# RICHARD

> District Court, W.D. Pennsylvania · March 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11298989

## Case

- **Full name:** David Richard Sr. v. Goodwill Southwest Pennsylvania
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 19, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11298989

## How later opinions describe it (automated extraction)

- 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employer’s decision to terminate him—and rejecting argument that it accrued later when he first learned that he had been replaced by a younger worker
- noting that courts may disregard allegations that are “internally inconsistent” or that “run counter to facts of which the court can take judicial notice.”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11298989. Public record. Not legal advice.