RICHARD

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF PENNSYLVANIA

DAVID RICHARD SR.,

Plaintiff, CIVIL ACTION NO. 2:23-cv-01193

v. (SAPORITO, J.)

GOODWILL SOUTHWEST

PENNSYLVANIA,

Defendant.

MEMORANDUM

This is an employment discrimination and retaliation case. In his

third amended complaint, Doc. 60, the plaintiff, David Richard Sr., claims

that the defendant, his employer, violated 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 third amended complaint for failure to state a

claim upon which relief can be granted, pursuant to Fed. R. Civ. P.

12(b)(6). Doc. 61. Goodwill’s motion is fully briefed and ripe for decision.

Doc. 62; Doc. 65; Doc. 71.

I. FACTUAL BACKGROUND

David Richard has been employed by Goodwill as a custodian since

2008, performing janitorial services at various federal facilities under a

contract between Goodwill and the federal government. Richard has been

diagnosed with attention deficit hyperactivity disorder and specific

reading comprehension deficit. His employer, supervisors, and co-

workers were aware of these conditions.

In December 2014, Richard was promoted to a “temporary

supervisor” position, which involved additional responsibilities and

provided a higher pay rate. While performing in that position, Richard

received positive performance reviews and evaluations.

In December 2017, Richard applied for a posted “supervisor”

position. He was one of two applicants—himself and Rottley Lewis. On

or about December 4, 2017, Richard was informed that he would not be

promoted into the posted supervisor position. Instead, he was informed

that, because he and Lewis had the similar experience and qualifications,

they would both be promoted to a “lead supervisor” position,1 in which

1 The complaint does not clearly allege as much, but it appears that

the “lead supervisor” title represents a hybrid position, combining the

they would effectively split the supervisor position’s pay rate and duties.

Richard signed a memorandum agreement accepting the terms of the

promotion on December 4, 2017.

Nearly four years later, in late November 2021, Richard learned

from David Lee, the project manager, that Lewis had no lead worker or

supervisory experience prior to his December 2017 promotion, and that

Lewis did not have a disability. Richard complained that he had been

treated unfairly because Lee had previously told him that he and Lewis

had the same amount of experience and qualifications.

Throughout the month of December 2021, Richard attempted to

contact Goodwill’s HR department several times by phone, leaving

voicemails, and by email. He received no response. Richard filed a formal

EEOC charge of discrimination against Goodwill on May 23, 2022, and

notice of the charge of discrimination was mailed to Goodwill the next

day, May 24, 2022. Richard subsequently filed an amended charge of

discrimination on September 27, 2022. As amended, Richard’s EEOC

charge alleged discriminatory failure-to-promote and retaliation claims

duties and title of the posted “supervisor” position with those of the “lead

worker” position that Richard had previously held.

under the ADA and the PHRA.

Following an administrative investigation, Richard received a

right-to-sue letter from the EEOC dated March 28, 2023. He timely filed

his original complaint in this court on June 29, 2023.2 The currently

operative complaint in this case is the plaintiff’s third amended

complaint, filed on March 16, 2025. Doc. 60.

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

2 To pursue a private civil action under Title VII or the ADA, a

plaintiff must file her complaint with the court within ninety days after

receipt of the notice of right to sue from the EEOC. 42 U.S.C. § 2000e-

5(f)(1) (Title VII); § 12117(a) (incorporating enforcement provisions of

Title VII into the ADA); , 165 F.3d

236, 239 (3d Cir. 1999); , 789 F.2d 251, 252–

53 (3d Cir. 1986) (per curiam). “The statutorily-created ninety-day period

starts when either the claimant or her attorney receives a right-to-sue

letter, whichever is earlier.” , 165 F.3d at 239 n.1 (citing

, 498 U.S. 89, 92–93 (1990)). “When the actual

date of receipt is known, that date controls; where the actual date of

receipt is unknown, courts will presume receipt took place three days

after the EEOC mailed it.” , 519 Fed.

App’x 746, 748 (3d Cir. 2013) (per curiam) (citing , 165 F.3d at

239). The third amended complaint alleges that Richard received the

right-to-sue notice on March 31, 2023, exactly ninety days before he

commenced this action.

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

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 third amended complaint sets out his

claims in four counts. It primarily challenges the 2017 employment

action in which Goodwill promoted both Richard and Lewis to peer

positions as “lead supervisor.” Richard appears to contend that he should

have been promoted exclusively to that position or to the originally posted

“supervisor” position.

Count I asserts a failure-to-promote disability discrimination claim

under the ADA and PHRA. Richard alleges that, in December 2017, he

was the most qualified applicant for a posted supervisor position, but he

was denied the promotion due to his disability. Instead, Richard alleges

that he was promoted together with a non-disabled co-worker into a

“shared” position, splitting the posted position’s duties and corresponding

pay increase.

Counts II and III assert parallel retaliation claims under the ADA

and the PHRA. Richard alleges that his employer took unspecified

adverse employment action against him in retaliation for an unspecified

request by Richard for an accommodation of his disabilities.

Count IV asserts a state-law tort claim for fraud or fraudulent

inducement. The nature of this claim is not entirely clear, but Richard

appears to allege either (a) that his employer misrepresented unspecified

facts—perhaps regarding Lewis’s experience and qualifications—to

induce Richard to sign the December 2017 memorandum agreement

accepting his promotion to a “lead supervisor” position, or (b) that that

his employer presented him with a falsified or forged copy of the

December 2017 memorandum agreement in December 2022 to persuade

Richard that he had accepted a different position in 2017 than he later

recalled.

The defendant has moved to dismiss the third 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’s failure-to-

promote claim should be dismissed as time barred, or because Richard

has failed to plausibly allege that he was denied a promotion on the basis

of disability. Similarly, the defendant contends that Richard’s retaliation

claims should be dismissed because he has failed to plausibly allege any

protected activity, nor any adverse employment action he has suffered

because of it. Finally, the defendant contends that Richard’s state-law

fraud claim should be dismissed as time barred, or because Richard has

failed to plausibly allege—much less allege with the particularity

required by Fed. R. Civ. P. 9(b)—any material misrepresentation, any

reliance, or any injury caused by his reliance on the alleged

misrepresentation.

A. Failure-to-Promote Claim

In Count I, the plaintiff has asserted a failure-to-promote disability

discrimination claim under the ADA and the PHRA.3 Richard alleges that

he applied for a supervisor position in December 2017, but he was denied

that promotion and instead promoted along with a non-disabled co-

worker into a “shared” lead supervisor position. Although this

employment action took place in December 2017, Richard did not file his

EEOC discrimination charge until May 2022, more than four years later.

The defendant argues that Richard’s failure-to-promote claim is

time-barred, coming well more than 300 days after the alleged act of

discrimination occurred. 42 U.S.C. § 2000e-5(e)(1) (establishing a

300-day limitation period for Title VII claims); § 12117(a) (providing

3 We note that “the same legal standard that applies to the ADA

applies equally to disability discrimination claims under the PHRA.”

, 602 F.3d 495, 499 n.3 (3d Cir. 2010).

that Title VII’s procedures apply to claims arising under the ADA);

, 608 Fed. App’x 60, 63 (3d Cir. 2015) (“Under the ADA,

a plaintiff must file a claim with the EEOC within 300 days of the action

complained of in order not to be time-barred on that claim.”).

In response, Richard argues that he did not discover the

discriminatory nature of the December 2017 adverse employment action

until November 2021, when his project manager inadvertently disclosed

to him that the non-disabled colleague with whom he was made to share

a less desirable promotion had no relevant lead worker or supervisory

experience at the time of that 2017 promotion. Richard argues that his

discrimination charge was timely filed with the EEOC because it was

filed within 300 days after he learned this new information.

But “[i]t is well settled that in employment cases, the date of the

discriminatory act, or the challenged employment practice is the date of

the injury for purposes of determining the time period for the application

of the statute of limitations.” , No.

05-383, 2007 WL 2955615, at *5 (W.D. Pa. Oct. 9, 2007). As the Third

Circuit has recognized, “a claim accrues in a federal cause of action upon

awareness of actual injury, not upon awareness that this injury

constitutes a legal wrong.” , 342

F. 3d 281, 287 (3d Cir. 2003) (finding that age discrimination claim

accrued when plaintiff knew of his injury—discharge—and cause of that

injury—his employer’s decision to terminate him—and rejecting

argument that it accrued later when he first learned that he had been

replaced by a younger worker). “This principle is applied even in cases

where the plaintiff alleges that he was denied a promotion.” , 2007

WL 2955615, at *5. Moreover, more recent precedent indicates that the

discovery rule relied upon by the plaintiff is simply inapplicable to the

ADA’s limitations provision:

The Third Circuit has explained . . . that no implied

discovery rule exists where the applicable statute of

limitations explicitly states that the limitations period

begins to run when the alleged unlawful act “occurs.”

In its drafting of . . . the ADA, Congress specified that

the limitations period runs from the date on which “the

alleged unlawful employment practice .” This

language “implicitly excludes a discovery rule” for the

ADA . . . statute[] of limitations.

, No. 20-6045, 2022 WL 17558720, at *5 (E.D. Pa. Dec.

9, 2022) (first citing , 890 F.3d 422, 425 (3d Cir. 2018)

(en banc), then quoting 42 U.S.C. § 2000e-5(e)(1), and then quoting

, 890 F.3d at 426).

Thus, we conclude that the plaintiff’s ADA and PHRA failure-to-

promote disability discrimination claim, set forth in Count I of the third

amended complaint, should be dismissed as time barred.

B. Retaliation Claims

In Counts II and III, the plaintiff has asserted parallel retaliation

claims under the ADA and the PHRA.4 Richard alleges that his employer

took unspecified adverse employment action against him in retaliation

for an unspecified request by Richard for an accommodation of his

disabilities.

Judge Hornak previously considered these same claims in this

same case, addressing them in the context of a motion to dismiss the

plaintiff’s first amended complaint and a subsequent motion for

reconsideration by the plaintiff. , No. 2:23-

cv-01193, 2024 WL 6995569, at *4 (W.D. Pa. Feb. 13, 2024), Doc. 28.

In a bench ruling, Judge Hornak had previously granted the

defendant’s motion to dismiss the plaintiff’s retaliation claims for failure

4 As with disability discrimination claims under the ADA and

PHRA, retaliation claims under the ADA and the PHRA are analyzed

under the same legal standard. , 131 F. Supp. 3d

321, 330 (M.D. Pa. 2015); , 991 F. Supp.

2d 678, 704 (W.D. Pa. 2014).

to exhaust administrative remedies. On reconsideration, having been

presented with additional documentation from the plaintiff’s EEOC file,

including the amended EEOC charge filed in September 2022, Judge

Hornak concluded that Richard had in fact exhausted administrative

remedies with respect to any retaliation claims “fairly within” the scope

of the investigation resulting from Richard’s initial EEOC charge.

at *2–3. Specifically, Judge Hornak held that Richard had exhausted

administrative remedies with respect to the “rather barebones”

retaliation allegations in his amended EEOC charge: “Denial of

promotional opportunities because of my protected activities constitutes

unlawful retaliation.” at *4.

Having found administrative remedies for these claims exhausted,

Judge Hornak then considered whether the first amended complaint had

failed to state a claim upon which relief could be granted. Judge Hornak

set forth the applicable legal standard:

A retaliation claim in a federal lawsuit has three

elements: (1) protected employee activity, (2) adverse

action by the employer either 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. For employee

conduct to constitute protected activity, the employee

must hold an objectively reasonable belief, in good

faith, that the activity they oppose via complaints to

their employer is unlawful.

(quoting other sources) (citations, internal quotation marks, and

brackets omitted).

Judge Hornak then considered the allegations of the first amended

complaint and concluded that it failed to state a claim upon which relief

could be granted. He explained:

Here, the Amended Complaint evidences no indication

of protected activity nor any connection between

Richard’s disabilities and any adverse action. While it

appears that Richard complained to his supervisors

about not being promoted into the sole lead position,

those complaints, based on the allegations set forth in

the Amended Complaint, do not address or imply that

Richard, at the time when he complained to his

supervisors, believed his supervisors (and through

them, Defendant) to be violating the law he sues under

here. At most, Richard’s complaints arise out of a

perceived unfairness towards him, but complaints

pertaining to unfairness (unconnected to a protected

characteristic) do not constitute statutorily protected

activity. Further, the Amended Complaint does not

advance an adverse action, as Richard was never

demoted (he was actually promoted in 2017), and the

position he sought to be promoted to was eliminated

such that he was never truly denied a promotion

because there was no position for him to be promoted

to. Finally, even assuming that somewhere among

Richard’s opaque allegations lies an adverse action,

there is no minimal “showing” that Defendant

committed an adverse action against Richard because

of his disabilities. Therefore, no elements of a

retaliation claim are met in the Amended Complaint,

and though the Court erred in dismissing Richard’s

retaliation claims with prejudice for failure to exhaust,

dismissal, in and of itself, was not error, as Richard’s

Amended Complaint fails to sufficiently state

retaliation claims.

Judge Hornak, however, could not conclude as a matter of law that

these defects could not be cured in a second amended complaint, so he

converted the dismissal of these claims to a dismissal without prejudice

and granted Richard leave to file a second amended complaint.

Richard did so, and he subsequently filed his third amended

complaint, which is the currently operative pleading. The third amended

complaint articulates no new allegations regarding any protected activity

or any adverse employment action connected to that activity. It alleges,

in conclusory fashion, that Richard “sought to have his disabilities

accommodated by his employer,” and he “engaged in a protected activity

in invoking his need for an accommodation.” Third Am. Compl. ¶¶ 48, 54,

Doc. 60. But the third amended complaint fails to allege any facts

whatsoever regarding this unspecified request for accommodation. It

similarly alleges, in vague and conclusory fashion, that “[w]hen viewed

in its entirety, the actions by Defendant can only be viewed as retaliatory

against Plaintiff for his invocation of his rights to reasonable

accommodation under the ADA and the PHRA.” ¶ 49.5

The only statutorily protected activity we are able to discern from

the third amended complaint is the filing of Richard’s formal charge of

discrimination on May 23, 2022. While the third amended complaint

alleges that Richard was “demoted” in April 2022, when his project

manager informed him that his job title was “team lead” rather than

“lead supervisor,” a minor change in title such as this, with no change in

compensation, benefits, or privileges does not constitute an adverse

employment action. , 262 Fed.

App’x 470, 472 (3d Cir. 2008) (per curiam) (non-selection for a position

that involved a change in title and assignment of additional duties, but

no additional compensation, benefits, or privileges was not an adverse

5 In an apparent scrivener’s error, the third amended complaint also

alleges that “Plaintiff suffered adverse action shortly after invoking his

right by being terminated from his position.” Third Am. Compl. ¶ 55. But

nowhere else in the record is there any reference to the plaintiff being

terminated from employment, and the third amended complaint alleges

events that occurred in the workplace in 2025, years after Richard filed

his discrimination charge with the EEOC.

, 521 F. Supp. 3d 929, 942 (S.D. Cal. 2021)

(“[T]he court may disregard contradictory allegations.”);

, 859 F. Supp. 1489, 1492 (S.D. Fla. 1994) (noting

that courts may disregard allegations that are “internally inconsistent”

or that “run counter to facts of which the court can take judicial notice.”).

employment action); , 186 Fed. App’x 258, 260 (3d

Cir. 2006) (reassignment involving loss of managerial responsibilities

and change in title, office, and reporting relationship but no diminution

in pay or benefits was not an adverse employment action). Moreover, the

timing of this event is dispositive of any causal link between Richard’s

EEOC charge and his “demotion” from “lead supervisor” to “lead worker.”

, 120 F.3d 1286, 1301 (3d Cir. 1997)

(finding no causal connection where adverse employment action

protected employee activity in a Title VII retaliation case),

, 548 U.S. 53

(2006).6

6 The third amended complaint also alleges, in conclusory fashion,

that “in January or 2025, Plaintiff was retaliated against for not working

on the weekend to help remove snow because he had his grandchildren.”

Third Am. Compl. ¶ 36. But declining to work on the weekend is not a

statutorily protected activity, and the plaintiff has failed to articulate any

adverse employment action whatsoever that resulted from his refusal to

work that weekend. Moreover, this incident does not fall “fairly within”

the scope of the investigation resulting from Richard’s initial EEOC

charge, filed nearly three years earlier in May 2022. Thus, we are

precluded from considering any retaliation claim arising from this 2025

incident because Richard has failed to exhaust administrative remedies

prior to filing suit. , 776 Fed.

App’x 768, 773–75 (3d Cir. 2019); , 22 F.

Supp. 3d 459, 471–72 (E.D. Pa. 2014).

Thus, we conclude that the plaintiff’s ADA and PHRA retaliation

claims, set forth in Counts II and III of the third amended complaint,

should be dismissed for failure to state a claim upon which relief can be

granted.

C. Leave to Amend

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 pro se plaintiffs and

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

2004). In light of the procedural history of this case, including Judge

Hornak’s prior dismissal of all of the plaintiff’s claims, and in light of the

plaintiff’s failure to cure the pleading deficiencies first identified by

Judge Hornak despite attempts to do so, the plaintiff’s

discrimination and retaliation claims will be dismissed leave to

amend, as any further amendment appears to be futile.

D. State-Law Fraud Claim

In Count IV, the plaintiff has asserted a state-law tort claim of fraud

or fraudulent inducement against his employer. Where a district court

has dismissed all claims over which it had original jurisdiction, the court

may decline to exercise supplemental jurisdiction over state law claims.

28 U.S.C. § 1367(c)(3). Whether the court will exercise supplemental

jurisdiction is within its discretion. , 589 F.3d 626, 650 (3d

Cir. 2009). That decision should be based on “the values of judicial

economy, convenience, fairness, and comity.”

, 484 U.S. 343, 350 (1988); , 45

F.3d 780, 788 (3d Cir. 1995). “[I]n the usual case in which all federal-law

claims are eliminated before trial, the balance of factors . . . will point

toward declining to exercise jurisdiction over the remaining state-law

claims.” , 484 U.S. at 350 n.7. Upon consideration of these factors

and the record before us, we find nothing to distinguish this from the

usual case. Therefore, the remaining state-law tort claim will be

dismissed pursuant to 28 U.S.C. § 1367(c)(3).

IV. CONCLUSION

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

granted and the plaintiff’s ADA and PHRA discrimination and retaliation

claims, set forth in Counts I, II, and III of the third amended complaint,

will be dismissed for failure to state a claim upon which relief can be

granted, pursuant to Fed. R. Civ. P. 12(b)(6). The plaintiff’s remaining

state-law tort claim, set forth in Count IV of the third amended

complaint, will be dismissed without prejudice pursuant to 28 U.S.C.

§ 1367(c)(3).

An appropriate order follows.

Dated: March 19, 2026

JOSEPH F. SAPORITO, JR.

United States District Judge