JEFFREY A. LONG OSB #86235
Thompson & Long
521 SW Clay, Suite 214
Portland, Oregon 97201
Of Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
MARGI CHONG, )
Plaintiff, ) Civil No.
v. ) AMENDED COMPLAINT
COLUMBIA SPORTSWEAR COMPANY, ) Class Action
An Oregon Corporation, )
Defendant. ) Jury Trial Requested
JURISDICTION AND VENUE
1. This action is brought to remedy defendant's discrimination
against its employees who smoke cigarettes, or who have dependents
who smoke, on the basis of disability or of perceived disability in
violation of Title I of the Americans with Disabilities Act, 42
U.S.C. 12101 et seq., and ORS 659.425.
2. Injunctive relief, declaratory relief, and damages as well as
other appropriate legal and equitable relief are sought pursuant to
42 U.S.C. 12117(a), 42 U.S.C. 2000e(f) and (g), and ORS 659.121.
3. Plaintiff has complied fully with all prerequisites to
jurisdiction in this Court under the ADA. Jurisdiction of the Court
is proper under 42 U.S.C. 12117 and 42 U.S.C. 2000e-5 (f) (3).
Jurisdiction of the claim under 659.425 is invoked pursuant to the
pendent jurisdiction of the Court under 28 U.S.C. 13667 (a). The
amount in controversy exceeds $50,000.
4. As the unlawful employment practices complained of herein
occurred within the District of Oregon, venue is proper in this
District pursuant to 42 U.S.C. 12117, 706 (f) (3) of Title VII,
42 U.S.C. 2000e-5 (f) (3).
5. Plaintiff brings this Action as a Class Action on behalf all
employees of defendant who have suffered payroll deductions due to
their status as cigarette smokers or because they have dependents who
smoke cigarettes. This Action is brought as a Class Action pursuant
to FRCP 23(a) and (b) (2). Members of the Class plaintiff sues on
behalf of are so numerous that joinder of all members is
impracticable. However, there are common questions of law and fact
affecting the right of employees who are addicted to nicotine or who
are perceived as addicted to nicotine to be free from discrimination
in the workplace. The claims of plaintiff are typical of the claims
of the class, and plaintiff fairly and adequately protects the
interests of the class. Defendant has acted and/or refused to act on
grounds generally applicable to the class plaintiff represents,
thereby making appropriate final injunctive relief in favor of
plaintiff and a class.
6. Plaintiff Margi Chong is an employee of defendant who has been
addicted to nicotine for several years. Plaintiff has been subject
to involuntary payroll deductions by defendant because of her
addiction or perceived addiction since approximately November 1,
7. Defendant Columbia Sportswear Company, is an Oregon Corporation
engaged in the apparel business and employing in excess of 500
8. On or about February 23, 1994 a notice of potential class action
pursuant to ORCP 32 H was sent to the defendant. A copy of said
notice is attached hereto as exhibit E and incorporated herein by
9. On or about May 13, 1994, Plaintiff filed a formal Complaint of
unlawful employment practices with the Equal Employment Opportunity
Commission as the representative of all employees of defendant who
either use tobacco or have dependents that use tobacco products.
10. On or about July 18, 1994, Plaintiff received a Private Right of
Action letter authorizing her to file this civil suit.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
11. On or about April 8, 1993 defendant distributed a memo outlining
the plan to require employees who use tobacco, and their dependents,
to pay more for their health insurance coverage than all other
employees. A copy of said memo is attached hereto as exhibit A and
is incorporated herein by this reference.
12. On or about April 30, 1993, defendant distributed a memo
regarding insurance premiums stating that the company had decided to
place a moratorium on the smoker surcharge until November 1, 1993.
The memo states that although the insurance rates are going up
equally for everyone, the smokers surcharge will be in addition to
the rate increase and will be charged "only if you are a smoker". A
copy of said memo is attached hereto as exhibit B and incorporated
herein by this reference.
13. On or about October 18, 1993 defendant distributed a memo
outlining it's plan to implement the smokers surcharge on November 1,
1993. A copy of said memo is attached hereto as exhibit C and
incorporated herein by this reference.
14. On or about November 1, 1993 defendant began withholding money
from employee pay for all smokers and their dependents pursuant to
the policy outlined in the earlier memos. Said withholding was done
without written authorization from employees subject to the action.
15. On or about April 15, 1994, defendant distributed a memo
regarding the implementation of the withholding plan requesting that
employees authorize the withholding for prior months. Copy of said
memo is attached hereto as exhibit D and incorporated herein by this
FIRST CAUSE OF ACTION
16. Plaintiff repeats and realleges each and every allegation
contained in paragraphs 1-15 of this Complaint with the same force
and effect as if set forth herein.
17. Plaintiff's nicotine addiction is a physical impairment that
substantially limits one or more of plaintiff's major life
18. Due to plaintiff's nicotine addiction, defendant regarded
plaintiff as having a physical impairment that substantially limits
one or more of her major life activities.
19. With reasonable accommodation, plaintiff could perform the
essential functions of her employment with defendant.
20. Defendant discriminated against plaintiff in regard to her
employment on the basis of her disability or because she was regarded
as being disabled.
21. Plaintiff is now suffering and will continue to suffer
irreparable injury and monetary damages as a result of defendant's
discriminatory practices unless and until this court grants relief.
SECOND CAUSE OF ACTION
(Pendent State Claim-ORS 659.425)
22. Plaintiff repeats and realleges each and every allegation
contained in paragraphs 1-15 and 17-21 of this Complaint with the
same force and effect as is set forth herein.
23. The above acts and practices of the defendant constitute
unlawful discriminatory acts in violation of ORS 659.425.
24. As a result of defendant's discriminatory acts, plaintiff has
suffered and will continue to suffer monetary damages and damages for
mental anguish and humiliation unless and until this Court grants
THIRD CAUSE OF ACTION
(Pendent State Claim-ORS 652.610(3))
25. Plaintiff repeats and realleges each and every allegation
contained in paragraphs 1-15, 17-21, and 23-24 of this Complaint with
the same force and effect as is set forth herein.
26. By implementing the smokers surcharge defendant unlawfully
withheld a portion of plaintiff's wages in violation of ORS
27. Pursuant to ORS 652.615, plaintiff is entitled to actual damages
or $200 per occurrence, together with her costs, disbursements and a
reasonable attorney should she prevail.
DEMAND FOR A TRIAL BY JURY
28. Pursuant to rule 38(b) of the Federal Rules of Civil Procedure,
plaintiff demands a trial by jury in this action.
WHEREFORE, plaintiff respectfully requests that this court enter
judgment as follows:
1. Declaring that the acts and practices complained of herein are in
violation of Title I of the Americans with Disabilities Act and ORS
2. Directing defendant to reimburse plaintiff and the entire class
for all sums unlawfully withheld from their pay;
3. Awarding plaintiff damages for the unlawful withholding of wages
pursuant to ORS 652.615.
4. Awarding plaintiff the costs of this action together with
reasonable attorney fees; and
5. Granting such other relief as this Court deems just and proper.
DATED THIS 25th DAY OF October, 1994.
Thompson & Long
Jeffrey A. Long OSB #86235
Of Attorneys for Plaintiff
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