Kmart removes disability discrimination suit from state to federal court

By Jon Campisi | Dec 13, 2013

Two lawyers representing retail giant Kmart are seeking to transfer a

Pennsylvania man’s discrimination lawsuit against their client from state to federal court.

Todd Alan Ewan and Christin Choi, attorneys with the Radnor, Pa. law firm of Fisher & Phillips, filed a notice of removal on Dec. 11 at the U.S. District Court seeking to have John Westerman’s civil action transferred to that judicial venue.

Westerman, who lives in Levittown, Bucks County, is suing Illinois-based Kmart Corp. for disability and age discrimination.

According to his complaint, which was filed on Nov. 20 at the Philadelphia Court of Common Pleas by Philadelphia attorney Robert Land, Westerman, who began working for the defendant in late 2002, and served as its department manager of the distribution center, suffered an abdominal hernia a few days before Christmas in 2007.

The plaintiff continued to work with the injury, which happened while on the clock, but the pain became “unbearable” by February 2008, and he went to see a doctor, who advised the man he would need surgery to repair the tear in his stomach wall.

The complaint says that Westerman’s post-surgical course was “stormy,” and additional surgeries were necessary to alleviate the problem.

This required Westerman to occasionally miss work between March 2008 and March 2009, the lawsuit states.

When the plaintiff returned to work on March 10, 2009, he did not require special accommodations, but still had some gastrointestinal symptoms, which required him to make frequent trips to the bathroom.

Under doctor’s orders, Westerman also had restrictions on heavy lifting, the record shows.

“Upon return from a year’s hiatus, defendant treated plaintiff as an accident waiting to happen and as ‘damaged goods’ and put him on ‘transitional’ pay status four days after he returned to work,” the complaint reads.

The so-called “transition,” the lawsuit states, led to Westerman’s termination on March 24, 2009.

The plaintiff says his supervisors told him that he was being let go due to a reduction in the defendant’s workforce, though he claims that younger staff with less “experience and zeal were not affected by the reduction.”

“In fact, younger persons assumed his pre-injury duties,” the complaint states.

Westerman, who was 47 at the time of his firing, claims that age was a “substantial determining factor” in the defendant’s decision to terminate his employment.

The plaintiff also claims his “resolving disability,” or his recovery from three abdominal surgical procedures that resulted in high weight-lifting restrictions, was a determining factor in the company’s decision to fire him from his position.

Kmart is accused of violating the Pennsylvania Human Rights Act.

In the defense removal notice, attorneys Ewan and Choi wrote that the matter belongs in federal court since it appears to assert violations of federal discrimination laws in addition to the state law claim.

The lawyers also wrote that the amount in controversy exceeds $75,000, the threshold for federal court jurisdiction.

Westerman says he is seeking unspecified compensatory damages, back pay with interest, front pay, attorney’s fees, expert witness fees, litigation costs and other relief.


The federal case number is 2:13-cv-07206-GP and the state case ID number is 130801752.

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