PHILADELPHIA – An interim Director of Facilities for the Chichester School District has denied that he discriminated against the permanent holder of that position for his race and medical condition, before the latter was fired.
Paul Tobin of Brookhaven filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 2 versus the Chichester School District, Chichester School Board of Directors, Fred Serino, Daniel Nerelli, Anthony Testa, James Stewart and Michael Civera, all of Aston.
Tobin explained he was diagnosed with bipolar disorder in 2003, before being hired by the Chichester School District on June 1, 2016, as its Director of Facilities. Tobin worked diligently in his position and received praise for his work performance, according to the lawsuit.
“In or around February 2019, plaintiff suffered an extreme flare up of his disability and took a leave of absence to treat same. During plaintiff’s leave of absence, defendant Civera (a Caucasian) acted as interim Director of Facilities,” the suit stated.
“In or around November 2019, plaintiff returned to work without restrictions, as a Supervisor. Thereafter, defendant Civera officially assumed the role of Director of Facilities. In late-February 2020, defendants’ Facilities Secretary and Food Services Secretary informed plaintiff that defendant Civera boasted about unauthorized access into the Human Resources office after hours and accessed plaintiff’s medical records from his personnel file.”
Meanwhile, Tobin alleged that Civera also repeatedly used the n-word to refer to Black people in the workplace, leading him to complain to defendants Nerelli and Puckett of Civera’s racist remarks and improper access of his medical records. Despite being told Civera’s conduct would be investigated, nothing allegedly came of it.
“On Aug. 27, 2020, defendant Civera informed plaintiff that he had been permanently transferred from supervising the day shift (8 a.m. to 4:30 p.m.) to the evening shift (3 p.m. to 11:30 p.m.). Plaintiff had worked the day shift his entire employment with defendant. The shift change was a clear act of retaliation for plaintiff’s complaints of race discrimination,” the suit stated.
“On Sept. 1, 2020, plaintiff provided a doctor’s note to defendant Serino that advised that switching to evening shift would disrupt the treatment for his disability, and that he needed to stay on the day shift. Plaintiff’s doctor advised that the change in his work schedule would be detrimental to plaintiff’s mental health, hormonal balance with his medication, and sleep hygiene.”
Serino then accused Tobin of insubordination and later denied him from refusing the shift change, the suit said.
“On Nov. 6, 2020, defendant Serino placed plaintiff on administrative leave with pay for allegedly failing to return his Family Medical Leave Act paperwork, filing to inform defendants if he could work evening shifts in its entirety, falsifying daily logs and reports of completion of assignments, as well allegedly calling defendant Civera ‘Mussolini,” the suit stated.
“Plaintiff has endeavored to have the paperwork completed but has been stymied by COVID-19 pandemic and going between doctor’s offices. Further, defendants’ other allegations are categorically false, and fabricated to characterize plaintiff as an insubordinate employee. Despite, defendant’s knowledge of plaintiff’s disability, and need for accommodation in the form of returning to the day shift, defendants’ continue to refuse to accept plaintiff’s physician note and return him to the day shift.”
The plaintiff said he was later fired and as a result of the defendants’ conduct, the plaintiff was caused to sustain serious and permanent personal injuries, including but not limited to, permanent psychological injuries.
“Plaintiff claims that defendants unlawfully discriminated against plaintiff because of his race and because he complained of an opposed the unlawful conduct of defendants related to the above protected class. Plaintiff further claims constructive and/or actual discharge to the extent plaintiff is terminated from plaintiff’s position as a result of the unlawful discrimination and retaliation,” per the suit.
“The defendants have exhibited a pattern and practice of not only discrimination but also retaliation. Plaintiff claims a continuous practice of discrimination and claims a continuing violation and makes all claims herein under the continuing violations doctrine.”
Counsel for the defendants (minus the Chichester School Board of Directors and Civera) filed an answer along with affirmative defenses on June 3.
“It is admitted only that there were times when Tobin worked diligently and received praise. In further answer, there were times when he had extended absences and when his work was not diligent or praiseworthy,” the answer stated, in part.
“It is admitted only that Tobin began a leave of absence and asserted that it was due to a serious health condition as defined in the Family and Medical Leave Act. All other aspects of the allegation are denied.”
UPDATE
Counsel for Civera filed an answer to the complaint on June 9, denying that he had any knowledge of the plaintiff’s condition and nearly all of the plaintiff’s complaint.
Civera also filed four affirmative defenses in the case.
“Plaintiff’s claims are barred by the applicable statutes of limitation. Plaintiff has failed to exhaust administrative remedies. Answering defendant did not aid, abet or participate in any of the alleged wrongful acts plaintiff complains of. Plaintiff has failed to state a claim against answering defendant, and cannot make out a claim under the statute asserted,” the answer read.
For counts of discrimination and retaliation under the Americans with Disabilities Act of 1990, the Family Medical Leave Act, Title VII of the Civil Rights Act of 1964 and state law, the plaintiff is seeking damages, jointly and severally, in an amount to be determined at the time of trial plus interest, punitive damages, liquidated damages, statutory damages, attorneys’ fees, costs, disbursements of action, such other relief as the Court deems just and proper, plus a trial by jury.
The plaintiff is represented by Erica A. Shikunov of Derek Smith Law Group, in Philadelphia.
The defendants are represented by Michael I. Levin of Levin Legal Group in Huntingdon Valley, Michael T. Sweeney of Sessions Fishman Nathan & Israel in Philadelphia, and Katherine H. Meehan of Raffaele & Puppio, in Media.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-01579
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com