Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 1 of 8 1 Edmundo P. Robaina (No. 018125) ROBAINA & KRESIN PLLC 2 5343 N. 16th Street, Suite 200 3 Phoenix, Arizona 85016 Telephone: (602) 682-6450 4 Facsimile: (602) 682-6455 epr@robainalaw.com 5 6 Attorneys for Plaintiff Gary Elias 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 Gary Elias, No. 10 Plaintiff, 11 v. 12 Arizona Board of Regents, COMPLAINT (Jury Trial Demanded) 13 Defendant. 14 15 16 17 18 19 Plaintiff Gary Elias (“Elias”), by and through undersigned counsel, alleges for his Complaint as follows: 1. This action is brought pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. 20 2. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. 21 3. Venue is proper in the District of Arizona pursuant to 28 U.S.C. § 22 1391(c). 23 4. Defendant Arizona Board of Regents (“ABOR”) is a public “body 24 corporate” which may sue and be sued pursuant to A.R.S. § 15-1625. ABOR has 25 jurisdiction and control over Arizona’s universities, including Arizona State University 26 (“ASU”). 27 5. 28 ASU is a public metropolitan research university on five campuses across the Phoenix, Arizona metropolitan area, and four learning centers throughout Arizona. Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 2 of 8 1 6. ASU is the largest public university by enrollment in the United States. 2 7. Upon information and belief, ASU receives or distributes federal financial 3 4 5 6 7 8 9 10 assistance. 8. ABOR/ASU is an employer subject to the requirements of the Rehabilitation Act. 9. Elias is an adult male who currently resides, and at all relevant times resided, in Phoenix, Arizona. 10. Elias, began his employment with the ASU Center for Applied Behavioral Health Policy (the “CABHP”) as a Database Manager/Program Manager IT on or about April 30, 2012. 11 11. At all relevant times, Elias’ work performance was at least satisfactory. 12 12. Elias has chronic sleep apnea and a severe anxiety disorder. 13 13. Elias’ sleep apnea can cause daytime sleepiness, inability to concentrate 14 15 and increased state of anxiety. 14. When not managed properly, Elias’ severe anxiety causes him to have 16 difficulties with concentration, managing tasks, completing projects, and interacting 17 with others. Factual Background 18 19 20 21 15. During the summer of 2013, Elias informed his supervisor, Margaret Carmena, that he suffered from sleep apnea. 16. Carmena was familiar with the condition and allowed Elias to have a 22 flexible work schedule, which included starting work at approximately 10:00 a.m., and 23 staying later. 24 25 26 27 28 17. In or about November of 2013, Elias was assigned a new supervisor, Bill Kennard. 18. Elias informed Kennard of his sleep apnea and his flexible work schedule, and Kennard required Elias to seek formal approval of his accommodations. 19. Elias therefore contacted ASU’s Senior EEO Consultant and ADA -2- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 3 of 8 1 Coordinator Carlos Sanchez, who, in turn, began an interactive process with Elias to 2 determine appropriate accommodations. 20. 3 On November 7, 2013, Kennard and Sanchez approved of reasonable 4 accommodations for Elias consisting of a flexible work schedule and the ability to work 5 remotely when needed. 21. 6 7 These accommodations worked well for Elias, and Elias was able to perform the essential functions of his job. 8 22. In December of 2014, Lois Sayrs was assigned to be Elias’ supervisor. 9 23. Shortly after Sayrs became Elias’ supervisor, Elias advised Sayrs of his 10 sleep apnea, his related difficulty getting to work generally before 10:00 a.m., and the 11 accommodations ASU was providing him. 24. 12 13 had previously approved. 25. 14 15 18 Sayrs refused Elias’ accommodation requests, stating that she liked her staff to all be in the office during regular work hours. 16 17 Elias also requested to continue to use the flexible work schedule ASU 26. Sayrs also scheduled meetings at 9:00 a.m. that she required Elias to 27. On February 5, 2015, Sayrs sent Elias an email saying she would no attend. 19 longer approve Elias to work remotely from home, and that Elias would now be 20 expected to be in the office during regular work hours. 21 28. As a result of Sayrs’ action, Elias experienced severe anxiety, which 22 caused him to have to take a combination of Family and Medical Leave Act (“FMLA”) 23 leave and non-FMLA leave from approximately February 5, 2015 to September 8, 2015. 24 29. On or about February 9, 2015, March 26, 2015, May 14, 2015, June 19, 25 2015, August 7, 2015, Elias’ psychiatrist, Matthew Markis, D.O., provided ASU 26 documentation in which he noted, in essence, that Elias has a documented history of 27 severe anxiety which, when not managed, causes him difficulties with concentration, 28 managing tasks, completing projects and interacting with others. -3- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 4 of 8 1 30. On September 2, 2015, Dr. Markis filled out ASU’s Health Care Provider 2 Release to Return to Work/Certificate of Illness, which Elias was required to, and did, 3 turn in to ASU’s Human Resources Department. 4 31. In the September 2, 2015 Health Care Provider Release to Return to 5 Work/Certificate of Illness, Dr. Markis noted in a box labeled “Date of Illness or Injury” 6 that Elias’ condition was “Chronic, several years”; and that the “[d]uration of symptoms 7 leading to work restrictions cannot be determined.” 8 9 10 32. Dr. Markis further wrote in an attachment to the September 2, 2015 Health Care Provider Release to Return to Work/Certificate of Illness under “Return to Work Restrictions” for Elias the following: • 11 Flexible start and stop times to work, while allowing to work from home not to impede deliverables; 12 • 13 Ability to take breaks or retreat if experiencing anxiety/panic symptoms; 14 • 15 Personal work area to have minimal distractions which may exacerbate anxiety symptoms and affect ability to concentrate; 16 • 17 Reevaluate whom employee is reporting to and their management 18 methods. Consider providing sensitivity training or changing who 19 employee reports to if appropriate. Inform manager of panic attack 20 symptoms experienced by employee which may include trembling/ 21 shaking, abdominal distress, rapid heart rate and difficulty 22 concentrating/communicating; • 23 Provide clear expectations regarding job duties and work priorities 24 in writing, so employee is aware of what is expected of him. 25 Provide constructive feedback prior to corrective action. 26 33. Upon Elias’ return from FMLA leave on September 8, 2015, Elias was 27 given a new position as a Data Analyst Research Aide, which required much lower job 28 qualifications than Elias’ previous position. Elias met all of the job qualifications for -4- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 5 of 8 1 2 the position. 34. However, neither Sayrs nor anyone else from ASU engaged in an 3 interactive process with Elias in order to determine reasonable accommodations for his 4 sleep apnea or his severe anxiety. 5 6 7 35. Instead, upon Elias’ return to work, Sayrs communicated to Elias that he would have to maintain a regular work schedule of 8 a.m. to 5 p.m. 36. On or about September 16, 2015, Elias advised Sayrs that he was having 8 difficulty making it to the office by 8:00 a.m., and requested as a reasonable 9 accommodation that she adjust this requirement. 10 11 12 13 14 37. Sayrs denied Elias’ request despite her knowledge of his sleep disorder, and required him to continue to work from 8 a.m. to 5 p.m. 38. As a result, Elias could not manage his condition and experienced severe daytime sleepiness, difficulty concentrating, and significant anxiety. 39. On several occasions subsequent to his return to work, including 15 September 24, 2015, Elias contacted ADA Coordinator Norma Abbi for assistance. 16 However, Abbi referred Elias back to Sayrs. 17 40. On September 24, 2015, Sayrs and CABHP Office Manager Nick 18 Klofkorn presented Elias with an undeserved, substandard Annual Performance Review 19 for 2014 rating period. 20 41. The 2014 Annual Performance Review, pursuant to which Elias was given 21 an overall rating of 1.6, which indicates a performance between “inconsistently fulfills 22 performance expectations” and “fails to meet performance expectations” was authored 23 by Sayrs, who had been Elias’ supervisor for a total of 18 work days during the review 24 period. 25 42. On September 24, 2015, Sayrs and Klofkorn also issued Elias a 26 “Performance Improvement Plan” for the Database Manager/Program Manager IT 27 position that Elias no longer held. 28 43. On October 7, 2015, Sayrs and Klofkorn placed Elias on administrative -5- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 6 of 8 1 leave and notified Elias that his employment would be terminated as of October 21, 2 2015. 44. 3 On October 21, 2015, Elias’ employment was terminated. 4 COUNT ONE 5 (Discrimination Pursuant to the Rehabilitation Act) 45. 6 7 fully herein. 8 9 10 Elias incorporates by reference all previous allegations as though set forth 46. Elias is an individual with a disability for purposes of the Rehabilitation 47. Elias was a qualified individual for purposes of the Rehabilitation Act in Act. 11 that with reasonable accommodations he could perform the essential functions of his 12 positions with ASU. 13 48. Elias suffered discrimination because of his disability when Sayrs refused 14 to provide him reasonable accommodations that his supervisors had previously provided 15 him, when she gave him an adverse performance evaluation, and when she and 16 Klofkorn terminated Elias’ employment. 17 49. As a result of Sayrs’ and Klofkorn’s actions, Elias has suffered and 18 continues to suffer lost income and lost earning capacity, lost fringe benefits, mental 19 anguish, emotional distress and harm to reputation. 20 COUNT TWO 21 (Failure to Reasonably Accommodate) 22 23 24 25 26 27 28 50. Elias incorporates by reference all previous allegations as though set forth fully herein. 51. Elias requested of ABOR/ASU accommodations because of his disabilities. 52. ABOR/ASU could have made reasonable accommodations that would have enabled Elias to perform the essential functions of his positions. 53. ABOR/ASU failed to provide Elias reasonable accommodations. -6- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 7 of 8 1 54. As a result of ABOR/ASU’s failure to provide Elias reasonable 2 accommodations, Elias could not manage his disabilities and experienced severe 3 daytime sleepiness, difficulty concentrating, and severe anxiety, which ultimately led to 4 his termination. 5 55. As a result of ABOR/ASU’S actions, Elias has suffered and continues to 6 suffer lost income and lost earning capacity, lost fringe benefits, mental anguish, 7 emotional distress and harm to reputation. 8 9 10 WHEREFORE, Plaintiff Gary Elias prays for judgment against Defendant Arizona Board of Regents as follows: A. For an award of economic damages in an amount sufficient to make Elias 11 whole for past and future lost income and benefits, lost earning capacity, 12 and other economic losses incurred by Elias resulting from ASU’s 13 conduct; 14 B. For an award of compensatory damages for mental anguish, emotional 15 distress, pain and suffering, humiliation, harm to reputation and other 16 losses incurred by Elias as a result of ASU’s conduct; 17 C. For an award of attorneys’ fees and related expenses pursuant to For an 18 award of attorneys’ fees and related expenses pursuant to 29 U.S.C. § 19 794a(b); 20 D. For an award of prejudgment and post-judgment interest; 21 E. For an award of Elias’ costs of suit incurred herein; and 22 F. For an award of such other relief as the Court may deem just and proper. 23 RESPECTFULLY SUBMITTED this 25th day of August 2017. 24 ROBAINA & KRESIN PLLC 25 26 27 By /s/ Edmundo P. Robaina Edmundo P. Robaina Attorneys for Plaintiff Gary Elias 28 -7- Case 2:17-cv-02880-DMF Document 1 Filed 08/25/17 Page 8 of 8 1 2 3 4 5 DEMAND FOR JURY TRIAL Plaintiff Gary Elias hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of Civil Procedure. RESPECTFULLY SUBMITTED this 25th day of August 2017. ROBAINA & KRESIN PLLC 6 7 8 By /s/ Edmundo P. Robaina Edmundo P. Robaina Attorneys for Plaintiff Gary Elias 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- Page 1 of 2 Case 2:17-cv-02880-DMF Document 1-1 Filed 08/25/17 Page 1 of 2 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Civil Cover Sheet This automated JS-44 conforms generally to the manual JS-44 approved by the Judicial Conference of the United States in September 1974. The data is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only in the District of Arizona. The completed cover sheet must be printed directly to PDF and filed as an attachment to the Complaint or Notice of Removal. Plaintiff Gary Elias (s): Defendant Arizona Board of Regents (s): County of Residence: Maricopa County of Residence: Maricopa County Where Claim For Relief Arose: Maricopa Plaintiff's Atty(s): Defendant's Atty(s): Edmundo Robaina Robaina & Kresin PLLC 5343 North 16th Street, Suite 200 Phoenix, Arizona 85016 (602) 682-6450 II. Basis of Jurisdiction: 3. Federal Question (U.S. not a party) III. Citizenship of Principal Parties (Diversity Cases Only) Plaintiff:- N/A Defendant:- N/A IV. Origin : 1. Original Proceeding V. Nature of Suit: 442 Employment VI.Cause of Action: Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. VII. Requested in Complaint Class Action: No Dollar Demand: Jury Demand: Yes http://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl 8/25/2017 Page 2 of 2 Case 2:17-cv-02880-DMF Document 1-1 Filed 08/25/17 Page 2 of 2 VIII. This case is not related to another case. Signature: /s/ Edmundo P. Robaina Date: 08/25/17 If any of this information is incorrect, please go back to the Civil Cover Sheet Input form using the Back button in your browser and change it. Once correct, save this form as a PDF and include it as an attachment to your case opening documents. Revised: 01/2014 http://www.azd.uscourts.gov/cgi-bin/generate_civil_js44.pl 8/25/2017