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RONALDO A. COULTER
Idaho Employment Law Solutions
Attorney at Law
776 E. Riverside Drive, Suite 240
Eagle, Idaho 83616
Telephone: (208) 672-6112
Facsimile: (208) 672-6114
Idaho State Bar No.3850
[email protected]
HOLLY E SUTHERLAND
Idaho Employment Law Solutions
Of Counsel
776 E. Riverside Drive, Suite 240
Eagle, Idaho 83616
Telephone: (208) 938-1659
Facsimile: (208) 672-6114
Idaho State Bar No. 9521
[email protected]
Attorneys for Plaintiff
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
DONALD A. DEW, an individual
Plaintiff,
v.
DIRECTOR KENNETH D. EDMUNDS;
PAMELA P. PARKS
and
JOHN/JANE DOES I through X, whose
true identities are presently unknown,
Defendants.
___________________________________
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) Case No._______________
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) COMPLAINT AND DEMAND FOR
) JURY TRIAL
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COMPLAINT
Comes now Plaintiff, Donald A. Dew, by and through his counsel of record, Ronaldo A.
Coulter of the law firm of Idaho Employment Law Solutions, PLLC, and for causes of action
against the above named Defendants complains and alleges as follows:
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PARTIES
1.
Plaintiff, Donald A. Dew (“Plaintiff”), at all times relevant to this action was a
resident and citizen of Sioux City, Iowa. Plaintiff interviewed for the Administrator position of
the Idaho Human Rights Commission on September 4, 2014.
2.
Defendant, Kenneth D. Edmunds (“Director Edmunds”), is now, and at all
relevant times herein was acting pursuant to custom and policy derived from the official capacity
delegated to him by the State of Idaho as the Director of the Idaho Department of Labor (“IDOL”
or “Department”), and is being sued in his individual capacity.
3.
Defendant, Pamela P. Parks (“Ms. Parks”), was at all times relevant to this
complaint, acting pursuant to custom and policy derived from the official capacity delegated to
her by the State of Idaho and the Idaho Department of Labor as the Administrator of the Idaho
Commission on Human Rights (“IHRC” or “Commission”), and is being sued in her individual
capacity.
JURISDICTION, VENUE, AND
EXHAUSTION OF ADMINISTRATIVE REMEDIES
4.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 to redress the deprivation
of civil rights under color of state law. Jurisdiction is invoked in this Court pursuant to 28
U.S.C. §§ 1331 and 1343.
5.
This action is brought to secure relief to remedy discrimination on the basis of
disability in regards to the terms, conditions and privileges of employment all in violation of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., and Idaho Code § 67-5909(1), and
on the basis of sex in violation of Title VII of the Civil Rights Act of 1964 as amended, 42
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U.S.C. § 2000e, and Idaho Code §§ 67-5901 and 67-5907(1) which incorporates by reference
the Civil Rights Act of 1964.
6.
Idaho Code § 67-5901 incorporates by reference the Americans with Disabilities
Act and the Civil Rights Act of 1964. Pursuant to 42 U.S.C. § 2000e-5(e)(1) and Idaho Code §
67-5907(1), Plaintiff filed his complaint of unlawful discrimination based on disability and sex
discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December
29, 2014.
7.
The EEOC issued a Dismissal and Notice of Right to Sue on January 12, 2015.
8.
The EEOC issued a letter of Reconsideration of the Dismissal and Notice of Right
to Sue on February 11, 2015, vacating the January 12, 2015, Dismissal and Notice of Right to
Sue.
9.
Plaintiff requested a Notice of Right to Sue from the EEOC on February 18, 2015.
10.
The Department of Justice issued a 90-day Notice of Right to Sue letter to
Plaintiff on April 20, 2015. Plaintiff has exhausted his administrative remedies pursuant to 42
U.S.C. § 2000e-5 and Idaho Code § 67-5908. Ninety days from April 20, 2015, is July 19, 2015.
11.
Plaintiff filed a Notice of Tort Claim against the Defendants on January 28, 2015.
Defendants claim was denied on April 29, 2015, after the 90 day statutory period to respond
ended. Plaintiff has satisfied the notice requirements under the Idaho Tort Claims Act, I.C. §§ 6901, et seq., to file a civil action against the State of Idaho.
12.
Pursuant to 42 U.S.C. § 2000e-5(f)(1) and 42 U.S.C. § 2000e-5(f)(3), Plaintiff
brings this action in, and jurisdiction is proper in, the United States District Court for the District
of Idaho.
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13.
Jurisdiction of this court for the pendent or supplemental claims is authorized by
28 U.S.C. § 1367(a) and Fed. R. Civ. P. 18(a), and arises under the doctrine of pendent
jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). See also
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).
14.
Venue is proper in this Court pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C.
§ 1391 because the actions alleged in this complaint occurred in this District. See also Sadid v.
Idaho State University, 837 F.Supp.2d 1168 (D. Idaho 2011).
STATEMENT OF FACTS
15.
That in June of 2014, Plaintiff applied for the position of Administrator of the
Idaho Human Rights Commission through the State’s online application process.
16.
That Plaintiff also sent his cover letter, resume, and references to Ms. Parks at the
17.
That on or about July 18, 2014, Ms. Parks, the Administrator of the IHRC, called
IHRC.
Plaintiff to set up a video interview with the Commissioners of the IHRC.
18.
That on or about July 23, 2014, a video interview was conducted by Ms. Parks
and IHRC Commissioners, Ms. Estella Zamora (“Commissioner Zamora”), Mr. Brian Scigliano
(“Commissioner Scigliano”), Mr. Joe McNeal (“Commissioner McNeal”), and Ms. Andrea
Wassner (“Commissioner Wassner”) (collectively the “Commissioners”).
19.
That the video interview between Plaintiff, Ms. Parks, and the Commissioners
lasted approximately 45 minutes.
20.
That the video interview covered typical interview topics such as Plaintiff’s
background, goals, and vision for the IHRC.
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21.
That Plaintiff discussed the likelihood that the IHRC would see an increase in its
caseload regarding gay rights issues.
22.
That at the end of the video interview, Ms. Parks told Plaintiff that she would call
him at the end of the week to follow-up on the interview.
23.
That on or about July 31, 2014, Plaintiff sent Ms. Parks a follow-up email
thanking her for the interview and expressing his continued desire for the position.
24.
That on or about August 14, 2014, Plaintiff again sent Ms. Parks a follow-up
25.
That on or about August 15, 2015, Ms. Parks replied to Plaintiff’s email
email.
apologizing for the delay in getting back to him and letting him know that the Commission was
being meticulous in its decision.
26.
That on or about August 25, 2014, Plaintiff sent Ms. Parks another email to let her
know that the Executive Director of the National Council on Independent Living, Mr. Kelly
Buckland, was a possible reference for Plaintiff.
27.
That on or about August 26, 2014, Plaintiff received a surprise phone call from
Ms. Parks for an impromptu conference call phone interview.
28.
That Plaintiff was interviewed over the phone by Ms. Parks, Commissioner
Zamora, Commissioner Scigliano, and Commissioner McNeal.
29.
That Plaintiff was asked in the interview if he really wanted the Administrator
position and what his salary requirements were.
30.
That Plaintiff was asked how long before he could start if he was offered the
position.
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31.
That Plaintiff told Ms. Parks and the Commissioners that he would like to give his
current job a one-month notice so they could find and train a replacement for him.
32.
That Plaintiff told the Commissioners he could arrange to start earlier, if need be,
as he did not want to lose the opportunity.
33.
That the Commissioners asked Plaintiff about Mr. Buckland and his mediation
training.
34.
That the phone interview between Plaintiff, Ms. Parks, and the Commissioners
lasted approximately thirty (30) minutes.
35.
That at the end of the phone interview, Ms. Parks asked Plaintiff if he could come
to Boise for an in-person interview.
36.
That Plaintiff told the Commissioners he would come to Boise for an in-person
interview.
37.
That the IHRC arranged for Plaintiff to fly to Boise, Idaho, on September 4, 2014,
for his third interview.
38.
That Plaintiff was flying to Boise on Thursday, September 4, 2014, and flying out
of Boise on Sunday, September 7, 2014.
39.
That Plaintiff understood his itinerary to include interviewing with the
Commissioners on Thursday, September 4, 2014, and meeting with the Commissioners on
Friday, September 5, 2014.
40.
That Plaintiff planned on using Saturday, September 6, 2014, to explore Boise.
41.
That on or about September 4, 2014, Plaintiff flew to Boise for his third
interview.
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42.
That Plaintiff took a taxicab from his hotel near the Boise International Airport to
the IDOL.
43.
That Plaintiff interviewed with Ms. Parks, Commissioner Zamora, Commissioner
McNeal, and Commissioner Scigliano.
44.
That the third interview lasted a little over an hour.
45.
That during the third interview, Commissioner McNeal asked Plaintiff what
salary he would accept, when he could start, and what his commitment to the position would be.
46.
That Plaintiff answered that he would accept the offered salary, that he would
need to give his Board at home adequate notice to find his replacement, and that he planned to
retire in the Administrator position.
47.
That Ms. Parks told Plaintiff that the Commissioners would like the new
Administrator to start by October 1, 2014, but that an Interim Administrator would be in the
position if the position was not filled by October 1, 2014.
48.
That during the third interview with Ms. Parks and the Commissioners, Plaintiff
was informed of the complexity of the relationship between the IHRC and the IDOL with the
IDOL overseeing the IHRC and having complete control over its budget.
49.
That Plaintiff learned that the IDOL saved the IHRC from extinction a few years
50.
That the IHRC was very happy with the IDOL for saving it.
51.
That one Commissioner told Plaintiff in the interview, “That is one apple cart you
back.
do not want to overturn.”
52.
That before the third interview with the Commissioners ended, Commissioner
McNeal had to leave the interview early.
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53.
That as Commissioner McNeal was leaving, he shook Plaintiff’s hand and told
him that he hoped to see him next month in “that chair,” indicating Ms. Parks’s chair.
54.
That Commissioner McNeal told Ms. Parks that “you know what my vote is” in
front of Plaintiff and the others making Plaintiff certain that Commissioner McNeal was voting
yes to hire Plaintiff for the position.
55.
That during the third interview with the Commissioners, Plaintiff learned that he
would be meeting with the Director of the Idaho Department of Labor, Mr. Kenneth D.
Edmunds, and the Deputy Director of the IDOL, Mr. Jay Engstrom, at 4:30 p.m.
56.
That Plaintiff believed this meeting was a final wrap-up to the interview process,
and that he would definitely be seeing the Commissioners again.
57.
That at 4:30 p.m. on September 4, 2014, Ms. Parks took Plaintiff to meet Director
Edmunds and Deputy Director Engstrom in a conference room near the Director’s office.
58.
That Plaintiff introduced himself to Director Edmunds and Deputy Director
Engstrom.
59.
That Director Edmunds immediately took over the room with Ms. Parks and
Deputy Director Engstrom sitting behind Plaintiff during the interview.
60.
That Director Edmunds’s demeanor was unfriendly from the beginning.
61.
That Director Edmunds began launching questions at Plaintiff.
62.
That Director Edmunds asked Plaintiff why he thought he should be the
Administrator of the IHRC.
63.
That Plaintiff answered that he would like to see Idaho as a place where “we have
a stronger and better way of ensuring equality for everyone.”
64.
That Director Edmunds took exception with Plaintiff’s use of the word “better.”
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65.
That Director Edmunds asked Plaintiff what he meant by the word “better” and if
Plaintiff thought Idaho was not a good place that needed to be made “better.”
66.
That Plaintiff explained that he used the word “better” to mean improving on
something that is already good.
67.
That Plaintiff explained that he did not use the word “better” to devalue Idaho.
68.
That Director Edmunds continued to reference “better” in a sarcastic tone
throughout the interview.
69.
That Director Edmunds told Plaintiff that he had pre-conceived notions of Idaho
and that Plaintiff would not listen to someone else’s point of view.
70.
That Director Edmunds asked Plaintiff about ReachOut USA, the organization
Plaintiff started in 2007 to help LGBT people with disabilities.
71.
That Plaintiff had won a national award for the work he had done with ReachOut
72.
That Director Edmunds mentioned ReachOut USA multiple times throughout the
USA.
meeting making Plaintiff aware that including this organization on his resume was not beneficial
to him during this interview.
73.
That Director Edmunds told Plaintiff that they needed to look over the gaps in
Plaintiff’s employment.
74.
That Director Edmunds asked about a three-month employment gap in 2001.
75.
That Plaintiff explained that the gap was due to a sale of a motel business he
managed.
76.
That Director Edmunds then asked Plaintiff about a two-year employment gap
starting in 2004.
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77.
That Plaintiff explained that he had a round of infections that caused him to have
an uncontrolled seizure disorder.
78.
That Plaintiff’s uncontrolled seizure disorder resulted in Plaintiff being forced to
file for disability.
79.
That when Director Edmunds heard that Plaintiff had uncontrolled seizure
disorder after Plaintiff answered the question, Director Edmunds’s facial expression contorted
like he smelled a dirty diaper.
80.
That Plaintiff saw a look of disgust in Director Edmunds’s face.
81.
That Director Edmunds asked Plaintiff in an incredulous tone if Plaintiff could
even work a forty (40) hour week.
82.
That upon information and belief, Director Edmunds did not ask other applicants
if they could even work a forty (40) hour week, especially in an incredulous tone.
83.
That Plaintiff responded, “Of course I can work 40 hours. It is not an issue, and I
have not had a seizure in three years.”
84.
That Plaintiff told Director Edmunds that he would not be applying for the
position if he did not know that he could do the job.
85.
That Plaintiff informed Director Edmunds that he works forty (40) or more hours
a week at his current job.
86.
That following the disclosure of Plaintiff’s disability in Plaintiff’s answer to
Director Edmunds’s questions, Director Edmunds’s tone and questions were noticeably different.
87.
That Director Edmunds’s tone was condescending, and he began treating Plaintiff
like Plaintiff was beneath him or a “lesser” person than the Director.
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88.
That Director Edmunds’s actions and attitude toward Plaintiff were familiar to
Plaintiff because others have treated Plaintiff like a “lesser” person in the past because of
Plaintiff’s disability.
89.
That Plaintiff had prior experiences with others who learned that Plaintiff had
epilepsy and became uncomfortable around Plaintiff, like they were on guard and needed to get
away from him, almost as if epilepsy was contagious.
90.
That Director Edmunds’s reaction to Plaintiff’s disclosure of his epileptic seizure
disorder was as if Director Edmunds believed Plaintiff’s mental faculties were “dimmed”
because of his epilepsy.
91.
That Director Edmunds asked Deputy Director Engstrom and Ms. Parks to go to
his office with him to discuss Plaintiff while Plaintiff waited in the conference room.
92.
That Plaintiff waited for approximately thirty (30) minutes in the conference room
for Director Edmunds, Deputy Director Engstrom, and Ms. Parks to finish their discussion in
Director Edmunds’s office.
93.
That Ms. Parks came back to the conference room after the discussion in Director
Edmunds’s office and said, “Oh, you are still here? I will take you downstairs.”
94.
That Plaintiff was surprised at Ms. Parks’s question and confused about what was
happening.
95.
That Plaintiff was not sure where it is he would have gone or why Ms. Parks
would ask him such a question.
96.
That sometime between 5:00 p.m. and 6:00 p.m., Ms. Parks took Plaintiff
downstairs to the front of the IDOL building where she thanked Plaintiff for coming to Boise,
and told him that the Commission would have to meet again.
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97.
That Ms. Parks told Plaintiff that it could take about a week for the Commission
to meet again.
98.
That Ms. Parks left Plaintiff standing outside the IDOL building holding his
leather portfolio, his phone, and his cane.
99.
That Plaintiff was not called a taxicab or given instructions or suggestions on how
to get back to his hotel near the airport.
100.
That Plaintiff walked around downtown Boise looking for a taxicab.
101.
That when Plaintiff realized taxicabs were not readily available, Plaintiff called
for a taxicab to take him back to his hotel.
102.
That when Plaintiff made it back to his hotel, he felt confused and belittled by
Director Edmunds’s attitude and actions toward him.
103.
That Plaintiff felt that Director Edmunds was antagonistic from the start and had
already made his mind up before the interview began.
104.
That Plaintiff was hoping Ms. Parks would contact him so Plaintiff could make
some sense of what had transpired during his interview with Director Edmunds.
105.
That Plaintiff waited to hear from Ms. Parks on Friday, September 5, 2014.
106.
That Plaintiff heard nothing from Ms. Parks nor the Commissioners.
107.
That Plaintiff became so frustrated and angry waiting to hear something from the
IHRC on Friday, September 5, 2014, that he decided to reschedule his return flight home to
Saturday, September 6, 2014.
108.
That Plaintiff flew out of Boise on Saturday, September 6, 2014, a day earlier
than he had planned because he had heard nothing from the IHRC.
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109.
That Plaintiff spent the rest of the weekend thinking about the positive interview
with the Commissioners followed by the fateful interview with Director Edmunds.
110.
That Plaintiff felt certain he would be offered the Administrator position after he
finished talking with the Commissioners, especially after Commissioner McNeal told Ms. Parks
his vote was yes.
111.
That Plaintiff felt his consideration for the position hit a brick wall when he
stepped in the room with Director Edmunds.
112.
That Director Edmunds knew from Plaintiff’s resume and reference materials
accumulated before Plaintiff’s interview that Plaintiff was disabled and gay.
113.
That Plaintiff felt belittled, humiliated, and devalued the entire interview with
Director Edmunds.
114.
That Plaintiff was so humiliated after his interview with Director Edmunds that he
felt he could not put himself through the rest of the application and consideration process.
115.
That Plaintiff felt Director Edmunds was biased against him because he was gay
and disabled and had founded an advocacy organization for gay, disabled individuals.
116.
That Plaintiff was so distraught over Director Edmunds’s discriminatory
treatment during Plaintiff’s interview that he decided to withdraw his application from
consideration for the Administrator position.
117.
That Plaintiff knew that Director Edmunds’s biases made it an exercise in futility
to keep his application in the consideration process.
118.
That Plaintiff felt that withdrawing his application was the only dignified way for
him to handle such a humiliating and devaluing situation.
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119.
That Plaintiff sent an e-mail to Ms. Parks on September 8, 2014, withdrawing his
application from consideration for the Administrator position.
120.
That Plaintiff copied the e-mail to Director Edmunds and Governor Otter.
121.
That on September 22, 2014, a member of the search committee for the American
Civil Liberties Union of Idaho (“ACLU of Idaho”), Mr. Joe Miller, contacted Plaintiff regarding
Plaintiff flying to Boise for a job interview for a position as the Executive Director of the ACLU
of Idaho.
122.
That because Plaintiff was so humiliated and abased by his interview with
Director Edmunds on September 4, 2014, Plaintiff could not put himself through the process of
flying to Boise for the job interview.
123.
That Plaintiff knew he was qualified for the Executive Director position at the
ACLU of Idaho, but his confidence and self-esteem had been damaged to the point that he could
not make another trip to Boise for a job interview so quickly.
124.
That after submitting multiple Public Records Requests to the IDOL and the
IHRC requesting copies of the interview notes and all relevant documents from Plaintiff’s
interview process, Plaintiff received notes from the interview including answers from Plaintiff’s
references.
125.
That two (2) of Plaintiff’s references spoke of Plaintiff’s disability.
126.
That the reference answers from the telephonic interview of Karen Mackey,
Plaintiff’s former supervisor at the Sioux City Human Rights Commission, allegedly contained
multiple statements about Plaintiff’s disability and status as a gay man.
127.
That because Plaintiff believed Ms. Mackey would not make such statements, he
sent her a copy of Ms. Parks’s notes taken from her telephone interview with Ms. Mackey.
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128.
That Ms. Mackey sent Plaintiff a letter stating that Ms. Parks’s notes contained
multiple inaccuracies, including that Ms. Mackey said that Plaintiff was in a “gay relationship.”
129.
That Ms. Mackey stated that she most likely said “in a relationship” and the word
“gay” was either added by Ms. Parks because of a bias against gay people or by another IDOL or
IHRC employee “for some reason.”
130.
That upon information and belief, Ms. Parks did not include the word “straight”
or “heterosexual” to describe other applicants’ relationships in their application materials when a
reference spoke of the applicant’s personal relationships.
131.
That Plaintiff continues to work on rebuilding his perceived loss of confidence
and the misgivings the Board of the Sioux City Human Rights Commission has after Plaintiff
spent time, effort, and money interviewing with the IHRC and not being offered the position.
CLAIMS OF UNLAWFUL DISCRIMINATION
COUNT I
Discrimination in Violation of the Americans with Disabilities Act, 42 U.S.C.§ 12101 et
seq., and Idaho Code §§ 67-5909(1) and 67-5901, which incorporates by reference the
Americans with Disabilities Act
132.
Plaintiff restates, realleges, and reavers and hereby incorporates by reference the
allegations set forth in paragraphs 1 through 131 herein as paragraph 132 of this Count I.
133.
Based on the foregoing, Plaintiff is a qualified individual with a disability under
the Americans with Disabilities Act. 1
1
To establish a prima facie case of discrimination under the ADA, he must show that he: (1) is
disabled; (2) is qualified; and (3) suffered an adverse employment action because of his
disability. Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001); see also
Sanders v. Arneson Prods., Inc., 91 F.3d 1351, 1353 (9th Cir.1996).
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134.
Plaintiff is the Executive Director of the Disabilities Resource Center of
Siouxland in Sioux City, Iowa. He has over nineteen (19) years in management experience. He
has experience in investigation and research, particularly in the area of discrimination. He is a
certified mediator and paralegal. He has worked with the Sioux City Human Rights Commission
and has won a national award from the American Association of People with Disabilities. Thus,
Plaintiff was a qualified individual for the Administrator position with the IHRC.
135.
Plaintiff has suffered from epileptic seizure disorder since 2004. Epilepsy
qualifies as a disability under the ADA.
136.
Plaintiff suffered the adverse employment action of having the position he applied
and interviewed for made unavailable to him because of his disability. The adverse employment
action was the loss of opportunity for the Plaintiff to even compete for the open position because
of Director Edmunds’s discrimination during Plaintiff’s interview on September 4, 2014.
137.
Plaintiff was denied the fair opportunity to continue competing for the
Administrator position because Director Edmunds was biased towards Plaintiff during Plaintiff’s
interview because of Plaintiff’s disability. Director Edmunds asked Plaintiff about his gap in
employment from 2004 to 2006. When Plaintiff explained that he had a round of infections that
led to an uncontrolled seizure disorder, Director Edmunds became noticeably disgusted and
asked Plaintiff if he could even work a 40 hour week. The tone of the interview completely
changed from this point on. This change was the direct result of Director Edmunds’s bias against
Plaintiff because of his disability.
COUNT II
Discrimination in Violation of Title VII of the Civil Rights Act of 1964 as amended, 42
U.S.C. § 2000e, and Idaho Code §§ 67-5901 and 67-5907(1) which incorporates by
reference the Civil Rights Act of 1964.
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138.
Plaintiff restates, realleges, and reavers and hereby incorporates by reference the
allegations set forth in paragraphs 1 through 137 herein as paragraph 138 of this Count II.
139.
Based on the foregoing, Defendants caused Plaintiff to suffer as a victim of
deliberate and unlawful sex discrimination in violation of 42 U.S.C. § 2000e (Title VII of the
Civil Rights Act of 1964 as amended) 2 and Idaho Code §§ 67-5901 and 67-5907(1), which
incorporates by reference the federal Civil Rights Act of 1964.
140.
As a result of this violation, Plaintiff, a man that was highly qualified for the
Administrator position, suffered the adverse employment action of being denied the fair
opportunity to compete for the open position.
141.
Plaintiff was denied the opportunity to fairly compete for the open Administrator
position despite his qualifications because of unlawful sex discrimination based on sexual
stereotyping of Plaintiff. Plaintiff suffered a humiliating interview at the hands of Director
Edmunds who mentioned Plaintiff’s advocacy organization for gay, disabled individuals
throughout the interview.
142.
Plaintiff was denied the opportunity to fairly compete for the open Administrator
position despite his qualifications because of unlawful sex discrimination and sexual
stereotyping when an agent, Ms. Parks, of the IHRC and the IDOL added the word “gay” to the
word “relationship” in Plaintiff’s reference materials signaling a bias toward Plaintiff’s sexual
orientation and showing an inclination towards gender stereotyping. These materials were
available to Director Edmunds before and during Plaintiff’s interview.
2
To establish a prima facie case of disparate treatment discrimination, a Title VII plaintiff must show that: (1) he
belongs to a protected class; (2) he was qualified for his position; (3) he was subject to an adverse employment
action; and (4) similarly situated individuals outside his protected class were treated more favorably. See Davis v.
Team Electric Co., 520 F.3d 180 (9th Cir.2008) See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973)
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143.
Defendants hired a woman, Ms. Linda Goodman, as the Administrator of the
IHRC after Plaintiff was denied the opportunity to fairly compete for the Administrator position
based on Director Edmunds’s gender stereotyping and sex discrimination during Plaintiff’s
interview on September 4, 2014.
COUNT III
Negligent Infliction of Emotional Distress
144.
Plaintiff restates, realleges, and reavers and hereby incorporates by reference the
allegations set forth in paragraphs 1 through 143 herein as paragraph 144 of Count III.
145.
That it was clearly foreseeable that the manner in which Defendants treated Plaintiff
during and after his third interview would cause Plaintiff mental and emotional distress which
would result in physical manifestations detrimental to Plaintiff’s health.
146.
That Defendants’ actions caused Plaintiff to suffer emotional and physical distress,
and that due to Defendants’ conduct, Plaintiff has suffered from humiliation, loss of confidence, loss
of self-respect and self-worth, profound stress and anxiety, depression, anger, frustration, and
hopelessness.
COUNT IV
42 U.S.C. § 1983 – Violation of the Equal Protection Clause
147.
Plaintiff restates, realleges, and reavers and hereby incorporates by reference the
allegations set forth in paragraphs 1 through 146 herein as paragraph 147 of Count IV.
148.
Defendants were acting under the color of state law at all times described herein.
149.
As described herein, Defendants deprived Plaintiff of his right to equal protection by
discriminating against him on the basis of his gender and his disability in the hiring process, in
violation of the Fourteenth Amendment and 42 U.S.C. § 1983.
COMPLAINT AND DEMAND FOR JURY TRIAL
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150.
Alternatively, Defendants deprived Plaintiff of his right to equal protection by
irrationally and/or arbitrarily subjecting Plaintiff to differential treatment for reasons unrelated to a
legitimate governmental objective.
151.
As a direct and proximate result of Defendants’ unlawful conduct, Plaintiff has
suffered lost income and benefits and will continue to suffer lost income and benefits, including
prejudgment interest, all to his economic damages in an amount to be determined at trial.
152.
As a further direct and proximate result of that conduct, Plaintiff has suffered and
will continue to suffer from a depression, humiliation, anger, frustration, anxiety, emotional pain,
mental anguish, and loss of enjoyment of life and is entitled to an award of compensatory or noneconomic damages in an amount to be determined at trial.
153.
Because the aforementioned Defendants’ conduct was reckless and violated
Plaintiff’s clearly established constitutionally and statutorily protected employment rights, Plaintiff
should be awarded punitive damages in an amount to be determined at trial.
154.
Pursuant to 42 U.S.C. § 1988, Plaintiff is entitled to an award of attorney’s fees,
expert fees and costs incurred herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, Donald A. Dew, respectfully prays for judgment against Defendant as
follows:
A.
For a money judgment representing compensatory damages in the amount of ten
million dollars ($10,000,000.00);
B.
For money judgment representing punitive damages for Defendants’ willful
violation of the law in an amount to be determined at trial;
COMPLAINT AND DEMAND FOR JURY TRIAL
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