RICHARD v. GOODWILL SOUTHWEST PENNSYLVANIA

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF PENNSYLVANIA

DAVE E. RICHARD JR.,

Plaintiff, CIVIL ACTION NO. 2:24-cv-01060

v. (SAPORITO, J.)

GOODWILL SOUTHWEST

PENNSYLVANIA,

Defendant.

MEMORANDUM

This is an employment discrimination and retaliation case. In his

amended complaint, Doc. 11, the plaintiff, Dave E. Richard Jr., claims

that the defendant, his employer, violated Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e , Title I of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12111 , and the

Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951

The defendant, Goodwill Southwest Pennsylvania, has moved to

dismiss the plaintiff’s amended complaint for failure to state a claim

upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Doc.

12. Goodwill’s motion is fully briefed and ripe for decision. Doc. 13; Doc.

17; Doc. 18.

I. FACTUAL BACKGROUND

Dave Richard was employed by Goodwill as a custodian, performing

janitorial services at a federal courthouse under a contract between

Goodwill and the federal government. From time to time, Richard served

as a “temporary fill-in lead” as well, performing additional supervisory

duties on an as-needed basis at an increased hourly wage.

Richard has been diagnosed with, and receives treatment for, high

anxiety disorder. He also has a history of previous treatment for attention

deficit hyperactive disorder and learning disabilities. His employer,

supervisors, and co-workers were aware of these mental impairments, as

well as various behavioral and personality characteristics associated

with his underlying diagnoses.

Richard applied for a promotion to a “team lead” position. He faced

competition for this position from a non-disabled co-worker, Sean Dixon,

but Richard apparently had been assured that he would be advanced over

Dixon on the basis of his superior qualifications. Ultimately, however,

Richard learned in September 2023 that he had been passed over for the

promotion, and the position was awarded to Dixon instead. Richard

asked staff in the human resources department why he was denied the

promotion. They told him Richard’s supervisor, Gregg Lafferty, made the

decision to promote Dixon instead of Richard, ostensibly because Richard

had been the subject of tenant complaints, because he had “problems”

with a disabled co-worker, Brett Roberts, and due to attendance

problems. In his amended complaint, Richard has disputed each of the

proffered reasons for his being passed over, suggesting that they were

pretexts for a discriminatory employment action. The amended

complaint further alleges that Dixon was chosen not based on merit, but

due to his association with a prior company—Richard alleges that his

employer has exhibited a bias in favor of employees of that prior company.

The amended complaint also alleges that Richard was the subject

of verbal harassment from his supervisor and various co-workers.

Lafferty was dismissive and abusive toward his employees, screaming at

them in the hallways. Christine Hubstenberger “yelled and screamed” at

Richard “for weeks.” Brett Roberts called Richard and other co-workers

derogatory names, such as “retarded,” and falsely accused them of

harassment; the amended complaint also alleges unspecified conduct by

Brett Roberts that constituted “gender harassment.” Rachel Hough,

Richard’s indirect supervisor, repeatedly demanded Richard’s badge

without providing a reason, expressed “hostility” toward Richard, and

was dismissive and unhelpful when Richard tried to provide her with

documentation of his claims of discriminatory and abusive behavior by

other employees.

The amended complaint alleges that Richard’s pay rate was

reduced in retaliation for protected activity under the ADA.1 Richard had

disclosed his pay rate to his father, who also worked for Goodwill as a

custodian, which prompted his father to file an EEOC charge regarding

discriminatory pay practices.

The amended complaint alleges that Richard’s supervisor, Lafferty,

required him to perform team lead duties in addition to his base-

employee duties, without fully compensating him as a team leader. It also

alleges that Lafferty assigned unspecified tasks to Richard that were

outside his job description, and that were not required of other

employees. On one occasion, Richard was asked to work two consecutive

1 The exhibits attached to the amended complaint suggest that the

pay rate referenced here may have been the higher pay rate applicable

when Richard served as a temporary fill-in lead. For one period in June

2021, Richard was paid $20.71 per hour when performing as a temporary

fill-in lead on an as-needed basis. Doc. 11-55. For a second period in

March 2022, Richard was paid only $19.44 per hour for the same job as a

temporary fill-in lead on an as-needed basis. Doc. 11-57.

weekends to provide snow removal services, but the same sort of extra

work demand was not imposed on Dixon. On another occasion, Richard

was reprimanded for leaving a building temporarily to obtain supplies,

when another, unidentified employee was not similarly reprimanded for

leaving a building unattended. On a third occasion, another employee

used “severe profanity” toward a supervisor, but did not face termination.

The amended complaint alleges that, at some point shortly before

he was terminated, Richard was told to stay home, without any

explanation. The charge of discrimination Richard submitted to the

EEOC, however, indicated that, on or about January 19, 2024, Richard

had gotten into a “verbal altercation” with his indirect supervisor, Hough,

about a complaint that had been submitted to human resources by a

female co-worker who complained that Richard had been harassing her.

Doc. 14-1.2 As a result of this encounter with Hough, Richard’s

disabilities were “exacerbated,” and he told his supervisor he needed to

2 “The Court can consider the EEOC Charge without converting the

motion to a motion for summary judgment.”

, 703 F. Supp. 3d 685, 691 n.2 (W.D. Pa. 2023);

, 820 F. Supp. 2d 639, 645 n.2 (E.D. Pa. 2011) (“The

Court may consider the EEOC charge at the motion-to-dismiss stage

because it is ‘an undisputedly authentic document’ on which ‘plaintiff’s

claims are based.’”).

leave work.3

On January 29, 2024, Richard was terminated from his

employment with Goodwill.

II. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” , 643 F.3d 77, 84 (3d Cir.

2011) (citing , 550 U.S. 544, 555–56

(2007)). In deciding the motion, the Court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” , 551 U.S. 308, 322

(2007). Although the Court must accept the fact allegations in the

3 It appears that Richard was then told to stay home, either by his

supervisors or by human resources. The amended complaint is not clear

on this point.

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” , 719 F.3d 160, 165 (3d Cir. 2013) (quoting

, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. , 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); , 246 F. Supp.

3d 1058, 1075 (E.D. Pa. 2017); , 568 F. Supp.

2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The plaintiff’s counseled amended complaint sets out his claims in

six counts.

Count I alleges that Richard was verbally harassed by various co-

workers and supervisors, and it alleges, in conclusory fashion, that this

verbal harassment was because of his disability or gender. Because the

count does not expressly reference Title VII, the ADA, or the PHRA, we

have considered whether this count asserts a state-law tort claim, for

which administrative exhaustion would not be required, but it is well

established that verbal harassment is not an actionable tort in

Pennsylvania. , 667 Fed. App’x 370, 371 (3d Cir.

2016) (per curiam); , No. 2:23-cv-1920, 2025 WL

1724922, at *7 (W.D. Pa. June 20, 2025); , 11 F. Supp. 3d

443, 450 (M.D. Pa. 2014); , 846 F. Supp.

310, 319 M.D. Pa. 1994); , 515 A.2d 594, 596 (Pa.

Super. Ct. 1986). Thus, we have construed Count I to assert a hostile

work environment claim under Title VII, the ADA, and the PHRA,

arising out of various instances of workplace verbal harassment.

Count II asserts a hostile work environment claim under Title VII,

arising out of the same verbal harassment upon which Count I was based,

plus allegedly “abusive” or “hostile” conduct by his indirect supervisor,

Hough, and a discussion with the company’s human resources director,

whose inability to explain why he was told not to come into work caused

him “uncertainty” regarding his employment status.

Count III asserts a disability discrimination claim under the PHRA,

arising out of several discrete acts of discrimination, including the

employer’s failure to promote Richard instead of a less-qualified non-

disabled co-worker, the assignment of extra work duties to Richard that

were outside the scope of his job description, the assignment of

consecutive weekends of snow-removal duty to Richard, and the

reprimand of Richard for leaving a building temporarily to obtain

supplies when another employee was not reprimanded for similar

conduct.

Count IV asserts a disability discrimination claim under Title VII

and the PHRA, arising out of the employer’s failure to promote Richard

instead of a less-qualified non-disabled co-worker.4

Count V asserts a retaliation claim under the ADA and the PHRA,

alleging that Richard’s employer reduced or denied Richard’s allotment

of overtime work opportunities and failed to deliver a promised wage

raise in retaliation for an unspecified request by Richard for an

accommodation of his disabilities.

Count VI asserts a second disability discrimination claim under

Title VII, the ADA, and the PHRA, arising out of the same failure to

promote Richard instead of a less-qualified non-disabled co-worker that

formed the basis of Count IV.

4 The plaintiff’s amended complaint labels this as a hostile work

environment claim, but it is clearly a failure-to-promote claim based on

a single, discrete act of alleged discrimination.

Although the amended complaint alleges the fact of his

termination, it does not assert a discriminatory discharge claim.

The defendant has moved to dismiss the amended complaint for

failure to state a claim upon which relief can be granted, pursuant to Fed.

R. Civ. P. 12(b)(6). The defendant contends that Richard failed to exhaust

administrative remedies with respect to all claims asserted in the

amended complaint.

“As a precondition for filing suit under Title VII, . . . the ADA and

the PHRA, a plaintiff must exhaust a claim by presenting it in an

administrative charge to the [U.S. Equal Employment Opportunity

Commission (“EEOC”)] and the [Pennsylvania Human Rights

Commission (“PHRC”)].” , 106 F. Supp. 3d 590,

601 (E.D. Pa. 2015). An employee is not permitted to bypass the

administrative process. , 541 F.2d 394,

398 (3d Cir. 1976). The “fundamental aim of the pre-suit requirements is

to ‘give prompt notice to the employer’ and ‘encourage the prompt

processing of all charges of employment discrimination.’”

, 992 F.3d 198, 207 (3d Cir. 2021) (quoting

, 536 U.S. 101, 109, 121 (2002)).

“The ensuing suit is limited to claims that are within the scope of

the initial administrative charge.” , 361 Fed.

App’x 411, 413–14 (3d Cir. 2010). “A claim has been administratively

exhausted when the specifics of a charge with the administrative agency

‘fairly encompass a claim’ and would put the agency and the defendant

employer ‘on notice’ of that claim.” , 106 F. Supp. 3d at 600–

01 (quoting , 82 F.3d 1291, 1296 (3d Cir. 1996)). The

“relevant test” in the Third Circuit for exhaustion of administrative

remedies is “whether the acts alleged in the subsequent . . . suit are fairly

within the scope of the prior EEOC complaint, or the investigation

arising therefrom.” , 729 F.2d 233, 237 (3d Cir. 1984);

, 992 F.3d at 207 (quoting , 729 F.2d at 237);

, 355 F. Supp. 3d 227, 235 (E.D. Pa. 2019).

“This determination turns on whether there is a close nexus between the

facts supporting each claim or whether additional charges made in the

judicial complaint may fairly be considered explanations of the original

charge or growing out of it.” , 35 F. Supp. 3d at 235.

Richard signed and submitted his charge of discrimination to the

EEOC and the PHRC on May 10, 2024. Below the prompt

“DISCRIMINATION BASED ON,” Richard responded “Disability” only,

making no reference to gender-based discrimination or retaliation. Below

the prompt “DATE(S) DISCRIMINATION TOOK PLACE,” Richard

responded that it occurred between the earliest date of “1/29/2024” and

the latest date of “1/29/2024.” Following the prompt “THE

PARTICULARS ARE,” Richard provided the following narrative

response:

1. I was hired by the respondent in December of

2020. I held the position of temporary team leader.

During my employment, I had several pay issues and

job duties outside my job description reported. On or

around January 19th, 2024[,] I got into a verbal

argument with my director (Rachel Hough), stating

that a complaint was filed against me from a female

employee who complained I was harassing her. During

the verbal altercation, my disabilities became

exacerbated. I stated to my supervisor that I had to

leave. Several days later, I was contacted and

discharged.

2. I was discharged for the use of foul language.

3. I feel I was discriminated against under the

Americans with Disabilities Act of 1990, as amended[,]

[w]here I reported my disabilities being exacerbated

and was discharged soon after.

Doc. 14-1.5

5 note 2.

Looking first to the EEOC charge itself, there are simply no

allegations of gender-based discrimination, no allegations of a hostile

work environment, and no allegations of retaliation apparent on the face

of the EEOC charge. , 992 F.3d at 208. The only theory of

disability discrimination advanced in the EEOC charge was one of

discriminatory discharge, and the only material facts alleged concerned

a verbal argument or altercation between Richard and an indirect

supervisor on or about January 19, 2024, his disclosure to his supervisor

about his disabilities being exacerbated by that encounter, and his

subsequent termination on January 29, 2024. Richard’s hostile work

environment, failure-to-promote, and retaliation claims asserted in the

amended complaint do not fall fairly within the scope of the EEOC charge

itself.

We next consider the scope of the EEOC investigation arising from

that charge. In doing so, “the Court must look only at the scope of the

EEOC investigation that would reasonably grow out of, or arise from, the

initial charge filed with the EEOC, irrespective of the actual content of

the Commission’s investigation.” , 992 F.3d at 208–09 (internal

quotation marks omitted). “[W]hen determining whether a claim fairly or

reasonably falls within the investigation arising from a charge, courts

consider (1) whether the claim arises from the same set of facts that

support the original charge and (2) whether the claim advances the same

theory of discrimination as the original charge.” , 992 F.3d at 209.

[T]he original charge is the touchstone of our

exhaustion analysis. First, we closely examine the

original charge’s contents to determine the reasonable

scope of the EEOC investigation that would likely

occur. Second, we parse the later claim and determine

whether its allegations would be covered in that

reasonable investigation. At bottom, we must compare

the two sets of allegations and evaluate whether they

are sufficiently related such that a reasonable

investigation of the original charge would address the

subsequent, unexhausted claims. In comparing the two

sets of allegations, we look for factual similarities or

connections between the events described in the

claims, the actors involved, and the nature of the

employer conduct at issue. Such factual overlap alone,

however, does not guarantee that the new allegations

are encompassed by the original charge if they do not

fall within the “gravamen” of the initial charge. But

even if we find no factual nexus, we may also consider

whether the two sets of allegations advance the same

theory of discrimination . . . .

at 210–11 (citations omitted).

Based on the allegations of the EEOC charge itself, set forth above,

a reasonable investigation would encompass Richard’s termination and

the events of January 2024 leading up to that employer action, including

his interaction with Rachel Hough on or about January 19, 2024, and

perhaps the underlying harassment complaint brought against Richard

by a female co-worker.

Count I, asserting a hostile work environment claim, is based on

alleged verbal harassment of Richard by supervisors and co-workers over

an unspecified period of time, entirely unrelated in any way to the

discriminatory discharge claim asserted in his EEOC charge.

Counts III, IV, and VI assert discrete disability discrimination

claims arising out of Goodwill’s failure to promote Richard instead of a

non-disabled co-worker, and various other instances of allegedly

discriminatory treatment on the job. The factual basis for these claims is

likewise entirely unrelated in any way to the discriminatory discharge

claim asserted in the EEOC charge.

Count V asserts a retaliation claim based on a reduction in overtime

work opportunities made available to Richard, and failure to deliver on a

promised wage raise, in retaliation for an unspecified request for

accommodation of Richard’s disabilities. The factual basis for this claim

is entirely unrelated in any way to the discriminatory discharge claim

asserted in Richard’s EEOC charge.

Richard’s EEOC charge did not include the facts giving rise to the

hostile work environment, retaliation, gender-based discrimination, or

disability discrimination claims asserted in Counts I, III, IV, V, or VI of

his amended complaint. Thus, the plaintiff has failed to exhaust his

administrative remedies with respect to the claims asserted in Counts I,

III, IV, V, and VI because they are not fairly encompassed within the

scope of his EEOC charge.

Count II is based not only on the same verbal harassment giving

rise to Count I, but also on allegedly “abusive” or “hostile” conduct of his

indirect supervisor, Hough, during a verbal altercation that appears to

have led to his termination. Arguably, this last encounter may fall within

the scope of the EEOC charge, but the prior incidents of verbal

harassment—both different in nature and involving different

employees—do not. That single heated interaction with a supervisor,

however, is insufficient to support a hostile work environment claim,

particularly in the absence of any factual allegations whatsoever to

demonstrate that the allegedly abusive or hostile conduct was pervasive

or severe, or to suggest that it was based on Richard’s disability.

, 749 Fed. App’x 139, 144

& n.8 (3d Cir. 2018) (holding that an isolated verbal reprimand, in which

a supervisor pointed his finger in the plaintiff’s face, was neither severe

nor pervasive); , 168 F.3d 661,

667 (3d Cir. 1999) (“A personality conflict doesn’t ripen into an ADA claim

simply because one of the parties has a disability.”). Thus, Count II has

failed to state a claim upon which relief can be granted.

The Third Circuit has instructed that, if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile, , 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to plaintiffs and

those represented by counsel. , 363 F.3d 229, 235 (3d Cir.

2004). Here, it is clear that any amendment to the claims asserted in the

amended complaint would be futile, as the time permitted for filing an

EEOC charge has expired. But it is not clear that a second amended

complaint limited to a discriminatory discharge claim, or other claims

fairly within the scope of the plaintiff’s EEOC charge as set forth above,

would be futile.6 Therefore, we will dismiss the amended complaint with

leave to amend.

IV. CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss will be

granted. The amended complaint will be dismissed for failure to state a

claim upon which relief can be granted, but the plaintiff will be granted

leave to file a second amended complaint within a specified time period.

If a second amended complaint is not timely filed, the case will be closed.

Dated: September 22, 2025

JOSEPH F. SAPORITO, JR.

United States District Judge

6 The defendant suggests in its reply brief that such an amendment

would be futile because it would not relate back to the original complaint

in this action. But, while it did not assert a discriminatory discharge

claim, the original complaint did allege facts regarding the plaintiff’s

termination and the “verbal altercation” with Hough that preceded it.

Doc. 1.

Although it is true that Plaintiff’s amendment states a

new and different claim, it clearly arose out of the same

occurrence set forth in the original complaint.

Furthermore, even though Plaintiff may be alleging a

different interpretation of the facts, or that the facts

give rise to a different claim, he will still be alleging the

same facts which give rise to his original cause of

action. This is clearly sufficient to satisfy the doctrine

of “relation back.”

, 86 F.R.D. 127, 130 (E.D. Pa. 1980).