PennDOT wins discrimination case of employee who allegedly stole dirt from work site

By Amanda Thomas | Jun 19, 2018

Flickr/Allen Allen(www.allenandallen.com)

PHILADELPHIA -- A federal judge has granted a Pennsylvania Department of Transportation (PennDOT) motion for summary judgment in a discrimination case brought by a former employee who claims she was discriminated against based on her disability and gender. 

U.S. District Judge Joseph F. Leeson Jr. of the Eastern District of Pennsylvania granted PennDOT's motion in a June 12 decision.

The court said the ruling comes after Alice Berger, a former equipment operator, claimed PennDOT “retaliated against her for opposing sex discrimination when it suspended her in August 2014 after she was accused of stealing a load of dirt from a work site.” 

Berger also alleged that PennDOT has a bathroom policy “that has a disparate impact on female employees who work outdoors." She further alleged that the agency failed to accommodate her disabilities, which include diverticulitis and Lyme disease.


U.S. District Judge Joseph Leeson Jr.   deales.edu

The order said the unit Berger worked for employed more than 50 male equipment operators and three females. 

In his opinion, Leeson said Berger’s claim failed because she did not prove that she requested any specific accommodation from PennDOT. Regarding Berger's disparate impact claim, the judge said “any policy that might have existed in the past concerning the use of public restrooms no longer exists or, at the very least, is no longer enforced against Berger, such that there is no practice for this court to enjoin.” 

He also said Berger cannot hold PennDOT liable for the conduct of foreman Fred Farleigh, who Berger claimed harassed her because she was a female equipment operator. 

Instead, Leeson said Berger could only hold the agency liable if it was negligent in controlling work conditions. 

“It is undisputed that shortly after Berger reported Farleigh’s conduct, PennDOT undertook an investigation, reassigned Farleigh to work sites separate from Berger’s and imposed discipline on Farleigh,” he said. 

Leeson also ruled that Berger failed to prove that PennDOT terminated her because of her gender and failed to establish a retaliation claim. 

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