Opinion
Civil Action No. 04-270.
November 16, 2004
ORDER
AND NOW, this 16th day of November, 2004, upon consideration of defendants' motion for summary judgment and accompanying memorandum (docket entries 25 27), plaintiff's response (docket entries 32 33), defendants' statement of undisputed or indisputable facts (docket entries 26 30), plaintiff's response (docket entry # 34), and the multiple exhibits submitted by each party, and the Court finding that:
(a) Russ-Tobias is a former employee of the Pennsylvania Board of Probation and Parole ("Board"), and in this action she alleges that the Board, District Director Willie E. Jones, Jr., and two Office of Professional Responsibility investigators — Frank Margerum and Michael Moyer — engaged in various forms of racial discrimination and retaliation that culminated in her termination in 2002;
(b) We here consider defendants' motion for summary judgment;
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In resolving a motion for summary judgment, the Court must draw all reasonable inferences in the nonmovant's favor and determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where, as here, the nonmoving party bears the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if admissible, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the nonmoving party must go beyond its pleadings and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In resolving a motion for summary judgment, the Court must draw all reasonable inferences in the nonmovant's favor and determine whether "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where, as here, the nonmoving party bears the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if admissible, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the nonmoving party must go beyond its pleadings and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
(c) Plaintiff's complaint contains six counts, and we shall deny summary judgment on counts one, two, and four and grant it on counts three, five, and six;
(d) In counts one, two, and four, plaintiff alleges purposeful racial discrimination under Title VII, the Pennsylvania Human Relations Act (the "PHRA"), and 42 U.S.C. § 1981;
(e) Because courts in our Circuit use the same analytical approach to consider employment discrimination claims brought under Title VII, the PHRA, and § 1981, see Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999); Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); Momah v. Albert Einstein Med. Ctr., 978 F.Supp. 621, 633 (E.D.Pa. 1997), we consider these three claims together;
(f) Under the three-step McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973) burden-shifting regime, plaintiff must first make a prima facie showing of discrimination by demonstrating that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she was subjected to an adverse employment action; and (4) the circumstances give rise to an inference of unlawful discrimination, see Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003);
(g) When the plaintiff makes the prima facie showing, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action, Jones, 198 F.3d at 410;
At this stage, the defendant bears the burden of production, while the plaintiff continues to bear the burden of persuasion. Keller v. Oriz Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).
(h) Finally, should the defendant carry this burden, the plaintiff must "then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination," id.;
(i) Beginning with the first step, highlighting that plaintiff's initial burden is "not intended to be onerous," Defs.' Mem. at 9 (quotingSempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir. 1995)), defendants themselves underscore that, "[w]ith respect to her termination, plaintiff can present evidence on each of the prima facie elements," Defs.' Mem. at 8, elaborating:
She is a member of a protected class, in that she is African American (Complaint, ¶ 6 and answer thereto); she was qualified to work as a parole agent, at least in the sense that her formal performance evaluations were satisfactory and her immediate supervisor found her work acceptable (See, e.g., Defendants' Statement of Undisputed or Indisputable Facts . . . ¶ 70); she was terminated; and, to the extent that Dana Roth, a white parole agent, was not terminated for allegedly similar performance lapses, plaintiff has a basis for arguing that her termination was discriminatory.
Defs.' Mem. at 8-9;
(j) Carefully reflecting on the record in light of the "not onerous" standard courts apply at the first McDonnell-Douglas step, see Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) andSempier, 45 F.3d at 728, we concur and turn to the second step;
(k) The Board articulated six legitimate, nondiscriminatory reasons for terminating plaintiff:
1. You failed to supervise offenders as required by the Board's Offender Supervision Continuum.
2. You falsified your Daily Activity Reports (PBPP145).
3. You misrepresented facts on reports submitted.
4. You did not properly obtain required urine specimens from offenders on your caseload.
5. You utilized the Commonwealth vehicle assigned to you for personal business.
6. You simultaneously maintained a valid Pennsylvania and New Jersey driver's license in violation of Pennsylvania's law.
Pl.'s Dep., Ex. 20; see also Marcinko Decl. at ¶ 19, 20; Scicchitano Dep. at 74-76;
(1) Thus, this case, like "most cases turn[s] on the third stage" of the McDonnell Douglas analysis, Jones, 198 F.3d at 410;
(m) "At this point, the court focuses on whether there is sufficient evidence from which a jury could conclude that the purported reasons for defendant's adverse employment actions were in actuality a pretext for intentional race discrimination," id. at 412;
(n) To show pretext, a plaintiff may point to evidence from which a jury could either "(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action," id. at 413 (citing Fuentes v. Perski, 32 F.3d 759, 764 (3d Cir. 1994));
(o) As to the second prong of the pretext inquiry, the plaintiff must "point to evidence in the record which `allows the fact finder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action,'" Jones, 198 F.3d at 413 (quoting Fuentes, 32 F.3d at 764);
(p) Our Court of Appeals holds that a plaintiff may make this showing by, inter alia, demonstrating that "the employer has previously discriminated against other persons within the plaintiff's protected class," id. (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998));
(q) Plaintiff makes this showing;
(r) Defendants' suggest that courts may not conclude that the employer previously discriminated against other persons in the plaintiff's class unless there was a previous "finding" to that effect, Defs.'s Mem. at 18;
(s) We disagree because, at the summary judgment stage, a court should draw all inferences in favor of the non-moving party, Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986), and defendants cite no authority that imposes such a rigid requirement, cf. Harry v. City of Philadelphia, Civ. No. 03-661, 2004 WL 1387319, at *7 (E.D.Pa. June 18, 2004) (finding previous discrimination based in part on "testimony from another individual in plaintiff's protected class that defendants discriminated against her");
(t) Even if there were such a requirement, defendants' argument would fail because independent fact finders have previously made explicit "findings" of discrimination against the Board, see Pl.'s Answer to Def.'s Statement of Undisputed or Indisputable Facts, Ex. A, Ex. B, Ex. J, at 2; see also Joseph L. Scott v. Pennsylvania Bd. of Prob. and Parole, Appeal No. 19589, Commonwealth of Pennsylvania State Civil Serv. Comm'n, Nov. 23, 1999, Adjudication, at 11 (docket entry # 37) ("The appointing authority has not persuasively rebutted the appellant's claims of bias and preselection in the hiring procedures that resulted in the appointment of DiBernardo. We believe that the appellant has established by a preponderance of the evidence that his nonselection was based upon factors unrelated to his merit and qualifications as a long-time appointing authority employee. Accordingly we enter the following CONCLUSION OF LAW: The appellant has presented evidence establishing discrimination violative of Section 905.1 of the Civil Service Act, as amended.");
(u) In 1993, for example, the Pennsylvania Governor's Office of Administration investigated charges of race discrimination by the Board — after the same Office directed the Board to root out discriminatory practices in 1988, see Ex. A — and concluded, "The continuance of the discriminatory practices against the nine [1988] complainants rose to the level of retaliation. . . . Based on the facts in this case, a reasonable person could conclude that retaliation did occur, substantiating a finding of probable cause," Ex. B, at 2; see also Ex. J, at 2 (Williams v. Penn. Bd. of Prob. and Parole, C.A. No. 93-5696 (E.D.Pa. Oct. 12, 1994), denying a parole officer's motion for a preliminary injunction but noted, "I also concur with Judge Angell that . . . plaintiffs have demonstrated that they will probably prevail at trial in regard to at least some of their non-First Amendment based discrimination claims") (O'Neill, J.) (emphasis added);
(v) Moreover, contrary to defendants' claim that there is "no evidence" of a previous pattern of discrimination against African Americans by the Board, evidence suggests otherwise, most notably the affidavits of Ronald Zappan (Ex. C), Henry Williams (Ex. D), Howrhu Self (Ex. E), Henry Watkins (Ex. F), James Burton (Ex. G), Darryl Rankin (Ex. H), and Victoria Roadcloud (Ex. I), in which each affiant averred that the Board discriminated on the basis of race;
(w) Thus, we shall deny defendants' motion as to counts one, two, and four;
(x) Because individual employees cannot be held liable under Title VII, however, we shall dismiss count two as to defendants Jones, Margerum, and Moyer, see Kachmar v. SunGuard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir. 1997); Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996);
(y) Because individual defendants cannot be held liable for discrimination under the PHRA, we shall also dismiss count one as to defendants Jones, Margerum, and Moyer, see Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996); Clarke v. Whitney, 907 F.Supp. 893, 895 (E.D.Pa. 1995); Clark v. Commonwealth of Pennsylvania, 885 F.Supp. 694, 714 (E.D.Pa. 1995);
(z) As for defendant Jones, while our Court of Appeals has suggested that 43 Pa.C.S.A. § 955(e) permits claims against supervisory employees for aiding and abetting an employer's discriminatory practices, seeDici, 91 F.3d at 552, plaintiff's July 10, 2002 administrative complaint to the Pennsylvania Human Relations Commission (the "PHRC") alleged a violation, by the Board only, of 43 Pa.C.S.A. § 955(a), with no reference to the aiding-and-abetting provision;
(aa) Thus, we decline to grant plaintiff carte blanche to expand her claim at this late stage;
(bb) In count three, plaintiff alleges that defendants retaliated against her for her "protected opposition to defendants' discriminatory practices," Compl. at ¶ 43;
(cc) Count three fails because plaintiff never exhausted her administrative remedies;
(dd) Before a plaintiff may sue in federal court under Title VII, he or she must exhaust administrative remedies by filing a charge with the appropriate agency, Trevino-Barton v. Pittsburgh Nat'l Bank, 919 F.2d 874, 878-79 (3d Cir. 1990);
(ee) As our Court of Appeals commented, these steps are "designed to correct discrimination through administrative conciliation and persuasion if possible, rather than by formal court action," Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976);
(ff) The limits of the district court action are "defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. . . ." id. at 398-99;
(gg) When a plaintiff neglects to claim retaliation before the EEOC, the district court may hear the claim only when the acts alleged in the subsequent Title VII suit are "fairly within the scope of the prior [administrative] complaint, or the investigation arising therefrom,"Spindler v. Southeastern Pennsylvania Transportation Authority, Civ. No. 02-1184, 2002 WL 31059196, at *2 (3d Cir. Sept. 13, 2002) (quoting Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996));
(hh) Here, plaintiff's PHRC charge contains no allegations that we could remotely construe as retaliatory, see Defs.' Mot, Ex. S;
Pursuant to 29 C.F.R. §§ 1601.70(a) and 1601.74, plaintiff filed her administrative complaint with the PHRC and cross-filed it with the EEOC.
(ii) Her complaint is straightforward and had a single "count," "Race — Discrimination," an alleged violation of Pennsylvania's anti-discrimination statute, 43 Pa.C.S.A. 955(a) (paralleling Title VII's version), 42 U.S.C. § 2000e-2(a)(1)), id.;
(jj) The word "retaliation" appears nowhere in the charge, and the contents — construed in the light most favorable to plaintiff — do not intimate it;
(kk) Furthermore, when plaintiff filed her PHRC charge, on July 10, 2002, everything she now challenges had occurred;
(ll) Therefore, plaintiff never satisfied Title VII's exhaustion requirement, and we grant summary judgment on count three, see Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996); Spindler v. Southeastern Pennsylvania Transportation Authority, Civ. No. 02-1184, 2002 WL 31059196, at *2-3 (3d Cir. Sept. 13, 2002); Schouten v. CSX Transportation, Inc., 58 F.Supp.2d 614, 617 (E.D.Pa. 1999); Burke v. ATT Technical Services Co., 55 F.Supp.2d 432, 437 n. 5 (E.D.Va. 1999); Watson v. Southeastern Pa. Transportation Authority, Civ. No. 96-1002, 1997 WL 560181, at *6 (E.D.Pa. Aug. 28, 1997);
Although plaintiff never cites them, we nevertheless note that the present situation bears little resemblance to Anjelino v. New York Times, 200 F.3d 73 (3d Cir. 1999) and Hicks v. ABT Assocs. Inc., 572 F.2d 960 (3d Cir. 1978).
In Anjelino, the district court dismissed plaintiffs' sexual harassment claims because it concluded that references in their administrative complaint to an "abusive atmosphere" were too vague to notify the EEOC about their sexual harassment claims. 200 F.3d at 93. Our Court of Appeals reversed, reasoning that "appellants' notification of their charges was sufficient because the terms `abusive,' `hostile,' `environment,' and `atmosphere' have been used interchangeably to describe sexual harassment," and the "interchangeability convinces us that the harassment charge was within the scope of the complaints before the EEOC." Id. at 94-95. Unlike the facts in Anjelino, at no time during the PHRC's investigation did plaintiff "make even a vague or oblique reference" to retaliation, let alone "include language that could reasonably be considered interchangeable with such a charge." Spindler v. Southeastern Pennsylvania Transportation Authority, Civ. No. 02-1184, 2002 WL 31059196, at *3 (3d Cir. Sept. 13, 2002) (distinguishingAnjelino).
Neither is this case analogous to Hicks. In Hicks, our Court of Appeals concluded that a district court could hear a sex discrimination claim absent from the administrative complaint because it was unclear whether the EEOC had improperly refused to amend the complaint. 572 F.2d at 964. Here, unlike Hicks, there is "absolutely no evidence of any agency impropriety." Spindler, 2002 WL 31059196, at *3 (distinguishing Hicks).
(mm) We now turn to count five of the complaint, plaintiff's First Amendment claim;
(nn) Courts employ a three step analysis when balancing the First Amendment rights of public employees against competing interests of their employers, Connick v. Myers, 461 U.S. 138, 146, 150-51 (1983); Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003);
(oo) First, a plaintiff must establish that the activity in question was protected: "If the speech in question is purely personal, it does not fall under the protective umbrella of the First Amendment and public employers are therefore not limited by that guarantee in responding to disruption caused by the expression," Brennan, 350 F.3d at 412;
If the employee satisfies this first step, he must then show that "his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees." Brennan, 350 F.3d at 413. Then, in the third step, the employee must show that "the protected activity was a substantial or motivating factor in the alleged retaliatory action." Id. at 414. Nevertheless, the employer can avoid liability by showing that the challenged action would have occurred irrespective of the employee's protected speech. Id.
(pp) To determine whether speech is personal or public, courts weigh its public value:
A public employee's speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the community. Accordingly, speech may involve a matter of public concern if it attempts to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials. This means that public speech cannot constitute merely personal grievances. This does not, however, suggest that speech which is motivated by private concern can never qualify as protected speech. It clearly can if it addresses a matter that concerns the public as well as the speaker.Brennan, 350 F.3d at 412 (internal citations and alterations omitted);
Determining whether a public employee's speech is a matter of public or private concern is a question of law for the court.Brennan, 350 F.3d at 413.
(qq) In her memorandum opposing summary judgment, plaintiff never identifies the allegedly protected speech upon which she rests her First Amendment claim, and, even considering her deposition testimony, the basis for this claim is unclear to us;
(rr) When she found out that the Board intended to transfer her to CCC # 3, plaintiff did lodge a personal grievance with defendant Jones, Pl.'s Dep. at 136, 142-45;
(ss) At her deposition, plaintiff articulated multiple reasons why she did not want to be transferred: She did not like being "drafted;" she enjoyed working at CCC # 1; she did not want to accept Ms. Roth's huge caseload, which she heard was in disarray; she did not want to work under Robin Taylor; and she did not want to leave her supervisor, Bonnie Ferguson, shortstaffed, Pl.'s Dep. at 137, 140-42, 145-47, and 151-55;
(tt) Plaintiff presumably voiced these concerns to Jones when she complained about her impending transfer;
(uu) But these concerns in no way relate to "any matter of political, social or other concern to the community," Brennan, 350 F.3d at 412;
Also, to the extent plaintiff's motive was relevant, the concerns also show that plaintiff acted solely out of self interest. See Brennan, 350 F.3d at 413 (noting that the "the speaker's motive" is "often a relevant part of the context of the speech").
(vv) In her deposition, plaintiff mentioned that, once, she called LeDelle Ingram, the Board's Equal Employment Specialist, Pl.'s Dep. at 264;
(ww) Plaintiff testified that she "can't remember the specifics of the conversation, but I think I explained to her what was going on. . . . I think it was about the transfer, but I can't be a hundred percent on that," id. at 263-64;
(xx) Plaintiff also testified that she did not "expect anything further to happen after that conversation," id.;
(yy) Viewing this vague testimony in the light most favorable to plaintiff, we cannot conclude that this telephone conversation had to do with a matter of public concern;
(zz) Even assuming it was, however, plaintiff has furnished no evidence that the Board or defendants Margerum, Moyer, or Jones ever knew about it;
(aaa) Thus, plaintiff's claim would fail under the final step of the test, which requires a plaintiff to show that her speech was a substantial or motivating factor in triggering the employer's actions,Brennan, 350 F.3d at 414;
To the extent plaintiff would rest her First Amendment claim on a complaint of discrimination she allegedly expressed to her supervisor, Bonnie Ferguson, see Pl.'s Dep. at 265, that claim would fail for the same reason, i.e., there is no evidence of a causal link between the conversation and her termination.
(bbb) Thus, we shall grant summary judgment on count five of plaintiff's complaint;
(ccc) In count six, plaintiff claims, under Article I, § 26 of the Pennsylvania Constitution, that defendants violated her right to equal protection;
(ddd) Sovereign immunity applies to the Commonwealth and its agencies, 42 Pa.C.S.A. §§ 8501, 8521-22, as well as to Commonwealth officials acting within the scope of their duties, Williams v. Syed, 782 A.2d 1090, 1095 (Pa Commw. 2001);
(eee) A careful review of the complaint and record demonstrates that plaintiff is suing defendants Jones, Margerum, and Moyer for actions that they took acting within the scope of their duties as Commonwealth employees, and plaintiff never pleaded that any of them acted outside of that scope;
(fff) Thus, under Pennsylvania law, they and the Board are immune from plaintiff's state law claim unless the General Assembly explicitly waived immunity, Penn. Const. art. I, § 11; 1 Pa.C.S.A. § 2310 ("[I]t is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity");
(ggg) Pennsylvania's waiver statute — which waives immunity only in nine narrow categories of negligence cases — does not waive immunity for state constitutional claims such as plaintiff's, 42 Pa.C.S.A. § 8824;Faust v. Commonwealth, 592 A.2d 835, 839-40 (Pa.Commw. 1991), app. denied, 607 A.2d 257 (Pa. 1992);
In footnote 1 of her memorandum opposing summary judgment, plaintiff cites Jones v. City of Philadelphia, a case decided by the Court of Common Pleas that he claims "was reported in the Legal Intelligencer on August 5, 2004." Because plaintiff never provided us with a copy of this case and the Internet address he provided is defunct, we have not reviewed it. We do note, however, that as a case from the Commonwealth's trial court, its Erie value is minimal.
(hhh) Because the General Assembly never waived immunity, plaintiff's state constitutional claim is barred, and we grant summary judgment on count six,
It is hereby ORDERED that:
1. Summary judgment is DENIED IN PART and GRANTED IN PART;
2. For the Board, summary judgment is DENIED on counts one, two, and four;
3. For defendants Jones, Margerum, and Moyer, summary judgment is GRANTED on counts one and two but DENIED on count four;
4. Summary judgment is GRANTED for all defendants on counts three, five, and six; and
5. A final pretrial and settlement conference shall CONVENE at 4:00 p.m. on November 23, 2004 in Chambers (Room 10613).