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`CIVIL ACTION
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`No.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`____________________________________
`EDWARD FEENEY
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`1708 Covington Rd.
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`Yardley, PA 19067
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`Plaintiff,
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`v.
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`PERSANTE HEALTH CARE, INC.
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`d/b/a PERSANTE
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`200 East Park Dr., Suite 600
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`Mount Laurel, NJ 08054
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`Defendant.
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`___________________________________:
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`JURY TRIAL DEMANDED
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`Edward Feeney, (hereinafter referred to as “Plaintiff,” unless indicated otherwise), by
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`CIVIL ACTION COMPLAINT
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`and through his undersigned counsel, hereby avers as follows:
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`INTRODUCTION
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`1.
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`This action has been initiated by Plaintiff against Defendant for violations of the
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`Americans with Disabilities Act, as amended ("ADA" - 42 USC §§ 12101, et. seq.), the Age
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`Discrimination in Employment Act (“ADEA” - 29 U.S.C. §§ 621 et. seq.), and the New Jersey
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`Law Against Discrimination (“NJ LAD” - N.J.S.A. 10:5-1, et. seq.). Plaintiff asserts, inter alia,
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`that he was unlawfully discriminated against and terminated from his employment in violation of
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`state and federal law. As a direct consequence of Defendant’s unlawful actions, Plaintiff seeks
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`damages as set forth herein.
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`JURISDICTION AND VENUE
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`2.
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`This Court has original subject matter jurisdiction over the instant action pursuant
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`to 28 U.S.C. §§ 1331 and 1343(a)(4) because it arises under the laws of the United States and
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`seeks redress of such federal statutes.
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`1
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 2 of 9 PageID: 2
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`3.
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`This Court may properly maintain personal jurisdiction over Defendant because
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`its contacts with this State and this judicial district are sufficient for the exercise of jurisdiction in
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`order to comply with traditional notions of fair play and substantial justice, satisfying the
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`standard set forth by the United States Supreme Court in International Shoe Co. v. Washington,
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`326 U.S. 310 (1945) and its progeny.
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`4.
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`Pursuant to 28 U.S.C. §1391(b)(1) and (b)(2), venue is properly laid in this
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`district because a substantial part of the events or omissions giving rise to the claims set forth
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`herein occurred in this judicial district, in addition, venue is properly laid in this district because
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`Defendant is deemed to reside where it is subject to personal jurisdiction, rendering Defendant a
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`resident of the District of New Jersey for this action.
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`PARTIES
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`5.
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`full.
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`6.
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`7.
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`Plaintiff is an adult individual, with an address as set forth in the caption.
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`Defendant is a company located at the above-captioned address that provides
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`cleaning services.
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`8.
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`At all times relevant herein, Defendant acted by and through its agents, servants
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`and employees, each of whom acted at all times relevant herein in the course and scope of their
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`employment with and for Defendant.
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`FACTUAL BACKGROUND
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`9.
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`full.
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`10.
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`Plaintiff is a 67-year-old male.
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`2
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 3 of 9 PageID: 3
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`11.
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`Plaintiff has and continues to suffer from Polycystic Kidney Disease (“PKD”)
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`which at times, can cause high blood pressure, headaches, blood in urine, kidney stones, and
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`urinary tract infections and can be very dangerous and life threatening.
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`12.
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`13.
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`Plaintiff was hired by Defendant in or about 2005.
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`During the majority of Plaintiff’s employment with Defendant, he worked as a
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`sleep technologist – where he would go to various hospitals and labs to conduct sleep studies.
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`14.
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`In or about March of 2019, Plaintiff was approached by one of his managers and
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`asked to start working within Defendant’s Home Sleep Test (“HST”) division.
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`15.
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`In this division, Defendant would send out sleep study kits to patients so they
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`could do sleep studies at their home.
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`16.
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`From in or about March of 2019 through in or about March of 2020, Plaintiff was
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`the only employee performing any work in the HST division.
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`17.
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`Plaintiff’s work while employed within the HST division of Defendant consisted
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`of scheduling patients for home sleep studies, sending sleep equipment out to patients’ homes,
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`teaching them how to use the kit, and answering any questions they had (among other duties).
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`18.
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`Plaintiff’s title during the period he was employed with Defendant’s HST division
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`was Clinical HST Manager/Sleep Technologist.
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`19.
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`In or about March of 2020, Plaintiff requested to work from home because the
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`COVID-19 pandemic was beginning to surface and it appeared that COVID-19 was causing
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`extremely severe complications for those who were advanced in age – like Plaintiff.
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`20.
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`Plaintiff’s request to work from home starting in March of 2020 was granted and
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`shortly thereafter many other employees of Defendant began to work remotely (also because of
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`the COVID-19 pandemic).
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`3
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 4 of 9 PageID: 4
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`21. When COVID-19 became more prominent, the HST division within Defendant
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`grew substantially because patients could not schedule in-person studies at hospitals or labs.
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`22.
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`As a result of the increasing demand for home sleep studies, Defendant assigned
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`two people, Rick Kieluhn (“Rick”) and Brendan Feeney (“Brendan”) to help Plaintiff in the HST
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`division.
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`23.
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`Rick and Brendan were previously performing work in the office pertaining to in-
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`lab studies, but since they had virtually no patients after COVID-19 surfaced, Defendant
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`assigned them to help Plaintiff.
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`24.
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`In or about April of 2020, Plaintiff was informed by Defendant that he was being
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`furloughed.
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`25.
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`The decision to furlough Plaintiff seemed odd because Defendant’s HST division
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`was busier than it had ever been before. Furthermore, rather than furlough the two (younger)
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`individuals who were sent to assist Plaintiff in the HST division, Defendant chose to furlough
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`Plaintiff.
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`26.
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`In or about June of 2020, Plaintiff was re-called from furlough and continued to
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`work remotely upon his return.
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`27.
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`Because Rick and Brendan had resumed their pre-COVID jobs, Defendant hired 3
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`more individuals to assist Plaintiff within the HST division.
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`28.
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`Plaintiff learned that Defendant hired and began training the aforesaid individuals
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`(discussed in Paragraph 27 of the instant Civil Action Complaint) shortly before he was recalled
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`from furlough.
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`29.
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`All three (3) individuals hired to assist Plaintiff in the HST division (discussed
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`supra) had been sleep technologists with Defendant working in labs or hospitals prior to COVID
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`4
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 5 of 9 PageID: 5
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`and are substantially younger than Plaintiff.
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`30.
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`In or about the end of June of 2020, Plaintiff was asked to physically return to the
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`office. In response to this request, Plaintiff advised Defendant’s management, including but not
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`limited to Sean Higgins (hereinafter “Higgins”) in Defendant’s Human Resources (“HR”) office
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`that he suffered from a medical condition and due to his medical condition, he was high-risk for
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`developing severe and life-threatening complications if he were to contract COVID-19.
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`31.
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`Based on the foregoing, Plaintiff requested to continue working remotely and
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`informed Higgins that he could provide a doctor’s note regarding his need for a reasonable
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`medical accommodation.
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`32.
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`Following his aforesaid conversation with Higgins, Plaintiff provided a doctor’s
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`note to Higgins requesting to work remotely as a result of his condition.
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`33.
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`Plaintiff’s request for a reasonable accommodation to continue working remotely
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`(discussed supra) was granted and Plaintiff continued to work from home performing his job
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`without issue until in or about January of 2021.
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`34.
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`Plaintiff was not the only individual in the HST division who continued to work
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`remotely beyond June of 2021. Upon information and belief, all three individuals who were hired
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`to assist Plaintiff in the HST division also worked from home (after going through some initial
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`training in the office).
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`35.
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`In or about mid-January of 2021, Plaintiff was contacted by his manager, Ashley
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`Shepherd (“Shepherd” – Senior Director of Customer Service), and informed that Defendant was
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`restructuring and moving some employees’ jobs around.
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`36.
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`In response to this news, Plaintiff informed Shepherd that he had a disability and
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`that he needed to continue to work from home because of his aforesaid disability. Shepherd
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`5
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 6 of 9 PageID: 6
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`replied that said she would get back to him, but she never actually followed up with him.
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`37.
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`Then, on January 25, 2021, Plaintiff was informed by Defendant’s HR
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`Department that his position was being eliminated.
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`38.
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`Upon information and belief, out of the four of individuals who were performing
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`the same job within Defendant’s HST division, Plaintiff was the oldest and the only one
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`eliminated.
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`39.
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`Upon further information and belief, two out of the three remaining employees
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`who were hired to assist Plaintiff in the HST division are still performing their jobs from home.
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`40.
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`Based on a review of available jobs within Defendant following Plaintiff’s
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`separation, there were several available positions that the two remaining individuals (discussed
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`above) could have been placed into, which would have allowed Plaintiff to stay employed,
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`performing the work he was doing from home.
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`41.
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`Furthermore, upon information and belief, there were other available positions
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`within Defendant that Plaintiff could have performed from home, but he was not offered the
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`same.
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`42.
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`Plaintiff later learned through the EEOC process that Defendant is now claiming
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`that it selected Plaintiff for job elimination because of alleged poor performance, which is
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`completely absurd, as Plaintiff was never issued any written discipline regarding his performance
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`in advance of being involuntarily separated from Defendant. Furthermore, Plaintiff was never
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`informed that his performance was the reason he was selected for job elimination over the other
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`aforesaid individuals performing the same job as him.
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`43.
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`Based on the foregoing, Plaintiff believes and therefore avers that his termination
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`was completely pretextual and that he was really terminated from his employment with
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`6
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 7 of 9 PageID: 7
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`Defendant because of (1) his actual/perceived/record of disability; (2) his advanced age; (3) in
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`retaliation for requesting a reasonable accommodation (i.e. to work remotely); and/or (4) to
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`avoid having to accommodate Plaintiff any longer.
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`Count I
`Violations of Americans with Disabilities Act, as amended ("ADA")
`([1] Actual/Perceived/Record of Disability Discrimination; [2] Retaliation; [3] Failure to Accommodate)
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`44.
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`full.
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`45.
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`Plaintiff properly exhausted his administrative remedies by filing with the Equal
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`Employment Opportunity Commission and initiating this lawsuit within 90 days of receipt of a
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`right-to-sue letter and/or notice of dismissal.
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`46.
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`Based on the foregoing, Plaintiff believes and therefore avers that he was
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`terminated by Defendant (1) because of his actual/perceived/record of disability; (2) in retaliation
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`for requesting a reasonable accommodation (i.e. to work remotely); and/or (3) to avoid having to
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`accommodate Plaintiff any longer under the ADA.
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`47.
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`These actions as aforesaid constitute violations of ADA.
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`Count II
`Violations of the New Jersey Law Against Discrimination (“NJ LAD”)
`([1] Actual/Perceived/Record of Disability Discrimination; [2] Retaliation; [3] Failure to Accommodate)
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`48.
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`full.
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`49.
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`Based on the foregoing, Plaintiff believes and therefore avers that he was
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`terminated by Defendant (1) because of his actual/perceived/record of disability; (2) in retaliation
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`for requesting a reasonable accommodation (i.e. to work remotely); and/or (3) to avoid having to
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`accommodate Plaintiff any longer under the NJ LAD.
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`7
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 8 of 9 PageID: 8
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`50.
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` These actions as aforesaid constitute violations of the NJ LAD.
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`Count III
`Violations of the Age Discrimination in Employment Act “ADEA”_
`(Age Discrimination)
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`51.
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`full.
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`52.
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`Plaintiff properly exhausted his administrative remedies by filing with the Equal
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`Employment Opportunity Commission and initiating this lawsuit within 90 days of receipt of a
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`right-to-sue letter and/or notice of dismissal.
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`53.
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`Based on the foregoing, Plaintiff believes and therefore avers that he was
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`terminated due to his advanced age.
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`54.
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`These actions as aforesaid constitute violations of the ADEA.
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`Count IV
`Violations of the New Jersey Law Against Discrimination (“NJ LAD”)
`(Age Discrimination)
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`The foregoing paragraphs are incorporated herein in their entirety as if set forth in
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`55.
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`full.
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`56.
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`Based on the foregoing, Plaintiff believes and therefore avers that he was
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`terminated due to his advanced age.
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`57.
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` These actions as aforesaid constitute violations of the NJ LAD.
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`WHEREFORE, Plaintiff prays that this Court enter an Order providing that:
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`A.
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`Defendant is to compensate Plaintiff, reimburse Plaintiff, and make Plaintiff
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`whole for any and all pay and benefits Plaintiff would have received had it not been for
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`Defendant’s illegal actions, including but not limited to back pay, front pay, salary, pay
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`increases, bonuses, insurance, benefits, training, promotions, reinstatement, and seniority.
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`8
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`Case 1:21-cv-16484 Document 1 Filed 09/02/21 Page 9 of 9 PageID: 9
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`B.
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`Plaintiff is to be awarded punitive and/or liquidated damages, as permitted by
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`applicable law, in an amount believed by the Court or trier of fact to be appropriate to punish
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`Defendant for its willful, deliberate, malicious and outrageous conduct and to deter Defendant or
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`other employers from engaging in such misconduct in the future;
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`C.
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`Plaintiff is to be accorded other equitable and legal relief as the Court deems just,
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`proper, and appropriate (including but not limited to damages for emotional distress / pain and
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`suffering);
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`D.
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`Plaintiff is to be awarded the costs and expenses of this action and reasonable
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`attorney’s fees as provided by applicable federal and state law; and
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`E.
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`Plaintiff is to be given a jury trial as demanded in the caption of this Complaint.
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`Respectfully submitted,
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`KARPF, KARPF & CERUTTI, P.C.
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`By:
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`_______________________
`Ari R. Karpf, Esq.
`3331 Street Road
`Two Greenwood Square, Suite 128
`Bensalem, PA 19020
`(215) 639-0801
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`Dated: September 2, 2021
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`9
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