| IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PALOS COMMUNITY HOSPITAL, Judge:
an Illinois corporation, and KEN LASH,
Plaintiff JOSEPH MIROCHA (“Plaintiff”), on behalf of himself and all others similarly
situated, and for his 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.
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
14. Plaintiff was born on July 21, 1952. At all relevant times herein, Plaintiff was an
individual protected by the ADEA.
15. Plaintiff began his employment with PCH on or about October 6, 2003 as an
electrical supervisor in the electrical/physical plant department.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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
25. 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.
26. 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.
27. 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.
28. 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.
29. 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
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. On April 8, 2011, Plaintiff was escorted out from his place of employment at PCH
by a security guard.
36. 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.
37. 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
38. 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.
39. Upon information and belief, other individuals similarly situated to Plaintiff have
suffered damages as a result of PCH’s unlawful conduct described herein.
COLLECTIVE ACTION ALLEGATIONS
40. 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.
41. 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.
42. 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.
43. 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.
UNLAWFUL TERMINATION IN VIOLATION OF THE ADEA AGAINST PCH
44. Plaintiff and all others similarly situated reallege the paragraphs preceding this
count and incorporate them by reference as if fully stated herein.
45. 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
46. Plaintiff, on behalf of himself and all others similarly situated, alleges differential
treatment and disparate impact theories of liability under the ADEA.
47. By its conduct described herein, PCH subjected Plaintiff and all others similarly
situated to age discrimination in violation of the ADEA.
48. PCH violated the ADEA by terminating Plaintiff on account of his age, and by
otherwise treating Plaintiff worse than younger workers.
49. Plaintiff and others similarly situated were harmed as a result of PCH’s conduct.
RETALIATION UNDER THE ADEA, TITLE VII, AND SECTION 1981 AGAINST PCH
50. PCH took adverse action against Plaintiff, including by his termination, based on
his engaging in protected activity, in violation of the ADEA, Title VII, 42 U.S.C. 200 et seq.,
and 42 U.S.C. 1981 et seq.
51. Plaintiff was harmed by PCH’s retaliation against him for engaging in protected
RETALIATION UNDER STATE LAW AGAINST PCH
52. 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.
53. Plaintiff was harmed by PCH’s retaliation against him for engaging in protected
BREACH OF AGREEMENT AGAINST PCH
54. There existed an agreement between PCH and Plaintiff whereby PCH agreed to
engage in progressive discipline before terminating Plaintiff. Said progressive discipline
included suspension prior to termination.
55. PCH failed to follow its agreement by terminating Plaintiff without following its
progressive discipline agreement with Plaintiff.
56. Plaintiff has been harmed by PCH’s actions.
DEFAMATION IN CONNECTION WITH PLAINTIFF’S
TERMINATION AGAINST PCH
57. The foregoing manner in which PCH terminated Plaintiff and caused Plaintiff to
be escorted by his place of employment by a security guard as other people watched constitutes
defamation and thereby harmed Plaintiff.
DEFAMATION IN CONNECTION WITH DISCIPLINARY
MEMORANDA AGAINST KEN LASH
58. 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.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST PCH
59. 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.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST PCH
60. 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.
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.
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
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 they will lose
in the future as a result of Defendant’s unlawful conduct;
p. In the alternative to paragraph (o), reinstate Plaintiff with 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
1. 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
BERGLUND ARMSTRONG & MASTNY, P.C.
By: /s/Joseph P. Berglund________________
One of the Attorneys for the Plaintiff
Joseph P. Berglund
1010 Jorie Boulevard, Suite 370
Oak Brook, Illinois 60523