IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF WISCONSIN
`
`
`
`
`RUTH VILLAREAL
`
`
`
`1406 Pennsylvania Avenue,
`
`
`Sheboygan, Wisconsin 53081
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`vs.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ROCKY KNOLL HEALTH CARE CENTER
`N7135 Rocky Knoll Parkway,
`
`
`Plymouth, Wisconsin 53073
`
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`COMPLAINT
`
`
`
`Case No. 21-729
`
`DEMAND FOR JURY TRIAL
`
`
`
`Plaintiff, Ruth Villareal (“Ms. Villareal” or “Plaintiff”), by and through undersigned
`
`counsel, hereby files this Complaint against Rocky Knoll Health Care Center (“RKHCC” or
`
`“Defendant”), sues for declaratory and injunctive relief, compensatory damages, punitive
`
`damages, attorney’s fees, expenses and costs (including, but not limited to, court costs and expert
`
`fees) pursuant to 21 U.S. Code § 360bbb–3, Title VII of the Civil Rights Act of 1964 as amended
`
`(“Title VII”), 42 U.S.C. § 2000e et seq, and Wisconsin state statutes, and alleges as follows:
`
`JURISDICTION AND VENUE
`
`1. This Court is vested with original jurisdiction over this action pursuant to 28 U.S.C. §1331
`
`for Plaintiff’s claims arising under 21 U.S. Code § 360bbb–3, Title VII, and 42 U.S.C.S. §
`
`2000e et seq, based on Defendant’s continued violations of 21 U.S. Code § 360bbb–3 and
`
`Title VII, and supplemental jurisdiction over Plaintiff’s state law claims under Wisconsin
`
`state law.
`
`1
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 1 of 8 Document 1
`
`
`
`
`EASTERN DISTRICT OF WISCONSIN
`
`
`
`
`RUTH VILLAREAL
`
`
`
`1406 Pennsylvania Avenue,
`
`
`Sheboygan, Wisconsin 53081
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`vs.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ROCKY KNOLL HEALTH CARE CENTER
`N7135 Rocky Knoll Parkway,
`
`
`Plymouth, Wisconsin 53073
`
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`COMPLAINT
`
`
`
`Case No. 21-729
`
`DEMAND FOR JURY TRIAL
`
`
`
`Plaintiff, Ruth Villareal (“Ms. Villareal” or “Plaintiff”), by and through undersigned
`
`counsel, hereby files this Complaint against Rocky Knoll Health Care Center (“RKHCC” or
`
`“Defendant”), sues for declaratory and injunctive relief, compensatory damages, punitive
`
`damages, attorney’s fees, expenses and costs (including, but not limited to, court costs and expert
`
`fees) pursuant to 21 U.S. Code § 360bbb–3, Title VII of the Civil Rights Act of 1964 as amended
`
`(“Title VII”), 42 U.S.C. § 2000e et seq, and Wisconsin state statutes, and alleges as follows:
`
`JURISDICTION AND VENUE
`
`1. This Court is vested with original jurisdiction over this action pursuant to 28 U.S.C. §1331
`
`for Plaintiff’s claims arising under 21 U.S. Code § 360bbb–3, Title VII, and 42 U.S.C.S. §
`
`2000e et seq, based on Defendant’s continued violations of 21 U.S. Code § 360bbb–3 and
`
`Title VII, and supplemental jurisdiction over Plaintiff’s state law claims under Wisconsin
`
`state law.
`
`1
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 1 of 8 Document 1
`
`
`
`
`
`2. The Eastern District of Wisconsin is the proper venue for this action because Plaintiff’s
`
`claims arose within the geographical boundaries of the Eastern District of Wisconsin within
`
`the meaning of 28 U.S.C. §1391(b).
`
`PARTIES
`
`3. Plaintiff Ruth Villareal is residing in Sheboygan County, Wisconsin, and is otherwise sui
`
`juris.
`
`4. Upon information and belief, Defendant Rocky Knoll Health Care Center is licensed and
`
`certified as a skilled nursing facility operating under both state and federal regulations,
`
`located at N7135 Rocky Knoll Parkway, Plymouth, Wisconsin 53073.
`
`FACTS
`
`5. Plaintiff was a licensed practical nurse of eight plus years at RKHCC.
`
`6. Plaintiff identifies her religion as “Hebrew Roots.” She declines medical intervention in
`
`absence of sickness as one of her religious practices.
`
`7. Defendant is aware of Plaintiff’s above-mentioned religious practice because she declined
`
`the annual flu vaccination each year throughout her employment.
`
`8. In late May 2020, Defendant had its staff sign a waiver for mass Covid-19 testing, and
`
`Plaintiff expressed her concerns about the violation of her religious freedom.
`
`9. At the time, Defendant did not respond to Plaintiff’s inquiry regarding risk of termination
`
`if she refused the test.
`
`10. On June 11, 2020, Plaintiff became aware of Defendant’s mandatory Covid-19 testing
`
`policy. The policy stated: “Covid-19 testing is mandatory for all Rocky Knoll employees,
`
`contracted vendors, and volunteers beginning June 15, 2020. […] Refusal of testing for
`
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 2 of 8 Document 1
`
`2
`
`
`
`Rocky Knoll employees will be considered misconduct and will result in suspension
`
`without pay and/or termination.”
`
`11. On June 12, 2020, Plaintiff requested that Defendant provide her an exemption from Covid-
`
`19 testing, stating that Covid-19 testing directly contradicts her religious beliefs and
`
`practices.
`
`12. She emphasized that she serves the God of Abraham, Isaac, and Joseph and that she put
`
`not only her health but her life, as well as that of her family’s, in his care.
`
`13. She also stated that she will continue to follow standard precautions such as wearing her
`
`county-provided N95 mask, checking her temperature when entering and leaving the
`
`facility, and washing her hands, etc.
`
`14. On June 12, 2020, Defendant responded: “I will need some additional information from
`
`you to evaluate this request. What are the tenets of your religion that prevent you from
`
`being medically tested? Is it Covid specific? […] I don’t have enough information now to
`
`determine whether any type of accommodation may be granted.”
`
`15. On June 15, 2020, Plaintiff explained that she believes man is subject to all of YHVH’s
`
`[Yahweh’s] laws from the beginning of time and that her salvation is based on obedience,
`
`and only YHVH has the power to heal her based on her faith. By taking a Covid test she
`
`would be testing her faith.
`
`16. Later that day, Defendant denied Plaintiff’s accommodation request and told Plaintiff that
`
`if she chooses not to get tested, she will be terminated.
`
`17. On June 19, 2020, Defendant informed Plaintiff of its decision to terminate Plaintiff’s
`
`employment.
`
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 3 of 8 Document 1
`
`3
`
`
`
`18. Plaintiff exhausted her administrative remedies by receiving a right to sue letter from
`
`EEOC.
`
`FIRST CLAIM FOR RELIEF
`
`VIOLATION OF TITLE VII (42 U.S.C. § 2000e et seq)
`
`19. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1-18 of this Complaint
`
`as if fully set forth herein.
`
`20. 42 U.S.C. § 2000e-2(a) states: “It shall be an unlawful employment practice for an
`
`employer – (1) to fail or refuse to hire or to discharge any individual, or otherwise to
`
`discriminate against any individual with respect to his compensation, terms, conditions, or
`
`privileges of employment, because of such individual’s race, color, religion, sex, or
`
`national origin; or (2) to limit, segregate, or classify his employees or applicants for
`
`employment in any way which would deprive or tend to deprive any individual of
`
`employment opportunities or otherwise adversely affect his status as an employee, because
`
`of such individual's race, color, religion, sex, or national origin.”
`
`21. Pursuant to 42 U.S.C. § 2000e(b), Defendant is an employer covered by Title VII due to
`
`the fact that it engages in an industry affecting commerce and has fifteen or more
`
`employees for each working day in each of twenty or more calendar weeks in the current
`
`or preceding calendar year. Therefore, Defendant is covered by, and is required to comply
`
`with, 42 U.S.C. § 2000e et seq.
`
`22. Pursuant to 42 U.S.C. § 2000e(j), Plaintiff has a religious observance and practice which
`
`prevents her from following Defendant’s mandatory Covid-19 testing policy.
`
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 4 of 8 Document 1
`
`4
`
`
`
`23. Plaintiff has notified Defendant of her religious observance and practice that prevents her
`
`from complying with Defendant’s mandatory Covid-19 testing policy and requested
`
`accommodation.
`
`24. Defendant did not offer Plaintiff any accommodations for her religious observance and
`
`practice, and Defendant discharged Plaintiff on the basis of such religious observance and
`
`practice.
`
`25. Defendant has discriminated against Plaintiff by: (1) discharging her on the basis of her
`
`religious beliefs; (2) effectively subjecting Plaintiff to discrimination on the basis of those
`
`religious beliefs; (3) excluding or denying equal jobs to Plaintiff because of her religious
`
`beliefs; and (4) failing to accommodate Plaintiff.
`
`26. Plaintiff has retained the undersigned counsel for the filing and prosecution of this action.
`
`Plaintiff is entitled to have reasonable attorneys’ fees, costs and expenses paid for by
`
`Defendant, pursuant to 42 U.S.C. §12205.
`
`27. Pursuant to 42 U.S.C. § 1981a(b)1, a complaining party may recover punitive damages in
`
`a Title VII case by demonstrating that the employer engaged in a discriminatory practice
`
`or discriminatory practices with malice or with reckless indifference to the federally
`
`protected rights of an aggrieved individual.
`
`28. After Defendant was informed by Plaintiff that Defendant’s mandatory Covid-19 testing
`
`policy contradicts her religious observance and practice, Defendant immediately
`
`threatened her by stating that if she chooses to not get tested, she will be terminated. Shortly
`
`after, Plaintiff was terminated.
`
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 5 of 8 Document 1
`
`5
`
`
`
`29. Upon receiving Plaintiff’s accommodation request, Defendant immediately threatened to
`
`discharge Plaintiff for noncompliance of its policy; this action shows a reckless and callous
`
`indifference to Plaintiff’s federally protected rights.
`
`30. Defendant’s immediate discharge of Plaintiff without considering any accommodation also
`
`shows a reckless and callous indifference to Plaintiff’s federally protected rights.
`
`31. As such, Plaintiff is entitled to punitive damages.
`
`SECOND CLAIM FOR RELIEF
`
`WRONGFUL DISCHARGE
`
`32. Plaintiff adopts and re-alleges the allegations stated in paragraphs 1-31 of this Complaint
`
`as if fully set forth herein.
`
`33. An individual has a cause of action for wrongful discharge when the discharge is contrary
`
`to a fundamental and well-defined public policy as evidenced by existing law.
`
`34. Individuals seeking relief for wrongful discharge must: (1) first identify a fundamental and
`
`well-defined public policy in their complaint sufficient to trigger the exception to the
`
`employment-at-will doctrine; and (2) then demonstrate that the discharge violated that
`
`fundamental and well-defined public policy.
`
`35. The Covid diagnostic tests such as Real Time RT-PCR Diagnostic Panel are only
`
`authorized for use in emergencies by the FDA and are subjected to restrictions under 21
`
`U.S. Code § 360bbb–3.
`
`36. 21 U.S. Code § 360bbb–3 Section(e)(1)(A) states that with respect to the emergency use
`
`of an unapproved product, the Secretary shall establish “appropriate conditions designed
`
`to ensure that individuals to whom the product is administered are informed - (I) that the
`
`Secretary has authorized the emergency use of the product; (II) of the significant known
`
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 6 of 8 Document 1
`
`6
`
`
`
`and potential benefits and risks of such use, and of the extent to which such benefits and
`
`risks are unknown; and (III) of the option to accept or refuse administration of the product,
`
`of the consequences, if any, of refusing administration of the product, and of the
`
`alternatives to the product that are available and of their benefits and risks. (Emphasis
`
`added).
`
`37. Under 21 U.S. Code § 360bbb–3, Section(e)(1)(A) does not permit an employer to coerce
`
`an employee to accept an unapproved medical product on penalty of termination or
`
`sanctions.
`
`38. Defendant’s discharge of Plaintiff due to her refusal to use an unapproved medical product
`
`violated 21 U.S. Code § 360bbb–3.
`
`39. As Plaintiff’s allegations stated in paragraphs 19-31, Defendant violated Title VII by
`
`discharging Plaintiff on the basis of her religious observance and practice.
`
`WHEREFORE, Plaintiff demands judgement against Defendant and requests the following
`
`relief:
`
`1. This Court enter an injunction against Defendant preventing it from discriminating against
`
`Plaintiff based on her religious observance and practice;
`
`2. This Court award compensatory damages to Plaintiff;
`
`3. This Court assess punitive damages;
`
`4. This Court award reasonable attorney’s fees, all costs (including, but not limited to the
`
`court costs and expert fees), and other expenses of suit to the Plaintiff; and
`
`5. This Court award such other and further relief as it may deem necessary, just and proper.
`
`JURY DEMAND
`
`7
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 7 of 8 Document 1
`
`
`
`
`
`
`
`Plaintiff requests a trial by jury on all matters as to which she is entitled by law.
`
`Respectfully submitted this 14th day of June, 2021.
`
`
`
`
`
`
`
`
`
`Levine Eisberner LLC
`Attorneys for Plaintiff
`2802 Coho Street, Suite 201
`Madison, Wisconsin 53713
`BY:
`
`
`
`
`
`
`Qiushi Yang
`nikki@leattys.com
`(888) 367-8198
`Wisconsin State Bar No. 1119453
`
`
`Case 2:21-cv-00729-PP Filed 06/14/21 Page 8 of 8 Document 1
`
`8
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
