`
`Case 3:22-cv-00171-DJH Document 1-1 Filed 03/22/22 Page 1 of 12 PageID #: 6
`1?ax-id L. Niehois4n, Jeffersan Circuic Ci.erk„
`02,123,12U.?1
`22-CI-(l00938
`
`NO.
`
`JEFFERSON CIRCUIT COURT
`DIVISION
`JUDGE
`
`Electronically Filed
`
`PLAINTIFF
`
`MARIA WILSON
`
`ky
`
`SWIFT PORK COMPANY
`d/b/a JBS USA
`
`SERVE:
`CORPORATION SERVICE COMPANY
`421 WEST MAIN STREET
`FRANKFORT, KENTUCKY 40601
`
`DEFENDANT
`
`COMPLAINT
`Jury Trial Demanded
`
`Plaintiff Maria Wilson, for her complaint against Defendant Swift Pork Company, doing
`
`business as JBS USA, states as follows:
`
`PARTIES
`
`1)
`
`2)
`
`Plaintiff Maria Wilson is a resident of Louisville, Jefferson County, Kentucky.
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`Defendant Swift Pork Company is a Delaware for-profit corporation authorized to
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`do business in Kentucky. Its principal office is located at 1770 Promontory Circle, Crreeley,
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`Colorado 80634. Its registered agent for service of process is Corporation Service Company, 421
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`West Main Street, Frankfort, Kentucky 40601.
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`JURISDICTION AND VENUE
`
`3)
`
`Plaintiff's causes of action are brought pursuant to the Kentucky Civil Rights Act,
`
`KRS Chapter 344 (KCRA); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA),
`
`Filed
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`2?-CI 00f193S
`
`02;`?-5,+2tl2'2
`
`Dai-id L. Nieholson, Jefferson C:ircuit Cflerk
`
`a
`
`
`
`Filed
`
`Case 3:22-cv-00171-DJH Document 1-1 Filed 03/22/22 Page 2 of 12 PageID #: 7
`D ai-id L. Nichalsdn..Jefferson Ciacnit Ciea•k
`2?-CI- 000938
`{l?;25;`20?2
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`as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA); and the
`
`Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (FMLA).
`
`4)
`
`Jurisdiction is proper in the Jefferson Circuit Court pursuant to KRS 23A.010(1)
`
`and KRS 344.450.
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`5)
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`Venue in this action is proper in the Jefferson Circuit Court pursuant to KRS
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`452.450 and KRS 452.460(1), because Plaintiff was employed by Defendant and the injury arising
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`from these events was done to the Plaintiff in Jefferson County, Kentucky.
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`6)
`
`The KCRA does not require exhaustion of administrative remedies, nor does the
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`FMLA. Plaintiff was issued a right-to-sue by the Equal Employment Opporlunity Commission
`
`for her ADA claims on January 10, 2022.
`
`7)
`
`At all times material to this action, Plaintiff was an "employee" as defined by KRS
`
`Chapter 344.030(5), and Defendant was an "employer" as defined in KRS Chapter 344.030(2).
`
`8)
`
`At all times material to this action, Plaintiff was an "employee" as defined by the
`
`ADA, 42 U.S.C. § 12111(4), and Defendant was an "employer" as defined in the ADA, 42 U.S.C.
`
`§ 12111(5).
`
`9)
`
`At all times material to this action, Plaintiff was an "eligible employee" as defined
`
`by the FMLA, 29 U.S.C. § 2611(2), and Defendant was an "employer" under the FMLA, 29 U.S.C.
`
`§ 2611(4).
`
`10) Maria "Resee" Wilson is a Licensed Practical Nurse.
`
`FACTS
`
`11)
`
`Resee served Swift Pork Company as an Occupational Health Nurse from
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`September of 2019 until her termination in late February of 2021.
`
`Fifled
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`22-CI-00093fi
`
`t12,fi25!?'fl22
`
`2
`lla,;-id L. "I'Mcholscn. Je€fersun Citruit Clerk
`
`
`
`F1ed
`
`22-CI 000938
`
`42l?5~2fl22
`
`Da`-id L(cid:173)iNichclsoaa.Jefferson Circuat Cter•k
`
`12)
`
`In her Occupational Health Nurse role, Resee's general job duties included medical
`
`assistance to employees, health screenings and treatment, and documentation of health and safety
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`information.
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`13)
`
`Resee is a disabled worker. She suffers from migraines, depression, anxiety, and a
`
`thyroid condition.
`
`14)
`
`Resee's experience of her disabilities is that they substantially interfere with her
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`major life activities, such as talking, conversing, balancing, bearing weight with her muscles,
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`seeing clearly, and undergoing ordinary cognition functions.
`
`15) While working at JBS, Resee disclosed her disabilities to various managers in order
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`to get accommodations for her disability-related needs. These managers included Dave Stuppy
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`(Health & Safety Manager), Denise Knemeyer (Occupational Health Manager), Mary Miller
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`(Clerk), and Jim Deveary (Resee's supervisor, Health & Safety Manager).
`
`16) Not long after Resee disclosed her medical conditions to Denise Knemeyer, Denise
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`began to scrutinize and criticize Resee.
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`17)
`
`Resee tried to avoid suspecting bias from Denise, but after months of hostility from
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`the Occupational Health Manager, Resee took her concerns to Dave Stuppy — consistent with the
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`chain of command.
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`18)
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`Dave told Resee he did not want to deal with it and sent Resee to Stacy Santillan in
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`Human Resources.
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`19)
`
`Resee transmitted an email to Stacy to begin this discussion on September 17, 2020,
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`advising Stacy that she had "some real issues that's scaring me that [I have to] address."
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`20)
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`Resee discussed her complaints with Stacy, but it appeared that no corrective steps
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`were being taken by the company.
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`Filed
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`22-CI00093$
`
`U?t`?f5i! 02?
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`3
`Dsdd L. Nicholsou. Jeffersoaa Ciri.uit Clerk
`
`U.
`
`
`
`Filed
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`22-+CI-000-039
`
`02,12112022
`
`Rai-id L. Nichclson, Jc-tterson Caer:uit Clerk
`
`21)
`
`Four days after Resee's email to Stacey, Human Resources Manager Jordan
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`Dinkins wrote Resee up for her attendance.
`
`22)
`
`The write-up, dated September 21, 2020, assessed "points" against Resee for
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`January 20-21, 2020, March 25-Apri17, 2020, June 26-29, 2020, and September 14-16, 2020.
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`23)
`
`Resee received no explanation as to why the write up occurred a week after the
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`latest absence, but closer in time to her successive complaints to Dave Stuppy and Stacey Santillan.
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`24)
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`Right after receiving the write-up, on September 22, 2020, Resee had her internist
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`complete FMLA paperwork certifying that she had "lifelong" conditions that included anxiety,
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`migraines, a thyroid condition, and depression, dating back to 2014.
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`25)
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`Although this was not the first time Resee had made her managers aware of her
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`disabilities, it was the first time the company could not ignore her needs.
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`26)
`
`Human Resources documented the receipt of the physician's paperwork as October .
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`6, 2020.
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`27)
`
`The internist's certificate further reflected that a surgery had been performed in
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`February of 2020 for a medically necessary hysterectomy related to Resee's conditions.
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`28)
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`As to the other conditions, the provider advised that Resee would need behavioral
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`health treatments once or twice a month, with one day off per treatment, and that three to four
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`episodes requiring one to two days off for recovery were anticipated per month.
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`29)
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`Other than time off to attend to her disability-related needs, Resee did not seek
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`accommodations for her disabilities at that time. It was the same accommodation she had needed
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`the entire time, but that the company's managers refused to consider.
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`Filed
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`22-CI a00938
`
`02f25t"2022
`
`4
`Dai-id L. N3cholson., Jefferson Circuit Cle•k
`
`
`
`
`
`Filed
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`22-CT-OJ1f+939
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`ti2/25W2a21
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`ilaNid L. Nichvisan, .Icfferscn C:aBrui.t C1erk
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`30)
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`Under the company's job description, Resee's work called for six-day work weeks
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`of nine-to-ten-hour days. The twelve weeks of FMLA entitlement therefore totaled seventy-two
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`days and 648-720 hours.
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`31)
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`The FMLA acceptance paperwork, however, reflected that Resee was only being
`
`approved for 480 hours, and only for the six-month period from September 21, 2020 through
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`March 20, 2021. The company's paperwork advised that Resee would only need to supply
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`additional documentation if she was absent "more than 4 times per month."
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`32)
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`There is no evidence that the company's Human Resources staff applied the
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`FMLA/disability entitlement retroactively to any of Resee's absences that occurred before the
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`October 61 receipt of paperwork, including those that were the subject of the September 211
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`written discipline, and including the February 2020 hysterectomy surgery that the internist
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`specifically acknowledged in the FMLA paperwork.
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`33)
`
`Against this backdrop, a Performance Improvement Plan (PIP) was issued to Resee
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`by James DeVary and Human Resources Director Stacey Freiberg on November 25, 2020.
`
`34)
`
`The evaluation categories recited on the PIP form were Determination, Simplicity,
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`Availability, Humility, Sincerity, Discipline, and Ownership, but in the itemized criticism, only
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`Determination, Discipline, Ownership, and Availability were identified as improvement needs.
`
`35)
`
`Critically, alongside a few other metrics that were ostensibly performance-rooted,
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`the individualized "Availability" metric specified "Attendance must improve."
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`36)
`
`The PIP's stated term was sixty days, making the natural expiration January 24,
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`2021.
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`37)
`
`On January 9, 2021, DeVary noted the following progress in each specified
`
`category:
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`Filed
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`22-CI Q00938
`
`#}212Y2022
`
`~
`Ilavid L. Niehfllsan. Jefferscn CiretritClcrk
`
`0-
`
`
`
`Filed
`
`U. - -CIAt]O938
`
`{12a2S;'2022
`
`13avie1 L. Nichclsaa, Je€fE=.'soaa CI.tzuit C1erk
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`Determination: "Has met expectations."
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`Discipline: "Has stepped way above what is asked of her."
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`Ownership: "Stepped into Interim Occ health Mgr. when she wasn't asked to."
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`Availability: "Has exceeded expectations."
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`38)
`
`On January 27, 2021, after the end of the sixty-day period, DeVary completed a
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`final PIP evaluation sheet, indicating no equivocation from the January 9th measurement, even
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`adding to the Ownership evaluation section that "Reese [sic] strives on making sure everything
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`that we do in occ health is completed the right way." By all documented indications, Resee had
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`successfully completed the PIP.
`
`39) When it came to attendance, however, Resee had continued to take her FMLA leave
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`as needed. She advised supervisors by text message, phone call, and in-person report when her
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`episodic needs arose. She missed portions of February 15-16, 2021, due to episodes of migraine,
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`and was late to work on February 18, 2021 due to her documented mental health needs.
`
`40)
`
`On February 27, 2021, Resee received notice that she was being terminated. The
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`termination notice, signed by DeVary and Freiberg, claimed that the PIP term had actually been
`
`ninety days, and that Resee had been criticized in her evaluations for "lack of attention to detail on
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`various occasions" and "inconsistent performance." Specific details were not supplied.
`
`41)
`
`The termination notice also complained that Resee's previous "counseling
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`regarding your work performance and attendance" were issues supporting the termination.
`
`42)
`
`This reference to attendance, bookending the sixty-day PIP's specific invocation of
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`attendance, is direct evidence that Resee's attendance was the impetus for her termination — or at
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`least a but-for factor in the decision.
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`DISABILITY DISCRIMINATION AND FAILURE TO ACCOMMODATE
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`Fi1ed
`
`Z2-CIA0II9.IS
`
`{I2f25f2il22
`
`6
`David L. Nicholson., Jetfe:'si13 CirCII1G C1eYk
`
`
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`;4
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`Case 3:22-cv-00171-DJH Document 1-1 Filed 03/22/22 Page 7 of 12 PageID #: 12
`22-CI ®00938
`Daild L. NicholsQn, Jetferson C:it-6hitClerk
`Filed
`0>f25/2#ly2
`
`43)
`
`44)
`
`Plaintiff incorporates all preceding paragraphs as if fully set forth herein:
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`Defendant is an employer as that term is defined by the Kentucky Civil Rights Act,
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`KRS Chapter 344 (KCRA).
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`45)
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`The KCRA defines "disability" as "(a) [a] physical or mental impairment that
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`substantially limits one ... or more of the major life activities of the individual; (b) [a] record of
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`such an impairment; or (c) being regarded as having such an impairment." KRS 344.010(4).
`
`46)
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`Plaintiff's medical conditions affect her mental and physical faculties to a degree
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`that they substantially limit her major life activities.
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`47)
`
`Plaintiff was and remains a worker with an impairment that constitutes a disability
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`under the KCRA and the ADA, and Plaintiff was further regarded as disabled by her employer.
`
`48)
`
`Under the KCRA and the ADA it is unlawful for an employer to discharge any
`
`individual, or otherwise to discriminate against an individual, with respect to compensation, terms,
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`conditions, or privileges of employment because the person is a qualified individual with a
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`disability.
`
`49)
`
`Plaintiff was qualified to perform the day-to-day functions of the job with a
`
`reasonable accommodation.
`
`50)
`
`Plaintiff requested reasonable accommodations from Defendant to allow her to
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`perform her job duties.
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`51)
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`Defendant discriminated against Plaintiff in favor of non-disabled/not-regarded-as-
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`disabled workers, in violation of the KCRA's and the ADAAA's prohibition on disability
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`discrimination.
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`Filed
`
`22-CI-0©4938
`
`ftMM02?'
`
`7
`Davi.ti L. Iwticholsvn, Jetferson Circnit Cierk
`
`~
`
`
`
`Filed
`
`22-CI- QUf1938
`
`C#2,'2&ia22
`
`Daviii L. -Nt.choIso n,.Teffei•scn CircuitClerk
`
`52) Defendant's non-disabled/not-regarded-as-disabled workers were afforded greater
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`privileges, work accommodations, and benefits than Plaintiff as a disabledlregarded-as-disabled
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`worker.
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`53)
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`Plaintiff was singled out for heightened scrutiny by Defendant, resulting in adverse
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`employment actions, including negative supervisor evaluations and their subsequent decisions to
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`separate her from employment.
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`54)
`
`Plaintiff's disability was a motivating factor in Defendant's adverse actions and
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`discrimination, in violation of the KCRA and the ADA.
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`55)
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`The adverse employment action occurred under circumstances that raise reasonable
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`inferences that the Plaintiff's disability was a determining factor in the decision to impose the
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`adverse employment actions.
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`56)
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`Defendant failed to participate in the interactive process to determine a reasonable
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`accommodation when it was needed, in violation of the KCRA and the ADA.
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`57)
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`Defendant failed to articulate a hardship that justified its refusal to accommodate
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`and its refusal to participate in the interactive process.
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`58)
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`Plaintiff suffered adverse actions occasioned by
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`the
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`lack of adequate
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`accommodation and the requirement that Plaintiff work without the accommodations that would
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`have preserved Plaintiff's comfort, well-being, and dignity.
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`59)
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`There was a causal connection between Plaintiff's disabled/regarded-as-disabled
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`status and the adverse employment actions.
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`60)
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`Defendant's actions were malicious and/or committed with reckless indifference
`
`for Plaintiff's legal rights.
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`61)
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`Defendant authorized, ratified, or should have reasonable discovered the acts of its
`
`Filed
`
`22-CI-ttUti93F
`
`02t25I2022
`
`David L. hTicholson, Jeffersc>n CixcuitCierk
`
`:
`
`
`
`Fiicd
`
`22-CI000938
`
`02,'23,°2€i22
`
`(cid:226) avid L. +vicholson, Je€ferson C:iacuit Cicrk
`
`.
`
`agents set forth in this Complaint.
`
`62)
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`Under the KCRA and the ADA, Plaintiff is entitled to recover compensatory
`
`damages from Defendant, including lost wages and benefits, damages for physical, mental, and
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`emotional distress, damages for embarrassment and humiliation, punitive damages, and attorneys'
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`fees.
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`63)
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`64)
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`RETALIATION
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`Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
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`Plaintiff engaged in protected activities by seeking disability-related leave and
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`requesting adjustments to her work circumstances.
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`65)
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`Plaintiff further engaged in protected activity when she complained to Human
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`Resources about her mistreatment as a disabled worker with accommodation needs.
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`.66)
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`Plaintiff believed in good faith that she was standing up for her rights under
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`applicable law.
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`67)
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`68)
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`Defendant was aware of Plaintiff's activity.
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`Plaintiff also opposed Defendant's violations of her rights as a disabled worker,
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`which is protected activity under the KCRA and the ADA.
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`69)
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`70)
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`Plaintiff's protected activities were known by Defendant.
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`Defendant subjected Plaintiff to adverse actions, including increased scrutiny,
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`public ridicule, discipline, and constructive discharge.
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`71)
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`A reasonable employee in Plaintiffs position would have found the Defendant's
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`actions materially adverse.
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`72)
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`There exists a causal connection between the Defendant's materially adverse
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`actions toward Plaintiff and her protected activity.
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`Filed
`
`22-CI-Ct0093S
`
`02 L7~+1'20?'2
`
`9
`ilavid L. hTiEhoison. Jeffcrson Circuit Ciea•k
`
`mi
`
`
`
`Case 3:22-cv-00171-DJH Document 1-1 Filed 03/22/22 Page 10 of 12 PageID #: 15
`Du7i-is1 L. Niehoisan, J etferson CiYcuit C:lez•k .0,
`#1 1`25/2 022
`22-CI-UOu938
`i''iled
`
`73)
`
`74)
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`Defendant's conduct violated the KCRA's anti-retaliation provision, KRS 344.280.
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`But for Plaintiff's protest of its violations, Defendant would not have subjected
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`Plaintiff to the adverse employment actions, including, but not limited to, separation from
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`employment.
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`75)
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`Defendant's adverse actions against Plaintiff were caused by Plaintiff's protected
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`activity.
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`76)
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`Defendant's actions were malicious and/or committed with reckless indifference
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`for Plaintiff's legal rights.
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`77)
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`Defendant authorized, ratified, or should have reasonable discovered the acts of its
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`agents set forth in this Complaint.
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`78)
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`Under the KCRA and the ADA, Plaintiff is entitled to recover compensatory
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`damages from each Defendant, including lost wages and benefits, damages for physical, mental,
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`and emotional distress, damages for embarrassment and humiliation, punitive damages, and
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`attorneys' fees.
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`FMLA VIOLATIONS
`
`79)
`
`80)
`
`Plaintiff incorporates all preceding paragraphs as if fully set forth herein.
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`Defendant is an employer required to follow the mandates of the Family and
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`Medical Leave Act, as codified at 29 U.S.C.A. §§ 2601, et seq.
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`81)
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`The FMLA prohibits qualifying employers from "interfer[ing] with, restrain[ing],
`
`or deny[ing] the exercise of or the attempt to exercise, any right provided under [the FMLA]." 29
`
`U.S.C. § 2615(a)(1).
`
`82)
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`Under 29 C.F.R. § 825.220(c), employers cannot use the taking of FMLA leave as
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`a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.
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`Filed
`
`22-CI -0tit}9'38
`
`0=5/2022
`
`10
`David L. Niclxalwi:. J2ffeff scin Circuit Clerk
`
`
`
`
`
`Case 3:22-cv-00171-DJH Document 1-1 Filed 03/22/22 Page 11 of 12 PageID #: 16
`Daii-id L. Ni.cholsoh.Jet't'ersora CitacuitClerk
`Filed
`y2-CI-000938
`t}212.5;`2t1:?2
`
`83)
`
`Defendant refused to restore Plaintiff to her full prior employment after she invoked
`
`her right to FMLA leave.
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`84)
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`85)
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`Defendant further failed to provide the full statutory allotment of leave.
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`Plaintiff was wrongfully denied the benefits of the federal law, as set forth in 29
`
`U.S.C. § 2615(a).
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`86)
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`Defendant interfered with Plaintiff's attempts to take her protected leave, in
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`violation of 29 U.S.C. § 2615(a)(1).
`
`87)
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`Defendant subsequently discriminated against Plaintiff for her opposition to the
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`interference with her FMLA leave, in violation of 29 U.S.C. § 2615(a)(2).
`
`88)
`
`Defendant took Plaintiff's attempts to take FMLA leave as a negative factor in
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`employment actions, including her supervisor's evaluations and their subsequent decisions to
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`separate her from employment.
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`89)
`
`90)
`
`Defendant's violations of the FMLA were not made in good faith.
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`Pursuant to 29 U.S.C. § 2617(a)(1), Plaintiff is entitled to recover compensatory
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`damages, liquidated damages, and any such equitable relief, including reinstatement, promotion,
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`and injunctive relief, as the Court deems appropriate.
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`91)
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`Under 29 U.S.C. § 2617(a)(3), Plaintiff is entitled to recover her attorneys' fees,
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`reasonable expert witness fees, and costs expended in pursuing relief.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Maria Wilson respectfully prays that this Court:
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`a. Declare Defendant's conduct in violation of Plaintiff's rights;
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`b. Award Plaintiff compensatory damages in such amounts as shall be proven at trial for
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`her economic and other losses, including, but not limited to, back pay, and front pay in
`
`Filed
`
`22-CI 0G093S
`
`#1V215,2022
`
`11
`I}acid L. NichoLsan, Jeffc-rson CircugC Clerk
`
`a-
`
`
`
`Filcd
`
`22-CI iiiZ0.938
`
`d2i212t12::
`
`Da.xld L.J&hoIson..~~~f'e~:sr~n ~:i~uit ~:lerk
`1.
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`lieu of reinstatement to the extent Defendant's conduct has rendered reinstatement
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`impracticable;
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`c. Award Plaintiff damages against the Defendant in an amount to be proven at trial for
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`the humiliation, embarrassment, personal indignity, apprehension about her past,
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`current and future economic well-being, emotional distress, and mental anguish, which
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`have been inflicted upon Plaintiff by each of Defendant's wrongful acts;
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`d. Any and all equitable relief to which Plaintiff appears entitled, including reinstatement,
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`promotion, and any appropriate injunctive relief;
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`e. Award Plaintiff pre judgment and post judgment interest;
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`f. Award Plaintiff her attorneys' fees and costs incurred pursuing this matter; and
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`g. Grant Plaintiff such further relief as this Court may deem just and proper.
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`JURY DEMAND
`
`Plaintiff demands a jury to try all issues triable by jury.
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`Respectfully submitted,
`
`/s/Robyn Smith
`Robyn Smith
`Adam Johnson
`4350 Brownsboro Road
`Suite 110
`Louisville, Kentucky 40207
`finn@robynsmithlaw.com
`(502) 893-4569
`Counsel for Plaintiff
`
`Filed
`
`22-CI-il0493S
`
`{12/25{2t122
`
`12
`Dari.i L. iVieholwn, Jeffemn Circuit Clerk
`
`