EDUARDO C. ROBRENO, District Judge.
Edward Spangler and Donna Jaconi (collectively, "Plaintiffs"), former and current employees, respectively, of the Philadelphia Police Department ("PPD"), bring this employment-discrimination action against Captain Daniel Castro, Lieutenant Jack Feinman, and the City of Philadelphia ("the City"). The City and Feinman move for summary judgment in their favor on all counts. For the reasons that follow, the Court will grant the Motion.
Spangler and Jaconi allege unlawful discrimination under separate, but related, circumstances. The facts relating to each are stated as follows.
Spangler is a white male. Am. Compl. ¶ 8, ECF No. 6. PPD employed Spangler from 1987 to March 4, 2009. Spangler Dep. 9:16-18, 12:21-22, Aug. 18, 2011. Spangler joined PPD's Crime Scene Unit ("CSU") as the commanding officer in February, 2006.
In March, 2007, Spangler refused to add negative comments to a performance evaluation for Sergeant Patricia Baker. Supervisors in the PPD conduct annual evaluations of their direct subordinates.
Spangler told Castro that "everyone" misses a suspense date "at one time or another" and Castro cannot "pick on one person and say she missed them, if we don't document everybody else that's missed them also."
Spangler described an event where Castro was upset with Spangler regarding Castro's administrative aide. The police chief removed Castro's administrative aide from a mandatory summertime street duty list after confirming with Spangler by telephone that the aide suffered from a certain medical condition.
In May, 2007, Castro increased Spangler's work from about two or three reports per week to almost daily reports.
On another occasion, Castro assigned a report at eleven o'clock to be complete by two o'clock.
Castro changed Spangler's shift, which caused Spangler to lose two hours of overtime per week.
In July, 2007, Castro called Spangler complaining that Baker failed to respond to a homicide of a fourteen-year-old on a bicycle and ordered Spangler to reprimand her.
In August, 2007, Spangler was transferred out of CSU for making an inappropriate comment to an intern.
Spangler stopped actively working for the PPD in September, 2008, and "ran" his leave until March 4, 2009.
Jaconi is a white female. Am. Compl. ¶ 9. Since 1990, the PPD employed her as a police officer.
On August 13, 2005, Jaconi witnessed an event involving Castro and his daughter.
Later, in October, 2005, Lieutenant Jack Feinman
From October, 2005, to January, 2006, although Jaconi would have liked Castro to apologize for his actions on August 13, Jaconi's only complaint against Castro was that he was "curt" with her.
On January 6, 2006, Castro ordered Jaconi to move some office furniture and boxes, and on March 27, 2006, Castro ordered Jaconi and a male civilian to move a wood conference table into the conference room.
On March 10, 2006, Castro instructed Spangler to send a memorandum to CSU supervisors to ask the night shift officers to volunteer to attend three days of training as part of their regular tour of duty and not to take overtime for the training sessions.
On March 22, 2006, Castro ordered Jaconi's supervisor to dock her two vacation hours after a lieutenant said she left her shift early.
On October 22, 2006, Jaconi called her supervisor to take a vacation day. Jaconi Dep. 68:14-17. Because a supervisor was not on shift, she notified another officer but did not call anyone up the chain of command, as required by internal policy.
On November 7, 2006, Jaconi requested time off on the day of Thanksgiving.
On May 7, 2007, members of a different police squad ignored Jaconi after Castro allegedly informed them that Jaconi was responsible for an internal affairs investigation.
On April 18, 2007, Jaconi received formal discipline for refusal to obey orders and using profane language.
On May 25, 2007, Jaconi removed CSU displays for use during a presentation the next day without the permission of Castro or Spangler. Spangler testified that he informed Castro he was unaware of Jaconi's actions even though officers generally ask him for permission before using the materials for presentations. Spangler Dep. 98:5-12. Castro told Spangler he did not trust Jaconi, did not want her to take the displays, and referred to her as a "bitch"; he ordered Spangler to direct Jaconi to return the displays.
On May 26, 2007, Castro ordered Spangler to check whether Jaconi was in court as scheduled because he did not trust Jaconi.
On September 9, 2010, Plaintiffs filed an Amended Complaint that asserts the following four counts. In Counts I and II, respectively, Spangler asserts violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA") against the City and Castro. In Counts III and IV, respectively, Jaconi asserts violations of Title VII and the PHRA against all three defendants. Am. Compl. ¶¶ 29-72. The City, Castro, and Feinman answered. Answer to Am. Compl. 1, ECF No. 7.
On November 15, 2010, the Court held an initial pretrial conference and stayed the case until February 14, 2011, because Castro was a defendant in a pending criminal action. Order 1, Nov. 16, 2010, ECF No. 13.
On February 16, 2011, the Court held another pretrial conference and issued a Scheduling Order. That Scheduling Order and a subsequent scheduling order both provided, "As discussed with the parties, Defendant-Castro should not be deposed without leave of the Court."
On September 2, 2011, counsel for all three defendants, Shant H. Zakarian, Esquire, who is engaged by the City Solicitor's Office for the City of Philadelphia, moved to withdraw as counsel for Castro. Counselor Zakarian represented that, despite numerous attempts to contact Castro regarding the representation, Castro failed to respond. Mot. to Withdraw ¶¶ 5-6, ECF No. 19. The Court granted the motion to withdraw. Order 1, Sept. 9, 2011, ECF No. 20. Castro is currently unrepresented in this civil action and the unrelated, pending criminal matter is on appeal.
On October 21, 2011, the City and Feinman moved for summary judgment against Plaintiffs on all claims.
Summary judgment is appropriate if there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact."
The Court will view the facts in the light most favorable to the nonmoving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party."
Spangler asserts claims of unlawful retaliation against the City and Castro. Jaconi asserts claims of unlawful discrimination and unlawful retaliation against the City, Feinman, and Castro. And throughout the Amended Complaint, Plaintiffs allege the City has a policy or custom of unlawful discrimination. First, Spangler fails to establish a prima facie case of unlawful retaliation. Second, Jaconi fails to establish a prima facie case of unlawful discrimination and unlawful retaliation. Third, to the extent the Amended Complaint asserts claims for municipal liability against the City for an unlawful policy or custom, Plaintiffs fail to substantiate the claim. Therefore, the Court will grant the Motion.
Spangler claims Defendants violated his right to be free from retaliation for opposing sex discrimination in violation of Title VII and the PHRA.
To establish a prima facie case of unlawful retaliation under Title VII, an individual must provide evidence to show (1) he engaged in protected activity; (2) Defendants took an adverse employment action against him; and (3) a causal connection between his participation in the protected activity and the adverse employment action.
Defendants contend Spangler did not engage in an activity protected by Title VII. For purposes of a retaliation claim, an individual engages in a protected activity either by "opposing" discrimination made unlawful by Title VII or by "participating" in certain Title VII proceedings.
Spangler alleges he engaged in the following protected activities: he opposed perceived discrimination against Baker and Jaconi and participated in investigations into unlawful discrimination. Am. Compl. ¶¶ 26, 31. Defendants argue there is no evidence of record to support these allegations and, therefore, they are entitled to judgment as a matter of law.
First, Spangler's testimony belies his allegation that he opposed perceived discrimination against Baker. Spangler contends that he opposed perceived discrimination when he disobeyed Castro's order to modify Baker's performance evaluation. The evidence of record does not indicate that Castro ordered Spangler to modify the evaluation because of Baker's race or sex. And Spangler understood that it was within Castro's authority to modify performance evaluations. Furthermore, Spangler testified that he believed Castro "did not like [Baker]" because Castro "didn't think she was a good supervisor."
Spangler's attempts to raise a genuine dispute of material fact fail. First, Spangler asserts he testified that he opposed Castro's instruction because he believed Castro was discriminating against female employees. Spangler mischaracterizes his deposition testimony. In fact, as discussed above, Spangler testified that he believed Castro did not think Baker was a good supervisor and that he opposed Castro's order because Castro did not provide documentation.
Next, Spangler asserts that Castro responded that he "did not care" when Spangler informed Castro that he could not treat females in the department differently than males. Spangler again mischaracterizes his deposition testimony. Indeed, as explained above, Castro responded that he "did not care" about Spangler's concern of picking out one person for the failure to submit suspense reports when everyone in the department missed a report at one time or another. Castro did not comment that he "did not care" in response to a charge of unlawful discrimination.
Finally, Spangler asserts that he opposed Castro's order barring female sergeants from giving overtime and that he protested Castro's unlawful discrimination up the chain of command. Spangler's assertions are not supported by the evidence of record.
Spangler alleges he opposed Castro's orders because of perceived discrimination against Jaconi in two instances. With respect to both events, Spangler's testimony does not indicate he perceived unlawful discrimination or, much less, that Spangler opposed Castro's orders.
First, Spangler asserts that on May 25, 2007, Spangler opposed Castro's order directing Spangler to stop Jaconi from removing crime scene displays used for school presentations. Spangler's testimony does not raise a genuine dispute that he engaged in protected activity by opposing Castro's order. First, Spangler's colloquial use of "guys" does not indicate that he meant "males" typically use the crime scene displays for presentations. Thus, Spangler's testimony does not indicate he acted because he perceived unlawful discrimination. Furthermore, even if Spangler perceived unlawful discrimination, he did not oppose Castro's order. In fact, he followed Castro's order and testified that he did not believe it was "unlawful," only illegitimate.
Second, Plaintiffs assert that on May 26, 2007, Spangler opposed Castro's order to "court check" Jaconi. Spangler noted that he would check on everyone that should be in court, not just Jaconi. Spangler's testimony does not indicate that he believed Castro singled out Jaconi because of her race or sex. In any event, Spangler complied with Castro's order. And Jaconi was not in court as scheduled. Therefore, Spangler did not oppose perceived discrimination against Jaconi.
Finally, there is no evidence of record to support Spangler's allegation that, on August 7, 2007, he participated in certain investigations regarding unlawful discrimination. There is no evidence of record that Spangler was a favorable witness for an EEOC charge filed by Jaconi. And there is no evidence, except for Spangler's bald assertion, that he participated in an internal investigation of Castro's alleged race and sex discrimination.
Spangler contends Defendants admitted that Spangler participated in these investigations in their Answer to the Amended Complaint.
Therefore, Defendants are entitled to judgment as a matter of law as to Spangler's claim that he suffered unlawful retaliation because he failed to establish he engaged in protected activity.
And even if Spangler engaged in protected activity, he did not suffer a materially adverse action. With respect to the second element of a prima facie retaliation claim, Title VII's antiretaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment."
Spangler alleges he suffered the following adverse actions: (1) that he was reprimanded; (2) that his work increased; (3) that he was denied vacation time and overtime; and (4) that his shift changed.
First, there is no evidence of record that Castro formally disciplined Spangler. In fact, Defendants provide three performance reports issued by Castro that praise Spangler for his effective leadership.
Second, Spangler alleges that Castro increased his workload in retaliation for the alleged protected activity. Spangler's own testimony indicates that, while his work assignments had strict deadlines, he was granted extensions and able to complete his assignments without discipline. That he sometimes worked overtime to complete his work may be a "petty slight" or "minor annoyance," but it does not rise to the level of an adverse action.
Third, Spangler alleges Castro denied him vacation time and overtime. Specifically, Spangler alleges Castro denied him four hours of vacation time on April 13, 2007. Am. Compl. ¶ 24(c). Spangler acknowledged he had no right to overtime. He lost two hours of overtime when Castro changed his shift. And Castro denied him four hours of vacation leave because of a staffing shortage.
Fourth, Spangler alleges that Castro changed his shift without Spangler's request in violation of the PPD's collective bargaining agreement. Pursuant to that agreement, management may manage the operations of the department and direct the workforce.
Spangler fails to establish the first two elements of a prima facie case. And even if he did, Spangler fails to establish a causal connection between his alleged protected activity and materially adverse action. To establish the third element of a prima facie retaliation claim, "a plaintiff must show a causal connection between the plaintiff's opposition to, or participation in proceedings against, unlawful discrimination and an action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination."
Spangler's beliefs, unsupported by the evidence of record, that Castro treated him differently because he allegedly opposed unlawful discrimination is insufficient to withstand a motion for summary judgment, especially in light of the evidence presented that Castro acted for legitimate nondiscriminatory reasons.
Therefore, because Defendants are entitled to judgment as a matter of law with respect to Spangler's claims of retaliation and Spangler failed to point to or present evidence to raise any genuine dispute of material fact, the Court will grant the Motion with respect to Spangler's Title VII and PHRA claims.
Jaconi claims Defendants violated her right to be free from race and sex discrimination and from retaliation for opposing unlawful discrimination in violation of Title VII and the PHRA. Jaconi fails to establish a prima facie case of discrimination and retaliation against Defendants.
Jaconi claims Defendants discriminated against her because of her race and sex in violation of Title VII.
Jaconi alleges Castro discriminated against her by denying a vacation request. Am. Compl. ¶ 19(a), (g). The evidence of record does not support this allegation. Spangler denied her request because of minimum manpower requirements, and there is no evidence that Castro influenced or ordered this decision for discriminatory reasons. Jaconi's subjective belief that Castro changed the manpower requirements out of discriminatory animus is not supported by the evidence of record and, alone, is insufficient to raise a genuine dispute of material fact.
Jaconi alleges Castro discriminated against her by ordering her to move a wood conference table, a desk, and boxes. Am. Compl. ¶ 19(b), (e). Jaconi's allegations lack record support. Jaconi carries approximately fifty pounds of equipment each day.
Jaconi alleges that she opposed Castro's request to complete certain training without taking overtime because she would be the only female not to receive overtime and "[a]ll male officers were to receive overtime pay for training sessions." Am. Compl. ¶ 19(c). The evidence of record, specifically, Jaconi's own testimony, does not support this allegation. Castro's request that night shift officers volunteer to attend training without taking overtime does not indicate Castro acted with discriminatory animus. Jaconi did not testify that the request targeted women, that she objected because she was the only female not to receive overtime, or that all male officers would receive overtime.
Jaconi alleges Castro penalized her two vacation hours for signing off duty early when he did not penalize male officers for signing off duty early. Am. Compl. ¶ 19(d). Again, the evidence of record does not support Jaconi's allegation. There is no evidence of record that Castro treated Jaconi any differently or acted based on her race or sex. Furthermore, there is no evidence of record that Castro would not penalize male officers if he believed they signed off duty early. Finally, after Jaconi explained that she was delayed in returning from court duty, not because she left early, she received her vacation hours back.
Jaconi alleges Castro discriminated against her by reprimanding her when she did not notify Castro that she would take an "emergency vacation day." Am. Compl. ¶ 19(f). She further alleged that Castro reprimanded her for not calling him directly.
Jaconi alleges that Castro told others in the CSU that she was responsible for an internal affairs investigation and that her coworkers have since "ostracized her and caused her extreme emotional distress." Am. Compl. ¶ 9(n). There is no evidence of record, but for Jaconi's deposition testimony, supporting the allegation that Castro told Jaconi's coworkers she was responsible for the investigation. And during her deposition, Jaconi testified that her coworkers "were all just not talking to me." Jaconi Dep. 91:11-14. Jaconi has not shown Castro discriminated against Jaconi on the basis of her race or sex.
Jaconi alleges that Feinman was aware of Castro's disparate treatment of Jaconi but failed to take action. Am. Compl. ¶ 19(q). This allegation, too, is without support by the evidence of record. Feinman went on sick leave for one month in January, 2006, and transferred out of the CSU in February, 2006. Therefore, he did not witness any discriminatory acts that allegedly took place in 2006 and 2007.
In the Complaint, Jaconi alleges she was denied vacation time, checked on during court appearances, disciplined by Castro for participating in various investigations, and denied training opportunities, all of which male officers did not experience. Am. Compl. ¶ 19(g)-(m), (o)-(p). There is no evidence of record to support any of these remaining allegations. Jaconi's deposition testimony submitted as evidence of record does not refer to these remaining allegations, and the Court cannot now speculate as to their veracity. Spangler testified that on May 26, 2007, Castro ordered him to check whether Jaconi was in court as reported. Spangler Dep. 99:18-100:16. Spangler checked; Jaconi was, in fact, not in court as Castro suspected.
Jaconi alleges Defendants violated her right to be free from retaliation for opposing race and sex discrimination in violation of Title VII and the PHRA. As discussed above, to establish a prima facie case of unlawful retaliation under Title VII, Jaconi must provide evidence to show (1) she engaged in protected activity; (2) Defendants took an adverse employment action against her; and (3) a causal connection between her participation in the protected activity and the adverse employment action.
First, the Complaint can fairly be read to assert two instances of alleged protected activity: (1) that Jaconi participated in an internal investigation concerning a domestic incident between Castro and his daughter that occurred on August 13, 2005; and (2) that Jaconi reported Castro for his disparate treatment as early as March 6, 2007. Am. Compl. ¶¶ 18, 19(k), 53.
The August 13, 2005, incident has nothing to do with unlawful discrimination. Because Jaconi did not oppose unlawful discrimination or participate in a proceeding or investigation regarding unlawful discrimination, Jaconi did not engage in protected activity actionable under Title VII and the PHRA.
Moreover, there is no record support for Jaconi's alleged March 6, 2007, report to internal affairs regarding Castro's disparate treatment of her. During her deposition, Jaconi referred to an internal affairs report regarding Castro's conduct. Jaconi Dep. 91:1-25. It is not clear whether she reported Castro for engaging in unlawful discrimination. Jaconi's fleeting reference to an internal affairs report is insufficient to create a genuine dispute of material fact whether she engaged in protected activity.
Second, even if the Court assumed Jaconi reported alleged unlawful discrimination on March 6, 2007, Jaconi did not suffer a materially adverse action. Jaconi testified that, after the alleged report, some coworkers in another squad would not talk to her and would not help her. The evidence of record indicates that Jaconi suffered, at most, a "petty slight or minor annoyance," not actionable retaliation or harassment.
Plaintiffs allege throughout the Complaint that the City has a policy or custom of discrimination. Am. Compl. ¶¶ 34, 45, 56. Plaintiffs appear to allege a violation of 42 U.S.C. § 1983 and the PHRA.
It appears based on the record before the Court that Castro would be equally entitled to summary judgment in this case. But because Plaintiffs are not on notice that the Court would consider summary judgment with respect to the claims against Castro, the Court will afford Plaintiffs, if appropriate, a reasonable time to file a memorandum raising any genuine disputes of material fact that would preclude granting summary judgment in favor of Castro.
For the foregoing reasons, the Court will grant Defendants' Motion for Summary Judgment and enter judgment in favor of the City of Philadelphia and Jack Feinman on all claims. An appropriate order will follow.
Pls.' Resp. 17;
On September 2, 2011, Counselor Zakarian notified the Court and the parties that he could not contact Castro when he moved to withdraw as counsel for Castro. The Court granted the motion on September 9, 2011. Order 1, Sept. 9, 2011, ECF No. 20. Plaintiffs never moved for leave to take Castro's deposition or to compel Castro's deposition. The discovery period did not close until October 13, 2011, which provided Plaintiffs ample time to take either measure. Furthermore, Plaintiffs have not shown by affidavit or declaration that, for specified reasons, they cannot now present facts essential to justify their claims.
And relatedly, Plaintiffs' counsel demonstrated a lack of care and attention to the matter at hand as shown by numerous typographical errors in their written submissions to the Court, citations to pages of deposition testimony that were not made evidence of record, mischaracterizations of deposition testimony, and reliance on allegedly certain "undisputed" facts that, in fact, lacked any evidentiary support.
