ALLENTOWN – Subsequent to a stay related to departing counsel, a federal judge has restarted litigation between a fired office manager of Hispanic origin and her former place of business, a Philadelphia law firm – which alleged that the plaintiff and a fellow co-worker were discriminated against during their tenure because of their ethnic background.
Edna Garcia-Dipini of Reading first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 13 versus Larry Pitt & Associates, P.C., of Philadelphia.
“Plaintiff, a Hispanic female, was hired by defendant in February 2007, as the office manager at the defendant’s Reading, Pennsylvania location which was located at 541 Court Street, Reading, Pennsylvania 19601. Upon information and belief, defendant maintains several offices in and around the Philadelphia area,” the suit stated.
“Defendant’s Reading, Pennsylvania office was a satellite office, employing two Hispanic employees, including plaintiff. Upon information and belief, plaintiff was only one of two Hispanic employees, employed by the defendant, in any of defendant’s numerous locations.”
The suit said the plaintiff was supervised by a Caucasian woman, Phyllis Meloff.
“Plaintiff suffers from severe hypothyroidism, which impacts her daily life, and is a recognized disability under the Americans with Disabilities Act. Plaintiff’s hypothyroidism required her to undergo bariatric surgery in 2017. Defendant was aware of plaintiff’s medical conditions, including plaintiff’s need to undergo surgery,” the suit stated.
“Though bariatric surgery was originally covered by plaintiff’s health insurance (provided by defendant), unbeknownst to plaintiff, the bariatric services portion of her insurance plan was removed. Other employees, in the Philadelphia office were able to benefit from the surgery option which was included on their insurance plan.”
Though Garcia-Dipini requested an accommodation, in order for defendant and plaintiff to reach an arrangement in order to have plaintiff’s medically necessary surgery covered by insurance, her requests were refused by defendant. Specifically, Meloff refused to accommodate plaintiff, and told her to “go on Weight Watchers.” Since being unable to obtain the expensive surgery without health insurance, plaintiff has suffered severe exacerbation of her health problems.
“Upon information and belief, there was a significant difference between insurance coverage provided to defendant’s employees in the Philadelphia office, which is entirely composed of non-Hispanic employees and that provided to plaintiff. Additionally, during the course of her employment, plaintiff was repeatedly excluded from raises, luncheons, office meetings, meetings with insurance representatives and 401(k) representatives, due to her race and national origin,” the suit said.
“In fact, until plaintiff asked for a 401(k) plan, she did not receive one until 2017, nearly 10 years after being hired by the defendant. Other non-Hispanic employees received 401(k) plans with matching, and received those plans earlier in their employment. This exclusionary conduct was also suffered by plaintiff’s Hispanic co-worker, Diana. While at the Reading office, plaintiff and Hispanic her co-worker were forced to work in filthy conditions, in an office infested with mold and mildew, and were forced to clean the office themselves. Upon information and belief, other, non-Hispanic employees of the Philadelphia office were provided with a cleaning service, and not subjected to filthy and hazardous conditions.”
Garcia-Dipini and Diana were allegedly not provided with proper supplies to complete their work in a timely and professional manner, while non-Hispanic employees in the Philadelphia office were provided professional office supplies, and Meloff would often act in a verbally abusive manner toward the plaintiff when she would raise any concerns about her working conditions.
“Based on pre-textual reasons, plaintiff was terminated on Sept. 24, 2019. Plaintiff was fired in retaliation based on the aforementioned report of discrimination, defendant’s failure to accommodate plaintiff under the ADA, plaintiff exercising her rights under the ADA, plaintiff exercising her rights against, retaliation, discrimination, and all cognizable state claims,” the suit said.
The defendant firm filed an answer to the complaint on June 29, denying the plaintiff’s claims for racial discrimination, disability discrimination and retaliation for exercising her rights. Additionally, the firm claimed the plaintiff was fired for cause.
“Plaintiff was fired for cause and specifically told why she was fired. Plaintiff engaged in an unprofessional and insubordinate verbal exchange with a lawyer and another staff person employed by answering defendant/counterclaim plaintiff. Plaintiff was observed screaming and cursing at both employees. Plaintiff’s conduct provided grounds for her immediate termination,” the answer stated.
Additionally, the firm provided 19 affirmative defenses.
“Plaintiff fails to state a claim upon which relief can be granted. Plaintiff’s claims are barred, in whole or in part, because defendant/counterclaim plaintiff would have terminated plaintiff’s employment even in the absence of plaintiff’s alleged protected activities. Plaintiff’s claims may be barred by the statute of limitations. Plaintiff’s claims are barred, in whole or in part, because defendant/counterclaim plaintiff’s actions were justified and lawful and defendant/counterclaim plaintiff acted in good faith at all times relevant hereto,” the defenses stated, in part.
“Plaintiff’s claims are barred because answering defendant/counterclaim plaintiff had a legitimate, non-discriminatory, non-retaliatory reason for plaintiff’s termination. Plaintiff was an at-will employee whose employment could have been terminated at any time, for any reason, with or without notice. Plaintiff’s claim for monetary relief is barred, in whole or in part, to the extent plaintiff has failed to mitigate her damages, or suffered no damages as a result of defendant/counterclaim plaintiff’s conduct.”
In a July 26 response to the defendant’s answer, the plaintiff denied the substance of the opposition’s counterclaims.
On Nov. 10, plaintiff counsel Marc A. Weinberg of Saffren & Weinberg filed a motion to withdraw from the litigation.
“Counsel in the present matter, asserts that counsel and Garcia-Dipini’s impasse with respect to the defendant’s medical authorizations and supplemental discovery requests, hindered counsel’s ability to pursue this matter on Garcia-Dipini’s behalf, as well as properly defend Garcia-Dipini in connection with the counterclaim filed against her. It is impossible for counsel to properly and fully complete discovery without Garcia-Dipini’s full cooperation,” the motion stated.
“The discovery end date in this matter is Jan. 25, 2022. Though the withdrawal will delay the resolution of this case, plaintiff and counsel, have reached an irreconcilable impasse with respect to responding to defendant’s discovery requests, and as such, plaintiff’s counsel sees no other alternative than to request to withdraw from this matter, as counsel cannot pursue this matter without Garcia-Dipini’s full and complete cooperation. As so not to prejudice Garcia-Dipini, undersigned counsel would willingly further discuss any issues or questions the court may have regarding this motion in camera.”
U.S. Magistrate Judge Richard A. Lloret approved the request on Nov. 12, granting the withdrawal request and staying the case for 60 days, in order to allow the plaintiff to secure new counsel.
UPDATE
When the plaintiff filed a motion for an extension to secure new counsel, the motion was denied by Lloret on March 8.
“It is ordered that plaintiff’s pro se motion for extension of time to secure new counsel is denied. Plaintiff has been given ample time (107 days) to secure new counsel. The stay previously entered on Nov. 12, 2021 is now lifted, and discovery shall be completed by May 9, 2022,” Lloret said.
For counts of violating Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Pennsylvania Human Relations Act and retaliation, the plaintiff is seeking a long list of reliefs:
• Equitable and declaratory relief requiring defendant, to institute sensitivity and other training for all managers, employees and supervisors to prevent discrimination in the workplace;
• Equitable and declaratory relief requiring defendant, to institute and enforce a specific policy and procedure for investigating and preventing complaints;
• Equitable and declaratory relief requiring the posing of notices on the premises so that employees will know and understand their rights and remedies, including the official company policy;
• Compensatory damages for plaintiff’s loss of past and future income and benefits, pain and suffering, inconveniences, embarrassment, emotional distress and loss of enjoyment of life, plus interest;
• Payment of interest and plaintiff’s attorney’s fees and costs associated with bringing this claim; and
• Such other relief as this Court may deem appropriate under the circumstances.
The plaintiff is representing herself in this matter.
The defendant is represented by Patricia Fecile-Moreland of Marks O’Neill O’Brien Doherty & Kelly, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-02186
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com