[nfbmi-talk] looks like public domain to me anyone disagree?
joe harcz Comcast
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Sat May 8 00:59:11 UTC 2010
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
______________________________
TERRY D. EAGLE,
Case No.: 1:10-cv-212
PLAINTIFF.
V Hon. Judge Janet T. Neff
PATRICK D. CANNON COMPLAINT AND DEMAND
Individually and in his FOR JURY TRIAL
Official capacity
JO ANN PILARSKI
Individually and in her
Official capacity
CONSTANCE ZANGER
Individually and in her
Official capacity
JAMES HULL
Individually and in his
Official capacity
CHERYL L.HEIBECK
Individually and in her
Official capacity
GARY KOSCH
Individually
DEFENDANTS.
______________________________
TERRY D. EAGLE
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
______________________________/
Complaint – Page 2
Now comes the plaintiff and states:
1. This is a civil action seeking damages and declartory
relief against Defendants for committing acts, under color of
law, which deprived plaintiff of rights clearly established and
secured under the Constitution and laws of the United States;
for conspiring with the intent to deny Plaintiff equal
protection of laws; and refusing or negligently prevent the
deprivation and denials to Plaintiff. The Court has
jurisdiction of this action under 42 U.S.C. § 1983 and 28 U.S.C.
§ 1343.
2. The Court also has jurisdiction under 28 U.S.C.
§ 1331.
3. The Plaintiff, Terry D. Eagle, is a citizen and
resident of the City of Lansing, County of Ingham, State of
Michigan, and United States of America.
4. Defendants are citizens and residents of the State of
Michigan, and the United States of America.
5. Defendant, Patrick D. Cannon, is Director of the
Michigan Commission for the Blind.
6. Defendant, Jo Ann Pilarski, is the Chair of the Board
of Commissioners of the Michigan Commission for the Blind.
7. Defendant, Constance Zanger, is the Manager of the
Complaint – Page 3
Business Enterprise Program, Michigan Commission for the Blind.
8. Defendant, James Hull, is the Assistant Program
Manager of the Business Enterprise Program, Michigan Commission
for the Blind.
9. Defendant, Cheryl L. Heibeck, is Business Services
Manager for the Michigan Commission for the Blind, and conspired
And participated in the deprivations and denials to the
Plaintiff.
10. Defendant, Gary Kosch, is or was an agent, under color
of law, of the Business Enterprise Program, Michigan Commission
for the Blind, and conspired And participated in the
deprivations and denials to the Plaintiff.
11. Plaintiff sues each Defendant, except Gary Kosch, in
both their individual and official capacities.
12. At all times material to this complaint, Defendants
acted under color of the statutes, customs, rules, policies, and
usage of the State of Michigan, Commission for the Blind, and
Business Enterprise Program.
COUNT I
VIOLATION OF THE FEDERAL RANDOLPH-SHEPPARD ACT
1 – 12. Plaintiff realleges paragraphs 1 – 12, and hereby
incorporates them as though set forth herein.
Complaint – Page 4
13. The express purposes of the Randolph-Sheppard Act,
20 U.S.C. § 107 et. Seq., is providing blind persons with
remunerative employment, enlarging the economic opportunities of
the blind, and stimulating the blind to greater efforts in
striving to make themselves self-supporting blind persons,
licensed under the provisions of the Act.
14. To achieve the purposes of the Act, the Act provides
that a priority shall be given to qualified blind persons
licensed to operate vending facilities on federal property.
15. Section 107d-3(e) of the Act authorizes a priority to
operate cafeterias on federal property by blind persons licensed
to operate vending facilities.
16. Section 107a(b) imposes a duty upon the state licensing
agency issuing licenses to operate vending facilities, to give
preference to blind persons in need of employment, and such
licenses shall be issued only to applicants who are blind within
the meaning of section 107e of the Act.
17. At all times material to this cause of action the
Plaintiff met the meaning of a blind person within the meaning
of the Act.
18. At all times material to this cause of action the
Plaintiff was certified as a qualified cafeteria operator by the
Complaint – Page 5
Michigan Commission for the Blind, the state licensing agency
for the Randolph-Sheppard Vending Facility Program.
19. The Plaintiff previously was licensed as a qualified
certified cafeteria operator for over ten years in the Business
Enterprise Program, Michigan Commission for the Blind.
20. The Plaintiff previously surrendered his license to
operate a cafeteria under the Randolph-Sheppard Vending Facility
Program Act, because of successful eye surgery the Plaintiff no
longer met the meaning of a blind person as defined and required
to participate as a licensee pursuant to the Act.
21. The Plaintiff left remunerative employment from the
Business Enterprise Program, Michigan Commission for the
Blind, with the status of a successful cafeteria operator in
Good standing, and eligible to return as a licensee should he
Meet the meaning of a blind person pursuant to the Act.
22. The Plaintiff was vested in the program’s retirement
plan, and is eligible for additional retirement plan
contributions upon return as a blind licensee.
23. In 2005, the Plaintiff’s vision deteriorated because
of disease of the eye known as glaucoma.
24. Because of the glaucoma the Plaintiff again was
certified as legally blind, and Plaintiff surrendered his
Complaint – Page 6
Michigan motor vehicle driver’s license to the Michigan
Secretary of State.
25. The Plaintiff then became unemployed.
26. Over an extended period of months preceding this
Complaint, the Michigan vending facility program has experienced
a serious lack of qualified cafeteria certified blind
persons to operate cafeterias.
27. On or about February 2, 2010, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located within the U.S.P.S. Mail
Distribution Center at the Metroplex facility in Pontiac.
28. On or about February 2, 2010, DEFENDANT ZANGER
rejected the Plaintiff’s application to operate the cafeteria
facility.
29. The award status of the U.S.P.S. Metroplex is unknown
To the Plaintiff.
30. On or about December 1, 2009, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located within the McNamara
federal building in Detroit.
31. On or about December 1, 2009, DEFENDANT HULL rejected
the Plaintiff’s application to operate the McNamara cafeteria.
Complaint – Page 7
32. The McNamara cafeteria vending facility was awarded to
DEFENDANT KOSCH, a sighted person.
33. Evidence exists that DEFENDANTS ZANGER, HULL, and
KOSCH conspired to award the cafeteria operation to KOSCH ever
since it became available.
34. On or about 26, 2007, Plaintiff made application as a
returning qualified cafeteria certified blind person to operate
the cafeteria located within the U.S.P.S. Mail Distribution
Center at the Metroplex facility in Pontiac.
35. On or about December 26, 2007, DEFENDANT ZANGER
rejected the Plaintiff’s application to operate the cafeteria
facility.
36. The U.S.P.S. Metroplex cafeteria was awarded to a
blind person who was untrained in cafeteria management, and
did not possess cafeteria certification as required by program
rules.
37. DEFENDANTS ZANGER, HULL, HEIBECK, CANNON, and
PILARSKI, in concert and color of law, have at all times
material to this cause of action, assigned untrained sighted
persons as operators of vending facilities statutorily reserved
for blind persons, on a temporary and ongoing basis, while
denying and depriving the Plaintiff of his right and interests
Complaint – Page 8
under provisions of clearly
established federal law, the Randolph-Sheppard Act, of which the
Plaintiff is a member of the class of persons the law clearly
intended to guarantee certain and specific rights, privileges,
and benefits.
COUNT II
DISCRIMINATION AGAINST PLAINTIFF IN TRAINING AND LICENSING
Plaintiff realleges paragraphs 1 – 12, and paragraphs 13 –
37 of Count I, and hereby incorporates them as though set forth
herein.
38. The Michigan vending facility program for the blind
maintains and practices a program licensing training and
retraining rules and policies that are so disparate for
achieving the same licensing goal, that such rules and policies
discriminates against cafeteria trained and certified blind
persons, especially those blind persons, like the Plaintiff,
whom seek to be licensed to return to the program for
employment.
39. In the Fall of 2008 the Michigan vending facility
program adopted and implemented a training and licensing policy
for out-of-state blind persons trained and licensed to operate
Complaint – Page 9
vending facilities in other states, and seek to be licensed
for employment in the Michigan vending facility program.
40. The newly adopted training and licensing policy for
out-of-state blind persons seeking to be licensed in Michigan,
evaluates and licenses a blind person on a case-by-case basis,
based on the person’s previous training and experience. Such
policy and practice discriminates against previously licensed
in-state cafeteria certified blind persons, including the
Plaintiff, whom are required to participate in a full
retraining program before being licensed.
41. Such disparate training and licensing rules and
policies fundamentally violate the purposes of the Randolph-
Sheppard Vending Facilities Act.
42. Such disparate training and licensing rules and
policies fundamentally violate the purposes of the federal
Rehabilitation Act of 1973m, as amended, 29 U.S.C. § 701
et. Seq.
43. There is no reasonable, rationale, or compelling state
interest to justify the existence of the disparate and
discriminatory treatment between blind persons whom seek to be
licensed, and caused by the rules and policies of the Michigan
vending facilities program.
Complaint – Page 10
COUNT III
PENDANT STATE LAW CLAIMS
Plaintiff realleges paragraphs 1 – 12, paragraphs 13 –
37 of Count I, and paragraphs 38 – 43 of Count II, and hereby
incorporates them as though set forth herein.
44. The Business Enterprise program of the Michigan
Commission for the Blind operates a vending facility program for
the purpose of self-supporting employment of qualified licensed
blind persons at concessions on state owned and leased property.
45. The Business Enterprise Program is authorized and
governed pursuant to the applicable provisions of Michigan
Public Act 260 of 1978, as amended, being MCL § 393.351 –
§ 393.369.
46. P.A. 260 clearly establishes that concessions on state
owned and leased property are reserved for operation by blind
persons.
47. On or about January 7, 2010, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located within the State General
Office building in Dimondale.
48. The General Office building cafeteria was the first of
three cafeterias the Plaintiff previously operated in the
Business Enterprise Program.
Complaint – Page 11
49. On or about January 7, 2010, DEFENDANT HULL
rejected the Plaintiff’s application to operate the General
Office building cafeteria.
50. The General Office building cafeteria was
awarded to an untrained sighted person.
51. On or about September 28, 2009, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located within the State House
of Representatives office building in downtown Lansing.
52. On or about September 29, 2009, DEFENDANT ZANGER
rejected the Plaintiff’s application to operate the House of
Representatives cafeteria.
Complaint – Page 11
53. The House of Representatives cafeteria was
awarded to a blind person who was untrained in cafeteria
management, and does not possess cafeteria certification as
required by program rules.
54. On or about December 21, 2009, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located within the Lewis Cass
state office building in downtown Lansing.
55. On or about December 22, 2009, DEFENDANT ZANGER
Complaint – Page 12
rejected the Plaintiff’s application to operate the Lewis Cass
Building cafeteria.
56. The award status of the Lewis Cass building cafeteria
is unknown to the Plaintiff.
57. On or about December 3, 2007, Plaintiff made
application as a returning qualified cafeteria certified blind
person to operate the cafeteria located at the Michigan Joint
Reserve Training Center in Lansing.
58. On or about September 4, 2007, DEFENDANT ZANGER
rejected the Plaintiff’s application to operate the Michigan
Joint Reserve Training Center cafeteria.
59. The Michigan Joint Reserve Training Center cafeteria
Was awarded to a blind person whom is untrained in cafeteria
management, and does not possess cafeteria certification as
required by program rules.
60. Between May 14, 2007 through September 17, 2007
DEFENDANT ZANGER allowed the Plaintiff to “temporarily” operate
a vending facility at the State Victor Center in downtown
Lansing.
61. The Plaintiff successfully operated the Victor Center
vending facility; cleaning it up and maintaining its cleanliness
to proper sanitation standards and guest attraction and appeal;
Complaint – Page 13
effectively expanding the selection of merchandise available to
guests, by increasing the merchandise inventory for maximum and
effective merchandising; expanding the guest base and loyalty.
And maintaining compliance with program policies and rules.
62. The Plaintiff was replaced by a newly trained and
licensed blind person new to the vending facility program.
63. Since September 18, 2007, the DEFENDANTS have not
utilized the Plaintiff to operate a vending facility as a
“temporary” operator or licensee, notwithstanding the Plaintiff
being outspoken about being unemployed and available to operate
a bending facility, as evidenced by his multiple applications to
be licensed and operate a cafeteria facility.
64. Despite the Plaintiff’s availability and attempts to
be employed and operate a program vending facility, the
DEFENDANTS have either employed untrained sighted persons or
closed vending facilities for a period of time, rather than
employ or license the Plaintiff. These practices have been
utilized at multiple vending over the past two years.
65. The practices of the DEFENDANTS identified in
paragraph 64 constitute a violation of state statute P.A. 260 of
1978, and is evidence of negligence per se.
Complaint – Page 14
66. During the first quarter 2007, while DEFENDANT KOSCH,
a sighted person, was operating the State House of
Representatives cafeteria, commonly known as the State Plate
cafeteria, the Plaintiff attempted to negotiate an agreement
with KOSCH, whereby the Plaintiff would become the operator of
the State Plate cafeteria.
67. DEFENDANTS ZANGER and HEIBECK conspired and acted with
KOSCH to prevent the Plaintiff from becoming the operator of the
State Plate cafeteria.
68. The State Plate cafeteria remained under the control
and operation of KOSCH.
69. As a result of their concerted and malicious acts
toward the Plaintiff, DEFENDANTS ZANGER, HULL, HEIBECK, and
KOSCH intentionally or with deliberate indifference or callous
disregard of the Plaintiff’s rights, deprived the Plaintiff of
his right to equal protection under the laws, in violation of
the Fourteenth Amendment of the Constitution of the United
States and 42 U.S.C. § 1983
COUNT IV
FAILURE TO SUPERVISE
Plaintiff realleges paragraphs 1 – 12, paragraphs 13 –
37 of Count I, and paragraphs 38 – 43 of Count II, and
Complaint – Page 15
paragraphs 44 – 69 of COUNT III, and hereby incorporates them as
though set forth herein.
70. At all times relevant to this Complaint DEFENDANTS
ZANGER, HULL, HEIBECK, and KOSCH were acting under the direction
and control of DEFENDANTS CANNON and PILARSJI.
71. Acting under color of law and pursuant to official
policy or custom, DEFENDANTS CANNON and PILARSKI knowingly,
recklessly, or with deliberate indifference and callous
disregard for the Plaintiff’s rights, failed to instruct,
supervise, control, and discipline DEFENDANTS ZANGER, HULL,
HEIBECK and KOSCH in their duties to refrain from (1) unlawfully
and maliciously harassing a citizen who was acting in accordance
with his lawful constitutional and statutory rights, privileges,
and immunities guaranteed to the Plaintiff by the Constitution
and laws of the United States and the laws of State of
Michigan; and (2) otherwise depriving the Plaintiff of his
constitutional and statutory rights, privileges, and immunities.
72. DEFENDANTS CANNON and PILARSKI had knowledge or, had
they diligently exercised their duties to instruct, supervise,
control and discipline on a continuing basis, should have had
knowledge that the wrongs conspired to be done, as herein
alleged, were about to be done. DEFENDANTS CANNON and PILARSKI
Complaint – Page 16
had power to prevent or aid in preventing the commission of said
wrongs, could have done so with reasonable diligence, and
knowingly, recklessly, or with deliberate indifference and
callous disregard for the Plaintiff’s rights failed or refused
to do so.
73. DEFENDANTS CANNON and PILARSKI, directly or
indirectly, under color of law, approved or ratified the
unlawful, deliberate, malicious, reckless and wanton conduct of
DEFENDANTS ZANGER, HULL, HEIBECK, and KOSCH herein described.
COUNT V
CONSPIRACY TO VIOLATE PLAINT’S RIGHTS
Plaintiff realleges paragraphs 1 – 12, paragraphs 13 –
37 of Count I, and paragraphs 38 – 43 of Count II, and
paragraphs 44 – 69 of COUNT III, and paragraphs 70 – 73 of COUNT
IV, and hereby incorporates them as though set forth herein.
74. ON or about November 22, 2009, DEFENDANTS ZANGER,
HULL, and KOSCH conspired by agreement that KOSCH, a sighted
person, would take over, and indeed in fact did assume
operation of the McNamara federal building cafeteria and snack
shop from a blind person, thus eliminating and depriving the
Plaintiff of an employment opportunity to return to the program
Complaint – Page 17
as a qualified cafeteria certified blind person to operate the
cafeteria, and leave the ranks of the unemployed blind. Such
agreement and act of operating the food service facility
completed the conspiracy under color of law, to violate the
Plaintiff’s rights guaranteed under the Fourteenth Amendment of
the Constitution and federal laws of the United States and State
of Michigan, and protected by 42 U.S.C. § 1983.
75. On or about March 12, 2007, DEFEMDANTS ZANGER,HEIBECK,
and KOSCH conspired by agreement and action that KOSCH, a
sighted person, would retain management and operational control
take over, and indeed in fact did operate the Michigan House of
Representatives office building cafeteria, preventing an
agreement to be signed by the Plaintiff to operate the
cafeteria, and thereby eliminated and deprived the Plaintiff an
employment opportunity to return to the program as a qualified
cafeteria certified blind person to operate the cafeteria and
leave the ranks of the unemployed. Such agreement and act of
preventing the Plaintiff from signing an agreement to operate
the food service facility completed the conspiracy under color
of law, to violate the Plaintiff’s rights guaranteed under the
Fourteenth Amendment of the Constitution and federal laws of
the United States and State of Michigan, and protected by
42 U.S.C. § 1983.
Complaint – Page 18
PRAYER FOR RELIEF
As a direct and proximate cause of the acts of the
DEFENDANTS, the Plaintiff suffered loss of income and severe
mental and emotional distress in connection with the deprivation
of his constitutional and statutory rights guaranteed by the
Fourteenth Amendment of the Constitution of the United States
and protected by 42 U.S.C. 1983.
WHEREFORE, Plaintiff, Terry D. Eagle, demands judgment
Against DEFENDANNTS CANNON, PILARSKI, ZANGER, HULL, HEIBECK, and
KOSCH, for compensatory damages in the amount of $400,000.and
Further demands judgment against all DEFENDANTS for punitive
damages in the amount of $2,500,000., plus the costs of this
action and such other monetary relief as the Court deems just
and equitable.
FURTHER, Plaintiff demands declaratory judgment by the
Honorable Court as to the rights of the Plaintiff, and the
duties of the Defendants with regard to the federal Randolph-
Sheppard Act, 20U.S.C. 107 et.seq.; and Public Act 260 of 1978,
as amended, being MCL 393.351 et. Seq., of the Michigan
statutes.
Complaint – Page 19
DEMAND FOR JURY TRIAL
The Plaintiff hereby demands a trial by jury to hear and
decide the merits of this cause of action.
DECLARATION
The undersigned, Terry D. Eagle, declares under penalty
Of perjury that he is the Plaintiff in the above action, and he
has read the complaint, and the information therein is true and
correct to the best of his knowledge, information, and belief.
Dated: _______________ _____________________________
Terry D. Eagle
Plaintiff in Pro Se
2000 Boston Blvd.
Apt. C19
Lansing MI 48910-2448
Tel: (517) 372-7552
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