plaintiff every indication that she was performing her job satisfactorily. 4

5 16. On January 19, 2013, Defendant first became aware that Plaintiff was pregnant when Plaintiff notified her direct supervisor, Defendant s Production Manager, Ms. Jessica Coale, that she was pregnant. 17. Plaintiff was approximatly six (6 weeks pregnant on January 19, Simultaneously, on January 19, 2013, Defendant also became aware that Plaintiff would have certain restrictions during her pregnancy, specifically, that Plaintiff could not lift greater than twenty-five (25 pounds, and should not climb on ladders or utilize certain pieces of equipment, such as Defendant s man lift. 19. Defendant became aware of these restrictions via Plaintiff s presentation of a note from her doctor at Kaiser Permanente detailing the above restrictions, which she first presented to her direct supervisor, Defendant s Production Manager, Ms. Coale, during their conversation on January 19,

6 20. In response, Defendant first indicated to Plaintiff that there would not be any issues with Plaintiff continuing on in her role as Head Electrician given her pregnancy and the restrictions on Plaintiff s activities resulting from the same. 21. Defendant likewise communicated this to Plaintiff on January 19, 2013, via Defendant s Production Manager, Ms. Coale, who responded to Plaintiff s news by congratualting her and assuring her that there would not be any problems with her job as a result of her pregnancy or the restrictions on Plaintiff s activities. 22. On February 1, 2013, Defendant instructed Plaintiff to bring the doctor s note she previously shared with Defendant s Production Manager, Ms. Coale, to a meeting with one of Defendant s Human Resources representatives, Ms. Lorena Dominguez. 23. During the February 1, 2013 meeting, Ms. Dominguez expressed to Plaintiff that Defendant felt the restrictions provided in the doctor s note could be a problem. 6

7 24. Plaintiff replied that she had already spoken to her supervisor, Ms. Coale, about the note and restrictions provided therein, and that Defendant indicated at that time that there wouldn t be any problems with Plaintiff continuing on in her role as Head Electrician as a result of her pregnancy or as a result of the restrictions on her activities stemming from the same. 25. Thereafter, on February 6, 2013, Defendant called Plaintiff into a meeting with Defendant s Head of Human Resources, Ms. Dina Dow, and Defendant s Director of Operations, Ms. Susan Burchell. 26. During the February 6, 2013 meeting, Defendant again indicated to Plaintiff that there could be problems with Plaintiff s job as a result of her pregnancy and the restrictions on her activities stemming from the same. 27. By way of example, Defendant communicated to Plaintiff via Ms. Dow and Ms. Burchell that discussions with legal have already taken place about this issue, and that [Defendant] [doesn t] think you will be able to do the essential functions of your job. 7

8 28. During the February 6, 2013 meeting, Defendant further communicated to Plaintiff that she [could] use FMLA leave and try to apply for disability. 29. In response, Plaintiff objected to Defendant s suggestions that she could not perform the essential duties of her job, and insisted that she was capable of continuing to perform the critical aspects of her job. 30. Despite Plaintiff s insistence that she could still perform all duties required of her job, Defendant responded to Plaintiff that it didn t matter what she said. 31. During the February 6, 2013 meeting, Defendant went on to instruct Plaintiff that she was not to return to work the following day, but that she could finish the day s shift. 32. Following Defendant s communication in this regard, Defendant, via Ms. Dow and Ms. Burchell, provided Plaintiff with pre-completed forms for Family and Medical Leave Act (hereinafter FMLA leave and short-term disability. 8

9 33. Continuing her objections that FMLA and short-term disability leaves were not needed, that she did not want to go out on leave, and that she could still perform her job, Plaintiff responded to Defendant that she would not sign the precompleted forms. 34. Despite her objections, Defendant continued in its insistence that Plaintiff go out on FMLA leave beginning the next day, and instructed her not to return to work. 35. By way of its actions, Defendant effectively forced Plaintiff to go out on leave for the duration of her pregnancy. 36. While on leave, Defendant notified Plaintiff that they would stop paying for Plaintiff s insurance premiums effective March 8, On April 8, 2013, Plaintiff contacted Defendant s Human Resources representative, Ms. Dominguez, for paperwork required to change her insurance coverage. 9

10 38. During their conversation on April 8, 2013, Plaintiff expressed to Defendant via Ms. Dominguez that she hoped to obtain the required note from a new doctor when the insurance change was completed so that she could return to work with Defendant. 39. On April 9, 2013, Defendant sent notification to Plaintiff via Defendant s Head of Human Resources, Ms. Dow, confirming the end of Plaintiff s medical coverage with Kaiser through her employment with Defendant, and likewise confirming Plaintiff s transfer to her husband s insurance policy. 40. As a result of Defendant s actions, Plaintiff was left without medical insurance coverage while being pregnant, and as a result, Defendant effectively forced Plaintiff to be added to her husband s insurance policy. 41. Thereafter, on May 6, 2013, Defendant sent a letter to Plaintiff stating that Plaintiff s FMLA leave had run out and that, as a result, Defendant was officially terminating Plaintiff s employment therewith. 10

11 42. Defendant forced Plaintiff to take FMLA leave as a result of her pregnancy. 43. Specifically, Defendant responded to Plaintiff s notifying the company of her pregnancy, and her request for accommodations in connection with the same, by discriminating against Plaintiff through, inter alia, forcing Plaintiff to take FMLA leave. 44. Thereafter, Defendant unlawfully retaliated against Plaintiff by rescinding payment for her medical health coverage through her employment therewith. 45. Finally, Defendant fired Plaintiff, and unlawfully terminated her employment, as a result of her pregnancy. 46. Plaintiff s work record up until she announced her pregnancy was positive and without any noted performance or employee issues, and even warranted a promotion from Defendant in June

12 47. Others outside Plaintiff s protected class were treated differently, in that, inter alia, other workers who were not pregnant were not forced to take a medical leave of absence when they suffered injuries or otherwise required accommodations while at work. 48. Others outside the Plaintiff s protected class were also treated differently, in that, inter alia, other workers who were not pregnant did not have their medical benefits rescinded while out on company approved medical leave. 49. Others outside the Plaintiff s protected class were also treated differently, in that, inter alia, other workers who were not pregnant were not terminated. 50. Although Defendant purports to provide a legitimate non-discriminatory reason for the adverse employment actions described herein above, this reason is pre-text given that, inter alia, Defendant first forced Plaintiff to go out on FMLA upon learning of Plaintiff s pregnancy, and then terminated Plaintiff s employment upon the expiration of her FMLA benefits. 12

13 CLAIMS FOR RELIEF PREGNANCY DISCRIMINATION IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF Plaintiff re-alleges the preceding paragraphs as if set forth fully herein. 52. Defendant s actions in, inter alia, forcing Plaintiff to go out on leave, dropping Plaintiff s medical coverage, and later terminating Plaintiff s employment constitute unlawful discrimination on the basis of her pregnancy in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. and 42 U.S.C. 1981a. 53. Defendant has willfully and wantonly disregarded Plaintiff s rights, and Defendant s discrimination against Plaintiff was undertaken in bad faith. 54. The effect of the conduct complained of herein has been to deprive Plaintiff of equal employment opportunity, and to otherwise adversely affect her status as an employee because of her pregnancy. 13

14 55. As a direct and proximate result of Defendant s violation of Title VII, Plaintiff has been made the victim of acts that have adversely affected her psychological and physical well-being. 56. Accordingly, Defendant is liable for the damages Plaintiff has sustained as a result of Defendant s unlawful discrimination. VIOLATION OF RIGHTS PURSUANT TO CIVIL RIGHTS ACT OF Plaintiff re-alleges the preceding paragraphs as if set forth fully herein. 58. Defendant discriminated against Plaintiff and, in failing and refusing to take any appropriate remedial action to address the unlawful employment practices, not only deprived Plaintiff of equal employment opportunities, but exhibited malice or reckless indifference to the federally protected rights of Plaintiff. 59. Accordingly, Defendant violated Plaintiff s rights pursuant to the Civil Rights Act of 1991, and are liable for compensatory and punitive damages pursuant to 102(a(1 of the Civil Rights Act of 1991, 42 U.S.C. 1981a(a(1. 14

15 INTERFERENCE WITH FMLA RIGHTS 60. Plaintiff re-alleges the preceding paragraphs as if set forth fully herein. 61. Defendant was Plaintiff s employer as defined by the FMLA. 62. Plaintiff was an eligible employee under the FMLA. 63. Defendant interfered with Plaintiff s rights protected under the Family Medical Leave Act, 29 U.S.C. 2601, et seq., by, inter alia, forcing Plaintiff to exhaust her FMLA leave time against Plaintiff s will and despite Plaintiff s objections that FMLA leave was not needed or wanted, thereby entitling Plaintiff to all appropriate relief under the statute. RETALIATION IN VIOLATION OF FMLA 64. Plaintiff re-alleges the preceding paragraphs as if set forth fully herein. 65. Defendant unlawfully retaliated against Plaintiff in violation of the FMLA by, inter alia, forcing Plaintiff to take FMLA leave, and then subsequently 15

16 rescinding Plaintiff s medical benefits while on FMLA leave, and finally by terminating Plaintiff s employment upon the expiration of Plaintiff s FMLA benefits. 66. Defendant s conduct constitutes unlawful retaliation against Plaintiff in violation of Plaintiff s rights under the FMLA, 29 U.S.C. 2615(a. 67. Defendant acted purposely and with malice with the intent to injure Plaintiff. 68. As a direct and proximate result of Defendant s actions and unlawful retaliation against Plaintiff, Plaintiff has suffered mental and emotional damages, Plaintiff s employment was terminated and Plaintiff has incurred, and will continue to incur, substantial economic damages; accordingly, Plaintiff is entitled to the relief set forth in the Prayer for Relief below. 16

17 PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays for relief as follows: 69. (a General damages for mental and emotional suffering caused by Defendant s misconduct; (b Punitive damages based on Defendant s willful, malicious, intentional, and deliberate acts, including ratification, condonation and approval of said acts; (c Special damages and/or liquidated damages for lost wages and benefits and prejudgment interest thereon; (d (e (f (g Reasonable attorneys fees and expenses of litigation; Trial by jury as to all issues; Prejudgment interest at the rate allowed by law; Declaratory relief to the effect that Defendant has violated Plaintiff s statutory rights; (h Injunctive relief of reinstatement, or front pay in lieu thereof, and prohibiting Defendant from further unlawful conduct of the type described herein; and, (i All other relief to which she may be entitled. 17

18 Respectfully submitted this 23rd day of October, Peachtree Street, N.E., Suite 500 Atlanta, Georgia ( ( (facsimile BARRETT & FARAHANY, LLP s/elizabeth L. Brown Benjamin F. Barrett Georgia Bar No Amanda A. Farahany Georgia Bar No Elizabeth L. Brown Georgia Bar No Attorneys for Plaintiff Katherine Dornemann 18