Case 2:06-cv-01431-AJS

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THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANEAN PESANTE, C.A. NO.

Plaintiff, JURY TRIAL DEMANDED

v. Electronically Filed

BOMBARDIER TRANSPORTATION,

Defendant.

COMPLAINT

Anean Pesante, sets forth the following in support of her Complaint against the

Defendants.

Statement of Jurisdiction

1. Anean Pesante, Plaintiff, invokes this Court’s jurisdiction over this matter by

virtue of 28 U.S.C. §1331, as Pesante raises federal claims, 42 U.S.C. §2000(e), and 42

U.S.C. §12101 et seq., and 29 U.S.C. §2617. Pesante also requests this Court assume

supplemental jurisdiction over her state law claims by virtue of 28 U.S.C. §1367.

Parties

2. The Plaintiff, Anean Pesante, is an adult individual who resides in the Western

District of Pennsylvania. She began her employment with Defendant, Bombardier

Transportation (“Bombardier”), in June 28, 1971, and worked there continuously for the

next 34 years, until her constructive discharge in 2005.

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3. Bombardier is a corporation which does business in the Western District of

Pennsylvania.

Count I

Claims Under Title VII

4. Anean Pesante filed a charge of discrimination under Title VII of the Civil Rights

Act in April of 2002 (hereinafter “first charge”).

5. Pesante filed the first charge because she was a victim of retaliation after she

complained about sexual harassment. Pesante had complained about sexual harassment

on the job, and was later given warnings and threats of discipline in retaliation for that

complaint.

6. The first charge with the EEOC was settled by Pesante and Bombardier.

7. However, after the first charge was settled, employees at Bombardier, including

Pesante’s supervisor, continued to harass and retaliate against her based upon her former

charge.

8. The harassment and retaliation took blatant and subtle forms. Pesante’s

supervisor was openly rude and disrespectful to her, repeatedly humiliated and verbally

abused her in front of other employees, demeaned her performance, and altered the terms

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and conditions of her employment in a variety of ways to punish her for having her filed

Title VII charges.

9. Eventually, Pesante’s supervisor began giving her unwarranted discipline and

treated her in a manner which interfered with her ability to perform her job.

10. In August 2005, Pesante was abruptly placed on a performance improvement

program, based upon false allegations that she was not productive or focused.

11. In September 2005, Pesante was given the option of being fired or resign, and

she resigned.

12. Pesante filed timely charges of discrimination based upon retaliation with the

Equal Employment Opportunity Commission. She provided the EEOC with information

concerning this retaliation and concerning other matters.

13. The EEOC conducted investigations and has now issued a right-to-sue letter.

14. Pesante has exhausted the administrative requisites to maintaining this action.

15. Pesante requests this Court assume jurisdiction over her claims under Title VII

and award her appropriate relief.

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Count II

State Law Claims

16. In March of 2004, Pesante suffered a work-related injury.

17. She reported an occupational injury or accident at the time to her supervisor,

Alex Cantini, and sought treatment from the plant physician, as well as seeking emergency

medical care.

18. In fact, Pesante fell on black ice and fractured a bone in her foot.

19. The fracture was either misdiagnosed or not detected by the plant physician

who reviewed Pesante’s x-rays. Pesante sought no immediate treatment for the fractured

bone.

20. However, the trauma to her right foot became so severe, by January of 2005,

that Pesante was suffering extreme pain and was forced to take time off from work.

21. In April of 2005, Pesante again consulted physicians about the cause of her foot

pain and was advised that, in fact, the foot had been fractured in March of 2004, and that

x-rays taken at the time of her injury showed the fracture.

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22. Pesante was on voluntary furlough for several months following the current

diagnosis of her foot injury. However Pesante, returned to work in July of 2005.

23. Pesante decided to pursue a workers’ compensation claim from her work-

related injury. In July 2005, she approached her supervisor and sought a copy of the

notice of occupational injury he had prepared at the time of the work-related accident.

24. She had numerous conversations with the plant nurse about the difficulty she

was having with her foot and spoke to the nurse about receiving accommodations.

25. When her supervisor learned that she intended to make a claim for workers’

compensation benefits arising out of the undiagnosed broken foot she had suffered

approximately a year before, he began a course of conduct to retaliate against her, which

ultimately resulted in her dismissal.

26. In fact, he falsely accused Pesante of not performing her job in a satisfactory

manner and placed her on a Performance Improvement Program.

27. The use of the Performance Improvement Program (PIP) was a ruse. There

was no intent to seek improvement of Pesante’s performance, which was not inadequate.

In fact, the PIP was used to intimidate and coerce Pesante into resigning from her job

which she had held for 34 years.

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28. The conduct was pursued because Pesante decided to assert rights and claim

to receive workers’ compensation and the company decided to retaliate against her for

raising that claim.

29. It is a violation of public policy for the employer to retaliate against an employee

because the employee seeks to make a claim for workers’ compensation.

30. The treatment constituted a wrongful discharge of Pesante, and her resignation

was forced. She was told that if she did not resign she would be fired.

Count III

Claim Under the Americans With Disabilities Act

31. Pesante was known by to suffer from disabilities, as that term is defined by the

Americans With Disabilities Act.

32. Her disabilities include suffering from post traumatic stress syndrome (PTSD)

and a disability associated with an untreated broken foot, which came about as a result of

a work-related injury, slipping while at work on black ice.

33. Pesante requested accommodations because of her disability from Bombardier.

34. As Pesante started developing problems with these two disabilities, Bombardier

began a pattern of harassment and unfair treatment.

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35. It became increasingly difficult for Pesante to perform her duties, due to her

work-related injury, without accommodations, because she had difficulties standing all day

long.

36. Pesante’s work-related injury was initially diagnosed incorrectly by the plant

physician.

37. In July of 2005, Pesante approached her supervisor and advised her supervisor

that she wished to see the notice of occupational accident and injury completed at the time

of the fall. Pesante had never acted on that notice to that point, because the fracture been

undetected by the plant physician.

38. These requests for accommodations, made shortly before her termination, were

not granted. However, her disability became a determination factor in her termination.

39. Pesante provided information to the EEOC which should have led the EEOC

to investigate her claims under the ADA had it conducted a reasonable investigation of her

claims.

40. Had the EEOC acted upon the information that Pesante provided, or attempted

to provide, concerning her disabilities and her efforts to secure accommodations, a

reasonable investigation under the EEOC would have included an investigation of

Pesante’s claims that her rights under the ADA were violated.

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41. Therefore, Pesante should be deemed as having satisfied the administrative

prerequisites for maintaining an action under the ADA.

42. Pesante requests this Court assume jurisdiction over her claims under the ADA

and award such relief that is appropriate.

Count IV

Claims Under the Family Medical Leave

29 U.S.C. §2601 et seq.

43. Pesante lives with her elderly mother who requires significant medical care to

treat a serious health condition. At the beginning of her mother’s illness, Pesante took

FMLA to care for her, and has remained her mother’s care giver ever since. Pesante has

also had to use leave time because of her own serious health problems. Over the course

of time, Pesante was required to use leave time to take care of the medical needs of her

mother.

44. Bombardier is an employer as the term is defined under the Family Medical

Leave Act.

45. However, Bombardier did not notify Pesante that she could take unpaid leave

to care for her mother.

46. In fact, Bombardier tracked Pesante’s attendance and used her attendance

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records to justify imposing discipline on her as a part of its plan to terminate her. It

terminated her because she needed to use leave which was appropriate under the FMLA.

47. Bombardier’s actions violated the Family Medical Leave Act.

48. Pesante requests this Court assume jurisdiction of her claims under the Family

Medical Leave Act and award her relief which is appropriate under the Act.

Damages

49. Pesante has suffered severe and significant injuries as a result of the conduct.

She was forced to resign in lieu of a discharge and has lost back and future wages.

50. She suffered severe emotional distress and anxiety, embarrassment and

humiliation.

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Relief

51. Pesante requests this Court assume jurisdiction over this matter and award

Pesante compensatory and punitive damages.

Respectfully submitted,

/s/Edward A. Olds
Edward A. Olds, Esquire
Pa. I.D. No. 23601

Richard S. Matesic, Esquire

Pa. I.D. No. 72211

1007 Mount Royal Blvd.

Pittsburgh, PA 15223
(412) 492-8975

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