PHILADELPHIA – A Bucks County-based adult establishment has rejected allegations from its former cleaner and clerk that it discriminated against and fired him, based upon his designation as a cisgender male.
David McCreary of Lansdale first filed suit in the U.S District Court for the Eastern District of Pennsylvania on Nov. 6 versus Adult World, Inc. of Quakertown.
“Plaintiff is a biological male. In or around January 2023, defendant hired plaintiff in the position of Cleaner/Clerk. Plaintiff was well-qualified for his position and performed well. Since the start of plaintiff’s employment with defendant, Kevin Krupiewski, District Manager, has hired two transgender Clerks (DeDe Santiago and Courtney Robinson) at defendant’s Quakertown location. Throughout plaintiff’s employment, he has complained of disparate treatment between the transgender and non-transgender employees at defendant,” the suit said.
“In or around April 2023, plaintiff complained to Krupiewski that Santiago and Robinson frequently arrived late to work and kept the store open past store hours. Krupiewski refused to address plaintiff’s complaints, stating that he would not issue Santiago or Robinson write-ups. In fact, Krupiewski promoted Robinson to Store Manager within 90-days of the start of her employment. Plaintiff, who had worked at defendant longer, did not get offered a promotion within 90 days of his employment. In contrast, in or around March 2023, a customer made a false complaint about Stacy Yoder (biological female), Store Manager.”
The suit continued that Krupiewski “immediately wrote Yoder up for this complaint, despite the fact that the plaintiff, as a witness to the customer interactions, provided a statement disproving the complaint.”
“On or around June 4, 2023, Krupiewski approached plaintiff as he was opening the store in the morning. Krupiewski abruptly terminated plaintiff’s employment. Krupiewski stated the reason for termination was that plaintiff put a drape over the fire exit. Importantly, plaintiff had done this so that children could not look into defendant’s store window. Plaintiff had not been told to remove this drape prior. Krupiewski also alleged that plaintiff kept a tip jar on the counter. Krupiewski accused plaintiff of stealing money from the store. Prior to this day, plaintiff had not been told by anyone at defendant that there could not be a tip jar on the counter,” the suit stated.
“That same day, Krupiewski terminated Yoder’s employment as well. Importantly, at that time, Yoder was the only other non-transgender employee that worked at defendant’s Quakertown location. A month prior, Krupiewski had terminated the only other non-transgender employee, Robert Warthington (biological male). Following plaintiff and Yoder’s same-day termination, Krupiewski only kept transgender employees on the staff at defendant’s Quakertown location. Following plaintiff’s termination, plaintiff contacted Tamika LNU, Payroll, and Sharon LNU, Human Resources. Tamika and Sharon stated that they were not aware of plaintiff’s termination and defendant did not have a termination letter prepared for him. It is plaintiff’s belief that he was discriminated against due to his gender in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.”
UPDATE
The defendant motioned to dismiss the complaint on March 4, seeking that dismissal to be with prejudice – for a supposed failure to allege any facts that would allow the Court to infer gender discrimination and that the plaintiff allegedly failed to exhaust available administrative remedies under the PHRA.
“To establish a prima facie claim of employment discrimination, plaintiff must ‘show: 1) Membership in a protected class; 2) Qualification for the position; 3) An adverse employment action taken against him despite being qualified; and (4) ‘The action occurred under circumstances that could give rise to an inference of intentional discrimination.’ Here, plaintiff fails to satisfy the fourth element: That circumstances surrounding his termination support an inference of gender discrimination or discriminatory animus. For purposes of this motion, defendant does not dispute that plaintiff pled the first three prima facie elements, as plaintiff alleges that he is a male, that he was qualified for his position, and that he was terminated from his position. However, even accepting all of plaintiff’s allegations as true and construing the complaint in a light most favorable to plaintiff, there is nothing here to support plaintiff’s conclusion that circumstances exist giving rise to an inference of discrimination. As this Court has explained, there are two avenues to adequately plead the fourth element of gender discrimination. One avenue is for plaintiff to allege that similarly-situated employees, outside of his protected class, were treated more favorably. However, plaintiff may not selectively choose some comparators while ignoring others. Alternatively, plaintiff may adequately allege discriminatory animus by alleging facts showing a causal nexus between the employee’s membership in a protected class and the adverse employment action,” according to the dismissal motion.
“Here, plaintiff fails on both fronts. First, plaintiff alleges that District Manager Krupiewski, acting on behalf of defendant, terminated Stacy Yoder, a biological female, on the same day as plaintiff. By alleging that ‘plaintiff is a member of protected classes [sic] in that he is a male,”, while conceding that a biological female was terminated on the same day, plaintiff fails to show how similarly situated employees outside of his protected status as a male were treated more favorably. Both groups of employees were treated the same way by being terminated on the same day. Second, plaintiff has not shown any causal nexus between his termination and his status as a male employee. Plaintiff merely states that Krupiewski informed plaintiff that he was terminated because he placed a drape over the fire exit and stole money from defendant’s store by keeping a tip jar at the counter. Though plaintiff suggests that he was not warned about hanging a drape or keeping a tip jar on the counter prior to his termination, these facts provide no causal link between his protected status, and his termination. Because plaintiff has failed to allege any facts that would allow this Court to infer gender discrimination, this Court should dismiss plaintiff’s claims against defendant.”
The motion added that the plaintiff’s status as a “non-transgender employee” is not a category protected by Title VII or the PHRA (since it does not involve race, color, religion, sex, or national origin) and that he allegedly failed to exhaust administrative remedies under the PHRA by not filing a timely claim with the Pennsylvania Human Relations Commission, and instead going straight to litigation.
For counts of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act, the plaintiff is seeking the following relief:
• Compensatory damages;
• Punitive damages;
• Liquidated damages;
• Emotional pain and suffering;
• Reasonable attorneys’ fees;
• Recoverable costs;
• Pre- and post-judgment interest;
• An allowance to compensate for negative tax consequences;
• A permanent injunction enjoining defendant, its directors, officers, employees, agents, successors, heirs and assigns, and all persons in active concert or participation with it, from engaging in, ratifying, or refusing to correct, employment practices which discriminate in violation of Title VII and the PHRA.
• Order defendant to institute and implement, and for its employees, to attend and/or otherwise participate in, training programs, policies, practices and programs which provide equal employment opportunities;
• Order defendant to remove and expunge, or to cause to be removed and expunged, all negative, discriminatory, and/or defamatory memoranda and documentation from plaintiff’s record of employment, including, but not limited to, the pre-textual reasons cited for its adverse actions, disciplines and termination; and
• Awarding extraordinary, equitable and/or injunctive relief as permitted by law, equity and the federal statutory provisions sued hereunder, pursuant to Rules 64 and 65 of the Federal Rules of Civil Procedure.
The plaintiff is represented by David M. Koller of Koller Law, in Philadelphia.
The defendant is represented by Alexander Nemiroff of Gordon Rees Scully Mansukhani, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-04332
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com