Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 1 of 13 PAGEID #: 1 UMTED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION S.H., a minor child, CascNo. and Judge Denise Lynn Wafts, on her own behalf and on behalf of S.H., VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND MONETARY DAMAGES PLAINTIFFS, vs. (JURY DEMAND) GREAT MIAMI VALLEY YMCA do James L. ViIIiams Chief Executive Officer DEFENDANT. I. INTRODUCTION I. This case seeks equal access to summer camp and inclusion for a young child with Down syndrome. The case juxtaposes a beautiful six-year old child with Down syndrome who wants to be included in a regular summer camp program with an entity that touts its virtues in providing opportunities for everyone, changing lives, increasing learning, and building healthy minds and bodies for all. Yet the summer camp provider refuses to include this child in its regular camp program, refuses to make reasonable modifications to its practices and procedures or provide reasonable accommodations to the child, refuses, in fact, to even assess the child to discern the reasonable modifications to its practices and procedures. 2. S.H. is a six-year old child with Down syndrome. Defendant Great Miami Valley YMCA (“YMCA”) used S.H. as a poster child for its programs with the tag lines “Providing Opportunities for Everyone” and “Changing Lives.” The YMCA similarly used a photograph of S.H. with United States Secretary of Education Arne Duncan and the tag line “Increase 1 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 2 of 13 PAGEID #: 2 Learning.” The YMCA then hypocritically told S.H. that he could not attend the YMCA summer camp with typically developing children and that the YMCA would not provide reasonable accommodations for Ski. 3. The YMCA’s website states: “Our Mission: To put Christian principles into practice through programs that build healthy spirit, mind, and body for all.” 4. S.H. and his mother file this lawsuit to enforce their rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 to freedom from discrimination and retaliation based on S.H.’s disability. They do not deny that the YMCA needs to make reasonable modifications in its practices and procedures for the YMCA’s summer camp and before school and after school programs. They challenge the Defendant YMCA’s reffisal to provide those reasonable modifications. The YMCA illegally discriminated and retaliated against S.H. on the basis of his disability and denied him the fill and equal enjoyment of the benefits of the YMCA’s programs otherwise available to individuals without disabilities. 11. JURISDICTION AND VENUE 5. The Court has jurisdiction pursuant to 28 U.S.C. 1331 and 28 U.S.C. 1367. 6. Venue is proper in this district. S.H. and Denise Wafts reside in the district and the Defendant does business in the district and injured the Plaintiffs in the district. III. PARTIES 7. S.H. is a minor six-year old child with Down syndrome. 8. Denise Lynn Wafts (“Ms. Watts”) is the mother of S.H. 9. Defendant Great Miami Valley YMCA is a private entity operating places of public accommodation in Butler County, Ohio. The YMCA operates summer camps, before 7 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 3 of 13 PAGEID #: 3 school programs, and afier school programs. Upon information and belief, the YMCA receives federal financial assistance and other government benefits. IV. STATEMENT OF FACTS 10. SkI. attends the Miller Ridge School in the Middletown City Schools. 11. 5.11. has an IEP (Individualized Education Program) to accommodate his needs in 12. For the sake of S.H.’s welfare, Ms. Watts openly shared with school officials and school. the YMCA that it was possible that S.H. would leave designated areas and encouraged that staff be informed of that possibility and trained to mitigate that risk. S.H.’s IEP does not have or need any designated behavior goals directed at modiing S.H.’s possible behavior leaving designated areas. 13. As 5.11. has matured the possibility he will leave designated areas has significantly reduced. S.H. has made great gains over time with reasonable accommodations and has proven that he can be successful and safe in different environments. 14. Ms. Watts believes that with reasonable modifications to the YMCA’s practices and procedures S.H. is able to successfully and safely participate in the YMCA’s summer camp for typically developing children (“Adventure Camp” or “Atrium Branch Camp”) and the YMCA’s before school and after school programs. Ms. Watts’ life is dedicated to the welfare of 5.11. and she would never do anything whatsoever to jeopardize his health and safety. 15. In her words, Ms. Watts asserts: “It is my job as S.H.’s parent to provide him with all the learning tools needed for him to become a valuable and independent member of his community. Because when I’m gone, well I’m going to need his community to help take care of him.” 3 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 4 of 13 PAGEID #: 4 16. Ms. Watts told the YMCA: “I would prefer he stay with the peers that he has grown up with through your programs at the Y. He has proven success in the after care program with reasonable accommodations . . . . Another reason why I would like for him to remain in your program and use your summer care is the consistency and familiarity of the staff and kids that he has known for the past few years.” 1 7. The United States Department of Justice has emphasized that ensuring that summer camps do not discriminate against persons with disabilities “is an issue of general public importance.” 18. The Adventure Camp is operated from the Atrium YMCA in Middletown, a location Si-I. has attended for three years when school is closed. Ms. Watts consented to modi& the Adventure Camp programming for S.H. so that, for example, he would stay in the gym with non-swimmers rather than go to the pool. 19. S.H. has previously actively resisted participating in programs restricted to just special needs students. By contrast, he has thrived in programs including many typically- developing peers. 20. S.H. attended the YMCA’s before school program and after school program located in his elementary school. In August 2014, the YMCA terminated S.H. from its before school program. The YMCA also restricted S.H.’s daily time in the after school program to 15- 30 minutes. Si-I. had previously attended a preschool program operated at Miami University of Middletown without incident. The YMCA even refused to provide S.K. the reasonable accommodation of providing him his after school snack at the time he arrived hungry at the after school program. Ms. Watts recommended other reasonable accommodations for the YMCA’s 4 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 5 of 13 PAGEID #: 5 before school and after school programs to allow S.H. equal access and full inclusion but the YMCA ignored her recommendations. 21. The ‘y7VICA used S.H. as its poster child for some of its programs. It used an additional photograph of S.H. with USDOE Secretary Arne Duncan in other promotional materials. Attached exhibits. 22. Notwithstanding its proclamations of opportunities for all, changing lives, learning, and Christian principles, and in disregard of S.H.’s actual current status and abilities, over the past year the YMCA repeatedly informed Ms. Waifs that it would not permit S.H. to attend Adventure Camp for typically developing children, that it was not an option for S.H., that the YMCA would not properly train its staff to help S.H., and the YMCA would not provide him reasonable accommodations. Instead, the YMCA insisted that 5.11. attend Camp Campbell Gard, a camp solely for children with disabilities. The YMCA has discriminated and retaliated against S.H. based solely upon his disability. 23. YMCA officials directed Ms. Waifs to inquire about the availability of Camp Campbell Gard. When Ms. Waifs called Camp Campbell Gard the officials informed her that the camp was frill and there was no waiting list. Later in the year when Ms. Watts again urged the YMCA to accept S.H. into Adventure Camp the YMCA officials repeated that “it was not an option for 5.11. to attend Adventure Camp. . . . “[W]e are holding firm on the decision that was made on March 12, 2015.” 24. S.H. and Ms. Watts have very limited fixed income. Camp Campbell Gard is much more expensive to attend than Adventure Camp. If Camp Campbell Gard becomes available for part of the summer Ms. Watts will try to have Ski. attend so that he at least has Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 6 of 13 PAGEID #: 6 some summer activity, albeit only for a short period of time, and so she can provide some respite for herself. 25. The YMCA left S.H. unattended on several occasions while 5.1-I. was enrolled in the YMCA’s child care programs. The YMCA was required to report these incidents to the State of Ohio. As a result, Ohio downgraded the YMCA’s regulatory status and United Way reduced the YMCA’s ifinding. In order to maintain its regulatory status and United Way funding, the YMCA has retaliated against S.1-I. by significantly limiting his participation in the YMCA’s programs. 26. The YMCA also informed Ms. Watts that it is applying a “Three Strikes and You’re Out!” policy against S.H. In other words, if the YMCA believes that 5.11. has violated a rule, even if his behavior is related to his disability, the YMCA will first suspend 5.11. and then fully terminate SkI. from its before school and after school programs. At this point in time, the YMCA claims that S.H. has “two strikes” and has, in fact, previously suspended him from its programs. If S.H. gets one more strike the YMCA will expel S.H. The YMCA is expressly holding its “Three Strikes” policy over the heads of S.H. and Ms. Watts with the plain threat that S.H. will be expelled from YMCA programs after one more YMCA unilaterally called “strike three.” 27. Ms. Wafts described the burden of the YMCA’s mistreatment of S.H. and her: “It’s a disrespect to all those before me that fought for my son to have what he has and it’s an injustice to those who have yet to walk this path. I told the YMCA that I don’t ever want to see another parent have to go through what I’ve been through.” 28. One example of the many ongoing injuries to 5.11. and Ms. Wafts is the trip S.H. missed with the Adventure Camp on June 19, 2015, to the Children’s Museum of Indianapolis. 6 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 7 of 13 PAGEID #: 7 In Ms. Watts words: “That hurts. That is something that I would love to provide for S.H. But on my own I can’t afford to take him and on my own I would have no peers to model for him. That would have been an amazing experience for him.” 29. The paradox of this situation for S.H. and Ms. Watts is that the YMCA reffised to provide S.H. reasonable accommodations and reffised to properly train its staff to help S.H. Those failures by the YMCA contribute to the YMCA’s false and pretextual perception that S.H. currently leaves designated areas. The YMCA cannot be permitted to blame S.H. for the YMCA’s own culpable conduct. The hypocrisy of this situation is that the YMCA intimates that in the past Si-I. was involved in alleged incidents of leaving designated areas that the YMCA was required to report to the State of Ohio yet the YMCA did not report all those alleged incidents to the State of Ohio. 30. Ms. Wafts was formerly employed by the YMCA for a number of years. The YMCA unlawfully terminated Ms. Wafts from her employment with the YMCA because she engaged in protected advocacy for S.H. Ms. Wafts’ employment claims against the YMCA are the subject of her own separate litigation. However, the YMCA also discriminated and retaliated against S.H., in the manner explained in this Verified Complaint, because of Ms. Wafts’ protected advocacy for him. S.H.’s own discrimination and retaliation claim against the YMCA is part of the case at bar. 31. Not only did the YMCA terminate Ms. Wafts as its own employee the YMCA also willfully caused the employment termination of a third person by an unrelated employer for the sole reason that the person had provided advocacy assistance to Ms. Wafts and S.H. by identiing several potential resources for Ms. Watts. 7 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 8 of 13 PAGEID #: 8 32. The YMCA’s unlawful conduct excluding S.H. from summer camp and otherwise failing to reasonably accommodate him and retaliating against him has adversely affected S.H.’s physical and emotional health. The YMCA’s unlawful conduct excluding S.H. from summer camp and otherwise failing to reasonably accommodate him and retaliating against him has adversely affected Ms. Watts’ physical and emotional health. V. CAUSES OF ACTION FIRST CAUSE OF ACTION: THE YMCA UNLAWFULLY FAILED TO PROVIDE REASONABLE ACCOMMODATIONS TO S.H. FOR SUMMER CAMP AS REQUIRED BY TITLE III OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. 12181, et seq. 33. Plaintiffs incorporate by reference the preceding paragraphs. 34. Title III of the Americans with Disabilities Act requires that the YMCA make reasonable modifications to its practices and procedures to afford S.H. a fair and equal opportunity to attend the YMCA’s summer camp and other programs. 35. The YMCA’s conduct in excluding S.H. from its Adventure Camp and refusing him reasonable accommodations is discriminatory and retaliatory and denied S.R. the opportunity to participate in the camp and to benefit from it. 36. The YMCA denied S.H., on the basis of his disability, the opportunity to participate in the YMCA’s programs. 37. As a result of the YMCA’s unlawful conduct, the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. S.H. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. 8 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 9 of 13 PAGEID #: 9 SECOND CAUSE OF ACTION: THE YMCA UNLAWFULLY FAILED TO PROVIDE REASONABLE ACCOMMODATIONS TO S.H. FOR SUMMER CAMP AS REQUIRED BY SECTION 504 OF THE REHABILITATION ACT OF 1973,29 U.S.C. 794 38. Plaintiffs incorporate by reference the preceding paragraphs. 39. The YMCA’s conduct in excluding Sd-I. from its Adventure Camp and refusing him reasonable accommodations is discriminatory and retaliatory and denied S.H. the opportunity to participate in the camp and to benefit from it. 40. As a result of the YMCA’s unlawful conduct, the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. S.H. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. THIRD CAUSE OF ACTION: THE YMCA UNLAWFULLY FAILED TO PROVIDE REASONABLE ACCOMMODATIONS TO S.H. FOR ITS BEFORE SCHOOL PROGRAM AND AFTER SCHOOL PROGRAM AS REQUIRED BY TITLE III OF THE AMERICANS WITH DISABILITIES ACT 41. Plaintiffs incorporate by reference the preceding paragraphs. 42. The YMCA’s conduct in terminating S.H. from its before school program and in limiting his attendance in the after school program and refusing him reasonable accommodations is discriminatory and retaliatory and denied 5.11. the opportunity to participate in those programs and to benefit from them. 43. As a result of the YMCA’s unlawful conduct, the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. S.H. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. 9 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 10 of 13 PAGEID #: 10 FOURTH CAUSE OF ACTION: THE YMCA UNLAWFULLY FAILED TO PROVIDE REASONABLE ACCOMMODATIONS TO S.H. FOR ITS BEFORE SCHOOL PROGRAM AND AFTER SCHOOL PROGRAM AS REQUIRED BY SECTION 504 OF THE REHABILITATION ACT OF 1973 44. Plaintiffs incorporate by reference the preceding paragraphs. 45. The YMCA’s conduct in terminating S.H. from its before school program and in limiting his attendance in the after school program and refusing him reasonable accommodations is discriminatory and retaliatory and denied SkI. the opportunity to participate in those programs and to benefit from them. 46. As a result of the YMCA’s unlawifil conduct, the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. Si-I. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. FIFTH CAUSE OF ACTION: THE YMCA UNLAWFULLY VIOLATED OHIO REVISED CODE SECTION 4112.02 47. Plaintiffs incorporate by reference the preceding paragraphs. 48. The YMCA’s conduct in terminating Si-I. from its before school program, in limiting his attendance in the after school program, and in excluding him from its Adventure Camp, and in reftising S.H. reasonable accommodations, is discriminatory and retaliatory and denied Si-I. the opportunity to participate in those programs and to benefit from them. 49. As a result of the YMCA’s unlawffil conduct, the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. S.H. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. 10 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 11 of 13 PAGEID #: 11 SIXTH CAUSE OF ACTION: THE YMCA EMOTIONAL HARM ON THE PLAINTIFFS INTENTIONALLY INFLICTED 50. Plaintiffs incorporate by reference the preceding paragraphs. 51. The YMCA intentionally refused to provide reasonable accommodations to 5.1-I. necessary for S.H. to fully and equally participate in the YMCA’s summer camp, before school, and after school programs. 52. As a result of the YMCA’s unlawful conduct discriminating and retaliating against S.H., the Plaintiffs have suffered pain and suffering, emotional harm and distress, and other injuries. S.H. is losing irreplaceable opportunities for his growth and development and consequently has suffered, and continues to suffer, irreparable injury proximately caused by the YMCA. VI. PRAYER FOR RELIEF Plaintiffs S.H. and Denise Watts pray for: I. A declaration that Defendant Great Miami Valley YMCA failed to provide reasonable modifications to its practices and procedures for the benefit of S.H. in the Defendant’s summer camp program, before school program, and after school program. 2. Injunctive relief requiring that the Defendant prospectively provide reasonable accommodations to SkI. in the Defendant’s summer camp program, before school program, and after school program, and otherwise fully and equally include S.H. in its programs. 3. Injunctive relief barring the Defendant from applying a “Three Strikes and You’re Out!” policy against SkI. for conduct related to his disability. 4. Compensatory damages in amounts to be determined by the jury for the Defendant’s deprivation of the civil rights of SkI. and Denise Watts. 5. Punitive damages for the YMCA’s intentional injurious conduct. 11 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 12 of 13 PAGEID #: 12 6. Attorney’s fees, expert witness fees, and costs. 7. Such other relief the Court deems just and proper. Respectfiully submitted, Is! Richard Ganulin Richard Ganulin, Esq. (0025642) Attorney at Law 3662 Kendall Avenue Cincinnati, Ohio 45208 (513) 405-6696 rganuIin@.maiI.corn Attorney for 5.1-1. and Denise Watts 12 Case: 1:15-cv-00428-SJD Doc #: 1 Filed: 06/29/15 Page: 13 of 13 PAGEID #: 13 VERIFICATION State of Ohio ) County of Butler ) Denise Watts, Plaintiff in this matter and mother of SR., being dul factual allegations contain y sworn, says that the ed in this Complaint are true to the best of her knowledge. Taken, sworn to and subscr ibed before me this L7 day of Jun e 2015. 1at Notary ubi c MARGARET DIANE NkURPHY Notary Public, State 01 OhIo My Commission Expires Nov, 28, 2015 13 Case: 1:15-cv-00428-SJD Doc #: 1-1 Filed: 06/29/15 Page: 1 of 2 PAGEID #: 14 Providing Opportunities for Everyone ‘ / w-- •Fjve and a hall years ago, my life was flipped upside down when I gave birth to my son, i. He was born with Dawn Syncrcme, From that moment on, I slew that I needed to do my best to provide him with the skills that he would need to became an incependent adult and a valuable member of his community” ‘Our experience with the Miracle League has been life-changing. I realized that my life had not been flipped upsite down; instead, it had been fhpped right side up. Fnendships were farmed. And through continued involvement with the Fairfield Family V activities provided ‘r Miracle League ‘buddies’ are now our friendships the chance to be strengthened. members of his family.’ ‘The ice Nuxhall Miracle Leagues are truly magical. Time stands still. Miracles happen. Moments in time are forever etched into our memory, providing us with smiles and laugh ter that will never fade,’ ti has also been involved with adaptive swimming lessons, specifically designed far special needs children. This has provided us both with more opportunities to aevelop life skills and independence, He is learning water safety, ant it has opened up our communi cation with one another. He is learning new words, thought processes, and learning how to ask for things he wants, such as going swimming’ 1 will be forever grateful to the V for opening these doors for all of us In the special needs community.’ DcnLse Walls mother of Suovei Hothon - - the) CHANGING LIVES _ Case: 1:15-cv-00428-SJD Doc #: 1-1 Filed: 06/29/15 Page: 2 of 2 PAGEID #: 15 r r t .4’ Ls.rrng Carte. wn ‘ec’çzcd 1cr its ..tr¼ tuty U.JzI •UC*1t3r aM Ot ar:. jOc (OflflO! pEcjtfll% fl lit i?t4 lime manor. Ut (ltd U CIM% iI. * tt,A% t flit tsfly VM.A Eww Ijasrw Centec pQcr:.’.ri.i a pu1.zaJ I, esçand acc.1 .a r4wpner I.acsiç Th4 Øtan .r:d ncar4k c:.V f.. Mr..rl .2r.tft ft. a’ ctAd,en. ,‘Xf? ) •:ff;,1j1 -- .•i.-i’ INCREASE LEARNING 4j•