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Rocco v. Gordon Food Service

United States District Court, W.D. Pennsylvania

April 13, 2017

Herbert ROCCO, Plaintiff,
v.
GORDON FOOD SERVICE, Defendant.

          OPINION

          Joy Flowers Conti Chief United States District Judge.

         I. Introduction

         This lawsuit is the second time plaintiff Herbert Rocco (“Rocco”) has asserted claims of employment discrimination against his former employer Gordon Food Service (“GFS”). The first lawsuit, civil action number 11-585 (“Rocco I”), came to a close when the Court of Appeals for the Third Circuit affirmed this court's order granting summary judgment in favor of GFS. Presently pending before the court in this case, i.e., civil action number 16-1290 (“Rocco II”), are GFS' motion to dismiss the amended complaint (ECF No. 21) and Rocco's motion for leave to file a second amended complaint (ECF No. 31).

         On February 7, 2017, the court held a hearing with respect to GFS' motion to dismiss the amended complaint. The court granted the motion to dismiss with respect to the claims asserted under the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 701-796l, and the claims titled “regarded as and record of disability” asserted under the Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12112-12213, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. §§ 951-963. With respect to Rocco's claims for retaliation asserted under the ADA and the PHRA, the court explained that it was unclear whether Rocco set forth factual allegations sufficient to plausibly show that GFS' adverse employment action occurred after or contemporaneous with Rocco's protected activity, which is required to plead a prima facie case under either statute. The court permitted the parties to file supplemental briefing with respect to that issue. The court also permitted Rocco to file a motion for leave to file a second amended complaint with respect to those claims.

         As explained fully in this opinion, the motion for leave to file a second amended complaint will be granted because Rocco in the proposed second amended complaint set forth factual allegations sufficient to state plausible claims for retaliation under the ADA and PHRA. In light of permitting Rocco to file a second amended complaint, GFS' motion to dismiss will be denied as moot with respect to the claims for retaliation asserted under the ADA and the PHRA

         II. Background and Procedural History

         A. Rocco I

         On May 4, 2011, Rocco filed a complaint against GFS and Reed Group under the ADA and the PHRA “for denial of employment, failure to accommodate on the basis of actual, regarded as or record of disability, and violations of medical inquiry.” (Civ. Action No. 11-585, ECF No. 1 ¶ 1.) Rocco alleged, among other things, that:

Defendants discriminated against Mr. Rocco in failing to accommodate him and terminating him based upon his disabilities by failing to return him to work in his former occupation with or without accommodations including modified duty, reassignment to alternate positions or by refusing to provide a medical leave of absence.

(Id. ¶ 18.) On December 6, 2011, Rocco filed an amended complaint in Rocco I. The only change made by Rocco in the amended complaint was that he removed Reed Group as a defendant in that case. (Civ. Action No. 11-585, ECF Nos. 16 and 17.) On December 20, 2011, GFS filed an answer to the amended complaint. (Civ. Action No. 11-585, ECF No. 19.)

         On February 25, 2013-after conducting discovery-Rocco filed a second amended complaint in Rocco I and added claims for retaliation under the ADA, PHRA, and Rehabilitation Act. (Civ. Action No. 11-585, ECF No. 38.) GFS filed a motion to dismiss the second amended complaint arguing that the retaliation claims should be dismissed because Rocco did not exhaust his administrative remedies with respect to the new retaliation claims. GFS explained that Rocco's new retaliation claims were based upon events that occurred after the EEOC investigation upon which Rocco's other claims were based, and, therefore, the retaliation claims were not within the scope of that EEOC investigation. (Civ. Action No. 11-585, ECF No. 39.) The court agreed with GFS with respect to the retaliation claims under the ADA and the PHRA and dismissed those claims. The court denied the motion to dismiss with respect to the retaliation claims under the Rehabilitation Act. (Civ. Action No. 11-585, Minute Entry dated May 13, 2013.)

         On August 2, 2013, GFS filed a motion for summary judgment. (Civ. Action No. 11-585, ECF No. 45.) On February 10, 2014, the court granted GFS' motion explaining:

[T]he court concludes that no reasonable jury could find that plaintiff was disabled at the time of the adverse employment decision. Defendant is therefore entitled to summary judgment on the claims for termination and failure to accommodate under the ADA and PHRA. The Rehabilitation Act claims are dismissed with the consent of the plaintiff. All other claims have been dismissed, and this case will be closed.

(Civ. Action No. 11-585, ECF No. 58 at 10.) Rocco appealed to the Court of Appeals for the Third Circuit, among other orders, the court's order granting summary judgment to GFS. (Civ. Action No. 11-585, ECF No. 65.) On July 2, 2015, the court of appeals affirmed the district court's order granting summary judgment in favor of GFS. (Civ. Action No. 11-585, ECF No. 71-1.) The court of appeals explained:

Based on Rocco's allegations, as of January 2010 he did not have a physical or mental impairment that substantially limited one or more of his major life activities. Accordingly, Rocco did not demonstrate a necessary element of his prima facie case.

(Id at 5.)

         B. Rocco II

         On August 23, 2016, Rocco filed the complaint in this action. (ECF No. 1.) Rocco asserted the following claims against GFS: (1) retaliation under the ADA, Rehabilitation Act, and PHRA (count I); and (2) regarded as and record of disability under the ADA, Rehabilitation Act, and PHRA (count II). (ECF No. 1.) On November 18, 2016, Rocco filed an amended complaint asserting the following claims: (1) retaliation under the ADA and PHRA (count I); (2) regarded as and record of disability under the ADA and PHRA (count II); (3) retaliation under the Rehabilitation Act (count III); and (4) regarded as and record of disability under the Rehabilitation Act. (ECF No. 17.)

         On December 5, 2016, GFS filed a motion to dismiss and brief in support of the motion. (ECF Nos. 21, 22.) In its motion and brief in support, GFS argued:

- all claims in the amended complaint are barred by res judicata because the claims were asserted in Rocco I or could have been asserted in that case;
- the Rehabilitation Act claims failed as a matter of law because: (1) they were barred by issue preclusion, and (2) the Rehabilitation Act does not apply to federal procurement contractors; and
- all claims in the complaint failed as a matter of law because Rocco did not exhaust his administrative remedies, i.e., he did not timely file administrative charges with the appropriate agencies with respect to those claims.

(ECF No. 22.) On December 27, 2016, Rocco filed a response in opposition to the motion to dismiss the amended complaint. (ECF No. 25.) On January 18, 2017, GFS-with leave of court-filed a reply brief in support of its motion to dismiss. (ECF No. 28.)

         On February 7, 2017, the court held a hearing with respect to the motion to dismiss the amended complaint and the parties' filings related to that motion. At the hearing, counsel for Rocco withdrew the claims asserted under the Rehabilitation Act (counts III and IV).[1]

         With respect to the claims titled “regarded as and record of disability under the ADA and PHRA” (count II), the court explained that Rocco was barred by the doctrines of res judicata and claim preclusion from relying upon any factual allegations that were known or could have been known to Rocco in Rocco I. The court held that the regarded as and record of disability claims asserted under the ADA and PHRA would be dismissed on that basis.

         With respect to the retaliation claims asserted under the ADA and PHRA (count I), the court explained that-based upon its initial reading of the amended complaint-Rocco failed to plausibly show that GFS retaliated against him for partaking in protected activity. The court reasoned that a retaliatory act cannot predate the protected activity. Counsel for Rocco argued to the court that the retaliatory action in this case occurred on or around November 13, 2012, and March 27, 2013, [2] when Rocco applied-but was not hired-for various positions with GFS. Based upon the court's preliminary review of the allegations in the amended complaint, however, GFS' decision to not hire Rocco for the positions for which he applied on November 13, 2012, and March 27, 2013, was made on February 9, 2010, when GFS marked him ineligible for rehire. The court explained that if GFS' retaliatory act, i.e., marking Rocco ineligible for rehire on February 9, 2010, predated Rocco's protected activity, i.e., filing a charge of discrimination with the EEOC on May 27, 2010, filing the complaint in Rocco I on May 4, 2011, or litigating Rocco I, Rocco failed to set forth factual allegations sufficient to state a plausible claim of retaliation under any applicable statute.

         Counsel for Rocco argued in response to the court's preliminary assessment that the amended complaint contained factual allegations that called into question the date on which the decision to rehire Rocco was made and who made the decision. The court ...


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