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THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANEAN PESANTE,
Plaintiff,
v.
BOMBARDIER TRANSPORTATION,
Defendant.
C.A. NO.
JURY TRIAL DEMANDED
Electronically Filed
COMPLAINT
Anean Pesante, sets forth the following in support of her Complaint against the
Defendants.
Statement of Jurisdiction
1. Anean Pesante, Plaintiff, invokes this Courts 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
Pesantes supervisor, continued to harass and retaliate against her based upon her former
charge.
8. The harassment and retaliation took blatant and subtle forms. Pesantes
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, Pesantes 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 Pesantes 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 Pesantes 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. Pesantes 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
Pesantes 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 mothers illness, Pesante took
FMLA to care for her, and has remained her mothers 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 Pesantes 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. Bombardiers 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. OldsEdward A. Olds, EsquirePa. I.D. No. 23601
Richard S. Matesic, EsquirePa. I.D. No. 72211
1007 Mount Royal Blvd.Pittsburgh, PA 15223(412) 492-8975
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