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Conway v. Davey Tree Expert Co.

United States District Court, W.D. Pennsylvania

March 20, 2015

JOEL C. CONWAY, Plaintiff,
v.
DAVEY TREE EXPERT COMPANY Defendant.

MEMORANDUM OPINION

KIM R. GIBSON, District Judge.

I. Introduction

Plaintiff, Joel C. Conway ("Conway"), has filed this action against Defendant, The Davey Tree Expert Company ("Davey Tree"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., as well as under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951-963. Pending before the Court is Davey Tree's motion to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 8). Defendant asserts that the ADA claim (Count I) is time-barred and that Plaintiff failed to exhaust his administrative remedies with respect to the PHRA claim (Count II). (ECF No. 9 at 3).

Having considered the parties' submissions and the applicable law, the Court will grant Davey Tree's motion to dismiss. However, Conway will be granted leave to file an amended complaint.

II. Jurisdiction

The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 with regards to the ADA claim. This Court also has jurisdiction pursuant to 28 U.S.C § 1332 because the parties are in complete diversity and the amount in controversy exceeds $75, 000. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial portion of the events giving rise to the claims occurred in this judicial district.

III. Background

A. Procedural background

Conway initially filed the instant action in the Court of Common Pleas of Clearfield County, Pennsylvania. (ECF No. 1 at 1). The action was removed to this Court pursuant to 28 U.S.C. § 1441 on the basis that it arises, in part, under the laws of the United States, namely 29 U.S.C. § 12101 et seq. ( Id. at ¶ 4).

B. Factual background

Plaintiff, Joel C. Conway, began working for Defendant, the Davey Tree Expert Company, during or about the spring of 2012. (ECF No. 1-2, Compl. ¶ 4). Conway's right leg had been amputated as a result of a logging accident on or about January 18, 2000. ( Id. at ¶ 3).

During the early part of July, 2012, Conway was instructed by his foreman to have his crew spray an area with chemicals near Hannah Furnace Road, in Centre County, Pennsylvania, to kill weeds and brush on electrical transmission lines. ( Id. at ¶¶ 7-8). The order to spray the area with heavy chemicals was confirmed by Conway's immediate supervisor, Mr. Mike Shatz. ( Id. at ¶ 9). After the spraying had been completed, Conway was informed that the area was a Wildlife Protected Area, which neither Conway nor his crew had been aware of before. ( Id. at ¶¶ 10-11). Conway was subsequently fired from his job for having sprayed a Wildlife Protected Area. ( Id. at ¶ 13). The Complaint asserts that Conway's general supervisors had been aware that the area was a Wildlife Protected Area, and that they intentionally sent him to spray the area so that they could fire him. ( Id. at ¶¶ 12, 14). Conway believes that his supervisors used the spraying incident to cover up the real reason why they wished to terminate his employment, namely his right leg disability. ( Id. at ¶ 15).

Count I of the Complaint asks for lost wages, damages and counsel fees as a result of Davey Tree's violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ( Id. at 5).

Count II of the Complaint requests lost wages, damages, counsel fees, and costs as a result of Davey Tree's violation of the Pennsylvania ...


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