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JEFFREY A. LONG OSB #86235 Thompson & Long UNITED STATES DISTRICT COURT DISTRICT OF OREGON
MARGI CHONG, Plaintiff
v. COLUMBIA SPORTSWEAR COMPANY, An Oregon Corporation, Jury Trial Requested
Plaintiff alleges: 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). PARTIES 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 reference. 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 herein. 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 life activities. 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 follows: 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 fees; and 5. Granting such other relief as this Court deems just and proper. DATED THIS 25th DAY OF October, 1994. Thompson & Long |
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