PITTSBURGH – A Western Pennsylvania corrections officer alleges he was discriminated against for his disability of attention deficit hyperactivity disorder, and not provided proper accommodations when taking a written test required for his role.
David Bertoty of Pleasant Unity first filed suit in the U.S. District Court for the Western District of Pennsylvania on July 9 versus the Pennsylvania Department of Corrections, of Berlin.
“Plaintiff began working for defendant in February 2020 as a correctional officer. Plaintiff was assigned work at the State Correctional Institute at Somerset. Throughout plaintiff’s employment with defendant, he received positive reviews and was successful in his position. As a correctional officer, plaintiff was required to complete several rounds of testing, including the Phase 3 test, which is given in written form. Plaintiff has a diagnosed disability of ADHD, which affects his ability to complete written testing,” the suit says.
“Plaintiff submitted a request for accommodation, notifying defendant of his disability on or about Nov. 11, 2020. On this date, plaintiff also submitted a letter from his primary care physician documenting his ADHD. Plaintiff provided defendant with several options for accommodation in order for him to successfully complete the Phase 3 test such as oral testing, a study guide, one-on-one studying, and a one-on-one testing with no distractions.”
On Nov. 12, 2020, Bertoty’s request was partially approved and he was allowed to take the test “in a quiet location without any distractions.” He says he was required to take the Phase 3 test three times, all in written form, and was not offered reasonable accommodations, which led to failing the Phase 3 exam the first two times.
On the third time that the plaintiff took the Phase 3 test, he claims he was subjected to multiple distractions, which included an inmate vacuuming and typing noises from the Lieutenant who as was administering the exam.
“Due to these distractions, Plaintiff failed the Phase 3 test. Plaintiff was not given adequate accommodations for his disability at any point during his employment with defendant. Defendant failed to engage in the interactive process by failing to provide accommodations for his disability,” the suit states.
“Defendant retaliated against plaintiff after he notified them of his disability and requested accommodations. This retaliation included defendant marking test answers incorrect that should have been marked correct. Had defendant granted plaintiff’s reasonable accommodations, he would have been able to perform the essential functions of his job, including passing the Phase 3 test. Failing the Phase 3 test ultimately led to plaintiff’s termination from defendant.”
For counts of disability discrimination, retaliation and failure to accommodate through violating the Americans with Disabilities Act of 1990 and Pennsylvania Human Relations Act, the plaintiff is seeking lost back pay resulting from defendant’s termination of plaintiff; lost front pay continuing into the future for defendant’s unlawful conduct; compensatory damages, including emotional damages and humiliation; punitive damages to punish defendant’s conduct and to deter similar future conduct; costs for bringing this action; attorney’s fees; pre-judgment and continuing interest; and any other relief that this Court deem necessary and proper.
The plaintiff is represented by David M. Manes of Manes & Narahari, in Pittsburgh.
The defendant has not yet obtained legal counsel.
U.S. District Court for the Western District of Pennsylvania case 3:21-cv-00118
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com