Opinion
Civil Action 19-1133
02-22-2022
DANIEL M. CARR, Plaintiff, v. COMMUNITY COLLEGE OF ALLEGHENY COUNTY and QUINTON BULLOCK, Defendants.
Cathy Bissoon District Judge
REPORT AND RECOMMENDATION RE: ECF NO. 48
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Daniel M. Carr (“Carr”) brings this case against the Community College of Allegheny County (“CCAC”) and CCAC President Quintin Bullock (“Bullock”) (collectively, “Defendants”), arising out of allegations that Defendants unlawfully terminated his employment. Pending before the Court is Defendants' Motion for Summary Judgment. ECF No. 48. For the reasons set forth herein, it is respectfully recommended the Court deny the motion.
II. REPORT
A. FACTUAL BACKGROUND
The factual background is derived from the parties' Joint Statement of Undisputed Facts, ECF No. 47, Defendants' Concise Statement of Material Facts, ECF No. 49, Carr's Response to Defendants' Concise Statement of Material Facts and Additional Concise Statement of Material Facts, ECF No. 65, Defendants' Response to Plaintiff's Additional Concise Statement of Material Facts, ECF No. 69, and the extensive exhibits in the summary judgment record. The evidence of record is viewed in the light most favorable to Carr as the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The parties agreed to only 18 single sentence statements of undisputed facts. ECF No. 47. However, the parties have submitted over 494 statements of facts that are largely disputed. ECF Nos. 49, 65, 69.
1. Carr's Employment
Carr is a Caucasian male, born in 1953, and at all times relevant to this action was over 40 years old. ECF No. 47 ¶ 1, ECF No. 58 ¶ 3. CCAC is a publicly funded institution of higher education in Allegheny County, Pennsylvania, and operated pursuant to the Pennsylvania Public School Code. ECF No. 47 ¶ 4. Beginning in September 1983, Carr was employed by CCAC as an internal auditor, and rose to the position of Director of Internal Audit in September 1986. Id. ¶¶ 2-3. Bullock has been the President of CCAC since March 5, 2014. Id. ¶ 5. As the Director of Internal Audit, Carr reported directly to the CCAC President. ECF No. 50-10 at 5.
Defendants' Concise Statement of Material Facts states that Carr was born in 1953. ECF No. 65 ¶ 19. Carr denies this assertion because, according to counsel, this statement “does not contain any factual averment.” Id. The Court finds denials of obvious facts troubling especially where, as here, the fact at issue is stipulated to by the parties in the Joint Statement of Undisputed Facts. ECF No. 47 ¶ 1.
2. Duties and Responsibilities
Although the parties dispute the full scope of Carr's duties and responsibilities at CCAC, the record reflects that one of his responsibilities was to review faculty travel expense requests to confirm the information provided and to report any discrepancies. ECF No. 65 ¶ 30; ECF No. 50-13 at 42. In February 2018, Carr declined to advance travel expenses requested by a faculty member based on his interpretation of the collective bargaining agreement between CCAC and the American Federation of Teachers (“AFT”). ECF No. 50-13 at 40-41. The AFT union representative filed a grievance against CCAC “because of consistent problems we have experienced with the Auditor and travel expenditures….” Id. at 43. In resolving the grievance, Bullock wrote a memorandum to Carr, dated March 22, 2018, and reiterated an earlier instruction that if discrepancies in travel expenses are identified, Carr is to forward the relevant documents to the campus dean to review before deciding whether to advance or reimburse an expense. Bullock also instructed Carr that he was not to communicate directly with any AFT member, and informed him that failure to follow this procedure would be viewed as insubordination and appropriate action would be taken. Id. at 47.
Plaintiff denies the description of his role “as to materiality”; however, the record establishes that the basis of his underlying EEOC complaint arises out of limitations placed on his performance of this particular job function. ECF No. 65 ¶ 30; see generally, ECF No. 50-13 at 2-48.
Bullock and CCAC previously addressed similar complaints related to Carr's processing of travel expenses in 2014 and 2016. ECF No. 50-13 at 22, 330-32.
Carr responded to Bullock's letters with separate written complaints to the chair of the CCAC Board of Trustees and to a board member. Id. at 29, 48. Both letters were dated March 29, 2018, and were copied to the members of the Board of Trustees. Id. Carr wrote that Bullock's instructions rendered his position as Internal Auditor “moot” and placed him in the position of facing adverse retribution. Id. Carr raised pending discrimination charges that had been lodged against CCAC and Bullock by two female employees, and stated that he was “named as a potential witness.” Id. Carr viewed Bullock's letter as placing him in an “intimidating position” in violation of “Policy/Rules” of the Equal Employment Opportunity Commission (“EEOC”). Id. Carr requested that Bullock's letter be removed from his personnel file. Id.
The Solicitor of the CCAC Board of Trustees, Attorney Andrew Szefi, responded to Carr by letter dated June 21, 2018, and informed him that at the request of the Board of Trustees, a review of his allegations was conducted by external counsel. The review included an interview to permit Carr to explain his position. Id. at 27. Based on the review, the solicitor informed Carr that the Board of Trustees determined that Bullock's directives to Carr did not violate any CCAC policy or the union contract, and there was no evidence that Bullock was aware of Carr's potential involvement in an EEOC proceeding. The solicitor informed Carr that he was to abide by Bullock's instructions as memorialized in the March 22, 2018 letter, and reiterated that the Internal Auditor role did not include the authority to approve or disapprove travel reimbursements or advances, but only to highlight discrepancies for administrative resolution. Id.
3. June 2018 Performance Appraisal
In the week following issuance of the June 21, 2018 letter, Carr received his annual performance evaluation. Id. at 2-5. In the “President's Direct Report Evaluation” for the period July 1, 2017 through June 30, 2018, Carr received an “Overall Rating of Skill Set” of “Needs Improvement.” Id. In the categories of “Communication Skills”, “Leadership”, and “Team Work”, he was rated as “needs improvement” in all 17 applicable skill categories. Id. On June 27, 2018, Carr signed the performance appraisal and wrote that the “overall grading of the review was unwarranted” and that he disagreed with this rating. Id. at 5. Bullock also signed the performance appraisal. Id.
4. First EEOC Charge
On July 9, 2018, Carr filed a Charge of Discrimination with the EEOC and cross-filed with the Pennsylvania Human Relations Commission (“PHRC”). Id. at 24-26. Carr asserted that Bullock's directives in March 2018 and his June 2018 performance appraisal were discriminatory based on his race and age, and otherwise constituted retaliation “for having been identified as a potential witness … in other EEOC matters.” Id. at 24-25. On July 30, 2018, the EEOC issued a “Notice of Charge of Discrimination” to CCAC in connection with Carr's charge. Anthony DiTommaso, CCAC's General Counsel, learned of the charge in early August 2018. ECF No. 47 ¶ 6; ECF No. 69 ¶¶ 273, 274.
5. CCAC's Investigation of Violation of Computer Use Policy by Carr
The parties dispute the timing and purpose of an investigation of Carr's computer usage that followed receipt of the EEOC Notice of Charge.
In early August 2018, DiTommaso retained Precise, Inc. to create a forensic image of Carr's computer. Defendants assert that this action was part of a routine hold to preserve evidence for anticipated litigation. ECF No. 65 ¶¶ 90 - 92; ECF No. 50-13 at 146.
Defendants state that shortly after receiving the EEOC charge, DiTommaso also received a report that Carr had been observed viewing pornographic websites on his work computer. ECF No. 69 ¶ 276. The report came from Elizabeth Johnston, CCAC's Executive Director of Public Relations and Marketing. Id. ECF No. 69 ¶ 277; ECF No. 47 ¶ 9. Johnston apparently received the initial report some months earlier from Carr's co-worker Giovanni Garofalo. Garofalo had an office across from Carr with a direct line of sight to Carr's computer screen. ECF No. 47 ¶ 10, ECF No. 69 ¶¶ 94-96, 281. Garofalo did not define the timing of the views, but stated they were persistent.
Carr fails to respond to CCAC's assertions of fact related to the location of Garofalo's desk, or that he saw and reported his observations to Johnston, other than to assert that CCAC did not interview Garofalo relative to his report until sometime after Carr was suspended and terminated. See ECF No. 65 ¶¶ 93 - 96 (responses).
Defendants state that based on the report from Johnston, DiTommaso requested that the forensic analyst search Carr's hard drive for pornography as well as words or references relevant to his pending EEOC complaint. ECF No. 65 ¶ 92, 111-112. As to pornography, the forensic analyst provided a report that the search found “some of the suspected activity” spanning “a period from 4/2011 up through as recently as Monday afternoon. Most (if not all from what I have seen) of these entries were pulled from ‘Private/Incognito' browsing sessions using Internet Explorer.” ECF No. 65 ¶ 113. The forensic analyst provided a spreadsheet listing “hundreds of pornographic website visits.” Id. ¶ 114. DiTommaso shared the report with Bullock and Kimberly Manigault, CCAC's Vice President of Human Resources. Id. ¶ 135.
Manigault interviewed Carr on September 10, 2018, and questioned him regarding evidence of his accessing pornography. Carr admitted that he accessed pornographic materials on his CCAC computer in the 2011 to 2014 period, but denied any recent activity. ECF No. 50-13 at 286, 293-96, 300; and see, ECF No. 50-10 at 14 (conceding that except for dates in 2018, the spreadsheet reflected pornographic websites he visited on his work computer during the period 2011-2014). Manigault's notes reflect that Carr asserted that he was accessing sites to ensure they “didn't contain information of students or employees of the college.” ECF No. 50-13 at 286. Carr stated that a former board member raised internet pornography concerns and that personnel in the athletic department in the period 2011-2012 also reported current concerns to him. Carr stated that he checked for images of CCAC out of concern for students, and that he sent a list of sites to the IT department to block. Id. Carr also claimed that Jeanne Shader, a former Human Resources Director, asked him to investigate an employee at the Boyce campus who was found to have pornographic material on his computer. Id. at 287, 302. Carr conceded that no one from the Office of the President ever asked him to investigate pornography. At the end of this investigatory meeting, Manigault informed Carr that he was being placed on paid administrative leave, pending further review of the matter, and asked him to turn in his CCAC identification, office keys, and parking pass. Id. at 302.
Carr agrees the evidence shows that the views occurred on 173 separate “sessions during which Mr. Carr would have viewed internet pornography.” ECF No. 69 ¶ 315.
Manigault and DiTommaso submitted an Investigation Report to Bullock on September 19, 2018. Id. at 293. The report reflects that Manigault and DiTommaso interviewed campus personnel who could provide information related to Carr's claims and conducted a review of records, but they located no evidence that Carr's internet activity was work-related. The incidents referred to by Carr occurred in 2002 and March 2011, before his internet browsing history recorded views. A search of Carr's hard drive identified no communication between Carr and athletic department staff regarding any student issue or concern. Id. The investigation also included Carr's assertion that former Board Trustee Ray Sanalski asked him to track access to pornography on CCAC computers. It was learned that Sanalski served on the Board between January 1990 and May 2000 and died in 2001, “ten years prior to the first activity discovered on Mr. Carr's computer.” Id. According to Manigault and DiTommaso, Shader “directly contradicted” Carr's claim that she requested assistance from the internal auditor in connection with any investigation of pornography, and Manigault's review of the 2011 investigation file revealed no connection to Carr or his involvement. Id. Manigault and DiTommaso concluded that Carr violated the Acceptable Use Policy during work hours by using CCAC computers to access pornographic materials over a sustained period and by seeking to conceal the activity by using a private internet browsing function. They found Carr's contention that his searches were work-related not credible, and pointed to Carr's failure to provide any documentation to support his assertions that he was asked or directed to view sites.
Upon receipt of the Investigative Report, Bullock accepted Manigault and DiTommaso's recommendation that Carr's conduct warranted termination of his employment. ECF No. 65 ¶ 227. On September 25, 2018, Manigault met with Carr and informed him that he was suspended without pay for violating CCAC's Acceptable Use Policy, and provided him an offer for a Separation and Release Agreement. Id. ¶¶ 228-31; ECF No. 69 ¶¶ 366-368. Carr declined the offer and was terminated by letter dated October 29, 2018. ECF No. 65 ¶ 232. The letter set forth the results of CCAC's investigation into his internet use and cited his conduct as the basis for termination. ECF No. 50-13 at 8-10; ECF No. 65 ¶ 233.
6. Carr's Investigation of Violation of Computer Use Policy by Other Employees
Carr states that viewing pornographic websites was work-related and appropriate. In the position of Director of Internal Audit, Carr received reports of “actual or perceived issues at the college, of any nature.” ECF No. 69 ¶¶ 266-271. In fulfilling this role, he participated in investigations of violations of CCAC's Acceptable Use of Information Technology Resources Policy related to employees viewing pornography on CCAC-issued computers. Id. ¶¶ 329-334.
Carr acknowledges that he viewed pornography on his work computer in 2011-2014, but claims that he was checking random pornography websites to determine whether the selected database had connections to images or people associated with CCAC. ECF No. 65 ¶¶ 331-335. In searching adult videos, Carr states he was acting on his own volition because no one asked him to undertake an investigation, and he did not record or report his findings, or lack thereof, to any CCAC official. However, he states that when he began his investigation, he notified the then-President of CCAC and Chief Financial Officer of Boyce Campus. ECF No. 65 ¶ 335. Carr states that a former CCAC board member raised pornography concerns with him and that his involvement in personnel investigations related to pornography led him to independently continue to investigate any potential CCAC connection. ECF No. 69 ¶ 322, 330-334.
Three former CCAC employees recalled Carr's involvement in a 2011 FBI investigation of pornography. Jeanne Shader was CCAC's Executive Director of Human Resources from 1986 to 2011. ECF No. 50-7 at 9. Shader testified that Carr was contacted in his role as Internal Auditor to turn over an employee's hard drive to the FBI that was believed to contain illicit pornography. Id. at 14-16. Michael O'Brien served as CCAC's Director of Field Operations from 1996 to 2017, and was responsible for over 4, 000 CCAC-issued personal computers. ECF No. 66-28 at 6. In that capacity, he worked with Carr and the Boyce Campus Dean to retrieve a hard drive incidental to an investigation of an employee caught “surfing porn.” Id. at 7-8. O'Brien believes there may have been four or five porn-related incidents in the 2011-2014 period, although he is not aware that Carr was involved in any incident other than the 2011 investigation. Id. at 10-11, 25. Nancy Jenkins was the Boyce Campus Dean from 2002 through 2020. ECF No. 66-40 at 9, 14. She testified that she was aware of Carr's involvement in two cases that had a connection to pornography, one in 2002 and the 2011 incident. She recalled that Carr and the head of campus security viewed pornography on their computers in relation to one of the investigations. Id. 10-11. Jenkins also testified that Carr was involved because “that's how it was handled. If there was a violation of policy back then, Dan would look into it.” Id. 11-12. It was her understanding that Carr would be the person involved in types of investigations related to CCAC employees accessing internet pornography. Id. at 14. Jenkins added that at some point, investigations of this type were reassigned to the Title IX department and handled by Manigault. Id. at 15-17.
7. Bullock's Discussion of Pending Investigation of Carr
Bullock openly discussed the investigation into Carr's viewing pornography at work. ECF No. 58 ¶ 51; ECF No. 69 ¶ 485. Nancilee Burzachechi overheard Bullock talking to a group of people on CCAC's campus and discussing that Carr was being investigated for viewing pornography in the workplace. According to Burzachechi, Bullock was chuckling, and he induced laughter in his telling of the story to the group of CCAC personnel. Thereafter, it became widely known on the CCAC campus that Carr was either suspended or terminated for viewing pornography in the workplace. Id. ¶¶ 486-492.
8. Second EEOC Charge
On March 6, 2019, Carr filed a second EEOC charge, again alleging race and age discrimination, and adding a second claim for retaliation arising out of the filing of his initial EEOC charge. ECF No. 65 ¶ 6; ECF No. 50-13 at 31-36. In the Charge Letter, Carr alleged that following his initial EEOC charge, CCAC examined his computer use, placed him on administrative leave, and ultimately terminated him after finding evidence of his work-related access to prohibited sites. Id. The charge was cross-filed with the PHRC. On September 5, 2019, the EEOC issued a Notice of Right to Sue as to his second charge. ECF No. 50-13 at 36.
B. PROCEDURAL HISTORY
On September 6, 2019, Carr initiated this action by the filing of an eight count Complaint. ECF No. 1. Shortly thereafter, Carr filed an Amended Complaint. ECF No. 12. The parties conducted extensive discovery. Carr filed a Second Amended Complaint clarifying that he is pursuing his claims pursuant to Title VII, the PHRA, the ADEA, and 42 U.S.C. § 1983. ECF No. 58. CCAC and Bullock filed a Motion for Summary Judgment as to all claims. ECF No. 48. Carr concedes that the evidence does not support his ADEA claims and that he is proceeding only as to his retaliation claims under Title VII and Section 1983 and his “stigma-plus” Fourteenth Amendment claim for injury to his reputation. ECF No. 64 at 23. The Motion for Summary Judgment is now ripe for consideration.
C. STANDARD OF REVIEW
Summary judgment is warranted where, “after adequate time for discovery and upon motion . . . a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The moving party bears the initial burden of demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex, 477 U.S. at 322; see also Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004); Fed.R.Civ.P. 56(a).
“[W]hen the moving party has carried its burden … its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal quotations omitted).
In deciding a summary judgment motion, a court must view the facts in the light most favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts in favor of the nonmoving party. Matreale v. N.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). “This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues.” Stewart v. Rutgers, The State Univ., 120 F.3d 426, 431 (3d Cir. 1997).
D. DISCUSSION
1. Retaliation (Title VII and Section 1983)
Carr asserts retaliation claims against Bullock and CCAC for violating 42 U.S.C. § 1983 in Count II of the Second Amended Complaint, and against CCAC only for violating Title VII of the Civil Rights Act of 1964 in Court III of the Second Amended Complaint. ECF No. 58 ¶¶ 52-55.
Title VII prohibits an employer from retaliating against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Section 1983 prohibits persons, “under color of any statute, ordinance, regulation, custom, or usage, ” to deprive another of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. The “analysis of employment discrimination claims under § 1983 mirrors the Title VII analysis.” Ford v. Cty. of Hudson, 729 Fed.Appx. 188, 195 (3d Cir. 2018) (collecting cases). Thus, Carr's claims under Title VII and § 1983 will be examined together and, in the absence of direct evidence of retaliation, will be analyzed under the familiar burden shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Young v. City of Philadelphia Police Dep't, 651 Fed.Appx. 90, 95 (3d Cir. 2016) (citing Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006)).
Under this framework, Carr must establish a prima facie retaliation claim by showing that: (1) he engaged in activity protected by Title VII; (2) his employer took an adverse employment action against him; and (3) there was a causal connection between his participation in the protected activity and the adverse employment action. Moore, 461 F.3d at 340-41. If Carr establishes a prima facie claim of retaliation, then the burden shifts to his employer to provide a legitimate non-retaliatory reason for its conduct. Id. at 342. If the employer does so, the burden shifts back to Carr “to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.” Id. “To survive a motion for summary judgment in the employer's favor, a plaintiff must produce some evidence from which a jury could reasonably reach these conclusions.” Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Therefore, the Court's analysis begins with Defendants' assertion that Carr fails to present evidence sufficient to establish a prima facie retaliation claim.
a. Prima Facie Claim
Defendants concede: (1) that Carr engaged in protected activity by filing his first EEOC charge on July 10, 2018, and (2) that his termination was an adverse employment action. ECF No. 51 at 9. Defendants contend, however, that Carr fails to present evidence sufficient to establish a causal connection between his protected activity and his termination. Id.
“To establish causation at the prima facie stage, a plaintiff must introduce evidence about the ‘scope and nature of conduct and circumstances that could support the inference' of a causal connection between the protected activity and adverse action. At this stage, ‘a plaintiff may rely on a “broad array of evidence” to demonstrate a causal link between [the] protected activity and the adverse action taken.'” Young, 651 Fed.Appx. at 95-6 (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000), and Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). The array of evidence may include close temporal proximity between the adverse action and the protected activity, that may be “unusually suggestive” of a causal connection. Young, 651 Fed.Appx. at 96 (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)). Additionally, a plaintiff can “rely on evidence such as ‘intervening antagonism or retaliatory animus, inconsistencies in the employer's articulated reasons for terminating the employee, or any other evidence in the record sufficient to support the inference of retaliatory animus.'” Id. “[A] plaintiff alleging retaliation has a lesser causal burden at the prima facie stage.” Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 259 (3d Cir. 2017) (citing Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008) (“[T]he prima facie requirement for making a Title VII claim is not onerous and poses a burden easily met.”)(internal quotation marks and citation omitted)).
Defendants assert that the record fails to establish a causal connection through a pattern of antagonism or through the requisite temporal proximity, whether measured from March 2018 when Carr first complained of retaliatory animus or from the date that CCAC learned of the July 9, 2018 EEOC charge. Defendants also contend that the record does not support an inference of retaliatory animus given the union grievance issue and Carr's gross misconduct in admittedly viewing pornography at work. ECF No. 51 at 10-12.
Upon review of the record, the Court finds that Carr meets the relatively light burden of establishing a prima facie claim. The United States Court of Appeals for the Third Circuit has held that on its own, “an intervening temporal period of two days may raise the inference of causation but that a period of two months cannot.” Carvalho-Grevious, 851 F.3d at 261 n.8. As to causal connection between participation in a protected activity and an adverse employment action, Carr points not only to timing of notice of his termination within five to six weeks of CCAC's receipt of the Notice of Charge in early August 2018, but also to the retaliatory animus evidenced by the allegedly fabricated reasons for the pornography investigation and his termination. Carr also directs the Court to evidence that contemporaneous decisions were made to terminate all employees with pending claims of discrimination. ECF No. 64 n. 4. Against the evidence of other CCAC administrators acknowledging Carr's participation in past internet pornography investigations, coupled with the timing of the three EEOC-related terminations, and drawing all reasonable inferences in favor of Carr as the nonmoving party, “a reasonable factfinder could conclude that [his] engagement in a protected activity was the likely reason for the adverse employment action at the prima facie first stage….” Id. at 259 (emphasis in original). As such, Carr has established a prima facie case of retaliation.
Carr asserts that the decision to terminate him coincided nearly to the day with a decision to terminate two other employees who initiated EEOC claims against Bullock and CCAC. ECF No. 64 at 9 (citing ECF No. 65 ¶¶ 355-367).
b. Employer's Legitimate Nondiscriminatory Reason
Because Carr presents a prima facie retaliation claim, under the burden-shifting framework, Defendants must articulate a legitimate non-retaliatory reason for Carr's termination. Moore, 461 F.3d at 342. Defendants have a “relatively light ” burden that can be satisfied by articulating “any legitimate reason” for the adverse action, even if that reason did not “actually motivate[ ]” it. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997)). Defendants readily meet this burden. Carr admitted he viewed pornography on his CCAC-issued computer and after investigation, CCAC determined that Carr's reasons for persistent views were not credible. As a result, Defendants have presented a legitimate nondiscriminatory reason for the termination of Carr's employment.
c. Pretext
Because Defendants satisfy the employer's burden of production, to avoid summary judgment, Carr must present evidence that “[he] would not have suffered an adverse employment action ‘but for' [his] protected activity.” Young 651 Fed.Appx. at 96 (quoting Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013)). To satisfy his burden, Carr “cannot simply show that the employer's decision was wrong or mistaken” but rather “must demonstrate such ‘weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reason for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons.'” Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 198-99 (3d Cir. 2015) (quoting Ross v. Gilhuly, 755 F.3d 185, 194 n. 13 (3d Cir. 2014) (alteration in original)).
To that end, Carr relies on the evidence set forth in support of his satisfaction of the causation prong of the prima facie case, as well as several other facts related to what he asserts are flaws in CCAC's investigation, that could lead a reasonable jury to find that he established pretext and preclude the entry of summary judgment. ECF No. 64 at 7-14. It is well-recognized, however, “that the fact that [an employer] conducted an inadequate investigation of employee misconduct or failed to interview an employee during an internal investigation without more, is not sufficient to raise an inference of [pretext].” Knox v. PPG Industries, Inc., No. 15-1434, 2018 WL 1334828, at *5 (W.D. Pa. Mar. 15, 2018)(emphasis in original and quoting DeCecco v. UPMC, 3 F.Supp.3d 337, 381-82 (W.D. Pa. 2014)).
Among the discrepancies that Carr contends are evident in the record, he points to the lack of documentation to establish that Garofalo and Johnston's reports of his internet activity coincided with CCAC's receipt of the Notice of EEOC Charge to explain the sudden and simultaneous initiation of an investigation. ECF No. 64 at 7-10; ECF No. 51 at 15. Carr posits that this evidentiary gap points to the implausibility of CCAC's rationale for termination given that his self-described work-related activity occurred in 2011 to 2014, and yet Garofalo testified that he reported his observations to Johnston in the Spring of 2018, and Johnston orally reported this information to Bullock within a day or two of her discussion with Garofalo, who in turn “immediately” communicated with DiTommaso. ECF No. 69 ¶ 441, 449-453; ECF No. 65 ¶ 99, 100, 109. Thus, the timing of the report in the Spring of 2018 conflicts with DiTommaso's statement that he initially retained a forensic computer analyst in mid-August 2018 to preserve Carr's hard drive related only for information related to the EEOC charge, and later expanded the search of the hard drive for pornography when the allegations of workplace misconduct were first reported. Carr also presents the testimony of the forensic analyst, who testified he was retained in early August specifically to look for inappropriate content in Carr's internet activity history and not, as contended by DiTommaso, to conduct a routine litigation hold for evidence relevant to the EEOC charge. ECF No. 65 ¶ 283. Thus, Carr posits that CCAC's version of the timeline and reasons for the computer search are not believable, and that DiTommaso requested a computer search for activity he knew would be present based on Carr's known participation in earlier investigations. The Court notes that Defendants dispute all of Carr's conclusions based on conflicting evidence of timing and the scope and purpose of the forensic analysis.
Carr also raises the broad scope of his role as Director of Internal Audit and the testimony of a CCAC administrator who identified him as the person at CCAC who would be involved investigations related to internet pornography, as well as the testimony of two other administrators who were aware of Carr's direct involvement in the 2011 investigation. ECF No. 64 at 11. ECF No. 69 ¶¶ 381-82. One of the administrators testified that Carr and another CCAC official viewed an employee's illicit activity on their computers as part of the investigation. Id. Defendants seek to limit the breadth of this testimony to a single 2011 incident based on the absence of any evidence of later investigations, and note that the website at issue in the 2011 case is not one identified in the search of Carr's inappropriate activity for the period 2011 to 2014. Id. This evidence again raises issues of fact and credibility that are not properly weighed by the Court at this stage of the litigation.
Finally, Carr presents the anomalous evidence that on or just before the day the decision was made to terminate him, Bullock and CCAC also made the decision to terminate the positions held by two CCAC employees who also had pending EEOC Charges against Defendants. ECF No. 69 ¶¶ 294 - 297, 351, 355 - 363. CCAC contends that to the contrary, the two other positions were slotted for removal pursuant to a streamlining of CCAC administrative staff, and one of the individuals voluntarily retired. Carr responds that this rationale is implausible given (1) the timing of EEOC Right to Sue letters for both employees just weeks before the sudden decision to eliminate their positions, (2) a meeting between the brand new CCAC Provost and Bullock just three days before the Provost began drafting the supporting documentation to terminate the positions held by both employees, and (3) the Provost's independent conclusion that at least one of the employees was valuable and, under typical circumstances, would have been retained in another position. Id. The sum of this evidence viewed in the light most favorable to Carr as the non-moving party is sufficient, by a slim margin, to permit a reasonable juror to conclude that the reason put forth for Carr's termination is a post hoc fabrication to provide cover for terminating him in retaliation for his pursuit of an EEOC charge. Because there are genuine disputes as to material facts, it is recommended that the Court deny the Motion for Summary Judgment as to Carr's Title VII and Section 1983 retaliation claims.
2. Monell
Defendants seek the entry of summary judgment as to Carr's Section 1983 retaliation claim because Carr has not alleged or demonstrated that he was subjected to unlawful retaliation pursuant to an official policy or custom of CCAC. ECF No. 51 at 5. “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Carr filed his Second Amended Complaint to include a Section 1983 claim with the initial consent of Defendants and leave of Court. Defendants' later opposition was based on Plaintiff's counsel's extended and unexplained delay in filing the Second Amended Complaint. The Court considered the delay, but granted leave because of the lack of prejudice given Defendants' prior consent and knowledge of the claim. ECF Nos. 24, 56, 58.
Defendants do not dispute their status as state actors, but contend that more is required to establish liability. Pursuant to Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), a plaintiff must demonstrate that the defendant actor violated the plaintiff's rights through the execution of a government's policy or custom. ECF No. 51 at 5. Defendants argue that Carr was terminated “for his violation of CCAC's Acceptable Use of Information Technology Resources Policy (Board Policy VII.01) and the standards of conduct set forth in ... the CCAC employee manual.” Id. The policy was adopted by the CCAC Board of Trustees, not Bullock, and the Board acted as the final policy-making authority. Carr does not allege that the policy has been applied inconsistently based on an improper basis. Consequently, according to Defendants, neither Bullock nor CCAC violated Carr's rights under federal law when he was terminated pursuant to the nondiscriminatory Acceptable Use Policy. Id. (citing Oaks v. City of Philadelphia, 59 Fed.Appx. 502, 503-04 (3d Cir. 2003)(where plaintiff is terminated in accordance with police department's nondiscriminatory domestic violence policy and fails to present evidence that it was not applied uniformly across racial lines, plaintiff cannot establish that a city official with final policy making authority authorized termination in violation of §§ 1981 or 1983)).
Carr responds that Oaks does not apply for two reasons. First, Carr challenges both the application of the Acceptable Use Policy and the conclusion that he violated it, given that his internet activity was work-related and within his authority as the Director of Internal Audit. ECF No. 64 at 15. Second, Bullock concedes he was the sole and final decisionmaker for personnel decisions and Carr contends that Bullock's conduct in that capacity binds CCAC. Id. (citing ECF No. 69 ¶ 391; City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)(plurality)). Thus, Carr argues that when Bullock terminated him in retaliation for protected activity by complaining of race discrimination at CCAC, Bullock violated Carr's federal rights under Section 1983 on behalf of CCAC. ECF No. 64 at 17-18; ECF No. 58 (Count II).
Upon review, the Court finds that this issue presents several genuine issues of material fact that must be resolved by a jury. The United States Supreme Court has stated, “it is plain that municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986); see also Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996); Bartholomew v. Fischl, 782 F.2d 1148, 1154 (3d Cir.1986) (“[I]t is possible that a ‘single instance' of misconduct by a policymaking city official could provide the basis for an inference that a municipal policy existed.”). As indicated, Carr alleges that Bullock and CCAC, a publicly sponsored educational entity, violated his rights when Bullock made the decision to terminate Carr's employment in retaliation for the filing of his EEOC Charge. The parties do not appear to dispute Bullock's authority to terminate employees, or that while acting on behalf of CCAC, Bullock directed the termination of Carr's employment. The single decision by Bullock as the relevant a policymaker to terminate Carr on an improper basis, if established at trial, amounts to “an act of official government policy.” Under these circumstances, the Court finds that Carr has provided evidence sufficient to permit a reasonable juror to conclude that Bullock's deliberate decision to terminate the plaintiff qualifies as policy for determining Monell liability and, if retaliatory, that he and CCAC violated Carr's rights. As a result, it is recommended that the Motion for Summary Judgment be denied on this ground.
3. Fourteenth Amendment Liberty Interest - Reputation
In Count I of the Second Amended Complaint, Carr alleges that Bullock defamed Carr “in the course of falsely stating to others that Mr. Carr was being terminating for accessing internet pornography at work, thus tarnishing the good-standing reputation that Mr. Carr earned over his 35-year career with CCAC.” ECF No. 58 ¶ 52. Carr asserts that this conduct by Bullock constituted a “stigma-plus” violation of the Fourteenth Amendment pursuant to Section 1983. Id. Carr also alleges that when CCAC terminated him on October 29, 2018, it did so “without a name-clearing hearing, ” despite his multiple requests. Id. ¶¶ 45, 46.
Defendants seek the entry of summary judgment as to Carr's claim for damage to his reputation in violation of his Fourteenth Amendment rights because “[t]here is no evidence that Dr. Bullock (or any other CCAC representative) made a stigmatizing statement to anyone, let alone that he publicized a false statement.” ECF No. 51 at 2. Carr responds that statements related to his unauthorized internet activity are false and, given the subject matter, are defamatory. Carr also provides the Affidavit of Nancilee Burzachechi who states that she overheard Bullock openly telling a group of at least a half-dozen individuals on CCAC's campus that Carr was being investigated for viewing internet pornography in the workplace. Thereafter, she recalled several conversations with CCAC employees who told her that Carr was either being suspended or terminated for viewing pornography at work. ECF No. 64 at 20-21; ECF No. 66-15 ¶¶ 12-16. Carr contends that under these circumstances, he presents sufficient evidence of harm to his personal and professional reputation at the hands of a state actor to sustain his claim. He also and asserts he was denied a name-clearing hearing. Id., ECF No. 58 ¶¶ 45-48.
The Due Process Clause of the Fourteenth Amendment provides that a state shall not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The substantive component of due process “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them, '” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331(1986)), and applies to “conduct intended to injure in some way unjustifiable by any government interest.” Cty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). However, “the due process clause is not a surrogate for local tort law or state statutory and administrative remedies.” Morrow v. Balaski, 719 F.3d 160, 176 (3d Cir. 2013). Whether a tort claim for defamation rises to a cognizable violation therefore requires more than injury to reputation.
The Third Circuit has explained that “to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to [her] reputation plus deprivation of some additional right or interest.” Hill v. Borough of Kutzdown, 455 F.3d 225, 236 (3d Cir. 2006) (emphasis in original) (citing Paul v. Davis, 424 U.S. 693, 701 (1976)). See also Clark v. Twp. of Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul, 424 U.S. at 701-120) (“defamation is actionable under 42 U.S.C. § 1983 only if it occurs in the course of or is accompanied by a change or extinguishment of a right or status guaranteed by the state law of the Constitution.”). “To satisfy the ‘stigma' prong ... the purportedly stigmatizing statement(s)” must be “public[ ]” and “false.” Dondero v. Lower Milford Twp., 5 F.4th 355, 360 (3d Cir. 2021) (quoting Hill, 455 F.3d at 236).
In this case, it is not disputed that the alleged defamatory statements by Bullock were accompanied by Carr's termination, and thus the stigma-plus requirement is met. That said, Carr must also present sufficient evidence that the statements were made publicly and were stigmatizing based on their falsity. As to the public nature of the statements, Carr has presented the affidavit of Nancilee Burzachechi, relative to Bullock discussing and laughing about Carr being under investigation for viewing internet pornography in the CCAC workplace. Defendants complain that the “last-minute affidavit” was prepared by “an individual represented by Plaintiff's counsel in her case against CCAC, with no independent evidentiary support.” ECF No. 71 at 4. These objections may challenge the credibility of the witness's statements, and are therefore inappropriate for judicial consideration at this stage of the litigation. Anderson, 477 U.S. at 249 (In deciding a motion for summary judgment, the court's function is not to weigh the evidence and determine the truth of the matter. Rather, the court must simply “determine whether there is a genuine issue for trial.”).
Defendants' second objection relates to the truth or falsity of the alleged defamatory remarks and presents issues of fact for the reasons set forth in the Report and Recommendation related to Carr's underlying retaliation claims. Accordingly, it is recommended that the Court deny the Motion for Summary Judgment as to Carr's “stigma-plus” Fourteenth Amendment claim for injury to his reputation.
III. CONCLUSION
Despite any misgivings over the nature of Carr's workplace activity, the Court finds genuine disputes of material fact related to the “real reason” for Carr's termination. In particular, Carr presents evidence of the nearly simultaneous termination or job elimination of three employees with pending EEOC charges against Bullock; the testimony of CCAC administrators in the relevant period that Carr was the “go to” person for internet pornography investigations and therefore actually was involved in a small number of investigations; the timing and cessation of Carr's challenged activity in 2011 to 2014; and the timing of the belated report of Carr's activity to CCAC administrators and the apparent delay in initiating the investigation to coincide with receipt of the EEOC Charge. Under these circumstances, construing the evidence in favor of Carr as the nonmoving party, the Court cannot conclude that a reasonable juror would reject Carr's contention that the EEOC Charge was the “real reason” for his termination. Thus, it is recommended that the Court deny Defendants' Motion for Summary Judgment as to Carr's Title VII and § 1983 retaliation claims and as to his “stigma plus” Fourteenth Amendment claim for harm to his reputation.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Honorable Cathy S. Bissoon United States District Judge