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Thomas K. Doyle, OSB No. 972511 Email: doylet@bennetthartman.com Aruna Masih, OSB No. 973241 Email: masiha@bennetthartman.com Bennett, Hartman, Morris & Kaplan, LLP 210 SW Morrison St., Ste. 500 Portland, Oregon 97204-3149 Telephone: (503) 227-4600 Facsimile: (503) 248-6800
Of Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT THE DISTRICT OF OREGON EUGENE DIVISION MICHAEL V AN PATTEN, MARK BANKS, CARL RALLS, WILLIAM MCGILL and DAN RUSS, Plaintiffs, v. STATE OF OREGON, DEPARTMENT OF ADMINISTRATIVE SERVICES, DEPARTMENT OF CORRECTIONS, OREGON STATE POLICE and MICHAEL JORDAN, Defendants.

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COMPLAINT - CLASS ACTION Violation of42 U.S.C. 1983 and ORS 659A136 DEMAND FOR JURy TRIAL

CLASS ACTION COMPLAINT AND DEMAND FOR JURy TRIAL Plaintiffs, MICHAEL VAN PATTEN, MARK BANKS, CARL RALLS, WILLIAM MCGILL and DAN RUSS sue the Defendants STATE OF OREGON, DEPARTMENT OF

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CORRECTIONS, DEPARTMENT OF ADMINISTRATIVE SERVICE, OREGON STATE

POLICE and MICHAEL JORDAN and for their cause of action, declare and aver as follows: PRELIM:INARY STATEMENT

1.

This action seeks declaratory, injunctive and equitable relief, equitable and

compensatory damages, costs and attorneys fees, in connection with the Health Engagement Model program for Department of Corrections and Oregon State Police employees, which program violates the Americans with Disabilities Act of 1990,42 U.S.C. 12101 et seq., as amended by the ADA Amendments Act of2008, 42 U.S.C. 12102 et seq. (hereinafter referred to as "the ADA"), ORS 659A.136, and 42 U.S.C. 1983 (hereinafter referred to as "Section 1983"). JURISDICTION 2. This action arises under the ADA and Section 1983. Jurisdiction is invoked

pursuant to 28 U.S.C. 1331 and 1343(a)(4), 42 U.S.C. 12117 and 42 U.S.C. 2000e-5(3). This court has supplementaljurisdiction over Plaintiff's state claims under 28 U.S.C. 1367. 3.

An administrative complaint concerning the violation of ADA is being filed with

the Equal Employment Opportunity Commission and a Notice of Right to Sue will be requested. Once that administrative pre-requisite has been exhausted, this complaint will be amended to include a claim alleging a violation of 42 U.S.C. 12112. 4. A timely notice of tort claim under ORS 30.275 has been served on defendants. VENUE 5. Venue is proper in the District of Oregon, Eugene Division, under 28 U.S.C.

1391 (b) because the unlawful conduct giving rise to this action occurred in Marion County, State of Oregon. Page 2 - COMPLAINT

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PARTIES
6. Plaintiff MICHAEL VAN PATTEN ((hereinafter referred to as "Plaintiff' or

"VAN PATTEN"), is a citizen and resident of Morunouth, Polk County, Oregon, within the jurisdiction of this Court and is President of the Association of Oregon Corrections Employees ("AOCE") 7. Plaintiff MARK BANKS (hereinafter referred to as "Plaintiff' or "BANKS"), is a

citizen and resident of Pendleton, Umatilla County, Oregon, within the jurisdiction of this Court. 8. Plaintiff CARL RALLS (hereinafter referred to as "Plaintiff' or "RALLS"), is a

citizen and resident of Salem, Marion County, Oregon, within the jurisdiction of this Court. 9. Plaintiff WILLIAM MCGILL (hereinafter referred to as "Plaintiff' or

"MCGILL"), is a citizen and resident of Salem, Marion County, Oregon, within the jurisdiction of this Court. 1O. Plaintiff DAN RUSS (hereinafter referred to as "Plaintiff' or "RUSS"), is a

citizen and resident of Silverton, Marion County, Oregon, within the jurisdiction of this Court. 11. Defendant STATE OF OREGON (hereinafter referred to as "Defendant" or

"STA TE"), is within the jurisdiction of this Court. 12. Defendant DEPARTMENT OF ADMINISTRATIVE SERVICES (hereinafter

referred to as "Defendant" or "DAS"), is an agency of Defendant STATE within the jurisdiction of this Court. 13. Defendant DEPARTMENT OF CORRECTIONS (hereinafter referred to as

"Defendant" or "DOC"), is an agency of Defendant STATE within the jurisdiction of this Court. 14. Defendant OREGON ST ATE POLICE (hereinafter referred to as "Defendant" or

"OSP"), is an agency of Defendant ST ATE within the jurisdiction of this Court. Page 3 - COMPLAINT

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15.

Defendant MICHAEL JORDAN (hereinafter referred to as "Defendant" or

"JORDAN"), is the Director of Defendant DAS and is a citizen and resident of the State of Oregon, within the jurisdiction of this Court. 16. At times material hereto, Plaintiffs were "employees" within the meaning of the

ADA and ORS chapter 659A. 17. At times material hereto, Defendants State of Oregon, Department of Corrections,

Oregon State Police and Department of Administrative Services (hereinafter "Defendants") were, and continue to be, "employers" within the meaning of the ADA and ORS chapter 659A. FACTUAL ALLEGATIONS 18. At all times material to this Complaint, Plaintiffs VAN PATTEN, RALLS and

RUSS have been employed by Defendant DOC as Corrections Officers. 19. At all times material to this Complaint, Plaintiffs BANKS and MCGILL have

been employed by Defendant OSP as Senior Troopers. 20.

In July 2011 Defendants disseminated information that it was adopting a

"voluntary" wellness program, which required participating employees to complete an online Health Risk Assessment (HRA) which was designated as the Health Engagement Model (HEM). 21. Defendants' stated objective of the HEM was to encourage its employees to adopt

and maintain healthier behavior. 22. During open enrollment, the period from October 15 through November 15, 2011,

Defendants required employees to choose whether they and their spouses or domestic partners want to participate in HEM. 23. While Defendants promote the HEM program as "voluntary," if an employee

enrolled in health insurance chooses not to participate in HEM, a $20-$35 monthly charge is Page 4 - COMPLAINT

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incurred by the non-participating employee, in addition to the premium the employee pays for health insurance. 24. Plaintiff VanPatten and others did not participate in the HEM and as a result have

been assessed the monthly surcharge. 25. Plaintiffs Ralls and others have agreed to participate in the HEM and have been

compelled to provide health related information. 26. All Plaintiffs have suffered damages as a result of Defendants' above-described

surcharge and requirements based on Plaintiffs' participation or non-participation in the HEM program. CLASS ACTION ALLEGATIONS 27. Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil Procedure, seek to

have this action maintained as a class, comprised of all current and former employees of Defendants who are/were employed by Defendants and enrolled in its health insurance since the inception of the 2012 HEM program (the "Rule 23 Class"). Alternatively, Plaintiffs, pursuant to Rule 23 of the Federal Rules of Civil Procedure, seek to have this action maintained as a class, comprised of two classes of (1) all current and former employees of Defendants who are/were employed by Defendants and enrolled in its health insurance since the inception of the HEM program, and who have incurred the surcharge for failing to participate in the HEM; and (2) all current and former employees of Defendants who are/were employed by Defendants and have provided the medical information required by the HEM program (the "alternative Rule 23 Class").

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28.

Upon information and belief, there are over 1000 persons in the Rule 23 Class.

Additionally, upon information and belief, there are over 100 persons in the alternative Rule 23 Class 1 and 100 persons in the alternative Rule 23 Class 2. 29. The persons either in the Rule 23 Class or alternative Rule 23 Classes are so

numerous that joinder of all members is impractical. 30. There are questions of law and fact common either to the Rule 23 Class or

alternative Rule 23 Class that predominate over questions solely affecting Plaintiffs, including, but not limited to: (a) Whether Defendants' HEM program violates the ADA or DRS chapter

659A's proscription against making disability-related inquiries or conducting medical examinations; (b) Whether the HEM program violates Section 1983 by depriving class

members of rights guaranteed by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; (c) The nature and extent of the class-wide injury and the appropriate measure

of damages for either class; and (d) 31. Whether declaratory and/or injunctive relief is warranted.

Plaintiffs' claims for disability discrimination and constitutional deprivation are

typical of the claims of the Rule 23 Class or alternative Rule 23 Class that they seek to represent. Plaintiffs and the members of the Rule 23 Class or alternative Rule 23 Class all are current and fonner employees of Defendants who are/were employed by Defendants and emolled in its health insurance since the inception of the HEM program. Declaratory relief is particularly appropriate with respect to the Rule 23 Class or alternative Rule 23 Class. Page 6 - COMPLAINT

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32.

Plaintiffs will fairly and adequately represent and protect the interests of the Rule

23 Class or alternative Rule 23 Class. 33. Plaintiffs have retained the undersigned counsel who is competent and

experienced in complex class actions and in labor and employment law and civil rights litigation. 34. A class action is superior to all other available methods for the fair and efficient

adjudication of these claims, particularly in the context of civil rights claims where individual plaintiffs may lack the financial resources to vigorously prosecute a lawsuit in federal court. 35 . The members of the Rule 23 Class or alternative Rule 23 Class have been

damaged and are entitled to recovery as a result of Defendants' common and uniform practices, policies and procedures. 36. The expense and burden required in individual prosecution of this litigation may

well exceed the relative damages suffered by any of the individual Rule 23 Class or alternative Rule 23 Class members. 37. Additionally, class treatment is superior because it will obviate the need for

unduly duplicative litigation that might result in the inconsistent judgment about Defendants' practices. FIRST CLAIM FOR RELIEF (Disability Discrimination under ORS 659A.136-Against State, DOC, OSP and DAS) 38. 39. Plaintiffs incorporate as if fully re-alleged herein paragraphs 1 through 37. The HEM requires disclosure of medical information related to the existence,

nature and extent of disability and requires disclosure of medical history. 40. necessity. Page 7 - COMPLAINT The HEM requirements are not job related and are not consistent with business

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41.

By penalizing employees who do not participate in the HEM through a monthly

surcharge, the employer unlawfully compelled disclosure of medical infonnation. As a result, the HEM requirement of providing medical history is not voluntary. 42. 43. The HEM requirement to disclose medical infonnation violates DRS 659A.136. Defendants State, DOC, OSP and DAS engaged in discriminatory acts and

conduct against Plaintiffs with malice and/or with reckless indifference to Plaintiffs' rights under the ADA. 44. Plaintiffs have suffered direct pecuniary losses as a result of Defendants' above-

described violations of ORS 659A.136. 45. Plaintiffs have suffered, are now suffering, and will continue to suffer emotional

pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses as a direct result of Defendants' discriminatory acts and conduct. 46. Plaintiffs will suffer future pecuniary losses as a direct result of Defendants'

discriminatory acts and conduct. 47. Plaintiffs have no plain, adequate, or complete remedy at law to redress the

wrongs alleged, and are now suffering and will continue to suffer irreparable injury from their treatment by Defendants. 48. To remedy the foregoing violations of their rights, Plaintiffs seek declaratory,

injunctive and equitable relief, equitable and compensatory damages, and an award of reasonable attorney fees, expert fees, and costs incurred herein to the full extent provided by law, including but not limited to DRS 659A.885 and DRS 20.107.

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SECOND CLAIM FOR RELIEF

(Section 1983- Violation of Fourth Amendment Against Jordan)
49. 50. Plaintiffs incorporate as if fully re-alleged herein paragraphs 1 through 37. The HEM requires disclosure of information protected against unreasonable

searches and seizures by the Fourth and Fourteenth Amendments of the United States Constitution and/or financially penalizes Plaintiffs for their exercise of their rights under the Fourth and Fourteenth Amendments. 51. Under color of state law and either by explicit act or by accepted custom or usage,

Defendant Jordan in his official capacity as director of the DAS which includes the Board charged with implementing the HEM violated Plaintiffs' right to be free from unreasonable searches and seizures protected by the Fourth and Fourteenth Amendments of the United States Constitutions and Section 1983. 52. Defendant engaged in such acts and conduct against Plaintiffs with malice and/or

with reckless indifference to Plaintiffs' rights under the Fourth and Fourteenth Amendments. 53. Plaintiffs have suffered, are now suffering, and will continue to suffer emotional

pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses as well as pecuniary losses a direct result of Defendant's violation of their constitutional rights. 54. Plaintiffs have no plain, adequate, or complete remedy at law to redress the

wrongs alleged and are now suffering and will continue to suffer irreparable injury from their treatment by Defendant.

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55.

To remedy the foregoing violations of their rights, Plaintiffs seek declaratory,

injunctive and equitable relief, and an award of reasonable attorney fees, expert fees, and costs incurred herein to the full extent provided by law, including but not limited to 42 U.S.C. 1988. THIRD CLAIM FOR RELIEF (Section 1983- Violation of Fifth Amendment Against Jordan) 56. 57. Plaintiffs incorporate as if fully re-alleged herein paragraphs 1 through 37. The HEM disclosure of information invades Plaintiffs' due process privacy

interests and right against compelled self-incrimination protected by the Fifth and Fourteenth Amendments of the United States Constitution and/or financially penalizes Plaintiffs for their exercise of their rights protected by the Fifth and Fourteenth Amendments. 58. Under color of state law and either by explicit act or by accepted custom or usage,

Defendant Jordan in his official capacity as director of the DAS which includes the Board charged with implementing the HEM violated Plaintiffs' due process privacy rights and right to be free from compelled self-incrimination protected by the Fifth and Fourteenth Amendments of the United States Constitutions and Section 1983. 59. Defendant Jordan engaged in such acts and conduct against Plaintiffs with malice

and/or with reckless indifference to Plaintiffs' rights under the Fifth and Fourteenth Amendments. 60. Plaintiffs have suffered, are now suffering, and will continue to suffer emotional

pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non pecuniary losses as well as pecuniary losses as a direct result of Defendant's violation of their constitutional rights.

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61.

Plaintiffs have no plain, adequate, or complete remedy at law to redress the

wrongs alleged, and are now suffering and will continue to suffer irreparable injury from their treatment by Defendant. 62. To remedy the foregoing violations of their rights, Plaintiffs seek declaratory,

injunctive and equitable relief, and an award of reasonable attorney fees, expert fees, and costs incurred herein to the full extent provided by law, including but not limited to 42 U.S.c. 1988. DEMAND FOR JURy TRIAL Plaintiffs demand a jury trial on all claims and issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of the Rule 23 Class or alternative Rule 23 Class, pray that this Honorable Court will: i) On Plaintiffs' First Claim for Relief: A. of Civil Procedure; B. Designate Plaintiffs as the representative of the Rule 23 Class or Certify this case as a class action pursuant to Rule 23 of the Federal Rules

alternative Rule 23 Class and the undersigned counsel as counsel of record to the Rule 23 Class or alternative Rule 23 Class; C. D. E. F. G. Declare Defendants' conduct to be in violation of Plaintiffs' civil rights; Enjoin Defendants from engaging in such conduct; Award equitable damages in the fonn of back pay; Award compensatory damages; Award expenses, including reasonable attorney fees, expert witness fees

and costs incurred herein; and Page II - COMPLAINT

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H. the premises. ii)

Grant such other and further relief as may be deemed just and proper in

On Plaintiffs' Second and Third Claims for Relief:

A.

Certify this case as a class action pursuant to Rule 23 of the Federal Rules

of Civil Procedure;
B.

Designate Plaintiffs as the representative of the Rule 23 Class or

alternative Rule 23 Class and the undersigned counsel as counsel of record to the Rule 23 Class or alternative Rule 23 Class; C. constitutional rights; D. E. Enjoin Defendants from engaging in such conduct; Award expenses, including reasonable attorney fees, expert witness fees Declare Defendants' conduct to be in violation of Plaintiffs' civil and

and costs incurred herein; and F. the premises. Dated this ~ day of February, 2012.
1"

Grant such other and further relief as may be deemed just and proper in

hom as K. Doyle, OSB 9 511 Aruna A. Masih, OSB 973241 Of Attorneys for Plaintiffs

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