PITTSBURGH – The state’s Department of Corrections has asserted qualified immunity against claims from a Western Pennsylvania corrections officer who claimed 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 said.
“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 said 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 claimed 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 stated.
“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.”
UPDATE
The Pennsylvania Department of Corrections answered the suit on Sept. 9, denying its contents and providing a dozen separate affirmative defenses on its own behalf.
“Plaintiff has failed to state a claim upon which relief may be granted. The individual defendants assert qualified immunity as a defense to all claims. Defendants were at all times acting pursuant to a duty required or authorized by statute or regulation; and, therefore, said acts were within the discretion granted to them by statute or statutorily authorized regulations. To the extent that discovery reveals that plaintiff may not have exhausted all of his administrative remedies, defendants would assert such failure to exhaust as a defense,” the answer’s defenses stated.
“To the extent that discovery reveals that plaintiff may have failed to mitigate his damages, defendant asserts such failure to mitigate as a defense. Plaintiff’s claims are barred in whole or in part by the doctrine of sovereign immunity and Eleventh Amendment immunity. Defendants made all reasonable accommodations required by the Americans with Disabilities Act and Rehabilitation Act. Plaintiff did not suffer any discrimination by defendants as a result of his disability. Plaintiff was not denied any services, programs, or activities provided by defendants, as defined by the Americans with Disabilities and PHRA Acts.”
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 is represented by Matthew C. Gill and Scott A. Bradley of the Pennsylvania Attorney General’s Office, also in Pittsburgh.
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