ALLENTOWN – A Berks County transportation entity has denied charges that it permitted racially-hostile behavior in the workplace and subjected one of its Black employees to retaliation when he challenged the behavior in question.
Asad Abdullah filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Aug. 22 versus Berks Area Regional Transportation Authority. Both parties are of Reading.
“Plaintiff, an African-American, is employed at Berks Area Regional Transportation Authority. In 2019, defendant’s agents Jose Ortiz and Kevin Rutkowski were formally disciplined due to sexually explicit jokes and behaviors. Ortiz incorrectly suspected that the plaintiff was responsible for these reports, which resulted in him starting harassment and intimidation of the plaintiff. On Oct. 3, 2020, defendant’s agent, Joel Yeakley, deliberately initiated a racially-charged argument with plaintiff, making racially insensitive remarks about the Black Lives Matter movement and the violence in Philadelphia, intending to harass and provoke the plaintiff. The plaintiff belongs to the protected class: Race, Black. Plaintiff also engaged in protected activity by filing multiple complaints of discrimination and retaliation,” the suit said.
“Since April 2015, plaintiff and other minority staff members have reported the recurrent racially-hostile environment to the management, without adequate response or action. On March 24, 2021, defendant’s agents Julio Ortiz and William Dietrich, both of non-Black race, used racially insensitive language, mocking African-American urban culture. The same day, upon the plaintiff’s request to refrain from said language, Julio Ortiz acted in a threatening and intimidating manner towards the plaintiff. Sharon Stephens, Director of Operations, had to intervene to prevent a physical altercation. Again, on March 25, 2021, Ortiz reiterated his lack of remorse and continued to perpetrate this hostile work environment. The racial harassment and discrimination was pervasive and regular, continuing over the course of several years and continues.”
The suit added that uses of racial epithets, including the “n-word”, occurred in the workplace.
“The use of the word n— by defendant’s agents has become a part of defendant’s work culture. So much so that Julio Ortiz and William Dietrich, non-Black, greeted each other by saying, ‘What’s up, my n—?” in a high-pitched tone and cadence that mocked African-American urban culture. This harassment was severe, with Ortiz loudly yelling and acting as if he would physically assault the plaintiff after his request, demonstrating a deeply-ingrained hostile attitude towards the plaintiff’s race,” the suit stated.
“Plaintiff filed multiple administrative charges of discrimination, to no avail. Unfortunately, after plaintiff filed charges of discrimination he was only retaliated against and treated worse. As a direct and proximate result of the defendant’s acts and/or omissions, plaintiff sustained great economic loss, future lost earning capacity, lost opportunity, loss of future wages and earnings, as well as emotional distress, humiliation, pain and suffering, personal injury damages and other damages.”
UPDATE
Berks Area Regional Transportation Authority motioned to dismiss the case on Oct. 5, for failure to state a claim upon which relief could be granted and for failure to exhaust administrative remedies.
“It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief.’ Failure to exhaust administrative remedies is a matter to be determined under Federal Rule of Civil Procedure 12(b)(6). The purpose of the exhaustion requirement is to ‘respect executive autonomy by allowing an agency the opportunity to correct its own errors,’ provide courts with the benefit of an agency’s expertise, and serve judicial economy by having the administrative agency compile the factual record.’ The examination of a motion on these grounds follows the general principle under 12(b)(6) motions that a complaint must contain sufficient factual allegations that, if proven true, state a claim upon which relief can be granted in favor of the plaintiff. Plaintiff never avers sexual harassment in his dual-filed complaint of July 6, 2021. The first mention of sexual harassment is in the instant complaint,” the dismissal motion stated.
“Plaintiff has failed to allege or develop his sexual discrimination claims through proper administrative channels. Plaintiff’s failure to develop his claim should also be seen as a failure to exhaust administrative remedies on the harassment claims. Additionally, nowhere in the instant pleading does he refer to any incident where he was discriminated against or harassed because he was a man. Plaintiff fails to allege any facts in his instant complaint that demonstrate or aver that he was discriminated against due to the fact that he was a male. Accordingly, the sexual discrimination claims must be dismissed with prejudice for failure to state a claim for which relief can be granted.”
For counts of sex discrimination, sex retaliation, hostile work environment, racial discrimination and racial retaliation in violation of Title VII of the Civil Rights Act of 1964, racial violations of 42 U.S.C. Section 1981, plus sex discrimination, sex retaliation, hostile work environment, racial discrimination and racial retaliation in violation of the Pennsylvania Human Relations Act, the plaintiff is seeking:
• Compensatory damages, including but not limited to, back pay, front pay, past lost wages, future lost wages, lost pay increases, lost pay incentives, lost opportunity, lost benefits, lost future earning capacity, injury to reputation, mental and emotional distress, physical injury, and pain and suffering;
• Punitive damages;
• Attorney’s fees and costs of suit;
• Reimbursement for medical bills;
• Interest, delay damages and any other further relief this Court deems just proper and equitable.
The plaintiff is represented by Briana Lynn Pearson-Prout of the Law Offices of Eric A. Shore, in Philadelphia.
The defendant is represented by Sean E. Summers and Jill E. Nagy of Summers Nagy Law Offices, in Wyomissing and York.
U.S. District Court for the Eastern District of Pennsylvania case 5:23-cv-03248
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com