Page 1 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

Jon H. Weiner, OSB #993944

jweiner@nw-attorneys.com

Law Office of Jon Weiner

1595 Commercial Street NE

Salem, OR 97301

Tel: (503) 399-7001

Fax: (503) 399-0745

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Portland Division

KERRI ATWATER,

 Plaintiff,

 v.

HOT STONE, LLC, a Washington domestic 

business corporation, dba THE ROCK 

WOOD-FIRED PIZZA AND SPIRITS.

 Defendant.

____________________________________

Case No. _____________________

COMPLAINTClaims for Sex Discrimination, Disability 

Discrimination, and Failure to Provide 

Reasonable Accommodations for Disability, 

42 U.S.C. § 2000e, et seq.; 42 U.S.C. § 

1981(a); 42 U.S.C. § 12112, et seq.; State 

law claims for Sex Discrimination, 

Disability Discrimination, and Failure to 

Provide Reasonable Accommodations for 

Disability, O.R.S. 659A.030, et seq.; O.R.S.

659A.103 - 659A.145; O.R.S. 659A.885; 

O.A.R. 839-006-0200, et seq.;

(Demand for Jury Trial)

Plaintiff alleges:

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 1 of 14
 

 Page 2 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

PRELIMINARY STATEMENT

1.

Plaintiff Kerri Atwater (hereinafter referred to as “plaintiff”) asserts claims for sex 

discrimination violations under Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 

2000e, et seq. ; 42 U.S.C. § 1981(a) (hereinafter collectively referred to as “Title VII”) and state 

law (O.R.S. Chapter 659A). Plaintiff also asserts claims for disability discrimination, and failure 

to provide reasonable accommodations for disability, under the Americans with Disabilities Act 

of 1990, 42 U.S.C. § 12112, et seq., as amended by the Americans with Disabilities Amendments 

Act of 2008 (hereinafter referred to as “The ADA”) and state law (O.R.S. Chapter 659A). 

Plaintiff demands a jury trial. The allegations set forth below apply to “all times relevant” 

without regard to whether those allegations are set forth in the present or past tense.

JURISDICTION

2.

This Court has jurisdiction over the subject matter of this civil action pursuant to 28 

U.S.C. § 1331, which gives district courts original jurisdiction over civil actions arising under the 

Constitution, laws or treaties of the United States. This Court has supplemental jurisdiction over 

plaintiff’s state law claims pursuant to 28 U.S.C. § 1367. Plaintiff’s state law claims are so 

closely related to her federal law claims that they form part of the same case or controversy 

under Article III of the United States Constitution. 

VENUE

3.

Venue is appropriate in this Court pursuant to 28 U.S.C. § 1391, because a substantial 

part of the events giving rise to this complaint occurred in Washington County, Oregon. Plaintiff 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 2 of 14
 

 Page 3 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

is a resident of Aloha, Oregon. Defendant Hot Stone, LLC is a Washington domestic business 

corporation with its headquarters located in Vancouver, Washington.

4.

Hot Stone, LLC (hereinafter referred to as “defendant”), does business as “The Rock 

Wood-Fired Pizza and Spirits” (hereinafter referred to as “The Rock”), a chain of restaurants. At 

all times relevant, plaintiff was either an applicant for employment with defendant at The Rock’s 

Hillsboro, Oregon location, located in Washington County, or an employee of defendant at that 

establishment. At all times relevant, defendant conducted regular, substantial, and sustained 

business activity in the State of Oregon, including, but not limited to, Washington County.

FACTUAL ALLEGATIONS

5. 

During the term of plaintiff’s employment, defendant employed 15 or more individuals 

for each working day in each of 20 or more calendar weeks in the current and previous calendar 

year. Plaintiff has exhausted her administrative remedies under federal and state law. Plaintiff 

timely filed discrimination charges with the Equal Employment Opportunity Commission 

(EEOC) and the Oregon Bureau of Labor and Industries (BOLI). Plaintiff received a right-to-sue 

letter from each entity, and timely filed suit within the respective 90-day limitations periods set 

forth therein. 

6.

Plaintiff is a female. She is afflicted with Idiopathic Intracranial Hypertension 

(hereinafter referred to as “IIH”) and related morbid obesity. IIH is a neurological disorder 

which predominately affects obese women. IIH and obesity are disabling conditions. Plaintiff is

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 3 of 14
 

 Page 4 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

approximately 5’8” and weighed approximately 320 pounds at all relevant times. Her condition 

is readily apparent to those that meet her.

7.

Plaintiff’s IIH and obesity are physical impairments, each of which substantially limits 

her in the performance of one or more major life activities. Furthermore, plaintiff’s IIH 

substantially limits one or more of her bodily functions, including, but not limited to, her body’s 

neurological functioning. Moreover, plaintiff has a record of suffering from such impairment 

and was apparently regarded by defendant as suffering from such impairment.

8.

On or around June, 2013, plaintiff responded to an advertisement for employment with 

defendant at The Rock’s Hillsboro, Oregon location. The available position was server. Plaintiff 

submitted an application for employment. Plaintiff had numerous years of serving experience, 

possessed all job-related requirements, and was capable of performing all essential functions of 

the position, with or without reasonable accommodation. Plaintiff is a qualified individual with a 

disability under the ADA and state law.

9.

Plaintiff was contacted by The Rock and asked to interview for the server position. 

Plaintiff did so. She interviewed with Justin Lum (hereinafter referred to as “Lum”), general 

manager of The Rock’s Hillsboro, Oregon location, and Sheila Marsh (hereinafter referred to as 

“Marsh”), an assistant manager.

10.

On or around June 27, 2013, Lum called plaintiff and offered her the server position. 

Plaintiff accepted the position.

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 4 of 14
 

 Page 5 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

11.

On or around June 29, 2013, plaintiff visited The Rock’s Hillsboro, Oregon location and 

filled out employment forms. Afterwards, Lum brought her to a cabinet in the back hallway

which contained uniform shirts worn by The Rock’s servers. Lum handed plaintiff the largest 

women’s shirt in the cabinet, to try on. The shirt was far too small to fit plaintiff. Lum handed 

plaintiff the largest men’s shirt in the cabinet. This shirt was also far too small to fit plaintiff. 

Plaintiff informed Lum that none of the shirts fit her. Lum told plaintiff this would not be a 

problem. He told plaintiff that defendant employed a large, male bartender who could not fit into 

any of the shirts, and, consequently, was permitted to wear one which had been custom-made for 

him. Lum also noted that The Rock’s kitchen crew employees wore different shirts, and that 

larger versions of those shirts might be available for plaintiff to wear. Plaintiff offered to pay to 

have a shirt custom-made for her, if necessary. 

12.

Sometime following her meeting with Lum, plaintiff contacted a store in the business of 

making custom t-shirts. Plaintiff was told that a custom t-shirt could be made for her, that it 

would cost approximately $20, and would be available for her use approximately 72 hours after 

ordering.

13.

On or around July 3, 2013, plaintiff had a training shift with Rob, the lead bartender at 

The Rock’s Hillsboro, Oregon location. Together, they reviewed defendant’s employee manual, 

and discussed the practices and culture of the restaurant. Rob explained that The Rock had few 

parameters on personal appearance. During this shift, plaintiff went through the cabinet in the 

back hallway with Rob, as she had with Lum. Again, there was no shirt which fit plaintiff. 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 5 of 14
 

 Page 6 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

Again, plaintiff was given no indication this would be a problem.

14.

Plaintiff’s first serving shift was scheduled for July 8, 2013. Prior to that date, Lum 

called plaintiff and told her to wear a black, v-neck t-shirt in place of The Rock’s uniform shirt. 

He told her this would suffice until everything could be worked out.

15.

On July 8, 2013, plaintiff arrived to work wearing the uniform Lum had instructed her to 

wear. She arrived early for her shift. Lum told plaintiff he needed to speak with her, but was 

currently occupied. Over the next half hour or so, Lum traveled back and forth from the office, 

where plaintiff believes he was communicating with defendant’s management over the phone, to 

speak with plaintiff. Lum told plaintiff that wearing the black v-neck t-shirt was no longer an 

option for her. A short time passed, and Lum asked plaintiff to speak with him in the 

management office. 

16.

Plaintiff met with Lum and Marsh in the office. Lum told plaintiff that having a shirt 

custom-made for her was not an option. Shortly thereafter, she asked someone why the male 

bartender was permitted to wear a larger, custom-made shirt. Plaintiff was told that The Rock 

had just switched to new shirts and that the bartender had been “grandfathered in.”

17.

At the end of plaintiff’s interaction with Lum and Marsh, it was clear that no shirt would 

be provided that would allow her to continue to work in her position. It was also clear that 

having a shirt custom made was not an option defendant was willing to allow. Since plaintiff 

was not going to be allowed to continue to work unless she was able to do so in one of the shirts 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 6 of 14
 

 Page 7 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

that defendant had on hand, and plaintiff was too large to fit into any of those shirts and perform 

her job, plaintiff concluded that she was unable to continue working for defendant and had in 

fact been discharged. 

18.

Had defendant accommodated plaintiff with an appropriate work shirt she would have 

retained her employment. Were it not for plaintiff’s disability she would have retained her 

employment. Had defendant treated plaintiff the same as its male employees, she would have 

retained her employment.

FIRST CLAIM –TITLE VII DISCRIMINATION, 42 U.S.C. § 2000e-2.

(Gender Discrimination)

19.

Plaintiff incorporates and re-alleges paragraphs 1 through 18 by this reference. Pursuant 

to 42 U.S.C. § 2000e-2(a), “it shall be an unlawful employment practice for an employer” to 

discharge an individual, “or otherwise to discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment because of such individuals race, 

color, religion, sex, or national origin . . .”

20.

Defendant violated this statute when it subjected plaintiff to disparate treatment based on 

her gender and thereby adversely affected the compensation, terms, conditions and/or privileges

of plaintiff’s employment.

21.

Plaintiff has suffered non-economic and economic damages in an amount to be 

determined at the time of trial. Plaintiff seeks equitable relief and recovery of all compensatory 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 7 of 14
 

 Page 8 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

and punitive damages provided by law, in addition to reasonable attorney fees and costs pursuant 

to 42 U.S.C. §§ 1988 and 2000e-5(k).

SECOND CLAIM – STATE SEX DISCRIMINATION VIOLATIONS

22.

Plaintiff incorporates and re-alleges paragraphs 1 through 21 by this reference. 

According to O.R.S. 659A.030(1)(a) and (b), it is an unlawful employment practice, “for an 

employer, because of an individual’s race, religion, color, sex, national origin, marital status or 

age if the individual is 18 years of age or older, . . . to refuse to hire or employ or to bar or 

discharge from employment such individual [or] . . . to discriminate against such an individual in 

compensation or in terms, conditions, or privileges of employment.” 

23.

Defendant willfully violated this statute when it subjected plaintiff to disparate treatment 

based on her gender and thereby adversely affected the compensation, terms, conditions, and/or 

privileges of plaintiff’s employment. 

24.

As a result of defendant’s gender discrimination, plaintiff requests equitable relief and 

economic damages, including back pay, benefits, and front pay, in an amount to be determined at 

trial, along with compensatory and punitive damages in an amount to be determined at trial. 

25.

Pursuant to O.R.S. 659A.885, plaintiff is entitled to her reasonable attorney fees and costs

in this action.

/ / /

/ / /

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 8 of 14
 

 Page 9 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

THIRD CLAIM – ADA DISCRIMINATION, 42 U.S.C. § 12112

(Count 1 – Disability Discrimination)

26.

Plaintiff incorporates and re-alleges paragraphs 1 through 25 by this reference. Pursuant 

to 42 U.S.C. §12112(a): “No covered entity shall discriminate against a qualified individual on 

the basis of disability in regard to job application procedures, the hiring, advancement, or 

discharge of employees, employee compensation, job training, and other terms, conditions, and 

privileges of employment.” 

The term disability means, with respect to an individual-

“(A) a physical or mental impairment that substantially limits one or more major life 

activities of such individual; 

(B) a record of such an impairment; or 

(C) being regarded as having such an impairment.”

42 U.S.C. §12102(1).

An individual meets the requirement of “being regarded as having such an impairment” if 

the individual establishes that he or she has been subjected to an action prohibited under this 

chapter because of an actual or perceived physical or mental impairment whether or not the 

impairment limits or is perceived to limit a major life activity. 42 U.S.C. §12102(3)(a).

27.

Defendant willfully violated this statute when it discriminated against plaintiff on the 

basis of her disability, and thereby adversely affected the compensation, terms, conditions, 

and/or privileges of plaintiff’s employment.

/ / /

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 9 of 14
 

 Page 10 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

28.

As a result of defendant’s discrimination, plaintiff has suffered non-economic and 

economic damages in an amount to be determined at the time of trial. Plaintiff seeks equitable 

relief and recovery of all compensatory and punitive damages provided by law, in addition to 

reasonable attorney fees and costs pursuant to 42 U.S.C. §§ 1988 and 2000e-5(k).

(Count 2 – Failure to Provide Reasonable Accommodations)

29.

Plaintiff incorporates and re-alleges paragraphs 1 through 28 by this reference. Pursuant 

to 42 U.S.C. §12112(b): “As used in subsection (a) of this section, the term “discriminate against 

a qualified individual on the basis of disability” includes—

(5)(A) not making reasonable accommodations to the known physical or mental limitations of an 

otherwise qualified individual with a disability who is an applicant or employee, unless such 

covered entity can demonstrate that the accommodation would impose an undue hardship on the 

operation of the business of such covered entity; or 

(B) denying employment opportunities to a job applicant or employee who is an otherwise 

qualified individual with a disability, if such denial is based on the need of such covered entity to 

make reasonable accommodation to the physical or mental impairments of the employee or 

applicant.”

30.

Defendant willfully violated this statute when it failed to provide plaintiff with a 

reasonable accommodation for her disability, and thereby adversely affected the compensation, 

terms, conditions, and/or privileges of plaintiff’s employment.

/ / /

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 10 of 14
 

 Page 11 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

31.

As a result of defendant’s failure to provide a reasonable accommodation, plaintiff has 

suffered non-economic and economic damages in an amount to be determined at the time of trial. 

Plaintiff seeks equitable relief and recovery of all compensatory and punitive damages provided 

by law, in addition to reasonable attorney fees and costs pursuant to 42 U.S.C. §§ 1988 and

2000e-5(k).

FOURTH CLAIM – STATE DISABILITY DISCRIMINATION VIOLATIONS

(Count 1 – Disability Discrimination)

32.

Plaintiff incorporates and re-alleges paragraphs 1 through 31 by this reference. Pursuant 

to O.R.S. 659A.112(1), “It is an unlawful employment practice for any employer to refuse to 

hire, employ or promote, to bar or discharge from employment or to discriminate in 

compensation or in terms, conditions or privileges of employment on the basis of disability.” 

For the purposes of O.R.S. 659A.103 – O.R.S. 659A.145, an individual has a disability if she:

1) has a physical or mental impairment that substantially limits one or more major life 

activities of the individual;

2) has a record of having a physical or mental impairment that substantially limits one or 

more major life activities of the individual; or

3) is regarded as having a physical or mental impairment that substantially limits one or 

more major life activities of the individual.

O.R.S. 659A.104(1)(a) – (c).

33.

Defendant willfully violated this statute when it discriminated against plaintiff on the 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 11 of 14
 

 Page 12 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

basis of her disability, and thereby adversely affected the compensation, terms, conditions, 

and/or privileges of plaintiff’s employment.

34.

As a result of defendant’s disability discrimination, plaintiff requests equitable relief and 

economic damages, including back pay, benefits, and front pay, in an amount to be determined at 

trial, along with compensatory and punitive damages in an amount to be determined at trial. 

35.

Pursuant to ORS 659A.885, plaintiff is entitled to her reasonable attorney fees and costs 

in this action.

(Count 2 – Failure to Provide Reasonable Accommodation)

36.

Plaintiff incorporates and re-alleges paragraphs 1-35 by this reference. Pursuant to 

O.R.S. 659A.112, an employer commits disability discrimination when “the employer does not 

make reasonable accommodation to the known physical or mental limitations of a qualified 

individual with a disability who is a job applicant or employee, unless the employer can 

demonstrate that the accommodation would impose an undue hardship on the operation of the 

business of the employer.” O.R.S. 659A.112(2)(e). 

37.

Defendant willfully violated this statute when it failed to provide plaintiff with a 

reasonable accommodation for her disability, and thereby adversely affected the compensation, 

terms, conditions, and/or privileges of plaintiff’s employment.

/ / /

/ / /

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 12 of 14
 

 Page 13 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

38.

As a result of defendant’s failure to provide a reasonable accommodation, plaintiff 

requests equitable relief and economic damages, including back pay, benefits, and front pay, in 

an amount to be determined at trial, along with compensatory and punitive damages in an 

amount to be determined at trial. 

39.

Pursuant to O.R.S. 659A.885, plaintiff is entitled to her reasonable costs and attorney fees 

and costs in this action.

WHEREFORE, Plaintiff requests the following for her claims for relief:

1. For Plaintiff’s First Claim For Relief Against Defendant Hot Stone, LLC:

A. Non-economic and economic damages in an amount to be determined at the time 

of trial. Plaintiff seeks recovery of all compensatory and punitive damages 

provided by law, in addition to reasonable attorney fees and costs pursuant to 42 

U.S.C. §§ 1988 and 2000e-5(k).

2. For Plaintiff’s Second Claim For Relief Against Defendant Hot Stone, LLC:

A. Equitable relief and economic damages, including back pay, lost benefits and 

front pay, in an amount to be determined at trial with interest, along with 

compensatory and punitive damages, in an amount to be determined at trial, along 

with her reasonable costs and attorney fees incurred in this matter pursuant to 

O.R.S. 659A.885.

3. For Plaintiff’s Third Claim For Relief Against Defendant Hot Stone, LLC:

A. Non-economic and economic damages in an amount to be determined at the time 

of trial. Plaintiff seeks recovery of all compensatory and punitive damages 

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 13 of 14
 

 Page 14 of 14 – COMPLAINT

JON H. WEINER, Attorney at Law

Law Office of Jon Weiner

1595 Commercial Street NE, Salem, OR 97301

Tel. (503)399-7001 Fax (503)399-0745

provided by law, in addition to reasonable attorney fees and costs pursuant to 42 

U.S.C. §§ 1988 and 2000e-5(k).

B. Non-economic and economic damages in an amount to be determined at the time 

of trial. Plaintiff seeks recovery of all compensatory and punitive damages 

provided by law, in addition to reasonable attorney fees and costs pursuant to 42 

U.S.C. §§ 1988 and 2000e-5(k).

4. For Plaintiff’s Fourth Claim For Relief Against Defendant Hot Stone, LLC:

A. Equitable relief and economic damages, including back pay, lost benefits and 

front pay, in an amount to be determined at trial with interest at the prevailing 

rate, along with compensatory and punitive damages, in an amount to be 

determined at trial, along with her reasonable costs and attorney fees incurred in 

this matter pursuant to O.R.S. 659A.885.

B. Equitable relief and economic damages, including back pay, lost benefits and 

front pay, in an amount to be determined at trial with interest at the prevailing 

rate, along with compensatory and punitive damages, in an amount to be 

determined at trial, along with her reasonable costs and attorney fees incurred in 

this matter pursuant to O.R.S. 659A.885.

DATED this 18th day of November, 2014.

/s/ Jon Weiner

Jon Weiner, OSB #993944

jweiner@nw-attorneys.com

Law Office of Jon Weiner

1595 Commercial Street NE

Salem, OR 97301

Tel: (503) 399-7001

Fax: (503) 399-0745

Attorney for Plaintiff

Case 3:14-cv-01838-PK Document 1 Filed 11/18/14 Page 14 of 14