Case 5:21-cv-04919 Document 1 Filed 11/08/21 Page 1 of 20
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`DEREK SMITH LAW GROUP, PLLC
`IAN M. BRYSON, ESQUIRE
`Attorney ID No. 321359
`1835 Market Street, Suite 2950
`Philadelphia, PA 19103
`(215) 391-4790
`ian@dereksmithlaw.com
`Attorneys for Plaintiff, Nicole Zane
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`IN THE UNITED STATES DISTRICT COURT FOR THE
`EASTERN DISTRICT OF PENNSYLVANIA
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`NICOLE ZANE,
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`v.
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`THE CHILDREN’S HOSPITAL OF
`PHILADELPHIA and ATHENA ZUPPA,
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`Defendants.
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`Plaintiff,
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`Civil Action No._________
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`COMPLAINT FOR DECLARATORY
`JUDGMENT, INJUNCTIVE RELIEF and
`DAMAGES
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`JURY TRIAL DEMANDED
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`Nature of the Action
`1. This is an action for relief from employment discrimination, harassment and retaliation
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`pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title
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`VII”) and the Pregnancy Discrimination Act of 1978 (“PDA”). Plaintiff’s claims under
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`the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 (“PHRA”) and the
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`Philadelphia Fair Practices Ordinance, Philadelphia Code §§ 9-1100 et seq. (“PFPO”) are
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`still pending investigation before the Pennsylvania Human Relations Commission
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`(“PHRC”) because less than one year has elapsed since PHRC assumed jurisdiction over
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`Plaintiff’s charge. Plaintiff will seek leave to amend her Complaint when her PHRA and
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`PFPO claims become ripe after one year has elapsed from the date of filing with PHRC.
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`2. Ms. Zane also seeks relief pursuant to the Family and Medical Leave Act, 29 U.S.C. §§
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`2601 et seq. (“FMLA”) because Defendants retaliated against and harassed her for
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`exercising her rights under the FMLA.
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`3. Plaintiff seeks actual damages, compensatory damages, punitive damages, statutory
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`penalties, reinstatement, pre- and post-judgment interest, reasonable attorneys’ fees and
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`costs of suit to redress injuries suffered as a result of being sexually harassed and
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`discharged from employment.
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`Parties
`4. Plaintiff Nicole Zane is an adult individual resident of Bucks County and a citizen of the
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`Commonwealth of Pennsylvania.
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`5. Defendant The Children’s Hospital of Philadelphia (“CHOP”) is a domestic non-profit
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`organized and existing under the laws of the Commonwealth of Pennsylvania located at
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`3401 Civil Center Blvd., Philadelphia, PA 19104. At all relevant times, Defendant acted
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`or failed to act through its agents, servants and employees, each of whom were acting
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`within the course and scope of their employment. Defendant was Plaintiff’s “employer”
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`and Plaintiff was Defendant’s “employee” within the meaning of the applicable law.
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`6. Defendant Athena Zuppa is an adult individual who resides at 26 High Point Drive,
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`Medford, New Jersey, 08055. At all relevant times, Defendant Zuppa was an officer,
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`manager, supervisor, employee and/or agent of CHOP acting within the course and scope
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`of her employment with CHOP and had actual or ostensible authority to bind CHOP to
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`her actions and omissions. At all relevant times, Defendant Zuppa retained supervisory,
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`hiring and firing powers over her employees, including Ms. Zane. At all relevant times,
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`Defendant Zuppa acted directly or indirectly in the interest of CHOP with respect to
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`CHOP’s employees, including Ms. Zane. At all relevant times, Defendant Zuppa was
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`Plaintiff’s “employer” as defined under the FMLA. When Ms. Zane’s PHRA and PFPO
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`claims become ripe, Ms. Zane will seek leave to amend this Complaint to add claims
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`against Defendant Zuppa for retaliation and aiding and abetting.
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`7. Defendants systematically and willfully violates workers’ rights under Title VII, the
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`FMLA, the PDA, the PHRA, and the PFPO.
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`Exhaustion of Administrative Remedies
`8. Ms. Zane timely files charges of discrimination with the U.S. Equal Employment
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`Opportunity Commission (“EEOC”) and the PHRC alleging violations of Title VII, the
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`PDA, the PHRA and the PFPO alleging continuing acts of employment discrimination,
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`harassment and retaliation based on Plaintiff’s sex, gender and pregnancy.
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`9. EEOC issued Plaintiff a notice of right to sue within 90 days.
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`10. Plaintiff’s PHRA and PFPO claims are still pending before PHRC because less than one
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`year has elapsed since PHRA assumed jurisdiction over her charge. After one year has
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`elapsed since the date of filing, Plaintiff will seek leave to amend this Complaint to assert
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`her PHRA and PFPO claims. See Fed. R. Civ. P. 15(a) (Courts “freely give leave to
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`amend when justice so requires”), 15(c) (Amendments “relate back” to the date of the
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`original pleading), and 15(d) (Plaintiffs may “serve a supplemental pleading setting out
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`any transaction, occurrence, or event that happened after the date of the pleading to be
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`supplemented”).
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`11. Ms. Zane has timely filed this action and has complied with all administrative
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`prerequisites to bring this lawsuit.
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`Jurisdiction and Venue
`12. This Court has jurisdiction over this lawsuit pursuant to 28 U.S.C. § 1331 because it
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`involves questions of federal law under the Title VII, the FMLA, and the PDA.
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`13. This Court will have supplemental jurisdiction over Plaintiff’s PHRA and PFPO claims
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`pursuant to 28 U.S.C. § 1367 because they arise from the same nucleus of operative facts
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`as Plaintiff’s Title VII, FMLA and PDA claims.
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`14. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. §
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`2000e-5(f)(3) because the acts and omissions giving rise to Plaintiff’s claims occurred
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`here and Defendant is subject to personal jurisdiction here.
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`Facts
`15. Ms. Zane is an adult female who worked for CHOP as a Research Scientist.
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`16. Ms. Zane’s direct supervisor was Defendant Athena Zuppa.
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`17. In 2017 and 2018, Ms. Zane suffered two miscarriages.
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`18. After Ms. Zane suffered a miscarriage in 2018, Defendant Zuppa responded, “it’s called
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`birth control.”
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`19. Defendant Zuppa asked Ms. Zane on a number of occasions whether she was planning on
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`having a child, and if so, “if she would quit and be a stay-at-home mom after having the
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`baby.” Defendant Zuppa also asked Ms. Zane “not to be a stay-at-home mom.”
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`Defendant Zuppa acknowledged that her statements to Ms. Zane regarding her pregnancy
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`were unlawful but made them anyway because she was “asking as a friend.”
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`20. In September 2019, Defendant Zuppa brought up Ms. Zane’s miscarriages in an angry
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`tone and said that Plaintiff’s “personal life was impacting her professional life.”
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`21. In 2019, just after Ms. Zane’s dog died from being hit by a car (in addition to losing her
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`other dog), Defendant Zuppa (who was aware that the dogs had passed), said to Ms.
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`Zane, “if you can’t handle having a dog, how are you supposed to be a mother?”
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`22. In September 2019 (a few days after Defendant Zuppa’s statement “if you can’t handle
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`having a dog, how are you supposed to be a mother?”) Ms. Zane complained to CHOP’s
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`Human Resources Department (“HR”) about Defendant Zuppa’s harassing pregnancy
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`related comments.
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`23. HR failed to meet with Ms. Zane regarding her complaint until October 2019.
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`24. Ms. Zane initially met with Leon Jones in HR, who told Ms. Zane that if she made a
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`formal complaint against Defendant Zuppa that the hostile work environment would “get
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`worse.”
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`25. On or about November 6, 2019, Ms. Zane made a formal complaint against Defendant
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`Zuppa because the harassment had gotten worse.
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`26. When Defendant Zuppa became aware of Plaintiff’s complaint, she took resources away
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`from Ms. Zane that she needed in order to perform her job.
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`27. Additionally, after Ms. Zane’s complaint to HR, Defendant Zuppa made it difficult for
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`Ms. Zane to continuing working on her clinical trial.
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`28. Additionally, after Ms. Zane’s complaint to HR, Defendant Zuppa refused to speak to
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`Ms. Zane about work related matters. Meanwhile, Defendant Zuppa continued speaking
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`to other similarly situated employees who did not have miscarriages and/or who were not
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`trying to get pregnant.
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`29. Additionally, after Ms. Zane’s complaint to HR, Defendant Zuppa shunned Ms. Zane in
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`the workplace.
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`30. Additionally, after Ms. Zane’s complaint to HR, Defendant Zuppa refused to credit Ms.
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`Zane for her work in a published research article.
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`31. Additionally, after Ms. Zane’s complaint to HR, CHOP took away Ms. Zane’s
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`nomination for a professorship package, which Ms. Zane had previously negotiated with
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`CHOP’s administration.
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`32. Additionally, after Ms. Zane’s complaint to HR, Defendant Zuppa threatened that she
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`would call any potential future employers who would consider hiring Ms. Zane and tell
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`them her negative opinion of Ms. Zane.
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`33. Over the course of the next year following Ms. Zane’s complaint to HR, Defendant
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`Zuppa made it impossible for Ms. Zane to complete her K99 grant as part of her
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`“K99/R00 pathway to independence” as a pediatric pharmacology researcher at the
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`Center for Clinical Pharmacology at CHOP. Defendant Zuppa specifically refused to
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`work with Ms. Zane to complete publications that were going to be accepted. Defendant
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`Zuppa pulled one of these publications from the journal, which resulted in Ms. Zane
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`losing a publication; thereby knowingly hindering Ms. Zane’s career.
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`34. Defendant Zuppa and CHOP’s administration were unresponsive to Ms. Zane’s repeated
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`concerns about the adverse effects of Defendant Zuppa’s ongoing discrimination,
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`harassment and retaliation on Ms. Zane’s K99 project and her professional growth.
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`35. CHOP’s administration and Defendant Zuppa refused to alleviate the barriers to Ms.
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`Zane’s completion of the K99 project.
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`36. In January 2020, Ms. Zane made another complaint of harassment and retaliation against
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`Defendant Zuppa with CHOP’s HR.
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`37. As a result of Defendant’s continuing acts of discrimination, harassment and retaliation,
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`Ms. Zane was forced to seek ongoing medical treatment and therapy.
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`38. In February 2020, Ms. Zane was forced to take FMLA leave.
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`39. After Ms. Zane went out on FMLA leave, Defendant Zuppa denied that Ms. Zane worked
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`at CHOP in order to deny Ms. Zane’s loan repayments.
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`40. After Ms. Zane went out on FMLA leave, Defendant Zuppa refused to communicate with
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`Ms. Zane about her loan repayments or her work.
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`41. On June 30, 2020, Ms. Zane was constructively discharged from employment at CHOP
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`due to ongoing discrimination, harassment and retaliation which had negatively impacted
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`Plaintiff’s mental and physical health and rendered it unreasonable for her to continue
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`working there.
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`42. After Ms. Zane’s resignation, Defendant Zuppa refused to publish an article crediting Ms.
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`Zane for her work.
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`43. After Ms. Zane’s termination, Defendant Zuppa made it inordinately difficult for Plaintiff
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`to coordinate her exit and return materials.
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`44. After Ms. Zane’s termination, Defendant Zuppa continued to send harassing emails to
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`Ms. Zane.
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`45. After Ms. Zane’s termination, Defendant Zuppa refused to work with Ms. Zane to
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`complete projects.
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`46. After Ms. Zane’s termination, even though her clinical trial (K99) project was still
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`ongoing, Defendant Zuppa refused to allow anyone in the department to work with Ms.
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`Zane to finish the project.
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`47. On October 12, 2020, CHOP notified Ms. Zane that it was refusing to allow her to use the
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`data she had collected for her NIH K99 award even though Plaintiff had a legal right to
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`the data pursuant to her NIH application.
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`48. Because CHOP failed to conduct a prompt, and thorough investigation, and otherwise
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`acquiesced in the conduct, Defendants’ discrimination, harassment and retaliation
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`continued.
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`49. As a result of Defendants’ ongoing conduct, Zane has been forced to seek mental health
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`counseling and therapy.
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`50. The above are just some examples of the unlawful discrimination, harassment and
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`retaliation that Ms. Zane suffered by Defendant.
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`51. Defendants discriminated against Ms. Zane for opposing and/or complaining about
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`Defendant’s unlawful practices under the Title VII, the PDA, the FMLA, the PHRA and
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`the PFPO.
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`52. Defendants discriminated against, harassed and retaliated against Ms. Zane in the terms
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`and conditions of her employment because of sex and pregnancy and because of her
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`FMLA leave.
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`53. Defendants subjected Ms. Zane to a hostile work environment and harassment.
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`54. Defendants retaliated against Ms. Zane because she reported or otherwise opposed
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`Defendants’ discriminatory conduct and unlawful practices, and because of her FMLA
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`leave.
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`55. Plaintiff claims a continuous practice of discrimination, harassment and retaliation and
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`makes all claims herein under the continuing violations doctrine. Defendants exhibited a
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`pattern and practice of not only discrimination, but also retaliation.
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`56. Plaintiff claims unlawful constructive and/or unlawful actual discharge.
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`57. Plaintiff further claims aggravation, activation and/or exacerbation of any preexisting
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`condition.
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`58. Ms. Zane continues to suffer severe emotional distress related to the unlawful conduct
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`she experienced by Defendants.
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`59. Because of the acts and conduct complained of herein, Plaintiff has suffered and will
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`continue to suffer the loss of income, salary, bonuses, benefits and other compensations
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`which such employment entails; as well as past and future pecuniary losses, emotional
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`distress, humiliation, suffering, inconvenience, loss of enjoyment of life activities, and
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`other non-pecuniary loses.
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`60. Plaintiff is entitled to reinstatement, liquidated damages, attorneys’ fees and costs.
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`61. Because Defendants’ conduct has been malicious, willful, outrageous, and conducted
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`with full knowledge of the law, Plaintiff also claims punitive damages against
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`Defendants.
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`Causes of Action
`Count I
`Title VII Disparate Treatment
`42 U.S.C. § 2000e-2
`Plaintiff v. CHOP
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`62. Plaintiff incorporates by reference each and every allegation made in the above
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`paragraphs of this complaint.
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`63. Title VII provides, in relevant part, that “it shall be an unlawful employment practice for
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`an employer . . . to discriminate against any individual with respect to [her]
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`compensation, terms, conditions, or privileges of employment, because of [her] race,
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`color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The PDA amended
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`Section 701 of Title VII by adding the following new subsection:
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`(k) The terms 'because of sex' or 'on the basis of sex' include, but are not
`limited to, because of or on the basis of pregnancy, childbirth, or related
`medical conditions; and women affected by pregnancy, childbirth, or
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`related medical conditions shall be treated the same for all employment-
`related purposes, including receipt of benefits under fringe benefit
`programs, as other persons not so affected but similar in their ability or
`inability to work, and nothing in section 703(h) of this title shall be
`interpreted to permit otherwise.
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`64. Title VII further provides that “un unlawful employment practice is established when the
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`complaining party demonstrates that race, color, religion, sex, or national origin was a
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`motivating factor for any employment practice, even though other factors also motivated
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`the practice.” 42 U.S.C. § 2000e-2(m).
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`65. Defendant engaged in unlawful employment practices prohibited by Title VII by
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`intentionally discriminating against Ms. Zane with respect to her compensation, terms,
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`conditions, training and privileges of employment because of her sex and pregnancy and
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`in retaliation for her protected activity.
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`66. Defendant subjected Ms. Zane to adverse tangible employment actions—defined as
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`significant changes in Plaintiff’s employment status, discipline, denial of training, failure
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`to promote, reassignment with significantly different job responsibilities, and decisions
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`causing changes in significant changes in her employment benefits.
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`67. Ms. Zane’s protected characteristics played a determinative factor in Defendant’s
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`decisions.
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`68. Defendant cannot show any legitimate nondiscriminatory reasons for their employment
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`practices and any reasons proffered by Defendant for their actions against Plaintiff are
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`pretextual and can readily be disbelieved.
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`69. Alternatively, Ms. Zane’s protected status played a motivating part in Defendant’s
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`decisions even if other factors may also have motivated their actions against her.
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`70. Defendant acted with the intent to discriminate.
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`71. Defendant acted upon a continuing course of conduct.
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`72. As a result of Defendant’s violations of Title VII, Plaintiff has suffered damages,
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`including, but not limited to past and future lost wages, pain and suffering,
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`inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,
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`reputational harm, diminishment of career opportunities, and other harm, both tangible
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`and intangible.
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`WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following
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`relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an
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`award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an
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`award of pre- and post-judgment interest and court costs as further allowed by law; (4) an
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`adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title
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`VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.
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`Count II
`Title VII Hostile Work Environment
`42 U.S.C. § 2000e-2
`Plaintiff v. CHOP
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`73. Plaintiff incorporates by reference each and every allegation made in the above
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`paragraphs of this complaint.
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`74. Title VII also prohibits hostile work environment harassment, defined as unwanted
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`comments or conduct regarding the plaintiff’s protected characteristics that have the
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`purpose or effect of unreasonably interfering with the terms and conditions of the
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`plaintiff’s employment. Harris v. Forklift Systems, 510 U.S. 17, 21 (1993).
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`75. An employer is strictly liable for supervisor harassment that “culminates in a tangible
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`employment action, such as discharge, demotion, or undesirable reassignment.”
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`Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
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`76. Respondeat superior liability for the acts of non-supervisory employees exists where “the
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`defendant knew or should have known of the harassment and failed to take prompt
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`remedial action. Andrews v. City of Philadelphia, 895 F.2d 1469, 1486 (3d Cir. 1990).
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`77. Employer liability for co-worker harassment also exists where “the employer failed to
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`provide a reasonable avenue for complaint.” Huston v. Procter & Gamble Paper Prods.
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`Corp., 568 F.3d 100, 105 (3d Cir. 2009).
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`78. The Third Circuit has held that the retaliation provision of Title VII “can be offended by
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`harassment that is severe or pervasive enough to create a hostile work environment.”
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`Jensen v. Potter, 435 F.3d 444, 446 (3d Cir. 2006).
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`79. Here, Defendant’s conduct occurred because of Ms. Zane’s legally protected
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`characteristics and was severe or pervasive enough to make a reasonable person of the
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`same legally protected classes believe that the conditions of employment were altered and
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`that the working environment was intimidating, hostile or abusive.
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`80. The harassing conduct directly refers to Plaintiff’s sex and pregancy.
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`81. Defendant delegated to Plaintiff’s supervisors the authority to control the work
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`environment and they abused that authority to create a hostile work environment.
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`82. Harassing conduct filled the environment of Plaintiff’s work area.
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`83. Defendant knew that the harassing conduct filled Plaintiff’s work environment.
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`84. Harassing conduct occurred daily.
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`85. Harassing conduct caused Plaintiff to sustain severe emotional distress resulting in
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`physical illness and serious psychological sequelae.
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`86. Plaintiff subjectively regarded the harassing conduct as unwelcome and unwanted and
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`objectively opposed the conduct.
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`87. The conduct was both severe and pervasive.
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`88. The conduct was physically threatening and humiliating.
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`89. The conduct unreasonably interfered with Plaintiff’s work performance.
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`90. The conduct was so extreme that it resulted in material changes to the terms and
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`conditions of Plaintiff’s employment.
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`91. Defendant provided a futile avenue for complaint.
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`92. Defendant retaliated against Plaintiff for her complaints.
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`93. Defendant acted upon a continuing course of conduct.
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`94. As a result of Defendant’s violations of Title VII, Plaintiff has suffered damages,
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`including, but not limited to past and future lost wages, pain and suffering,
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`inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,
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`reputational harm, diminishment of career opportunities, and other harm, both tangible
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`and intangible.
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`WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following
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`relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an
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`award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an
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`award of pre- and post-judgment interest and court costs as further allowed by law; (4) an
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`adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title
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`VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.
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`Count III
`Title VII Retaliation
`42 U.S.C. § 2000e-3
`Plaintiff v. CHOP
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`95. Plaintiff incorporates by reference each and every allegation made in the above
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`paragraphs of this complaint.
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`96. Title VII protects employees from retaliation for attempting to exercise their rights under
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`the Act:
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`42 U.S.C. § 2000e-3. Other unlawful employment practices
`(a) Discrimination for making charges, testifying, assisting, or
`participating in enforcement proceedings. It shall be an unlawful
`employment practice for an employer to discriminate against any of
`his employees . . . because [she] has opposed any practice made an
`unlawful employment practice by this subchapter, or because [she]
`has made a charge, testified, assisted, or participated in any manner
`in an investigation, proceeding, or hearing under this subchapter.
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`97. The Supreme Court in Burlington v. N. & S.F. Ry. V. White, 548 U.S. 53, 68 (2006) held
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`that a cause of action for retaliation under Title VII lies whenever the employer responds
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`to protected activity in such a way that “might have dissuaded a reasonable worker from
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`making or supporting a charge of discrimination.”
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`98. Informal complaints and protests can constitute protected activity under the “opposition”
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`clause of 42 U.S.C. § 2000e-3(a). Moore v. City of Philadelphia, 461 F.3d 331, 343 (3d
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`Cir. 2006) (“Opposition to discrimination can take the form of informal protests of
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`discriminatory employment practices, including making complaints to management.”).
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`99. Title VII’s anti-retaliation provision also protects employees who speak out about
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`discrimination by answering questions during an employer’s internal investigation.
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`Crawford v. Metropolitan Gov’t of Nashville and Davidson Cty., Tennessee, 555 U.S.
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`271, 277 (2009) (declaring that there is “no reason to doubt that a person can ‘oppose’ by
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`responding to someone else’s question just as surely as by provoking the discussion, and
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`nothing in the statute requires a freakish rule protecting an employee who reports
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`discrimination on her own initiative but not one who reports the same discrimination in
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`the same words when her boss asks a question.”).
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`100.
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`Retaliation need not be job-related to be actionable under Title VII—an employer
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`can effectively retaliate against an employee by taking actions not directly related to her
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`employment or by causing her harm outside the workplace. White, 548 U.S. at 61-62
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`(rejecting authority from the Third Circuit and others requiring that the plaintiff suffer an
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`adverse employment action in order to recover for retaliation).
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`101.
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`“[A] plaintiff need not prove the merits of the underlying discrimination
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`complaint, but only that ‘[she] was acting under a good faith, reasonable belief that a
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`violation existed.’” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.
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`1996); Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir. 1993); Sumner v. United
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`States Postal Service, 899 F.2d 203, 209 (2d Cir. 1990), overruled on other grounds by
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`Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir.1995).
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`102.
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`Here, Defendant discriminated against Plaintiff because of her protected activity
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`under Title VII.
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`103.
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`Plaintiff was acting under a reasonable, good faith belief that her right to be free
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`from discrimination on the basis of sex and retaliation was violated.
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`104.
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`Plaintiff was subjected to materially adverse actions at the time or after the
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`protected conduct took place.
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`105.
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`There was a causal connection between Defendant’s materially adverse actions
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`and Plaintiff’s protected activity. In determining whether a plaintiff has produced
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`evidence of causation, courts in the Third Circuit focus on two indicia: timing and
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`evidence of ongoing antagonism. Plaintiff will rely on a broad array of evidence to
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`demonstrate a causal link between her protected activity and Defendant’s actions taken
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`against her, such as the unusually suggestive proximity in time between events, as well as
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`Case 5:21-cv-04919 Document 1 Filed 11/08/21 Page 16 of 20
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`Defendant’s antagonism and change in demeanor toward Plaintiff after Defendant
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`became aware of Plaintiff’s protected activity.
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`106.
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`Defendant’s actions were “materially adverse” because they were serious enough
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`to discourage a reasonable worker from engaging in protected activity.
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`107.
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`108.
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`Defendant acted upon a continuing course of conduct.
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`Plaintiff will rely on a broad array of evidence to demonstrate a causal link
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`between her protected activity and Defendant’s actions taken against her, such as the
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`unusually-suggestive proximity in time between events, as well as Defendants’
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`antagonism and change in demeanor toward Plaintiff after Defendant became aware of
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`Plaintiff’s protected activity.
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`109.
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`As a result of Defendant’s violations of Title VII, Plaintiff has suffered damages,
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`including, but not limited to past and future lost wages, pain and suffering,
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`inconvenience, mental anguish, loss of enjoyment of life, humiliation, emotional distress,
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`reputational harm, diminishment of career opportunities, and other harm, both tangible
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`and intangible.
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`WHEREFORE, Plaintiff demands judgment against Defendant and prays for the following
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`relief: (1) an award of compensatory damages in an amount consistent with Title VII; (2) an
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`award of reasonable attorneys’ fees and costs of this action in accordance with Title VII; (3) an
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`award of pre- and post-judgment interest and court costs as further allowed by law; (4) an
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`adjudication and declaration that Defendant’s conduct as set forth herein is in violation of Title
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`VII; and (5) all additional general and equitable relief to which Plaintiff is entitled.
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`Count IV
`FMLA Interference and Retaliation
`29 U.S.C. §§ 2615(a)(2)
`Plaintiff v. All Defendants
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`110.
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`Plaintiff incorporates by reference each and every allegation made in the above
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`paragraphs of this complaint.
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`111.
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`The FMLA entitles eligible employees of covered employers to take unpaid, job
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`protected leave for specified family and medical reasons with continuation of group
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`health insurance coverage under the same terms and conditions as if the employee had
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`not taken leave. 29 U.S.C. §§ 2601 et seq.
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`112.
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`29 U.S.C. § 2615(a)(1) provides that “[i]t shall be unlawful for any employer to
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`interfere with, restrain, or deny the exercise or the attempt to exercise, any right provided
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`under [the FMLA].” 29 U.S.C. § 2615(a)(1).
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`113.
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`29 U.S.C. § 2615(a)(2) provides that “[i]t shall be unlawful for any employer to
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`discharge or in any other manner discriminate against any individual for opposing any
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`practice made unlawful by [the FMLA].” 29 U.S.C. § 2615(a)(2).
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`114.
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`Section 105 of the FMLA and section 825.220 of the FMLA regulations prohibit
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`the following actions:
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`• An employer is prohibited from interfering with, restraining, or denying the
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`exercise of, or the attempt to exercise, any FMLA right.
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`• An employer is prohibited from discriminating or retaliating against an employee
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`or prospective employee for having exercised or attempted to exercise any FMLA
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`right.
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`Case 5:21-cv-04919 Document 1 Filed 11/08/21 Page 18 of 20
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`• An employer is prohibited from discharging or in any other way discriminating
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`against any person, whether or not an employee, for opposing or complaining
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`about any unlawful practice under the FMLA.
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`• All persons, whether or not employers, are prohibited from discharging or in any
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`other way discriminating against any person, whether or not an employee,
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`because that person has —
`o Filed any charge, has instituted, or caused to be instituted, any
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`proceeding under or related to the FMLA;
`o Given, or is about to give, any information in connection with an inquiry
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`or proceeding relating to any right under the FMLA; or
`o Testified, or is about to testify, in any inquiry or proceeding relating to a
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`right under the FMLA.
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`29 C.F.R. § 825.220(a).
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`115.
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`The FMLA further prohibits employers from:
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`• Transferring employees from one worksite to another for the purpose of reducing
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`worksites, or to keep worksites, below the 50-employee threshold for employee
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`eligibility under the Act;
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`• Changing the essential functions of the job in order to preclude the taking of
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`leave;
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`• Reducing hours available to work in order to avoid employee eligibility.
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`29 C.F.R. § 825.220(b).
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`Case 5:21-cv-04919 Document 1 Filed 11/08/21 Page 19 of 20
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`116.
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`The FMLA’s prohibition against interference prohibits an employer from
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`discriminating or retaliating against an employee for having exercised or attempted to
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`exercise FMLA rights. 29 C.F.R. § 825.220(c). Employers cannot use the taking of
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`FMLA leave as a negative factor in employment actions, such as hiring, promotions or
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`disciplinary actions. Id.
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`117.
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`The FMLA permits individual liability on the part of a supervisor. Haybarger v.
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`Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408, 413 (3d Cir. 2012).
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`118.
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`Pursuant to 29 C.F.R. § 825.220(b), Defendants are liable to Plaintiff for
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`compensation and benefits lost by reason of their violations of the FMLA, for other
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`actual monetary losses as a direct result of their violations, and for all appropriate
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`equitable and other relief, including employment, reinstatement, promotion, and any
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`other relief tailored to the harm suffered.
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`WHEREFORE, Plaintiff demands judgment against Defendants for actual damages,
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`compensatory damages, punitive damages, back pay, front pay, reinstatement, attorneys’ fees,
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`litigation costs, pre- and post-judgment interest, an adjudication and declaration that Defendants’
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`conduct as set forth herein is in violation of the FMLA, and all other relief deemed equitable and
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`just.
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`JURY DEMAND
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`Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff hereby demands
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`a trial by jury on all issues raised by this complaint.
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