Jon Campisi Nov. 8, 2012, 12:41pm

A federal judge in Philadelphia has denied a defense motion to dismiss a lawsuit initiated

by former prison guard alleging he was terminated for discriminatory reasons.

The Nov. 5 memorandum by U.S. District Judge Ronald L. Buckwalter, of the Eastern District of Pennsylvania, allows litigation against Community Education Centers to move forward.

The Delaware County Prison, officially known as the George W. Hill Correctional Facility, which is operated by Community Education Partners, is being sued by William Dove, who worked as a prison guard at the correctional institution from May 2010 to July 2011.

The plaintiff alleges that he was terminated because of health problems, namely, due to the fact that he had been seeing a psychiatrist for treatment of depression.

The defendant has claimed it fired Dove for failing to keep a control room door secured on a day back in late June 2011.

Dove’s suit contains alleged violations of the Americans with Disabilities Act, the Family and Medical Leave Act and the Pennsylvania Human Relations Act.

Background information on the case shows that Dove had informed management he was seeing a doctor to deal with his depression issues, and that following the revelation he encountered discriminatory and hostile treatment, including being called “crazy,” being given inferior work assignments and being demeaned in other ways.

Following the filing of the complaint, the defendant moved to dismiss claims of interference with Dove’s FMLA rights and retaliation for exercising those rights.

The defendant asserted that Dove is not entitled to recovery because it is not clear in the complaint that the plaintiff was employed by the defendant for at least one year prior to the events in the civil action.

In his complaint, however, Dove alleges that he requested FMLA leave beginning in March 2011, through his termination in June 2011, so while Dove may not be eligible under the act for leave requested in March, “he is certainly covered for actions occurring in May and June after he had served the requisite one year,” Buckwalter wrote in his memorandum.

The judge also wrote that while the defendant argued that Dove did not allege he was denied any medical leave by the defendant prior to his termination, under the FMLA, a plaintiff need not request and be denied medical leave to recover; “the mere failure to inform an employee of his FMLA rights is sufficient to establish interference if the Plaintiff suffered prejudice as a result,”

The defendant had also claimed that Dove failed to plead sufficient facts to support a retaliation claim.

Specifically, the defendant argued that, without including specific dates of requests for leave and specific dates of alleged adverse actions, Dove has not pled enough to suggest that his termination or other adverse actions were caused by his requests for and entitlement to leave under the FMLA.

Buckwalter disagreed with this assertion, determining that Dove has, in fact, sufficiently pled facts that would give rise to a retaliation claim under the FMLA.

The judge wrote that Dove notes he was the target of disparaging remarks about his mental health issues, comments that give rise to the interference that Dove’s termination and inferior work assignments could have resulted from his requests for medical leave.

The decision allows the litigation to move forward.

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