UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff, -againstMUSEUM OF MODERN ART,
Defendant,

Civil Action No.

COMPLAINT AND JURY TRIAL DEMAND
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
James L. Lee Regional Attorney Anna M. Stathis Supervisory Trial Attorney
Andr6e M. Peart (AP-3236) Trial Attorney
New York District Office 7 World Trade Center, 18th FI. New York, New York 10048-1102 (212) 748-8502

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

EQUAL EMPLOYMENT OPPORTUNITY :

COMMISSION,

:

:

Plaintiff,

:

:

-against-

:

:

MUSEUM OF MODERN ART,

:

:

Defendant,

:

Civil Action No.
COMPLAINT AND JURY TRIAL DEMAND

NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Jeffrey Allen who was adversely affected by such practices. As alleged with particularity below, Jeffrey Allen, a qualified individual with a disability, was denied a position as a temporary Sales Associate because of his disability.

JURISDICTION AND VENUE

i.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337,

1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the

Americans with Disabilities Act of 1990 ("the ADA"), 42 U.S.C. § 12117(a), which incorporates

by reference Sections 706(0(1) and 706(f)(3) of Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. §§ 2000e-5(f)(1) and 2000e-5(f)(3) and pursuant to Section 102 of the Civil

Rights Act of 1991,42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were being committed within the jurisdiction of the United States District Court for the Southern District of New York.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission ("the Commission"), is the agency of the United States of America charged with the administration, interpretation, and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and 706(f)(3) of Title VII, 42 U.S.C. §§ 2000e-5(f)(l) and (0(3). 4. At all relevant times, Defendant Museum of Modern Art ("the Defendant MOMA") continuously has been a not-for-profit entity doing business in the State of New York and in the city of New York and continuously has had at least fifteen employees. 5. At all relevant times, the Defendant MOMA has continuously been an employer engaged in an industry affecting commerce under Section 101 (5) of the ADA, 42 U.S.C. § 121 ! 1(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701 (g) and 701(h) of Title VII, 42 U.S.C. §§ 2000e-(g) and 2000e-(h). 6. At all relevant times, the Defendant MOMA has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Jeffrey Allen filed a charge with the Commission alleging violations of Title 1 of the ADA by the Defendant MOMA.

All conditions precedent to the institution of this lawsuit have been fulfilled. 8. Since at least July 1994, the Defendant MOMA engaged in unlawful employment
practices in violation of Title I of the ADA, 42 U.S.C. § 12112 (a) and (b). In or about July through December, 1994, the Defendant MOMA failed to hire Jeffrey Allen, a former employee, for the position of temporary Sales Associate because of his disability, deafness.
9. The effect of the practices complained of above has been to deprive Jeffrey Allen of equal employment opportunities and otherwise adversely affect his status as an employee because of his disability.
10. The unlawful employment practices complained of above were intentional. 11. The unlawful employment practices complained of above were done with malice or with reckless indifference to the federally protected rights of Jeffrey Allen.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining the Defendant MOMA, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of disability. B. Order the Defendant MOMA to institute and carry out policies, practices and programs which provide equal employment opportunities for qualified individuals with disabilities and which eradicate the effects of its past unlawful employment practices. C. Order the Defendant MOMA to make whole Jeffrey Allen by providing compensation for pecuniary losses resulting from the unlawful employment practices described

in paragraphs 8 and 9 above, including appropriate back pay with prejudgment interest, in amounts to be determined at trial.
D. Order the Defendant MOMA to make whole Jeffrey Allen by providing compensation for nonpecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including but not limited to emotional pain and suffering in amounts to be determined at trial.
E. Order the Defendant MOMA to pay Jeffrey Allen punitive damages for its reckless and malicious conduct, as described in paragraphs 8 and 9 above, in amounts to be determined at trial.
Grant such further relief as the Court deems necessary and proper in the public interest.
G. Award the Commission its costs in this action.

JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact raised by its complaint.

Dated:

December 31, 1997 New York, New York

Respectfully submitted,

C. Gregory Stewart General Counsel
Rosalind D. Gray Associate General Counsel

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
1801 "L" Street, N.W. Washington, D.C. 20507

James L. Lee Regional Attorney

Anna M. Stathis Supervisory Trial Attorney

Q.~lAndr6e 1¢1. Peah (AP-3236) Trial Attorney
New York District Office 7 World Trade Center, 18th Floor New York, New York 10048-1102 (212) 748-8502

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APPEAL, CLOSED
U.S. District Court United States District Court for the Southern District of New York (Foley Square)
CIVIL DOCKET FOR CASE #: 1:97-cv-09571-LAK-MHD

E.E.O.C. v. Museum of Modern Art Assigned to: Judge Lewis A. Kaplan Referred to: Magistrate Judge Michael H. Dolinger Demand: $0 Cause: 42:12112 Americans with Disabilities Act of 1990

Date Filed: 12/31/1997 Date Terminated: 03/30/1999 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Andree Peart 33 Whitehall Street, New York, NY 10004 (212) 336-3746 LEAD ATTORNEY

V. Defendant Museum of Modern Art

represented by Christopher John Collins Kelley Drye & Warren, LLP (NY) 101 Park Avenue New York, NY 10178 (212)808-7800 x7957 Fax: (212)808-7897 Email: ccollins@kelleydrye.com LEAD ATTORNEY

Date Filed 12/31/1997 12/31/1997 01/15/1998 03/10/1998

#

Docket Text

1 COMPLAINT filed; Summons issued and Notice pursuant to 28 U.S.C. 636(c); (No Fees Due - U.S.A.). (em) (Entered: 01/06/1998)
Magistrate Judge Dolinger is so Designated. (em) (Entered: 01/06/1998)
2 ORDER, regarding scheduling and initial pretrial conference ( signed by Judge Lewis A. Kaplan ); Copies mailed (cd) (Entered: 01/16/1998)
3 SCHEDULING ORDER: joinder of additional parties - 4/9/98; amendment of pleadings - 4/9/98; completion of all discovery - 6/9/98; service of summary judgment motions - 7/9/98; filing of pretrial order, proposed jury instructions and requested voir dire questions -- case ready for trial - 7/9/98 ( signed by Judge Lewis A. Kaplan ); Copies mailed (sac) (Entered: 03/11/1998)

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03/11/1998 03/17/1998 03/17/1998 05/01/1998 05/08/1998
08/31/1998
08/31/1998 08/31/1998 09/03/1998 09/15/1998
09/17/1998 09/23/1998 09/23/1998 02/09/1999 02/25/1999 03/04/1999

4 Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for settlment. ( signed by Judge Lewis A. Kaplan ) Referred to Magistrate Judge Michael H. Dolinger. (kw) (Entered: 03/12/1998)
5 Rule 1.9 certificate filed by Museum of Modern Art (djc) (Entered: 03/20/1998)
6 ANSWER to Complaint by Museum of Modern Art (Attorney Christopher J. Collins); by attorney Christopher J. Collins for defendant Museum of Modern Art (djc) (Entered: 03/20/1998)
Before Mag Judge Dolinger; Pre-trial conference held (cd) (Entered: 05/04/1998)
7 Filed Memo-Endorsement on letter to Judge Kaplan from Andree M. Peart dated 05/07/98, reset discovery due for 6/30/98 ; reset pretrial order due for 8/30/98 ; reset summary judgment motion filing deadline for 8/30/98 ; the Court did not authorize suspension of discovery ( signed by Judge Lewis A. Kaplan) (djc) (Entered: 05/08/1998)
8 NOTICE OF MOTION by Museum of Modern Art; pursuant to Rule 56(e) of the FRCP, for summary judgment ; with Deposition(s) in support attached (filed in the night deposit on 8/31/98 at 11:59 p.m.) (ae) Modified on 09/02/1998 (Entered: 09/02/1998)
9 MEMORANDUM OF LAW by Museum of Modern Art in support of [8-1] motion pursuant to Rule 56(e) of the FRCP, for summary judgment (filed in the night deposit on 8/31/98 at 11:59 p.m.) (ae) (Entered: 09/02/1998)
10 Rule 56.1 statement filed by Museum of Modern Art (filed in the night deposit on 8/31/98 at 11:59 p.m.) (ae) (Entered: 09/02/1998)
11 JOINT PRETRIAL ORDER filed. ( signed by Judge Lewis A. Kaplan ) (kw) (Entered: 09/04/1998)
12 Filed Memo-Endorsement on letter to Judge Kaplan from Andree M. Peart dated 9/14/98, plaintiff's response to motion reset to 9/16/98 for [8-1] motion pursuant to 56(e) of the FRCP, for summary judgment ( signed by Judge Lewis A. Kaplan ) (kw) (Entered: 09/16/1998)
13 MEMORANDUM by E.E.O.C. in opposition to [8-1] motion pursuant to Rule 56(e) of the FRCP, for summary judgment (ls) (Entered: 09/17/1998)
14 REPLY MEMORANDUM by Museum of Modern Art re: [8-1] motion pursuant to Rule 56(e) of the FRCP, for summary judgment (cd) (Entered: 09/24/1998)
15 SUPPLEMENTAL AFFIDAVIT in support of C. Collins by Museum of Modern Art Re: [8-1] motion pursuant to Rule 56(e) of the FRCP, for summary judgment (cd) (Entered: 09/24/1998)
16 ORDER, set oral argument for 11:30 2/22/99 (signed by Judge Lewis A. Kaplan); Copies mailed. (ri) (Entered: 02/09/1999)
17 ORDER; denying [8-1] motion pursuant to Rule 56(e) of the FRCP, for summary judgment. ( signed by Judge Lewis A. Kaplan ); Copies mailed (jp) (Entered: 02/26/1999)
Settlement conference held (sl) (Entered: 03/08/1999)

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03/19/1999
03/19/1999 03/19/1999 03/22/1999
03/23/1999 03/24/1999 03/25/1999 03/26/1999 03/30/1999 03/30/1999 04/12/1999 05/28/1999 05/28/1999 06/01/1999 07/28/1999

18 NOTICE OF MOTION by Museum of Modern Art in limine, for an order preventing pltff from introducing, at trial, any purported evidence concerning the possible adverse effect of MoMA's alleged discrimination on Jeffrey Allen's HIV condition or T Cell count, any evidence concerning Allen's belief, opinion or concern about such an effect, and a handwritten chart prepared by Allen which, along with other notations by Allen, purports to track his T Cell Count . Return date 3/23/99. Deft's Memorandum in support attached. (emil) (Entered: 03/25/1999)
19 Proposed Jury Instructions by Museum of Modern Art (emil) (Entered: 03/25/1999)
20 Proposed Voir Dire Questions by Museum of Modern Art (emil) (Entered: 03/25/1999)
21 OPPOSITION BRIEF by Museum of Modern Art re: [18-1] motion in limine, for an order preventing pltff from introducing, at trial, any purported evidence concerning the possible adverse effect of MoMA's alleged discrimination on Jeffrey Allen's HIV condition or T Cell count, any evidence concerning Allen's belief, opinion or concern about such an effect, and a handwritten chart prepared by Allen which, along with other notations by Allen, purports to track his T Cell Count (emil) (Entered: 03/26/1999)
Jury trial held before Judge Kaplan on 3/23/99. (sac) (Entered: 03/30/1999)
Jury trial continues. (sac) (Entered: 03/30/1999)
Jury trial continues. (sac) (Entered: 03/30/1999)
Jury trial held & concluded before Judge Kaplan on 3/26/99. Jury Verdict for the deft. (sac) (Entered: 03/30/1999)
22 JUDGMENT. The complaint is dismissed. (signed by Judge Lewis A. Kaplan); Mailed copies and notice of right to appeal. Entered on 04/01/99 (djc) (Entered: 04/01/1999)
Case closed (djc) (Entered: 04/01/1999)
23 Transcript of record of proceedings filed before Judge Lewis A. Kaplan for dates of February 24, 1999 at 4:45 P.M. (sn) (Entered: 04/13/1999)
24 NOTICE OF APPEAL by E.E.O.C. ; from [22-1] judgment order . Copies of notice of appeal mailed to Attorney(s) of Record: Christopher J. Collins . (dt) (Entered: 05/28/1999)
Notice of appeal and certified copy of docket to USCA: [24-1] appeal by E.E.O.C. ; Copy of notice of appeal sent to District Judge. (dt) (Entered: 05/28/1999)
25 Transcript of record of proceedings before Judge Kaplan filed for dates of 3/23-26/99 (jp) (Entered: 06/02/1999)
26 True Copy of Order from the USCA as to E.E.O.C. RE: [24-1] appeal by E.E.O.C. . Notice of motion for voluntary dismissal of appeal. It is hereby ordered that the motion be and it hereby is granted. (99-6137) Karen Greve Milton, USCA. (as) (Entered: 07/28/1999)

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 USCA2 Docket Sheet for 99-6137

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General Docket
US Court of Appeals for the Second Circuit

INDIV CLOSED

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Court of Appeals Docket #: 99-6137 Nsuit: 1442 CIVIL RIGHTS-Jobs EEOC v. Museum of Modern Art Appeal from: U.S. District Court

SDNY

Filed: 6/1/99

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) Civil 2) USA as party 3) none - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0208-01: 97-cv-9571 Trial Judge: Lewis A. Kaplan Magistrate Judge: Michael H. Dolinger Date Filed: 12/31/97 Date order/judgment: 3/30/99 Date NOA filed: 5/28/99 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: waived

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
None Current cases:
None - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Panel Assignment:

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Docket as of February 5, 2000 4:33 am

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99-6137 EEOC v. Museum of Modern Art

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Plaintiff - Appellant

Andree M. Peart, Esq. 212-748-8512 18th Floor [COR LD NTC ret] Equal Employment Opportunity Commission New York District Office 7 World Trade Center New York, NY 10048-1102

-------------------------

THE MUSEUM OF MODERN ART Defendant - Appellee

Christopher J. Collins, Esq. 212-969-3000 [COR LD NTC ret] Proskauer Rose 1585 Broadway

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New York, NY 10036-8299

Docket as of February 5, 2000 4:33 am

Page 2

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99-6137 EEOC v. Museum of Modern Art Official Caption 1/ ---------------------Docket No. [s] : 99-6137 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.

THE MUSEUM OF MODERN ART, Defendant-Appellee,
----------------------

---------------------Authorized Abbreviated Caption 2/ ---------------------Docket No. [s] : 99-6137 EEOC v. Museum of Modern Art ----------------------

-----------------------------------------------1/ Fed. R. App. P. Rule 12 [a] and 32 [a]. 2/ For use on correspondence and motions only.

Docket as of February 5, 2000 4:33 am

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99-6137 EEOC v. Museum of Modern Art

6/1/99

Copy of notice of appeal and district court docket entries on behalf of Appellant EEOC filed. [99-6137] Form C due on 6/7/99. Form D due on 6/7/99. (ag45)

6/15/99

Notice of appeal acknowledgment letter from Christopher J. Collins for Appellee Museum of Modern Art received. (ag45)

7/14/99

Appellant EEOC motion to dismiss the appeal FILED (w/pfs). [1437888-1] (ag45)

7/26/99

Order FILED GRANTING motion to dismiss the appeal [1437888-1] by Appellant EEOC, endorsed on motion form

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7/14/99. (ag45)

7/26/99

Certified copy of order dated 7/26/99 disposing of the appeal issued to district court. (ag45)

7/26/99

Notice to counsel regarding motion order filed on July 26, 1999. (ag45)

Docket as of February 5, 2000 4:33 am

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