PITTSBURGH – A German restaurant in Pittsburgh has denied liability in a discrimination lawsuit from a former employee who accused it of discriminating against him for his homosexuality and disability and later firing him without cause.
Ronald J. Kimmel of Pittsburgh first filed suit in the Allegheny County Court of Common Pleas on May 10 versus Hofbraushaus Pittsburgh.
“Plaintiff began working at defendant’s Pittsburgh location in August 2021 as a pretzel preparer. Plaintiff was subsequently assigned to portioning. While employed, plaintiff was subjected to severe and pervasive discrimination on the basis of his gender/sexual orientation, disability and age. The restaurant’s executive chef Michael routinely called plaintiff ‘grandpa’. When plaintiff requited additional assistance at work, the executive chef would state that it was plaintiff’s ‘age’ preventing him from understanding the work duties,” the suit said.
“Throughout plaintiff’s employment, plaintiff was ridiculed concerning his sexual orientation as a gay man. In plaintiff’s presence, his straight co-workers stated that employees should not ‘bend over’ in front of plaintiff. Such comments are overtly discriminatory toward gay men. They imply sexual deviance and lack of impulse control. On other occasions, plaintiff’s coworkers ridiculed him for only being able to pick up one box at a time and would make comments such as ‘let a man do it.’ In addition to mocking his sex, plaintiff believes and therefore avers that his, co-workers were also ridiculing him for his known disability.”
The suit added that the plaintiff suffers from severe numbness in both hands, which impacts his ability to hold hands in a normal manner and also causes him difficulty in picking up large and/or heavy objects.
“Plaintiff also witnessed other homosexuals receive discriminatory and derogatory treatment by defendant and its employees during his employment. Plaintiff observed defendant and its employees refer to a known lesbian as both a ‘dyke’ and a ‘truck driver.’ Plaintiff further observed defendant and its employees comment that she looked ‘like a boy.’ Plaintiff complained about all of the above behavior and reported the same to management, but to the best of his knowledge and belief, no corrective actions were taken. Throughout his employment, plaintiff received treatment much less favorable than his heterosexual, younger and non-disabled coworkers. Defendant denied plaintiff the ability to take breaks at the same frequency as his co-workers. For several months, plaintiff was not even offered his free shift meal for which all of his non-disabled, younger and heterosexual coworkers were given. Defendant further allowed plaintiff s coworkers to take smoke breaks, during which some employees even smoked marijuana oils. Plaintiff, however, was not permitted to take similar breaks even though he used only tobacco,” the suit stated.
“Plaintiff further requires dental surgery to repair his damaged teeth. Plaintiff believes and therefore avers that defendant perceived this condition as a disability. Plaintiff believes and therefore avers that defendant targeted him and discriminated against him on the basis of this perceived disability. In particular, defendant instructed plaintiff to wear a mask when no other employees were likewise instructed to wear one. Plaintiff believes and therefore avers that defendant made this instruction based upon this perceived disability. On April 25, 2022, plaintiff was terminated by the executive chef without explanation. Plaintiff believes and therefore avers that he was terminated on the basis of his sex/sexual orientation, age and disabilities.”
The defendant filed to remove the case to the U.S. District Court for the Western District of Pennsylvania on June 5, since federal claims are among the lawsuit’s counts.
“Hofbrauhaus has not yet answered or otherwise responded to plaintiff’s complaint. Plaintiff’s complaint contains several federal law claims, including Count I – Sex Discrimination Under Title VII, Count II – Disability Discrimination Under ADA, and Count IV – Discrimination Under the Age Discrimination in Employment Act of 1967 and All Amendments. The present notice of removal has been timely filed,” the removal notice stated.
“This Honorable Court has original jurisdiction over this matter pursuant to 28 U.S.C. Section 1331, as this is a civil action arising under the laws of the United States. Removal from state court to the United States District Court for the Western District of Pennsylvania is therefore permissible pursuant to 28 U.S.C. Sections 1441(a) and 1446. All parties will receive written notice of the filing of the removal as required by 28 U.S.C. Section 1446(d). Notice of this removal will be provided to the Department of Court Records of the Court of Common Pleas of Allegheny County in a notice of filing a removal.”
UPDATE
The defendant followed up the federal court removal with an answer to the complaint, along with 18 affirmative defenses, on June 23. In addition to denying the commission of any instances of discrimination against the plaintiff, the defendant further asserted that the plaintiff left its employ of his own volition.
“Plaintiff fails to state a claim upon which relief may be granted against defendant. At all times defendant acted reasonably, with a good faith belief that its actions were legal and non-discriminatory. Plaintiff was not discriminated against on the basis of his sex, age or any alleged disability. Plaintiff’s claims are barred in whole or in part by the plaintiff’s failure to mitigate any alleged damages. At all times relevant, defendant made a good faith effort to comply with all state and federal statutes. Plaintiff’s complaint is barred, in whole or in part, because defendant has at all times acted reasonably and in good faith towards him. Plaintiff’s complaint is barred, in whole or in part, because plaintiff is not able to establish a prima facie case of any alleged discrimination and/or harassment. Plaintiff’s complaint is barred, in whole or in part, because plaintiff is not able to establish a prima facie case of harassment, sex discrimination, age discrimination, disability discrimination or retaliation. Defendant’s actions regarding plaintiff were taken for legitimate, non-discriminatory reasons and unrelated to him participating in any protected activity or for any other unlawful reason,” per the defenses.
“Plaintiff voluntarily walked off the job/quit from his at-will position with defendant of his own accord and not in response to any acts or omissions of defendant. Plaintiff’s complaint is barred, in whole or in part, because plaintiff did not suffer any tangible employment action as a result of any alleged discrimination and/or harassment. To the extent revealed in discovery, plaintiff did not have a disability under the ADA and was not perceived to have a disability under the ADA. To the extent revealed in discovery, plaintiff’s allegations lack temporal proximity. To the extent revealed in discovery, defendant sets forth the after acquired evidence defense. Plaintiff’s allegations related to any alleged harassment were not severe or pervasive. There was no tangible job action taken against plaintiff. This defendant reserves the right to raise such additional defenses as the continuing investigation may reveal. This defendant asserts all other affirmative defenses to which it is entitled pursuant to Federal Rule of Civil Procedure 8(c).”
For counts of sex discrimination under Title VII of the Civil Rights Act of 1964, disability discrimination under the Americans with Disabilities Act of 1990, discrimination under the Pennsylvania Human Relations Act and discrimination under the Age Discrimination in Employment Act, the plaintiff is seeking damages in excess of $50,000, exclusive of interests and costs and other damages as listed below:
• The entry of declaratory judgment finding that the acts complained of herein are unlawful discriminatory practices under ADA;
• The entry of a permanent injunction prohibiting defendant from retaliating against employees on the basis of disability;
• The immediate assignment of plaintiff to such position as she would now be occupying but for the discriminatory acts of defendant as well as the foreclosure of promotional opportunities;
• The award of compensation of plaintiff for all earnings and other benefits, including retirement benefits which plaintiff would have received, but for the discriminatory acts of defendant, as well as the foreclosure of promotional opportunities;
• The award of any pre-judgment interest on any back pay;
• The award of compensatory damages;
• The award of punitive damages;
• The award of costs and disbursements of this action including reasonable attorney’s fees and expert fees.
The plaintiff is represented by David M. Kobylinski and Peter T. Kobylinski of Praetorian Law Group, in Pittsburgh.
The defendant is represented by Joseph W. Selep and Gregory C. Scheuring of Zimmer Kunz, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-00985
Allegheny County Court of Common Pleas case GD-23-006026
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com