Pennsylvania Employee Laid Off After 33 Years of Service Has Race Discrimination Claim

When an employer has a reduction in force (i.e. layoff), an employee may have an employment discrimination claim if the employee is able to establish the reason that the employee was chosen for a layoff and other similarly situated employees were not laid off is due to a protected criteria such as the employee’s age, race, sex, religion, national origin or a disability. In Johnson v. Verizon Services Corporation, E. D. Pa. no. 16-1023 (DuBois, J,) (April 18, 2017), the court denied the employer’s motion for summary judgment and held that an employee, the only African-American employee in his department, who was terminated during a reduction-in-force after a 33 year career at Verizon had sufficient evidence of race discrimination to proceed to a jury trial.

In Johnson, the employee worked on a code review team, responsible for identifying errors and vulnerabilities in computer applications and recoding. The employee had the highest job title ranking available in the IT Department; had received above satisfactory performance ratings, including many positive comments concerning his work performance. Of the 6 employees on the code review team, the Plaintiff, the only African-American was terminated, as part of a reduction-in-force (“RIF”) and the other 5 employees who were retained all had less work experience.

In defending the race discrimination claim, the employer contended that it terminated the Plaintiff during the RIF because he was the least valuable member of the coding team and had performance issues. According to the selecting manager, there was no specific standard used to determine who would be selected for the RIF because the manager “owned the department” so he knew what was required and he “put together a table of pros and cons” on all of the employees. However, the manager testified that he destroyed the list approximately 6 months after the termination and there were no records of any kind available regarding the manager’s selection determination.

Race discrimination cases are analyzed under the McDonnell Douglas burden shifting test. In order to established a prima facie case of race discrimination where there is a reduction in force, an employee must show that (1) the employee belongs to a protected class, (2) the employee was qualified for the position, (3) the employee was terminated, and (4) other employees outside of the protected class were retained. An employee’s qualifications for purposes of proving a prima facie case are determined by an objective standard. Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Then an employee must show that the employer’s articulated reason was a pretext for intentional discrimination by pointing to some evidence from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s decision to terminate employment.

In Johnson, there was no dispute that the Plaintiff was the only African-American in his group and the only employee who was terminated. Thus, the only element of the prima facie case at issue was whether he was qualified for his job. The court found that by having 33 years of employment experience at Verizon, 3 years on the coding team and only positive performance written performance appraisals, the Plaintiff was qualified for the job from which he was terminated. The employer’s proffered reason for termination was that the Plaintiff was ranked lowest in the coding group with respect to the coding skills necessary for the code review job and other employees possessed primary expertise, which the court held could be a legitimate, nondiscriminatory reason for his firing. Then the court analyzed the evidence of pretext and held that positive performance reviews, lack of a disciplinary record, a long work history with Verizon, a ranking of being the most proficient member of the team with commendations for a wealth of knowledge and experiences and no written evidence of negative performance issues created a genuine dispute of material fact regarding the proffered reason for termination. The court noted that its findings were particularly influenced by the fact that the only evidence of deficient work performance presented by the employer was “subjective evaluations” which are more susceptible of abuse and more likely to mask pretext. Thus, the court denied the employer’s motion for summary judgment permitting the case to proceed to a jury trial.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of race discrimination and all other forms of employment discrimination. For more information on Pennsylvania employment law see our website at

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Pennsylvania School District Employee Forced to Resign has Age & Disability Discrimination Claims

When an employee “voluntary resigns”, an employee may still prevail in an employment discrimination claim based on age, disability, or other protected criteria. Some employers who have already made a decision to terminate an employee use a tactic where the employer calls an employee to a meeting and the employer states that we are going to terminate if you do not immediately resign. In such instances, when the underlying reason for the termination is protected by the law, courts can find that the “voluntary resignation” is a constructive discharge, which is in effect the same as the termination of employment. In Sorlini v. Wissahickon School District (E., D. Pa. no. 16-1837) (April 5, 2017) (Tucker, C. J.), the court denied the employer’s Motion to Dismiss, found that there was evidence to support a constructive discharge of employment and held that the employee could proceed with his age and disability discrimination claims.

In Sorlini, the employee was a 58-year-old building supervisor for a school district who suffered from heart and knee problems that affected his ability to walk or stand without pain for extended periods of time, which culminated in a heart attack and two knee surgeries. The employee took a significant amount of time off from work. The employee was terminated within 2-3 months after another employee informed him that she overheard the school principal, and a supervisor, discussing the need to terminate his employment due to his illness and numerous sick leaves. The principal met with the employee and expressed concern that he had allowed another employee’s boyfriend on school premises without authorization; the employee denied that he had any knowledge of the boyfriend being present. Prior to the principal’s meeting, the employee had never had his work performance questioned and he had no disciplinary history. The day after the principal’s meeting, the employee was called to a meeting with the employer’s human resources director, chief financial officer, and his supervisor and informed that if he did not resign immediately, he would be terminated for allowing the co-worker’s boyfriend on school premises and that he would not be eligible for disability pension benefits if he was terminated. The employee then signed a resignation letter during the meeting under the threat of immediate termination. The employee was replaced by an employee who was less than 40 years of age. The employee also alleged that there was a liberal practice of allowing individuals who were not school employees on school premises and two custodians, a secretary, and a teacher allowed individuals who were not school employees on the school premises, yet they were not disciplined.

In Sorlini, the employee filed a lawsuit against the school district alleging age discrimination in violation of the Age Discrimination in Employment (ADEA), disability discrimination in violate of the Americans with Disabilities Act (ADA) and violations of the Pennsylvania Human Relations Act (PHRA). The employee, alleged that the employer constructively discharged him because of his age and disabilities, and subsequently replaced him with a younger employee.

An employer’s Motion to Dismiss will be denied if the employee alleges a prima facie case of discrimination. To establish a prima facie case of age discrimination an employee must show: (1) the employee is older than 40; (2) the employee was qualified for the position; (3) the employee suffered an adverse employment action; and (4) the employee was replaced by a sufficiently younger person or some other evidence to support the inference of age discrimination.

In Sorlini, the employee was 58 years old, he was qualified for the job he performed for 7 years and he was subsequently replaced by a substantially younger person. Thus, the question centered around whether he suffered an adverse employment action despite the fact that he voluntarily resigned. When an employee voluntarily resigns, an adverse employment action exists if the employee was constructively discharged. A constructive discharge is established when a reasonable person in the employee’s position would have had no choice but to resign. When considering whether an employee was constructively discharged, courts look for indicia of coercion, such as threats of termination, suggestions to resign or retire, demotions or reductions in pay or benefits, alterations in job responsibilities, unfavorable performance evaluations, and false accusations of stealing or misconduct.

In Sorlini, the court found that the employee was constructively discharged because he alleged that he was subject to false accusations of misconduct and threats of discharge, he was falsely accused of letting unauthorized personnel on school premises and then told that he would be terminated for his misconduct if he did not resign. The court found that given the time constraint, the employee did not have the opportunity for due deliberation before making the decision to sign a resignation letter, thus, there was evidence that would raise a reasonable expectation of constructive discharge and the court found that the employee had sufficiently raised a claim of age discrimination to survive the motion to dismiss.

The ADA prohibits employers from discriminating against an individual with a disability in regard to termination or the terms, conditions, and privileges of employment. To establish a prima facie case under the ADA, an employee must show that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations and the employ suffered an otherwise adverse employment decision as a result of discrimination based on a disability. An employee may be qualified to perform the essential functions of a job based on job experience. A discriminatory adverse employment decision due to a disability may be established by a constructive discharge.

In Sorlini, the court found that the employee qualified for protection under the ADA as he alleged several musculoskeletal and cardiovascular physical impairments that limit major life activities, including heart and knee problems that affected his prolonged ability to walk or stand without pain. The court also held that the employee was qualified for the position of bundling supervisor in that he had performed the job for 7 years. Further, as with the age discrimination claim, the court found that there was evidence that could support a constructive discharge of employment which raises the reasonable expectation that Plaintiff suffered a discriminatory adverse employment action due to his disability

Andrew Abramson is a Pennsylvania employment discrimination attorney who represents employees who have been discriminated against based on their age, a disability and other legally protected criteria. For more information on age discrimination see; for more information on disability discrimination see our website at

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Pennsylvania Employee Denied Request to Work From Home Has ADA Disability Discrimination, Reasonable Accommodation & Retaliation Claims

Employers are required to provide reasonable accommodations to employees who are unable to perform certain work duties. Determining what constitutes a reasonable accommodation is highly fact intensive and requires consideration of a job’s essential requirements. In Slayton v. Sneaker Villa, Inc., E. D. Pa. no. 15-0074 (Goldberg, J.) (March 20, 2017), an employee filed an action under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA), alleging that her employer unlawfully terminated her employment by discriminating based on her disability, failing to provide a reasonable accommodation, and retaliation against the employee for requesting a reasonable accommodation. The court denied the employer’s motion for summary judgment and held that the Plaintiff could proceed to a jury trial.

In Slayton, the employee was hired as a Corporate Recruiter; 80 days into her employment, the employee was seriously injured in an accident and hospitalized for 5 days, suffering fractures of multiple vertebrae in her neck and back, and a head injury. The employee was out of work for approximately 2 months and then requested the reasonable accommodation of working full-time from home for 4 weeks or until her physical therapy was complete and she was released back to full-time status without restrictions. The employee’s restrictions included no driving, lifting anything heavier than five pounds, no bending or walking, and no sitting or standing for long periods of time. The employer responded to the reasonable accommodation request by asserting that the restrictions prohibited the employee from meeting the job’s requirements and that the employer could not hold her job any longer. The employee then presented another request, to work part-time in the office 10-15 hours per week and the other 25-30 hours from home, noting that she could perform all of the essential functions of the duties with the exception of the job fairs. A dispute then arose as to whether the employee was told that she was terminated (as the employee contested), or if the employer never stated that the employee was terminated and instead was requested to provide a doctor’s note outlining her restrictions. Ultimately, the employer terminated the employee claiming that the employee needed to be in the office full-time, as the job required face-to-face interviews, traveling, attendance at job fairs and other responsibilities that the employee could not perform the job given her physical condition.

An employee may prove disability discrimination by indirect evidence through the McDonnell Douglas burden-shifting framework. First, the employee must establish a prima facie case by showing that the employee is disabled within the meaning of the ADA; the employee is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and the employee suffered an adverse employment decision as a result of discrimination. Thereafter, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment decision. Then the employee must show that the employer’s reason is pretextual by pointing to evidence from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Slayton, the employer argued that the employee could not meet the essential functions of the job which it alleged required physical presence in the office and the ability to travel. Whether a particular function is essential, is a factual determination that is made on a case by case basis. In assessing whether a given job function is essential, courts look at the employer’s judgment as to which functions are essential; job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the employee to perform the function; and the work experience of past and current employees who perform the same or similar jobs. An employer may be required to restructure a job by reallocating or redistributing nonessential, marginal job functions; however, the employer is not required to reallocate essential functions.

In Slayton, the court found that there was a genuine dispute of material fact as to whether physical presence in the office was an essential job function, in part based on the employee’s testimony that despite her requests to do so, she never actually traveled to any job fairs during her employment. The employee’s pretext evidence consisted of the employee contending that she was fired before the employer ever requesting a doctor’s note and someone else being offered the job before the employee was asked for a doctor note. The court held that a jury could find that the employer’s claim that the reason for termination, the inability to travel and/or be physically present in the office, was unworthy of credence because it had already decided to terminate the employee before meaningfully assessing her inability to perform those functions.

The ADA requires an employer to make reasonable accommodations to the known physical or mental limitations of an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. To establish that an employer breached its duty to provide a reasonable accommodation, an employee must demonstrate: (1) that the employee was disabled and the employer knew it; (2) the employee requested an accommodation or assistance; (3) the employer did not make a good faith effort to assist; and (4) the employee could have been reasonably accommodated. Once an accommodation is requested, the employer is required to engage in the interactive process during which the employer and employee identify the precise limitations resulting from the disability and the potential reasonable accommodations. Employers may meet their obligation in a number of ways, such as meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, and offering and discuss available alternatives when a request is too burdensome. A failure to communicate, either by way of initiation or response, may be bad faith.

The term reasonable accommodation is expressly defined to include part-time or modified work schedules. In Slayton, the court held that the fact that the employee modified her request for a temporary accommodation to include working part-time in the office once she was denied the initial request to work from home, created a factual dispute as to whether the employer engaged in good faith as an employer cannot merely dismiss such a request out of hand and a factual question existed as to whether the requested accommodations were facially reasonable, particularly given the temporary nature of the accommodation request.

Andrew Abramson is a Pennsylvania employment law attorney who represents employees who have been discriminated against based on a disability and denied requests for reasonable accommodations. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act and he Pennsylvania Human Relations Act see our website at

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Pennsylvania Employees Can Prove FMLA Retaliation Claims When Leave is a Negative Factor in Terminating Employment

When a Pennsylvania employee is terminated shortly after commencing leave under the Family and Medical Leave Act (FMLA), an obvious question arises as to whether the employee’s use of FMLA protected leave was the reason, or a factor in the decision to terminate employment. In evaluating FMLA claims the nature of the evidence and degree of proof required is critical. Employers have argued that an employee must prove that the employer’s proffered reason for termination was false or the use of FMLA leave was the sole reason for termination. In Egan v. Delaware River Port Authority (3rd Cir. no. 16-1471) (March 21, 2017), the Third Circuit Court of Appeals considered the question of what level of evidence is required to prove a violation of the FMLA; and concluded that an employee is not required to show direct evidence of discrimination to prove that FMLA leave was a negative factor in the termination, finding that it is sufficient to only offer indirect evidence of discrimination to obtain such an instruction.

In Egan, the employee filed a lawsuit against his former employer asserting several violations of federal employment law, including the FMLA. The employee, who was originally hired to manage fleet assets, had a history of migraine headaches; the frequency of his migraines increased almost instantaneously with his transfer to the Engineering Department. The employee applied for and was granted intermittent FMLA leave. Three months after the FMLA was granted an issue arose as the employee was only reporting the approximate number of hours he had worked, rather than the actual number of hours he had worked and took FMLA leave. While the employee was on FMLA leave, he was advised that all economic development functions were being eliminated, his temporary reassignment to the Engineering Department was deemed completed and his employment was terminated.

The case proceeded to a jury trial and the jury found that the employer did not retaliate against the employee for exercising his right to take FMLA leave. The employee filed an appeal arguing that the trial court erred in the jury instructions by not providing the jury with a mixed-motive jury instruction concerning the FMLA claim. A mixed motive instruction advises the jury that the employee can prevail by proving that the termination was based on both legitimate and illegitimate reasons. Instead, the trial court’s instructions required a much higher level of proof requiring the employee to prove that the stated reason for terminating employment was pretext (i.e. false). The Third Circuit found that the District Court erred in requiring the employee to provide direct evidence of retaliation to obtain a mixed motive instruction.

In Egan, the Third Circuit held that to allow an employer to take an adverse employment action against an employee who takes FMLA leave undoubtedly runs contrary to Congress’s purpose in passing the FMLA, and prohibiting retaliation for exercising FMLA rights is illegal because it is consistent with Congress’s goal of enabling workers to address serious health issues without repercussion. Therefore, the court held that employers are barred from considering an employee’s FMLA leave as a negative factor in employment decisions and an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted. Thus, the court held that an employee who claims retaliation may seek to proceed under a mixed-motive approach and show that his or her use of FMLA leave was a negative factor in the employer’s adverse employment action.

In Egan, the Third Circuit also held that the trial court erred in denying a request for a mixed-motive instruction, explaining that it is not necessary to offer direct evidence to obtain a mixed-motive instruction. Thus, the Third Circuit vacated the FMLA judgment and remanded the case for a new trial, so that it could be determined whether there was evidence from which a reasonable jury could conclude that the employer had legitimate and illegitimate reasons for its employment decision and that the employee’s use of FMLA leave was a negative factor in the decision to terminate employment.

Andrew Abramson represents Pennsylvania employees whose FMLA rights are violated. For more information on the FMLA and Abramson Employment Law see

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Preliminary Injunction to Enforce Non-Solicitation Agreement Against Pennsylvania Employee Denied

Today, rather than directly hire employees, many Pennsylvania companies and some government entities enter into contracts with staffing companies that supply their employees to perform work for these companies. Even more complicated are situations where one staffing company hires another company to provide employees. These arrangements are often found in the information technology industry. While such arrangements serve to reduce the number of employees who work for the contracting entities and limit exposure for certain potential liabilities that may arise from the employer-employee relationship, these relationships may provide unexpected barriers to the enforcement of restrictive covenants such as non-solicitation agreements.

There are several types of restrictive covenants that Pennsylvania employers seek from employees. A non-compete agreement generally requires that an employee agree not to work in the same industry after leaving employment for a period of time after the employment relationship ends. Another form of a restrictive covenant is a non-solicitation agreement that generally prohibits an employee from seeking business from customers of an employer for a period after the employment relationship ends. In Computer Aid v. Ferree (Pa. Super. Ct. no. 525 MDA 2016) (February 21, 2017) (non-precedential), the court considered the enforcement of a “non-solicitation” agreement required by a staffing company. In addition, the Superior Court of Pennsylvania’s decision addressed another barrier that may arise when an employer seeks to enforce a restrictive covenant, the requirement that an employer must demonstrate that it cannot be made whole by money damages.

Computer Aid, the original managing staffing company for PennDot (the Pennsylvania Department of Transportation), had arranged for the hiring of individuals submitted by numerous vendors that supplied employees to fill PennDot’s needs. Computer Aid lost the contract to be the managing staffing provider but it remained a vendor that provided employees to work for PennDot. After it lost the managing staffing provider position, an individual (hereinafter, the employee), who was originally placed through Computer Aid to work at PennDot who had signed a non-solicitation clause, began working at PennDot again as an employee placed through another staffing company. Computer Aid filed an emergency motion for a preliminary injunction, alleging that the employee violated a non-solicitation agreement by effectively taking Computer Aid’s customer, PennDot. Computer Aid sought an injunction to prevent the employee from further interactions and business with PennDot based upon language in the non-solicitation agreement that prohibited the employee from taking its customers.

In Pennsylvania, a trial court has broad discretion to grant or deny a preliminary injunction against an employee. In order to obtain a preliminary injunction against a Pennsylvania employee, an employer must establish that (1) injunctive relief is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by money damages; (2) greater injury will occur to the employer from refusing to grant the injunction rather than from granting it; (3) the injunction will restore the parties to their status quo as it existed before the alleged wrongful conduct; (4) the employer is likely to prevail on the merits; (5) the injunction is reasonably suited to abate the offending activity; and (6) the public interest will not be harmed if the injunction is granted.

In order for an employee to be granted a preliminary injunction it must be able to establish that money damages will not make it whole. Computer Aid argued that the trial court erroneously concluded that it could be made whole by money damages by failing to recognize a loss of goodwill, the loss of a customer, and the loss of income when the employee took a position at PennDot through another staffing company. In affirming the trial court, the Superior Court of Pennsylvania noted that a loss of income is in fact a loss of money that can be remedied by monetary damages. While Computer Aid also claimed that the employee created a loss of a customer, the court found that this argument was not convincing as it remained a PennDot vendor and continued to place employees. Lastly, while loss of business goodwill is a non-monetary consideration, the court found that there was no evidence that Computer Aid lost any business goodwill since it continued to be a PennDot vendor providing employees and there was no evidence presented to show that PennDot was in any way dissatisfied with its work. Thus, the court found that Computer Aid failed to establish that it lost a customer but rather just lost one “slot” at PennDot after it had already lost its position as prime contractor and while there may or may not have been a violation of the restrictive covenant, the employee’s actions associating himself with a new vendor did not cause irreparable harm as damages could be calculated based on the amount of money Computer Aid would have received absent the alleged violation. Consequently, the Superior Court found that there were reasonable grounds for the denial of the preliminary injunction and there was no abuse of discretion or misapplication of law.

Andrew Abramson regularly consults with Pennsylvania employees who have issues surrounding non-compete agreements, non-solicitation agreements and restrictive covenants, and when the needs arise Abramson Employment Law represents employees in federal and state courts in Philadelphia, Montgomery County, Pennsylvania and surrounding areas. For more information see

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Extreme Sexual Harassment of Philadelphia Police Detective Proceeds to Trial

Sexual harassment at the workplace in Pennsylvania takes many forms and in some circumstances the conduct at issue can be shocking. When an employee reports sexual harassment, the employer fails to take conduct a proper investigation and fails to take remedial action to stop egregious sexual harassment, employees may be able to recover substantial damages for emotional distress. In Vandergrift v. City of Philadelphia E. D. Pa. no. 16-cv-2999 (January 11, 2017), the employee, a female Philadelphia police detective, filed a lawsuit for gender discrimination, a sexually hostile work environment, and retaliation under Pennsylvania, federal and Philadelphia law.

To establish a sexually hostile work environment in Pennsylvania an employee must show: (1) she suffered intentional discrimination because of her sex; (2) the employee suffered severe or pervasive discrimination; (3) the discrimination detrimentally affected her; (4) the discrimination would detrimentally affect a reasonable employee in similar circumstances; and (5) the existence of respondent superior liability (employer liability). To determine whether an environment is severe or pervasive, courts consider the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.  Pervasive use of derogatory and insulting terms relating to women serve as evidence of a hostile environment. If supervisors create the hostile environment, an employer is strictly liable unless there is no tangible employment action taken against the employee and the employer exercised reasonable care to prevent and correct any sexually harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities.

In Vandergrift, the court’s opinion outlines graphic sexual misconduct and harassment at the workplace. The employee, a career Philadelphia police officer, became a detective after 7 years of service. She worked in an environment allegedly riddled with sexual harassment that included not only sex-based comments but also alleged sexual assault by a Chief Inspector. After complaining about the harassment, she was transferred to another squad and thereafter she was charged with misconduct.

The female detective testified that in 2007, the Chief Inspector called her on the phone on at least three occasions and made sexual comments including he would love to bend her over and his most favorite part of a woman’s body and the part of the body which turned him on most was the part between her hips to her thighs. There was evidence of egregious physical misconduct as the Chief Inspector called the detective into his office and said, he wanted to know how wet she was, unzipped her pants, stuck his hand down her pants and underwear, and inserted his finger into her and then engaged in other remarks. Other evidence included the employee’s testimony that not a week went by without demeaning, inappropriate, barbaric sex-based comments and gawking stares on a constant basis. When the employee complained about how the stares made her uncomfortable, she was advised she should take the stares as a compliment. Rumors were also spread around the workplace that she engaged in sexual relationships with coworkers; she was subject to constant comments about how good she looked, and she was exposed to numerous comments about officers’ penises.  In addition, a second female officer alleged that in one incident the same Chief Inspector started kissing her hard, touched her breasts, and put his hands on the outside of her pants toward her genitals and digitally penetrated her. An internal complaint was filed about that incident, the City impounded the Chief Inspector’s city-issued vehicle, conducted a forensic examination, and found seminal stains but the investigation resulted in a finding of “not sustained” and the Chief Inspector never received any discipline. After making a formal complaint the Plaintiff employee was charged with misconduct for sending a Facebook message to four male colleagues in her squad which included a picture of a baby whose facial expression reminded her of another Detective and included quotes with inappropriate language.

The Plaintiff offered expert testimony that the City’s sexual harassment complaint procedures and investigative practices failed to satisfy a number of workplace investigation standards by improperly applying a criminal law standard to some of the complaints; failing to investigate all the allegations and numerous other deficiencies.

In Vandergrift, the court addressed an issue that frequently arises in sexual harassment cases, the admissibility of incidents that go far back in time, given the time filing restrictions under applicable law (Pennsylvania law: employee must file a discrimination complaint within 180 days of the alleged act of discrimination; federal law: 300 days (EEOC Charge), two years (§1983 claim). In seeking to dismiss the employee’s claims, the City of Philadelphia argued that many of the facts forming the basis of the sexually hostile work environment claims occurred years prior to the charge and should be excluded because they were isolated or sporadic and not sufficiently linked to constitute one unlawful employment practice.

The continuing violations doctrine is an exception that extends the admissible incidents beyond the time filing requirements and provides that a sexually hostile work environment claim may be composed of a series of separate acts that collectively constitute one unlawful employment practice so long as (1) all acts which constitute the claim are part of the same unlawful employment practice; and (2) at least one act falls within the applicable limitations period. In Vandergrift, the Court concluded that the employee would be able to admit evidence that went back many years as there was sufficient evidence of a persistent, ongoing pattern of harassment which included the 2007 sexual assault and evidence that not a week went by without demeaning, inappropriate, barbaric sex-based comments, and gawking stares on a constant basis. The court also found a genuine dispute of material fact as to whether the City properly responded to the harassment allegations and whether it exercised reasonable care to correct the alleged harassment.

Retaliation claims concern conduct to which an employee is subjected after reporting sexual harassment. To state a prima facie case of retaliation an employee must establish: (1) she engaged in protected activity; (2) the employer engaged in conduct constituting an adverse action either contemporaneous with or after the protected activity; and (3) a causal connection between the protected activity and the adverse action. Then the burden of production of evidence shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse action. Thereafter, the employee must prove that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

In Vandergrift, the employee referenced four possible materially adverse actions: 1) supervisors labeled her as untrustworthy by telling her coworkers she filed an EEO complaint; 2) male colleagues spread rumors about her having a sexual relationship with a lieutenant; 3) the City reassigned her to another division where work is extremely hectic and busy; and 4) the City charged her with misconduct following the investigation. The court found that each of these could be adverse actions.

A third cause of action at issue in Vandergrift was a §1983 claim. A municipality is liable under §1983 when an alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom. The court found that the evidence established that there was sufficient evidence that the City of Philadelphia had a well-settled custom of sexual harassment within the Philadelphia Police Department as the employee’s coworkers and supervisors directed sex-based conduct toward her and other female employees throughout her employment and sexual allegations against high level managers were “swept under the rug” which equated to an unconstitutional custom of treating female employees in the Police Department less favorably than male employees. Thus, the court denied the Motion for Summary Judgment permitting all of the employee’s claims to proceed to a jury trial.

Andrew Abramson is an experienced Pennsylvania employment law attorney who represents employees who are the victims of sexual harassment and sexually hostile work environments in Philadelphia and all its surrounding suburbs. For more information on sexual harassment see

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Filed under Hostile Work Environment, Montgomery County Employment Discrimination, Philadelphia Employment Law Attorney, Sex / Gender Discrimination, Sexual Harassment

Pennsylvania Employee with 31-year Tenure Terminated by New Supervisor Has Viable Age, Sex & Retaliation Claims

When a long-term employee with a good performance record is terminated after a new supervisor makes ageist and sexist comments about the employee and the employee complains about the comments is then terminated, an employee has viable causes of action for age discrimination, sex discrimination and retaliation.

In Konsavage v. Mondelez Global LLC (M.D.Pa. no. 15-cv-1115) (February 3, 2017) (Conaboy, J.), the Plaintiff employee was employed for 31 years and consistently received positive performance appraisals until she began reporting to a new supervisor, the Director of Customer Service Operations. Shortly thereafter, management made ageist comments such as referring to the employee’s work area and older employees as “dead wood”; and comments like you should step aside and let the younger people shine, you’ve pretty much done everything you can do here; you have no potential at your age; you lack learning ability; and you lack agility. Evidence also included derogatory remarks about female employees and regular staff meetings that were described as “a frat house,” with the passing around pictures of women, and exist remarks and sexist stories. These actions caused the employee to complain to management and human resources.

In Konsavage, the employee was the Manager of Critical Inventory, a salary grade 12 position; shortly after her complaint, she was advised that her job was being downgraded from a salary level 12 manager to a salary level 10 team lead and her annual compensation was being reduced by over $9,000 per year. The employer advised her that the reduction was due to a company salary review, however, there was no evidence that any other employee suffered any economic loss in relation to such compensation reviews. After the salary downgrade the employee’s supervisor received a letter reflecting concerns about the employee’s performance as a manager from a subordinate, claiming that the employer requested that her team give her good rating review on an employee survey and criticizing her for micromanaging, being inflexible and being out of touch with the company’s values. The employer then conducted an investigation and terminated the employee.

The court denied the employer’s motion for summary judgment and ordered that the case should proceed to trial as a reasonable factfinder could conclude that employer’s termination of the employee’s employment was due to her age or sex, and that the demotion and termination could be found to be retaliation for engaging in protected activity (reporting discrimination at the workplace).

The federal age discrimination law (ADEA) and the Pennsylvania age discrimination law (PHRA) prohibit employers from taking adverse action against an employee who is at least 40 years old because of an employee’s age. In stances where there is no direct evidence of discrimination, a prima facie of age discrimination is established by showing that the employee was forty years of age or older; the employer took an adverse employment action against the employee (i.e. termination of employment or demotion); the employee was qualified for the job; and the employee was replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Direct evidence of discrimination alleviates the need to establish a prima facie case. Once an employer satisfies the burden of offering evidence that supports a legitimate, nondiscriminatory reason for the adverse action, the burden shifts back to the employee to offer evidence from which a factfinder could reasonably either (1) disbelieve the employer’s reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. To meet this burden the employee must demonstrate weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reason that a reasonable factfinder could rationally find the reason to be unworthy of belief.

In Konsavage, the court concluded that the employee raised questions and came forward with evidence which would allow a reasonable factfinder to conclude that the employer’s proffered reasons for demotion and discharge were pretextual, including the employee’s 31 year tenure with numerous promotions and positive reviews prior to a change in her supervisor; numerous disparaging remarks from the employee’s supervisor about her age, his disdain for working with older women, and derogatory statements about females in general. The court concluded that such comments made by a decision maker would be indications that age and/or gender played a role in the decision to demote the employee and/or terminate her employment.

The court also found sufficient evidence of retaliation. An employee asserting a retaliation claim establishes a prima facie case by showing (1) that the employee engaged in protected employee activity; (2) the employee suffered from an adverse action after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. To demonstrate a link between protected activity and an employer’s adverse action, an employee may rely on the temporal proximity (i.e. the amount of time between the protected activity and the adverse action) if it is unusually suggestive. In the absence of a such a close temporal proximity, courts consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.

In Konsavage, the court found that the employer’s argument that the employee’s retaliation claim fails for lack of temporal proximity was unavailing for several reasons including the close timing between the employee’s complaint and the downgrade of her job resulting in a reduced salary (as little as one month) and certain inconsistencies in the reasons for termination.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of age discrimination, sex discrimination and retaliation. For more information see our website at

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Filed under Age Discrimination, Retaliation, Sex / Gender Discrimination