SCRANTON – A transportation equipment operator has insisted that the Pennsylvania Department of Transportation failed to accommodate his disability and later fired him for alleged comments he made in a Facebook post.
Gary Gillow Jr. of Honesdale first filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 24 versus the Pennsylvania Department of Transportation, its Secretary Michael Carroll and its Director of Equal Opportunity Katherine Peters, all of Harrisburg.
“Plaintiff, age 48, was a full-time employee of the defendant PennDOT. Plaintiff was last employed with PennDOT Engineering District 4, Wayne County Maintenance Organization, in a position of Transportation Equipment Operator B. Plaintiff was and is a qualified individual with a disability, having been diagnosed with right leg amputation below the knee,” the suit said.
“Following his right leg amputation in January 2022, plaintiff never drove a truck for PennDOT as he did pre-injury. Plaintiff, with a reasonable accommodation, would have been able to perform services for the employer. Plaintiff, with a reasonable accommodation, could perform the essential functions of his job.”
The suit continued that despite requests for accommodations and a clear recognition of the plaintiff’s disability, the defendant refused to make any accommodation for his disability.
“Defendant subsequently terminated plaintiff’s employment effective on June 15, 2022, refusing to offer any accommodation. The defendant’s discharge rationale in terms of a Facebook post was a pretext for discrimination against him due to his disability. The employer PennDOT alleged that plaintiff posted a Facebook post which allegedly contained inappropriate comments on PennDOT’s staff. The Facebook post of plaintiff was vague and non-specific and was protected free speech of plaintiff,” the suit stated.
“Plaintiff was at all times an employee of defendant until he was terminated from his position. Plaintiff has a right, pursuant to 42 U.S.C. Section 1981 to be gainfully employed and thereby contribute as a taxpayer and support himself free of unlawful discrimination based on his disability. Plaintiff has a right pursuant to Title VII to work and be employed in the stream of American commerce and to enjoy the benefits of and emoluments of employment so he can participate in supporting the nation by payment of taxes and to support himself free of unlawful discrimination on account of his disability. Plaintiff has a right guaranteed by the First Amendment to the U.S. Constitution pursuant to 42 U.S.C. Section 1983 to be free from retaliation in the form of adverse employment action from expressing speech on matters of public concern.”
UPDATE
On May 18, the defendants filed a partial motion to dismiss the case, seeking to have most of the case’s counts dismissed with prejudice for failure to state claims upon which relief could be granted.
“Defendants Secretary Carroll and the Pennsylvania Department of Transportation, through counsel, hereby file this motion to partially dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for the failure to state a claim upon which relief may be granted,” the motion said.
“More specifically, defendants contend that the complaint fails to state an Americans with Disabilities Act (ADA) claim against individually-named defendants, PennDOT is entitled to Eleventh Amendment immunity on the Pennsylvania Human Relations Act claim, PennDOT is not a person for the First Amendment claim asserted pursuant to Section 1983, and the complaint fails to establish the personal involvement of individual defendants for the First Amendment claim asserted pursuant to Section 1983. After resolution of this motion, defendants anticipate that the ADA failure to accommodate claim asserted against PennDOT remains and will proceed to discovery. Defendants will file a supporting brief in accordance with Local Rule 7.5.”
In a May 23 response to the partial dismissal motion, the plaintiff denied it in its entirety.
For counts of violating the Americans with Disabilities Act of 1990, the First Amendment to the U.S. Constitution and the Pennsylvania Human Relations Act, the plaintiff is seeking an injunction prohibiting each of those statutes from being violated against him further, compensatory damages, back pay with interest, front pay, costs, reasonable attorney’s fees and such further relief as the Court deems necessary and proper.
The plaintiff is represented by Harry T. Coleman of the Law Office of Harry Coleman, in Carbondale.
The defendants are represented by Mary Katherine Yarish of the Pennsylvania Attorney General’s Office, in Harrisburg.
U.S. District Court for the Middle District of Pennsylvania case 3:23-cv-00521
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com