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Case 1:17-cv-01783-CMA-NYW Document 32 Filed 11/01/17 USDC Colorado Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No: MICHAEL KILEY; Plaintiff

v.

JEFFERSON COUNTY PUBLIC SCHOOL DISTRICT, et al

JOSEPHINE GALLAGHER, in her official capacity.

Defendants

SECOND AMENDED COMPLAINT


______________________________________________________________________________

Michael Kiley, by and through his undersigned attorney, hereby brings this Complaint

against the above-named defendants.

PARTIES

1. Michael Kiley (Kiley} is an individual and a resident of Colorado

2. Jefferson Pubic School District R-1 is a school district within Colorado, with a business address of

1829 Denver West Drive, Building #27 Golden, Colorado 80401.

3. Josephine Gallagher (Gallagher) is an individual, a resident of Colorado, and is, or was Director of

West Terminal with a business address of 7000 HWY 73, Evergreen, Colorado 80439. Gallagher is sued

in her capacity.

JURISICTION

4. The purpose of this action is to redress and restrain acts or practices by Defendants which federal

law deems unlawful.

4.a The EEOC has issued the Plaintiff a Right to Sue, stating Plaintiff could file a civil action under The

Americans With Disabilities Act within ninety (90) days of the date on which he received such Notice of

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Dismissal and Right to Sue. This Complaint has been filed within ninety (90) days of knowledge and

receipt of the Notice of Dismissal and Right to Sue.

5. The Court has original jurisdiction over the subject matter of these claims pursuant to 28 U.S.C.

1331 and 1337. This action is authorized and instituted pursuant to the Americans with Disabilities

Act, 42 U.S.C. 12181, et seq. (ADA)

6. Defendants are employers as that term is defined in the relevant statutes.

7. Venue for this action properly lies in the District of Colorado pursuant to 28

U.S.C. 1391(b).

NATURE OF THIS ACTION

8. This case arises out of the actions of Defendants in (a) discriminating against Mr.

Kiley on the basis of his disability, real or perceived by Defendants, by, among other actions,

subjecting him to adverse terms of employment to which similarly situated non-disabled workers

were not subjected, failing to promote and/or hire him for positions for which he was more

qualified than the person hired, and terminating him without cause, in violation of federal law

prohibiting discrimination on the basis of disability, and (b) wrongfully terminating him in

violation of public policy.

FACTUAL ALLEGATIONS

Background

9. Michael Kiley is a 68-year old male and a former employee of the Jefferson County Public School

District.

10. Mr. Kiley served as Substitute School Bus Driver for approximately four and one/half months prior

to starting as a permanent employee with Jefferson County Public Schools District. Mr. Kiley worked as

a Regular School Bus Driver from August 2017, until December 9, 2017, when he was terminated.

11. At all times throughout his employment, Mr. Kiley performed his job duties in an excellent manner.

Prior to December 9, 2017, he had no reprimands or other disciplinary action in his personnel file.

12. At all times, during Mr. Kileys employment with Jefferson County Public Schools District, Josephine

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Gallagher served as Director of the West Transit and served as the supervisory contact over Mr. Kiley.

Discrimination on the Basis of Disability

13. Mr. Kiley was diagnosed with a hearing loss in March of 2001. Mr. Kileys hearing loss was

diagnosed at 25/26% of normal conversational range and required the use of hearing aids.

14. On or April 20. 2016 about Mr. Kiley requested he be provided a bus with a rear engine which

created much less noise and would have accommodated his hearing loss, but Ms. Gallagher

categorically denied the request for that specific accommodation, nor did she offer any other

accommodation suggestions.

15. Defendants never entered into any interactive dialogue with Mr. Kiley even though he requested

reasonable accommodation in the manner of continuing to use the smaller bus which Mr. Kiley was

allowed to opt for under the CBA. The smaller bus was quieter and accommodated Mr. Kileys hearing

loss. Ms. Gallagher inexplicably took the accommodating small bus away from Mr. Kiley with no

reasonable explanation of why and categorically advising Mr. Kiley it was done.

16. On or about November 17, 2017, Mr. Kiley, in order to retain his employment and at considerable

expense to Mr. Kiley, purchased much more powerful over the ear hearing aids which had a bus setting

which enabled Mr. Kiley to hear the radio transmissions more clearly.

17. Defendants treated him differently, and less favorably than similarly situated non-disabled

employees. For example:

(a) Provided a bus attendant for other drivers, but failed to accommodate Mr. Kileys request for

(b) bus assistant which would have alleviated the problem for which he was fired, childrens

misbehavior. This was a pretext to the firing of Mr. Kiley.

18. Mr. Kiley was diagnosed with a hearing loss in March of 2001. Mr. Kileys hearing loss

diagnosed at 25/26% of normal conversational range and required the use of hearing aids.

19. Defendants never entered into any interactive dialogue with Mr. Kiley about his

disability or perceived disability. Instead, after and during the time Mr. Kiley requesting

accommodation, Defendants treated him differently, and less favorably than similarly

situated non-disabled employees. For example:

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a. A female dispatcher who had a speech impediment which made it difficult or school bus drivers

to understand her inquiries and instructions over the radio led the Jefferson County Public school

District to provide accommodation for her speech impediment in the manner of having the electronics

of the dispatch panel upgraded and then inquired of the school bus drivers whether or not there was

improvement in the understandability of the female dispatcher.

b. Defendants continually accosted Mr. Kiley claiming he never answered the radio which

demonstrates Defendants knowledge of Mr. Kileys disability.

Effects of Defendants Actions

20. As a result of Defendants actions, Mr. Kiley suffered severe emotional and physical distress.

Emotionally, Mr. Kiley suffered and continues to suffer, among other effects, feelings of being violated

and victimized, anxiety, fear, anger, shame, humiliation, loss of enjoyment of life, depression,

nightmares and insomnia. Physically, Mr. Kiley suffered and continues to suffer, among other effects,

loss of sleep, nightmares, loss of appetite, nausea, migraine headaches, bouts of anxiety, and loss of

enjoyment of life.

21. Mr. Kiley has also suffered and continues to suffer economic damages from the actions of the

Defendants, including, but not limited to lost wages and benefits, and the necessity of incurring

substantial attorneys fees and costs.

VIOLATIONS ALLEGED

22. As to each of the following claims for relief, paragraphs 1 through 21 above are

incorporated by reference and re-alleged as if fully set forth in each separate claim.

CLAIMS

First Claim (Violation of Americans with Disabilities Act)

23. Mr. Kiley was disabled at all times relevant to this matter, and/or Defendants regarded Mr. Kiley as

disabled.

24. Through the actions, described above, especially those actions of Defendants:

a. In subjecting Mr. Kiley to adverse working conditions to which similarly-situated non-disabled

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employees were not subjected;

b. In terminating Mr. Kiley without cause; and

c. In failing to promote Mr. Kiley to the open position for which he had qualified under the CBA;

the Defendants discriminated against Mr. Kiley in violation of the Americans with Disabilities

Act, 42 U.S.C. 12181, et seq.

25. In its actions, the Defendants acted intentionally, and in a willful and wanton manner, having been

advised by Mr. Kileys disability on numerous occasions that discrimination was occurring.

28. As a result of Defendants actions, Mr. Kiley suffered damages, including but

not limited to those described above.

PRAYER FOR RELIEF

A. In view of all of the preceding, Mr. Kiley respectfully requests that this Court

award, adjudge and decree that:

(1) The conduct alleged is violative of federal and state law and of Mr. Kileys rights thereunder;

(2) In accordance with state and federal law,

(a) Defendants pay to Mr. Kiley an amount the exact total of which is presently undetermined

comprised of:

(I) The actual damages he has sustained and damages he will sustain in the future as a result of such

violations, economic and emotional, and

(II) Exemplary or punitive damages, as allowed under law;

(b) Mr. Kiley be awarded her costs of suit, including reasonable attorneys fees and costs;

(c) Mr. Kiley be awarded interest on the above; and

B. Mr. Kiley have such other, further and different relief as this Court deems just and proper.

DEMAND FOR JURY TRIAL

In accordance with Fed. R. Civ. P. 38(b), Plaintiff hereby demands a trial by jury.

Dated this 5th day of October, 2017.

Respectfully submitted:

/s/Shirley Pointer _____________________ Shirley Pointer Attorney at Law


PO Box 621, Conifer CO 80433 Ph: (303) 249-6513 Email: taylor-pointer@justice.com

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Attorney for Plaintiff

Address of Plaintiff:

13063 Lori Drive

Conifer, CO 80433