SCRANTON – The Hershey Company has denied allegations that it discriminated against and fired a control specialist at its Hazleton plant, supposedly due to his having a dermatological condition and anxiety disorder.
Matthew V. Lichvar of Luzerne County first filed suit in the U.S. District Court for the Middle District of Pennsylvania on June 29 versus The Hershey Company, of Hershey.
Lichvar suffers from a skin condition and rash exacerbated by a hot work environment, hypertension, a generalized anxiety disorder and related conditions, and reported that he was being treated differently due to his protected classes.
“From approximately April to September 2016, Lichvar applied for and was granted intermittent FMLA leave based on his anxiety disorder and hypertension. In addition to previously notifying Hershey about his serious medical condition/disability, on Aug. 10, 2020, Lichvar confirmed to Lori Thomas, Hershey’s Senior Manager, that he had not been feeling well for some time and that he was having physical and mental health issues during the pandemic, emphasizing that he was having difficulty accessing health care,” the suit said.
“On Aug. 28, 2020, Thomas retaliated against Lichvar based on his Aug. 10, 2020 texting incident with co-workers, issuing him a suspension for the remainder of his shift, plus two days. On Aug. 28, 2020, Thomas failed to engage in an interactive process about the nature and extent of Lichvar’s physical and mental disabilities, and instead unilaterally directed that Lichvar complete counseling through the EAP for what Thomas conveniently characterized as ‘anger management.”
Lichvar received individual and group counseling through Hershey’s EAP from August through mid-November 2020. Without providing any explanation to Lichvar for its shifting employment decisions, the suit says Hershey later changed the plaintiff’s suspension to a leave of absence.
Lichvar further alleged he was harassed by the company’s union representative, with the latter calling him a “j–rk off” and directing a profane hand gesture at him, for refusing to sign a write-up against him for workplace absences which he felt was incorrect – and that the write-up was then proven to be incorrect, by checking records. After expressing his desire to file a complaint with Human Resources, the plaintiff was then told by his supervisor that both he and the union rep were being sent home.
“Commencing on Nov. 26, 2020, Lichvar took a scheduled vacation, but did not receive the required disciplinary warning in connection with his verbal dispute (which had been initiated by [the union rep] Bill McLaughlin). On Dec. 7, 2020, Hershey’s manager, Pam Holderman, left a voicemail message for Lichvar, stating that he should not return to work until further notice. On Dec. 11, 2020, Holderman left a voicemail message for Lichvar, stating that he had been terminated (but not indicating any reason for the termination),” the suit stated.
“By letter dated Dec. 18, 2020, Carmella Lonczynski, Senior Human Resources Representative, confirmed Lichvar’s termination effective Dec. 11, 2020. In the Dec. 18, 2020 letter, Hershey once again did not specify any reason for Lichvar’s abrupt termination (and failed to provide him with progressive discipline, including a written warning required under its policy). Hershey wrongfully terminated Lichvar based on his engaging in an argument initiated by a comparator who was not terminated for his reprehensive conduct.”
UPDATE
On Sept. 12, Hershey answered the complaint and denied the viability of all of the plaintiff’s claims.
“Some or all of plaintiff’s claims fail to state facts sufficient to constitute a claim upon which relief can be granted. Some or all of plaintiff’s claims are barred, in whole or in part, by the applicable limitation periods. Some or all of plaintiff’s claims fail to state facts sufficient to constitute a cause of action against defendant for compensatory damages, actual or consequential damages, special or incidental damages, punitive damages, disgorgement or restitution, statutory penalties, declaratory or injunctive relief, interest, or attorneys’ fees and costs,” according to the company’s answer, in part.
“Defendant cannot be liable for punitive damages because defendant made a good faith effort to comply with all applicable laws and, at all relevant times, has acted reasonably, in good faith and without malice based upon all relevant information and facts and circumstances that defendant knew at the time it acted. Plaintiff’s claims are barred, in whole or in part, by the equitable doctrines of laches, estoppel, and unclean hands because plaintiff, to the extent he suffered any harm, did not act promptly to notify defendant of the alleged harm.”
The company added that the plaintiff’s failure to mitigate, or reasonably attempt to mitigate, his alleged damages and failure to take advantage of preventive and corrective opportunities, along with the company’s assertion that it took all appropriate actions to prevent any discriminatory or retaliatory conduct from occurring, should bar the plaintiff’s claims.
“All actions taken with respect to plaintiff were taken in good faith and for legitimate, non-discriminatory and non-retaliatory reasons and/or reasonable factors other than age. Defendant denies that any impermissible factor, such as plaintiff’s alleged disabilities or age, played any role in the employment decisions relating to him,” the answer said.
For counts of disability discrimination, disability retaliation, age discrimination, the plaintiff is seeking reinstatement to Mr. Lichvar’s prior position or a comparable position with defendant, compensation for back pay, front pay, lost retirement, medical expenses and other lost employee benefits, double liquidated damages in an amount to be determined at trial, attorney’s fees, costs, interest and such other relief as the Court deems appropriate.
The plaintiff is represented by Bradford Dorrance of Keefer Wood Allen & Raha, in Harrisburg.
The defendant is represented by Eric C. Kim and Michael J. Puma of Morgan Lewis & Bockius, in Philadelphia.
U.S. District Court for the Middle District of Pennsylvania case 3:22-cv-01018
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com