Opinion
Civil Action No. 96-4597
May 20, 2002
MEMORANDUM AND ORDER
Upon consideration of Plaintiff's Pre-Trial Memorandum (Docket No. 52), Defendants' Supplemental Pre-Trial Memorandum (Docket No. 206), and the Motions in Limine filed by the parties to date, the Court issues the following Memorandum and Order.
I. BACKGROUND
On June 25, 1996, Plaintiff Robert E. Wright, Sr. ("Wright" or "Plaintiff") brought this employment discrimination action against Defendants Montgomery County, Richard S. Buckman, Commissioner of Montgomery County and Joseph M. Hoeffel, III, Commissioner of Montgomery County ("Montgomery County Defendants" or "Defendants"). All that remains of the Plaintiff's complaint is a claim of retaliation for protesting against his own mistreatment for being a member of a racial minority brought under 42 U.S.C. § 1981.
II. DISCUSSION
A. Section 1981 Claim
Section 1981 provides in relevant part that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981(a) (1994). Although § 1981 has proven effective in battling discrimination, its scope is limited to cases of race discrimination. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). Thus, these sections may only be invoked when discrimination is alleged against "identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." Id. "Congress amended § 1981 in 1991 to allow suits for workplace harassment. See 42 U.S.C. § 1981(b). "[Accordingly, c]laims of a hostile working environment that arise after 1991 are . . . actionable under § 1981." Simpson v. Martin, Ryan, Andrada Lifter, No. CIV.A. 96-4590, 1997 WL 542701, at *3 (N.D. Ca. Aug. 26, 1997) (citations and footnote omitted). Retaliation claims are also actionable under 1981. Patterson v. Augat Wiring Sys., Inc., 944 F. Supp. 1509, 1519-21 (M.D. Ak. 1996); see Freeman v. Atlantic Ref. Mktg. Corp., No. CIV.A. 92-7029, 1994 WL 156723, at *8 (E.D.Pa. Apr. 28, 1994) ("Section 1981's prohibitions against discrimination extend to the same broad range of employment actions and conditions as in Title VII."). 1. Retaliation
Title VII's § 2000e-2(a)(1) states:
It shall be an unlawful employment practice for an employer — to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
To make out a prima facie case of retaliation, the Plaintiff must show that: (1) he engaged in protected conduct; (2) his employer took adverse action against him; and (3) there was a causal link between the protected conduct and the adverse action. Kohn v. Lemmon Co., Civ.A. No. 97-3675, 1998 WL 67540, *5 (E.D.Pa. Feb. 18, 1998) (citing Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)). Protected activity consists of opposition to conduct prohibited by Title VII or participation in an investigation of or proceeding regarding such conduct. See 42 U.S.C. § 2000e-3(a); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 513 n. 4 (3d Cir. 1997) (grievances about working conditions not protected activity when they do not concern acts made unlawful by Title VII), cert. denied, 118 S.Ct. 1516 (1998); Sumner v. United States Postal Service, 899 F.2d 203, 208 (2d Cir. 1990) (Title VII "prohibits employers from firing workers in retaliation for their opposing discriminatory employment practices"). To establish the requisite causal connection, a plaintiff must proffer evidence "sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." Zanders v. National R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (citing Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)). Plaintiff must also show that the persons who took the adverse employment action against him knew of the protected activity and acted with a retaliatory motive. Gemmell v. Meese, 655 F. Supp. 577, 582 (E.D.Pa. 1986).
After the plaintiff makes a prima facie showing, a presumption of retaliation arises that shifts the burden of production to the employer to rebut the prima facie case by producing "clear and reasonably specific" evidence that its actions were taken for legitimate, nonretaliatory reasons. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981). If an employer meets its burden of articulating a non-retaliatory reason, the burden of production shifts back to the plaintiff, who "must have the opportunity to demonstrate that the proffered reason was not . . . true." Id. at 256. The plaintiff's burden of production "merges with the ultimate burden of persuading the court that he has been the victim of intentional discrimination." Id. The plaintiff can meet the burden "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05 (1973)). If he successfully shows that a retaliatory motive played a motivating part in an adverse employment decision, the employer can nevertheless avoid liability by demonstrating by a preponderance of the evidence that it would still have taken the same action absent retaliatory motive. See Price Waterhouse v. Hopkins, 490 U.S. 228, 252-53 (1989); Berger v. Iron Workers Reinforced Rodmen, Local 201, No. 97-7019, 1999 WL 169431, at *12 (D.C. Cir. Mar.30, 1999).
B. Immunity
The Defendants are not immune from suit in this § 1981 retaliation claim. First and foremost, the Court is unaware of any court dismissing such a claim based on either absolute immunity or qualified immunity. Second, if this Court were to apply the rationale applied by courts to § 1983 claims to this case, the Court still finds that the Defendants' are not entitled to immunity. No Court has held that a local government is immune from a civil rights suit. The Supreme Court has held that local legislators are absolutely immune from suit under § 1983 for their legislative acts. See Bogan v. Scott-Harris, 118 S.Ct. 966, 970 (1998). "Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it." Id., at 973. In Bogan, Mayor Bogan proposed a budget that froze the salaries of all municipal employees and eliminated one hundred thirty-five city positions. Id., at 969. As part of this package, Bogan called for the elimination of the Plaintiff's position. Id. Because "the ordinance, in substance, bore all the hallmarks of traditional legislation," the Court granted absolute immunity without determining whether the character of the action was legislative. Id., at 973.
In the present case, absolute immunity does not apply, because the decision to terminate the Plaintiff as Director of Montgomery County Department of Housing Services ("MDHS") was not a legislative act. The Defendant Commissioners' decision to terminate the Plaintiff did not bear any of the hallmarks of traditional legislation. Moreover, the character of the Defendant Commissioners' actions does not entitle them to legislative immunity. This Court has found that a genuine issue exists as to whether the Defendant Commissioners terminated the Plaintiff from his position as Director of Montgomery County Department of Housing Services ("MDHS") because the Plaintiff complained of his mistreatment for being a member of racial minority.
Individual government officials engaged in discretionary functions enjoy qualified immunity from suits when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Sherwood v. Mulvihill, 113 F.3d 396, 398-99 (3d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The question is whether a reasonable commissioner in the Defendants' position could have believed their conduct was lawful in view of clearly established law and the information they possessed. See Parkhurst v. Trapp, 77 F.3d 707, 712 (3d Cir. 1996).
In this case, a commissioner who takes retaliatory action against a subordinate for speaking out against his own mistreatment for being a member of a racial minority would be violating a clearly established right of which a reasonable commissioner would be aware. See, e.g.,Watters v. City of Philadelphia, 55 F.3d 886, 892-93 (3d Cir. 1995);Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987) (right not to be subjected to adverse employment action in retaliation for engaging in protected First Amendment activity).
C. Punitive Damages
Compensatory damages for mental anguish, as well as punitive damages, are recoverable in certain circumstances under § 1981. United States v. Burke, 504 U.S. 229, 240 (1992) (citing Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975). To recover punitive damages, a plaintiff must show that a defendant (1) intentionally retaliated against him, and (2) did it "with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1).
In Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the Supreme Court held that a municipality (as opposed to an individual defendant) is immune from liability for punitive damages under § 1983. Newport, 453 U.S. at 269-270. A significant part of the Court's reasoning was that deterrence of constitutional violations would be adequately accomplished by allowing punitive damage awards directly against the responsible individuals. The Court explained:
Moreover, there is available a more effective means of deterrence. By allowing juries and courts to assess punitive damages in appropriate circumstances against the offending official, based on his personal financial resources, the statute [§ 1983] directly advances the public's interest in preventing repeated constitutional deprivations. In our view, this provides sufficient protection against the prospect that a public official may commit recurrent constitutional violations by reason of his office.Newport, 453 U.S. at 269-270.
Similarly, in Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court stated that punitive damages would be available in an action against federal officials directly under the Eighth Amendment, partly on the reasoning that since such damages are available under § 1983, it would be anomalous to allow punitive awards against state officers but not federal ones. Id., at 22, and n. 9. See also Adickes v. Kress Co., 398 U.S. at 233 (Brennan, J., concurring and dissenting); Carey v. Piphus, 435 U.S. 247, 257, n. 11 (1978); Johnson, 421 U.S. at 460 (punitive damages available under 42 U.S.C. § 1981). Thus, the Court finds that although Montgomery County is immune from punitive damages, the Defendant Commissioners are not afforded such protection.
D. Witnesses
In their Pre-Trial Memoranda, the parties have identified numerous witnesses that they intend to call at trial. Below, the Court finds that these witnesses fit into one of four categories:
(1) Relevant; (2) Irrelevant; (3) Cumulative; or (4) Irrelevant and
Cumulative. All parties to the action are deemed relevant. Otherwise, those witnesses found to be relevant as to liability or damages are indicated as such. Only witnesses that this Court has found to be relevant as indicated below may be called during trial. All other witnesses are prohibited from being called during this trial absent a renewed proffer acceptable to the Court after all witnesses presently determined by the Court to have relevant testimony have testified.1. Plaintiff's Witnesses
The Court uses the following abbreviations: (1) "L" for Liability; and (2) "D" for Damages.
Regarding the Plaintiff's witnesses as indicated in his Pre-Trial Memorandum, the Court finds as summarized below:
Robert E. Wright, Sr. Relevant, Plaintiff
Sheilah Wright Relevant (L)
Mario Mele Relevant, Defendant
Richard Buckman Relevant, Defendant
Joseph Hoeffel Relevant, Defendant
Michael Marino Irrelevant
Oscar Vance Relevant (L)
Nick Melair Relevant (L)
Harry Payne Relevant (L)
William Hannesberry Irrelevant
Victor Depollo Irrelevant
Karen Washington Irrelevant
Richard Bylar Irrelevant
Patrick Borden Irrelevant
Terrence McMullen Irrelevant
Doug Detwiler Irrelevant
Stephanie Coleman Irrelevant
David Wheeler Irrelevant
John Q. Bingaman Irrelevant
Marvin Pierce Irrelevant
George Schlossher Irrelevant
Charles Nahill Irrelevant
Jay Moyer Relevant (L)
Denise Neuschwander Relevant (L)
Kathy Smith Irrelevant
Bill Hitchcock Irrelevant
Lillian Ritts Irrelevant
Nancy Shearer Irrelevant
Rena Singer Relevant (L)
Ken Delanian Irrelevant
Vincent Cirillo Irrelevant
Marie Kavanaugh Irrelevant and Cumulative
Jon Fox Relevant (L)
Don Polce Irrelevant and Cumulative
Thomas Stone Relevant (L)
Joseph Pizonka Relevant (L)
Harry Massler Relevant (L)
Jim Jerla Irrelevant
Grace DelBono Irrelevant
John Sgarlata Relevant (L)
Jonh DePaul Relevant (L)
Frank Lalley Irrelevant
Dr. Michael Mash Relevant (D)
Dr. William Rodgers Relevant (D)
Dr. Patrick McDonough Relevant (D)
Dr. Harold Byron Relevant (D)
John Markley Irrelevant
Jane Markley Irrelevant
Rev. Dr. Mickarl Relevant (D) D. Thomas2. Defendants' Witnesses
Regarding Defendants' witnesses as indicated in their Supplemental Pre-Trial Memorandum, the Court finds as summarized below:
Frank Aiello Cumulative
Jamesetta Arthur Cumulative
Salvatore Bello Relevant (L)
Beneficial National Cumulative Bank, corporate designee
Patrick Borden Irrelevant and Cumulative
Michael Brescia Cumulative
Richard Buckman Relevant, Defendant
Nora Butler Irrelevant
Dr. Harold Byron Irrelevant
CityBank Credit Card Irrelevant and Division, corporate Cumulative designee
Dr. Gordon Clement Irrelevant
Coastal Federal Cumulative Mortgage Co., corporate designee
Stephanie Coleman Irrelevant and Cumulative
Commerce Bank, Relevant (L) corporate designee
Commonwealth Bank, Cumulative corporate designee
CoreStates Bank Cumulative (d/b/a First Union), corporate designee
Lawrence T. Crossan Relevant (L)
Carrie C. Darden Irrelevant and Cumulative
Elsie Darden Irrelevant and Cumulative
General Richard J. Relevant (L) DeCarlo
John DePaul Relevant (L)
Douglas Detwiler Cumulative
Donatucci Kitchens Irrelevant and and Representatives Cumulative thereof
Thomas E. Doran Relevant (L)
Charles Dutill Cumulative
Gloria Echols Cumulative
Thomas Eichman Cumulative
George J. Flaconiero Relevant (L)
First Tuskegee Bank, Cumulative corporate designee
Dawn Flagg Irrelevant and Cumulative
Sharon Foley Irrelevant and Cumulative
Alphonzo Gallo Relevant (L)
Barbara Gallo Irrelevant
Richard Gallo Relevant (L)
Ruth Gant Irrelevant and Cumulative
G.E. Capital Mortgage Cumulative Services, corporate designee
John Glennon Irrelevant and Cumulative
Robert J. Goral Cumulative
Robert Graft Irrelevant
Edith Hadrick Irrelevant and Cumulative
Barbara Harrington Cumulative
Ann Hartman Relevant (L)
Lynne Hissner Cumulative
William Hitchcock Irrelevant
Joseph Hoeffel Relevant, Defendant
Jerry Hoff Irrelevant
Gillis Lee Holmes, Sr. Cumulative
Lee Holmes, Jr. Irrelevant and Cumulative
Celeste Jackson Cumulative
James Jerla Irrelevant
Bruce A. Kelley Cumulative
Joseph F. Kuklinski Cumulative
Curtis C. Lindsey, Jr. Cumulative
Dr. Michael Mash Relevant (D)
Dr. Patrick McDonough Relevant (D)
Terrence McMullen Cumulative
Robert McNeil Irrelevant
Nicholas Melair Relevant (L)
Mario Mele Relevant, Defendant
Dr. Timothy Michals Relevant (D)
Philip Montefiore Relevant (L)
Jay Moyer Relevant (L)
Matthew Nahrgang, Esq. Relevant (L)
Denise Neuschwander Relevant (L)
Robert Neuschwander Cumulative
Sherry O'Rourke Cumulative
Ron Paul Irrelevant
Harry Payne Relevant (L)
Pennsylvania State Irrelevant Trooper Cory Remp
Paul Petrolina Cumulative
Russel Piazza Irrelevant
Marvin Pierce Irrelevant
Barbara Pizonka Irrelevant and Cumulative
Joseph Pizonka Relevant (L)
PNC Bank, corporate Cumulative designee
Thomas Raimondi Relevant (L)
Mark Reichelt Cumulative
Robert J. Reilley, Cumulative Jr., Esq.
Patricia Renzi Relevant (L)
Marianne Rickenbach Irrelevant
Dr. W.H. Rodgers, III Relevant (D)
James Rodgers Cumulative
John M. Ruggiano Cumulative
Keith Sampson Cumulative
Tina M. Schimony Cumulative
Renee Scott Cumulative
John Sgarlata Relevant (L)
Dorethea Skinner Irrelevant
Robert P. Stevens Cumulative
Lee Stevenson Cumulative
Samuel Stretton, Esq. Cumulative
Oscar Vance Relevant (L)
James Ward Cumulative
Dr. G.H. Weiss Irrelevant
William Wentz Irrelevant
West Norriton Irrelevant Township Police Sergeant Hallman
David Wheeler Cumulative
James Wright Relevant (L)
Robert E. Wright, Sr. Relevant, Plaintiff
Sheilah Wright Relevant (L)
W. Kirk Wyckoff, or Relevant (L) other designee of Progress Bank
Allison Berl Relevant (L)
Alice M. Bucha Relevant (L)
Armond Byrd Relevant (L)
Chevy Chase Bank, Relevant (L) custodian of records
Shirley Christman Irrelevant
Leanora Ciarletta Irrelevant
Joseph Conrad Irrelevant
Ruth S. Damsker Relevant (L)
Arlene S. Davis Irrelevant
Debra DeVitis Irrelevant
Natalie L. DiNolfi Irrelevant and Cumulative
First Union National Cumulative Bank, corporate designee
Neil Granese Irrelevant and Cumulative
William Hanebury Irrelevant
Johns Eastern Co., Irrelevant Inc., custodial of records
Karen Kartanowicz Irrelevant
George Kunin Irrelevant
Gordan Lawrence Irrelevant
Madison Bank Irrelevant
Michael D. Marino Irrelevant
James W. Matthews Irrelevant
Cynthia McClanahan Irrelevant
Detective Sergeant Irrelevant Jeffrey McGee
James W. McStravick Irrelevant (compliance expert)
Merchants and Irrelevant Businessman's Mutual Ins. Co., custodian
James Monroe Irrelevant
Barbara J. Morgan Irrelevant
Sharon M. Olszewski Irrelevant
Stephen O'Neill Relevant (L)
Crawford Co. Irrelevant
Kathy L. Phifer Irrelevant
Debbie Toal et al., Irrelevant custodian of records
Progress Federal Relevant (L) Savings Bank, corporate designee
Lillian Ritts Irrelevant
Nan Ryan Irrelevant
Michael Suray Irrelevant
Joseph Tinaru Irrelevant
Karen Trimble Irrelevant
Robert Trostle Irrelevant
Diane E. Wood Irrelevant
ORDER
AND NOW, this 20th day of May, 2002, upon consideration of Plaintiff's Pre-Trial Memorandum (Docket No. 52), Defendants' Supplemental Pre-Trial Memorandum (Docket No. 206), and the Motions in Limine filed by the parties as of the date of this Order, IT IS HEREBY ORDERED that all witnesses not found above to be relevant are PROHIBITED from testifying during trial absent a renewed proffer acceptable to the Court after all witnesses presently determined by the Court to have relevant testimony have testified.