HARRISBURG - A Pennsylvania Department of Transportation worker fired over a Facebook post complaining about his manager has lost his discrimination lawsuit.
Gary Gillow said his termination as a transportation equipment operator was actually because of the partial amputation of his right leg. Judge Karoline Mehalchick on Feb. 11 ruled against him, finding PennDOT still is entitled to sovereign immunity in Gillow's claim under the Americans with Disabilities Act.
In addition to problems with his claim, Gillow's lawyer Harry Coleman shows an inability to comply with court rules, Mehalchick wrote. His response to PennDOT's motion for judgment violated rules for the structure and length of briefs, she said.
He also in June filed a reply to a motion for partial dismissal that simply says, "Admitted. AI (sic) remaining claims of Plaintiff will proceed."
"Further, despite instruction to do so during the Nov. 6 conference call, Gillow has yet to provide the Court with a coherent explanation as to how Document 44 was filed in error and why Gillow appears to have admitted his claims are bared for the reasons set forth in PennDOT's brief in support of his motion for judgment on the pleadings," Mehalchick wrote.
"(T)his Court warns counsel that future noncompliance with the Local Rules and Court directives may result in filings being stricken and arguments being disregarded."
Gillow was fired on June 15, 2022, with PennDOT blaming a Facebook post.
"Manager is holding the drug test results," the post says. "I took it last Thursday and it only takes 3 days to come back not counting weekends. He's done this before. Real scumbag."
Gillow sued PennDOT after notifying the Equal Employment Opportunity Commission, seeking injunctive relief and monetary damages.
Actual evidence was a problem once the case progressed to PennDOT requesting judgment. Gillow had to argue Eleventh Amendment immunity didn't apply to PennDOT's actions.
Instead, his lawyer wrote was the case forces the court to look at Eleventh Amendment immunity - "It is critical for all to respect the rights of a private party like amputee Gary Gillow and private parties' claims of injury."
PennDOT called the argument that followed a "somewhat nonsensical treatise about the standard for an ADA claim."
Higher courts, Judge Mehalchick wrote, have found the Eleventh Amendment bars private suits seeking money damages for state violations of Title I of the ADA.