SCRANTON – A transportation equipment operator who 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 has voluntarily dismissed one defendant from claims made under the Americans with Disabilities Act of 1990 and the Pennsylvania Human Relations Act.
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.”
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.
A supplemental opposition brief from plaintiff counsel filed on June 30 both dropped the ADA claim against Carroll and the PHRA and Section 1983 claims against PennDOT – but it did argue that a Section 1983 claim made against Carroll remained valid.
“It is conceded that a review of Third Circuit case law reveals that defendant Carroll cannot be held individually liable under the ADA. Thus, the Court should issue an order noting the plaintiff’s ADA claim against defendant Carroll is surrendered. The plaintiff hereby concedes his PHRA and Section 1983 claims against PennDOT. The motion to dismiss should be granted as to the PHRA and Section 1983 claims. The complaint here, respectfully, did sufficiently plead liability based on a policy the defendant promulgated, and the plaintiff did ‘identify in their pleading what exactly appellants should have done differently, whether with respect to specific training programs or other matters, that would have prevented the unconstitutional conduct,” the brief stated.
“In addition, plaintiff has sought injunctive relief. Section 1983 damage actions against state officials in their official capacity are barred because a suit against a state official acting in his or her official capacity constitutes a suit against the state itself, which is not a ‘person’ under Section 1983. Nevertheless and noteworthy here, a state official acting in his or her official capacity, when sued for injunctive relief, is a ‘person’ under Section 1983 because ‘official-capacity actions for prospective relief are not treated as an action against the state.’ The defendants’ motion to dismiss must be denied.”
UPDATE
On Dec. 6, the plaintiff voluntarily dismissed defendant Peters from the case.
“It is hereby stipulated and agreed by and between the parties and/or their respective counsel that the above-captioned action is voluntarily dismissed, without prejudice as to Katherine Peters, pursuant to the Federal Rules of Civil Procedure 41(a)(1)(A)(ii),” the stipulation stated.
For counts of violating the First Amendment to the U.S. Constitution and 42 U.S.C. Section 1983, 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