United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANT'S MOTION TO
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
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
(ECF 8, First Amended Complaint, “FAC”).
21, 2017, Defendant moved to dismiss the FAC in its entirety;
namely, Counts III and IV for lack of subject matter
jurisdiction, 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”).
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.
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.)
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
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).
15, 2016 Plaintiff requested a six-month medical leave of
absence, pursuant to the FMLA, which was approved and became
effective immediately. (Id. ¶ 22).
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 ...