Stopping a Time-Barred Action Against a Major U.S. Retailer
Epstein Becker Green successfully handled a case that presented a novel issue involving whether to equitably toll the 90-day period to commence an action under Title VII of the Civil Rights Act of 1964 (“Title VII”).
This action began with the plaintiff filing a pro se complaint in a federal court in New Jersey against our client, a major U.S. retailer, and eight individual defendants, alleging hostile work environment (race) and discriminatory and retaliatory discharge in violation of Title VII and the Pennsylvania Human Rights Act. The plaintiff filed his Title VII claims three days after the expiration of the statute of limitations. Nevertheless, the plaintiff argued that the limitations period should be “equitably tolled” (and thus extended) for three days because he was locked out of his Gmail account for the first three days after the Equal Employment Opportunity Commission emailed him a Right to Sue Letter (“Letter”). The plaintiff sought economic, compensatory, and punitive damages of an indeterminate amount.
Epstein Becker Green, on behalf of our client, moved to dismiss the plaintiff’s action, arguing that, among other things, the plaintiff’s case was time-barred. In June 2017, the court granted our client’s motion to dismiss without prejudice, finding that the plaintiff’s Title VII claims were untimely; however, the court gave the plaintiff another opportunity to amend his complaint.
When the plaintiff’s amended complaint failed to correct the deficiencies identified in the court’s June 2017 order, Epstein Becker Green, on behalf of our client, again moved to dismiss the action. In March 2018, the court dismissed with prejudice the plaintiff’s Title VII claims as being time-barred. The court pointed out that the plaintiff was aware of the Letter on the first day of the 90-day period to commence an action under Title VII. Even though the Letter was sent to his Gmail account on that first day and the plaintiff was locked out of his account until the third day, the plaintiff failed to take any action to protect his rights over the next 87 days. Therefore, the three-day lockout wasn’t “an extraordinary circumstance” justifying equitable tolling. In addition, the court dismissed the Pennsylvania law claims after declining to exercise supplemental jurisdiction.
The plaintiff appealed the case to the U.S. Court of Appeals for the Third Circuit, which dismissed the appeal in June 2019.
Ending a Disability Discrimination Suit by a Retail Client’s Former Employee
Epstein Becker Green attorneys recently helped a major retail client achieve a victory in a disability discrimination lawsuit brought in New Jersey by one of the client’s former employees.
The case began in March 2018, when the plaintiff filed a pro se complaint in a New Jersey Superior Court. The plaintiff claimed that, upon returning from lower back surgery in December 2011, he was disabled and needed work restrictions, such as “no lifting, no pushing or carrying heavy stuff.” He also claimed that our client ignored these restrictions and assigned him to perform work that required lifting five-gallon cans of paint and heavy machinery. In addition, the plaintiff claimed that, because of our client’s conduct, he underwent surgery and other invasive procedures and will allegedly endure a lifetime of chronic pain and medication.
Epstein Becker Green, on behalf of our client, filed a Rule 12(b)(6) motion to dismiss the plaintiff’s complaint for failure to state a claim upon which relief may be granted or, in the alternative, for a more definite statement.
In April 2019, the court granted our client’s motion to dismiss the plaintiff’s complaint without prejudice. The court pointed out that that the complaint did not contain enough factual allegations about the underlying incidents for the court to find that the plaintiff stated a plausible claim for relief. But because the plaintiff was representing himself, the court gave him time to file an amended complaint. However, the plaintiff did not file an amended complaint by the court’s May deadline, so the court closed the case.
The Epstein Becker Green team was led by Patrick G. Brady and included James J. Sawczyn.
Eliminating Title VII Claims Against a Leading Product Distributor
Epstein Becker Green led a client (a leading distributor of maintenance, repair, and operations products) to victory in a federal case that highlighted the importance of compliance with the procedural prerequisites to commencing an action under Title VII of the Civil Rights Act of 1964 (“Title VII”).
In April 2018, the plaintiff, a former employee of our client, filed a pro se complaint in a New Jersey Superior Court, asserting claims against our client involving sexual harassment, hostile work environment, retaliatory discharge, and slander. Epstein Becker Green, on behalf of our client, filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. In July 2018, the court dismissed the plaintiff’s purported claims for hostile work environment, retaliatory discharge, and slander but allowed the plaintiff to file an amended complaint.
The plaintiff filed an amended complaint, alleging that he was subjected to workplace sexual harassment and retaliation in violation of Title VII. He also claimed that our client violated Title VII by denying him a promotion and pay increase and subsequently terminating his employment.
In September 2018, shortly after removing the matter to the U.S. District Court for the District of New Jersey (“District Court”), Epstein Becker Green, on behalf of our client, filed a Rule 12(b)(6) motion to dismiss the plaintiff’s amended complaint, because the plaintiff failed to plead exhaustion of administrative remedies to satisfy the procedural prerequisite to a Title VII claim.
On March 7, 2019, the District Court dismissed any Title VII claim in the plaintiff’s amended complaint for failure to exhaust administrative remedies. Having dismissed the only federal claim, the District Court declined to exercise supplemental jurisdiction over any attempted state law claim, including any attempted claim for defamation or slander. The plaintiff has not refiled a complaint in New Jersey state court.
The Epstein Becker Green team was led by Patrick G. Brady and included John M. O’Connor.
Achieving the Dismissal of a Discrimination Case Brought by a Non-Responsive Plaintiff
Epstein Becker Green assisted clients in ending a lawsuit brought by a plaintiff who failed to respond to requests for discovery items.
The case began in early 2018, when the plaintiff filed a complaint, jury demand, and designation of trial counsel against our clients, one of the world’s largest retailers and its Merchandising Execution Manager, in a New Jersey Superior Court. The plaintiff asserted claims arising from her employment with the retailer as a Travel Night Merchandising Execution Associate. The plaintiff alleged that she was “subjected to a hostile work environment and was discriminated, harassed, and retaliated against on the basis of her race and sex,” in violation of the New Jersey Law Against Discrimination, and unlawfully terminated from her employment.
During the discovery phase of the lawsuit, our clients requested that the plaintiff respond by a set date to certain document requests and interrogatories; however, the plaintiff failed to respond. Accordingly, Epstein Becker Green, on behalf of our clients, filed a motion to dismiss the plaintiff’s complaint for failure to respond to document requests and interrogatories. In November 2018, the court entered an order granting our clients’ motion dismissing the complaint without prejudice. Two months later, we filed a second motion to dismiss plaintiff’s complaint for failure to respond to written discovery. Counsel for all parties subsequently appeared before the court for a hearing on our clients’ motion. On March 1, 2019, the court granted our clients’ motion and dismissed the complaint with prejudice.
The Epstein Becker Green team was led by Patrick G. Brady and included Clara H. Rho.
Defeating a Race, National Origin Discrimination Claim Against a Drugstore Chain Client
Epstein Becker Green achieved a victory for a drugstore chain client against a claim that the client engaged in race or national origin discrimination against one of its customers.
The matter began on November 29, 2017, when a Cuban customer (“Complainant”) went to one of our client’s stores to pick up his prescription for a three-month supply of medication that he needed for travel to Cuba. He claimed that he was told that his prescription was not ready and was asked where he was travelling. The Complainant alleged that he tried to pick up the prescription on December 4, 2017, but it was still not ready. He also alleged that he was informed that his prescription was ready for pickup on December 6, 2017, which was too late for him to catch his flight.
On December 11, 2017, the Office of Civil Rights (“OCR”) of the Department of Health and Human Services commenced an investigation of our client under Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act, both of which prohibit discrimination on the basis of race or national origin. The investigation was conducted in response to the Complainant’s complaint, which alleged that our client engaged in unlawful discrimination based on race or national origin when our client failed to fill the Complainant’s prescription.
Epstein Becker Green assisted our client in challenging the complaint. We submitted evidence that the Complainant’s prescription was ready for pickup on November 29, 2017, and that he received notification texts that his prescription was ready for pickup on December 1, 4, 5, 6, 7, 11, and 13, 2017.
On December 19, 2018, OCR issued a letter opinion rejecting the Complainant’s allegations and holding that there was insufficient evidence to substantiate the Complainant’s allegation that our client discriminated against him on the basis of his race or national origin. Accordingly, OCR closed the complaint.
The Epstein Becker Green team was led byPatrick G. Brady.
Obtaining the Dismissal of an ADA Case Brought by a Plaintiff Who Wouldn’t Appear at Pre-Motion Conferences
Epstein Becker Green helped a major retail client terminate a lawsuit because the plaintiff, a former employee of our client, failed to appear at pre-motion conferences.
The case began in early 2018, when the plaintiff filed a pro se complaint against our client alleging a hostile work environment in violation of the Americans with Disabilities Act (“ADA”). After discovery was completed, in July 2018, Epstein Becker Green, on behalf of our client, filed a letter with the court, requesting a pre-motion conference for leave to file a motion for summary judgment.
The court scheduled the pre-motion conference for September 27, 2018, but the plaintiff failed to appear at the conference. The court then scheduled a telephonic pre-motion conference for October 5, 2018, but the plaintiff failed to appear for that conference. After multiple attempts to reach the plaintiff by telephone were unsuccessful, the court rescheduled the conference for later in the day on October 5, but the plaintiff again failed to appear. The court then ordered the plaintiff to file a letter with the court by October 22 if she intended to pursue the action, but the plaintiff failed to file the letter. Therefore, Epstein Becker Green, on behalf of our client, requested that the court dismiss the lawsuit with prejudice.
In late 2018, the court dismissed the plaintiff’s complaint “for failure to prosecute and to comply with the court’s orders.” Pursuant to 28 U.S.C. § 1915(a)(3), the court also certified that any appeal from the court’s ruling would not be taken in good faith and denied the plaintiff in forma pauperis status (thus, the plaintiff will not have her court filing fees waived) for the purpose of an appeal.
The Epstein Becker Green team was led by Patrick G. Brady and included John M. O’Connor.
Upholding Procedures That Limit the Dispensing of Opioids
While the tragic consequences of the opioid epidemic continue to make headlines, and manufacturers and retailers face lawsuits for distributing these potent and addictive painkillers, Epstein Becker Green recently defended a retailer that stood its ground by refusing to fill an opioid prescription.
In November 2016, the Office of Civil Rights (OCR) of the Department of Health and Human Services commenced an investigation of a drugstore chain client under Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, and Section 1557 of the Affordable Care Act. The investigation was conducted in response to a customer complaint of age and race discrimination against our client due to its decision to decline to fill an opioid prescription issued by an out-of-state physician. At issue was the validity of our client’s procedures for validating and dispensing controlled substances. After the investigation, in May 2017, OCR concluded that our client acted consistently with its procedures and did not discriminate against the patient. Accordingly, OCR declined to issue a complaint against our client, and the proceedings concluded.
The OCR decision validated the use of our client’s procedures in all of its pharmacies for filling opioid prescriptions. These procedures comply with federal and state law relating to dispensing controlled substances without violating laws prohibiting places of public accommodation from discriminating against customers with disabilities or due to race, gender, or age. OCR’s decision not to issue a complaint eliminated a threat of the application for an injunction that would have affected all of our client’s stores.
The Epstein Becker Green team was led by Patrick G. Brady.
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