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Worthington v. Chester Downs and Marina, LLC

United States District Court, E.D. Pennsylvania

August 11, 2017



          BAYLSON, J.

         I. Introduction

         Plaintiff Donald Worthington (“Plaintiff”) brings this action against Defendant Chester Downs and Marina LLC, Owner and Licensee of Harrah's Philadelphia Casino and Racetrack (“Defendant”), alleging six claims:

1. (Count I) Disability Discrimination pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (“ADA”);
2. (Count II) Retaliation pursuant to the ADA;
3. (Count III) Disability Discrimination pursuant to the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq., (“PHRA”);
4. (Count IV) Retaliation pursuant to the PHRA;
5. (Count V) Retaliation & Interference pursuant to the Family Medical Leave Act, 29 U.S.C. § 2611, et seq., (“FMLA”); and
6. (Count VI) Wrongful Discharge pursuant to Pennsylvania common law

(ECF 8, First Amended Complaint, “FAC”).

         On June 21, 2017, Defendant moved to dismiss the FAC in its entirety; namely, Counts III and IV for lack of subject matter jurisdiction[1], pursuant to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1), and Counts I, II, V, and VI for failure to state a claim, pursuant to FRCP 12(b)(6). (ECF 10, Defendant's Motion to Dismiss, “Def.'s Mot.”). On July 5, 2017, Plaintiff filed his Opposition, (ECF 11, Plaintiff's Opposition to Defendant's Motion to Dismiss, “Pl.'s Opp'n”), to which Defendant filed a Reply that same day (ECF 12, “Def.'s Reply”).[2]

         For the reasons explained below, Defendant's motion will be GRANTED as to Counts I and III, without prejudice, and with leave to amend, and DENIED as to Counts II, IV, V, and VI.

         II. Factual Background

         Plaintiff was employed by Defendant as a “Dealer” from approximately April 28, 2011 to July 6, 2016, and maintained a satisfactory job performance throughout his employment. (FAC ¶ 12). Plaintiff alleges that after he reported another Dealer, Alan Glassman, to Defendant for a violation of their “Toke Committee bylaws, ” Glassman began harassing and verbally abusing him. (Id.). On June 12, 2016, approximately six months after the harassment began, Plaintiff reported to Carolyn Rinaldo, a manager, that Glassman signed Defendant's “early-out list” several minutes before he was permitted to do so. (Id. ¶ 15). In retaliation, Plaintiff alleges that “Glassman pushed [him], ” and that several employees, including Shanice Flournoy and Kristine Ferioli, witnessed the altercation. (Id.)

         As a result of the incident with Glassman, Plaintiff alleges that he experienced shoulder pain and numbness in his hand so, with the permission of Bill Totten, Plaintiff's Shift Manager, he visited the hospital emergency room. (Id. ¶ 16). Upon arrival, Plaintiff told the hospital that his injury was “work related” and the emergency room physician completed a Workers' Compensation Injury Report. (Id. ¶ 17). Plaintiff was then diagnosed with “Brachial Plexus Injury and Shoulder Strain, ” which, Plaintiff alleges, cause “limited range of motion, numbness in the arms, and hand, and diminished hand strength, ” and “substantially impair” Plaintiff's major life activities. (Id. ¶¶ 17-18). Plaintiff alleges that, upon discharge, he was “referred to a physical therapist and orthopedist for further evaluation.” (Id.).

         On June 14, 2016 Plaintiff completed an incident report with Tim Kreischer, a Labor Relations Manager, Hennarie Trivuiano, an Assistant Shift Manager, and Veronica Durham, a Risk Manager. (Id. ¶ 19). Plaintiff alleges he disclosed his diagnosis to those individuals, and that thereafter, Defendant perceived him as disabled. (Id.). Plaintiff also alleges that during this meeting, he expressed to Kriescher, Trivuiano, and Durham his intent to file a claim for workers' compensation benefits, but that Kriescher stated in response that Plaintiff's injury was not work related, such that he was ineligible for worker's compensation benefits. (Id. ¶ 20).

         On June 15, 2016 Plaintiff requested a six-month medical leave of absence, pursuant to the FMLA, which was approved and became effective immediately. (Id. ¶ 22).

         On July 6, 2016-three weeks after his FMLA leave commenced-Defendant terminated Plaintiff's employment, citing the June 12, 2016 incident with Glassman as the reason. (Id. ¶ 23). Plaintiff alleges, by contrast, that the reason for his termination was his “actual and/or perceived disabilities and/or record of impairment, ” in retaliation for his request for FMLA medical ...

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