PITTSBURGH – A local man reiterates that he was subjected to a hostile work environment, including epithets made against his Jewish heritage and that he was fired when he made complaints about the offending behavior – and wants to see the case moved to Allegheny County’s Commerce and Complex Litigation Center.
Gregg Bernstein first filed suit in the Allegheny County Court of Common Pleas on Sept. 22 versus D’Andrea Wine & Liquor Imports, Inc. and John D’Andrea. All parties are of Pittsburgh.
“Defendant owner John D’Andrea controlled and was the primary decision-maker regarding the actions of the defendant business D’Andrea Wine & Liquor Imports, Inc., including on matters of health and safety as well as employment. Defendant owner worked full-time at/for the defendant business. Plaintiff was hired as a sales person by defendant business and defendant owner in or around June 2019. Plaintiff was based in and worked out of Allegheny County, Pennsylvania. Plaintiff was and is Jewish,” the suit said.
“Throughout his employment with defendant business, plaintiff and other employees were subjected to repeated offensive and inappropriate racist, sexist and anti-Semitic remarks by defendant’s management that were offensive and derogatory statements, including the male, non-Jewish, Caucasian manager repeatedly negatively and disparagingly referring to African-Americans (included use of the “n——” word), women (including use of the “c—” word), and Jews. Other inappropriate comments were also made based on national origin. This repeated use of offensive references to persons based on their race, religion, gender and/or national origin created a hostile work environment. Plaintiff complained to the defendant owner about the offensive comments at various times during his employment and nothing was done about it and nothing changed.”
The suit added that the defendant owner allegedly failed to follow Pennsylvania Department of Health orders and directives regarding COVID-19 workplace health and safety measures, as D’Andrea allegedly continued coming to work at the office after testing positive for and knowing he had COVID-19, failed to disclose that information to co-workers in a timely manner and failed to abide by mandatory COVID-19 protocols for cleaning, social distancing and mask-wearing.
“On Jan. 30, 2021, plaintiff complained again to the defendant owner by e-mail, about the inappropriate and offensive racist, sexist, anti-Semitic, and other inappropriate comments by management, as well as about the failure of the organization and owner to take required and appropriate coronavirus workplace safety measures. Plaintiff requested a meeting with the defendant owner to discuss these complaints and that meeting occurred on Feb. 5, 2021,” the suit stated.
“At that Feb. 5, 2021 meeting, plaintiff confirmed and gave examples of the offensive, racist, sexist and anti-Semitic comments continuing to be made by management. At that Feb. 5, 2021 meeting, plaintiff complained about the defendant business’ and defendant owner’s inadequate and dangerous actions regarding the coronavirus, which did not comply with Pennsylvania Department of Health requirements (or CDC guidance). During that Feb. 5, 2021 meeting, as a result of and in direct response to the plaintiff’s above complaints, defendant’s owner fired plaintiff.”
Bernstein alleged that in addition to himself, various other employees complained to management about the offensive statements by management and the hostile work environment, but that their complaints, like his, went un-remedied.
Finally, Bernstein added that he was told by the defendant Business at the start of and at various times throughout his employment that he would be paid a commission, though he was never informed of the specifics of that commission and its calculation, despite repeatedly asking for this information, and was not properly and fully paid for his employment services, including his commissions.
An Oct. 14 answer to the litigation from the defendants saw a wholesale denial of the substantive counts levied against them, and the providing of new matter to counter the plaintiff’s claims.
“Plaintiff’s complaint fails to state a claim upon which relief may be granted. Plaintiff failed to exhaust his administrative remedies. Answering defendants had a legitimate, non-discriminatory reason for terminating plaintiff. At all material times, any action taken by answering defendants with respect to the terms of plaintiff’s employment was taken in good faith, in a reasonable manner and fashion, and for legitimate and lawful reasons unrelated to his race, sex or religion. At all material times, any action taken by answering defendants with respect to the terms of plaintiff’s employment was taken in good faith, in a reasonable manner and fashion, and for legitimate and lawful reasons unrelated to any alleged complaints of discrimination,” per the defense’s new matter.
“Plaintiff failed to comply with all conditions precedent and with all statutory requisites for filing the instant complaint against answering defendants. Plaintiff’s claims are barred in whole or in part by the doctrines of unclean hands, accord and satisfaction, waiver, payment, release, discharge and res judicata and/or collateral estoppel. Plaintiff’s claims for damages are barred to the extent that plaintiff failed to properly mitigate his damages, if any. Alternatively, answering defendants are entitled to a set off for all amounts actually earned by plaintiff through self-employment or other employment in mitigation of his claimed damages. Plaintiff is not entitled to compensatory, punitive or other damages, or relief, or for attorney’s fees and costs. If plaintiff suffered any damages or losses, such damages or losses were caused in whole or in part by her own acts, omissions or conduct, about which answering defendants had no prior knowledge or control and are not legally responsible.”
The defendants additionally argued that they did not breach or violate any duty to or right of the plaintiff under the Pennsylvania Human Relations Act or the Pennsylvania Wage Payment & Collection Law or any other statute or law.
UPDATE
In a reply to the new matter filed on Oct. 19, Bernstein argued that the new matter “asserts a legal defense rather than a new factual matter and thus no reply is required.”
The same day, Bernstein motioned to transfer the case to the Commerce and Complex Litigation Center.
“This case presents novel, important, and complex matters for court decision. For example, this case presents novel questions regarding the extent of whether the protections of wrongful discharge causes of action apply to protect employees from retaliation for questioning their employer’s compliance and/or complaining about their employer’s noncompliance with Commonwealth’s Department of Health’s Order in effect during the relevant time for controlling the actions of employers within the Commonwealth for handling the health dangers posed by COVID-19. The cause of action for a wrongful discharge in violation of public policy has been recognized in various contexts. The present case presents the novel question of whether this wrongful discharge protection applies to the plaintiff who alleges he was discharged in retaliation for his complaining about the employer’s non-compliance with a Pa. Department of Health Order,” according to the motion.
“This case also presents complex factual and/or legal questions regarding the creation/existence of and liability for a hostile work environment regarding management’s use of racist, sexist and religious epithets – including such offensive statements against women, African-Americans and Jews – and the appropriate measures an employer should take in response to complaints and/or knowledge of such behavior. Additionally, this case presents complex and novel legal issues regarding an employer’s obligation and failure to provide a clear description of its pay methods/formula for its sales personnel, including plaintiff, paid a commission on sales. This case also presents complex procedural and case management issues regarding the potential for a class action regarding the claimed failure to properly pay commissions, as well as regarding a hostile work environment for other employees, depending on how discovery proceeds. Based on the above, plaintiff respectfully moves this Honorable Court to assign this case to the Commerce and Complex Litigation Center.”
For counts of wrongful discharge, employment discrimination – hostile work environment, employment discrimination – retaliation, intentional infliction of emotional distress, negligent infliction of emotional distress and failure to provide proper compensation, the plaintiff is seeking a declaration that the defendants’ conduct was in violation of the law, an injunction preventing any such future conduct, back pay, front pay, fringe benefits and other benefits of employment, compensatory damages, punitive damages, attorneys’ fees and costs under the Pennsylvania Human Relations Act, liquidated damages under the Pennsylvania Wage Payment Collection Law, attorneys’ fees pursuant to the Pennsylvania Wage Payment Collection Law, and any other applicable statute, pre- and post-judgment interest and any other damages, remedies, and relief as deemed just and proper.
The plaintiff is represented by Craig M. Brooks of Houston Harbaugh, in Pittsburgh.
The defendants are represented by Justin J. Boron and Heather C. McFeeley of Freeman Mathis & Gary, in Philadelphia.
Allegheny County Court of Common Pleas case GD-22-012005
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com