PHILADELPHIA – Counsel for a defendant named in a lawsuit from a former postal worker who claimed he was discriminated against and fired for being gay and HIV-positive, say a recent U.S. Supreme Court decision pertaining to sex-based discrimination further bars his claims.
John Doe first filed a complaint on Dec. 13 in the U.S. District Court for the Eastern District of Pennsylvania, versus the United States Postal Service and Postmaster General Megan Brennan, alleging wrongful termination based on disability and sexual orientation.
(Later, the USPS was dismissed from the lawsuit and Qiana Reid another John Doe individual were added as defendants.)
Doe said he began working for the USPS in 2007 as a letter carrier and alleges in his complaint that he was bullied, disciplined more harshly than other employees and experienced verbal abuse by co-workers, including being called a “fruitcake”, “homo” and a “sick f—t.”
He alleged he was fired last Aug. 9 over allegations of harassment, for which he was later found not guilty.
On Feb. 14, the USPS and Brennan filed a motion to dismiss the complaint with prejudice for failure to state a claim, charging that exclusive remedies provided by Title VII and the Rehabilitation Act cover the plaintiff’s discrimination claims and neither defendant was personally involved in the conduct alleged.
Further, the defendants sought to dismiss the complaint for failure to (a) timely initiate the Equal Employment Opportunity process by making contact with an EEO counselor within 45 days of either receiving the Notice of Removal or its original effective date, and (b) exhaust the administrative process by waiting 180 days from the filing of the formal EEO complaint before filing the complaint in this Court.
In addition, the defendants claimed the head of the agency is the only proper defendant to Title VII and Rehabilitation Act claims, that punitive damages are not available under Title VII or the Rehabilitation Act against federal defendants, that the plaintiff failed to plausibly allege severe or pervasive discrimination that detrimentally affected him during his tenure with the postal service as is required to state a hostile work environment claim and finally, that the plaintiff failed to plausibly allege that he was terminated because of his alleged disability.
However, the plaintiff filed an amended complaint on Feb. 28, which removed the USPS as a defendant. As a result, U.S. District Judge Joseph F. Leeson Jr. rendered the dismissal motion as moot on March 4, before the defendants filed another, similar dismissal motion to the amended complaint on May 4.
Doe replied in a May 18 response motion that he was being “treated with aversion which Doe believes was on account of stigma due to his HIV-positive status beyond simply identifying his sexual orientation” and by implication, “inappropriate sexual comments made to Doe may have been made by virtue of knowledge Doe was not just gay, but also HIV-positive.”
“It is important to remember that Doe also alleges with particularity that his HIV-positive status was inadvertently disclosed in the workplace in a medical record on one occasion to Doe’s recollection and this could plausibly explain his severe mistreatment,” his response added.
UPDATE
On June 26, counsel for defendant Reid filed a motion to dismiss all claims against her with prejudice, citing the recent landmark U.S. Supreme Court decision in Bostock v. Clayton County, Georgia, which protects employees from all forms of sex-based discrimination, including gender and sexual orientation, under Title VII.
“With Bibby no longer controlling the analysis of Doe’s claims under Title VII, and with sexual-orientation discrimination now clearly prohibited by Title VII, Doe’s claims against defendant Reid are even more plainly barred than they were before Bostock. Title VII provides the exclusive remedy for the discrimination that Doe alleges,” the dismissal motion read, in part.
“And, likewise, no Bivens remedy should be implied here in light of Title VII’s alternative processes and special factors counseling hesitation. Additionally, Reid is entitled to qualified immunity. Doe’s claims against defendant Reid must be dismissed, with prejudice, in their entirety.”
Counsel for Reid argued that Doe had not provided substantiation of proof he was discriminated against by Reid.
“Doe has not pleaded any facts supporting his theory that Reid harbored any bias against Doe based on his sex, gender, or sexual orientation. Neither has Doe pleaded any facts supporting any theory that Reid had knowledge of or acquiesced in anyone else’s alleged bias on these bases against Doe. Doe has thus not stated a claim against Reid for discrimination in violation of the 5th Amendment, and Counts I through IV against her must be dismissed on qualified immunity grounds,” the dismissal motion stated.
Doe seeks reinstatement, back and front pay, a trial by jury and all other just relief.
The plaintiff is represented by Justin Robinette of The Law Offices of Eric Shore, in Philadelphia.
The defendant is represented by Rebecca Santoro Melley of the U.S. Attorney’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:19-cv-05885
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com