Jim Boyle Oct. 22, 2014, 8:52pm


A forklift operator at marine terminals located on the Delaware River says his employers violated the Americans with Disabilities Act by failing to accommodate his temporary need for light duty while recovering from injuries he sustained outside work, according to a suit filed at the U.S. District Court for the Eastern District of Pennsylvania.

Thomas West, of Philadelphia, says his managers at Penn Terminals, located in Eddystone, Pa., six miles south of Philadelphia, kept him on the employment role and paid his benefits, but refused to put him on the schedule and allow him to accrue a paycheck for more than 18 months.

According to the complaint, West worked at Penn Terminals as a unionized forklift operator, clocking between 30-40 hours a week at $19.85 per hour, plus an average of eight to 10 hours of overtime and the occasional weekend shift, which paid double.

On Sept. 10, 2012, West injured his back outside of work. His doctor kept him from returning to Penn Terminals between September and January 2013. During that time, West collected short term disability payments. West was cleared to return to work on Jan. 3, 2013, on light-duty restrictions, including not lifting more than 35 pounds and avoid riding in machinery that bounced or had poor suspension. He could ride on flat surfaces, as long as the plaintiff changed his seating position frequently and stretched every two hours.

West informed his supervisors at Penn Terminals that he could return, albeit with the restrictions, and submitted the doctor's note as documentation. According to the complaint, there were several light-duty jobs available, including the forklift position that West held, but his request was denied. His supervisors told West that light-duty work was available only to employees who injured themselves at the facility, the claim says.

Between January and September 2013, West contacted Penn Terminals two to three times per month asking for work and providing medical documentation for his accommodation needs, and each time he was denied, told that he could not return until he was "100 percent better." He was not terminated, and his health insurance coverage continued to be paid by his employer, but West was not earning an income.

In July 2013, West's Transportation Worker Identification Credential expired, a document required for dockworkers at any marine terminal in Philadelphia. The complaint says that Penn Terminals has a history of paying the renewal fees for its employees, but it had not covered the expense for West.

In September 2013, West's doctor cleared him to work full, regular shift hours. When the plaintiff informed Penn Terminals that he could return to his regular duties, his employer once again refused to take him back. West has not been allowed to return to work since, and has struggled to find employment elsewhere.

The complaint says that Penn Terminals refused to act in a good faith, interactive process concerning his multiple requests to return to work on a light-duty basis and willfully denied West an opportunity to earn an income.

"Penn Terminals, Inc. illegally classified and defined [West] on the basis of his disability in a way that directly led to Penn Terminal's differential treatment of West from other similarly-situated employees who had sustained work-related injuries, thus discriminating against West on the basis of his disability," the claim says.

The plaintiff is represented by Michael Davey of Eckell, Sparks, Levy, Auerbach, Monte, Sloane, Matthews & Auslander in Media, Pa.

The federal case ID is 2:14-cv-05975-MMB.

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