PHILADELPHIA – A former employee of Thomas Jefferson University Hospital who claimed he was wrongfully terminated for taking time off through the Family and Medical Leave Act (FMLA) has lost his appeal against the institution.

U.S. Court of Appeals for the Third Circuit judges Patty Shwartz, Richard L. Nygaard and D. Michael Fisher ruled June 21 to turn away the appeal of plaintiff Frank Forba – in effect denying a motion for reconsideration related to a separate denial of a post-judgment motion connected to his wrongful termination action and affirming the view of the U.S. District Court for the Eastern District of Pennsylvania.

Forba initially filed a complaint against his former employer, Thomas Jefferson University Hospital in April 2015, claiming that he was terminated in retaliation for taking leave under the FMLA. At a conference before a Magistrate Judge, the parties orally agreed to a settlement, and Jefferson Hospital agreed to send a written settlement agreement to Forba’s counsel.

The Magistrate Judge reported the parties’ agreement to the District Court and the District Court dismissed the action. Thereafter, Forba would not sign the written settlement agreement, leading Jefferson Hospital filed a motion to enforce the oral agreement. Subsequent to a hearing, the District Court granted the Hospital’s motion and the Third Circuit affirmed said ruling on Nov. 22, 2016.

On March 13, Forba filed a motion “requesting a new hearing on [his] entire case to be under the Americans with Disabilities Act…because of legal malpractice issues with [his] former attorney…” The District Court interpreted the motion as desiring to sue his former counsel for negligence and denied the request.

The District Court noted that “the matter was closed and that it otherwise lacked subject matter jurisdiction over a possible negligence claim between two Pennsylvania citizens.”

Forba then filed a motion for reconsideration of the order and attached a letter from the Pennsylvania Supreme Court Disciplinary Board, detailing that he had filed a complaint against his former attorney. The District Court denied the motion, stating that it found “no basis to reopen a matter closed following this Court’s affirmance and reiterating that it lacked subject matter jurisdiction over a dispute between two Pennsylvania citizens not raising a federal question”, a decision which Forba appealed.

“Forba’s brief motion asked the District Court to reconsider its denial of his request for a new hearing based on his former attorney’s alleged malpractice. Forba’s request for a new hearing reflects that he wished to pursue a claim under the Americans with Disabilities Act. Forba asserts in his notice of appeal that his attorney, among other things, failed to amend his complaint and bring such a claim,” the Third Circuit said.

“Forba’s complaints about his attorney are not properly before the District Court, nor do they provide a basis to reopen the final judgment issued in his case. Forba did not show in his motion for reconsideration that the District Court erred in denying a new hearing or that there was an intervening change in law or new evidence warranting relief. To the extent Forba’s notice of appeal may be construed as seeking to appeal the denial of his motion for a new hearing, the District Court did not abuse its discretion. Because this appeal does not raise a substantial question, we will summarily affirm the judgment of the District Court. Forba’s motion for appointment of counsel is denied as he has not shown that he has a claim of arguable merit,” the Third Circuit concluded.

The plaintiff is represented by Raheem S. Watson of Watson Law, in Philadelphia.

The defendant is represented by Daniel J. McGravey and Gaetan Alfano of Pietragallo Gordon Alfano Bosick & Raspanti, plus Sarah Rachel Goodman of Greenberg Traurig, all also in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 17-1840

U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-01722

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

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