IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BENITA MERENDO :

2389 Green Apple Avenue :

Columbus, Ohio 43229 :

:

Plaintiff, : CASE NO. 2:17-cv-817

:

vs. : JUDGE

:

: MAGISTRATE JUDGE 

OHIO GASTROENTEROLOGY :

GROUP, INC. : Jury Demand Endorsed Hereon

c/o Statutory Agent :

Bruce L. Hennessy, M.D. :

3400 Olentangy River Road :

Columbus, Ohio 43202 :

:

:

Defendant. :

COMPLAINT

NOW COMES Plaintiff Benita Merendo (“Plaintiff”) and proffers this Complaint for 

damages against Defendant Ohio Gastroenterology Group, Inc. (hereinafter “Defendant” and/or 

“Ohio Gastro”).

JURISDICTION AND VENUE

1. All counts contained herein are brought pursuant to the laws of the United States, 

therefore this Court has jurisdiction pursuant to 28 U.S.C. § 1331.

2. This action is brought pursuant to the Americans with Disabilities Act, as amended, 42 

U.S.C. § 12101, et seq. (“ADA”), the Family Medical Leave Act, 29 U.S.C. § 2611(2), the Ohio 

Laws of Discrimination, Ohio Revised Code 4112 (“Chapter 4112”), and 28 U.S.C. § 1331. 

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3. This Court’s jurisdiction in this matter is also predicated upon 28 U.S.C. § 1367 as this 

Complaint raises claims pursuant to the laws of Ohio, over which this Court maintains 

supplemental subject matter jurisdiction.

4. Venue is proper pursuant to 28 U.S.C. § 1391, due to the fact that the Defendant has a 

facility in Columbus, Franklin County, Ohio, at which the events in question took place.

5. Plaintiff has complied with all jurisdictional prerequisites to the filing of this lawsuit and 

this Complaint is filed within ninety (90) days of Plaintiff’s receipt of her Right to Sue letter 

from the EEOC, a copy of which is attached hereto as Exhibit A.

THE PARTIES

6. Plaintiff is a natural person residing in Franklin County, Ohio.

7. Defendant Ohio Gastroenterology Group, Inc. (“Ohio Gastro”) is an Ohio Corporation 

with multiple facilities doing business in the Southern District of Ohio.

8. At all times relevant herein, Plaintiff was an employee of Defendant as defined by the 

Americans with Disabilities Act, as amended, 42 U.S.C. § 12101, et seq. (“ADA”), the Family 

Medical Leave Act, 29 U.S.C. § 2611(2) and the Ohio Revised Code 4112.

9. Defendant Ohio Gastro is a covered “employer” as that term is defined by the Americans 

with Disabilities Act, as amended, 42 U.S.C. § 12101, et seq. (“ADA”), the Family Medical 

Leave Act, and by the Ohio Revised Code 4112.

10. Defendant is an “employer” as defined by 29 U.S.C. § 2611(4)(A). Defendant was 

engaged in commerce or an industry or activity affecting commerce, and employed 50 or more 

employees for each working day during each of 20 or more calendar workweeks at all times 

during Plaintiff’s employment.

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FACTUAL BACKGROUND 

11. Plaintiff began working full time for Defendant Ohio Gastro on or about June 2, 2011, 

and remained employed by Defendant until her termination on or about June 14, 2017.

12. Plaintiff was employed as a Billing/Collection Representative and her job duties included 

but were not limited to, ensuring payment of patient accounts, data entry, contacting patients 

regarding medical charges, and resolving accounts with Defendant Ohio Gastro's outside 

collection agency.

13. Defendant Ohio Gastro is a medical provider of advanced gastrointestinal (GI) 

procedures, including colonoscopy and upper endoscopy, and has five (5) office locations.

14. Plaintiff was diagnosed with multiple disabilities and chronic medical conditions in the 

years preceding and/or during her employment with Defendant Ohio Gastro and frequently 

suffers from flare-ups and/or experiences symptoms related to these disabilities since then. 

15. Specifically, Plaintiff was diagnosed with gastroesophageal reflux disease (GERD), 

gastrointestinal issues, chronic sinus and seasonal allergies, arthritis, bilateral knee pain, 

trapexius neck strain, hypoglycemia, high blood pressure, insomnia, depression, anxiety, among 

other conditions.

16. Defendant was aware that Plaintiff suffered from disabilities, as Plaintiff herself was a 

patient receiving medical treatment and/or services from Defendant Ohio Gastro. 

17. Defendant was aware that Plaintiff suffered from disabilities, as Plaintiff had requested

and was approved for intermittent FMLA leave on numerous occasions during her employment 

with Defendant and made multiple requests for reasonable accommodation(s) for those 

disabilities. 

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18. Plaintiff's requested and approved intermittent FMLA leave in 2016 and 2017 included, 

but was not limited to, Plaintiff's GERD and/or adjustments to her antidepressant medications, in 

addition to Plaintiff's hospitalization on or about June 5 to June 6, 2017 and subsequent absence 

from work immediately prior to her termination.

19. While employed by Defendant Ohio Gastro, Plaintiff was qualified for the Billing / 

Collection Representative position, in part because she has worked in the medical billing 

industry for approximately twenty-three (23) years, and had no difficulty performing the 

essential functions of her job. 

20. While employed by Defendant Ohio Gastro, Plaintiff was not subject to any significant 

disciplinary action, with the exception of a minor verbal warning, nor did she receive any 

counseling with regards to her job performance, and generally received positive feedback on her 

employee performance evaluations.

21. Defendant failed to provide Plaintiff with reasonable accommodations for her disabilities. 

First, Defendant prohibited its Billing / Collection Representatives from leaving their desks in 

the middle of their phone shifts. Plaintiff suffers from gastrointestinal conditions, in addition to 

side effects of her prescribed high blood pressure medication. Plaintiff informed her direct 

supervisor Amber Pohlman that her high blood pressure medication caused frequent urination 

and her gastrointestinal condition caused urgent bowel movements, requiring Plaintiff to use the 

restroom frequently.

22. On multiple occasions, Plaintiff asked Defendant for reasonable accommodations for her 

disabilities, including but not limited to, removal from the phone rotation, opportunities to take 

breaks during her phone shift, and/or have one of Plaintiff's colleagues intercept phone calls for 

her while Plaintiff was using the restroom.

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23. Defendant, by and through Supervisor Pohlman, stated that Plaintiff could not leave her 

desk during the phone shift and/or to use the restroom before and after her shift. 

24. Supervisor Pohlman also instructed Plaintiff to have a colleague cover her shift while 

Plaintiff was in the restroom. The nature of Plaintiff's disabilities and/or the side effects of her 

medications made it impossible for Plaintiff to predict her symptoms and/or provide advance 

notice to colleagues prior to leaving her shift to use the restroom, among other complications.

25. Defendant also prohibited its Billing / Collection Representatives from eating food and 

having drinks other than water at their desks. Plaintiff suffers from hypoglycemia which 

requires her to eat immediately once her blood sugar drops. Plaintiff disclosed this to Defendant 

in her initial employment application.

26. Defendant prohibited its employees from using the elevator and instead instructed its 

employees to use the stairs. Plaintiff suffers from arthritis and various orthopedic conditions 

which render her unable and/or cause significant difficulty in navigating the stairs. Plaintiff 

disclosed this to Defendant through her Acting Direct Supervisor, Stella Nyinaku.

27. On or about May 16, 2017, Plaintiff attended a meeting with Supervisor Pohlman and 

Human Resources Manager Heather Foisset. HR Manager Foisset stated to Plaintiff, "You are 

the only one with all of these problems", in references to Plaintiff's disabilities and medical 

conditions.

28. On this same date, on or about May 16, 2017, Defendant requested in writing that 

Plaintiff provide recertification of her FMLA leave.

29. On multiple occasions during her employment with Defendant Ohio Gastro, Plaintiff 

applied for intermittent FMLA leave for her disabilities and medical conditions because she 

suffers from symptom flare-ups related to those disabilities/medical conditions.

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30. Plaintiff always correctly followed Defendant’s FMLA call-off process, which required 

her to inform her Supervisor every day she was taking intermittent FMLA leave.

31. On or about June 5 until June 6, 2017, Plaintiff was hospitalized and requested 

intermittent FMLA leave for both the remainder of that workweek, in addition to the entirety of 

the following work week.

32. Plaintiff had a reasonable, good faith belief that her requested time off was covered by 

FMLA and left messages for Supervisor Pohlman, informing her supervisor that she would not 

be in to work.

33. After she returned to work from taking FMLA leave for her hospitalization, Plaintiff met 

with Director of Operations Megan Dana and Human Resources Manager Heather Foisset on or 

about June 14, 2017. 

34. Plaintiff was informed that she was being terminated for accessing her own electronic 

medical file that contained her personal medical records, which was allegedly in violation of 

company policies.

35. Plaintiff had a reasonable, good faith belief, due to numerous factors, that she was 

permitted to access and/or view her own medical file and/or office charges, and that doing so did 

not violate Defendant's HIPAA and/or confidentiality or other company policies. 

36. As such, Plaintiff accessed her own electronic medical file and/or office charges for 

reasonable and/or legitimate reasons, including privacy concerns regarding her sensitive medical 

information and verifying the identity of one of Plaintiff's previous medical providers to maintain 

continuity of care.

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37. Based on Plaintiff’s attendance records and lack of any significant disciplinary history, 

she was nowhere near being terminated for attendance or disciplinary issues at that time or at any 

other time during her six (6) years of employment with Defendant Ohio Gastro.

38. As such, Defendant's reason(s) offered for Plaintiff's termination are untrue, lacked merit, 

and served as pretext for her termination.

39. Plaintiff was retaliated against for her use of FMLA leave because Defendant terminated 

Plaintiff immediately following her June 5 to June 6, 2017 hospitalization and/or subsequent 

absence from work, both of which were FMLA protected absences..

40. It is abundantly clear that Plaintiff was retaliated against for her use of FMLA leave, as 

Plaintiff began to notice that as soon as she began taking intermittent FMLA leave, Plaintiff 

received reduced points for attendance on her performance evaluations, where she had not 

before. 

41. Defendant interfered with Plaintiff’s rights to intermittent FMLA leave by retaliating 

against her, issuing disciplinary action including lower attendance scores on performance 

evaluations, and ultimately terminating her employment.

COUNT I

Disability Discrimination – R.C. § 4112.02

42. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if fully 

rewritten herein.

43. At all times relevant herein, Plaintiff suffered from an impairment(s) within the meaning 

of Section 4112.01(A)(16) of the Ohio Revised Code.

44. At all times relevant herein, Plaintiff was a qualified individual with a 

disability/disabilities within the meaning of R.C. § 4112.01(A)(13) of the Ohio Revised Code.

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45. Defendant knew that Plaintiff was disabled and/or regarded her as disabled. 

46. Defendant was aware of the difficulties suffered by Plaintiff as a result of her 

disability/disabilities.

47. Defendant discriminated against Plaintiff because of her disability/disabilities by taking 

the following non-exhaustive list of actions: terminating her employment, retaliating against her, 

creating false reasons for termination, issuing discipline to her for absences related to her 

disability/disabilities, and/or by otherwise discrimination against her in the terms, privileges, and 

conditions of employment.

48. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and will 

continue to suffer economic and non-economic damages, including but not limited to serious 

emotional distress and the loss of salary, benefits and other terms, privileges, and conditions of 

employment for which Defendant is liable.

49. Defendant’s conduct was willful, wanton, reckless and/or malicious for which Defendant 

is liable for compensatory damages, punitive damages and reasonable attorney’s fees and costs.

COUNT II

Disability Discrimination – Americans with Disabilities Act

50. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if fully 

rewritten herein.

51. This claim is brought pursuant to 42 U.S.C. § 12101, et seq., and as defined as 42 U.S.C. 

§ 12101.

52. Plaintiff is an otherwise qualified individual.

53. Defendant knew or had reason to know that Plaintiff suffered from a disability and/or 

regarded her as disabled.

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54. Defendant was aware of the difficulties suffered by Plaintiff as a result of her 

disability/disabilities.

55. Defendant discriminated against Plaintiff because of her disability/disabilities by taking 

the following non-exhaustive list of actions: terminating her employment, retaliating against her, 

creating false reasons for termination, issuing discipline to her for absences related to her 

disability/disabilities, and/or by otherwise discrimination against her in the terms, privileges, and 

conditions of employment.

56. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and will 

continue to suffer economic and non-economic damages, including but not limited to serious 

emotional distress and the loss of salary, benefits and other terms, privileges, and conditions of 

employment for which Defendant is liable.

57. Defendant’s conduct was willful, wanton, reckless and/or malicious for which Defendant 

is liable for compensatory damages, punitive damages and reasonable attorney’s fees and costs.

COUNT III

Retaliation- R.C. §4112.02

58. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if fully 

rewritten herein.

59. Plaintiff engaged in a protected activity by requesting reasonable

accommodation(s) for her disability/disabilities and taking advantage of those reasonable 

accommodations, including medical leave for her disabilities.

60. Defendant knew Plaintiff engaged in a protected activity.

61. Once Plaintiff engaged in the aforementioned protected activity, Defendant 

purposefully retaliated against Plaintiff by taking the following non-exhaustive list of actions: 

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terminating her employment, retaliating against her, creating false reasons for her termination,

issuing discipline to her for absences related to her disability, and/or by otherwise discriminating 

against her in the terms, privileges and conditions of employment.

62. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and

will continue to suffer economic and non-economic damages, including but not limited to pain

and suffering, and the loss of salary, benefits and other terms, privileges and conditions of 

employment for which Defendant is liable.

63. Defendant’s conduct was willful, wanton, reckless and/or malicious for which 

Defendant is liable for compensatory damages, punitive damages and reasonable attorney’s fees 

and costs.

COUNT IV

Retaliation- Americans with Disabilities Act

64. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if 

fully rewritten herein.

65. Plaintiff engaged in a protected activity by requesting reasonable accommodation 

for her disability/disabilities and taking advantage of those reasonable accommodations, including 

medical leave for her disabilities. 

66. Defendant knew Plaintiff engaged in a protected activity.

67. Once Plaintiff engaged in the aforementioned protected activity, Defendant 

purposefully retaliated against Plaintiff by taking the following non-exhaustive list of actions: 

terminating her employment, retaliating against her, creating false reasons for her termination,

issuing discipline to her for absences related to her disability/disabilities, and/or by otherwise 

discriminating against her in the terms, privileges and conditions of employment.

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68. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and

will continue to suffer economic and non-economic damages, including but not limited to pain

and suffering, and the loss of salary, benefits and other terms, privileges and conditions of 

employment for which Defendant is liable.

69. Defendant’s conduct was willful, wanton, reckless and/or malicious for which 

Defendant is liable for compensatory damages, punitive damages and reasonable attorney’s fees 

and costs.

COUNT V

Failure to Accommodate- Americans with Disabilities Act

70. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if 

fully rewritten herein.

71. At all times material herein, Plaintiff was disabled, or regarded as being

disabled, as defined in 42 U.S.C. §12102.

72. Defendant knew or had reason to know that Plaintiff suffered from a

disability/disabilities, and/or regarded her as disabled.

73. Plaintiff was an otherwise qualified individual with a disability/disabilities.

74. Plaintiff requested reasonable accommodations for her disability/disabilities.

75. Such reasonable accommodations were possible for Defendant to provide.

76. Defendant violated the ADA by failing to accommodate Plaintiff’s

disability/disabilities by issuing discipline and/or lower attendance scores on performance 

evaluations to Plaintiff for absences related to her disability/disabilities.

77. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered 

and will continue to suffer economic and non-economic damages, including but not limited to 

pain and suffering, and the loss of salary, benefits and other terms, privileges and conditions of 

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employment for which Defendant is liable.

78. Defendant’s conduct was willful, wanton, reckless and/or malicious for which 

Defendant is liable for compensatory damages, punitive damages and reasonable attorney’s fees 

and costs.

COUNT VI

Failure to Accommodate- R.C. §4112.02

79. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as if fully 

rewritten herein.

80. At all times herein, Plaintiff suffered from an impairment within the meaning of R.C. 

§4112.01.

81. At all times material herein, Plaintiff was a qualified individual with a

disability/disabilities within the meaning of R.C. §4112.01

82. Defendant knew or had reason to know Plaintiff suffered from a disability/disabilities 

and/or regarded her as disabled. 

83. Plaintiff requested reasonable accommodations for her disability/disabilities.

84. Such reasonable accommodations were possible for Defendant to provide.

85. Defendant violated R.C. §4112.02 by failing to accommodate Plaintiff’s 

disability, by retaliating against Plaintiff for seeking a reasonable accommodation, and by

failing to engage in a good faith interactive process to determine an objectively reasonable 

accommodation for Plaintiff’s disability. 

COUNT VII

Interference – Violation of the Family Medical Leave Act

86. Plaintiff reasserts and reincorporates all allegations in the paragraphs above as fully 

rewritten herein.

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87. Plaintiff was entitled to FMLA leave, as she suffers from a serious medical 

condition(s) and applied for and was approved for intermittent FMLA leave on multiple 

occasions during her employment with Defendant Ohio Gastro.

88. Defendant was aware that Plaintiff suffered from serious medical conditions that 

qualified her for FMLA leave because she had applied for and was approved for intermittent 

FMLA leave on multiple occasions during her employment with Defendant Ohio Gastro.

89. Defendant interfered with Plaintiff's FMLA rights by issuing discipline and/or lower 

attendance scores on her performance evaluation for absences related to her serious medical 

conditions and covered by FMLA, thereby deterring and/or preventing Plaintiff from exercising 

her right to request and take protected leave.

90. Defendant interfered with Plaintiff’s FMLA rights by terminating her employment, 

thereby preventing her from taking the full 12 weeks of leave she was entitled to under the 

FMLA.

91. Defendant’s termination of Plaintiff was directly related to her use of FMLA leave, 

because Defendant terminated Plaintiff immediately following her June 5 to June 6, 2017 

hospitalization and/or subsequent absence from work, both of which were covered by FMLA 

and/or Plaintiff had a reasonable, good faith belief that both were covered by FMLA.

92. Defendant lacked good faith and/or reasonable grounds to believe it had not violated 

the FMLA in its discharge of Plaintiff.

93. Defendant’s violations of the Family and Medical Leave Act entitles Plaintiff, 

pursuant to 29 U.S.C. § 2617(a), to monetary damages which include back pay and benefits, 

statutory liquidated damages, and attorneys’ fees and costs of bringing this litigation, in an 

amount to be determined at trial.

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COUNT VIII

Retaliation- Violation of the Family Medical Leave Act

94. Plaintiff reasserts and reincorporates each and every allegation contained in the

paragraphs above as if fully rewritten here.

95. Plaintiff attempted to exercise her rights under the FMLA, as she frequently took

intermittent FMLA for her serious medical conditions. 

96. Plaintiff suffered an adverse employment action when Defendant issued her 

discipline and/or lower attendance scores on her performance evaluations for absences related to 

her serious medical conditions and covered by FMLA.

97. Plaintiff suffered an adverse employment action when Defendant terminated her 

from her position in retaliation for taking intermittent FMLA leave and issuing disciplinary 

action to her that was without merit. 

98. Plaintiff was terminated almost immediately following Plaintiff's use of FMLA 

leave for her hospitalization on or about June 5 to June 6, 2017; the reminder of that work week; 

and/or the entire following work week. Defendant terminated Plaintiff because she took 

intermittent FMLA leave.

99. Defendant’s termination of Plaintiff was directly related to her use of FMLA 

leave, because Defendant terminated Plaintiff immediately following her June 5 to June 6, 2017 

hospitalization and/or subsequent absence from work, both of which were covered by FMLA 

and/or Plaintiff had a reasonable, good faith belief that both were covered by FMLA.

100. Defendant lacked good faith and/or reasonable grounds to believe it had not 

violated the FMLA in its discharge of Plaintiff.

101. Defendant’s violations of the Family and Medical Leave Act entitles Plaintiff,

pursuant to 29 U.S.C. § 2617(a), to monetary damages which include back pay and benefits, 

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statutory liquidated damages, and attorneys’ fees and costs of bringing this litigation, in an 

amount to be determined at trial. 

WHEREFORE, Plaintiff demands:

For all Counts, monetary damages including back pay and benefits, statutory liquidated 

damages, expert witness fees and attorneys’ fees and costs, and front pay, compensatory 

damages and punitive damages in an amount to be determined at trial, but in any event not less 

than $75,000.00 and any and all other relief, which the Court deems just and appropriate.

 Respectfully submitted,

 /s/ Rachel A. Sabo, Esq.

Rachel A. Sabo (0089226) 

Peter G. Friedmann (0089293)

The Friedmann Firm LLC

1457 S. High Street

Columbus, OH 43207

Rachel@TFFLegal.com

Pete@TFFLegal.com

614-610-9757 (Phone)

614-737-9812 (Fax) 

Michelle E. Lanham (0091944)

Michelle E. Lanham, Attorney at Law, LLC

445 Hutchinson Avenue, Suite 100

 Columbus, Ohio 43235

Michelle@mlanhamlaw.com

614-300-5896 (Phone)

614-737-5239 (Fax)

Counsel for Plaintiff

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JURY DEMAND

Plaintiff demands a jury trial by the maximum persons permitted by law on all issues 

herein triable to a jury.

/s/Rachel A. Sabo

Rachel A. Sabo (0089226)

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