Despite being an allegedly “central character” in a racial and disability discrimination suit, a CSX supervisor has been let out of the case—at least for now—because he was not the plaintiff's employer. But in dismissing the case without prejudice, a federal judge has laid out a road map for employees bringing discrimination claims against non-employer supervisors.

U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania granted defendant Jonathan Lowe's motion to dismiss but also granted leave for plaintiff John Fleet to amend his complaint to allege that Lowe was directly involved in his purported discriminatory firing.

Fleet, who is black, claimed he was fired from his job as a railworker because of his race and his diabetes, a condition that caused him to take frequent meal breaks to keep his blood sugar in check. He also required frequent trips to the bathroom.

Fleet alleged that CSX employees began to murmur about others taking too many breaks, creating tension in the workplace. He also claimed he was reprimanded for eating a sandwich during a meeting. Fleet further alleged a supervisor, Ryan Gomez, followed him at work to monitor his activity. Lastly, after confronting an employee about comments made about his breaks, Fleet was told by Lowe to go home early on Dec. 31, 2016, according to Kearney's opinion.

Charges of insubordination and dereliction of duty were ultimately brought against Fleet, and he was subsequently fired in March. Pending charges meant he was not allowed to work since being sent home in December. Fleet sued CSX, and Gomez and Lowe in their individual capacities. Specifically, he claimed Lowe sending him home early constituted discrimination.

“When the supervisors are not his employer, the worker must show the supervisor's personal involvement in the alleged misconduct adversely affected the worker's conditions of employment or otherwise dissuaded proper reporting of the alleged misconduct,” Kearney reasoned in his opinion.

Kearney continued that where, as in Fleet's case, a worker alleges a supervisor was liable for discrimination based on a decision to send the worker home early one day but includes very little in his pleadings, alleging the supervisor played a direct role in his termination, ”we must dismiss the supervisor from the case even if he is described in briefing as a 'central character' unless, with one last chance to amend, the worker can plead facts of personal involvement in good faith.”

Kearney dismissed Fleet's Title VII and Pennsylvania Human Relations Act claims against Lowe with prejudice, noting that Lowe could not be held individually liable under the statute.

Thomas R. Chiavetta of Jones Day in Washington, D.C., represents the defendants and declined to comment on the decision. Fleet's attorney, Samuel C. Wilson of Derek Smith Law Group in Philadelphia, did not respond to a request for comment.