PHILADELPHIA – A federal judge has remanded a case from a man who alleged that the School District of Philadelphia (SDP) failed to accommodate his autism spectrum disorder and learning disabilities and retaliated against him for investigating potential ethical violations, among other claims, to the Philadelphia County Court of Common Pleas.
On July 10, U.S. District Court for the Eastern District of Pennsylvania Judge Timothy J. Savage ordered the remand of Benjamin Litman’s case against the District and the Philadelphia Federation of Teachers, among numerous other defendants, back to the state court.
“Litman has autism spectrum disorder, ADD, ADHD, oppositional defiant disorder, and an auditory processing disorder. As a result, he has learning disabilities and difficulties with communication and social interactions. On Sept. 14, 2020, SDP hired Litman as a Placement Specialist in the Office of Student Enrollment and Placement (OSEP). He is a member of the PFT union, which has a CBA with SDP. In spring of 2022, when OSEP changed its student enrollment and placement procedures, it did not provide employees written instructions. On several occasions, Litman requested written instructions in order to accommodate his auditory processing disorder. He alleges that SDP refused his requests without explanation. He then asked for a transfer, which he did not receive,” Savage said.
“During his employment, Litman investigated and reported practices at SDP he considered corrupt, including patronage hiring, placement of students based on staff’s personal interests, staff members maintaining outside employment in conflict with their SDP duties, and replacing union employees with non-union employees. Litman contacted the Office of Inspector General to report misconduct by defendants Ericka Washington, Lizette Egea-Hinton, Justin Thomas and Deborah Moore. On Jan. 17, 2023, his counsel submitted a Right-to-Know request for documents relating to training, outside employment and reports of SDP employees accepting gifts or money from parents of children seeking placement.”
This action resulted in disciplinary proceedings being initiated against Litman, which he said were “defamatory and noncompliant with the procedures set forth in the Collective Bargaining Agreement between SDP and the Philadelphia Federation of Teachers.”
The hearings resulted in Litman’s suspension pending a formal termination, and Litman said that efforts he undertook to solicit assistance from the Equal Employment Opportunity Commission, Pennsylvania Human Relations Commission, Pennsylvania Attorney General’s Office, U.S. Department of Justice, and Pennsylvania Gov. Josh Shapiro resulted in those agencies either “declining jurisdiction or failing to reply” to his complaints.
After Litman filed his initial complaint in the Philadelphia County Court of Common Pleas, it was later removed to the U.S. District Court for the Eastern District of Pennsylvania, based on federal question jurisdiction.
The defendants also moved to dismiss the complaint, for failure to state claims upon which relief could be granted.
“The sole federal claim articulated in the amended complaint in Count II is for violation of the ADA for failure to accommodate Litman’s learning disabilities by providing him written instructions for new student placement procedures. In Count IV of the amended complaint, titled ‘denial of civil rights,’ Litman mixes ADA and breach of contract claims. He states defendants ‘breached’ the CBA and deprived him of his rights as a protected full-time employee under the CBA. This is redundant of his breach of contract claim, which is also based on the alleged breach of the CBA in Count VI. Count IV again claims defendants deprived him of his right to reasonable accommodations under the ADA. This is the same basis for the ADA claim in Count II. Litman cites no other statutory or constitutional basis for his ‘denial of civil rights’ claim. Therefore, we treat Count IV as duplicative of the ADA and breach of contract claims,” Savage said.
“In his introductory statement, Litman references a number of federal statutes and constitutional provisions. He purports to bring his action pursuant to Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, the Rehabilitation Act, 42 U.S.C. Section 12203 and the National Labor Relations Act (NLRA). He mentions Title VII, the Fourteenth Amendment and the Rehabilitation Act in one sentence. He does not allege any facts making out a cause of action under any of these provisions. The only federal cause of action he supports with facts is his ADA claim.”
Savage added that “Litman’s failure to exhaust is apparent on the face of his amended complaint.”
“His own allegations establish that the EEOC did not issue a right-to-sue letter. He specifically alleges that after he submitted a complaint to the EEOC, ‘no action was taken to [his] knowledge.’ Litman avers that the ‘various local, state and federal agencies,’ including the EEOC, either “declined jurisdiction or failed to reply” to his complaints. Therefore, because Litman’s failure to exhaust his administrative remedies is undisputed, we shall dismiss Count II [the ADA claim],” Savage said.
Savage found similar deficiencies in several of Litman’s other counts.
“Having dismissed Counts II, III, IV, V, VI, and VII against all defendants and Count I against the Hearing defendants and the PFT defendants, Litman’s remaining claim is for whistleblower retaliation against the SDP defendants, which arises under Pennsylvania law,” Savage stated.
“We have exercised supplemental jurisdiction over the state law claims for breach of contract, breach of the duty of fair representation, defamation, wrongful termination, and whistleblower retaliation against the Hearing defendants and PFT defendants in the interest of judicial economy and fairness to the parties. The disposition of the whistleblower retaliation claim against the SDP defendants requires an analysis that the state court is better suited to conduct. Because it requires application of Pennsylvania law, we decline to exercise supplemental jurisdiction over the whistleblower retaliation claim against the SDP defendants.”
Savage concluded by dismissing the majority of Litman’s claims and remanding the case to the Philadelphia County Court of Common Pleas.
“For the reasons stated, all claims against the PFT, Arlene Kempin, Dr. Karen Kolsky and Sheila Wallin will be dismissed. All claims, except for whistleblower retaliation against the SDP defendants, will be dismissed. We shall decline to exercise supplemental jurisdiction over the retaliation claim against the SDP defendants and remand this case to the state court,” Savage ordered.
The plaintiff is represented by Donald Saunders Litman of Marc E. Batt & Associates, in Philadelphia.
The defendants are represented by David William Brown of Levin Legal Group, in Huntingdon Valley.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00278
Philadelphia County Court of Common Pleas case 231102809
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com