PHILADELPHIA – A trio of appellate court judges have ruled to dismiss an employment discrimination action, filed on behalf of a woman who claimed she was discriminated against by Outback Steakhouse because of her disability.

U.S. Court of Appeals for the Third Circuit judges Julio M. Fuentes, Thomas I. Vanaskie and Anthony J. Scirica ruled Dec. 2 that a complaint from plaintiff Patricia Vizi of Windber against defendants Outback Steakhouse, Bo Smith, Dallas Freedman and Jenna Carey was dismissed.

For a period of months in 2013, Vizi worked at an Outback in Louisiana. In a filing with the EEOC, Vizi stated she was discriminated against by Outback based on her disability, alleged that a supervisor hit her in the back and commented on her disability and that another co-worker lightly touched her back because she may have heard that Vizi had a disability.

“She did not explain what her disability was. She stated she was terminated for alleged performance issues. The EEOC investigated but was unable to conclude if any statutes were violated,” the appellate court said.

In her initial complaint filed in the District Court, Vizi levied claims against both Outback and the EEOC – and the only reference she made to potentially having a disability was “she told a co-worker that he could not hit her on the back because she had undergone neck surgery.”

“The District Court dismissed the complaint without prejudice to Vizi filing a complaint in the United States District Court for the Western District of Louisiana. 10 days later, Vizi submitted a document titled ‘Complaint’ which included some additional allegations and attached exhibits. At the end of the document, she stated that she wished to appeal the District Court’s decision. This document was docketed as a new proceeding,” the Third Circuit said.

Moreover, in the Second District Court proceeding, the magistrate judge noted in a report and recommendation that Vizi expressed an intent to appeal the District Court’s order from the first proceeding but wrote treating the document as a notice of appeal would be a “waste”, and recommended that the District Court dismiss the second complaint without leave to amend for failure to state a claim – which was done on May 22, 2015.

In the Third District Court proceeding, that judiciary said Vizi did not make a prima facie showing that she is disabled or regarded as such, and even if she did show she had a disability, she did not make a prima facie case that she suffered an adverse employment action because of that disability.

While the magistrate judge recommended immediate dismissal of any complaints Vizi filed in the future relating to her employment at Outback, the Third Circuit said the District Court did not include any such command in its order dismissing the complaint.

“While Vizi’s pleadings were docketed as three separate complaints, the magistrate judge acknowledged that the second complaint could have been construed as a notice of appeal and the third complaint could have been construed as objections to his report and recommendation. The record would not support an order restricting Vizi’s filings, and we presume that none was adopted,” Bowes said.

The defendants are represented by Michael Steven O’Neill, plus Timothy P. Keating of the Office of the Attorney General, both in Harrisburg.

U.S. Court of Appeals for the Third Circuit case 15-2655

U.S. District Court for the Western District of Pennsylvania case 3:15-cv-00140

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

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