UNITED STATES DISTRIC1' ('OURT

SOUTHERN DISTRICT OF NEW YORK

~ )(

NANCY DENARDI, Docket No.:

I~ I nA{tiffMnCy1jeNMdi, as and for her Verified Complaint, all upon information and

belief, respectfully alleges as follows:

JURISDICTION AND VENUE

1. This Court has original jurisdiction over the subject matter of this litigation

pursuant to 28 U .S.C § 1331, in that certain of the Plaintiff s claim arise under the laws of the

United States and namely Title I of the American with Disabilities Act of 1990 and also under the

New York State Human Rights Law and supplemental jurisdiction over the remainder of

Plaintiff's claims exists in this action, pursuant to U.S.C § 1367.

2 Venue is proper under 42 U.S.C § 2000e-5fand 28 U.S.C § 1391 because both the

Plaintiff and Defendants reside within the Southern District of New York and the discriminatory

acts complained of took part wholly within the Southern District of New York.

3 DeNardi filed a charge of discrimination with the Equal Employment Opportunity

Commission and on May 17, 2007, DeNardi received a Notice of Right to Sue.

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IDENTITY OF PARTIES

4. Plaintiff Nancy DeNardi (""DeNardi" was employed by ORA Imaging, p .C. and/or

Imaging Support Services, ,LC (collectively referred to as "ORA .,.,) for seven years., from

September 7, 1999 until she was unlawfully terminated on May 8, 2006.

5 Defendant DRA is a corporation duly organized and existing under the laws of the

State of New York and is licensed to and maintains its principal place of business in the County

of Dutchess and State of New York.

BACKGROUND RELEV ANT TO ALL CAUSES OF ACTION

6. On September 7, 1999, DeNardi commenced her employment with DRA as an

Insurance Representative.

7. From 1999, when DeNardi commenced her employment with ORA, until she was

diagnosed with colon cancer in 2005 and terminated thereafter in 2006, DeNardi's value to DRA

was recognized and confirmed by the promotions, salary increases, bonuses and the increased

duties and responsibilities assigned to her.

8. Given her demonstrated capabilities, DeNardi was promoted a number of times

during her employment, from Insurance Representative, to Insurance Rep. Lead, to Billing

Department Lead, and with each promotion DeNardi was given increased responsibilities,

including supervising and assisting in all aspects of the Billing Department.

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9. During her career with ORA until her colon cancer diagnosis in )ctober 2005.

DRA would often call upon OeNardi to handle assignments of considerable significance, such as

taking over Medicare, the biggest account in the company.

Further confirmation of DeNardi ' s positive job performance throughout her tenure

at DRA, is described by the following comments made in her performance evaluations:

"Nancy has grown with this position. She is liked by her co-workers

and I have heard from patients that she is very helpful."

.

"Nancy has a good perspective on job requirements; she can deal

with stress very well."

.

. "Nancy produces excellent work, she is someone I can depend on to

get the job done. She is receptive to suggestions and constructive

criticism."

"She is a great asset to the billing dept and a pleasure to work

with."

.

"Readily adapts to organizational change, is flexible in handling a

variety of unfamiliar operations."

.

. "Treats co-workers with unfailing courtesy and professionalism."

In Mid-October 2005, DeNardi was diagnosed with colon cancer, and underwent

surgery on October 20,2005.

DeNardi was released from the hospital on October 28,2005 after a two week stay,

where she recovered from surgery for a brief period of time.

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13 On December 5, 2005 DeNardi returned to work ttlll-time and without any

limitations and received chemotherapy every two weeks starting from November 2005 and lasting

until April 18, 2006.

14. Other than for OeNardi's initial surgery and medical treatment, OeNardi was not

limited in the fulfillment of her job duties nor was her ability to function adversely affected.

15. Although DeNardi had to undergo chemotherapy once she returned to work, for

relapse prevention, she worked during the chemotherapy treatment and was able to perform her

job duties as she always had, only missing two days of work in the five months after she returned

to work following surgery.

16. As a result of DeNardi's cancer diagnosis and despite the fact that DeNardi was

not disabled and could perform her job as effectively as she previously had, DRA developed a

discriminatory perception that DeNardi was disabled and useless and DRA no longer wanted

DeNardi in the workplace, and to force DeNardi from the workplace, DRA embarked on a

reprehensible and malicious plan to make DeNardi's workplace so unbearably hostile,

humiliating and demeaning that DeNardi would be unable to remain.

17. To that end, DRA changed the manner in which it treated DeNardi by removing

certain critical job responsibilities and reassigning them to another employee so that DeNardi had

little or no work to do, humiliating DeNardi with a demotion from the senior position she had

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held to a junior position and setting DeNardi lip to fail. all done in the hope that either she would

voluntarily leave her position at ORA or it would find a basis to fire her.

18. DeNardi was demeaned and humiliated by DRA with insulting and inappropriate

comments made by Barkanyi such as, "Is the chemo affecting your brain?" at which time

Barkanyi's sister, Jackie Bourne ("Bourne"), another billing employee, would respond, "Maybe

it's like Darlien (another employee), ever since she came back from having cancer she can't

remember anything. Maybe the same thing is happening to Nancy

19. Further, and only because DRA perceived DeNardi as disabled, when she was not,

and wanted her out of the workplace because of her colon cancer diagnosis, ORA discriminated

against DeNardi by taking adverse employment action against her and creating a hostile work

environment for her, which included, but was not limited to, and only by way of example,

committing the following discriminatory acts:

. DeNardi was denied access to all employee timesheets and protocol

sheets on Barkanyi's computer, even though she previously had

access and needed the worksheets to perform her job duties, which

effectively stripped DeNardi of her most substantive job duties so

that she was rendered useless;

. Even though DeNardi was the main person involved in addressing

the problems of the new front desk computer system, weekly

meetings to disquss the computer system were held with Bourne

and Carol Gustin ("Gustin"), another billing employee, and

DeNardi was excluded, which humiliated her and was done to

undermine her authority;

. DeNardi was excluded from meetings that involved projects and

discussion she normally would have been included in, another

humiliating act which caused her to be isolated and excluded;

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Gustin informed various ORA employees who had billing or

insurance questions (a role OeNardi always handled), to go to

herself, Bourne, or Shari McCauley ("McCauleyJ if Barkanyi was

not available, even though OeNardi had traditionally held this role,

which was designed to undermine and humiliate OeNardi;

.

On March 2, 2006, while OeNardi was away from the office,

Barkanyi and Bourne rifled through her desk behind her back and

took all her work away from her, which OeNardi knew to be a

common practice by management when someone was targeted for

dismissal;

.

. On March 24, 2006, without prior notice to DeNardi, a

memorandum was circulated to the whole staff announcing that a

new person, McCauley, would be joining the staff to assist

Barkanyi with all billing department operations, even though that

was what DeNardi had been doing since being promoted in 2004,

and essentially announcing to the entire Department that DeNardi

was demoted, without telling her first;

. DeNardi was also shocked to learn that austin and Bourne were

listed equally with McCauley, at the top of the organizational chart,

as "Department Supervisors," a role DeNardi had been acting in,

and was qualified for;

Not only did DeNardi learn through a publicly-circulated memo

that she was demoted, DeNardi discovered just how far down DRA

thought of her now: She was listed at the bottom of the bottom, as

the lowest person working on data entry .

.

The acts mentioned above are only examples of the many egregious, reprehensible, vicious and

humiliating acts that took place during the period mentioned herein, and which created a

frightening, hostile and abusive environment for DeNardi

20. The stress of the aforementioned atrocious and appalling acts committed against

DeNardi by DRA left DeNardi feeling humiliated and betrayed because the same people who had

consistently praised DeNardi's excellent perfomlance and hard work now regarded her as

undesirable solely because of her cancer diagnosis.

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21 When OeNardi continued to tight t~)r her position by refusing to voluntarily quit,

the discrimination only intensified by the following acts:

OeNardi was made to train McCauley (her replacement) to do

OeNardi's own job, the job that she successfully held until ORA

developed its wrongful and discriminatory perception about her

medical condition. This was beyond humiliating;

.

DeNardi' s overtime was cut for no reason, even though austin and

Bourne were allowed to work all the overtime hours they wanted,

and DeNardi was aware that overtime cuts were usually reserved as

a way for Barkanyi to get rid of employees she had expressed a

desire to get rid of;

.

Barkanyi tried to change DeNardi's hours that she had held for six

years, and no one else was asked to do the same;

.

. Barkanyi began to copy Gustin on every email she wrote to

DeNardi, and all DeNardi's work was double and triple-checked

through one of the supervisors to create the impression that

DeNardi was incompetent when she was not, a humiliating practice

that no other employee had to endure;

Setting DeNardi up to fail by criticizing her perfoffi1ance on a task

for which she had received no training.

.

22. ORA had no legitimate business reason for its conduct and none existed, and

DeNardi was forced to deal with the discriminatory acts without remedy as there was no formal

Human Resources person looking into these matters and employees who complained in the past

were told by Joseph Chiseri ("Chiseri"), the Chief Administrative Officer at ORA, that ORA

"always back managers, right or wrong."

23. DeNardi knew she was being set up to fail and targeted for tennination, yet

Barkanyi always dismissed DeNardi's fears as a way to disguise DRA's attempt to get rid of her

because of DeNardi's perceived disability.

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24. On Friday May 5,2006, ORA finally found an opportunity to concoct a pretext to

get rid of DeNardi, using an incident involving her daughter, Heather OeNardi ("Heather"), who

worked part-time at DRA.

25 For the length of DeNardi's employment at DRA it was a common practice among

the employees and managers to punch each other's timecard out in the event one forgot to do so

after he or she had already left for the day.

26. This practice was beneficial to DRA because by punching out the timecard of an

employee who forgot to do so DRA would not be responsible for that employee's salary when the

employee was not at work.

27. Prior to May 5, 2006, Barkanyi herself called DeNardi after forgetting to complete

her timesheet with her departure time and called her to do so, and other managers at DRA did this

as well as this had always been known as an acceptable procedure.

28 On Friday May 5, 2006, Heather, who worked part-time at DRA, inadvertently

forgot to punch out of work and minutes after leaving, called DeNardi and asked DeNardi to

punch out for her, which DeNardi did in accordance with the DRA procedure.

29. Approximately ten minutes after Heather's call, Barkanyi abusively confronted

DeNardi demanding to know Heather's whereabouts because she claimed she had been looking

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for Heather tor half an hour, which OeNardi knew was untrue since OeNardi, Barkanyi and

Heather had all been together moments before Heather's departure.

30 Barkanyi then asked OeNardi if she had punched Heather's timecard and OeNardi

said "yes" since it was office policy to punch out for an employee who forgot to do so

31. In response, Barkanyi told DeNardi that "Heather should look for a job

elsewhere," even though there was no reason to tenninate Heather other than to punish and hurt

DeNardi as a means of getting DeNardi to quit.

32. On May 8, 2006, the following Monday after DeNardi's daughter Heather was

fired, DeNardi was called into Barkanyi's office, where Mark Newton ("Newton"), the Chief

Financial Officer, informed DeNardi that she was being singled out and fired because, according

to DRA, DeNardi failed to admit she punched Heather's timecard out, which was totally untrue

since DeNardi freely admitted she did so in accordance with DRA's policy.

33. The reason given by DRA for terminating DeNardi was a fabrication and thus a

pretext that was derived to get rid of DeNardi because of her cancer diagnosis, and DRA's

wrongful perception that she was disabled when she was not.

34. As a result of DRA's discriminatory actions, DeNardi, among other things and

only by way of example, has been caused to suffer the profound and lasting stigma of dismissal;

the loss of benefits from DRA; the grief, depression, and emotional trauma DeNardi has already

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and will continue to sustain because she was tired because she had cancer; and the financial loss

DeNardi has and will continue to sustain because at her current job OeNardi is receiving less

favorable salary terms than ORA.

35. The damage inflicted upon OeNardi as a direct and proximate result of ORA's

unlawful discrimination, based on DeNardi's cancer diagnosis, has and will cause a loss of

income for DeNardi, emotional distress and has severely impacted upon the quality ofher life.

36. Here, the acts of DRA were done so clearly with reckless indifference in the face

of a perceived risk that its actions would violate DeNardi's protected rights under Title I of the

Americans with Disabilities Act and the New York State Human Rights Law, that, in addition to

all the damages inflicted upon DeNardi and in addition to all the relief to which DeNardi may

properly be entitled herein, DRA should also be required to pay punitive damages as punishment

for its discriminatory conduct in order to deter DRA and others similarly situated from engaging

in such conduct in the future.

AS AND FOR T}lE FIRST CAUSE OF ACTION ON

BEHALF OF DENARDI AGAINST DRA FOR PERCEIVED

DISABILITY DISCRIMINATION IN VIOLATION OF

TITLE I OF THE AMERICANS WITH DISABILITIES

ACT. 42 U.S.C. S 12112(a)

37. DeNardi repeats, re-alleges and incorporates each and every allegation contained

in paragraphs 1 through 36 of this Complaint, as though fully set forth at length herein.

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38 The entirety of the acts which constitute and form this cause of action, as set forth

above, all of which are deemed and re-alleged herein as though said paragraphs were specifically

set forth herein, were perpetrated upon OeNardi while she was in the course of her employment

with DRA

39 Up to the time of the wrongful, unlawful, and discriminatory termination alleged

herein, which was an adverse employment action, DeNardi was fully qualified for her position

and performed her duties in that position, in a satisfactory fashion and was in a position to

continue doing so for the remainder of her career.

40. Given the circumstances surrounding DeNardi's termination, and the falsity of the

pretext asserted by DRA, one can reasonably conclude that DeNardi was terminated under

circumstances giving rise to a strong inference of perceived disability discrimination.

41. The hostile, offensive, demeaning and intimidating work environment created by

DRA, as described herein, was unwelcome to DeNardi and pervasively or severely altered the

terms, conditions and privileges ofher employment.

42. As a proximate result ofiDRA 's conduct, DeNardi has been adversely affected in

her employment and in her normal life's pursuits, and DeNardi was caused to suffer injuries

resulting in emotional anguish and suffering, and has been humiliated and demeaned because of

DRA's discriminatory conduct in violation of DeNardi's human rights, all of which impacted

upon her well-being and the quality of her life.

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43 'he facts contained herein constitute unlawful discrimination against DeNardi by

DRA, based on DeNardi's perceived disability, in violation of Title of the Americans with

Disabilities Act ("ADA"), 42 U.S.C. §! 12112(a), which, inter alia, states that:

"(a) General rule. -No covered entity shall discriminate against a

qualified individual with a disability because of the disability of

such individual 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."

44. On May 21, 2007, Plaintiff received a Notice of Right to Sue from the EEOC,

45. As a direct and proximate result ofDRA's violation of the ADA, DRA is liable to

DeNardi for damages, including punitive damages.

46. Also as a direct and proximate result of DRA's violation of DeNardi's rights

under the law, DRA is liable to DeNardi for costs and reasonable attorney's fees, based on the

lodestar method as has been judicially established and accepted when attorney's fees are

provided for under the law.

47. The acts of DRA were committed with reckless indifference, in the face of a

perceived risk that its actions would viblate DeNardi's protected rights under the ADA, so that,

in addition to the damages inflicted upon DeNardi and in addition to all the other measures of

relief to which DeNardi may be properly entitled herein, DRA should also be required to pay

punitive damages for its discriminatory conduct, in order to deter DRA and others similarly

situated from engaging in such conduct in the future.

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48 DeNardi, theret()re, seeks compensatory damages in this iirst cause of action

including, among other things, for loss of earnings and loss of earning capacity and for the

emotional harm inflicted upon her, in an award to be determined at a trial of this matter, as well

as punitive damages, reasonable attorney's fees, the costs of this action and prejudgment interest,

in this first cause of action

AS AND FOR THE SECOND CAUSE OF ACTION ON BEHALF

OF DENARDI AGAINST DRA FOR PERCEIVED DISABILITY

DISCRIMINATION IN VIOLATION OF CHAPTER 18,

ARTICLE 15 OF THE NEW YORK STATE EXECUTIVE LA W

§ 296(1)(a)

49. DeNardi repeats, re-alleges and incorporates in full paragraphs through 36 of

this Complaint, as though fully set forth an length herein.

50. The entirety of the conduct which constitutes and forms this cause of action, as

set forth above, all of which is deemed repeated and re-alleged herein as though said paragraphs

were fully and specifically set forth herein, were perpetrated upon OeNardi while she was in the

course of her employment with DRA.

51. DeNardi was in a protected class under the New York State Human Rights Lawat

the time DRA engaged in unlawful conduct, including adverse employment actions against her

and actively creating a hostile work environment for the purpose of forcing her out of the

company, because DRA perceived DeNardi as having an impairment that either prevented the

exercise of a nonnal body function or is demonstrable by medically accepted techniques, due to

her diagnosis of colon cancer and her medically required treatment thereof.

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52 Up to and during the time of ORA .s wrongful. unlawful. and discriminatory

actions against her, OeNardi was fully qualified tor her position and performed her duties in that

position in a totally satisfactory fashion, and would have continued to do so had she not been

terminated by ORA.

53. ORA, nevertheless, wrongfully perceived that OeNardi was disabled, when she

was not, and wrongfully perceived that she suffered from a debilitating physical condition or

impainnent under the law, and as a result of that discriminatory perception, ORA unlawfully

demoted and stripped away her managerial function, and ultimately unlawfully terminated

DeNardi, all ofwhich was adverse employment action.

54 Given the circumstances surrounding DRA's actions against DeNardi, namely

that DeNardi was demoted and replaced following her return to work after cancer treatment, as

well as the fact that DRA's pretext is obviously a manufactured and concocted ploy to rid

themselves of DeNardi, because the practice of punching other people out was a widely accepted

procedure among the company, there is a strong inference that DRA's true basis for its adverse

employment actions against DeNardi was discrimination.

55 The aforementioned acts of DRA constitute unlawful perceived disability

discrimination against DeNardi in violation of Chapter 18, Article 15 of the New York State

Executive Law § 296(1)(a) (referred to herein as "the New York State Human Rights Law"),

which inter alia, states that:

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It shall be unlawful discriminatory practice: (a) For an employer ...

because of the ...disability ...of any individual... to discharge

from employment such individual or to discriminate against such

individual in compensation or in terms. conditions or privileges of

employment.

56. Under the New York State Human Rights Law § 292(21), the term "disability" is

defined as an "impairment that substantially limits one or more major life activities" or "[a]

condition regarded by others as such an impairmenL

57. As a proximate result of DRA's conduct, DeNardi has been adversely affected in

her employment, her well-being, in the quality of her life and in her normal life's pursuits, and

DeNardi believes that DRA's conduct complained of herein has and will continue to have an

irreparably devastating effect upon her life, all of which DeNardi alleges to be in the amount of

Three Million ($3,000,000) Dollars.

58 As a result of DRA's violation of the Human Rights Law, DRA is liable to

DeNardi pursuant to § 297(4)(c) of said statute for "costs and reasonable attorney's fees" based

on the lodestar method as judicially established and accepted when attorney's fees are provided

under the law.

59. DeNardi, therefore seeks in this second cause of action, including, among other

things, monetary losses and emotional harm inflicted upon her in the sum of Three Million

($3,000,000) Dollars, plus the cost of this action as well as reasonable attorney's fees on this

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cause of action based on the lodestair method as has been judicially established and accepted

when attorney's fees are provided under the law

PRA YER FOR RELIEF

WHEREFORE, Plaintiff DeNardi demands judgment in her favor and against

Defendants on the First Cause of Action for both compensatory and punitive damages in an

award to be determined at a trial of this matter and on the Second Cause of Action in the sum of

Three Million Dollars ($3,000,000) in compensatory damages; plus, in both causes of action,

reasonable attorney's fees as is permitted under the law, pre-judgment interest, the costs of this

action and for such other relief as this Court may deem just and proper.

JURY DEMAND

The plaintiff hereby demands a trial by jury .

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