IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JOSEPH MIROCHA,                                )
                                  )
          Plaintiff,                )
v.                                                )        No. 11 CV 4542
                                  )
PALOS COMMUNITY HOSPITAL,                )        Judge: Robert M. Dow, Jr.
an Illinois corporation, and KEN LASH,                 )                
individually,                                                 )
                                  )
          Defendants.                )

FIRST AMENDED COMPLAINT
Plaintiff, JOSEPH MIROCHA (“Plaintiff”), on behalf of himself and all others similarly situated, and for his
First Amended Complaint against Defendants Palos Community Hospital (“PCH”) and Ken Lash
(“Lash”), states the following:
JURISDICTION AND VENUE
1.        Jurisdiction is based on 28 U.S.C. section 1331 and 1343, and principles of supplemental
jurisdiction under 28 U.S.C. section 1367. Venue is proper in the Northern District of Illinois Pursuant to
28 U.S.C. section 1391. PCH is licensed to do business in this district, and the alleged wrongs took place
in this District.
2.        Plaintiff resides in and was employed by PCH in the Northern District of Illinois. Plaintiff has
exhausted his administrative remedies and has filed two Charges of Discrimination with the Equal
Employment Opportunity Commission for age discrimination and for retaliation, which issued Plaintiff a
notice of right to sue for each charge.
3.        PCH is a hospital located in Palos Heights, Illinois.
4.        As explained below, PCH violated the Age Discrimination in Employment Act, 29 U.S.C. section
621, et seq., as amended (hereinafter “ADEA”), by its systemic unlawful discrimination and retaliation
against employees over the age of forty, and in connection with its unlawful termination and/or demotion
of Plaintiff and all others similarly situated who were terminated individually or as part of PCH’s pattern or
practice of age discrimination.
FACTUAL ALLEGATIONS
PCH Engages in a Pattern and Practice of Discrimination and Unlawful Terminations

5.        PCH has engaged and continues to engage in a nationwide pattern or practice of age
discrimination against individuals over forty years of age (“older workers”) in its work force.  PCH
maintains stereotypical views about older workers that form the basis of personnel decisions, and create
an environment where discrimination and retaliation is pervasive. The application of PCH’s facially neutral
personnel policies and practices result in a disparate impact to the disadvantage of older workers.
6.        PCH discriminates against older workers in its work force in a number of ways. Pursuant to
company policies and practices, PCH denies older workers the same compensation and grooming and
advancement opportunities provided to younger workers. Older workers are denied managerial,
administrative, and sales support, and are held to higher standards than employees under forty years of
age (“younger workers”).
7.        PCH’s Human Resources department (“HR”) is ineffective at resolving complaints of
discrimination, retaliation, and enforcing EEO policies and guidelines. As a result, many older workers fail
to lodge complaints with HR because they recognize the futility of doing so. Those who do come forward
face retaliation.
8.        The discrimination and retaliation at PCH is ongoing, systemic, and pervasive, and constitutes a
continuing violation. Some of the policies and practices include, but are not limited to, the following:
a)        failing to hire older workers commensurate with the availability;
b)        failing to promote older workers or groom them for promotion;
c)        underutilizing older workers;
d)        employing employment policies and practices that have a disparate impact on employees over forty;

e)        systematically paying older workers lower compensation, refusing to compensate older workers for
compensation earned under PCH’s compensation plans and programs (e.g, by post hoc changes to plan
terms or definitions), and/or denying older workers opportunities to increase their earnings, including
base pay, commissions, bonus and stock options;

f)        creating an environment that is hostile and offensive to older workers;

g)        making employment decisions based on age or stereotypes about age; and

h)        retaliating against employees who complain of discrimination, including subjecting them to further
discrimination, retaliation, verbal attacks, reassigning their clients or accounts, and defaming and
constructively discharging or terminating them.

9.        Plaintiff was born on July 21, 1952. At all relevant times herein, Plaintiff was an individual protected
by the ADEA.
10.        Plaintiff began his employment with PCH on or about October 6, 2003 as an electrical supervisor
in the electrical/physical plant department.
11.        Plaintiff’s position as electrical supervisor included supervision of assigned employees which
includes the supervision of work performed to be sure it conforms with established procedures, policies
and regulations.  Plaintiff performed and excelled in this position as electrical supervisor through his
employment at PCH.
12.        Plaintiff was given a verbal warning on December 30, 2010 by Ken Lash. Plaintiff was given a
deadline of thirty (30) days to bring the electrical department’s database into full compliance, including the
entry of all incoming inspections of new equipment, provide complete lists of all data entries, set up the
correct preventative maintenance procedures, and update emergency procedures. Lash issued a written
warning to Plaintiff, which is dated February 4, 2011. The reason given for the warning is a failure to fulfill
job duties and refers to electrical databases deficiencies.  
13.        The verbal warning given by Lash on December 30, 2010 instructed Plaintiff within 30 days to
bring the electrical database to 100% accuracy with maintenance procedures to be updated and added.
The largest task of the two (2) databases was not the equipment database. Rather, it was the panel
database. The equipment database was in good shape. The panel database was compromised when
the entire electrical infrastructure distribution was replaced. In the process of updating the panel
database, the conditions underlying the 30 day deadline given my client changed 2 weeks into the job.
Lash had the panel database moved into the equipment database. Plaintiff was told that he had to put the
manufacturer’s recommended maintenance routines (name of manufacturer, serial and model numbers
for each piece) for approximately 350 pieces. Plaintiff  then had to research and enter over 1,050 entries
that were not in the original panel database. Plaintiff was then told he failed because there was no
manufacturer, serial or model numbers entered in the fields.
14.        The foregoing tasks are not within the job description/requirements of Plaintiff but are specifically
contained in job descriptions of and are performed by managers.
15.        The 30 day deadline given to Plaintiff virtually caused his department to be shut down in order to
meet this deadline. Moreover, Plaintiff did not have 100% of his crew healthy during this time.
16.        The electrical shop lost forty percent (40%) of its crew after Plaintiff was hired. Ray Schimming
retired and a full time on-site vendor’s electrician performing data/phone was also let go. In or about
2010, the electrical shop facilitated the largest electrical infrastructure cut-over in the history of PCH which
required many months of man hours to be devoted and taken away from the electricians’ day to day
responsibilities. With the reduction in work force in the electrical shop and additional man hours needed
to maintain the new electrical infrastructure, the foregoing demands made upon Plaintiff were designed to
cause him to quit and/or designed to set him up for involuntary termination. This conduct engaged in by
PCH was unlawfully based upon age.
17.        Other individuals including, but not limited to Rich Chapan, are similarly situated employees that
are outside the protected group but were treated differently by PCH.  At all relevant times, Rich Chapan
was under 40 years old and worked in the plant engineering department. The plant engineering
department went through the same course of events as did the Electrical Shop but nobody in that
department was warned or disciplined in any manner. Lash is fully aware the facility and systems
management department and plant engineering did not enter tasks or incoming inspections on new
equipment, have not set up correct preventative maintenance procedures, and do not have emergency
procedures. However, not a single individual in plant engineering has been disciplined or threatened with
termination as Plaintiff  had been disciplined or threatened. Plaintiff was unlawfully treated differently than
similarly situated employees who are not members of the protected group.
18.        The warnings given to Plaintiff by Lash for allegedly not bringing the electrical department
database into full compliance including the tasks of entering all incoming inspections of new equipment,
providing completeness of all data entries, setting up the correct preventative maintenance procedures
and updating the emergency procedures, are outside the scope of Plaintiff’s responsibilities and job
description. Lash also wrongfully disciplined Plaintiff by blaming the existence of database inadequacies
upon the Plaintiff. The Statement of Policy for Incoming Inspections, 832-013  836-049, expressly states
that all utility equipment will receive an incoming inspection prior to it being placed into service. Without
Plaintiff’s authorization and in complete disregard of the statement regarding incoming inspections, an
entire electrical infrastructure distribution was replaced. As a result, the entire panel database was not in
compliance and Plaintiff is being wrongfully blamed for this result.
19.        Likewise, Statement of Policy, 834/836-022, 830-003, and 832-025, for Equipment Management
Program states that an inventory shall be kept of all equipment that the physical plant departments are
responsible for maintaining and repairing and that the department managers shall be responsible for
entering all the necessary information for new equipment when it is put into service which includes
information such as PCH number, model number, serial number, manufacturer, user department and
any other information which is necessary to maintain proper records. This Statement of Policy further
provides that the department managers will also be responsible for setting up a comprehensive
preventative maintenance schedule for each piece of equipment. Preventative maintenance tasks will
then be generated by the data management program.
20.        Lash also stated in his disciplinary action against Plaintiff that PCH’s Utilities Management
Program is in jeopardy if a Joint Commission inspection would occur because Plaintiff failed to perform
the infrared scanning test on PCH’s electrical infrastructure in 2010 when it was due for inspection. This
is untrue. Infrared scanning is not even required by the Joint Commission or by any other regulatory
agency.  Moreover, the electrical infrared panel scanning was not part of the Utilities Management
program. Plaintiff receives the Utilities Management program overdue list and not once has the panel
scanning or the panels been included in this program. The panels were not added to the Utilities
Management program until after Plaintiff was “warned”.  Plaintiff was disciplined for matters that are
outside the scope of his job description/responsibilities and for which he had no control.
21.        Lash’s “warnings” are wrongfully directed at Plaintiff as well as his threats and acts of
intimidation. Lash inappropriately states in a File Memo that “I think [Plaintiff’s] most significant failure as
the electrical supervisor has been his inability to identify what his job duties are and then to work well
independently.” Lash’s conduct is hostile and malicious. As set forth above, Plaintiff has been unlawfully
“warned” about matters that are outside the scope of his job description/responsibilities and Plaintiff has
been unlawfully treated differently from employees who are similarly situated to him and outside of the
protected age group.
22.        Lash is a department manager and the responsibilities for which he disciplined Plaintiff fall within
his job duties as set forth in the foregoing Statements of Policies. Moreover, Lash has 5 technicians in his
crew as well as a lead technician whereas Plaintiff  has 3 electricians in his crew and there is no
manager assigned to Plaintiff’s Electrical Shop. In addition to performing routine maintenance, which is
the primary work performed by Lash’s group, Plaintiff’s Electrical Shop also performs electrical
installations, electrical construction and voice/data maintenance and construction.
23.        On or about February 18, 2011, Plaintiff submitted a complaint to Mary Denisienko, Vice President
of Human Resources at PCH, which included Plaintiff’s claim that he was being discriminated against
because of his age.
24.        On or about March 4, 2011, Lash showed Plaintiff a file memorandum wherein Lash indicated that
Plaintiff did a great job on the emergency procedures and preventative maintenance procedures and that
Plaintiff satisfied what was required of him in the discipline issued on or about February 4, 2011. Plaintiff
asked Lash for a copy of this file memorandum but Lash refused to provide Plaintiff with a copy. Lash
then told Plaintiff that this file memorandum was written over by another document typed up by Lash and
was no longer saved on Lash’s computer.
25.        After Plaintiff complained about Lash, he was subjected to continued discrimination and
retaliation. Lash issued a second memorandum on or about March 8, 2011 to Plaintiff regarding alleged
performance deficiencies. Lash recanted the statements he made to Plaintiff on or about March 4, 2011
that were contained in the file memorandum. Lash said he has now scrutinized Plaintiff’s work and there
are areas which require additional work in order to meet departmental and Joint Commission
requirements that must be completed by March 25, 2011. Lash’s second memorandum was issued in
retaliation for Plaintiff’s complaint to Human Resources and in furtherance of PCH’s discriminatory
actions taken by PCH towards Plaintiff.    Throughout this time, Plaintiff continued to work hard and excel
at his job.
26.        On March 24, 2011, Plaintiff told Lash that he completed the tasks and will enter three
maintenance procedures based upon his review. Lash said that he would look it over and get back to
Plaintiff. However, Lash never responded to Plaintiff any further.
27.        On or about March 28, 2011, Plaintiff filed a Charge of Discrimination against PCH based upon
Plaintiff’s age and for retaliation as a result of the Complaint made by Plaintiff about age discrimination.
Upon information and belief, PCH received the Charge within a few days of March 28, 2011 and
subsequently terminated Plaintiff’s employment.  
28.        Plaintiff was called to Human Resources on April 8, 2011. PCH Human Resources representative
Diane Pleines and Lash were present. Plaintiff was terminated. Diane Pleines handed to Plaintiff an
Involuntary Termination of Employment Report. Neither Diane Pleines nor Lash discussed the reasons
for termination with Plaintiff. Plaintiff was terminated from PCH because of his age and in retaliation for
his complaints to the EEOC and Human Resources about age discrimination. PCH claims that Plaintiff
was being terminated for performance, which was demonstrably false based on Plaintiff’s performance.
29.        Plaintiff’s termination was part of PCH’s campaign to terminate and or demote older workers.
Around this same time, PCH terminated and/or demoted other successful employees over the age of 40
in a similar manner and for similarly pretextual reasons.
30.        On April 8, 2011, PCH terminated Plaintiff and escorted Plaintiff from his place of employment at
PCH by a security guard.
31.        Plaintiff inadvertently left at PCH a computer memory stick which contained private and confidential
information including information relating to a disease in his brain. Plaintiff requested PCH to return the
memory stick but PCH refused to do so.
Plaintiff was Injured as a Consequence of Defendants’ Unlawful Conduct.
32.        Plaintiff lost wages and other benefits, suffered embarrassment and humiliation, and his career
was irreparably injured as a result of PCH’s conduct. Plaintiff suffered loss of enjoyment of life,
inconvenience and other non-pecuniary losses as a direct result of PCH’s conduct.
33.        PCH’s actions have caused and continue to cause Plaintiff substantial losses in earnings,
management opportunities and other employment benefits and opportunities, in an amount to be
determined by a jury.
34.        The Social Security Administration determined that Plaintiff was disabled as of April 1, 2011.
35.        A finding of disability by the Social Security Administration does not mean that a person is
unqualified to perform work.  See Overton v. Reilly, 977 F.2d 1190, 1196 (7th Cir. 1992).  
36.        Plaintiff is qualified to perform the essential functions of the position he held as an electrical
supervisor with reasonable accommodations. At the time Plaintiff was employed by Palos Community
Hospital, he did perform the essential functions of his job competently but it required  taking breaks in his
office when he suffered from pain, fatigue, migraine, headaches or periodic episodes of temporarily
blindness, and writing notes to compensate for any delayed memory recall and eliminate any confusion
he had in changes in routine. Unfortunately, Palos Community Hospital employees caused Plaintiff to
suffer extreme emotional distress which caused him to ignore his health issues from the fear and
intimidation instilled in him.
37.        Plaintiff hereby requests that he be immediately reinstated to his position as an electrical
supervisor with reasonable accommodations.
COLLECTIVE ACTION ALLEGATIONS
38.        Pursuant to 29 U.S.C. section 626 of the ADEA, which incorporates 29 U.S.C. section 216(b), this
matter is brought as a collective action on behalf of Plaintiff and all other employees similarly situated.
39.        Individuals similarly situated to Plaintiff include all of PCH’s former employees at or over the age
of forty, were unlawfully terminated and/or demoted.
40.        There are numerous similarly situated PCH employees and former employees who have been
unlawfully terminated and/or demoted, and who should be notified of an allowed to opt-in to this action,
pursuant to the ADEA’s opt-in provision. Many of these persons similarly situated to Plaintiff likely would
not otherwise be able to pursue their claims without the assistance of this collective action.
41.        PCH has knowledge of the identity of these similarly situated employees, and can readily locate
them so that notice of this action can be issued to them.
COUNT I
UNLAWFUL TERMINATION IN VIOLATION OF THE ADEA AGAINST PCH
42.        Plaintiff and all others similarly situated reallege the paragraphs preceding this count and
incorporate them by reference as if fully stated herein.
43.        The ADEA makes it unlawfully for an employer to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his or her compensation, terms,
conditions or privileges of employment because of such individual’s age. The ADEA also makes it
unlawful for an employer to limit, segregate, or classify employees in any way that would deprive or tend to
deprive any individual of employment opportunities or otherwise adversely affect his status as a employee
because of such individual’s age.
44.        Plaintiff, on behalf of himself and all others similarly situated, alleges differential treatment and
disparate impact theories of liability under the ADEA.
45.        By its conduct described herein, PCH subjected Plaintiff and all others similarly situated to age
discrimination in violation of the ADEA.
46.        PCH violated the ADEA by terminating Plaintiff on account of his age, and by otherwise treating
Plaintiff worse than younger workers.
47.        Plaintiff and others similarly situated were harmed as a result of PCH’s conduct.
COUNT II
RETALIATION UNDER THE ADEA AGAINST PCH
48.        PCH took adverse action against Plaintiff, including by his termination, based on his engaging in
protected activity, in violation of the ADEA.
49.        Plaintiff was harmed by PCH’s retaliation against him for engaging in protected activity.                 
COUNT III
RETALIATION UNDER STATE LAW AGAINST PCH
50.        PCH’s actions in terminating Plaintiff for complaining to PCH’s Human Resources department
and to the EEOC constitute wrongful retaliation under the laws of the State of Illinois.
51.        Plaintiff was harmed by PCH’s retaliation against him for engaging in protected
activity.


COUNT IV
BREACH OF AGREEMENT AGAINST PCH
52.        There existed an agreement between PCH and Plaintiff whereby PCH agreed to engage in
progressive discipline before terminating Plaintiff as set forth below. Said progressive discipline included
suspension prior to termination.
53.        PCH failed to follow its agreement by terminating Plaintiff without following its progressive
discipline agreement with Plaintiff.
54.        Plaintiff has been harmed by PCH’s actions.
55.        Palos Community Hospital Human Resource Policy Manual 951.001 states:
"'The purpose of the Palos Community Hospital (PCH) Human resources Policy Manual is to provide
guidelines for department heads/managers and staff in accomplishing their work goals and furthering the
mission of PCH." It further states: " The policies in the human Resource policy apply to all exempt and
non-exempt, regular and temporary, full-time and part-time employees of PCH except where indicated (or
written) in language of a specific policy."
56.        Policy 951.001 explicitly states the Human Resource Manual is to provide
guidelines including staff not just management confirming it was meant for all employees.
57.        The Employee Complaint Procedures 951.707 is part of the Human Resource
Manual. The complaint process afforded an employee has five defined steps relating to disciplines,
suspension and termination of employment.  Further Employee Counseling Corrective Action & Work
Improvement 951.708 makes the policies in the Human Resource Manual mandatory or an employee will
be disciplined stating:  "In order to achieve the mission of Palos Community Hospital, policies,
expectations and guidelines for employee conduct have been established. When these standards are not
met, procedures for corrective action and work improvement will be implemented."
58.        The Employee Counseling Corrective Action & Work Improvement 951.708
states: "In order to achieve the mission of Palos Community Hospital, policies, expectations, and
guidelines for employee conduct have been established. When these standards are not met, procedures
for corrective action and work improvement will be implemented."The language "will be implemented" is
definite and mandatory.
59.        The Employee Counseling Corrective Action & Work Improvement 951.708
makes the policies in the Human Resource Manual themselves mandatory or an employee will be
disciplined.
60.        The Employee Counseling Corrective Action & Work Improvement 951.708
states: "The Vice President of Human Resources is responsible for prior approval of suspensions or
terminations of employment."  The language "prior approval "is definite and mandatory.
61.        The Employee Counseling Corrective Action & Work Improvement  951.708
states: "Note: The formal Corrective Action and Work improvement procedures apply only to employees
who have successfully completed their initial review period upon hire with Palos Community Hospital.
Employees in the initial review period may be released at any time during their review period with the prior
approval of the Vice President of Human Resources."   The language "with the prior approval" is definite
and mandatory.
62.        The Employee Complaint Procedures 951.707 states: "This policy for complaint
procedures is the exclusive mechanism for resolving employee complaints within Palos Community
Hospital."  The language "is" is definite and mandatory'
63.        The Employee Complaint Procedures 951.707 Step 3 states: "The investigation
may include a review of relevant Documentation and meetings with the employee, the employee's
supervisor or other individuals with knowledge related to the complaint. A written response to the
complaint is sent to the employee by the Vice President of Human Resources as soon as practicable
depending on the complexity of the complaint." The language "is" is definite and mandatory.
64.        The Employee Complaint Procedures 951.707 Step 4 states: "The employee must
send the complaint appeal letter to the Vice President of Human Resources. A response to the appeal
will be sent to the employee by the Vice President as Soon as Practicable." The language "will" is definite
and mandatory.
65.        The Employee Complaint Procedures 951.707 states: "If the complaint involves a
suspension, termination of employment or alleged discrimination the employee may make a final appeal
to the president. A final decision, in writing, will be sent to the employee from the President as soon as
practicable." The language "will" is definite and mandatory.
66.        Palos Community Hospital Human Resource Policy Manual 951.001 states: "The
policies in the Human Resource policy apply to all exempt and non-exempt, regular and temporary, full-
time and part-time employees of PCH except where indicated (or written) in language of a specific policy."
The language "apply to all" is definite and mandatory.
67.        The Palos Community Hospital Employee Counseling, Corrective Action & Work
Improvement policy 951.708 guarantees an employee progressive disciplinary action regarding rule
violations. This policy states: "When these standards are not met, procedures for corrective action and
work improvement will be implemented." And "Note: The formal Corrective Action and Work Improvement
apply only to employees who have successfully completed their intitial review period upon hire with Palos
Community Hospital. Employees in this initial review period may be released at any time during their
review period with the prior approval of the Vice President of Human Resources.
68.        The Employee Counseling Corrective Action & Work Improvement 951.708
policy has four steps each of which is used for a specific level of deficiencies and/or misconduct.
Step 1: Verbal Counseling:  Work performance deficiencies and/or misconduct.
Step 2: Written Counseling: Behaviors or violations which a supervisor considers serious or where
previous counseling has not helped in changing unacceptable behavior or performance.
Step 3: Suspension: Behaviors or violations which are clearly serious according to conduct guidelines or
where previous verbal counseling or written counselings have not helped in changing behaviors.
Step 4: Termination of Employment: Termination of employment may occur when previous corrective
action or work improvement processes have not resulted in changing the unacceptable behavior.
Termination of employment may also occur if the employee commits a major violation of Palos
community Hospital rules of conduct.
69.        It is established in Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill. 2d
482, 505 N.E.2d 314, 318, 106 Ill. Dec. 8 (Ill. 1987) that immediate dismissal for extremely serious
offenses is warranted however in non immediate-dismissal situations failure to provide the plaintiff with
the required process violates contractual rights by not following progressive disciplinary procedures the
employee was entitled. Plaintiff did not commit any offense that required immediate dismissal.
70.        The Palos Community Hospital Employee Counseling Corrective Action & Work
Improvement policy 951.708 is a policy for progressive disciplinary action which by Personnel Policy
951.708 "will be implemented", is absolute in application, it may be initiated at one of four steps based on
severity of offense and the policy does not provide for skipping steps once the disciplinary action is
initiated.
71.        The introduction of Palos Community Hospital Policies and Procedure Manual
951.001, Statement of Policy states the following:
"The Human Resources Policy Manual responds to many complex legal and general employment issues
affecting everyone in the workplace. PCH reserves the right to amend, modify or discontinue all or any part
of the policies, procedures and/or programs covered in this manual to conform to legal or organization
needs. In the event that there is an inadvertent unlawful statement in the policy manual, the law takes
precedence and the statement is null and void. Additionally, particular situations may be governed by
formal plan documents established for the benefit programs. The manual serves as an overall guideline
and nothing in this manual constitutes an employment contract between PCH and any of its employees.
Emloyment with and compensation from PCH is not guaranteed and may be ended by the employee or
PCH at any time. "
72.        The Palos Community Hospital Policies and Procedure Manual 951.001
states"The purpose of the Palos Community Hospital (PCH) Human Resources Policy Manual is to
provide guidelines for department heads/managers and staff in accomplishing their work goals and
furthering the mission of PCH."
73.        The Palos Community Hospital Policies and Procedure Manual provides an
employee code of conduct, disciplinary procedures and grievance procedures.
74.        The Palos Community Hospital Policies and Procedure Manual provides that
employees are subject to immediate dismissal, even for a first time offense.  Palos Community Hospital
Employee Counseling, Corrective Action & Work Improvement policy 951.708 states: "Termination of
employment may also occur if the employee commits a major violation of Palos Community Hospital
rules of conduct."
75.        The Palos Community Hospital Employee Counseling, Corrective Action & Work
Improvement policy 951.708 uses a much stronger wording guaranteeing an employee progressive
disciplinary action regarding rule violations. Palos Community Hospital states: "When these standards
are not met, procedures for corrective action and work improvement will be implemented. These
procedures are verbal warning, written reprimand, suspension, and termination.
76.        The Palos Community Hospital Policies and Procedure 951.708 States: "The Vice
President of Human Resources is responsible for prior approval of suspensions or terminations of
employment.
77.        The Palos Community Hospital Policies and Procedure Employee Complaint
Procedures 951.707 states: Palos Community Hospital provides procedures for employees to raise
complaints in connection with their employment. The complaint procedure includes a five-step process,
with the employee first discussing the problem or complaint with the immediate supervisor. If there is no
satisfactory resolution, the second, third, fourth and fifth steps provide for the presentment of the issue to
their department head, to the Vice President of Human Resources, to the appropriate Vice President and
finally to the President, respectively.  At step three the Human Resource department will review and
investigate the complaint which may include a review of relevant documentation and meetings with the
employee, the employee's supervisor or other individuals with knowledge related to the complaint.  The
Vice President of Human Resources department will send the employee a response. At step-four the
appropriate Vice President will send a response to the employee. Step-five states:  "If the complaint
involves a suspension, termination of employment or alleged discrimination the employee may make a
final appeal to the president. A final decision, in writing, will be sent to the employee from the President as
soon as practicable." Step-five by policy assures every employee the right of appeal through an
established complaint procedure from an unfavorable decision affecting his employment. "A final
decision, in writing, will be sent", is a definite and mandatory statement.
78.        Palos Community Hospital Policies and Procedure Employee Complaint
Procedures 951.707 similarly states: "The procedures are established to resolve complaints in a fair,
equitable and non-adversarial manner for prompt response without recrimination or reprisal."  And "This
policy for complaint procedures is the exclusive mechanism for resolving employee complaints within
Palos Community Hospital."
79.        The Palos Community Hospital Employee Counseling, Corrective Action & Work
Improvement policy 951.708 states:  "In order to achieve the mission of Palos Community Hospital,
policies, expectations and guidelines for employee conduct have been established. When these
standards are not met, procedures for corrective action and work improvement will be implemented."
80.        The unequivocal language used by Palos Community Hospital in the policy
manual stating "procedures for corrective action and work Improvement will be implemented" and "The
Vice President of Human Resources is responsible for prior approval of suspensions or terminations of
employment." create enforceable contractual rights for disciplinary procedures despite any disclaimer
which is ineffective.  
81.        Plaintiff believed an offer was made that the Human Resource Personnel policy
manual contained policies that were promised be followed which Plaintiff accepted when he was hired.
82.        Palos Community Hospital Policies and Procedure Employee Complaint
Procedures 951.707 in step-five requires the President to review the final appeal and a final decision in
writing will be sent to the employee. The final decision letter from the President did not respond to any of
the issues the Plaintiff raised in appeal stating she relied on the conversation with Marty Baron and Mary
Denisenko. The final appeal to the President by the plaintiff was based on new information for the reason
he was terminated which was held secret from the plaintiff by Palos Community Hospital till Ken Lash
testified under oath before an unemployment hearing judge. This new information substantiated the
plaintiff was wrongfully terminated but was not addressed in the final appeal response from the
President. This was an improper and incomplete investigation into Plaintiff’s appeal.  
COUNT V
DEFAMATION IN CONNECTION WITH DISCIPLINARY
MEMORANDA AGAINST KEN LASH

83.        The disciplinary actions issued by Lash and his written memoranda, which were distributed to
others including, but not limited to Marty Baron, constitutes defamation which thereby harmed Plaintiff.
84.        Leyshon v. Diehl Controls North American, 407 Ill. App. 3d 1, 15, 946 N.E. 2d
864, 872 (1st Dist. 2010), the court ruled, "just because a word may have an innocent meaning does not
require that it be innocently constructed. The context in which the words or statement were uttered also
must be considered."
The plaintiff alleges that Ken Lash defamed him by distributing disciplinary memoranda and Corrective
Action Form to others.
85.        On February 4, 2011 Plaintiff sent Ken Lash an e-mail stating: "As supervisor of
the electrical shop my job description states, "Supervise work performed to assure it conforms with
established procedures, policies and regulations." Maintaining the database, to establish and create
maintenance procedures I believe to be at a job level above mine."
86.        Ken Lash immediately on February 4, 2011 responded to Plaintiff's e-mail with a
formal Corrective Action Form with the reason "Failure to fulfill job duties" and an attached disciplinary file
memorandum. A genuine copy of the Corrective Action Form and File Memo dated February 4, 2011 is
attached hereto as Exhibit A.  Specifically, Lash wrote in the memorandum that "[Mirocha's] most
significant failure as the electrical supervisor has been his inability to identify what his job duties are and
then to work well independently."  Failure to fulfill job duties is a violation of hospital policy when
combined with the Corrective Action Form stating: "see attached memo" Ken Lash's statement taken in
context defamed Mirocha.  
87.        In his February 4, 2011 file memoranda Ken Lash states: "Currently, the hospital's
Utilities Management Program is in jeopardy if the Joint Commission inspection would occur soon
because [Plaintiff] failed to perform the infrared scanning tests on the hospital's electrical infrastructure in
2010 when it was due for inspection. It was [Plaintiff's] responsibility to see that these tests were
performed on-time and to bring it to my attention if there was a problem. It was only after these issues
were brought to light in January was the infrared testing scheduled to be completed in February 2011."
This false statement made by Ken Lash is false especially when taken in context it defamed Mirocha. The
infrared scan testing was never part of the Utilities Management Program and even if it was the goal of the
Utilities Management Program is a 95% completion rate, and at the time of Lash's memoranda the
infrared scanning was a single maintenance task which would have little impact on the percentage of
completion. In seven years of being the Electrical Supervisor, no employee was disciplined or terminated
for any of the over 5% consistently non-completed Utilities Management Program maintenance routines.
In December of 2010, Plaintiff told Lash that he was moving the infra-red scanning forward to be done in
2011 based on manpower issues.
88.        In his February 4, 2011 file memoranda Ken Lash further states: "The foundation
of the entire department depends on an accurate database and [Plaintiff’s] neglect of this over the years
has lead to the desperate state that he is in now. [Plaintiff] has been employed at Palos Community
Hospital since September 2003 and any database inadequacies that exist are his responsibility and not
his predecessors." This statement made by Ken Lash is false especially when taken in context it
defamed Mirocha it was outside of Plaintiff's control and above his authority to implement an entirely new
20 million dollar electrical infrastructure and Plaintiff did not violate Hospital policy which requires
equipment to be entered into the database when the equipment is put into service as Lash falsely states.
89.        In his February 4, 2011 file memoranda Ken Lash states: "On December 30, 2010,
[Plaintiff] was given a deadline of 30 days to bring the Electrical Department's database into full
compliance including the tasks of entering all incoming inspections of new equipment, providing
completeness of all data entries, setting up the correct PM procedures, and updating the emergency
procedures. All of these tasks are a requirement for the position of the electrical supervisor and are
addressed in the job description as well as various departmental policies. Failure of maintaining an
accurate electrical database will result in non-compliance with Joint Commission standards, as well
causing an unsafe environment, as equipment is not properly maintained." This statement made by Ken
Lash is false and when taken in context it defamed Mirocha. By job description, the electrical supervisor is
to supervise work performed to assure it conforms with established procedures, policies and regulations.
Pursuant to the "Equipment Management Program" policy, department managers are to enter all
information and are responsible for setting up comprehensive preventive maintenance schedule for each
piece of equipment. Plaintiff was not a department manager. Ken Lash was the department manager.
90.        In his February 4, 2011 file memoranda, Ken Lash states: "While [Plaintiff] has
made significant improvements in the state of the database during January, an unbiased assessment
would indicate that more work needs to be done and he has missed the goal of full compliance within the
30 day window." This statement made by Ken Lash is false especially when taken in context it defamed
Mirocha. Mirocha completed the original task of entering all equipment into the electrical panel database.
Ken Lash and Marty Baron had the electrical panel database moved into the equipment database three
days before the 30 day deadline and thereby sabotaging any chance Mirocha had to meet the deadline a
second time by adding 350 panels with over 1050 additional entries to be researched throughout a 2
million square foot facility and then be entered into the database.
91.        The statement made by Ken Lash in the February 4, 2011 formal Corrective
Action Form with the reason "Failure to fulfill job duties" is false, defamatory per se and not reasonably
capable of an innocent construction when read in conjunction with Ken Lash's attached file memoranda.  
Taken in context, the file memoranda falsely states that Plaintiff failed to fulfill his job duties which is a
violation of hospital policy. Ken Lash used Mirocha as a scapegoat to cover up Lash’s failure to do work
he himself was responsible to perform. Ken Lash's statements taken in context cannot reasonably be
construed as having an innocent meaning.
92.        Ken Lash published his defamatory statements by distributing the Involuntary
Termination of Employment Report form to other persons at the hospital.
93.        Ken Lash stated in Plaintiff’s Involuntary Termination of Employment Report
dated April 8, 2011 that Plaintiff was terminated for his "Failure to fulfill job duties." This statement is false
and not reasonably capable of an innocent construction.
94.        Ken Lash knew that  his statements were false at the time he made them yet sent
them to other corporate officials and/or employees of the hospital.  Palos Community Hospital abused its
qualified privilege knowing Ken Lash acted with actual malice, Marty Baron was aware the panel
database was moved into the equipment database, thereby abusing the privilege.
95.        Defendant’ statements impute to Plaintiff a lack of integrity in the discharge of
Plaintiff’s employment duties and also constitute words which result in prejudice to Plaintiff’s trade or
profession.  The foregoing statements are defamatory per se and damaged Plaintiff in his trade or
profession as electrical supervisor.                

COUNT VI
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST PCH
96.        After Ken Lash gave Mirocha the verbal discipline on December 30, 2010 with
the 30 day deadline Ken Lash added 16 new job tasks, intentionally setting Mirocha up for failure and
creating impossible deadlines in at least the following ways:
a.        Two weeks into the 30 day discipline, Ken Lash added the task of requiring Plaintiff to perform
preventative maintenance procedures with manufacturer recommended maintenance.
b.        Three days before the 30 day discipline was up, Ken Lash and Marty Baron had the electrical panel
database moved into the electrical equipment database which created the task of requiring Plaintiff to
research and enter over 1050 new data entries into the database.
c.        On February 4, 2011 Ken Lash added the task of requiring Plaintiff to complete the infra-red
scanning maintenance routine.
d.        On February 4, 2011 Ken Lash added the task of requiring Plaintiff to update emergency
procedures.
e.        On March 8, 2011 Ken Lash added the task of requiring Plaintiff to write procedures for responding
to all utility system disruptions.
f.        On March 8, 2011,  Ken Lash added the task of requiring Plaintiff to survey Chicago area hospitals
and electrical contractors.
g.        On March 8, 2011, Ken Lash added the task of requiring Plaintiff to use sales order numbers as
serial numbers in some cases for database fields.
h.        On March 8, 2011, Ken Lash added the task of requiring Plaintiff to add major events and repairs for
new Central Plant electrical equipment retroactively into the database.
I.        On March 8, 2011, Ken Lash added  the task of requiring Plaintiff to correct 5 errors in data entry out
of thousands which were a result of bad information given to Mirocha by the people Ken Lash directed to
gather the information to give to Mirocha.
j.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to perform maintenance
procedures to be cost effective solutions that balance reliable maintenance and impact on hospital
operation.
k.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to take advantage of the different
layers of redundancy that have been designed, such as closed transition switching, to minimize hospital
impact.
l.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to determine a method to plan
when maintenance should be performed and to attempt to spread out costs, hospital operations and
manpower issues.
m.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to verify the list of emergency
contact telephone numbers.
n.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to change the pm frequency
and/or make the database do something it was not capable of doing because the database did not
automatically handle pm frequencies that are not a multiple of each other.
o.        On March 16, 2011, Ken Lash added the task of requiring Plaintiff to have preventative maintenance
procedures identify which maintenance tasks will be performed by outside electrical contractors.
97.        Ken Lash and Marty Baron set up obstacles to Mirocha performing his job in at
least the following ways:
a.        Plaintiff was instructed to refrain from talking to the electrical contractor installing the electrical
equipment that Mirocha was required to enter into the database. Mirocha was instructed to figure out an
entire 20 million dollar electrical infrastructure without talking to the installers.
b.        Plaintiff was instructed to refrain from discussing the electrical infrastructure or electrical
maintenance procedures with Tony Maiellaro who was the manager of plant engineering.
98.        Ken Lash and Marty Baron sabotaged Plaintiff's work by moving the electrical
panel database into the electrical equipment database.  Plaintiff and his electrical staff for the month of
January 2011 researched 350 electrical panels, counted the number of each amp rating of circuits for
each panel, and entered the number of each amp rating of circuits for each panel in the electrical panel
database to comply with the 30 day discipline deadline. All the information and work done on the electrical
panel database was thrown away when the database was moved.
99.        Moving the electrical panel database into the electrical equipment database three
days before the end of the 30 day discipline deadline added 350 panels to research and required over
1050 new data entries to be entered into the database.
100.        Defendants’ conduct was extreme and outrageous.  Ken Lash intended that and
knew his conduct inflicted severe emotional distress and Plaintiff advised Ken Lash that Lash was
causing him distress. Defendants committed a tort independent of any duties not to discriminate against
Mirocha. The conduct Mirocha alleges is not just age discrimination; instead, Mirocha alleges a pattern of
behavior by the defendants that created impossible deadlines, set up obstacles to Mirocha performing
his job, and sabotaged Mirocha's work. It is clear that Mirocha's claim rests not just on behavior that is
based on age discrimination, but rather behavior that is a tort no matter what the motives are of the
defendant. The defendants’ conduct did cause severe emotional distress to Plaintiff.
101.        PCH, through the acts complained of above, engaged in conduct which was repeated and
intentionally caused Plaintiff to suffer damages and injury, including extreme and severe emotional
distress, for which PCH is liable and Plaintiff is entitled to relief as set forth in his prayer for relief.                
COUNT VII

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST PCH

102.        PCH, through the acts complained of above, engaged in conduct which was negligent and
caused plaintiff to suffer damages and injury, including extreme and severe emotional distress, for which
PCH is liable and Plaintiff is entitled to relief as set forth in his prayer for relief.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiff and all others similarly situated respectfully requests that this Court find in
their favor and against Defendant as follows:
Collective Action Relief
a.        Declare that his matter be maintained as a collective action under 29 U.S.C. § 216(b) on behalf of
the class of similarly situated individuals identified above, and that the Court issue notice to all similarly
situated Collective Action members to provide them notice of this action, the nature of the claims, and of
their right to join this lawsuit;

b.        Declare on behalf of Plaintiff individually and all others similarly situated that the acts and conduct
of Defendant violate the ADEA;

c.        Enter an appropriate injunction compelling Defendants to cease and desist from the wrongful
practices here alleged and hereafter established;

d.        Award Plaintiff and all others similarly situated the value of all compensation and benefits lost as a
result of Defendant’s unlawful conduct;

e.        Award Plaintiff and all others similarly situated the present value of all compensation and benefits
they lost and/or will lose in the future as a result of Defendants’ unlawful conduct;

f.        In the alternative to paragraph (f), reinstate Plaintiff and all others similarly situated with appropriate
promotions and seniority and otherwise make Plaintiff and all others similarly situated whole;

h.        Award Plaintiff and all others similarly situated liquidated damages under the ADEA and the
OWBPA;

I.        Award Plaintiff and all others similarly situated prejudgment interest;

j.        Award Plaintiff and all others similarly situated reasonable attorneys’ fees, costs and
disbursements; and

k.        Award Plaintiff and all others similarly situated such other relief as this Court deems just and
proper.
                          
Individual Relief

l.        Plaintiff incorporates by reference paragraphs (a) through (k) as paragraphs (a) through (k) of the
prayer for relief for his individual claims;

m.        Declare that the acts and conduct of Defendant violated the provisions of the ADEA;

n.        Award Plaintiff the value of all compensation and benefits lost as a result of Defendants’ unlawful
conduct;

o.        Award Plaintiff the present value of all compensation and benefits he will lose in the future as a
result of Defendant’s unlawful conduct;

p.        In the alternative to paragraph (o), reinstate Plaintiff with reasonable accommodations, appropriate
promotions and seniority and otherwise make Plaintiff whole;

q.        Award Plaintiff liquidated damages under the ADEA;

r.        Award Plaintiff prejudgment interest;

s.        Award Plaintiff reasonable attorneys’ fees, costs and disbursements;

t.        Award Plaintiff punitive damages;

u.        Award Plaintiff all other damages available under the law; and

v.        Award Plaintiff and all others similarly situated such other relief as this Court deems just and proper.

DEMAND FOR A JURY TRIAL

Plaintiff hereby demands a jury trial as provided by Rule 38(a) of the Federal Rules of Civil
Procedure.                 
                  Respectfully submitted on behalf of Plaintiff
                  and those similarly situated,

  
                  By: /s/Joseph P. Berglund________________
                        One of the Attorneys for the Plaintiff

Joseph P. Berglund
BERGLUND ARMSTRONG & MASTNY, P.C.
1010 Jorie Boulevard, Suite 370
Oak Brook, Illinois 60523
(630) 990-0234
Atty. No. 06202851





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Plaintiff's First Amended Complaint

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