PHILADELPHIA – A former Pond Lehocky attorney who claimed he was terminated for seeking accommodations during his bout with testicular cancer has reached a settlement in his litigation.
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 alleged 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.”
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 argued 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.
Ferruzzi provided an amended version of the complaint on July 11, which alleged several of the same counts, but removed discrimination under the Family and Medical Leave Act, in addition to punitive damages under a retaliation theory supported by the Americans with Disabilities Act of 1990.
In a second motion to dismiss, defendants Pond Lehocky Giordano, LLP and Pond Lehocky, LLP, “vehemently deny all allegations of discrimination and/or retaliation”, as the plaintiff “has failed to state a cause of action upon which punitive damages can be awarded for their disability discrimination claims, and therefore, punitive damages must be dismissed from plaintiff’s amended complaint.”
“Here, plaintiff has pled nothing more than that he had a disability and was terminated nearly six months later. He has not plead: That his accommodation requests were denied or ignored; that he was denied sufficient time off to tend to his health needs; nor that he made a complaint about discriminatory statements or behavior that was ignored,” the second dismissal motion stated.
“There is not a single allegation in his amended complaint that suggests any positive element of conscious wrongdoing showing the malicious intent of the defendant. The amended 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.”
Ferruzzi and his counsel responded to the second dismissal motion on Aug. 5, countering that punitive damages are a “fact-specific inquiry” and not able to be removed through a motion to dismiss for failure to state a claim.
“Here, defendants renewed motion to dismiss seems to have disregarded entirely the allegations added to plaintiff’s first amended complaint which, when taken as true, raise a plausible inference that discovery will reveal additional evidence that defendants (specifically Donovan, Heinz and Adams) terminated plaintiff because of his disability, his use of medical leave, and his on-going need for a modified schedule despite knowing that such conduct was unlawful,” their response stated.
“Notwithstanding the well-plead facts from plaintiff’s first amended complaint that allege such knowledge and attribute the same to plaintiff’s supervisor and defendants’ human resources officers, defendants make entirely false statements such as ‘plaintiff has pled nothing more than that he had a disability and was terminated nearly six months later’ and ‘there is not a single allegation in his amended complaint that suggests any positive element of conscious wrongdoing showing the malicious intent of the defendant.’ In sum, not only is defendants’ motion procedurally improper and premature due to being raised in a 12(b)(6) motion, but the arguments raised are fundamentally flawed for the additional reason that they rely on a gross mischaracterization of the factual allegations from plaintiff’s first amended complaint.”
UPDATE
According to a Sept. 2 order from U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone, the case was resolved through settlement. Terms of the settlement were not disclosed.
“It having been reported that the issues between the parties in the above action have been settled and upon Order of the Court pursuant to the provisions of Rule 41.1(b) of the Local Rules of Civil Procedure of this Court, it is ordered that the above action is dismissed with prejudice, by agreement of counsel, without costs,” Beetlestone said.
The plaintiff was represented by Daniel S. Orlow of Console Mattiacci Law, in Philadelphia.
The defendants were 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