Steelworker fired over texting prostitutes wins revival of retaliation claims

(Reuters) - A Pennsylvania steelworker who was fired for allegedly using a company-issued phone to solicit prostitutes while on the job can pursue claims that his employer only searched the phone because it wanted to terminate him for taking medical leave, a U.S. appeals court said on Thursday.

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals revived Joseph Canada's unlawful retaliation claims, saying a jury could find that Samuel Grossi & Sons Inc used the texts as a pretext to fire Canada, who had sued the company for trying to prevent him from taking leave to treat back problems.

Canada says his supervisors broke into his work locker while he was on vacation and accessed his phone, which contained messages to prostitutes sent during work hours. Canada said the texting was "dumb entertainment" and he never met with the women, and that he had used his personal phone.

Brad Kushner, a lawyer for Grossi, declined to comment on the decision. A lawyer for Canada did not immediately respond to a request for comment.

Canada claims that during his 10 years at a Grossi facility, he was prevented from applying for unpaid medical leave to address longstanding back problems and was harassed when he did take intermittent leave.

Canada, who is Black, sued Grossi in Philadelphia federal court in 2019 for interfering with his rights under the federal Family and Medical Leave Act and for race discrimination. He was fired shortly after, with Grossi citing his text messages, and he added retaliation claims to his lawsuit.

U.S. District Judge Jan DuBois threw out the case in 2020, saying the text messages justified Grossi's firing of Canada.

Canada appealed the dismissal of his retaliation claims, arguing that Grossi had accessed his phone to find information that could serve as a pretext to fire him for taking leave and for filing the lawsuit.

The 3rd Circuit on Thursday sided with Canada, saying a jury could conclude that Grossi's reasons for firing Canada were pretextual.

The panel included Circuit Judges Theodore McKee, Luis Felipe Restrepo and Julio Fuentes.

The case is Canada v. Samuel Grossi & Sons Inc, 3rd U.S. Circuit Court of Appeals, No. 20-2747.

For Canada: Timothy Seiler of Karpf Karpf & Cerutti

For Grossi: Brad Kushner of Stevens & Lee

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