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Maurice Arcadier

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Brevard Optometry Associates sued for ADA discrimination

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IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA

,

PLAINTIFF,

V. CASE NO.:

BREVARD OPTOMETRY ASSOCIATES
d/b/a BREVARD VISION CARE and
TERRANCE W. NABERHAUS, O.D., P.A.,
JEFFREY C. LOCKE, O.D., P.A.,
MICHAEL J. LEON, JR., O.D., P.A.,
KENNETH D. BOYLE, O.D., P.A.,
DENISE BURNS-LEGROS, O.D., P.A.,
DENISE BURNS-LEGROS, KENNETH
D. BOYLE, MICHAEL J. LEON, JR.
JEFFERY C. LOCKE, and TERRANCE W.
NABERHAUS, owners,


DEFENDANTS.
___________________________/

AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL

JURISDICTION AND VENUE
Plaintiff, by and through her undersigned attorney, sues Defendants, BREVARD OPTOMETRY ASSOCIATES d/b/a BREVARD VISION CARE and TERRANCE W. NABERHAUS, O.D., P.A., JEFFREY C. LOCKE, O.D., P.A., MICHAEL J. LEON, JR., O.D., P.A., KENNETH D. BOYLE, O.D., P.A., DENISE BURNS-LEGROS, O.D., P.A., DENISE BURNS-LEGROS, KENNETH D. BOYLE, MICHAEL J. LEON, JR. JEFFERY C. LOCKE, and TERRANCE W. NABERHAUS, owners (“Defendants”), and alleges the following:

1. This action is brought to obtain relief for discrimination committed by Defendants against Plaintiff on the basis of Plaintiff’s perceived handicap.
2. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000).
3. The unlawful employment practices alleged below were committed within Brevard County, Florida.
PARTIES
4. Plaintiff resided in Brevard County, Florida at all times material hereto.
5. Defendants, BREVARD OPTOMETRY ASSOCIATES is a partnership consisting of 5 partners, TERRANCE W. NABERHAUS, O.D., P.A., JEFFREY C. LOCKE, O.D., P.A., MICHAEL J. LEON, JR., O.D., P.A., KENNETH D. BOYLE, O.D., P.A., and DENISE BURNS-LEGROS, O.D., P.A. Further BREVARD VISION CARE is a fictitious name entity owned by individuals. The d/b/a entities are not corporations and do not shield the owners from individual liability. DENISE BURNS-LEGROS, KENNETH D. BOYLE, MICHAEL J. LEON, JR., JEFFERY C. LOCKE, and TERRANCE W. NABERHAUS, are the individual owners of the d/b/a above, and de facto, are engaged in business as an eye care company doing business in the State of Florida, which at the time of the acts complained of herein employed fifteen (15) or more persons and was engaged in the sale and service of eye care products. Collectively, BREVARD OPTOMETRY ASSOCIATES d/b/a BREVARD VISION CARE and the above individuals and professional service corporations, collectively, are the (“DEFENDANTS”.) Defendant are the employers of Plaintiff as defined by F.S. 760.02 (7.)

STATEMENT OF CLAIM
5. Plaintiff has exhausted her administrative remedies prior to bringing this action.
6. Plaintiff has complied with all conditions precedent prior to bringing this action.
7. On October 25, 2010, Plaintiff filed a formal Charge of Discrimination with the Equal Employment Opportunity Commission and a right to sue was granted on the charge, a copy of which is attached to this complaint as Exhibit “A”.
8. Plaintiff has retained the undersigned attorney and agreed to pay him a reasonable fee.
9. In or about July 2008, Plaintiff began working for Defendants as a Customer Service and Sales Representative.
10. Plaintiff worked for Defendants out of Defendants’ Melbourne, Florida and Vierra, Florida locations.
11. At all times material hereto, Plaintiff performed the duties assigned to her in a professionally competent manner, faithfully followed all reasonable instructions given to her by her supervisors, and abided by all of the rules and regulations of Defendants.
12. Defendants issued Plaintiff exceptional performance evaluations during her tenure with the company.
COUNT I: DISCRIMINATORY DISCHARGE
BECAUSE OF HANDICAP / DISABILITY
13. Plaintiff realleges and incorporates herein paragraphs 1 through 12, above.
14. In June 2010, Plaintiff was diagnosed with a bona fide disability and she informed her employer that she would need daily and weekly treatments which may have side effects including nausea and tiredness.
15. Plaintiff’s disability entitles Plaintiff to employment protection for discrimination defined by F.S. 760.
16. On September 10, 2010, Plaintiff was terminated without being given a reason.
17. Defendants discharged Plaintiff even though her disability had not hindered her from performing the essential functions of her job in the past. In fact two months prior, Plaintiff received a raise and a glowing review.
18. Defendants also failed to reasonably accommodate Plaintiff as required by law. Instead, Defendants summarily discharged Plaintiff from employment without attempting to accommodate her after Plaintiff asked for a reasonable accommodation.
19. Defendants terminated Plaintiff because of her disability.
20. Plaintiff has suffered and continues to suffer severe damage to her financial welfare and her employment prospects by reason of Defendants’ failure to accommodate Plaintiff’s perceived handicap and the discriminatory discharge due to Plaintiff’s disability.
21. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendants’ discriminatory actions.
22. In subjecting Plaintiff to handicap discrimination, Defendants violated Florida law and Chapter 760, Florida Statutes which makes it unlawful for an employer to discriminate against a qualified individual with a handicap, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s handicap or perceived handicap.
23. The conduct of Defendants complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled, had she not been discriminatorily discharged;
B. Compensatory damages, including, but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary loss;
C. Front pay;
D. Punitive Damages;
E. An award of reasonable attorney’s fees and all costs incurred herein; and
F. Such other damages and relief as may be just, equitable, and proper.

COUNT II: RETALIATION
24. Plaintiff realleges and incorporates herein paragraphs 1 through 12, above.
25. Plaintiff was terminated after informing her employer that she had a disability, and would require reasonable accommodations to treat her disability, including taking time off for medical treatment.
26. Plaintiff accommodations require weekly treatments including injections which have side effects such as nausea and tiredness.
27. Plaintiff called in the morning of September 10, 2010 asking for time to seek medical attention.
28. Plaintiff was terminated without cause by a phone call later that same evening.
29. Plaintiff was terminated in retaliation for addressing her medical issues and requesting reasonable accommodations, in violation of Title VII anti-retaliation provisions.
30. Plaintiff has suffered and continues to suffer severe damage to her financial welfare and her employment prospects by reason of her discriminatory discharge based on retaliation.
31. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendants’ discriminatory actions.
32. The conduct of Defendants complained of herein was willful, malicious, oppressive, wanton and in complete disregard of the rights of Plaintiff.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for:
A. Judgment for her back pay (with interest), including all sums of money Plaintiff would have earned, together with such other increases to which she would be entitled, had she not been discriminatorily discharged;
B. Compensatory damages, including, but not limited to, damages for emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary loss;
C. Front pay;
D. Punitive Damages;
E. An award of reasonable attorney’s fees and all costs incurred herein; and
F. Such other damages and relief as may be just, equitable, and proper.

DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.

Dated this ____ day of August, 2011.


ARCADIER & ASSOCIATES, P.A.
______________________________
Stephen Biggie, Esquire
Florida Bar No. 131180
Attorney for Plaintiff
2815 W. New Haven Ave., #304
W. Melbourne, Florida 32904
Phone: (321) 953-5998
Fax: (321) 953-6075


More Information: ADA, discrimination, disability
Attorney: Maurice Arcadier
Status: Open
Date Filed: August 2011


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