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Class Action Complaint Against DaVita Inc, Satellite Dialysis of Glenview and Michael Klusmeyer
Class Action Complaint Against DaVita Inc, Satellite Dialysis of Glenview and Michael Klusmeyer
2019CH10253
CHRISTEN PERRY, BIANA FUKES, )
ANNA WILLMING and ROMAINE ) 6445444
RUSNAK, individually and on behalf of all
) 2019CH10253
others similarly situated ) Case No. 2019 CH ____________
)
Plaintiffs, )
)
v. ) JURY TRIAL DEMANDED
)
DAVITA, INC. d/b/a DAVITA DIALYSIS )
CENTER, SATELLITE DIALYSIS OF )
GLENVIEW and MICHAEL KLUSMEYER)
)
Defendants. )
COMPLAINT
Plaintiffs Christen Perry, Biana Fukes, Anna Willming and Romaine Rusnak (Plaintiffs),
individually and on behalf of all others similarly situated (the “Class”), through their attorneys,
KULWIN, MASCIOPINTO & KULWIN, LLP and STEPHAN ZOURAS, LLP, submit this
Class Action Complaint (“Complaint”) under the Illinois Code of Civil Procedure, 735 ILCS 5/2-
801 and 2-802 to recover equitable relief and monetary damages against defendants DaVita Inc.
d/b/a DaVita Dialysis (DaVita), Satellite Dialysis of Glenview L.L.C. (Satellite) and Michael
Klusmeyer (Klusmeyer).
of all others similarly situated, seeking relief for the chronic, prolific, widespread, and pervasive
invasion of privacy of women who worked for Satellite and/or DaVita at the dialysis center
located at 2601 Compass Road in Glenview, Illinois and the grossly negligent conduct that
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2. Before November 2018, Satellite owned and operated the dialysis center located
at 2601 Compass Road in Glenview, Illinois. Since November 2018, DaVita owned and
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operated the dialysis center located at 2601 Compass Road in Glenview, Illinois.
3. During the relevant time period, Satellite or DaVita employed Plaintiffs and other
female medical professionals who specialize in treating dialysis patients, including nurses,
dietitians, social workers, patient care technicians and administrative assistants, subject to written
employment policies. In addition, women who worked for Satellite or DaVita directly or
indirectly in capacities other than working at the dialysis center regularly visited the dialysis
the dialysis center subject to written employment policies. Since November 2018, DaVita
continued to employ Klusmeyer in the same role as the Facility Administrator subject to written
employment policies. As Clinic Manager and Facility Administrator, Klusmeyer was the
highest-ranking manager at the dialysis center and in this capacity, had supervisory, executive
and managerial authority over Satellite and/or DaVita employees and others who worked at the
dialysis center, including Plaintiffs and the Class they seek to represent.
5. During the relevant time period, the written policies implemented by Satellite and
DaVita, among other things, assured employees and women who worked at the dialysis center
that Satellite and DaVita would provide a reasonably safe and sexual harassment-free work
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6. During the relevant time period, in performing their jobs, Plaintiffs and members
of the proposed Class were subjected to sexually inappropriate and offensive harassing conduct
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by Klusmeyer that violated written policies of Satellite and DaVita, including his conduct in
targeting women who worked at the dialysis center and invading their privacy by repeatedly
7. Upon information and belief, Klusmeyer used his camera to record, capture, view
8. During the relevant time period, on a daily basis in performing their job duties,
the women who worked at the dialysis center, including Plaintiffs, used the women’s bathroom
9. During the relevant time period, DaVita and Satellite knew and should have
known of Klusmeyer’s inappropriate conduct, including his sexually inappropriate and offensive
harassing conduct with women at work, through observing his conduct at work and through
written and verbal reports made by female employees, among other ways.
10. DaVita and/or Satellite facilitated, permitted and tolerated Klusmeyer’s sexually
inappropriate and offensive harassing conduct by, among other ways, failing to act as a
reasonably careful corporation. For example, in response to observing and/or receiving reports
of Klusmeyer’s misconduct at the dialysis center and inappropriate conduct with women at work,
Satellite and DaVita failed to take corrective measures against Klusmeyer before Plaintiffs and
others were seriously injured by his conduct. At best, DaVita and Satellite acted recklessly and
with utter indifference for the rights and safety of the women who worked with and around
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11. Plaintiffs and the Class they seek to represent seek equitable relief and monetary
damages against all defendants arising out of Klusmeyer’s conduct, including in invading their
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privacy while they used the women’s bathroom working for Satellite and/or DaVita.
12. Plaintiffs and the Class they seek to represent also seek equitable relief and
monetary damages against DaVita and Satellite for breaching the legal duty to ensure a
reasonably safe working environment free from, among other things, Klusmeyer’s conduct.
13. Plaintiff Christen Perry (Perry) is a Medical Social Worker. Between May 2014
and October 2018, Perry worked for Satellite within Cook County, Illinois. Between November
2018 through the present, Perry worked for DaVita within Cook County, Illinois. During the
relevant time period, Perry worked for Satellite and DaVita pursuant to their written policies.
14. Plaintiff Biana Fukes (Fukes) has worked as a CCHT / Dialysis Technician and
Fukes worked for Satellite within Cook County, Illinois. Between November 2018 through the
present, Fukes worked for DaVita within Cook County, Illinois. Fukes worked for Satellite and
15. Plaintiff Anna Willming (Willming) worked as a CCHT / Dialysis Technician for
Satellite within Cook County, Illinois. Willming worked for Satellite pursuant to its written
policies.
16. Plaintiff Romaine Rusnak (Rusnak) is a Renal Dietician. Rusnak worked for
Satellite within Cook County, Illinois. Rusnak worked for Satellite pursuant to its written
policies.
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17. Defendant Satellite provides kidney dialysis services through outpatient dialysis
centers throughout the United States and within Cook County, Illinois. Before November 2018,
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Satellite owned and operated the dialysis center located at 2601 Compass Road in Glenview,
18. Defendant DaVita provides kidney dialysis services through outpatient dialysis
centers throughout the United States and within Cook County, Illinois. Upon information and
19. Since November 2018, DaVita owned and operated the dialysis center located at
2601 Compass Road in Glenview, Illinois and within Cook County, Illinois.
20. Defendant Klusmeyer is a registered nurse. During the relevant time period,
Klusmeyer was employed by Satellite and/or DaVita within Cook County, Illinois subject to
21. Jurisdiction is proper over defendants under 735 ILCS 5/2-209(a)(1)-(3) and (10).
22. Venue is proper in Cook County under 735 ILCS 5/2-101 because defendants
reside and/or conduct business within Cook County Illinois and most, if not all, of the acts
23. During the relevant time period, Satellite had written policies prohibiting
inappropriate conduct at work by which all of its employees were required to abide.
24. Under its written policies, Satellite prohibited misconduct, including sexually
inappropriate and offensive harassing conduct, and committed to providing a safe and secure
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25. Under its written policies, Satellite committed to take corrective actions against
employees for violating its written employment policies and/or engaging in misconduct as
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26. During the relevant time period, DaVita had written policies prohibiting
inappropriate conduct at work by which all of its employees were required to abide.
27. Under its written policies, DaVita prohibited misconduct, including sexually
inappropriate and offensive harassing conduct, and committed to providing a safe and secure
environment for, among others, its employees, including some Plaintiffs and the Class they seek
to represent. DaVita had specific written policies prohibiting unauthorized videotaping at work.
28. Under its written policies, DaVita committed to take corrective actions against
employees for violating its written employment policies and/or engaging in misconduct as
registered nurse at the dialysis center with Perry, Fukes and Rusnak.
30. In Fall 2015, Satellite promoted Klusmeyer to work as the Interim Clinic
31. Clinic Manager is the highest-ranking management position at the dialysis center.
In that capacity, Klusmeyer had and exercised the authority to, among other things, supervise
and control the conditions of employment for everyone who worked at the dialysis center.
32. After he was promoted to Clinic Manager, on several occasions, patients and staff
reported to Satellite complaints about Klusmeyer’s misconduct that violated Satellite’s policies.
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33. For example, patients reported that Klusmeyer treated them in an inappropriate
34. After he was named Clinic Manager, Klusmeyer began to engage in sexually
inappropriate and offensive harassing conduct toward women that violated Satellite’s policies.
35. For example, Klusmeyer shared videos and photographs with women he
supervised that were explicit, sexual or sexist in nature, and/or otherwise inappropriate.
Klusmeyer also told women he supervised jokes, stories, and/or innuendos that were explicit,
36. For example, Klusmeyer would frequently make sexual comments about staff and
other women such as “I would like to bend her over that car,” or “check out her ass” or comment
on the size of a woman’s “boobs,” or comment on whether a woman shaves her pubic hair, such
as “I bet she has bare floors” or “I bet she has a full bush.”
37. In addition, Klusmeyer disregarded the privacy rights of female staff members.
For example, on one occasion, Klusmeyer stated “look what I have access to” now that he was a
manager and showed a female employee his personal electronic device that contained her
personal information including where she lived, bankruptcy information, court dates from past
overdue medical bills and information from bill collectors. Based on Klusmeyer’s tone and
demeanor in making these statements, it appeared that the reason he was showing her that he had
access to this information was to demonstrate his power as manager and to intimidate her.
above violated Satellite’s policies, Satellite’s upper management acknowledged that Klusmeyer’s
misconduct and work performance was a problem. However, Satellite upper management liked
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39. For example, in response to reporting Klusmeyer to Satellite’s female Area
Manager, the Area Manager stated that Klusmeyer was “the best thing to happen to the clinic”
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and she left without taking any action. Satellite ignored and disregarded this report and others.
41. Satellite facilitated, permitted and tolerated a work environment that violated its
about him by ignoring them, and failing to intervene in the face of repeated misbehavior.
42. In May 2018, Satellite announced that DaVita acquired the dialysis center. Prior
to the acquisition, female employees reported Klusmeyer to DaVita upper management but they
43. In November 2018, DaVita took over operations at the dialysis center.
44. Despite the long and documented history of Klusmeyer’s misconduct, DaVita
chose to keep Klusmeyer in the same manager role that DaVita calls a “Facility Administrator.”
center. In that capacity, Klusmeyer had the authority to, among other things, supervise and
control the conditions of employment for everyone who worked at the dialysis center
46. After DaVita took over operations, Klusmeyer continued and escalated his
47. In Spring 2019, in response to reports that Klusmeyer’s conduct violated DaVita’s
policies, DaVita’s upper management acknowledged that Klusmeyer’s conduct was corroborated
by multiple sources and that prompt and effective corrective action would be taken.
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48. However, DaVita’s upper management liked Klusmeyer and expressed sympathy
for him because he was purportedly a “nice guy” close to retirement and did not want to see him
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49. Upon information and belief, DaVita took no corrective action against Klusmeyer.
C. Klusmeyer Pervasively Invades the Privacy of Women Working at the Dialysis Center
50. The dialysis center had, among other spaces, a staff lunchroom and, across the
hall from the staff lunchroom, two single-use bathrooms, one designated for use only by men and
51. During the relevant time period, Plaintiffs and the Class they seek to represent
used on a daily basis the women’s bathroom across the hall from the staff lunchroom.
52. Plaintiffs used the women’s bathroom at the direction of Satellite or DaVita,
53. Klusmeyer repeatedly chose to use the women’s bathroom instead of the men’s
bathroom. Klusmeyer had no legitimate reason for using the women’s bathroom at work.
54. Women who worked at the dialysis center repeatedly objected and reported that
they were uncomfortable with Klusmeyer frequent use of the women’s bathroom. However,
Klusmeyer ignored their concerns and continued to use the women’s bathroom.
55. During the relevant time period, Klusmeyer repeatedly placed a motion-activated
camera in the women’s bathroom focused on the toilet. Upon information and belief, Klusmeyer
used his camera to record, capture, view and distribute images of women undressing and using
the bathroom.
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56. Upon information and belief, Klusmeyer targeted and lured women into the
bathroom after he placed the camera in the room ostensibly for legitimate work purposes, such as
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to try on new scrubs that they were required to wear for work, so he could record them.
57. At least one of Klusmeyer’s cameras was constructed to look like an ordinary key
FOB. On or about July 23, 2019, Klusmeyer’s key FOB camera was identified and discovered
58. After Klusmeyer’s key FOB camera was discovered, women who worked at the
dialysis center recalled seeing the same or similar key FOB in the women’s bathroom for
59. For these and other reasons, and upon information and belief, Klusmeyer had
been placing a motion-activated camera in the women’s bathroom for approximately two years.
60. Klusmeyer was arrested by the Glenview Police Department and, based on the
circumstances, was charged with felony criminal conduct under the Illinois Criminal Code.
surrounding it, DaVita delayed terminating him and failed to take other corrective action in a
62. Plaintiffs and the Class they seek to represent sustained serious and permanent
injuries, emotional distress, and public embarrassment from Klusmeyer’s invasion of their
privacy and proximately caused by Satellite and DaVita facilitating, permitting and tolerating
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63. DaVita and/or Satellite knew and/or should have known that Klusmeyer had a
history of engaging in inappropriate conduct while working at the dialysis clinic in violation of
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its written policies. However, Satellite and DaVita facilitated, permitted and tolerated dangerous
D. Class Allegations
64. Under the Illinois Code of Civil Procedure, 735 ILCS 5/2-801, Plaintiffs bring
claims on their own behalf and as representatives of all other similarly situated individuals as a
class action to remedy the conduct alleged herein, on behalf of themselves and a class consisting
of all women who have worked at DaVita and/or Satellite at the dialysis center located at 2601
65. This action is properly maintained as a class action under 735 ILCS 5/2-801
because:
B. There are questions of law or fact that are common to the class;
C. The claims of the Representative Plaintiffs are typical of the claims of the
Class; and,
66. Upon information and belief, there are over seventy-five members of the proposed
class. The exact number of class members may easily be determined from Defendants’ records.
67. There are questions of fact and law common to the class, which are well-suited to
class-wide adjudication, and those common questions, which predominate over any questions
affecting only individual class members, including but not limited to the following: (a) the extent
to which Klusmeyer invaded the privacy of women who worked at the dialysis center; (b)
whether Satellite and/or DaVita breached the legal duty of care in supervising Klusmeyer; and
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(c) whether Satellite and/or DaVita acted with utter indifference and/or reckless disregard for the
68. Plaintiffs anticipate that Defendants will raise defenses that are common to the
Class.
69. The Representative Plaintiffs will fairly and adequately protect the interests of all
members of the Class, and there are no known conflicts of interest Plaintiff and class members.
The Representative Plaintiffs, moreover, have retained experienced counsel that are competent in
the prosecution of complex litigation and who have extensive experience acting as class counsel.
70. The claims of the Representative Plaintiffs are typical of the claims of the Class,
and they predominate over any questions affecting only individual class members. The
Representative Plaintiffs have the same interests and suffered from the same unlawful conduct as
the Class.
71. Upon information and belief, there are no other class members who have an
interest individually in controlling the prosecution of her individual claims. However, if any such
class member become known, she can “opt out” of this action pursuant to 735 ILCS 5/2-801.
72. The common questions identified above predominate over any individual issues,
which will relate solely to the quantum of relief due to individual class members. A class action
is superior to other available means for the fair and efficient adjudication of this controversy
because individual joinder of the parties is impracticable. Class action treatment will allow a
large number of similarly situated persons to prosecute their common claims in a single forum
simultaneously, efficiently and without the unnecessary duplication of effort and expense if these
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73. Additionally, important public interests will be served by addressing the matter as
a class action. The cost to the court system and the public for the adjudication of individual
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litigation and claims would be substantially more than if claims are treated as a class action.
Prosecution of separate actions by individual class members would create a risk of inconsistent
and varying adjudications, establish incompatible standards of conduct for Defendants and/or
substantially impair or impede the ability of class members to protect their interests. The issues
can be decided by means of common, class-wide proof. In addition, if appropriate, the Court can
and is empowered to fashion methods to efficiently manage the case as a class action.
COUNT I
INVASION OF PRIVACY
(Plaintiffs Against Defendants Klusmeyer and Satellite)
74. Plaintiffs adopt and incorporate by reference the Paragraphs set forth above.
75. Upon information and belief, at all times relevant hereto, including from 2015
when he became manager until November 2018, Klusmeyer willfully and intentionally, and
76. Upon information and belief, at all times relevant hereto, including from 2015
when he became manager until November 2018, Klusmeyer willfully and intentionally, and
without Plaintiffs’ knowledge, consent and/or authorization, video-taped and recorded them
bathroom focused on the toilet as alleged herein was an unauthorized intrusion and/or prying into
Plaintiffs’ seclusion.
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78. Klusmeyer’s conduct in placing a motion-activated camera in the women’s
bathroom focused on the toilet as alleged herein was offensive and/or objectionable to a
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reasonable person.
bathroom focused on the toilet as alleged herein was an unauthorized, offensive, objectionable
and unlawful intrusion into Plaintiffs’ private and intimate person, surroundings and matters.
reasonable person.
81. Satellite is liable for Klusmeyer’s conduct as described herein under the doctrine
of respondeat superior because Klusmeyer engaged in such conduct within the scope of his
and intrusion into their seclusion, Plaintiffs have and will continue to suffer harm and damages,
including but not limited to pain and suffering, emotional distress, humiliation, vexation and
costs of treatment.
COUNT II
INVASION OF PRIVACY
(Plaintiffs Against Klusmeyer and DaVita)
83. Plaintiffs adopt and incorporate by reference the Paragraphs set forth above.
84. Upon information and belief, at all times relevant hereto, including from
November 2018 until July 23, 2019, Klusmeyer willfully and intentionally, and without
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85. Upon information and belief, at all times relevant hereto, including from
November 2018 until July 23, 2018, Klusmeyer willfully and intentionally, and without
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Plaintiffs’ knowledge, consent and/or authorization, video-taped and recorded them while they
bathroom focused on the toilet as alleged herein was an unauthorized intrusion and/or prying into
Plaintiffs’ seclusion.
bathroom focused on the toilet as alleged herein was offensive and/or objectionable to a
reasonable person.
bathroom focused on the toilet as alleged herein was an unauthorized, offensive, objectionable
and unlawful intrusion into Plaintiffs’ private and intimate person, surroundings and matters.
reasonable person.
90. DaVita is liable for Klusmeyer’s conduct as described herein under the doctrine of
respondeat superior because Klusmeyer engaged in such conduct within the scope of his
and intrusion into their seclusion, Plaintiffs have and will continue to suffer harm and damages,
including but not limited to pain and suffering, emotional distress, humiliation, vexation and
costs of treatment.
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COUNT III
NEGLIGENCE
(Defendant Satellite)
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92. Plaintiffs adopt and incorporate by reference the Paragraphs set forth above.
93. During the relevant time period, Satellite, by and through its duly authorized
agents, servants and/or employees had and undertook a duty to provide a reasonably safe and
harassment free work environment for people who worked at the dialysis center, including
Plaintiffs.
94. During the relevant time period, Satellite, by and through its duly authorized
agents, servants and/or employees had and undertook a duty to take action to monitor, supervise,
discipline, and if warranted, remove from employment any employee if they engaged in conduct
which violated Satellite’s written policies, including policies prohibiting, among other things,
95. During the relevant time period, Satellite, by and through its duly authorized
agents, servants and/or employees possessed a separate, independent duty to exercise reasonable
care in the provision of a reasonably safe work environment, including the duty to suspend, bar
and/or terminate from working at and/or employment with Satellite, any employee who it knew
or should have known was engaging in conduct that, among other things, violated its own written
96. During the relevant time period, Satellite, by and through its duly authorized
agents, servants and/or employees breached the above stated duty of care by engaging in
multiple negligent, careless and reckless acts and/or omissions, including the following:
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A. Before the incidents alleged in this Complaint, Satellite knew or
should have known that Klusmeyer was a mentally unstable person who engaged
in inappropriate conduct at work that violated its written employment policies but
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97. As a direct and proximate result of one or more of the foregoing breaches, acts or
omissions by Satellite, including its failure to properly supervise, monitor, discipline and/or take
corrective actions with respect to Klusmeyer, as well as its failure to provide a secure area in
which Plaintiffs and other female employees could use the bathroom as otherwise alleged herein,
Plaintiffs were seriously harmed and damaged in the manner further described in this count.
98. Satellite acted in a grossly negligent and recklessly dangerous manner in failing to
properly supervise, monitor, discipline and/or take other corrective actions with respect to
Klusmeyer’s conduct and by failing to provide a secure area in which Plaintiffs and other female
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COUNT IV
NEGLIGENCE
(Defendant DaVita)
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99. Plaintiffs adopt and incorporate by reference the Paragraphs set forth above.
100. During the relevant time period, DaVita, by and through its duly authorized
agents, servants and/or employees had and undertook a duty to provide a reasonably safe and
harassment free work environment for people who worked at the dialysis center, including
Plaintiffs.
101. During the relevant time period, DaVita, by and through its duly authorized
agents, servants and/or employees had and undertook a duty to take action to monitor, supervise,
discipline, and if warranted, remove from employment any employee if they engaged in conduct
which violated DaVita’s written policies, including policies prohibiting, among other things,
102. During the relevant time period, DaVita, by and through its duly authorized
agents, servants and/or employees possessed a separate, independent duty to exercise reasonable
care in the provision of a reasonably safe work environment, including the duty to suspend, bar
and/or terminate from working at and/or employment with DaVita, any employee who it knew or
should have known was engaging in conduct that, among other things, violated its own written
103. During the relevant time period, DaVita, by and through its duly authorized
agents, servants and/or employees breached the above stated duty of care by engaging in
multiple negligent, careless and reckless acts and/or omissions, including the following:
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A. Before the incidents alleged in this Complaint, DaVita knew or
should have known that Klusmeyer was a mentally unstable person who engaged
in inappropriate conduct at work that violated its written employment policies but
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104. As a direct and proximate result of one or more of the foregoing breaches, acts or
omissions by DaVita, including its failure to properly supervise, monitor, discipline and/or take
corrective actions with respect to Klusmeyer, as well as its failure to provide a secure area in
which Plaintiffs and other female employees could use the bathroom as otherwise alleged herein,
Plaintiffs were seriously harmed and damaged in the manner further described in this count.
105. DaVita acted in a grossly negligent and recklessly dangerous manner in failing to
properly supervise, monitor, discipline and/or take other corrective actions with respect to
Klusmeyer’s conduct and by failing to provide a secure area in which Plaintiffs and other female
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WHEREFORE, Plaintiffs respectfully request that this Court enter an Order:
A. Certifying this case as a class action on behalf of the Class defined above,
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appointing Plaintiffs Christen Perry, Biana Fukes, Anna Willming and Romaine
Rusnak as Class Representatives, and appointing Kulwin, Masciopinto & Kulwin,
LLP and Stephan Zouras, LLP as Class Counsel;
F. Awarding Plaintiffs and the Class reasonable attorneys’ fees, costs and other
litigation expenses; and,
G. Awarding such other and further relief as equity and justice may require.
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Dated: September 4, 2019 Respectfully submitted,
Jeffrey R. Kulwin
KULWIN, MASCIOPINTO & KULWIN, L.L.P.
161 North Clark Street, Suite 2500
Chicago, Illinois 60601
T: 312.641.0300
F: 312.855.0350
Firm ID: 43136
James B. Zouras
Ryan F. Stephan
Teresa M. Becvar
STEPHAN ZOURAS, LLP
100 North Riverside Plaza, Suite 2150
Chicago, IL 60606
T: 312.233.1550
F: 312.233.1560
Firm ID: 43734
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