IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

David Gast, )

Plaintiff, )

) Case No. 12-cv-03394

v. )

) Honorable Judge Nordberg

The County of Kane, a body politic, ) Honorable Magistrate Judge Valdez

And Sheriff Patrick Perez, as Kane )

County Sheriff, and not individually, )

)

Defendants. )

FIRST AMENDED COMPLAINT

NOW COMES, Plaintiff, DAVID GAST, by and through his attorneys, DELANEY

LAW, P.C., and in complaint of Defendants, the County of Kane and Sheriff Patrick Perez as

Kane County Sheriff, states as follows:

INTRODUCTION

1. Plaintiff, David Gast, an employee of the County of Kane, seeks redress for violations

of the Family Medical Leave Act. This case is brought pursuant to 29 U.S.C. § 2601, et.

seq.

JURISDICTION AND VENUE

2. Plaintiff’s claims arise under the Family Medical Leave Act, 29 U.S.C. § 2601, et. seq.,

and American with Disabilities Act, 42 U.S.C § 12101, et. seq.. Therefore, this Court

has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and 29

U.S.C. § 2617.

Case: 1:12-cv-03394 Document #: 35 Filed: 06/13/13 Page 1 of 13 PageID #:79
_________ FIRST AMENDED COMPLAINT Page 2 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

3. Venue is this district is proper under 28 U.S.C. § 1391(b). The Defendant resides in

this district and the events giving rise to Plaintiff’s claims occurred here.

4. All conditions precedent to jurisdiction have occurred or been completed with, to wit:

a. Plaintiff filed a charge No. 440-2011-04012 with the Illinois Department of

Human Rights on June 22, 2011, which was cross-filed with the Equal

Employment Opportunity Commission (hereinafter the “EEOC”), a copy of

which is attached hereto as Exhibit 1.

b. The EEOC issued Plaintiff a notice of right to sue on charge number 440-2011-

04012 on April 29, 2013, a copy of which is attached hereto as Exhibit 2.

PARTIES

5. Plaintiff, DAVID GAST, is a citizen of the United States and the State of Illinois and

resides in Kane County, Illinois. At all times material to this Complaint, GAST was

employed by Defendant, COUNTY OF KANE and SHERIFF PATRICK PEREZ, in

Kane County, Illinois.

6. Defendant COUNTY OF KANE (hereinafter sometimes referred to as “Kane

County”), at all times relevant to this Complaint, is a body politic and corporate

pursuant to 55 ILCS 5/5-1001.

7. Defendant PATRICK PEREZ is the Sheriff of Kane County and is a Defendant in

this matter in his capacity as Sheriff and not individually.

8. The Kane County Sheriff’s office is controlled and operated under the direction of

Patrick Perez and Kane County.

9. At all times material, Defendants were an employer as defined by 29 U.S.C. § 2611.

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_________ FIRST AMENDED COMPLAINT Page 3 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

FACTUAL ALLEGATIONS

10. On or about February 22, 2011 PLAINTIFF properly filled out Defendants’ form

documents requesting a leave of absence pursuant to the Family Medical Leave Act

(hereinafter “FMLA”).

11. Plaintiff requested leave begin on February 23, 2011 and expected to return to work on

May 18, 2011.

12. Defendants provided Plaintiff a document stating that Plaintiff was eligible for leave

and approved the leave.

13. In said document approving leave, Defendants stated that Plaintiff would be required

to present a fitness-for-duty certificate to the department head prior to being restored

to employment.

14. On or about April 27, 2011, Plaintiff’s physician, Dr. Georgina Srinivas Rao, MD, a

psychologist certified by the American Board of Psychiatry and Neurology in

Psychiatry who had treated Plaintiff for over one year provided a “Physician’s Return

to Duty Certification” on Defendants’ form document stating that based on the

physician’s medical opinion Plaintiff is able to resume his duties as Deputy Sheriff and

fulfill the essential functions of this position with no restrictions. Further, Plaintiff’s

physician acknowledged that Plaintiff’s job description requires him to carry and

potentially use a firearm and Plaintiff’s physician certified that in her medical opinion

Plaintiff was able to resume that duty without restrictions.

15. On or about May 3, 2011, Plaintiff delivered his medical release forms, authorizing him

to return to work on May 6, 2011, to Defendants.

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_________ FIRST AMENDED COMPLAINT Page 4 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

16. On or about May 4, 2011, Defendants acknowledge receipt of the forms and indicated

it would like to engage in a phone conference with Plaintiff.

17. Plaintiff and Defendants engaged in said phone conference and Plaintiff was directed

by Defendants to make an appointment with Dr. Brown, Defendant’s psychologist,

prior to returning to work.

18. Plaintiff made said appoint and scheduled it for May 9, 2011. Said appointment was

later canceled by Defendants after Plaintiff’s Union advised Defendants that

Defendants were required to give certain notice pursuant the Union contract.

19. Thereafter, on or about May 9, 2011, Defendants ordered Plaintiff to submit to a

Psychiatric Fitness for Duty Evaluation.

20. Defendants ordered Plaintiff to submit to a Psychiatric Fitness for Duty Evaluation

even though Plaintiff’s own physician had provided Defendant’s with their own form

“Physician’s Return to Duty Certification” which released Plaintiff to duty without

restrictions.

21. Thereafter, Plaintiff arranged for a meeting with Defendants’ doctor Marie-Claude

Rigaud, M.D., M.P.H (hereinafter “Rigaud”).

22. Upon information and belief, Riguad is a doctor Defendants regularly utilize.

23. On or about June 1, 2011, Plaintiff submitted to an evaluation by Rigaud.

24. On or about June 3, 2011, Plaintiff submitted to further psychological testing with a

Dr. Alford pursuant to Defendant’s demands.

25. Upon information and belief, Dr. Alford is a doctor Defendants regularly utilize.

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_________ FIRST AMENDED COMPLAINT Page 5 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

26. On or about July 7, 2011, Rigaud completed a report of the evaluation which

recommended that Plaintiff not return to the Deputy Patrol position and plan for a

reevaluation in three to six months.

27. On or about August 2, 2011, Defendants placed Plaintiff on administrative leave

without pay.

28. On or about October 15, 2011, Plaintiff requested that Defendants arrange a return to

Rigaud for re-evaluation in November 2011.

29. From October 15, 2011 through December 15, 2011, Defendants failed to arrange a

medical examination and/or re-evaluation for Plaintiff with Rigaud.

30. On or about January 9, 2012, Plaintiff underwent a reassessment with Rigaud who

released Plaintiff to return to work.

31. On or about January 27, 2012, Defendants demanded that Plaintiff’s therapist provide

Defendants a document stating that Plaintiff was released to full duty.

32. Plaintiff’s therapist is not a medical doctor.

33. Prior to January 27, 2012, Defendants had in their possession documents stating

Plaintiff should return to work from Plaintiff’s psychiatrist Dr. Rao and from Rigaud.

34. On or about January 30, 2012, Plaintiff was ordered by Defendants to report to work

in plain clothes, unarmed, and in his own personal vehicle.

35. On or about January 30, 2012 Defendants told Plaintiff that until “this matter is

resolved”, referring to the additional release demanded from Plaintiff’s therapist, that

Plaintiff would not be armed or in uniform.

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_________ FIRST AMENDED COMPLAINT Page 6 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

COUNT I

Demand for Relief for Violations of the

Family Medical Leave Act of 29 U.S.C. § 2601 et. seq., against all Defendants

36. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

I.

37. By virtue of the foregoing, Defendants violated 29 U.S.C. § 2601 et. seq., the Family

Medical Leave Act (“FMLA”), by interfering with Plaintiff’s entitlement to FMLA

leave under the FMLA and by harassing him in retaliation for having taken leave under

the FMLA.

38. As a result of these violations, Plaintiff has lost wages, salary, employment, and other

damages.

39. Defendants engaged in willful disregard for Plaintiff’s rights under the FMLA, and

therefore had no reasonable grounds for believing that the acts described above were

in accordance with the FMLA. Defendants’ violations were not in good faith, thereby

warranting liquidated damages, including interest.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Enter judgment in Plaintiff’s favor and against each Defendant for lost wages, salary,

employment benefits, and other compensation, as well as interest on these lost

pecuniary amounts in the form of back and front pay;

B. Enter judgment in Plaintiff’s favor and against each Defendant for two times the

amount as liquidated damages;

C. Award Plaintiff his attorney’s fees and costs;

D. Enjoin Defendants from violating the FMLA in the future; and

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_________ FIRST AMENDED COMPLAINT Page 7 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

E. Grant such other relief as this Court deems just and equitable.

COUNT II

Demand for Relief for Violations of the

Family Medical Leave Act of 29 U.S.C. § 2601 et. seq., against all Defendants

40. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

II.

41. Defendants violated 29 U.S.C. § 2601 et. seq., the Family Medical Leave Act by

demanding that Plaintiff provide additional information from the Plaintiff’s health care

provider.

42. As a result of these violations, Plaintiff has lost wages, salary, employment, and other

damages.

43. Defendants engaged in willful disregard for Plaintiff’s rights under the FMLA, and

therefore had no reasonable grounds for believing that the acts described above were

in accordance with the FMLA. Defendants’ violations were not in good faith, thereby

warranting liquidated damages, including interest.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Enter judgment in Plaintiff’s favor and against each Defendant for lost wages, salary,

employment benefits, and other compensation, as well as interest on these lost

pecuniary amounts in the form of back and front pay;

B. Enter judgment in Plaintiff’s favor and against each Defendant for two times the

amount as liquidated damages;

C. Award Plaintiff his attorney’s fees and costs;

D. Enjoin Defendants from violating the FMLA in the future; and

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_________ FIRST AMENDED COMPLAINT Page 8 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

E. Grant such other relief as this Court deems just and equitable.

COUNT III

Demand for Relief for Violations of the

Family Medical Leave Act of 29 U.S.C. § 2601 et. seq., against all Defendants

44. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

III.

45. Defendants’ violated 29 U.S.C. § 2601 et. seq., of the Family Medical Leave Act by

demanding that Plaintiff undergo additional medical testing and obtain additional

medical opinions using health care providers Defendants regularly utilize.

46. As a result of these violations, Plaintiff has lost wages, salary, employment, and other

damages.

47. Defendants engaged in willful disregard for Plaintiff’s rights under the FMLA, and

therefore had no reasonable grounds for believing that the acts described above were

in accordance with the FMLA. Defendants’ violations were not in good faith, thereby

warranting liquidated damages, including interest.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Enter judgment in Plaintiff’s favor and against each Defendant for lost wages, salary,

employment benefits, and other compensation, as well as interest on these lost

pecuniary amounts in the form of back and front pay;

B. Enter judgment in Plaintiff’s favor and against each Defendant for two times the

amount as liquidated damages;

C. Award Plaintiff his attorney’s fees and costs;

D. Enjoin Defendants from violating the FMLA in the future; and

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_________ FIRST AMENDED COMPLAINT Page 9 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

E. Grant such other relief as this Court deems just and equitable.

COUNT IV

Demand for Relief for Violations of the

Family Medical Leave Act of 29 U.S.C. § 2601 et. seq., against all Defendants

48. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

IV.

49. Defendants violated 29 U.S.C. § 2601 et. seq., the Family Medical Leave Act by failing

to adhere to a uniform policy applicable to all similarly situated employees when

Defendants demanded that Plaintiff undergo additional medical testing, obtain

additional medical opinions, and obtain a second fitness for duty certification.

50. As a result of these violations, Plaintiff has lost wages, salary, employment, and other

damages.

51. Defendants engaged in willful disregard for Plaintiff’s rights under the FMLA, and

therefore had no reasonable grounds for believing that the acts described above were

in accordance with the FMLA. Defendants’ violations were not in good faith, thereby

warranting liquidated damages, including interest.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Enter judgment in Plaintiff’s favor and against each Defendant for lost wages, salary,

employment benefits, and other compensation, as well as interest on these lost

pecuniary amounts in the form of back and front pay;

B. Enter judgment in Plaintiff’s favor and against each Defendant for two times the

amount as liquidated damages;

C. Award Plaintiff his attorney’s fees and costs;

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_________ FIRST AMENDED COMPLAINT Page 10 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

D. Enjoin Defendants from violating the FMLA in the future; and

E. Grant such other relief as this Court deems just and equitable.

COUNT V

Demand for Relief for Violations of the

Family Medical Leave Act of 29 U.S.C. § 2601 et. seq., against all Defendants

52. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

V.

53. Defendants violated 29 U.S.C. § 2601 et. seq., the Family Medical Leave Act by

imposing a greater burden than the FMLA provisions allow by refusing to allow

Plaintiff to return to work based solely on the certification of Plaintiff’s own health

care provider that he was able to return to work.

54. As a result of these violations, Plaintiff has lost wages, salary, employment, and other

damages.

55. Defendants engaged in willful disregard for Plaintiff’s rights under the FMLA, and

therefore had no reasonable grounds for believing that the acts described above were

in accordance with the FMLA. Defendants’ violations were not in good faith, thereby

warranting liquidated damages, including interest.

WHEREFORE, Plaintiff respectfully requests that this Honorable Court:

A. Enter judgment in Plaintiff’s favor and against each Defendant for lost wages, salary,

employment benefits, and other compensation, as well as interest on these lost

pecuniary amounts in the form of back and front pay;

B. Enter judgment in Plaintiff’s favor and against each Defendant for two times the

amount as liquidated damages;

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_________ FIRST AMENDED COMPLAINT Page 11 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

C. Award Plaintiff his attorney’s fees and costs;

D. Enjoin Defendants from violating the FMLA in the future; and

E. Grant such other relief as this Court deems just and equitable.

COUNT VI

Demand for Relief for Violations of the

American with Disabilities Act 42 USC § 12101, et. seq., against all Defendants

(Failure to Accommodate)

56. Plaintiff restates and realleges paragraphs one through thirty-four (1-34) of this Count

VI.

57. Plaintiff is an individual with a disability as defined by the Americans with Disabilities

Act (“ADA”) and, as such, a member of a protected class under the ADA, 42 U.S.C. §

12101, et. seq., as amended.

58. The ADA makes it unlawful for an employer to discriminate against qualified

individual on the basis of disabilities. 42 U.S.C. § 12112(b).

59. At all relevant times hereto, Plaintiff was diagnosed with a mood disorder.

60. Defendants were aware of Plaintiff’s diagnoses.

61. On or after April 27, 2011, Plaintiff was capable of performing his duties and

responsibilities as an employee of the Defendants in a manner that met or exceeded

the expectations of Defendants.

62. On or after April 27, 2011, Plaintiff’s ability to perform the essential functions of his

job is unrelated to his disability.

63. On April 27, 2011, Defendants refused to allow Plaintiff to return to work and

continued to refuse to allow Plaintiff to return to work until on or about January 30,

2013.

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_________ FIRST AMENDED COMPLAINT Page 12 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

64. There was no legitimate business reason for Defendants’ to refuse to allow Plaintiff to

return to work.

65. By refusing to allow Plaintiff to return to work for approximately eight (8) months,

Defendants and its agents have willfully and intentionally discriminated against Plaintiff

on the basis of his disability.

66. Further, by refusing to allow Plaintiff to return to work for approximately eight (8)

months, Defendants knew and/or showed a reckless disregard for the matter of

whether its conduct violated the ADA.

67. As a direct and proximate cause of Defendant’s unlawful employment practices and

retaliation, Plaintiff has suffered and continues to suffer, among other damages: loss of

employment, wages, benefits and other compensation, emotional harm and mental

anguish, embarrassment and related physical and psychological injuries of a severe and

permanent nature.

WHEREFORE, Plaintiff, David Gast, prays this Honorable Court grant judgment in his

favor and against the Defendants, the County of Kane and the Sheriff of Kane County and

grant him the following relief:

A. Enter a declaratory judgment that the practices complained of herein are unlawful and

violate the ADA;

B. Permanently enjoin the County of Kane and the Sheriff of Kane County, their agents,

successors, officers, employees, attorneys, and those acting in concert with them from

engaging in each of the unlawful practices, customs, and usages set forth herein, and

from continuing any and all practices shown to be in violation of applicable law;

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_________ FIRST AMENDED COMPLAINT Page 13 of 13

Gast v. County of Kane, et. al.

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

C. Order modifications or elimination of the County of Kane’s and Sheriff of Kane

County’s practices, policies, customs and usages set forth herein, and all other such

practices shown to be in violation of applicable law so that they will not discriminate

on the basis of disability;

D. Sufficient compensation for Plaintiff’s losses;

E. Compensate and make Plaintiff whole for all benefits he would have received but for

the discriminatory practices of the County of Kane and Sheriff of Kane County;

F. Award Plaintiff the costs and disbursements of this action, including reasonable

attorneys’ fees; and

G. Grant such other relief that this Honorable Court deems just and equitable.

JURY TRIAL DEMANDED AS TO ALL COUNTS.

Respectfully Submitted,

DAVID GAST,

By:___Cynthia M Rote_______________

One of His Attorneys

Cynthia M Rote

William J Delaney

DELANEY LAW, P.C.

444 N Wabash Ave., Third Floor

Chicago, Illinois 60611

(312) 276-0263

Case: 1:12-cv-03394 Document #: 35 Filed: 06/13/13 Page 13 of 13 PageID #:91