Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 1 of 8. PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`
`KELLY SCHWAN
`3361 Reston Drive
`The Villages, Florida 32162
`
`
`Plaintiff,
`
`
`v.
`
`
`
`
`VISITING NURSING HOSPICE AND
`HEALTH CARE
`100 Madison Avenue
`Toledo, Ohio 43604
`
`
`SERVE ALSO:
`VISITING NURSING HOSPICE
`AND HEALTH CARE
`c/o Registered Agent
`CT CORP SYSTEM
`4400 East Commons Way, Suite 125
`Columbus, Ohio 43219
`
`Defendant.
`
`CASE NO.
`
`JUDGE:
`
`
`COMPLAINT FOR DAMAGES
`AND INJUNCTIVE RELIEF
`
`JURY DEMAND ENDORSED
`HEREIN
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`Plaintiff, Kelly Schwan, by and through undersigned counsel, as her Complaint against
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`Defendant Visiting Nursing Hospice and Health Care states and avers the following:
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`PARTIES AND VENUE
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`1. Schwan was a resident of Toledo, Lucas County, Ohio while employed by Defendant, and is
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`currently a resident of the State of Florida.
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`2. At all times herein, Schwan was acting in the course and scope of her employment.
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`3. Defendant Visiting Nursing Hospice and Health Care is an Ohio non-profit corporation with
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`its principal place of business at 100 Madison Avenue, Toledo, Lucas County, Ohio 43604.
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF OHIO
`WESTERN DIVISION
`
`
`KELLY SCHWAN
`3361 Reston Drive
`The Villages, Florida 32162
`
`
`Plaintiff,
`
`
`v.
`
`
`
`
`VISITING NURSING HOSPICE AND
`HEALTH CARE
`100 Madison Avenue
`Toledo, Ohio 43604
`
`
`SERVE ALSO:
`VISITING NURSING HOSPICE
`AND HEALTH CARE
`c/o Registered Agent
`CT CORP SYSTEM
`4400 East Commons Way, Suite 125
`Columbus, Ohio 43219
`
`Defendant.
`
`CASE NO.
`
`JUDGE:
`
`
`COMPLAINT FOR DAMAGES
`AND INJUNCTIVE RELIEF
`
`JURY DEMAND ENDORSED
`HEREIN
`
`
`
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`Plaintiff, Kelly Schwan, by and through undersigned counsel, as her Complaint against
`
`Defendant Visiting Nursing Hospice and Health Care states and avers the following:
`
`PARTIES AND VENUE
`
`1. Schwan was a resident of Toledo, Lucas County, Ohio while employed by Defendant, and is
`
`currently a resident of the State of Florida.
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`2. At all times herein, Schwan was acting in the course and scope of her employment.
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`3. Defendant Visiting Nursing Hospice and Health Care is an Ohio non-profit corporation with
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`its principal place of business at 100 Madison Avenue, Toledo, Lucas County, Ohio 43604.
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 2 of 8. PageID #: 2
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`4. Defendant does business under a variety of fictious names registered with the Ohio Secretary
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`of State, including ProMedica Ebeid Hospice (Sylvania) (hereinafter “ProMedica”).
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`5. Plaintiff worked at ProMedica in Sylvania, Lucas County, Ohio.
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`6. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 in that Schwan is alleging
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`a Federal Law Claim under the Family & Medical Leave Act (“FMLA”), 29 U.S.C § 2601 et seq.
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`7. All material events alleged in this Complaint occurred in Lucas County, Ohio.
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`8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
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`FACTS
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`9. Schwan began working for ProMedica in or around June 2015.
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`10. Schwan was employed by ProMedica as an inpatient social worker.
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`11. ProMedica was, at all times hereinafter mentioned, engaged in commerce or in an industry or
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`activity affecting commerce and employed 50 or more employees for each working day during
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`each of 20 or more calendar work weeks in the current or preceding calendar year and therefore
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`is an employer as defined in 29 U.S.C § 2611(4).
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`12. On or about January 29, 2020, Schwan applied for FMLA leave.
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`13. Schwan applied for FMLA leave because she was having hip surgery.
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`14. Schwan’s hip surgery was required due to arthritis and other issues with her hip.
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`15. Schwan’s arthritis and hip surgery constituted a serious health condition within the meaning
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`of the FMLA.
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`16. Schwan sought FMLA leave from May 1, 2020, until August 1, 2020, to have and recover
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`from surgery.
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`17. On or around April 17, 2020, just two weeks prior to the start of her FMLA leave, Schwan was
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`informed by Senior Administrator, Keryn Werdehoff, and Social Worker Supervisor, Jennifer
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 3 of 8. PageID #: 3
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`Wilson, that her job duties were changing to include on-call outpatient duties if the beds were
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`less than half full, and COVID-19 consults on weekends and evenings.
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`18. The duties of similarly situated employees who had not sought FMLA leave were unchanged.
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`19. Werderhoff and Wilson reprimanded Schwan for taking FMLA leave.
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`20. Werderhoff and Wilson told Schwan that her FMLA leave “really wasn’t working for [them].”
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`21. On or around July 30, 2020, just before returning from FMLA leave, Schwan sent a text to
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`Resident Director Kate Hines asking for information related to her new job duties.
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`22. Instead of giving her any specifics about her new job duties, Hines told Schwan that by signing
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`a sign-in sheet for the meeting, she had agreed to the new job duties and expectations, whatever
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`they were.
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`23. Schwan was concerned about the lack of specifics regarding her new job duties.
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`24. Because of this concern, Schwan emailed human resources representative Colleen Alexander
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`on or around July 31, 2020, and expressed her concerns.
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`25. Alexander called Kelly on or around August 3, 2020, and explained that ProMedica was
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`entitled to change Kelly’s job duties at any time.
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`26. Alexander told Schwan that if she was unwilling to accept this, she could speak to Richard
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`Russell to try and get another job within ProMedica.
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`27. Schwan was reluctant to do so, because, in the past, she believed Russell had intentionally
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`prevented her from obtaining other jobs within ProMedica.
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`28. Around the end of October 2020, Hines spoke with Schwan about moving to part-time work.
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`29. Schwan had no choice but to accept this change.
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`30. Schwan requested that, if she was going to be required to move to part time, she be permitted
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`to work three days a week.
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 4 of 8. PageID #: 4
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`31. Despite this, Schwan was presented with a work schedule consisting of four hours per day, five
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`days per week.
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`32. Schwan was informed that the schedule was Russell’s idea.
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`33. In early November 2020, Schwan was placed on an outpatient rotation program.
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`34. Schwan received no training or instructions for the outpatient rotation program.
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`35. Schwan was not informed by her superiors about her placement.
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`36. Schwan found about the change in her job duties from a coworker.
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`37. Concerned about the change in job duties with no notice, on or around November 11, 2020,
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`Schwan sent an email to the CEO and President of ProMedica Hospice, Randy Oostra, to report
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`the situation.
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`38. Oostra responded to Schwan that “we’ll look into it.”
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`39. On or around December 2, 2020, Schwan had a meeting with Hines and HR Support
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`Supervisor, Dana Vore.
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`40. During that meeting, Schwan was told she had three options moving forward: (1) work part
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`time; (2) work full time with more work and no extra pay; or (3) be laid off.
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`41. Schwan was unwilling to work inconsistent hours, contrary to the schedule she had requested,
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`without any training or instruction.
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`42. Schwan always had been willing to work full time, but she was being asked to work an
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`additional twenty hours per week, with no health benefits, and no additional pay.
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`43. Schwan believed the alternatives presented to her were insulting and in retaliation for her
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`having taken FMLA leave.
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`44. Schwan was presented with no choice. Schwan felt forced to choose a layoff.
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`.4
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 5 of 8. PageID #: 5
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`45. On or around December 8, 2020, Schwan reached out to the Regional HR Manager, Mona
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`Kirkland, to inquire about how to file a grievance.
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`46. Kirkland did not respond until on or around December 10, 2020.
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`47. At that time, Kirkland asked Schwan to tell her what was going on.
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`48. Schwan responded that she merely wanted to know the process for filing a grievance.
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`49. Schwan was not provided the information she requested.
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`50. On or about December 30, 2020, Schwan was forced to resign and was effectively
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`constructively discharged.
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`51. Schwan’s termination was an adverse employment action.
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`52. Schwan’s termination was an adverse action.
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`53. ProMedica knowingly terminated Schwan’s employment.
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`54. ProMedica intentionally terminated Schwan’s employment.
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`55. ProMedica willfully terminated Schwan’s employment.
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`56. ProMedica knowingly took an adverse employment action against Schwan.
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`57. ProMedica knowingly took an adverse action against Schwan.
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`58. ProMedica intentionally to an adverse employment action against Schwan.
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`59. ProMedica intentionally took an adverse action against Schwan.
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`60. ProMedica willfully took an adverse employment action against Schwan.
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`61. ProMedica willfully took an adverse action against Schwan.
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`62. On or about December 30, 2020, ProMedica terminated Schwan’s employment because of her use
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`of qualified FMLA leave.
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`63. On or about December 30, 2020, ProMedica terminated Schwan’s employment in order to interfere
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`with her ability to use qualified FMLA leave.
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 6 of 8. PageID #: 6
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`64. As a direct and proximate result of ProMedica’ s conduct, Schwan suffered and will continue
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`to suffer damages, including economic, emotional distress, and physical sickness damages.
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`COUNT I: UNLAWFUL INTERFERENCE WITH FMLA RIGHTS
`
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`65. Schwan restates each and every prior paragraph of this Complaint, as if it were fully
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`restated herein.
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`66. Pursuant to 29 U.S.C. § 2601 et seq., covered employers are required to provide employees
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`job-protected unpaid leave for qualified medical and family situations.
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`67. ProMedica is a covered employer under FMLA.
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`68. During her employment, Schwan qualified for FMLA leave.
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`69. ProMedica changed Schwan’s job duties without training or guidance to interfere with her
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`exercise of FMLA rights.
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`70. ProMedica unlawfully interfered with Schwan’s exercise of her rights under FMLA in
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`violation of Section 105 of FMLA and section 825.220 of FMLA regulations.
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`71. As a direct and proximate result of ProMedica’ s conduct, Schwan is entitled to all damages
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`provided for in 29 U.S.C. § 2617, including liquidated damages, costs, and reasonable
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`attorney’s fees.
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`COUNT II: RETALIATION IN VIOLATION OF FMLA
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`72. Schwan restates each and every prior paragraph of this Complaint, as if it were fully
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`restated herein.
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`73. During her employment, Schwan utilized FMLA leave.
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`74. After Schwan utilized her qualified FMLA leave, ProMedica retaliated against her.
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`75. ProMedica retaliated against Schwan by changing her job duties without instruction or
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`training.
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`.6
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 7 of 8. PageID #: 7
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`76. ProMedica retaliated against Schwan by giving her an ultimatum of taking a layoff or being
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`subjected to unreasonable requirements.
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`77. ProMedica retaliated against Schwan by constructively terminating her employment.
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`78. ProMedica willfully retaliated against Schwan in violation of 29 U.S.C. § 2615(a).
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`79. As a direct and proximate result of ProMedica’ s wrongful conduct, Schwan is entitled to all
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`damages provided for in 29 U.S.C. § 2617, including liquidated damages, costs, and reasonable
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`attorney’s fees.
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`WHEREFORE, Plaintiff Schwan respectfully requests that this Honorable Court grant the
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`DEMAND FOR RELIEF
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`following relief:
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`(a) Issue a permanent injunction:
`
`(i)
`
`(ii)
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`Requiring Defendant to abolish discrimination, harassment, and retaliation;
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`Requiring allocation of significant funding and trained staff to implement all changes
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`within two years;
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`(iii) Requiring removal or demotion of all supervisors who have engaged in discrimination,
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`harassment, or retaliation, and failed to meet their legal responsibility to investigate
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`complaints promptly and/or take effective action to stop and deter prohibited personnel
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`practices against employees;
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`(iv) Creating a process for the prompt investigation of discrimination, harassment, or
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`retaliation complaints; and
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`(v)
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`Requiring mandatory and effective training for all employees and supervisors on
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`discrimination, harassment, and retaliation issues, investigations, and appropriate
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`corrective actions;
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`Case: 3:21-cv-01571 Doc #: 1 Filed: 08/12/21 8 of 8. PageID #: 8
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`(b) Issue an order requiring Defendant to restore Schwan to one of the positions to which she was
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`entitled by virtue of her application and qualifications, and expunge her personnel file of all
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`negative documentation;
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`(c) An award against Defendant of compensatory and monetary damages to compensate Schwan
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`for physical injury, physical sickness, lost wages, emotional distress, and other consequential
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`damages, in an amount in excess of $25,000 per claim to be proven at trial;
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`(d) An award of punitive damages against Defendant in an amount in excess of $25,000;
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`(e) An award of reasonable attorneys’ fees and non-taxable costs for Schwan’s claims as allowable
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`under law;
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`(f) An award of the taxable costs of this action; and
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`(g) An award of such other relief as this Court may deem necessary and proper.
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`Respectfully submitted,
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`/s/ Sean Costello________
`Sean Costello (0068612)
`Trisha Breedlove (0095852)
`THE SPITZ LAW FIRM, LLC
`1103 Schrock Road, Suite 307
`Columbus, Ohio 43229
`Phone: (216) 291-4744
`Fax: (216) 291-5744
`Email: sean.costello@spitzlawfirm.com
`Email: trisha.breedlove@spitzlawfirm.com
`Attorneys for Plaintiff Kelly Schwan
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`
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`JURY DEMAND
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`Plaintiff Schwan demands a trial by jury by the maximum number of jurors permitted.
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`
`
`/s/ Sean Costello_________
`Sean Costello (0068612)
`Trisha Breedlove (0095852)
`
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`.8
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