Case 9:22-cv-00056-MJT Document 1 Filed 03/31/22 Page 1 of 7 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
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`MAJORIE WHITAKER,
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`Plaintiff,
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`v.
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`CIVIL ACTION NO. 9:22-cv-00056
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`JURY DEMANDED
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`§
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`NACOGDOCHES MEMORIAL
`HOSPITAL CORPORATION
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`Defendant.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Plaintiff Majorie Whitaker hereby files this, her Original Complaint, against Defendant
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`Nacogdoches Memorial Hospital Corporation for violating federal law. The causes of action and
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`summary of claims relating thereto are addressed below:
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`I.
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`PARTIES, JURISDICTION AND VENUE
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`1.
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`Plaintiff Majorie Whitaker (“Plaintiff” or “Whitaker”) is currently a citizen and
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`resident of Nacogdoches, Texas.
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`2.
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`Defendant Nacogdoches Memorial Hospital Corporation
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`(“Nacogdoches
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`Memorial” or “Defendant”) is a Texas non-profit corporation. Defendant’s main offices are
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`located at 1018 N. Mound Street, Nacogdoches, Texas 75961. Defendant operates a hospital and
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`medical clinic in Nacogdoches, Texas where Plaintiff was employed.
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`3.
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`Nacogdoches Memorial Hospital Corporation will be served by delivering the
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`summons and complaint to its registered agent for service, Ella B. Nobles, 1018 N. Mound Street,
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`Nacogdoches, Texas 75961.
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 1
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`4.
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`This court has jurisdiction to hear the merits of Plaintiff’s claims under 28 U.S.C.
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`§§1331 as Plaintiff is claiming violations of the Americans with Disabilities Act.
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`5.
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`6.
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`Venue exists in this district and division as detailed in 28 U.S.C. §1391.
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`Most of the acts alleged herein occurred in Nacogdoches County, Texas.
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`II.
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`FACTUAL BACKGROUND
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`7.
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`Plaintiff worked in the housekeeping department cleaning offices at Nacogdoches
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`Memorial Hospital. Plaintiff worked for the hospital from May 19, 2009, until she was terminated
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`on or about March 13, 2021.
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`8.
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`On March 19, 2020, Plaintiff was cleaning the doctor offices and other offices that
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`she normally cleaned on a daily basis. Plaintiff moved a couple of chairs, and felt a horrible pain
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`shoot from her left shoulder down. Plaintiff stopped cleaning and waited a few minutes, but the
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`pain did not go away. Thereafter, Plaintiff went to the hospital on the 2nd floor and reported the
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`on-the-job injury to her manager, Keith Fuller. Plaintiff told Fuller that she needed to go to the
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`ER. Fuller ordered Plaintiff to go to Michelle McCollum.
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`9.
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`At her manager’s instruction, Plaintiff went to the 1st floor to McCollum’s office.
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`McCollum gave Plaintiff on-the-job injury paperwork to fill out and take it to the ER staff. Plaintiff
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`then went to the ER where they took x-rays, blood and urine samples. The results came back with
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`a torn muscle. The ER doctor gave Plaintiff a prescription for pain meds and a muscle relaxer.
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`The ER doctor also told Plaintiff to go to her doctor before returning to work. Plaintiff gave the
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`paperwork to Michelle McCollum, and she made a copy. A workers compensation claim was filed
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`on behalf of the Plaintiff in connection with her on-the-job injury.
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`10.
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`The next day Mrs. Katherine Russell in HR called Plaintiff and told her to go to
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`Urgent Care, but Plaintiff was already in Dr. Karla’s office, one of the hospital doctors. Thereafter,
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`Plaintiff had to start going to the Urgent Care, Dr. Kathy. Dr. Kathy put Plaintiff on light duty, but
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 2
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`her supervisor Keith Fuller ignored Plaintiff’s work restrictions and kept her doing what she had
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`been doing when she was injured.
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`11.
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`Plaintiff went back to the doctor and told her that her shoulder was hurting worse,
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`so she ordered an MRI. After getting the results of the MRI, Plaintiff chose to see Dr. Overturf
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`who put Plaintiff in physical therapy.
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`12.
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`October 12, 2020, Dr. Overturf put Plaintiff on light duty and told her not to use her
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`left arm. Plaintiff took the paperwork to Mrs. Katherine’s office. She said “if the doctor does not
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`want you to use that arm there is nothing you can do” - that is that there was no accommodation
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`available to Plaintiff. Plaintiff told Mrs. Katherine that she was able to check people in for the
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`Covid. She said that is not with the hospital. Mrs. Katherine said she would talk to Keith Fuller
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`(her supervisor) and Michelle McCollum (the doctor) the next day and call her.
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`13. Mrs. Katherine called Plaintiff and said she could go ahead and take off and
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`reported the injury to workers comp. Plaintiff was off from October 13, 2020 to December 31,
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`2020, based upon Mrs. Katherine’s orders. Plaintiff had her shoulder surgery January 4, 2021.
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`Plaintiff was supposed to return to work on April 24, 2021, and she gave the proper paperwork to
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`the hospital stating that date for her return.
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`14.
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`Plaintiff received a letter dated March 22, 2021, terminating her employment as of
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`March 13, 2021.
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`III. CAUSES OF ACTION
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`A.
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`AMERICANS WITH DISABILITIES ACT
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`15.
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`The allegations contained in previous paragraphs are hereby incorporated by
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`reference.
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`16.
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`As a result of her medical conditions described herein, Plaintiff has been an
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`individual with a “disability” within the meaning of Section 3(2) of the Americans with Disabilities
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 3
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`Act, 42 U.S.C. § 12102(2). More particularly, Plaintiff had impairments that substantially limits
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`one or more of her major life activities, has a record of such an impairment, and/or was regarded
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`by Defendants as having such an impairment.
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`17.
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`Plaintiff is a “qualified individual with a disability” as that term is defined in §
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`101(8) of the ADA, 42 U.S.C. § 12111(8). More specifically, Plaintiff is an individual with a
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`disability who, with reasonable accommodation, can perform the essential functions of her job as
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`a housekeeper for the hospital.
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`18.
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`The effect of these unlawful practices has been to deprive Plaintiff of equal
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`employment opportunities, and to otherwise adversely affect her employment status as an
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`individual with a disability within the meaning of the ADA. Based upon the stated allegations,
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`Plaintiff asserts five claims under the ADA: (1) Disparate treatment based upon Defendant’s
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`termination of Plaintiff based upon qualification standards and other criteria that screened her out
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`as an individual with disabilities; (2) Disparate impact based upon the Fitness-for-Duty policy
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`which requires a full-duty release which had an adverse impact on Plaintiff as an individual with
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`disabilities by screening Plaintiff from employment by reason of her impairment related to the
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`recovery from her surgery; and (3) failure to make reasonable accommodation to Plaintiff’s
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`disabilities, which constitutes discrimination against Plaintiff with respect to terms, conditions, or
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`privileges of employment in violation of Section 102(b)(5)(A) of the ADA, 42 U.S.C. §
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`12112(b)(5)(A) and (5) regarding Plaintiff as disabled. In connection with Plaintiff’s
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`accommodation claim, Defendant failed to undertake any good faith efforts, in consultation with
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`Plaintiff, to identify and make any reasonable accommodation with Plaintiff.
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`B.
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`FAMILIY AND MEDICAL LEAVE ACT
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`19.
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`The allegations contained in previous paragraphs are hereby incorporated by
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`reference.
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 4
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`20.
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`Prior to Plaintiff’s termination by Defendant, she had worked for Defendant for
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`more than twelve (12) months, and for more than 1,250 hours during that twelve-month period.
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`21.
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`Defendant employed, and continues to employ, fifty or more persons at, or within
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`a seventy-five (75) mile radius of, the location where Plaintiff worked.
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`22.
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`Plaintiff had not taken twelve (12) weeks off work for a serious health condition,
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`or otherwise, during the twelve-month period prior to (a) the onset of her serious health condition,
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`or (b) the time of her termination.
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`23.
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`Plaintiff has satisfied all jurisdictional prerequisites in connection with her claim
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`under the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et. seq.
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`24.
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`25.
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`Defendant is an “employer” as defined by the FMLA in 29 U.S.C. § 2611(4).
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`During the time that Plaintiff was employed by Defendant, in 2021, she was an
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`“eligible employee” as defined by the FMLA in 29 U.S.C. § 2611(2).
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`26. While Plaintiff was employed by Defendant, Plaintiff had an illness that can be
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`defined as a “serious health condition” under the FMLA as outlined in 29 U.S.C. § 2611(11).
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`27.
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`Plaintiff was entitled to medical leave for her own serious health condition as
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`provided for in the FMLA (in 29 U.S.C. § 2612(a)(1)(C)).
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`28.
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`Defendant terminated Plaintiff’s employment for the time she was forced to take
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`off work to care for her serious health condition, which violates the protections of the FMLA as
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`outlined in 29 U.S.C. § 2615(a).
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`C. SECTION 451 – TEXAS LABOR CODE
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`29.
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`The allegations contained in previous paragraphs are hereby incorporated by
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`reference.
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`30.
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`Plaintiff would show that Defendant discharged her on or about March 13, 2021
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 5
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`and discriminated against her in violation of § 451.001 of the Texas Labor Code because she filed
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`a workers’ compensation claim in good faith, hired a lawyer to represent her in a workers’
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`compensation claim, and instituted or caused to be instituted a workers’ compensation claim in
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`good faith. Plaintiff would show that Defendant would not have terminated her employment when
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`it did, had Plaintiff not engaged in an activity protected under § 451.001 of the Texas Labor Code.
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`IV.
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`DAMAGES
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`31.
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`As a result of Defendants’ violations of the ADA described herein, Plaintiff has
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`suffered actual damages in the form of lost wages and benefits (past and future) and compensatory
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`damages in an amount that has not yet been fully established, but which will be provided at time
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`of trial.
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`32.
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`As a result of this willful and malicious violation of the law described herein,
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`Plaintiff requests that she be awarded all damages, to which she is entitled, including punitive
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`damages. Plaintiff also requests any additional equitable relief to which she is entitled.
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`33.
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`As a result of Defendant’s violations of the FMLA, Plaintiff has suffered actual
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`damages in the form of lost wages and benefits (past and future), in an amount that has not yet
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`been fully established, but which will be provided at time of trial.
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`34.
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`As a result of this willful violation of the FMLA, Plaintiff requests that she be
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`awarded all damages, to which she is entitled, as outlined in 29 U.S.C. § 2617, including, but not
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`limited to, lost wages, salary, employee benefits, and any other compensation denied or lost as a
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`result of the violation, plus interest. In addition, Plaintiff requests liquidated damages equal to the
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`amount of reimbursable compensation described above. Plaintiff also requests any additional
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`equitable relief to which she is entitled.
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`35.
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`Plaintiff also alleges damages resulting from her wrongful discharge under Section
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`451 of the Texas Labor Code in the form of lost wages and benefits in the past and future,
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 6
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`compensatory damages and punitive damages.
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`36.
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`Plaintiff also requests reasonable attorney’s fees and court costs.
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`V.
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`JURY DEMAND
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`37.
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`Plaintiff requests trial by jury on all claims for which a jury trial is available.
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`VI. PRAYER FOR RELIEF
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`Wherefore, Plaintiff requests that Defendant be cited to appear and answer, and that on
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`final trial, Plaintiff have judgment against Defendant as follows:
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`a.
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`Judgment against Defendant for Plaintiff’s actual damages, including lost wages
`and benefits (both back pay and front pay) and compensatory damages in an amount
`to be determined;
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`Judgment against Defendant for punitive damages for the maximum amount
`allowed by law;
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`Judgment against Defendant for liquidated damages;
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`An order that Defendant take such other and further actions as may be necessary to
`redress Defendants’ violations of the law;
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`Pre-judgment and post-judgment interest at the maximum amount allowed by law;
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`Costs of suit, including attorney’s fees;
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`The award of such other and further relief, both at law and in equity, including
`injunctive relief and reinstatement, to which Plaintiff may be justly entitled.
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`Respectfully submitted,
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`/s/ William S. Hommel, Jr.
`William S. Hommel, Jr.
`State Bar No. 09934250
`Hommel Law Firm PC
`5620 Old Bullard Road, Suite 115
`Tyler, Texas 75703
`903-596-7100 Telephone and Facsimile
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`ATTORNEY FOR PLAINTIFF
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`PLAINTIFF’S ORIGINAL COMPLAINT – PAGE 7
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