Nicholas Malfitano Dec. 31, 2015, 10:42am


PHILADELPHIA – A federal judge has dismissed civil rights claims made by a licensed practical nurse against the hospital where he was formerly employed, as both precluded and time-barred.

Through Title VII of the Civil Rights Act of 1964, Abdul Janneh filed claims of racial discrimination, retaliation and hostile work environment, along with a state law claim of negligent hiring and supervision, against Westgate Hills Rehabilitation & Nursing Center in Havertown, Director of Nursing Christine O’Reilly and Supervising Nurses Aril Ball-Graham and Shontae Durieux.

Janneh believed he and his peers who emigrated to the U.S. from Sub-Saharan Africa were being discriminated against at Westgate Hills for this fact. Janneh, who began working with Westgate Hills in 2007, alleged O’Reilly replaced immigrant nurses at the facility with fellow defendants Ball-Graham and Durieux, despite their having less expertise as compared to their departed counterparts.

Janneh’s suit sought to establish a pattern of harassment and discrimination by the defendants against African-born staff at Westgate Hills, including their allegedly telling facility residents they “hate Africans” and wrongfully claiming Janneh did not properly attend to his patients. 

Further, Janneh was suspended without pay and later terminated in November 2013 for supposedly using his work computer to write a grievance to the facility’s compliance unit in North Carolina, despite his being out of work on sick leave, surveillance camera footage not being able to account for this action and Janneh never having any prior disciplinary record in his employment at Westgate Hills, he claimed.

Janneh filed a complaint with the Equal Employment Opportunity Commission (EEOC) upon his termination and one in the Delaware County Court of Common Pleas shortly thereafter in a pro se manner, which was later dismissed in October 2014. Janneh then filed the instant complaint in April, based on the same circumstances, but this time with legal representation.

Westgate Hills argued Janneh’s complaints were all barred by the doctrine of claim preclusion, since they are based on the same set of facts as the previous complaint brought forward in the Delaware County Court of Common Pleas, and time-barred since they were filed more than 90 days after Janneh received his right-to-sue letter from the EEOC.

Judge Gene E.K. Pratter stated for the doctrine of claim preclusion to be satisfied, four criteria had to be met: the object being sued for, the cause of action, the parties to the action and the capacity of the parties to sue or be sued had to match in both the previous lawsuit and the current one.

“The first requirement of claim preclusion was met because the same decision to terminate the plaintiff was the basis for both actions, even though no specific claims of discrimination were asserted in the state court action,” Pratter said, in reference to the object at the heart of Janneh’s litigation. “The two cases “involve [Mr. Janneh’s] employment claims with [Westgate] for the same period of time under the same circumstances.”

With regards to the cause of action, Pratter said similar rules govern this, as Janneh filed suits based on the same, if not markedly similar, claims, thus fulfilling the second claim preclusion guideline.

The third guideline was satisfied merely based on the same defendants being named in both lawsuits, whereas the fourth guideline also met with Pratter’s approval.

“Mr. Janneh had a clear opportunity to request his right-to-sue letter and obtain it in time to add his Title VII claims to his second amended complaint. Mr. Janneh failed to do so and also failed to request a stay in his state court action,” Pratter said. Thus, Mr. Janneh ‘sat on his rights.’ Because Mr. Janneh had the same capacity to sue in his state court action as he does in this case, the fourth requirement of claim preclusion has been met.”

Pratter concluded, “The claims asserted in Mr. Janneh’s complaint are barred by claim preclusion. All four requirements have been met, and Mr. Janneh could and should have brought these claims in his state court action. For the foregoing reasons, the Court grants Westgate’s motion to dismiss with prejudice.”

The plaintiff was represented by Clinton L. Johnson, in Chester.

The defendants were represented by Sidney R. Steinberg and Kate A. Kleba of Hennessy Law, in Malvern.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-02012

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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