COMPLAINT. 1. The plaintiff, Nicholas Dainiak, resides in Cheshire, CT.

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1 RETURN DATE: May 27, 2014 X NICHOLAS DAINIAK, : SUPERIOR COURT : Plaintiff, : J.D. OF NEW HAVEN : vs. : AT NEW HAVEN : NORTHEAST MEDICAL GROUP, : INC., YALE-NEW HAVEN HEALTH : SYSTEM and BRIDGEPORT : HOSPITAL, : : Defendants. : May 9, 2014 X COMPLAINT I. PARTIES 1. The plaintiff, Nicholas Dainiak, resides in Cheshire, CT. 2. Defendant Northeast Medical Group, Inc. ( NEMG ) provides services to hospitals in the Yale-New Haven Health System ( YNHHS ), including to defendant Bridgeport Hospital. Defendant YNHHS and NEMG are plaintiff s employers within the meaning of the Connecticut Fair Employment Practices Act, Conn. Gen. Stat. 46a-60, et seq. II. EXHAUSTION OF ADMINISTRATIVE REMEDIES 3. The plaintiff filed complaints with the Connecticut Commission on Human Rights and Opportunities ( CHRO ) and the federal Equal Employment Opportunity Commission ( EEOC ) alleging discriminatory demotion and termination based on his age. The CHRO and EEOC complaints were timely filed as they were filed within 180 days of the date that plaintiff received notice of adverse actions. 4. Plaintiff received a Right to Sue letter from the CHRO, on February 26, Plaintiff has filed this complaint within 90 days of his receipt of the Right to Sue letter.

2 III. FACTS 5. In 1995, the plaintiff became employed at Yale New Haven Health-Bridgeport Hospital as the Hospital s Chairman of Medicine, and became a member of the Hospital s Medical Staff. He remained as Chairman of Medicine until his termination by the defendants, effective July Plaintiff was also appointed as a Clinical Professor of Internal Medicine at Yale University School of Medicine, an academic appointment that he continues to hold. Plaintiff carried out his duties as Chairman of Medicine until defendants required him to leave the premises in May An interim Chairman of Medicine assumed plaintiff s duties as Chairman of Medicine in June Plaintiff is currently an Emeritus (Honorary) member of the Hospital s Medical Staff. 6. At all times relevant, the plaintiff s performance was satisfactory or better, and as set forth below in greater detail, at the time of his termination, plaintiff s performance was exemplary. 7. On November 3, 2011, Joseph Janell, the Bridgeport Hospital Director of Human Resources and former Bridgeport Hospital Senior Vice President, told plaintiff that he was retiring. Mr. Janell directly asked plaintiff to think about doing the same. Mr. Janell asked plaintiff if he had any retirement plans. 8. At a Christmas party in December of 2011 at the home of Mr. William Jennings, Bridgeport Hospital s Chief Executive Officer, Mr. Janell also counseled plaintiff s wife to convince plaintiff to retire. During the party, Mr. Janell s wife also tried to convince plaintiff s wife how great it would be for plaintiff to retire. 2

3 9. On March 17, 2012, Mr. Janell and Hope Juke-Regan, Chief Operating Officer under William Jennings, asked plaintiff when he would be retiring. Plaintiff had no thoughts of retiring and thought the remarks were inappropriate. 10. Shortly after the defendants decided to terminate his employment, the defendants described plaintiff s 18 years of performance as Chairman, in a communication distributed to various staff and leadership at Bridgeport Hospital, as "superb leadership over the past two decades." limited to: 11. According to the defendants, plaintiff s superb leadership included, but was not (a) Building one of the strongest clinical and academic departments of medicine in Connecticut and the tri-state region ; (b) Being internationally renowned for his research on detection, assessment and mitigation of radiation-induced illness ; (c) Being a great ambassador for Bridgeport Hospital to the rest of the medical world ; (d) Growing the Department of Medicine by establishing four new sections and by recruiting nine new Section Chiefs and over 20 full-time faculty members ; (e) Playing a pivotal role in conceiving and initiating many new and successful clinical programs; including those in cancer, geriatrics and other areas of clinical medicine; (f) Overseeing the growth of [an] Internal Medicine Residency Training Program and sub-specialty fellowship programs ; (g) Creating "an environment that is conducive to clinical investigation and academic medicine; and (h) Working with faculty to foster their leadership skills and professional development. 3

4 12. In November 2012, plaintiff received his first notice that he might be asked to step down in a meeting with Chief Medical Officer Michael Ivy, who informed him that senior management, including Chief Executive Officer William Jennings, wanted to "set a new tone." Dr. Ivy gave plaintiff no other reason for the decision to ask plaintiff to step down. 13. Despite plaintiff s continuing record of superb leadership, on January 24, 2013, the plaintiff received a letter from defendants communicating their decision to terminate his employment on July 22, 2013, without identifying the reason for this decision. 14. The plaintiff was fully qualified to "set a new tone," if needed, in his Department. Plaintiff received a comprehensive employment assessment in 2012 that evaluated plaintiff as having "a strong, positive bias towards change" that would "undoubtedly help him in the present and future high-changing environment of health care." 15. In June 2013, before the effective date of plaintiff s termination, defendants appointed Dr. Stuart Zarich Interim Chairman of the Department of Medicine at Bridgeport Hospital. Dr. Zarich is substantially younger than the plaintiff. 16. Bridgeport Hospital, upon information and belief under the administrative direction of the defendants, maintains Medical Staff Bylaws Rules & Regulations Policies & Procedures ( Bylaws ) that are circulated to, and binding on the staff and leadership of Bridgeport Hospital. Pursuant to of the Bylaws, each physician at Bridgeport Hospital, including the plaintiff, as well as the leadership of Bridgeport Hospital, is required to abide by the Bylaws. 17. In terminating the plaintiff, the defendants failed to follow policies and practices required by the Bylaws. In particular, the Bylaws, at 6.3.5, require that before terminating a Department Chairperson such as the plaintiff, or removing him from the position of Department Chair, the question of such a termination must be submitted to the Bridgeport Hospital Medical 4

5 Staff Executive Committee ( Committee ) and the Bridgeport Hospital Board of Directors ( Board ) for approval. 18. The defendants never timely brought the issue of whether plaintiff should be terminated before the Committee and the Board, as required by of the Bylaws. 19. Plaintiff was 65 years old when the defendants notified him that he would be terminated. 20. On information and belief, at all times relevant, senior management of defendants, including William Jennings, Michael Ivy, Joseph Janell and Hope Jukel-Regan, knew or should have known that Dr. Dainiak was at or approaching age 65; moreover, senior management of defendants, including William Jennings and Michael Ivy, knew or should have known that Dr. Zarich was substantially younger than Dr. Dainiak. 21. The plaintiff is not the only well-qualified older worker to be involuntarily terminated because of age by the defendants in the recent past. Upon information and belief, the defendants have demonstrated a pattern, practice and/or custom of age discrimination, adversely affecting multiple employees who were 65 years old or close to age Evidence of this custom of age discrimination is contained in the Bridgeport Hospital Medical Staff Bylaws, which specifically state in sections and 5.4, dealing with retirement, that once a physician reaches his 65th birthday, it is customary but not mandated that he shall no longer serve as either chairman of a department or chief of a section after the first meeting of the Board of Directors following such birthday. 23. Those Bylaws were first promulgated in 1987, and, upon information and belief, both Section and 5.4 continued to be functionally implemented in

6 24. Upon information and belief, a pattern, practice and/or custom of age discrimination has continued through the present date, adversely affecting numerous doctors at Bridgeport Hospital and elsewhere within the YNHHS. 25. Additionally, upon information and belief, Mr. Jennings has indicated to others on staff and/or in management at YNHHS s Bridgeport Hospital that hospital management applicants, employees and clinical leaders should be younger, that he is looking for staff from a younger generation and that older, well-qualified employees in leadership positions and indeed throughout the organization, are at risk in maintaining their employment. IV. COUNT ONE: Discriminatory Discharge - - Conn. Gen. Stat. 46a Paragraphs 1 through 25 are hereby incorporated the same as if fully pled in this First Count. 27. The plaintiff s age was a factor that made a difference in defendants decision to terminate plaintiff s employment, in violation of Conn. Gen. Stat. 46a-60 et seq. 28. As a result of defendants conduct, in terminating him in violation of Conn. Gen. Stat. 46a-60 et seq., plaintiff has suffered and will continue to suffer both economic and emotional harm, as well as damage to his reputation. V. COUNT TWO: Breach of Contract 29. Paragraphs 1 through 18 are hereby incorporated the same as if fully pled in this Second Count. 29. The defendants and their agents, including the leadership of Bridgeport Hospital, failed to abide by the Bylaws that govern the operation of Bridgeport Hospital in terminating plaintiff. 6

7 30. In particular, defendants and their agents, including the leadership of Bridgeport Hospital, violated the Bylaws, at 6.3.5, by failing to assure compliance with the requirement that the question of whether plaintiff should be terminated from the position of Chair of Medicine be submitted to the Bridgeport Hospital Medical Staff Executive Committee and the Bridgeport Hospital Board of Directors for approval. 31. Upon information and belief, if the defendants had taken reasonable steps to assure that the issue of plaintiff s termination would be submitted to the Committee or the Board, plaintiff would not have been terminated. 32. The Bylaws constitute an express or implied contract between the plaintiff and the defendants. 33. The defendants failed or refused to honor the terms of the Bylaws, thereby breaching their contractual obligations to the plaintiff. 34. As a result of defendants breach, the plaintiff has suffered economic damages. VI. PRAYER FOR RELIEF WHEREFORE, the plaintiff respectfully prays that the following relief be ordered: a. a declaratory judgment that the defendants violated the Connecticut Fair Employment Practices Act, and the plaintiff s contractual rights under the Bylaws, by terminating him; b. an award to the plaintiff of his past and future economic damages; c. an award to the plaintiff of past and future damages for the mental and emotional harm he has suffered, including damage to his reputation, under Count One; d. an award to the plaintiff of reasonable attorney fees and costs, under Count One; e. an award to the plaintiff of pre-judgment interest on his economic losses, pursuant to Conn. Gen. Stat. 37-3a; 7

8 f. an award to the plaintiff of punitive damages under Count One; and g. such other legal, equitable and injunctive relief as the court deems appropriate, including but not limited to reinstatement, and elimination of any age-based limitation to any terms, conditions and opportunities relating to employment. RESPECTFULLY SUBMITTED, THE PLAINTIFF By: /s/ Joseph D. Garrison Joseph D. Garrison (Juris No.: ) Daniel B. Kohrman (DC Bar # ) Robert A. Richardson (Juris No.: ) Laurie A. McCann (DC Bar # ) GARRISON, LEVIN-EPSTEIN, RICHARDSON, Thomas Osborne (DC Bar # ) FITZGERALD & PIRROTTI, P.C. (PRO HAC VICE TO BE PENDING) 405 Orange Street AARP FOUNDATION LITIGATION New Haven, CT E Street NW, Suite B4 Tel.: (203) Washington, DC Fax: (203) Tel.: (202) s: JGarrison@garrisonlaw.com Fax: (202) Rrichardson@garrisonlaw.com s: dkohrman@aarp.org lmccann@aarp.org tosborne@aarp.org PLEASE ENTER OUR APPEARANCES ON BEHALF OF PLAINTIFF. 8