PHILADELPHIA – A prominent workers’ compensation law firm has vehemently denied it terminated a former employee for seeking accommodations during his bout with testicular cancer, and seeks to dismiss his claims, including those for punitive damages.
Paul Ferruzzi of Hatboro first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 13 versus Pond Lehocky, LLP and Pond Lehocky Giordano, LLP, both of Philadelphia.
“Plaintiff was hired by defendants in 2007 and demonstrated dedication and consistently excellent performance throughout 13 years of employment. In November 2019, plaintiff was diagnosed with testicular cancer. As a result, plaintiff required surgical removal of a cancerous tumor and ongoing surveillance treatment thereafter, which required modifications to his work schedule for routine testing and treatment. Despite plaintiff’s stellar track record over 13 years, plaintiff was terminated only five months later in April 2020 under the guise of a reduction-in-force and ambiguous criticisms of his job performance. Merely one week prior to his termination, plaintiff had submitted complaints to defendants’ upper management that staff members had been working compensable overtime hours, but were not clocking-in for or recording those hours due to a fear of being penalized for working overtime,” the suit said.
“Plaintiff was unlawfully terminated because of his disability (testicular cancer), his requests for reasonable accommodations in connection with the same, and his reports to upper management that employees were not clocked-in during compensable overtime hours. Plaintiff seeks damages, including back-pay, front-pay, compensatory, liquidated, punitive, attorneys’ fees and costs, and all other relief that this Court deems appropriate.”
Ferruzzi was initially diagnosed with testicular cancer in 2013 and subsequent to undergoing surgery, took medical leave for about 10 days. Over six years later, doctors found another cancerous tumor in Ferruzzi’s body.
As a result, Ferruzzi told his supervisors about the second tumor in mid-November 2019, and requested more medical leave to remove the second tumor. Ferruzzi took two weeks off after the second surgery and explained he would need to undergo further treatments to monitor the area over the next five years.
In his role as director of workers’ compensation at the firm, Ferruzzi alleged he informed a supervisor on April 14, 2020 that some staff members were working overtime but not clocking in for those hours, in alleged fear of retaliation from firm higher-ups. Just three days after lodging the complaint, Ferruzzi was terminated.
In opposing his firing, Ferruzzi alleges Jennifer Heinz, Chief Human Resources Officer at Pond Lehocky, told him via email that he was being fired for “visible disregard for decisions being made by [his] superiors, disrespect toward executive team members and lack of support of the vision and goals of the firm.”
Ferruzzi added that he was “offered a severance agreement to plaintiff in exchange for a release of all claims against it, which stated that plaintiff was terminated as part of a reduction in force.”
“Plaintiff’s disability (including his record thereof and defendants’ perception of him as a disabled person), his requests for reasonable accommodations in connection with his disability, and his reports to defendants’ upper management that employees were not clocked-in for compensable overtime hours were each motivating and/or determinative factors in defendants’ discriminatory and retaliatory treatment of him, including terminating his employment and failing to provide him reasonable accommodations for his disability,” the suit stated.
“As a direct and proximate result of the discriminatory and retaliatory conduct of defendants, plaintiff has in the past incurred, and may in the future incur, a loss of earnings and/or earning capacity, loss of benefits, pain and suffering, embarrassment, humiliation, loss of self-esteem, mental anguish and loss of life’s pleasures, the full extent of which is not known at this time.”
UPDATE
Counsel for the firm filed a motion to dismiss Ferruzzi’s FMLA and punitive damages claims on June 13.
“[The plaintiff’s] complaint, however, is devoid of any allegations supporting his own conclusions regarding discrimination, other than that his termination was preceded, though not immediately, by these accommodated requests. Moreover, plaintiff suggests that his FMLA rights were violated under theories of interference and retaliation, despite the complaint lacking any allegation of a failure to permit leave or a direct temporal proximity between a request for leave and his termination. Without more than plaintiff’s bare legal conclusions, plaintiff cannot request or allege that punitive damages are warranted, nor can he sustain his FMLA claim,” the motion to dismiss stated.
“Yet, plaintiff attempts to do so. In his introduction and prayer for relief, plaintiff requests punitive damages, though without specific reference to the claim for which these damages are requested. Plaintiff also requests punitive damages in conjunction with his count for discrimination and retaliation under the ADA and PFPO. Plaintiff also alleges a count for interference with and retaliation based on his FMLA rights. These claims, however, should not be permitted to continue as no facts have been, nor can be, plead to sustain these requests for damages and interference and/or retaliation.”
The firm argues that the plaintiff “has pled nothing more than that he had a disability and was terminated nearly six months later” and “did not plead that his accommodation requests were denied or ignored, nor has he alleged that he was denied sufficient time off to tend to his health needs.”
“Not a single allegation in his complaint suggests any positive element of conscious wrongdoing showing the malicious intent of the defendant. The complaint relies solely upon a loose temporal connection between his diagnosis and subsequent termination to suggest an inference of discrimination. Without more, the plaintiff cannot sustain a claim for punitive damages related to alleged disability discrimination,” according to the dismissal motion.
For counts of violating the Americans with Disabilities Act of 1990, the Pennsylvania Human Relations Act, the Philadelphia Fair Practices Ordinance, the Fair Labor Standards Act, the Family and Medical Leave Act, the plaintiff is seeking a declaration that the conduct complained of violates the aforementioned statutes, enjoining and restraining permanently the violations, damages for past and future economic losses that he has suffered, compensatory damages, punitive damages, liquidated damages, costs, reasonable attorney’s fees and such other and further relief as this Court deems appropriate.
The plaintiff is represented by Daniel S. Orlow of Console Mattiacci Law, in Philadelphia.
The defendants are represented by Jenna R. Mathias of Bunker & Ray, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01443
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com