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`Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 1 of 19 PageID 1Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 1 of 19 PageID 1
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`In the United States District Court
`Northern District of Texas
`Lubbock Division
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` §
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`Catherine Brower
` §
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` §
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`Plaintiff,
` §
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` § Civil Action No. _______________
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`
`v.
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` §
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`
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`Lubbock County Hospital District §
`d/b/a University Medical Center §
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`
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` §
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` §
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`Defendants.
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` §
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`Plaintiff’s Original Complaint
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`Plaintiff Catherine Brower (“Brower” or “Plaintiff”) files this Original Complaint
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`against Lubbock County Hospital District d/b/a University Medical Center and shows:
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`Parties
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`1. Plaintiff Catherine Brower is an individual citizen of Texas and a resident of
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`Lubbock County, Texas.
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`2. Defendant Lubbock County Hospital d/b/a University Medical Center (“UMC”) is
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`a local government entity, a hospital district in Lubbock County, Texas. It may be
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`served with process by serving its President and CEO, Mark Funderburk at 602 Indiana
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`Avenue, Lubbock, Texas 79415.
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`Venue and Jurisdiction
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`3. Venue is proper in Lubbock County, Texas because the events establishing the
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`Plaintiff’s Original Complaint
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`Page 1
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`claims occurred in Lubbock County, which is in the Northern District of Texas.
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`4. This Court has federal jurisdiction over the claims asserted under the Americans
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`with Disabilities Act, 42 U.S.C. § 12101, et. seq. and the Age Discrimination in
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`Employment Act, 29 U.S.C. § 621 et. seq.
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`Summary of Claim
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`5. UMC discriminated against Brower because of her disabilities and age and
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`retaliated against Brower after she engaged in protected activity. Brower sues for
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`disability discrimination, age discrimination and retaliation.
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`Factual Background
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`6. UMC hired Brower on August 6, 2015 as a Staff Nurse in the Surgical Testing and
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`Registration (STAR) Center. In that role, Brower performed pre-admission activity for
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`patients who would be receiving outpatient surgery.
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`7. As a Staff Nurse in the STAR Center, Brower met with patients, typically a day or
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`so before the scheduled surgery. Brower interviewed the patients, asked them a list of
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`questions and gathered medical history and medication history. Brower may also have
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`performed a short physical assessment of a patient, such as taking the patient’s blood
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`pressure. However, the “hands on” physical assessment was very limited.
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`8. As a Staff Nurse in the STAR Center, Brower typically sat across a desk and three
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`to four feet away from the patients as she gathered medical information. Brower would
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`only get close to a patient for a few moments, such as during a blood pressure reading.
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`Plaintiff’s Original Complaint
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`Page 2
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`9. Brower is an excellent nurse and has been recognized by her peers for compassion,
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`excellent, integrity, honesty and teamwork.
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`10. UMC has awarded Brower the UMC Always Nurse Award four times. This is an
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`honorary award given to a select few based entirely on patient satisfaction, patient
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`experience, and exceeding patient expectations. Brower received this award from UMC
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`in Q2 and Q3 of 2018, August 2019 and February 2020.
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`11. On March 16, 2020, UMC suspended all non-essential surgical procedures as part
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`of the COVID-19 pandemic response. UMC assigned Brower to monitor hospital
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`entrances on March 18 and 19, 2020. Brower took the temperatures of persons going into
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`UMC and required them to use hand sanitizer.
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`12. On March 19, 2020, UMC assigned Ms. Brower to work in its COVID-19 call center
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`from March 20, 2020 through a date in April 2020.
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`13. On April 7, 2020, UMC, through Vern Pharr, notified Ms. Brower she and other
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`registered nurses were being deployed to the medical/surgical units although most had
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`not performed bedside nursing for over 20 years.
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`14. UMC, through Pharr and Cindy Hill, asked Brower to fill out a questionnaire to
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`help determine her deployment destination.
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`15. Brower notified UMC she suffered from the disability of rheumatoid arthritis. On
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`April 7, 2020, Brower notified Hill by email and in person that Brower had forgotten to
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`Plaintiff’s Original Complaint
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`Page 3
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`include on her questionnaire she was taking a biologic for her rheumatoid arthritis and
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`is immunocompromised because of it.
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`16. UMC, through Pharr and Hill, told Brower there were no exceptions to putting the
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`RNs on the floor except for pregnant women.
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`17. On April 13, Brower spoke with Human Resources’ Karen Pennell and
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`Sharon Doyle (the Disability Management Coordinator) to determine her options for a
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`reasonable accommodation of alternative nursing positions due to her rheumatoid
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`arthritis and compromised immune system.
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`18. UMC, through Doyle, told Brower that Doyle did not have nor know of
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`any alternative positions. Though Doyle is UMC’s Disability Management Coordinator,
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`Doyle said it is “not [Doyle’s] job” to keep up with job listings. Doyle said that Brower
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`was the first person to come to them with such an accommodation request.
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`19.
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`In the conversation, Brower mentioned the ADA and how it helps
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`employees. Brower then asked about an accommodation. Doyle told Brower that Brower
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`would need to get information from Brower’s doctor stating that she had a disability.
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`Doyle added, “We are learning on you. We’ve never had this before.”
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`20. Until Brower brought up the ADA, UMC, through Doyle, never mentioned
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`it as a possible option. Brower asked Doyle if there was a specific form for the ADA to
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`ask for an accommodation. Doyle reluctantly admitted UMC had an ADA policy and a
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`form but said she could not provide a copy of it to Brower because it was under
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`Plaintiff’s Original Complaint
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`Page 4
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`development. After Brower pressed Doyle to give her the ADA accommodation form,
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`Doyle finally provided Brower with the UMC Health System Request for Reasonable
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`Accommodation form.
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`21. On April 17, 2020, Brower returned the completed ADA accommodation
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`request form and her doctors’ notes to UMC by giving the documents to Hill, her
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`supervisor, on April 17th, placing a copy on Pharr’s desk on April 17th, and emailing
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`Pharr to inform him on April 19th.
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`22.
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`In the request for accommodation, one of Brower’s doctors requested that
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`Brower not be assigned to a position requiring direct patient care because of her
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`disabilities and immunocompromised status. Her doctor requested that she be allowed
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`to continue in the COVID-19 call center as that position was an excellent fit.
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`23. On April 17, 2020, when Brower submitted the accommodation request, the
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`COVID-19 call center was still open. Brower could easily have continued to work in the
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`COVID-19 call center.
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`24. However, UMC refused to allow Brower to continue to work in the call
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`center. On April 24, 2020, Doyle told Ms. Brower that the “call center is completely off the
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`table. It’s a temporary job and we want you to have a permanent job.”
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`25. UMC, through Pharr and Doyle, then placed Brower on administrative
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`leave. They do so after telling Ms. Brower that the call center job was “completely off the
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`Plaintiff’s Original Complaint
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`Page 5
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`table. It’s a temporary job and we want you to have a permanent job.” At this time, the
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`call center was still open.
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`26. UMC told Brower when placing her on administrative leave there was no
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`job UMC could provide that would comply with the restrictions in her request for
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`accommodation -- even though the call center was still open and complied with Brower’s
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`restrictions.
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`27.
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`In the April 24, 2020 meeting, Brower repeatedly asked Pharr and Doyle if
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`Brower could ask her doctors whether she could work in the STAR center when it
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`reopened.
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`28. UMC, through Pharr and Doyle, discouraged her from doing so. Both
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`repeatedly said that they did not see how she could work in the STAR center when it
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`reopened because it would still involve direct patient care.
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`29. UMC, through Doyle, indicated that she did not know the “ethics” of
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`asking Brower’s doctors whether Brower could work in the STAR center when it
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`reopened. Doyle said Brower’s doctors would just be willing to “write whatever you
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`want them to write.” Brower objected to Doyle’s making a slur that her doctors would
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`not be honest in their medical assessment of her restrictions.
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`30.
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`Finally, UMC, through Doyle and Pharr, agreed Doyle would ask Doyle’s
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`supervisor, Joe Condon, the Director of Human Resources, if Brower’s doctors could
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`submit an updated letter identifying her restrictions and addressing whether Brower
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`Plaintiff’s Original Complaint
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`Page 6
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`could work in the STAR Center when it reopened. Because Doyle noted multiple times
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`she would have to talk to Joe Condon about this, Brower confirmed that Doyle would
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`talk to Condon and then call Brower back to let her know what Condon said. Doyle did
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`not do so.
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`31. When the meeting ended, it was clear that Doyle had agreed to talk to
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`Condon and to get back with Brower when Doyle knew something from Condon.
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`32. UMC, through Doyle, never called Brower to tell Brower the results of any
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`conversation with Condon and whether Brower could submit revised doctors’ letters.
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`Despite Doyle’s promise to Brower, Doyle apparently never followed up with Condon.
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`33.
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`Though Doyle had promised to call her, Brower attempted to follow up
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`with Doyle several times to discover what Condon had said. Brower contacted Ms. Doyle
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`three times during the week after the April 24th meeting and left messages. Doyle did not
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`return Brower’s calls.
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`34.
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`Because Brower was waiting to hear from Doyle, Brower did not ask her
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`physicians for an updated accommodation request that would have addressed whether
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`Brower could work within the STAR Center.
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`35.
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`Brower believes that it would have been likely that her doctor would have
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`found such a job acceptable given that (1) she sits 3 to 4 feet away from the patient most
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`of the time, (2) a plexiglass shield could have easily been placed on the desk separating
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`Brower from the patient, (3) the time Brower performs any hands-on patient contact is
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`Plaintiff’s Original Complaint
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`Page 7
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`minimal and usually less than 5-10 minutes of any meeting. Had Brower been allowed to
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`present those facts to her physician, Brower believes that her physician would have said
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`that she could perform those duties.
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`36.
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`Though UMC promised Brower it would discover if she could submit an
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`updated doctor’s note, it broke its promise to her. In doing so, UMC failed to engage in
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`the interactive dialog and failed to continue to discuss possible accommodations with
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`Ms. Brower.
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`37. UMC fired Ms. Brower on May 5, 2020 because it claimed it had no available
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`positions that would meet the restrictions communicated by her physicians.
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`38. When UMC fired Brower, Brower was age 65. Upon information and belief,
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`the person hired to replace Brower was younger than Brower.
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`39. When UMC fired Brower on May 5th, Brower reminded Pharr and Doyle
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`they had agreed to ask Condon if she could submit updated medical information from
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`her doctors to see if Brower could work in the reopened STAR unit. However, Pharr and
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`Doyle failed to follow through on the promise.
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`40. UMC, through Pharr and Doyle, both blamed Brower for not submitting
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`any additional information about her job restrictions. UMC said a separation of service
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`was required immediately because Brower failed to submit additional information from
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`her doctors.
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`Plaintiff’s Original Complaint
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`Page 8
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`41.
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`Because UMC decided to fire Brower before the May 5th meeting, it would
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`not have mattered if Brower had Brower provided update information from her doctor
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`at that meeting. UMC had already decided to terminate and the termination documents
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`were already prepared.
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`42. UMC’s COVID-19 call center was still open on May 5, 2020. Brower could
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`have easily continued to work in the call center, but UMC refused to allow her to do so.
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`UMC claimed it needed a “permanent” solution, not a “temporary” solution.
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`43. When UMC fired Brower, it, through Pharr and Doyle, told Brower she
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`could apply for long-term disability. They mentioned that a nurse in another unit had
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`been quickly approved for long-term disability.
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`44. When UMC fired Brower, it, through Doyle, gave her the packet of forms
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`to apply for long-term disability and even offered to help Brower fill out the long-term
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`disability application forms. Both acted as if getting long-term disability benefits would
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`be adequate compensation for Brower’s loss of a job. Based on the suggestion of Pharr
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`and Doyle, Brower applied for long-term disability benefits, but was denied because she
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`did not meet the requirements of the long-term disability carrier.
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`45. Upon information and belief, UMC accommodated other nurses but
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`refused to accommodate Brower. Two nurses, “CO” and “TM”1 never worked on a
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`nursing unit after surgeries were cancelled and the STAR unit was temporarily closed.
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`1 Initials are used for the names of the nurses for privacy reasons since they are not parties to this lawsuit.
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`Plaintiff’s Original Complaint
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`Page 9
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`Though Pharr told Brower that the only exception to a nurse being redeployed to the
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`floor was if the nurse was pregnant, UMC allowed exceptions for at least two nurses with
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`disabilities. Upon information and belief, TM takes a biologic medication that is similar
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`to the biologic medication that Brower takes. Upon information and belief, CO has back,
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`leg and shoulder problems. If UMC could make an accommodation for those two nurses,
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`UMC could have accommodated Brower. UMC subjected Brower to differing terms and
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`conditions in her employment as compared to CO and TM.
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`46. When UMC fired Brower, it told her she was eligible for rehire.
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`47.
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`Brower timely filed a Charge of Discrimination related to her termination
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`(EEOC Charge No. 453-2020-00179). Brower asserted claims for disability discrimination,
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`age discrimination and retaliation in her charge. Brower received her Notice of Right to
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`Sue from the EEOC on this Charge on November 1, 2021 and timely sues.
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`48. After Brower had been fired by UMC, Brower continued to apply for job
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`openings at UMC for which she was qualified.
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`49. On February 6, 2021, Brower applied for a position as a STAR Center nurse
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`for UMC. This was the very position Brower had held before her termination.
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`50. On February 6, 2021, UMC sent Brower an email indicating that her
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`application was being reviewed.
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`51. On February 8, 2021—just two days after Brower submitted her application,
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`UMC notified Brower she had not been selected for the open STAR Center nurse position.
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`Plaintiff’s Original Complaint
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`Page 10
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`Upon information and belief, the person hired for this position was younger than Brower
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`and did not suffer from disabilities.
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`52.
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`Brower timely filed a second EEOC charge of discrimination due to UMC’s
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`failure to rehire her on February 26, 2021. This is Charge No. 453-2021-00712. Brower
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`again asserted claims for disability discrimination, age discrimination and retaliation in
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`her second Charge.
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`53.
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`Brower continued to apply for additional jobs at UMC after February 2021
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`but was not hired for any position for which she applied. Brower was not even
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`interviewed by UMC for any of the positions for which she applied following her
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`termination.
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`54.
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`Brower received her notice of right to sue on both of her Charges from the
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`EEOC on November 1, 2021 and timely sues.
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`Causes of Action
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`Disability Discrimination under the ADAAA
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`Brower incorporates the preceding paragraphs as if restated.
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`55.
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`56. UMC is an “employer” as defined by the ADAAA. 42 U.S.C. § 12111(5).
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`57.
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`Brower is an “employee” as defined by the ADAAA. 42 U.S.C. § 12111(4).
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`Brower was qualified to perform her job duties for UMC.
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`58.
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`Brower has rheumatoid arthritis and takes a biologic treatment for her
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`rheumatoid arthritis which suppresses her immune system. Rheumatoid arthritis is an
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`Plaintiff’s Original Complaint
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`Page 11
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`autoimmune disorder that substantially interferes with the operation of a major bodily
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`function including the functions of Brower’s immune system. It also interferes with her
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`ability to walk long distances or stand for prolonged periods of time. 42 U.S.C. § 12102(1)
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`and (2)(A) and (B). Brower has a record of an impairment and was also regarded as
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`having an impairment under the ADAAA. 42 U.S.C. § 12102(3).
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`59. UMC discriminated against Brower in violation of the ADAAA in the terms
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`and conditions of her employment because of her disability, her record of a disability and
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`because UMC regarded Brower as disabled.
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`60. UMC violated the ADAAA by not reasonably accommodating the known
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`limitations of Brower, who was a qualified individual with a disability in violation of 42
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`U.S.C. § 12112(b)(5)(A).
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`61. UMC violated the ADAAA by refusing to let Brower work in the COVID-
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`19 call center for so long as it was open. This was an accommodation that would have
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`fully complied with Brower’s medical restrictions and was available to Brower.
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`However, UMC refused to allow Brower to continue to work in the call center for so long
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`as it stayed open. UMC contended that it needed a “permanent” solution even though
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`the call center was a workable option that would have continued Brower’s employment.
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`62. UMC violated the ADAAA by refusing to engage in the appropriate
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`interactive dialog with Brower to discuss the appropriate reasonable accommodations
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`after Brower asked if she could ask for an updated medical accommodation note from
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`Plaintiff’s Original Complaint
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`Page 12
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`her doctor that would address whether Brower could work in the STAR Center when it
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`reopened.
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`63. UMC, through Doyle and Pharr, promised Brower that Doyle would
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`discover if Condon would consider an updated request for a reasonable accommodation
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`from Brower that would specifically address the STAR Center position.
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`64. UMC broke its promise and never told Brower whether it would consider
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`an updated medical accommodation request.
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`65. UMC then fired Brower because it said she had not submitted an updated
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`accommodation request and that it had no positions available for her that complied with
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`her restrictions when it fired her even though the COVID-19 call center was still open.
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`66. UMC subjected Brower to disparate terms and conditions of employment
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`by providing accommodations to two nurses. UMC exempted them from providing
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`service on the nursing floor, but did not make the same accommodation for Brower.
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`67. When UMC fired Brower, it told Brower to apply for long-term disability
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`benefits and had the application paperwork ready to give to her at the termination
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`meeting.
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`68. UMC violated the ADAAA by firing Brower because of her disability, her
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`record of a disability and because UMC regarded Brower as disabled.
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`69. UMC’s violations of the ADAAA damaged Brower. UMC caused Brower
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`to lose her income and benefits when it fired her in violation of the ADAAA.
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`Plaintiff’s Original Complaint
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`Page 13
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`70. UMC’s discriminatory actions were taken with malice and/or a reckless
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`disregard for Brower rights.
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`71. UMC’s discriminatory actions have damaged Brower.
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`72.
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`Brower seeks to recover the damages to which she is entitled for UMC’s
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`retaliation, including the recovery of her back pay, the equitable right of reinstatement or
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`front pay, fringe benefits, compensatory damages for intangible harms and losses,
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`punitive damages, pre-judgment and post-judgment interest, attorneys’ fees and costs.
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`Age Discrimination under ADEA
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`73.
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`Brower incorporates the preceding paragraphs as if restated.
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`74. UMC is an employer as defined by the ADEA, 29 U.S.C. § 630.
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`75.
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`Brower, age 65 when she was terminated, is an employee covered by the
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`ADEA. 29 U.S.C. § 630(f).
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`76. UMC discriminated against Brower in the terms and conditions of her
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`employment.
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`77. UMC required Brower to return to a position on the nursing floor after the
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`STAR Center was temporarily closed due to the COVID-19 pandemic. UMC told Brower
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`there would be no exceptions to the requirement that nurses work on a nursing unit
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`unless a nurse was pregnant.
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`78. However, upon information and belief, UMC made exceptions for two
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`younger nurses, “CO” and “TM.” Though those nurses were not pregnant, those two
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`Plaintiff’s Original Complaint
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`Page 14
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`nurses did not have to return to a position on the nursing floor. Those nurses are believed
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`to be younger than Brower.
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`79. UMC subjected Brower to disparate treatment because of her age. If UMC
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`could make exceptions for CO and TM, it could also have made an exception for Brower.
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`It did not.
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`80. UMC discriminated against Brower and terminated Brower because of her
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`age in violation of the ADEA. 29 U.S.C. § 623(a).
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`81. UMC’s discriminatory actions were taken with malice and/or a reckless
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`disregard for Brower rights.
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`82. UMC’s discriminatory actions have damaged Brower.
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`83.
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`Brower seeks to recover the damages to which she is entitled for UMC’s
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`retaliation, including the recovery of her back pay, the equitable right of reinstatement or
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`front pay, fringe benefits, liquidated damages, punitive damages, pre-judgment and
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`post-judgment interest, and her attorneys’ fees and costs.
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`ADAAA and ADEA Retaliation Claims
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`84.
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`Brower incorporates the preceding paragraphs as if restated.
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`85. UMC is an “employer” as defined by 42 U.S.C. § 12203 and 29 U.S.C. § 630.
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`86.
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`Brower is an employee as defined by 42 U.S.C. § 12111(4) and 29 U.S.C.
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`§630(f).
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`87.
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`Brower was qualified to perform the job duties at UMC.
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`Plaintiff’s Original Complaint
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`Page 15
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`Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 16 of 19 PageID 16Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 16 of 19 PageID 16
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`88. During her employment, Brower engaged in activity protected by the
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`ADAAA and the ADEA.
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`89.
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`Brower specifically requested an accommodation under the ADAAA.
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`Brower objected to not being provided with the accommodation of being allowed to
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`continue to work in the then-open COVID-19 call center.
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`90.
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`Brower additionally requested the accommodation of being allowed to
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`obtain an updated medical accommodation request from her physician that would
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`address whether Brower could work in the STAR Center. UMC promised Brower to
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`discover if its Vice President of Human Resources would consider such an updated
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`accommodation requested, but broke its promise to her.
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`91.
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`By requesting an accommodation under the ADAAA, Brower engaged in
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`activity protected by law.
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`92. UMC, through its Human Resources department, fully knew of Brower’s
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`request for an accommodation.
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`93. UMC fired Brower just months after she requested an accommodation and
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`after UMC failed to engage in the interactive dialog with her about her accommodation
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`request. UMC retaliated against Brower after she engaged in protected activity and
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`requested an accommodation.
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`Plaintiff’s Original Complaint
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`Page 16
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`Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 17 of 19 PageID 17Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 17 of 19 PageID 17
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`94. After UMC fired Brower, Brower timely filed a Charge of Discrimination
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`asserting that she had been discriminated against by UMC because of her disabilities and
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`her age and that she had been retaliated against.
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`95. When Brower filed her Charge of Discrimination, that was activity
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`protected by law.
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`96. When UMC fired Brower, it told her she was eligible for rehire.
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`97.
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`In February 2021, UMC advertised a position for STAR Center nurse—
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`which was the position Brower held before she was terminated. Brower applied for the
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`position on February 6, 2021 and received an email from UMC advising her that her
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`application was being reviewed by UMC.
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`98. UMC rejected Brower’s application just two days later—on February 8,
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`2021.
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`99.
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`Brower continued to apply for other open positions at UMC for which she
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`was qualified after February 2021.
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`100. UMC never once interviewed Brower for the open positions.
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`101. UMC retaliated against Brower for seeking accommodations because of her
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`disabilities and because Brower filed an EEOC charge of discrimination against it.
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`102. UMC’s stated reason for firing Brower and not rehiring her for open
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`positions are not the reason reasons for its actions and are instead just a pretext for
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`retaliation.
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`Plaintiff’s Original Complaint
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`Page 17
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`Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 18 of 19 PageID 18Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 18 of 19 PageID 18
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`103. But for Brower’s protected conduct, UMC would not have terminated
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`Brower when it did so. But for Brower’s protected conduct in filing an EEOC charge,
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`UMC would not have refused to rehire Brower for open positions for which she is
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`qualified.
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`104. UMC’s action in firing Brower is an adverse employment action under the
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`ADA. UMC’s failure to rehire Brower to open positions for which she is qualified is an
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`adverse employment action under the ADA.
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`105. UMC’s retaliatory actions were taken with malice and/or a reckless
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`disregard for Brower rights.
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`106. UMC’s retaliatory actions have damaged Brower.
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`107. Brower seeks to recover the damages to which she is entitled for UMC’s
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`retaliation, including the recovery of her back pay, the equitable right of reinstatement or
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`front pay, fringe benefits, compensatory damages for intangible harms and losses,
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`punitive damages, pre-judgment and post-judgment interest, attorneys’ fees and costs.
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`108. Brower demands a trial by jury.
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`Jury Trial
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`Prayer
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`WHEREFORE, Plaintiff Catherine Brower prays this Court enter a judgment for
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`Brower and against Lubbock County Hospital District d/b/a University Medical
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`Center on all claims asserted against it and award such other and further relief to
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`Plaintiff’s Original Complaint
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`Page 18
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`Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 19 of 19 PageID 19Case 5:22-cv-00003-C Document 1 Filed 01/04/22 Page 19 of 19 PageID 19
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`which Plaintiff is just entitled.
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`Respectfully submitted,
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`/s/ Karen K. Fitzgerald
`Karen K. Fitzgerald
`State Bar No. 11656750
`Fitzgerald Law, PLLC
`8150 N. Central Expy, 10th Floor
`Dallas TX 75206
`214.265.9958 (direct dial)
`(214) 367-6001 (fax)
`karen@fitzgerald.law
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`Attorney for Plaintiff Catherine Brower
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`Plaintiff’s Original Complaint
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`Page 19
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