JEFFREY A. LONG OSB #86235
Thompson & Long
521 SW Clay, Suite 214
Portland, Oregon 97201
Of Attorneys for Plaintiff
UNITED STATES DISTRICT COURT DISTRICT OF OREGON
COLUMBIA SPORTSWEAR COMPANY,
An Oregon Corporation,
Jury Trial Requested
JURISDICTION AND VENUE
1. This action is brought to remedy defendant's discrimination against its
employees who smoke cigarettes, or who have dependents who smoke, on the basis
of disability or of perceived disability in violation of Title I of the Americans
with Disabilities Act, 42 U.S.C. §12101 et seq., and ORS 659.425.
2. Injunctive relief, declaratory relief, and damages as well as other appropriate
legal and equitable relief are sought pursuant to 42 U.S.C. 12117(a), 42 U.S.C.
2000e(f) and (g), and ORS 659.121.
3. Plaintiff has complied fully with all prerequisites to jurisdiction in this
Court under the ADA. Jurisdiction of the Court is proper under 42 U.S.C. 12117
and 42 U.S.C. 2000e-5 (f) (3). Jurisdiction of the claim under 659.425 is invoked
pursuant to the pendent jurisdiction of the Court under 28 U.S.C. 13667 (a).
The amount in controversy exceeds $50,000.
4. As the unlawful employment practices complained of herein occurred within
the District of Oregon, venue is proper in this District pursuant to 42 U.S.C.
12117, 706 (f) (3) of Title VII, 42 U.S.C. § 2000e-5 (f) (3).
5. Plaintiff brings this Action as a Class Action on behalf all employees of
defendant who have suffered payroll deductions due to their status as cigarette
smokers or because they have dependents who smoke cigarettes. This Action is
brought as a Class Action pursuant to FRCP 23(a) and (b) (2). Members of the
Class plaintiff sues on behalf of are so numerous that joinder of all members
is impracticable. However, there are common questions of law and fact affecting
the right of employees who are addicted to nicotine or who are perceived as
addicted to nicotine to be free from discrimination in the workplace. The claims
of plaintiff are typical of the claims of the class, and plaintiff fairly and
adequately protects the interests of the class. Defendant has acted and/or refused
to act on grounds generally applicable to the class plaintiff represents, thereby
making appropriate final injunctive relief in favor of plaintiff and a class.
6. Plaintiff Margi Chong is an employee of defendant who has been addicted
to nicotine for several years. Plaintiff has been subject to involuntary payroll
deductions by defendant because of her addiction or perceived addiction since
approximately November 1, 1993.
7. Defendant Columbia Sportswear Company, is an Oregon Corporation engaged
in the apparel business and employing in excess of 500 employees.
8. On or about February 23, 1994 a notice of potential class action pursuant
to ORCP 32 H was sent to the defendant. A copy of said notice is attached hereto
as exhibit E and incorporated herein by this reference.
9. On or about May 13, 1994, Plaintiff filed a formal Complaint of unlawful
employment practices with the Equal Employment Opportunity Commission as the
representative of all employees of defendant who either use tobacco or have
dependents that use tobacco products.
10. On or about July 18, 1994, Plaintiff received a Private Right of Action
letter authorizing her to file this civil suit.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
11. On or about April 8, 1993 defendant distributed a memo outlining the plan
to require employees who use tobacco, and their dependents, to pay more for
their health insurance coverage than all other employees. A copy of said memo
is attached hereto as exhibit A and is incorporated herein by this reference.
12. On or about April 30, 1993, defendant distributed a memo regarding insurance
premiums stating that the company had decided to place a moratorium on the smoker
surcharge until November 1, 1993. The memo states that although the insurance
rates are going up equally for everyone, the smokers surcharge will be in addition
to the rate increase and will be charged "only if you are a smoker". A copy
of said memo is attached hereto as exhibit B and incorporated herein by this
13. On or about October 18, 1993 defendant distributed a memo outlining it's
plan to implement the smokers surcharge on November 1, 1993. A copy of said
memo is attached hereto as exhibit C and incorporated herein by this reference.
14. On or about November 1, 1993 defendant began withholding money from employee
pay for all smokers and their dependents pursuant to the policy outlined in
the earlier memos. Said withholding was done without written authorization from
employees subject to the action.
15. On or about April 15, 1994, defendant distributed a memo regarding the
implementation of the withholding plan requesting that employees authorize the
withholding for prior months. Copy of said memo is attached hereto as exhibit
D and incorporated herein by this reference.
FIRST CAUSE OF ACTION (Employment Discrimination-ADA)
16. Plaintiff repeats and realleges each and every allegation contained in
paragraphs 1-15 of this Complaint with the same force and effect as if set forth
17. Plaintiff's nicotine addiction is a physical impairment that substantially
limits one or more of plaintiff's major life activities.
18. Due to plaintiff's nicotine addiction, defendant regarded plaintiff as
having a physical impairment that substantially limits one or more of her major
19. With reasonable accommodation, plaintiff could perform the essential functions
of her employment with defendant.
20. Defendant discriminated against plaintiff in regard to her employment on
the basis of her disability or because she was regarded as being disabled.
21. Plaintiff is now suffering and will continue to suffer irreparable injury
and monetary damages as a result of defendant's discriminatory practices unless
and until this court grants relief.
SECOND CAUSE OF ACTION (Pendent State Claim-ORS 659.425)
22. Plaintiff repeats and realleges each and every allegation contained in
paragraphs 1-15 and 17-21 of this Complaint with the same force and effect as
is set forth herein.
23. The above acts and practices of the defendant constitute unlawful discriminatory
acts in violation of ORS 659.425.
24. As a result of defendant's discriminatory acts, plaintiff has suffered
and will continue to suffer monetary damages and damages for mental anguish
and humiliation unless and until this Court grants relief.
THIRD CAUSE OF ACTION (Pendent State Claim-ORS 652.610(3))
25. Plaintiff repeats and realleges each and every allegation contained in
paragraphs 1-15, 17-21, and 23-24 of this Complaint with the same force and
effect as is set forth herein.
26. By implementing the smokers surcharge defendant unlawfully withheld a portion
of plaintiff's wages in violation of ORS 652.610(3).
27. Pursuant to ORS 652.615, plaintiff is entitled to actual damages or $200
per occurrence, together with her costs, disbursements and a reasonable attorney
should she prevail.
DEMAND FOR A TRIAL BY JURY
28. Pursuant to rule 38(b) of the Federal Rules of Civil Procedure, plaintiff
demands a trial by jury in this action.
WHEREFORE, plaintiff respectfully requests that this court enter judgment as
1. Declaring that the acts and practices complained of herein are in violation
of Title I of the Americans with Disabilities Act and ORS 659.425;
2. Directing defendant to reimburse plaintiff and the entire class for all
sums unlawfully withheld from their pay;
3. Awarding plaintiff damages for the unlawful withholding of wages pursuant
to ORS 652.615.
4. Awarding plaintiff the costs of this action together with reasonable attorney
5. Granting such other relief as this Court deems just and proper.
DATED THIS 25th DAY OF October, 1994.
Thompson & Long
Jeffrey A. Long
Of Attorneys for Plaintiff