ALLENTOWN – After not responding to a prior summary judgment motion from the defense, a federal magistrate judge has dismissed claims from a Philadelphia law firm’s former office manager, a plaintiff of Hispanic origin who alleged that she and a fellow co-worker were discriminated against during their tenure because of their ethnic background.
Edna Garcia-Dipini of Reading first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 13, 2021 versus Larry Pitt & Associates, P.C., of Philadelphia.
“Plaintiff, a Hispanic female, was hired by defendant in February 2007, as the office manager at the defendant’s Reading, Pennsylvania location which was located at 541 Court Street, Reading, Pennsylvania 19601. Upon information and belief, defendant maintains several offices in and around the Philadelphia area,” the suit stated.
“Defendant’s Reading, Pennsylvania office was a satellite office, employing two Hispanic employees, including plaintiff. Upon information and belief, plaintiff was only one of two Hispanic employees, employed by the defendant, in any of defendant’s numerous locations.”
The suit said the plaintiff was supervised by a Caucasian woman, Phyllis Meloff.
“Plaintiff suffers from severe hypothyroidism, which impacts her daily life, and is a recognized disability under the Americans with Disabilities Act. Plaintiff’s hypothyroidism required her to undergo bariatric surgery in 2017. Defendant was aware of plaintiff’s medical conditions, including plaintiff’s need to undergo surgery,” the suit stated.
“Though bariatric surgery was originally covered by plaintiff’s health insurance (provided by defendant), unbeknownst to plaintiff, the bariatric services portion of her insurance plan was removed. Other employees, in the Philadelphia office were able to benefit from the surgery option which was included on their insurance plan.”
Though Garcia-Dipini requested an accommodation, in order for defendant and plaintiff to reach an arrangement in order to have plaintiff’s medically necessary surgery covered by insurance, her requests were refused by defendant. Specifically, Meloff refused to accommodate plaintiff, and told her to “go on Weight Watchers.” Since being unable to obtain the expensive surgery without health insurance, plaintiff has suffered severe exacerbation of her health problems.
“Upon information and belief, there was a significant difference between insurance coverage provided to defendant’s employees in the Philadelphia office, which is entirely composed of non-Hispanic employees and that provided to plaintiff. Additionally, during the course of her employment, plaintiff was repeatedly excluded from raises, luncheons, office meetings, meetings with insurance representatives and 401(k) representatives, due to her race and national origin,” the suit said.
“In fact, until plaintiff asked for a 401(k) plan, she did not receive one until 2017, nearly 10 years after being hired by the defendant. Other non-Hispanic employees received 401(k) plans with matching, and received those plans earlier in their employment. This exclusionary conduct was also suffered by plaintiff’s Hispanic co-worker, Diana. While at the Reading office, plaintiff and Hispanic her co-worker were forced to work in filthy conditions, in an office infested with mold and mildew, and were forced to clean the office themselves. Upon information and belief, other, non-Hispanic employees of the Philadelphia office were provided with a cleaning service, and not subjected to filthy and hazardous conditions.”
Garcia-Dipini and Diana were allegedly not provided with proper supplies to complete their work in a timely and professional manner, while non-Hispanic employees in the Philadelphia office were provided professional office supplies, and Meloff would often act in a verbally abusive manner toward the plaintiff when she would raise any concerns about her working conditions.
“Based on pre-textual reasons, plaintiff was terminated on Sept. 24, 2019. Plaintiff was fired in retaliation based on the aforementioned report of discrimination, defendant’s failure to accommodate plaintiff under the ADA, plaintiff exercising her rights under the ADA, plaintiff exercising her rights against, retaliation, discrimination, and all cognizable state claims,” the suit said.
The defendant firm filed an answer to the complaint on June 29, 2021, denying the plaintiff’s claims for racial discrimination, disability discrimination and retaliation for exercising her rights. Additionally, the firm claimed the plaintiff was fired for cause.
“Plaintiff was fired for cause and specifically told why she was fired. Plaintiff engaged in an unprofessional and insubordinate verbal exchange with a lawyer and another staff person employed by answering defendant/counterclaim plaintiff. Plaintiff was observed screaming and cursing at both employees. Plaintiff’s conduct provided grounds for her immediate termination,” the answer stated.
Additionally, the firm provided 19 affirmative defenses.
“Plaintiff fails to state a claim upon which relief can be granted. Plaintiff’s claims are barred, in whole or in part, because defendant/counterclaim plaintiff would have terminated plaintiff’s employment even in the absence of plaintiff’s alleged protected activities. Plaintiff’s claims may be barred by the statute of limitations. Plaintiff’s claims are barred, in whole or in part, because defendant/counterclaim plaintiff’s actions were justified and lawful and defendant/counterclaim plaintiff acted in good faith at all times relevant hereto,” the defenses stated, in part.
“Plaintiff’s claims are barred because answering defendant/counterclaim plaintiff had a legitimate, non-discriminatory, non-retaliatory reason for plaintiff’s termination. Plaintiff was an at-will employee whose employment could have been terminated at any time, for any reason, with or without notice. Plaintiff’s claim for monetary relief is barred, in whole or in part, to the extent plaintiff has failed to mitigate her damages, or suffered no damages as a result of defendant/counterclaim plaintiff’s conduct.”
In a July 26, 2021 response to the defendant’s answer, the plaintiff denied the substance of the opposition’s counterclaims.
On Nov. 10, 2021, plaintiff counsel Marc A. Weinberg of Saffren & Weinberg filed a motion to withdraw from the litigation. U.S. Magistrate Judge Richard A. Lloret approved the request on Nov. 12, granting the withdrawal request and staying the case for 60 days, in order to allow the plaintiff to secure new counsel.
When the plaintiff filed a motion for an extension to secure new counsel, the motion was denied by Lloret on March 8, 2022.
“It is ordered that plaintiff’s pro se motion for extension of time to secure new counsel is denied. Plaintiff has been given ample time (107 days) to secure new counsel. The stay previously entered on Nov. 12, 2021 is now lifted, and discovery shall be completed by May 9, 2022,” Lloret said.
The defendant filed a motion for sanctions against the plaintiff on April 13, 2022, arguing for such a punitive measure due to plaintiff’s failure to respond to the defense’s requests to provide materials for discovery.
“On July 29, 2021, defendants set its first set of interrogatories and Requests for Production of Documents (RFPD) to plaintiff. On Aug. 20, 2021, defendant sent its supplemental interrogatories and RFPD to plaintiff. On Sept. 14, 2021, plaintiff provided her responses to defendant’s first set of interrogatories and RFPD, however, plaintiff’s responses were incomplete and deficient. Plaintiff never responded to defendant’s supplemental interrogatories and RFPD,” the motion for sanctions stated, in part.
“Defendant made multiple attempts to contact plaintiff regarding the outstanding and incomplete discovery responses with the final attempt occurring on March 9, 2022, to no avail. Consequently, defendant was forced to file a motion to compel discovery responses directed toward plaintiff on March 15, 2022. Thereafter, on March 31, 2022, the Court granted defendant’s motion to compel plaintiff’s discovery responses, ordering plaintiff to respond to defendant’s discovery responses within 10 days. The Court’s order also provides that plaintiff would suffer sanctions if she failed to comply.”
Despite the court order compelling the plaintiff to respond to the defendant’s outstanding discovery requests and provide complete responses to the identified deficiencies in plaintiff’s responses to defendant’s first set of RFPD, the defendant argues that the plaintiff has “neither objected to, nor answered said discovery.”
“Specifically, defendant requests that plaintiff be prevented from using any of the evidence that would be responsive to defendant’s discovery request in the following manner: 1) To defend against defendant’s assertions in its counterclaim; 2) To respond to a dispositive motion, or 3) To support plaintiff’s claims for wrongful termination, discrimination and retaliation at the time of trial,” the motion stated.
“Defendant further requests that it be accepted as true that plaintiff failed to mitigate any potential damages because she failed to provide documents showing efforts to obtain employment or income following her separation from defendant.”
Lloret granted the motion for sanctions on June 15, 2022, ruling that the plaintiff was prevented from using any of the evidence that would be responsive to defendant’s discovery request in the following manner: (a) to defend against defendant’s assertions in its counterclaim; (b) to respond to a dispositive motion; or (c) to support plaintiff’s claims for wrongful termination, discrimination and retaliation at the time of trial, in addition to it being accepted as true that the plaintiff failed to mitigate any potential damages.
UPDATE
Subsequent to an Aug. 8, 2022 motion for summary judgment from the defense, which requested the Court dismiss the plaintiff’s claims in their entirety, Lloret chose to again grant that motion from the defense, in a May 13 judicial order. Among the reasons named by the magistrate judge for this decision, was the plaintiff’s not responding to prior orders of the Court or motions from the defense.
“Regarding Ms. Garcia-Dipini’s claims against defendant, as District Courts within the Third Circuit have recognized, a plaintiff’s failure to respond to defendant’s arguments for summary judgment on a particular claim constitutes abandonment of that claim. Abandonment is ‘a necessary corollary to the principle that summary judgment is appropriate where the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case.’ In such circumstances, ‘the Court need not address the merits of defendant’s arguments and the motion for summary judgment is granted as unopposed,” Lloret said.
“Ms. Garcia-Dipini has apparently decided that defendant’s arguments in favor of summary judgment do not merit a response. I will hold her to that choice. I find that each of Ms. Garcia-Dipini’s claims are abandoned and grant summary judgment in defendant’s favor. Regarding defendant’s counterclaims, I am satisfied that defendant has met its burden to prove the elements of breach of contract and to show that no genuine issue of material fact exists. I therefore find that defendant is entitled to judgment in its favor as to liability with regard to its counterclaims.”
Lloret granted the defendant’s motion for summary judgment, found that the plaintiff’s four counts were dismissed as abandoned, found that the defendant was entitled to judgment in its favor as to liability on its counterclaims and that a hearing on those counterclaim damages would be scheduled by May 17.
The plaintiff is representing herself in this matter.
The defendant is represented by Patricia Fecile-Moreland and Michael J. Joyce of Marks O’Neill O’Brien Doherty & Kelly, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-02186
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com