WILKES-BARRE - The Pennsylvania Department of Transportation can't escape a lawsuit filed by a bisexual former employee who claimed harassment like co-workers placing a tampon on his chair.
Federal judge Joseph Saporito on March 28 did toss some claims against PennDOT but allowed others to move toward trial. Plaintiff Paul Haines will have the chance to prove hostile work environment and discrimination allegations.
Haines claimed he was forced to quit and makes a claim for constructive discharge.
"Here, although some of the harassment appears to have been co-workers on the same crew as Haines, it was (Ronald) Gorko, Haines' immediate supervisor and the foreman of that crew, who was the primary harasser," Saporito wrote.
"Neither party has expressly addressed the issue of whether Gorko's alleged harassment of Haines culminated in a tangible employment action, but the plaintiff has argued in his hostile work environment claim that the pattern of harassment ultimately culminated in his construct discharge..."
Haines filed suit in 2021 in Wilkes-Barre federal court after three years with PennDOT. His complaint says someone wrote "Ride me hard" in dirt on his truck in 2018 and received a voice mail from Gorko that called him a "pee pee toucher."
In February 2019, someone placed a tampon on his chair, the complaint says. Gorko then found fault with Haines' work performance and allegedly watched his house to determine whether Haines had a second job.
The suit also says a co-worker made a false report to police that Haines was headed home to beat his family and then "take on the cops."
In September 2020, Haines took Family Medical Leave Act time for mental issues but never went back to work.
"(A) reasonable jury could conclude that Haines suffered intentional harassment due to his sexual orientation, the harassment was severe or pervasive, the harassment detrimentally affected Haines, and the harassment would have detrimentally affected a reasonable person in similar circumstances," Saporito wrote.
Saporito tossed retaliation claims and all discrimination claims arising out of discrete acts except for the call to police and constructive discharge.
Claims over "Ride me hard" being written on his truck, the tampon on his chair and the "pee pee toucher" voicemail missed the statute of limitations, Saporito wrote, because he failed to exhaust administrative remedies like a complaint with the Equal Employment Opportunity Commission in time.
His EEOC charge of discrimination came Nov. 3, 2020, more than 300 days after those alleged instances. Saporito rejected the idea Haines could still make those claims under the continuing violations doctrine, saying it is not applicable to civil rights claims based on discrete acts.
Haines is represented by Scott Diamond of The Derek Smith Law Group PLLC in Philadelphia.