Wilson v. Columbia Gas of Pa.

676 F.Supp.3d 424

Richard A. WILSON, Plaintiff, v. COLUMBIA GAS OF PENNSYLVANIA and Darryl Wargo, Defendants.

Civil Action No. 2:22-776

United States District Court, W.D. Pennsylvania

Signed June 7, 2023

Erica A. Shikunov, Seth Daniel Carson, Pro Hac Vice, Derek Smith Law Group, PLLC, Philadelphia, PA, Shanon J. Carson, Berger Montague PC, Philadelphia, PA, for Plaintiff.

Katherine E. Koop Irwin, Frost Brown Todd, LLC, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

PATRICIA L. DODGE, United States Magistrate Judge

Plaintiff Richard A. Wilson ("Wilson") brings this action under a variety of civil rights statutes, alleging that he was discriminated against based on his race, national origin and disability. Further, he alleges that he was subjected to retaliation for submitting complaints about discrimination, including being subjected to a hostile work environment, being forced to take a fitness for duty examination and then being placed on leave, culminating in the termination of his employment. Named as defendants are his former employer, Columbia Gas of Pennsylvania ("Columbia Gas") and former supervisor, Darryl Wargo ("Wargo").

Pending before the Court is Defendants' partial motion to dismiss. For the reasons that follow, their motion will be granted in part and denied in part.¹

I. Relevant Procedural History

Wilson commenced this action in May 2022 and later filed an Amended Complaint on October 21, 2022 (ECF No. 28). Federal question jurisdiction is based upon the federal civil rights claims asserted, 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a).

The Amended Complaint includes eight counts: racial and national origin disparate treatment, hostile work environment and retaliation in violation of 42 U.S.C. § 1981 (Count I);² racial and national origin disparate treatment and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII) (Count II); retaliation under Title VII (Count III); disability disparate treatment in violation of the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12117 (ADA) (Count IV); retaliation under the ADA (Count V): interference under the Family and Medical Leave Act, 29 U.S.C. §§ 2601-54 (FMLA)(Count VI); racial, national origin and disability disparate treatment and a hostile work environment against Columbia Gas in violation of the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA) (Count VII); retaliation under the PHRA (Count VIII); and aiding and abetting discrimination against Wargo under the PHRA, 43 P.S. § 955(e) (Count IX).

Pursuant to a stipulation filed on November 10, 2022 (ECF No. 33), Wilson's claims against Wargo are limited to a cause of action for hostile work environment in violation of Section 1981 (Count I) and aiding and abetting a hostile work environment in violation of the PHRA (Count IX). In addition, the parties stipulated that the adverse job actions being challenged in the Amended Complaint under either a theory of retaliation under Section 1981 (Count I), Title VII (Count III), the ADA (Count V) and the PHRA (Count VIII); or disparate treatment under Section 1981 (Count I), Title VII (Count II), the ADA (Count IV) and the PHRA (Count VII) are limited to Wilson "being placed on leave in or around February of 2021 and his discharge and/or constructive discharge in or around September of 2021, without prejudice to amend the complaint should discovery reveal Plaintiff suffered additional adverse job actions provided such claims are timely and added under the time frame required by a court-approved scheduling order." (Id.)

On November 11, 2022, Defendants filed a partial motion to dismiss (ECF No. 38),³ which has been fully briefed (ECF Nos. 39, 44).

II. Factual Background⁴

A. Wilson's Employment by and Issues with Columbia Gas

Wilson, who was born and raised in Jamaica, moved to Pennsylvania in 2002 and began working for Columbia Gas in 2008 as a Service Technician. Sometime around 2013, Wargo became his supervisor. Wargo was promoted to the position of manager in 2019. According to Wilson, he was the only African American and only Jamaican working for Columbia Gas. (Am. Compl. ¶¶ 5-7, 22, 25-29.)

According to Wilson, he maintained perfect attendance and skillfully performed his job during his employment. His annual performance reviews were always satisfactory and he earned annual incentives, bonuses and raises throughout his employment. He also volunteered his time to give back to the community and received various complimentary letters and phone calls from satisfied customers. (Id. ¶¶ 30-35.)

Beginning sometime around 2008, Wilson was singled out based on his race and national origin, was subjected to a hostile work environment and was treated differently than similarly situated Caucasian employees. These incidents became more frequent over the years. (Id. ¶¶ 36-38.) These incidents included the following:

• He was asked whether Jamaican people live in stick houses and was asked to take off his hat so a coworker could defecate in it. (Id. ¶¶ 42-43.)

• When he wore collared shirts, he was subjected to ridicule by coworkers telling him that he was "trying to look like a boss." (Id. ¶ 45.)

• He was sent to low-income, high crime neighborhoods, even at night, and was referred to "the black guy" throughout his employment. (Id. ¶¶ 47-52, 66-67.)

• When he made reasonable requests to be relieved from a shift as soon as possible after it ended, he was accused of refusing to work. Similarly situated white coworkers made these same requests and were not subjected to abusive and harassing comments in response. (Id. ¶¶ 110-14.)

• He was assigned "emergency jobs" at the very end of his shift, which were work assignments that Caucasian employees did not want to do. (Id. ¶¶ 115-20.)

• Wilson was not invited to a celebration held by Columbia Gas to award and recognize employees with perfect attendance even though he had perfect attendance throughout his career. (Id. ¶¶ 128-31; ECF No. 44 Ex. A at 17.)

• While Wilson was on a service call, a property owner subjected him to abusive, threatening, insulting conduct and comments and told him that if he returned to the property, the owner would have him "canned." While he reported this incident to several supervisors and they initially agreed that he should not be sent back to that address, Columbia Gas nonetheless sent him back to the address multiple times between 2014 and 2020, resulting in additional abuse and threats of violence which he reported. (Am. Compl. ¶¶ 139-55; ECF No. 44 Ex. A at 17-18.)

• The company van which he was assigned had issues with the door-locking mechanism which he reported. However, Columbia Gas refused to have the matter fixed. Similarly situated Caucasian employees who had problems with their work vehicles were not subjected to similar treatment. (Am. Compl. ¶¶ 157-59.)

• When he reported problems with his company computer and smart phone that he needed in order to perform his job, Columbia Gas refused to help or assist him in resolving them. (Id. ¶¶ 160-61.)

• Columbia Gas also refused to cover the cost of COVID testing that it required for employees who were out to return to work. (Id. ¶ 162.)

Wilson also alleges improper conduct by Wargo. Wargo suspended him for five days without pay based on a false charge that he refused to respond to an emergency call. Wilson reported Wargo's unfair treatment and Columbia Gas returned four of the days for which he had been suspended. However, he still lost one day of pay and no action was taken to deal with Wargo's false charge. (Id. ¶¶ 104-07.)

In addition, Wargo "constantly subjected [him] to abusive and condescending words and actions by sneering at [him] and refusing to even acknowledge [Wilson] when [he] spoke." (Id. ¶¶ 98-99, 133-35.) In August 2012, Wargo intentionally canceled Wilson's company credit card so that he could not make purchases related to his employment. Several years later, Wargo disconnected Wilson's company ID badge and refused to address the problem when Wilson reported it to other supervisors, who also refused to address it. (Id. ¶¶ 136-37; ECF No. 44 Ex. A at 17.)

Beginning in 2012 and continuing thereafter, Wilson reported the discrimination and harassment in the workplace multiple times to Wargo and a number of others, including the head of Human Resources. (Id. ¶¶ 54-61.) He was called "stupid" when he reported the harassment he faced and no one took any action to investigate or correct the abusive and discriminatory work environment he reported. Rather, the incidents got worse. (Id. ¶¶ 48-49, 62-65, 69-71.)

B. Alleged Medical Issues

In January 2021, Wilson reported to his supervisor, Randy Pappa, that he was concerned that his company phone was not working and that he thought that he was being followed by someone at the direction of Columbia Gas. Several hours later, Wilson was asked to join a telephone conference with various Columbia Gas and union personnel. The head of Human Resources stated that Wilson was "schizophrenic" and was being sent home for two weeks to get a medical exam. (ECF No. 44 Ex. A at 24-25.)⁵ See also Am. Compl. ¶¶ 183-84 (alleging that it was Pappa who first suggested the idea of the medical exam). Wilson objected to the need for a medical evaluation. (Am. Compl. ¶ 175.)

Wilson was contacted on February 3, 2021 by the Medical Consultant Network and was advised that he would have to undergo a medical evaluation before he could return to work. (Id. ¶ 181.) Wilson attended an evaluation by Dr. Robert Wettstein on February 11, 2021. He alleges that Dr. Wettstein was selected by Columbia Gas in order to prepare an evaluation that resulted in him being subjected to further discrimination. (Id. ¶¶ 185-87; ECF No. 44 Ex. A at 25.) Dr. Wettstein concluded that he was not "fit for duty" even though no contact was made with his primary care physician nor were his medical...