PHILADELPHIA – After denying that it discriminated against a local chaplain with a gastrointestinal condition, Delaware County is seeking to compel that same chaplain plaintiff to respond to its discovery inquiries, claiming that its ability to build a defense is prejudiced until it does so.
Cookie A. Magee of Aston first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 28, 2020, versus Delaware County, in Media.
Magee was hired by Delaware County as a spiritual chaplain. When hired, she was assigned to Fair Acres Nursing Home – after submitting to a medical examination at the request of defendant, which revealed that she has a disability for which she has permanent gastrointestinal tubes implanted in her body.
On Jan. 8, 2018, Magee was hospitalized because of an immediate need to replace a gastrointestinal tube. She then called Cynthia Borrelli, Director of Social Services at the nursing home to inform her of the hospitalization.
Magee was hospitalized for a week from Jan. 10, 2018 to Jan. 17, 2018, while her medical issues were attended to and Borrelli was advised of said issues. Borrelli allegedly told Magee on Jan. 18 that she should “stay home until she felt better.”
“On Jan. 29, 2018, plaintiff was terminated by defendant and explicitly told it was because of her hospitalization. When plaintiff asked if she could reapply for the position, a representative from defendant’s human resources department told her she could not, because her feeding tube could cause her to miss time again in the future and thus they would not consider her application,” the suit stated.
According to Magee, the County claimed that her status as a “probationary employee” allowed them to discriminate against plaintiff based on her disability. Magee asserts she was unfairly and illegally singled out with this alleged treatment.
Magee filed an amended version of her complaint on Dec. 14, 2020.
Delaware County responded with an answer to the amended complaint on Aug. 16, denying the complaint’s allegations and providing nine affirmative defenses of their own.
“Plaintiff’s complaint fails to state any cause of action upon which relief can be granted as a matter of fact and/or law. Plaintiff’s employment, at all times relevant to this action, was at-will and could be terminated by either party or any reason and at any time, with or without notice. Plaintiff’s complaint should be dismissed because all actions taken by defendant with respect to plaintiff were undertaken in good faith and for legitimate business reasons, which were not merely pre-textual. Plaintiff did not engage in protected activity under the ADA and/or any other federal or state law,” the defenses stated.
“Plaintiff’s claims are barred because there is no causal connection between plaintiff’s alleged disability and/or alleged protected activity and the adverse employment action(s) alleged herein. Plaintiff’s claims for damages are barred or reduced by plaintiff’s failure to mitigate her alleged damages by using reasonable diligence to seek and obtain employment elsewhere, and by no fault of defendant. Plaintiff’s claims for punitive damages are barred because defendant did not act with malice or reckless indifference to the rights afforded to plaintiff under any federal, state, or local law. None of defendant’s alleged actions were willful, malicious, deliberate or outrageous. Plaintiff has not suffered any legally cognizable damage.”
UPDATE
In a Nov. 11 motion to compel, the County seeks the Court to order the plaintiff to comply with its discovery inquiry requests.
“On May 28, 2020, plaintiff commenced the instant lawsuit, alleging violations of the Americans with Disabilities Act. At all relevant times hereto, the County of Delaware was doing business as Fair Acres Geriatric Center. On Aug. 19, 2021, defendant served plaintiff its first set of interrogatories and first request for production of documents. Pursuant to Rules 33 and 34, plaintiff’s responses were due by Sept. 19, 2021. Plaintiff failed to serve her discovery responses by Sept. 19, 2021. On Sept. 14, 2021, this Court issued a scheduling order, which set the fact discovery deadline for Dec. 23, 2021. To date, plaintiff has not responded to defendant’s discovery requests. Counsel for defendant has made good faith efforts to resolve the current discovery dispute without seeking the involvement of the Court,” the motion stated.
The motion continued that on Sept. 29, 2021, the defendant contacted the plaintiff to request an update on the status of plaintiff’s discovery responses. Plaintiff responded on Oct. 6, 2021 representing that she would serve her responses the following week – i.e., the week of Oct.11 through Oct. 15, 2021. However, the motion explained the plaintiff did not serve her discovery responses by Oct. 15, 2021.
On Oct. 18, 2021, the Defendant, again, asked plaintiff when it could expect her discovery responses, but the plaintiff did not respond to defendant’s inquiry. On Oct. 25, 2021, defendant asked for another update on the status of plaintiff’s discovery responses and requested the discovery responses to be served no later than Oct.29, 2021. But the plaintiff, again, did not respond to defendant’s inquiry. Once again, the plaintiff did not serve her discovery responses by Oct. 29, 2021.
“On Nov. 2, 2021, the defendant called plaintiff’s counsel given plaintiff’s failure to respond to defendant’s email on Oct. 25 or serve her discovery responses by Oct. 29. Once again, defendant requested an update on the status of plaintiff’s discovery responses. Plaintiff represented that she intended to serve her responses shortly. Plaintiff did not serve her discovery responses on Nov. 2, Nov. 3 or Nov. 4, 2021,” the motion stated.
“Finally, on Nov. 4, 2021, the defendant sent the plaintiff another email to inquire on the status of her discovery responses. This time, defendant advised plaintiff that it intended to seek the Court’s intervention if plaintiff did not serve her discovery responses by the end of the day on Nov. 5, 2021. Plaintiff did not serve her discovery responses on Nov. 5, 2021. Given the current fact discovery deadline of Dec. 23, 2021, defendant has been, and will continue to be, prejudiced by plaintiff’s failure to provide responses to the discovery requests.”
For counts of violating the Americans with Disabilities Act, the plaintiff is seeking an award granting back pay, front pay, reinstatement to his position, reinstatement/restoration of all job benefits, compensatory damages and other compensation allowed by law, punitive damages, attorney’s fees, costs and such further relief as the Court deems necessary and appropriate.
The plaintiff is represented by Jake D. Becker and Mary-Ellen Allen of Lamb McErlane, in West Chester.
The defendant is represented by Andrew LaFiura and Morgan D. Schwartz of Jackson Lewis in Philadelphia, plus William F. Martin of the Delaware County Solicitor’s Office, in Media.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02513
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com