Free Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1185-WDM-PAC GREG FELDMAN, Plaintiff, v. JOBSON PUBLISHING, LLC, a Delaware limited liability company, f/k/a Jobson Publishing Acquisition, LLC, f/k/a Jobson Publishing, L.L.C.; and XJP, LLC, a Delaware limited liability company, f/k/a Jobson Publishing, L.L.C., Defendants.

SECOND AMENDED COMPLAINT

Plaintiff, by and through his attorneys, the Student Law Office at the University of Denver Sturm College of Law, hereby states: INTRODUCTION Plaintiff brings this suit of employment discrimination, interference with rights of contract based on race, and retaliation arising from Defendants' discriminatory treatment of Mr. Greg Feldman and other non-Christian employees. The discrimination includes but is not limited to Defendants' creation of a hostile work environment for employees of the Jewish and Muslim faiths, as well as retaliation against Mr. Feldman following his complaints to management of discrimination. JURISDICTION AND VENUE 1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1337, 1343,

and this action is authorized and instituted pursuant to Sections 706(f)(1) and (3) of Title VII of

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the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000ee-5(f)(1)("Title VII"), Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1991A and 42 U.S.C. § 1981. 2. Venue is proper pursuant to 28 U.S.C. § 1391(b), as Defendants do business in

Colorado, and all events giving rise to the claims occurred in Colorado. PARTIES 3. 4. Mr. Feldman is a resident of the State of Colorado. Mr. Feldman is Jewish, and therefore a member of a protected class within the

meaning of Title VII and 42 U.S.C. § 1981. 5. Upon information and belief, Defendant JOBSON PUBLISHING, LLC,

("Defendant JOBSON") is a Delaware limited liability company doing business in the State of Colorado. 6. Upon information and belief, Defendant JOBSON, from its creation, has

continuously employed at least fifteen (15) employees and is the successor in interest to the entity that employed Mr. Feldman during the relevant time period, namely "Jobson Publishing L.L.C." 7. Upon information and belief, Defendant XJP, LLC ("Defendant XJP") is a

Delaware limited liability company that is the remainder entity of the company that employed Mr. Feldman, formerly known as "Jobson Publishing L.L.C." 8. At all relevant times, Jobson Publishing L.L.C. (and consequently the successor in

interest Defendant JOBSON and the remainder entity Defendant XJP) have continuously been employers engaged in an industry affecting commerce within the meaning of Sections 701(b), (g) and (h) of Title VII, 42 U.S.C. §§ 2000e-(b), (g) and (h).

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FACTUAL ALLEGATIONS 9. Mr. Feldman began his employment with Jobson Publishing, L.L.C., in March,

2002, as Editorial Manager for on of its editorial departments, the International Center for Postgraduate Medical Education ("ICPME"). 10. Mr. Feldman's supervisors immediately recognized his high-level work quality

and strong work ethic, as evidenced by his employment reviews. 11. Prior to his complaints of discrimination, Jobson Publishing L.L.C. provided Mr.

Feldman with positive employment reviews and/or performance evaluations. 12. Upon information and belief, Jobson Publishing L.L.C. purchased Post-Graduate

Institute for Medicine, Inc. ("PIM") in or around December 2002. 13. Mr. Feldman started experiencing adverse changes in his work environment and

open hostility toward people of the Jewish faith and race when Jobson Publishing L.L.C. replaced Mr. Feldman's former supervisors with PIM managers, all of whom belonged to the same fundamentalist Christian church. 14. Mr. Feldman's new managers made it clear that evangelical Christian beliefs and

practices would have a significant presence and play an important role in the workplace. 15. Jobson Publishing L.L.C. displayed Christian symbols in the workplace, including

but not limited to a large picture of the "suffering Jesus" wearing a crown of thorns, with blood running down his face, which the new Director of ICPME prominently displayed in his office where he conducted company business. 16. The Director also prominently displayed a poster in his office containing an image

of fighter planes and a quote from the Christian Bible.

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17.

Jobson Publishing L.L.C. held prayer groups on company property during normal

work hours, and during regular meetings. 18. Jobson Publishing L.L.C.'s managers pressured employees to convert to

fundamentalist Christianity and become members of the management's church. 19. Management treated employees who were not members of the management's

church and/or faith, including Mr. Feldman, less favorably than their similarly-situated coworkers who were members of the management's church and/or faith. 20. Upon information and belief, Jobson Publishing L.L.C. offered jobs to fellow

church members, those who held the same religious beliefs, and non-Jewish white employees without first posting the positions, thereby denying similarly-situated employees of different faiths and different races the opportunity to compete for open positions. 21. Jobson Publishing L.L.C. passed over qualified employees who were not of the

same faith and race as the members of the management team, and chose instead to fill positions with unqualified white employees who held the same faith as the new managers for Jobson Publishing L.L.C. 22. Jobson Publishing L.L.C.'s managers made hostile and discriminatory statements

against non-Christian and non-white people in the workplace, specifically targeting Jews and Muslims. Jobson Publishing L.L.C.'s managers' statements and conduct were so severe and pervasive as to create a hostile work environment based on race and/or religion. 23. The Director of ICPME endorsed violence against Muslims. The Director

specifically advocated shooting Muslims with "bullets dipped in pig's blood," and he showed an

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employee a document describing the practice of dipping bullets into pig blood and shooting Muslims. 24. At all relevant times, one of the employees in the accounting department was a

Muslim from Somalia. 25. Additionally, another employee (a member of the company-endorsed church),

"warned" two employees who reported to Mr. Feldman that they would be getting a call from the church sign maker: "his name is [something]-berg, so when he calls you, you won't think, `who is this Jewish man calling me on the phone?'" 26. Hearing this, the employees were disgusted and distraught about the open hostility

toward Jewish people generally and Mr. Feldman specifically. 27. These employees reported this statement to their supervisor, Mr. Feldman. Mr.

Feldman reported it to Human Resources. 28. ICPME's Director also openly expressed disgust with "Jewish doctors," in front

of Mr. Feldman and another Jewish employee. 29. On a separate occasion, the Director said in front of employees, "the Jews ­

always trying to stick it to you." In another incident, the Director told Mr. Feldman that he would be confused for a "back-alley abortionist" while he was working on an Ob/Gyn website for the company. 30. Mr. Feldman opposed discrimination based on race and religion by making

complaints to Jobson Publishing L.L.C. Specifically, in or around July 2003, Mr. Feldman complained to Ms. Lorraine Orlando in the Human Resources department.

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31.

Upon information and belief, Ms. Orlando continues in her role of head of Human

Resources for the successor in interest, Defendant JOBSON. 32. In or around July 2003, Plaintiff also told Ms. Orlando that ICPME employees

who were not members of the church were distraught over this environment and management's conduct and statements against non-Christian employees. 33. In addition to complaining to the Human Resources department, in or around the

beginning of August 2003, Mr. Feldman spoke directly with the Director, Dennis Graber, about the concerns he had with discriminatory conduct and personnel decisions. 34. Upon information and belief, in or around June 2003, several employees

contacted the main office of Jobson Publishing L.L.C. in New York and spoke to Lorraine Orlando in Human Resources to complain about the hostile work environment at ICPME. 35. Despite the fact that Mr. Feldman and others had put Jobson Publishing L.L.C. on

actual notice of religious and race-based discrimination, Defendants failed to address Mr. Feldman's complaints as required by Title VII and Section 1981. 36. Upon information and belief, Jobson Publishing L.L.C. did not investigate Mr.

Feldman's complaints. 37. Jobson Publishing L.L.C. did not conduct any follow-up interviews with Mr.

Feldman, nor did they post EEO information pursuant to 29 C.F.R. § 1601.30. 38. Jobson Publishing L.L.C. repeatedly was notified by their employees of problems

with religious discrimination and discrimination based on race against Jewish employees and the resulting hostile work environment.

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39.

On August 26, 2003, Jobson Publishing L.L.C. terminated Mr. Feldman's

employment, just weeks after his complaints of discrimination to Jobson Publishing L.L.C. Mr. Feldman received a letter explaining that his position would be eliminated due to company restructuring. 40. During the time period of Mr. Feldman's termination, Jobson Publishing L.L.C.

retained less qualified non-Jewish employees who had not complained of discrimination. 41. Upon information and belief, Mr. Feldman's position was not eliminated. Jobson

Publishing L.L.C. replaced Mr. Feldman with a non-Jewish employee who retained Mr. Feldman's former job title and duties. 42. Upon information and belief, Mr. Feldman's replacement retains the same job

title and duties as previously held by Mr. Feldman. 43. Jobson Publishing L.L.C. terminated Mr. Feldman's employment because he

opposed its discriminatory treatment of himself and other employees. Jobson Publishing L.L.C. condoned and ratified the discriminatory and retaliatory conduct of the management team. 44. While firing Mr. Feldman, the Jewish employee who had complained, Jobson

Publishing L.L.C. promoted two of the employees engaged in discriminatory conduct based on religion and/or race and rehired a church member who had previously been terminated. 45. On or about April 1, 2005, Jobson Publishing L.L.C. (the entity which employed

Mr. Feldman) was purchased almost in its entirety by "Jobson Publishing Acquisition, LLC," a Delaware limited liability company. In or about May of 2005, "Jobson Publishing Acquisition, LLC" changed its corporate name to "Jobson Publishing LLC" (Defendant JOBSON), a named Defendant in the instant action and a successor in interest to Jobson Publishing, L.L.C.

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46.

Defendant JOBSON does substantially the same business (i.e., a "specialty

healthcare communications, publishing and medical education company"), with substantially the same work force, with the same jobs and working conditions, and with the same business machinery, equipment and methods of production that "Jobson Publishing L.L.C." did during the period of Mr. Feldman's employment. 47. On or about May 25, 2005, "Jobson Publishing L.L.C.," the remainder entity of

the company which employed Mr. Feldman, changed its name to "XJP, LLC" (Defendant XJP). 48. Both Defendant JOBSON and Defendant XJP had notice of Mr. Feldman's claims

at the time of the purchase agreement (i.e., April 1, 2005) because the agreement mentions the instant lawsuit by name. CONDITIONS PRECEDENT 49. On or about October 14, 2003, Mr. Feldman filed a timely charge of

discrimination against Jobson Publishing L.L.C. with the Equal Employment Opportunity Commission (EEOC) alleging that Jobson Publishing L.L.C. discriminated and retaliated against him. 50. On or about April 22, 2004, the EEOC sent Mr. Feldman a Notice of Right to Sue.

(A copy of the Equal Employment Opportunity Commission's Notice of Right to Sue is attached as Exhibit 1.) 51. Mr. Feldman filed a complaint on June 9, 2004, within ninety (90) days of

receiving the Notice of Right to Sue. Plaintiff has therefore exhausted his administrative remedies and fulfilled all conditions precedent to suit.

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52.

All of the above paragraphs are repeated and re-alleged for each of the claims and

counts set forth below. CLAIMS FOR RELIEF CLAIM I: RELIGIOUS HARASSMENT IN VIOLATION OF TITLE VII OF THE CIVIL RIGHTS ACT OF 1961, AS AMENDED IN 1991 53. 54. VII. 55. At all relevant times. Mr. Feldman was an "employee" within the meaning of Mr. Feldman readopts and realleges paragraphs 1-52 as if fully set forth herein. Mr. Feldman is Jewish, and therefore a member of a protected class under Title

Title VII, 42 U.S.C. § 2000e. 56. The religious harassment that Mr. Feldman suffered during his employment with

Jobson Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP) created a hostile and abusive work environment. 57. Comments made and actions taken by Jobson Publishing L.L.C. (and

consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP) were so severe and pervasive that they altered the conditions of Mr. Feldman's employment. 58. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP) had actual notice of these discriminatory practices based on complaints made by numerous employees, including Mr. Feldman, pursuant to the procedure outlined in the Staff Member Information Handbook. 59. The actions of Jobson Publishing L.L.C. (and consequently the successor in

interest Defendant JOBSON and the remainder entity Defendant XJP) constitute an intentional

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violation of Title VII, and as a direct and foreseeable consequence of Jobson Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s actions, Mr. Feldman has suffered injuries and losses including but not limited to violation of his federal statutory rights, emotional distress, and lost wages and benefits. 60. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP)'s actions were wanton and willful and in total disregard of Mr. Feldman's rights, requiring the imposition of punitive damages to deter similar conduct in the future. CLAIM II: RELIGIOUS DISCRIMINATION BASED ON DISPARATE TREATMENT IN VIOLATION OF TITLE VII 61. 62. Mr. Feldman readopts and realleges paragraphs 1-52 as if fully set forth herein. Mr. Feldman is Jewish, and therefore a member of a protected class within the

meaning of Title VII. 63. At all relevant times, Mr. Feldman was an employee within the meaning of Title

VII, 42 U.S.C. § 2000e. 64. Mr. Feldman was qualified for his employment in that at all material times he

adequately and satisfactorily performed his job duties and received positive performance evaluations. 65. Mr. Feldman suffered an adverse employment action when Jobson Publishing

L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP) terminated Mr. Feldman's employment on the basis of Mr. Feldman's religion while simultaneously retaining and promoting employees who subscribed to the fundamentalist Christian faith.

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66.

Mr. Feldman's religion was a motivating or contributing factor behind Jobson

Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s decision to terminate his employment. 67. Further, the actions of Jobson Publishing L.L.C. (and consequently the successor

in interest Defendant JOBSON and the remainder entity Defendant XJP) constitute an intentional violation of Title VII, and as a direct, natural, foreseeable and proximate result of the actions of Jobson Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP), Mr. Feldman has suffered injuries and losses, including but not limited to violation of his federal statutory rights, emotional distress, and lost wages and benefits. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s discrimination was wanton and willful and in total disregard of Mr. Feldman's rights, requiring the imposition of punitive damages to deter similar conduct in the future. CLAIM III: RETALIATION IN VIOLATION OF TITLE VII 68. 69. Mr. Feldman readopts and realleges paragraphs 1-52 as if fully set forth herein. Mr. Feldman opposed the discriminatory practices of Jobson Publishing L.L.C.

(and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP) within the meaning of Title VII by complaining to Human Resources about Jobson Publishing L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s harassing and discriminatory conduct at the main office in New York and by complaining directly to the Director of Operations at the local office.

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70.

Less than three weeks after Mr. Feldman complained to the Director, Mr.

Feldman's employment was terminated under a pretext of a "reduction in force." 71. Mr. Feldman's replacement holds the same job title and performs the same job

functions previously held by Mr. Feldman. 72. Mr. Feldman's termination was in retaliation for opposing Jobson Publishing

L.L.C. (and consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s discriminatory practices. 73. As a direct and foreseeable consequence of Jobson Publishing L.L.C. (and

consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s retaliation, Mr. Feldman has suffered injuries and losses including but not limited to violation of his federal statutory rights, emotional distress, and lost wages and benefits. 74. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP)'s retaliation was wanton and willful and in total disregard of Mr. Feldman's rights, requiring the imposition of punitive damages to deter similar conduct in the future. CLAIM IV: VIOLATION OF RIGHT TO CONTRACT UNDER 42 U.S.C. § 1981 75. 76. Mr. Feldman readopts and realleges paragraphs 1-52 as if fully set forth herein. As a member of the Jewish faith, Mr. Feldman is a member of a protected class

within the meaning of 42 U.S.C. § 1981. 77. Mr. Feldman witnessed, and was the subject of, disparaging comments relating to

Jews and Muslims. In addition, Jobson Publishing L.L.C. (and consequently the successor in

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interest Defendant JOBSON and the remainder entity Defendant XJP) engaged in preferential hiring and promotion practices based on race within the meaning of 42 U.S.C. § 1981. 78. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP)'s conduct constituted an unlawful interference with Mr. Feldman's right to enforce his employment contact within the meaning of 42 U.S.C. § 1981. 79. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP) unlawfully terminated Mr. Feldman's employment in retaliation for Mr. Feldman's opposition to racial discrimination. Mr. Feldman's termination was a violation of 42 U.S.C. § 1981. 80. As a direct and foreseeable consequence of Jobson Publishing L.L.C. (and

consequently the successor in interest Defendant JOBSON and the remainder entity Defendant XJP)'s actions, Mr. Feldman has suffered injuries and losses including but not limited to violation of his federal statutory rights, emotional distress, and lost wages and benefits. 81. Jobson Publishing L.L.C. (and consequently the successor in interest Defendant

JOBSON and the remainder entity Defendant XJP)'s actions were wanton and willful and in total disregard of Mr. Feldman's rights, requiring the imposition of punitive damages to deter similar conduct in the future. PRAYER FOR RELIEF WHEREFORE, Mr. Feldman respectfully requests that this Court:

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a. Enter judgment for restitutionary and compensatory damages, including but not limited to damages for lost wages and benefits and mental pain and suffering in an amount to determined at trial; b. Award to Mr. Feldman exemplary and punitive damages in an amount commensurate with Defendants' ability to pay and to deter future conduct; c. Award to Mr. Feldman costs in this action, including reasonable attorney's fees as provided for by Title VII; d. Award to Mr. Feldman pre- and post-judgment interest; and e. Grant such further relief as the Court deems necessary and proper. JURY DEMAND: Plaintiff hereby demands a jury trial for all claims so triable. Dated: January 25, 2006 Respectfully submitted, STUDENT LAW OFFICE

s/Laura L. Rovner________ Laura L. Rovner University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 E-mail: [email protected] Attorney for Plaintiff Greg Feldman

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s/ Ari Krichiver___________________ Ari Krichiver, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

s/ Julie Schmidt____________________ Julie Schmidt, Student Attorney University of Denver Sturm College of Law 2255 E. Evans Ave., Suite 335 Denver, CO 80208 Telephone: 303.871.6140 Fax: 303.871.6847 Student Attorney for Plaintiff Greg Feldman

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Certificate of Service I HEREBY CERTIFY that on this 25th day of January 2006, I electronically filed the foregoing PLAINTIFF'S SECOND AMENDED COMPLAINT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected]

s/ Laura L. Rovner Laura L. Rovner STUDENT LAW OFFICE University of Denver Sturm College of Law 2255 E. Evans Avenue Denver, CO 80208 Tel: 303.871.6140 Fax: 303.871.6847 Email: [email protected] Attorney for Plaintiff Greg Feldman

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