Professional Documents
Culture Documents
GJ
ANDREW FISCHER
1103 Tannerie Run Road
Ambler, PA 19002
Civil Action
Plaintiff
No. 15-cv-
15
2413
v.
PEPPER HAMILTON, LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103
Defendant
COMPLAINT
Jury Trial Demanded
Plaintiff, Andrew Fischer, Prose hereby files the within complaint against
defendant Pepper Hamilton, LLP for violations of the Americans With
Disabilities Act, and in support thereof avers as follows:
INTRODUCTION
1.
3.
all other steps necessary to bring this action before this Court, having filed a
timely complaint of disability discrimination in employment with the Equal
Employment Opportunity Commission [EEOC Docket No. 530-2014-02140]
and having received the requisite Notice of Right to Sue to bring this action
before this Court. See, Notice of Right to Sue attached hereto as Exhibit "A".
VENUE
5.
this Court and involve a Defendant that is domiciled within its jurisdictional
limits.
6.
PARTIES
7.
"Firm") is a Limited Liability Partnership duly organized under the laws of the
Commonwealth of Pennsylvania with its principal place of business located at
3000 Two Logan Square, 18th and Arch Streets, Philadelphia, PA 19103.
9.
10.
from Lafayette College in June 1991 and a Juris Doctor from Villanova
University School of Law in May 1994, Fischer worked first as in-house counsel
at About Time, Inc. until approximately June 1997 then, from June 1997 until
July 2001 as a solo practitioner. From July 2001 until August 2002, Fischer
was an associate at Murland and Nathan, LLC and, from November 2002 until
August 2006, Fischer was again in solo practice and performed contract legal
work.
11.
working in Pepper's main office at Two Logan Square, receiving an hourly rate
for hours he worked that could be billed to clients and minimal benefits.
3
12.
around the clock, seven days per week and, other than having to take one hour
of mandatory break time for every eight hours that they billed, project lawyers
were not limited in the amount of hours they could bill in a day, week, or
month or when during the day they worked.
13.
p.m. and 3:00 p.m. and would work until 12:20 a.m. or later during the work
week and on weekends, which permitted him to bill an average of more than 45
hours per week.
14.
be at work during core business hours, but he was still permitted to work a
flexible schedule, permitting him to bill an average of almost 40 hours per week
during 2007.
15.
at night and arising for work in the morning, and on or about October 2007, he
was diagnosed with Delayed Sleep-Phase Disorder, which substantially limits
Fischer in the major life activity of sleeping and is a "disability" as defined in
the ADA.
16.
due to a medical condition and that he was scheduled to see a doctor about it.
4
18.
on the daily hours a project lawyer could work, unless he or she was working
on a special project that specifically authorized additional hours.
22.
fraud, Pepper changed the work hours for contract lawyers and project lawyers,
limiting them to working between 7 a.m. and 7 p.m.
23.
24.
doctor of his condition and the need for an accommodation, which certification
Fischer provided.
25.
from his physician certifying his diagnosis of Delayed Sleep Phase Disorder and
his need for a reasonable accommodation.
27.
permitting him to report to work later than the normal starting time, but told
Fischer that he would have to end his work day by 7:00 p.m., an
accommodation that, given the Firm's mandatory break time and the
limitations imposed by his disability, did not provide Fischer with the ability to
bill at least 40 hours per week unless he worked seven (7) days a week, and did
not provide Fischer with the ability to bill the number of hours per month the
non-disabled project attorneys billed or the ability to take time off during the
week for things like doctors' appointments as the non-disabled project
attorneys could.
28.
from performing weekend work except on special projects, further limiting the
number of hours Mr. Fischer could bill per week.
29.
until 9:50 p.m. or that he be permitted to work remotely from his home for a
few hours per night so he could have the same billing opportunities as the nondisabled project attorneys.
30.
past 7 p.m. and Fischer began working until approximately 9:50 p.m.
31.
inquiring if he was allowed to work past 7 p.m. as she had not been aware that
Hamilton had authorized Mr. Fischer to do so and Hamilton responded that
Fischer may work up until 8:30 p.m. when necessary.
32.
limitations placed on the hours he could work, Fischer was only able to bill
approximately 29.3 hours per week in 2009 and approximately 30.1 hours per
week in 2010.
33.
project work and was put in touch with Raymond Miller ("Miller") an attorney
in the IP Department who worked out of Pepper's Pittsburgh office.
36.
the contract lawyers were dismissed, and the project lawyers (including
Fischer) were instructed to report to Pepper's main facility the next day to
continue working.
37.
office at Two Logan Square and informed Fischer that he would no longer be
permitted to work past 7 p.m. because Cleghorn didn't want to be "hassled" by
other employees at the Two Logan Square location who would learn that
Fischer was permitted to work past 7 p.m., and then would request similar
permission for themselves.
38. That Fischer was permitted to work past 7:00 p.m. was an open
secret of sorts at the Liberty Place Location but it was generally not known
among the employees at Pepper's main facility.
39.
After Cleghorn again called Mr. Fischer into his office the next day
and again reiterated that Fischer would no longer be permitted to work past 7
p.m., Fischer repeatedly requested an adequate reasonable accommodation,
but was refused.
40.
made deprecating comments about Fischer's disability and his request for an
accommodation.
41.
previously granted Fischer was rescinded and he was only permitted to work
until 7 p.m.
42.
Fischer splitting his time between doing project work in the Health Effects
department and working in the IP Department.
46.
At his meeting with Miller, Fischer disclosed his sleep disorder and
his need to work late, to which Miller responded that Fischer's work time needs
could not only be accommodated, they would be a benefit to his work in the IP
Department.
47.
with him, and actually sent Fischer an IP/patent assignment on which to work,
in retaliation for Fischer's repeated requests for a reasonable accommodation
Turk ("Dr. Turk"), certified that Fischer was being treated for Delayed Sleep
Phase Disorder, Attention Deficit Disorder, and Anxiety Disorder NOS, all
conditions that substantially limit Fischer in the major life activity of sleeping
and all of which are "disabilities" as defined in the ADA, and stated that
Fischer required the accommodation of permitting him to arrive at work later
than the normal starting time.
50.
between 11:30 am and 1 pm" (which he hoped to adjust upward with "further
adjustments of his medications") and requested that Mr. Fischer be permitted
to work until 9:00 and be permitted to have a meal break during his work day.
51.
Fischer delivered the February 26, 2012 letter from Dr. Turk to
53.
until 8 p.m. in Health Effects but would not be permitted split his time with the
IP Department, despite the desire of attorneys in the IP Department to have Mr.
Fischer work with them, and that Fischer could continue to arrive late,
provided that he email Cleghorn regarding any arrival after 12 noon.
54.
again requesting a reasonable accommodation that would give him the same
billing opportunities as his co-workers without disabilities, but Hamilton
refused to extend the "accommodation" previously granted any further.
55.
would permit him to work the same number of hours other project lawyers
were permitted to work and, in furtherance of that effort, Mr. Fischer met with
Woodson and Lori Brekus, another member of Pepper's Human Resource team
in early April 2012.
56.
doctor's assertion that he was "likely to arrive" between 11:30 a.m. and 1:00
p.m., he would be expected to arrive between those hours and he could work
until 8:00 p.m., taking only a half-hour break instead of the usual 1 hour
mandatory break, and specifically noting that if he arrived between noon and 1
p.m. this schedule would permit him to work between 32.5 and 37.5 hours per
week depending upon his arrival time.
57.
Fischer did not agree that this proposed accommodation gave him
parity with his non-disabled co-workers as the other project lawyers were
11
permitted to bill up to 10 hours per day and were given a 12 hour billing
window and a full hour lunch break, but agreed to follow Woodson's guidelines
as his condition allowed to see if his issues were addressed.
58.
Nina Gussack, the attorney who headed Pepper's Health Effects department,
was chair of Pepper's Executive Committee, and was on Pepper's diversity
committee, for assistance in obtaining an accommodation that would provide
him with the same billing opportunities as his non-disabled co-workers.
59.
Fischer met with Woodson two more times in spring 2012 to again
press for an adequate accommodation that would give him billing opportunity
parity with his non-disabled co-workers, but Woodson told him that he could
not work past 8 p.m. because he needed to be supervised and that Pepper did
not need him to work past 8 p.m.
61.
("Holley''), a contract attorney at Pepper whose desk was located about 15 feet
from Fischer's, work past 8 pm.
12
62.
was allowed to work as late as she wanted and could work on weekends if she
so chose.
63.
updated medical information from Dr. Turk that confirmed Fischer's disability
and stated that he was unable to arrive at work before noon and his arrival
time at work would "likely be between 12 Noon and 2 pm and would depend on
his current functioning."
66.
Woodson, at which time Diamond informed Mr. Fischer that he was granted a
revised accommodation that required Mr. Fischer to arrive between 12 noon
and 2 p.m., even though Dr. Turk's letter stated that 12 noon to 2 p.m. was
only his "likely'' arrival time.
13
67.
against Hamilton, stating that his complaint was "not corroborated" but
refusing to discuss any details with him.
68.
permitting him to arrive at work between Noon and 2:00 p.m. and
2:00 p.m., unless his absence or tardiness was supported by a doctor's note or
other documentation of the reason for the tardiness or absence; and
e.
14
71.
arrival the previous work day and demanding that he submit a supporting
doctor's note excusing his tardiness by the end of that week, or his tardiness
would be considered an unexcused tardiness.
73.
project lawyers working on the project to which Fischer was assigned were
specifically granted permission to work on those weekend days so Fischer
worked from 2:45 p.m. on Sunday January 6 to 12:21 a.m. on January 7 and
from 6:50 p.m. on Saturday January 12 to 1:26 a.m. on Sunday January 13.
76.
After she reviewed his time records for those dates, Woodson sent
Fischer a second warning notice on January 24, 2013 informing him that, even
15
Mr. Fischer that, if he did decide to work on holidays (which was optional at
Pepper), he still was required to arrive at Pepper no later than 2 p.m., a new
requirement that was apparently unique to Mr. Fischer, since his non-disabled
co-workers who chose to work on holidays were free to arrive at work at any
time between 7 a.m. and 7 p.m.
78.
pointed out that the e-mail authorizing the weekend work specifically stated
that "only the daily and monthly caps apply" and that since he billed less than
10 hours in a day and would bill less than 200 hours for the month, he did not
violate the terms of the weekend work authorization.
79.
Fischer also pointed out that his staying past 8:00 p.m. did not
appear to cause any kind of disruption to the firm, let alone impose an "undue
hardship," and was in fact beneficial to the client in helping to meet a tight
deadline.
80.
accommodation provided and could not work in the office past 8:00 p.m. on
any day on which he worked, including weekends and holidays.
16
81.
Fischer's disability and the need for a modified work schedule to accommodate
that disability.
83.
time, informed Fischer that working a full-time (40 hours per week) schedule
was an "essential function" of his job, even though she had previously asserted
that an accommodation that provided Fischer the opportunity to bill between
32.5 and 37.5 hours per week was "reasonable."
85.
time, informed Fischer that, on days when he arrived after 12 noon, he was
required to telecommute each night (up to 2 hours, for the time he missed
between 12 noon and 2 p.m.) and threatened "further discipline up to and
including termination from employment" if Fischer arrived at work after 2:00
p.m. and/or failed to maintain full-time hours.
17
86.
inter alia, that he believed the firm's actions in considering any arrival past
2:00 p.m. without a doctor's note as an unexcused tardiness and the new
requirement that he bill at least 40 hours per week were imposed in retaliation
for his request for a reasonable accommodation.
87.
Pepper be more flexible with his work hours, Woodson conveyed to Fischer that
Pepper would continue to consider any arrival after 2:00 p.m. to be an
unexcused tardiness and "a performance problem that could result in
termination of your employment."
88.
"accommodation" that would provide him with the same billing opportunities
as his non-disabled colleagues, but Pepper refused to discuss any adjustments
to his schedule or even explain why more flexible hours would be an undue
hardship to the Firm.
89.
annual raise, but following his December 2008 request for accommodation, Mr.
Fischer never received another raise, even though non-disabled project lawyers
received raises.
18
91. Like Cleghorn before him, rather than being disciplined for his
outrageous and unprofessional conduct towards Fischer, Hamilton was
subsequently promoted (in Hamilton's case, to Partner in 2014).
92.
Count I
Defendant Pepper Hamilton, LLP
Violated the Americans With Disabilities Act
{42 U.S.C. 12101, et seq.]
98.
to Plaintiff's disability that would provide him with billing opportunity parity
with his non-disabled co-workers;
b.
20
c.
weekends and holidays that were not imposed on Pepper's non-disabled project
attorneys;
e.
a reasonable accommodation while giving salary increases to Pepper's nondisabled project attorneys;
g.
job standards that were imposed in retaliation for his requests for a reasonable
accommodation that would provide him with billing opportunity parity with his
non-disabled co-workers.
21
the time of his termination together with appropriate promotions and raises;
{c)
growth opportunities and all benefits denied him due to the improper and
unlawful actions of Defendant;
{d)
{f)
ADA;
fees; and
22
(g)
Respectfully submitted,
By:
rlnlwr'
23
EXHIBIT A
EQUAL EMPLOYMENT
OPPORTUNITY
COMMISSION
Case U.S.
2:15-cv-02413-GJP
Document
1 Filed 05/01/15
Page 25 of 25
DISMISSAL AND NOTICE OF RIGHTS
To:
Andrew Fischer
1103 Tannerie Run Road
Ambler, PA 19002
Charge No.
EEOC Representative
Telephone No.
530-2014-02140
Legal Unit
(215) 440-2828
THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR Tl-IE FOLLOWING REASON:
rhe facts alleged in the charge fail to state a claim under any of the statutes enforced by the EEOC.
Your allegations did not involve a disability that is covered by the Americans with Disabilities Act.
The Respondent employs less than the required number of employees or is not otherwise covered by the statues.
Your charge was not timely filed with EEOC.
discrimination to file your charge.
[ X]
In other words, you waited too long after the date(s) of the alleged
rhe EEOC issues the following determination: Based upon its investigation, the EEOC is unable to conclude
that the information obtained establishes violations of the statutes. This does not certify that the respondent is in
compliance with the statutes. No finding is made as to any other issues that might be construed as having been
raised by this charqe.
rhe EEOC has adopted the findings of the state or local fair employment practices agency that investigated this
charge.
/ L.
Title VII, the Americans with Disabilities Act, and/or the Age Discrimination in Employment Act: This will be the only
notk:e of dismissal and of your right to sue that we will send you. You may file a lawsuit against the respondent(s) under
federal law based on this charge iii federal or state court. Your lawsuit must be filed WITHIN 90 DAYS from your receipt of
this Notice; otherwise, your right to sue based on this charge will be lost. (The time limit for filing suit based on a state claim
may be different.)
!
Equal Pay Act (EPA): EPA suits must be filed in federal or state court within 2 years (3 years for willful violations) of the
alleged EPA underpayment. This means that backpay due for any violations that occurred more than 2 years (3 years)
before you file suit may not be collectible.
On behalf of the Commission
Enclosure(s)
Information Sheet
cc:
Pepper Hamilrton
Nancy Abrams, Esquire (For Charging Party)
Patricia Woodson, Director of Administration and HR (for Respondent)
(Date Mailed)