IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION

COMPLAINT

Press Release

Plaintiff, United States of America, respectfully alleges:

1. This action is brought by the United States against Mark Bissoon, Caroline County Commissioner of the Revenue, in his official capacity (hereinafter “Defendant”) to enforce the statutory and regulatory provisions of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111-12117, as amended, which incorporates, through 42 U.S.C. § 12117(a), the powers, remedies, and procedures set forth in Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.
2. The Caroline County Commissioner of the Revenue’s denial of Anita Newchok’s reasonable accommodations request, and termination of Ms. Newchok based on her disability, violates the ADA.
3. This Court has jurisdiction over this action under 42 U.S.C. §§ 12117(a) and 2000e‑5(f), and 28 U.S.C. §§ 1331 and 1345. 
4. This Court has authority to grant a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202, and authority to grant equitable relief and monetary damages pursuant to 42 U.S.C. § 12117(a).
5. Venue is proper under 28 U.S.C. § 1391 because Defendant is located in this judicial district and the events and omissions giving rise to this action occurred in this judicial district. 
6. Defendant is an employer within the meaning of 42 U.S.C. § 12111(5), and a covered entity within the meaning of 42 U.S.C. § 12111(2) and 29 C.F.R. § 1630.2.

Facts

7. Ms. Newchok has physical impairments that substantially limit major life activities, including speaking, breathing, walking, and the operation of her respiratory system.
8.  Ms. Newchok was hired by the Caroline County Commissioner of the Revenue in 1991.
9. Sharon Carter was elected Caroline County Commissioner of the Revenue in 1999.
10. Commissioner Carter served as Caroline County Commissioner of the Revenue until the end of 2015.
11. Defendant was elected Caroline County Commissioner of the Revenue in November 2015.
12. Defendant has served as Caroline County Commissioner of the Revenue from January 1, 2016 to the present.
13. Commissioner Carter promoted Ms. Newchok to the position of Master Deputy Commissioner of the Revenue III in 2007. 
14. On March 31, 2015, Ms. Newchok was terminated from her position.
15. As Master Deputy Commissioner of the Revenue III, Ms. Newchok’s job duties included assessing taxes on business personal property and supervising the personal property unit. 
16. To accomplish her job duties, Ms. Newchok used the computer at her desk, worked with paper files, and communicated with co-workers and the public by email, phone, and in person, among other things.
17.  In 2011, Commissioner Carter hired an administrative assistant for the business license and personal property units.  
18. The administrative assistant’s duties included assisting Ms. Newchok.
19. Among other duties, the administrative assistant communicated with members of the public who called or came into the office, under Ms. Newchok’s supervision. 
20. For several years before her termination, Ms. Newchok suffered bouts of hoarseness, shortness of breath, and coughing. 
21. In January 2015, Ms. Newchok had severe shortness of breath, which required her to seek further medical treatment.
22. Ms. Newchok took medical leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, while she sought treatment. 
23. Ms. Newchok’s anticipated FMLA return-to-work date was March 26, 2015.
24. In a February 18, 2015 email, Commissioner Carter informed Ms. Newchok that to return to work, Ms. Newchok needed to provide a doctor’s release.
25. On Saturday, March 14, 2015, Ms. Newchok sent the attached email to Commissioner Carter.  Ex. 1.
26. Commissioner Carter received the attached March 14, 2015 email from Ms. Newchok.  Ex. 1.
27. In her March 14, 2015 email to Commissioner Carter, Ms. Newchok informed Commissioner Carter that she had been released to return to work.  Ex. 1.
28. In her March 14, 2015 email to Commissioner Carter, Ms. Newchok also informed Commissioner Carter that her health care provider, Nurse Practitioner Janet Pinson, had faxed a letter to Commissioner Carter and Caroline County Human Resources Manager Pamela Viera late Friday afternoon.  Ex. 1. 
29. In her March 14, 2015 email to Commissioner Carter, Ms. Newchok also stated that she had “some restrictions due to breathing and speaking.” Ex. 1.
30. On Monday, March 16, 2015, Ms. Newchok went to her office and attempted to return to work. 
31. When Ms. Newchok arrived at work on March 16, 2015, Commissioner Carter and Human Resources Manager Viera had not received Nurse Practitioner Pinson’s release yet. 
32. On March 16, 2015, Commissioner Carter sent Ms. Newchok home.
33. On March 16, 2015, Commissioner Carter did not discuss Ms. Newchok’s return to work with Ms. Newchok.
34. On the afternoon of Monday, March 16, 2015, Nurse Practitioner Pinson sent the attached email to Human Resources Manager Viera.  Ex. 2.
35. Human Resources Manager Viera received the attached March 16, 2015 email from Nurse Practitioner Pinson.  Ex. 2.
36.  In her March 16, 2015 email to Human Resources Manager Viera, Nurse Practitioner Pinson provided a copy of a letter she had been trying to fax.  Ex. 2.
37.   Nurse Practitioner Pinson’s March 16, 2015 email to Human Resources Manager Viera stated: “Ms. Newchok may return to work with restrictions.  Due to her shortness of breath, she needs to be sedentary.  Walking across the room causes shortness of breath.  She has to minimize the amount she speaks.  Within several minutes of talking, she quickly loses her voice.  If you have any questions, please contact me . . . .”  Nurse Practitioner Pinson provided the phone number at which she could be reached.  Ex. 2.
38. As of March 16, 2015, Ms. Newchok was able to perform the essential functions of her job with reasonable accommodations. 
39. Ms. Newchok needed accommodations to assist with speaking and to minimize walking.
40. The accommodations Ms. Newchok needed reasonably could have been provided.
41. After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Commissioner Carter never discussed Ms. Newchok’s medical condition with Ms. Newchok.
42. After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Commissioner Carter never discussed with Ms. Newchok how Ms. Newchok’s medical condition could impact Ms. Newchok’s ability to perform the essential functions of her job.
43. After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Commissioner Carter never discussed with Ms. Newchok potential reasonable accommodations.
44. Commissioner Carter never contacted Nurse Practitioner Pinson to discuss Ms. Newchok’s medical condition.
45. Commissioner Carter never contacted Nurse Practitioner Pinson to discuss how Ms. Newchok’s medical condition could impact Ms. Newchok’s ability to perform the essential functions of her job.
46. Commissioner Carter never contacted Nurse Practitioner Pinson to discuss potential reasonable accommodations.
47. After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Human Resources Manager Viera never discussed Ms. Newchok’s medical condition with Ms. Newchok.
48.  After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Human Resources Manager Viera never discussed with Ms. Newchok how Ms. Newchok’s medical condition could impact Ms. Newchok’s ability to perform the essential functions of her job.
49. After receiving Nurse Practitioner Pinson’s March 16, 2015 email, Human Resources Manager Viera never discussed with Ms. Newchok potential reasonable accommodations.
50. Human Resources Manager Viera never contacted Nurse Practitioner Pinson to discuss Ms. Newchok’s medical condition.
51. Human Resources Manager Viera never contacted Nurse Practitioner Pinson to discuss how Ms. Newchok’s medical condition could impact Ms. Newchok’s ability to perform the essential functions of her job.
52. Human Resources Manager Viera never contacted Nurse Practitioner Pinson to discuss potential reasonable accommodations.
53. On the morning of March 17, 2015, Commissioner Carter sent the attached e-mail to Human Resources Manager Viera.  Ex. 3.
54. Human Resources Manager Viera received the attached March 17, 2015 email from Commissioner Carter.  Ex. 3.
55. Commissioner Carter’s March 17, 2015 email to Human Resources Manager Viera stated, “I cannot reasonably accommodate the restrictions Anita Newchok’s Nurse Practitioner has requested on her behalf in order for her to return to work. . . .”  Ex. 3.
56. Within thirty minutes, Human Resources Manager Viera then sent the attached March 17, 2015 email to Ms. Newchok.  Ex. 4
57. Human Resources Manager Viera’s March 17, 2015 email to Ms. Newchok stated that she met with Commissioner Carter “and discussed the restrictions set forth by your Nurse Practitioner and she cannot accommodate at this time.”  Ex. 4.
58. Human Resources Manager Viera’s March 17, 2015 email to Ms. Newchok further stated that Ms. Newchok “will need to be able to return to work in full duty capacity . . . .”  Ex. 4.
59. Human Resources Manager Viera’s March 17, 2015 email to Ms. Newchok also notified Ms. Newchok that her job protection under the FMLA would expire at the end of the next week.  Ex. 4.
60. On March 31, 2015, Human Resources Manager Viera sent a letter to Ms. Newchok terminating her effective that day.
61. Ms. Newchok suffered emotional distress because of the Caroline County Commissioner of the Revenue’s actions.
62. On September 10, 2015, Ms. Newchok filed a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that Caroline County and the Caroline County Commissioner of the Revenue discriminated against her in violation of the ADA by denying her reasonable accommodations and by terminating her because of her disability.
63. Pursuant to 42 U.S.C. § 2000e-5, incorporated by reference in 42 U.S.C. § 12117(a), the EEOC investigated Ms. Newchok’s charge and found reasonable cause to believe that Caroline County and the Caroline County Commissioner of the Revenue discriminated against her in violation of the ADA.
64. After the EEOC’s conciliation efforts failed, the EEOC referred the matter to the United States Department of Justice.
65. All conditions precedent to the filing of this action have been performed.

Cause of Action
Title I of the Americans with Disabilities Act

66. The allegations of the foregoing paragraphs are incorporated by reference.
67. Title I of the ADA, 42 U.S.C. §§ 12111−12117, and its implementing regulation, 29 C.F.R. Part 1630, prohibit covered employers, such as the Caroline County Commissioner of the Revenue, from discriminating against qualified individuals on the basis of disability, including by failing to provide reasonable accommodations to qualified employees with disabilities.
68. Ms. Newchok is an individual with a disability because she has physical impairments that substantially limit one or more major life activities, including speaking, breathing, walking, and the operation of her respiratory system.  42 U.S.C. § 12102(1)(A); 29 C.F.R. § 1630.2(g), (h), (i)(1)(ii).
69. During all relevant times, Ms. Newchok was qualified for the Master Deputy III Commissioner of the Revenue position because she could perform the essential functions of the job with reasonable accommodations.  42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m).
70. The Caroline County Commissioner of the Revenue discriminated against Ms. Newchok in violation of Title I of the ADA, 42 U.S.C. §§ 12111-12117, and its implementing regulation, 29 C.F.R. Part 1630, by not making reasonable accommodations to the known physical limitations of Ms. Newchok, and then terminating her on the basis of disability.  42 U.S.C. §§ 12102, 12111, 12112; 29 C.F.R. §§ 1630.2, 1630.4, 1630.9.
71. When the request for reasonable accommodations was made and Ms. Newchok was terminated, the Caroline County Commissioner of the Revenue knew of Ms. Newchok’s physical limitations.
72. The Caroline County Commissioner of the Revenue could have reasonably accommodated Ms. Newchok’s speaking and walking limitations.
73. Reasonable accommodations include, but are not limited to, acquiring or modifying equipment or devices.  29 C.F.R. § 1630.2(o)(2)(ii).
74. Pursuant to Title I’s implementing regulation, “[t]o determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  29 C.F.R. § 1630.2(o)(3).
75. As a result of the Caroline County Commissioner of the Revenue’s discriminatory conduct, Ms. Newchok suffered and continues to suffer damages, including emotional distress. 

Prayer for Relief

WHEREFORE, the United States prays that this Court:

1. grant judgment in favor of the United States and declare that Defendant has violated Title I of the ADA, 42 U.S.C. §§ 12111−12117, and its accompanying regulation;
2. enjoin Defendant and his agents, employees, successors and all persons in active concert or participation with him, from engaging in discriminatory employment policies and practices that violate Title I of the ADA;
3. require Defendant to modify policies, practices, and procedures as necessary to bring the Caroline County Commissioner of the Revenue’s employment policies, practices, and procedures, including the Caroline County Commissioner of the Revenue’s reasonable accommodation policies, practices, and procedures, into compliance with Title I of the ADA and its implementing regulation;
4. order Defendant to train his supervisors and human resource staff regarding Title I of the ADA, including its reasonable accommodation requirements;
5. award Ms. Newchok remedial relief including reinstatement with retroactive seniority and all other benefits of employment; payment of back pay with interest from March 31, 2015 to the date of reinstatement; pension and related benefits; and other nondiscriminatory measures to overcome the effects of the discrimination;
6. award Ms. Newchok compensatory damages, including damages for emotional distress, for injuries she suffered as a result of the Caroline County Commissioner of the Revenue’s failure to comply with the requirements of Title I of the ADA, pursuant to and within the statutory limitations of Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a; and
7. award such additional relief as justice may require, together with the United States’ costs and disbursements in this action.