Summary
finding previous discrimination based in part on "testimony from another individual in plaintiff's protected class that defendants discriminated against her"
Summary of this case from Russ-Tobias v. Pennsylvania Board of Probation ParoleOpinion
Civil Action No. 03-661.
June 18, 2004
Memorandum and Order
Plaintiff Renault Harry ("Harry") brings this action against his former employer, the City of Philadelphia Department of Human Services ("DHS"), and a number of its agents alleging that defendants discriminated against him based on his race and in retaliation for protected speech in violation of Title VII, the Pennsylvania Human Relations Act ("PHRA"), § 1983 and § 1985. Finally, he claims that defendants committed the tort of intentional infliction of emotional distress.
Presently pending before the court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated below, defendants' motion for summary judgment will be denied in part and granted in part. More specifically, I will deny defendants' motion for summary judgment on plaintiff's claims of racial discrimination under Title VII and the PHRA. However, I will grant defendants' motion for summary judgment on plaintiff's claims of: (1) retaliation under Title VII, the PHRA and § 1983; (2) racial discrimination under § 1983 against the City, DHS, the Personnel Department, and individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli; (3) racial discrimination under § 1983 based on actions that occurred prior to January 31, 2001; (4) conspiracy to deprive him of his constitutional rights under § 1985; (5) intentional infliction of emotional distress; and (6) punitive damages under the PHRA, under § 1983 for all individual defendants in their official capacities, and under § 1983 for individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli in their personal capacities.
Factual Background
The account contained in this section is comprised of both undisputed facts and plaintiff's factual allegations. See Skoczylas v. Atlantic Credit Fin., Inc., No. CIV. A. 00-5412, 2002 WL 55298, at *2 (E.D. Pa. Jan. 15, 2002) ("When considering a motion for summary judgment, a court must view all facts and inferences in a light most favorable to the nonmoving party.") (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); see also Brown v. Muhlenburg Township, 269 F.3d 205, 208 (3d Cir. 2001) (citing Beers-Capitol v. Whetzel, 256 F.3d 120, 130 n. 6 (3d Cir. 2001)).
In December 1995, plaintiff Renault Harry, an African-American male, was hired to work in the Systems Programming Unit of the Philadelphia Department of Human Services ("DHS"), which was managed by defendant Daljit Ranajee. Pl. Br. 1. He was promoted to Programmer Analyst I on December 18, 1996. Def. Exh. A at Harry-41. Exactly one year later, Harry was promoted to Programmer Analyst II ("PA2"). Id. Again, exactly one year later, Harry was promoted to Programmer Analyst III ("PA3"). Five months later (May 1999), though, plaintiff's probation was rejected (there was a six month probation period for the PA3 position), at which point Harry returned to the PA2 position. Def. Exh. A at Harry-3. Harry also received an unsatisfactory performance report at that time. Def. Exh. A at Harry-4. In June 1999, Harry applied for the Local Area Network ("LAN") Administrator examination, but his application was denied. Pl. Br. 9; Def. Br. 4. Defendant Richard DiLorenzo, a Hiring Services Associate in the City Personnel Department, informed Harry by letter that he did not yet have the requisite experience to qualify to sit for the LAN Administrator examination. Def. Exh. A at Harry-11, 12. Plaintiff disputes this proffered reason.
In the early spring of 2000, while still at the PA2 position, plaintiff again applied to take the LAN Administrator examination. Pl. Br. 9; Def. Br. 4. Despite still lacking the requisite experience, Harry was permitted to sit for the examination. Pl. Br. 9; Def. Br. 4. After receiving the results of his examination, Harry requested a review of the examination, which DiLorenzo denied. Pl. Br. 9; Def. Br. 5. Harry contacted his local union representative to complain about the denial of his request, and the union representative contacted DiLorenzo to discuss this issue. Pl. Br. 10. Upon consideration of Harry's request, though, DiLorenzo discovered that Harry still did not have the requisite experience, and hence should not have even been permitted to take the examination. Def. Exh. C at 15, 62-66, 71, 162-63. Despite having passed the examination, Harry was removed from the eligibility list for the LAN Administrator position in May 2000. Pl. Br. 10; Def. Br. 5. Harry was notified of the error and the resulting removal by letter and email. Def. Exh. A at Harry-14, 15, 18-20. Plaintiff disputes the proffered reason for his removal from the eligibility list.
Plaintiff claims that this even occurred in April, while defendants claim it occurred in May. The exact date is not significant.
In order for a Philadelphia civil service employee to be promoted he must first qualify to be placed on a list of candidates eligible for the position, or what is commonly referred to as the "eligibility list." Def. Exh. C at 16. One way to get on the eligibility list is through the civil service examination process. Id. This process entails a civil service employee's applying to take a particular examination and if he fulfills the relevant training and experience requirements, he will be approved to take the examination. Id. at 18. After passing the examination the employee is then placed on the eligibility list along with other employees who passed the examination. Id. The employees on the list are ranked according to their test scores. Id. at 16, 22-23, 61-62. When there is an opening for that particular position, employees on the eligibility list are interviewed in rank order with the possibility of being promoted to the new position. Id. at 16-18.
In the early fall of 2000, Harry applied for the position of Programmer Analyst Project Leader. Pl. Br. 11; Def. Br. 5. His application was disapproved because he again lacked the requisite experience and also because he had recently received an unsatisfactory performance rating. Def. Exh. A at Harry-16, 17, 21. Plaintiff disputes both of these proffered reasons.
Again, the parties disagree about the exact date of this incident, with plaintiff claiming it occurred in August 2000 and defendants claiming it occurred in September 2000. And, again, the exact date is not significant.
In November 2001 Harry again applied to take the LAN Administrator examination. Pl. Br. 14; Def. Br. 5. This time plaintiff was approved. Pl. Br. 14; Def. Br. 5. However, the original test date of November 19 was cancelled and changed to December 13, 2001. Pl. Br. 14; Def. Br. 5. Harry passed the examination and was placed on the eligibility list for this position. Pl. Br. 14; Def. Br. 5. Shortly after passing the examination for LAN Administrator, Harry applied to take the examination for Network Administrator. Pl. Br. 14; Def. Br. 6. Again, plaintiff's application was denied because he lacked the requisite experience. Pl. Br. 14; Def. Br. 6. And again, plaintiff disputes this proffered reason.
In July 2003, Harry was approved by defendant DiLorenzo, based on plaintiff's training and experience, for the eligibility list for the Programmer Analyst Supervisor position. Def. Exh. D. Harry is second on the eligibility list, which expires in July 2005. Id.
Standard of Review
Either party to a lawsuit may file a motion for summary judgment, and the court will grant it "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). "Facts that could alter the outcome are `material,' and disputes are `genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Ideal Dairy Farms, Inc. v. John Lebatt, LTD., 90 F.3d 737, 743 (3d Cir. 1996) (citation omitted). When a court evaluates a motion for summary judgment, "[t]he evidence of the non-movant is to be believed," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and "all justifiable inferences are to be drawn in [the non-movant's] favor." Id. Additionally, "[s]ummary judgment may not be granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed." Ideal Dairy, 90 F.3d at 744 (citation omitted). However, "an inference based upon a speculation or conjecture does not create a material factual dispute sufficient to defeat entry of summary judgment." Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n. 12 (3d Cir. 1990).To defeat summary judgment, the non-moving party cannot rest on the pleadings, but rather that party must go beyond the pleadings and present "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). Similarly, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Celotex v. Catrett, 477 U.S. 317, 325 (1986)). Further, the non-moving party has the burden of producing evidence to establish prima facie each element of his claim. Celotex, 477 U.S. at 322-23. The non-movant must show more than "[t]he mere existence of a scintilla of evidence" for elements on which he bears the burden of production. Anderson, 477 U.S. at 252. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted).
Discussion
I. Racial Discrimination under Title VII and the PHRA (Count I)
As the Third Circuit has previously recognized, the analysis required for adjudicating Harry's claim under the PHRA is identical to a Title VII inquiry. Goosby v. Johnson Johnson Medical, Inc., 228 F.3d 313, 317 n. 3 (3d Cir. 2000). Hence, it is unnecessary to separately address Harry's claim under the PHRA.
Title VII prohibits an employer from discrimination against any individual on the basis of "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). To prevail on his Title VII claim, Harry must present circumstantial evidence of discrimination using the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pursuant to McDonnell Douglas, a plaintiff must first provide evidence to support a prima facie case of discrimination by a preponderance of the evidence. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If plaintiff succeeds in establishing a prima facie case, defendant then must "articulate some legitimate, nondiscriminatory reason for the employee's [termination]." McDonnell Douglas, 411 U.S. at 802. If defendant does so, the burden shifts back to plaintiff to show that the reasons proffered by defendant were not its true reasons, but rather a pretext for discrimination. Id. at 804.
Plaintiff brings these claims against all defendants. Defendants have moved for summary judgment on the substantive merits of the claims, not on the basis of whether Title VII claims may be brought against parties other than the employer. I will only address the arguments raised by defendants.
Where no direct evidence of discrimination exists, courts use the burden-shifting scheme set forth in McDonnell Douglas to assess a plaintiff's circumstantial evidence of discrimination. Harry does not present direct evidence of discrimination.
A. Prima Facie Case
The existence of a prima facie case of race-based employment discrimination "is a question of law that must be decided by the Court." Sarullo v. United States Postal Service, 352 F.3d 789, 797 (3d Cir. 2003). In order to make out a prima facie case of racial discrimination, Harry must satisfy a four-prong test: he must establish that (1) he is a member of a protected class, (2) that he was qualified to take the relevant examinations or be placed on the relevant eligibility lists, (3) that he was subjected to an adverse employment action despite being qualified, and (4) that the City allowed other individuals with qualifications similar to his to take the examinations or be placed on the eligibility lists "under circumstances that raise an inference of discriminatory action." Id.; see also Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996) (describing the fourth prong as requiring plaintiff to establish that her termination occurred under circumstances giving rise "to an inference of unlawful discrimination") (quoting Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The elements of a prima facie case must be established by a preponderance of the evidence. See St. Mary's, 509 U.S. at 506.
Defendant argues that the fourth prong of this test requires plaintiff to show "that similarly-situated non-members of the protected class were treated more favorably." Def. Br. 8. However, as the Third Circuit explained in Sarullo, "that is not the current law in this or the majority of the circuits." Sarullo, 352 F.3d at 798 n. 7 (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 354 (3d Cir. 1999)). In fact, the court "explicitly rejected a requirement that a plaintiff prove he was replaced by someone outside the protected class to prove a prima facie case of discrimination." Id. (citing Pivirotto, 191 F.3d at 352). The court went on to explain that "We require only that the plaintiff show that the employer continued to seek out individuals with similar qualifications after refusing to rehire the plaintiff under circumstances that raise an inference of unlawful discrimination." Id. (citing Pivirotto, 191 F.3d at 352).
The purpose of the prima facie case is to "eliminate the most obvious, lawful reasons for the defendant's action (i.e., the position that an applicant sought was not filled for economic reasons, the applicant was not qualified, no adverse action such as failure to hire or firing was actually taken, etc.)." Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (citing Burdine, 450 U.S. at 253-54 ("The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection.")).
The parties do not dispute that plaintiff is a member of a protected class. Defendants argue, however, that Harry has failed to satisfy the remaining three prongs of the prima facie test, that he was qualified for the position, that he was subjected to adverse employment action and that the City allowed other individuals with qualifications similar to his to take the examinations or be placed on the eligibility lists.
This court is mindful of the fact that "the elements of a prima facie case depend on the facts of the particular case" and cannot be established on a "one-size-fits-all basis." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411 (3d Cir. 1999) (citing Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 352 (3d Cir. 1999); Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994)). The ensuing analysis, therefore, takes into account the unique factual scenarios and analytical problems associated with race-based employment discrimination actions.
1. Job Qualification
When evaluating whether a plaintiff is "qualified" for the purposes of a prima facie case, courts must rely upon "objective" factors. See Sempier v. Johnson Higgins, 45 F.3d 724, 729 (3d Cir. 1995) (citing Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990)). Subjective qualities, conversely, such as "leadership or management skill," are "better left to the later stage of the McDonnell Douglas analysis," Weldon, 896 F.2d at 798, because "subjective evaluations `are more susceptible of abuse and more likely to mask pretext.'" Id. (quoting Fowle v. CC Cola, 868 F.2d 59, 64-65 (3d Cir. 1989)).
In Weldon, the Third Circuit considered whether a plaintiff alleging employment discrimination against his former employer had been "qualified for his position," as required to establish a prima facie case. Id. The plaintiff in Weldon had received negative performance evaluations; however, these evaluations relied mainly upon subjective criteria and thus did not necessarily establish that plaintiff was unqualified. As the court explained, "In this instance . . . it is unclear whether the goals constituted a standard of performance expected of all assistant supervisors or instead represented a subjective determination by [the supervisor] of the performance level [plaintiff] had to achieve to be deemed a satisfactory assistant supervisor in that department." Id. at 799. The court then concluded that it would not "treat these subjective assessments as evidence that [plaintiff] has failed to establish a prima facie case, thereby collapsing the entire analysis into a single initial step at which all issues are resolved." Id. Instead, the court decided to "consider the assessments in the context of [plaintiff's] charge that the poor evaluations he received were a pretext for racial discrimination and unworthy of credence." Id.
In this case, Harry's disqualification from sitting for the LAN Administrator examination was based on, according to defendants, Harry's not having the requisite specific experience. The job description for LAN Administrator explains that "the applicant must have `one year of experience at the full performance level,'" and the full performance level required for this particular position is at the level of Programmer Analyst III ("PA3"). Def. Exh A at Harry-12. However, the description also provides an alternative to being a PA3 for a year: "Any equivalent combination of training and experience determined to be acceptable by the Personnel Department which has included the specific experience and successful completion of forty hours of training in local area network administration from an accredited school or other institution." Pl. Exh K. Hence, the determination of whether or not Harry was qualified for the LAN Administrator position, and therefore to take the LAN Administrator examination, was partially objective and partially subjective.
There is no dispute that Harry did not meet the objective standard, that he have one year of experience at the PA3 level, which would have satisfied the specific experience requirement. However, Harry has presented evidence that his experience at LaSalle University was comparable and should have been considered equivalent, thus satisfying the subjective standard. First, plaintiff presents a letter from DiLorenzo in which he explained to Harry that in order for DiLorenzo to evaluate Harry's application for the LAN Administrator examination, DiLorenzo needed "to receive a certificate of successful completion of forty hours of training in local area network administration from an accredited school or institution." Pl. Exh. C at DiLorenzo-3. Since the forty hours of training in LAN Administration is only necessary for the subjective standard, one could reasonably infer that DiLorenzo at one time felt Harry's experience was equivalent to the PA3 level. Further, Harry submits a letter from his supervisor at LaSalle, which explains Harry's experience there. Like the Weldon court, I "certainly do not question [defendant's] prerogative to set any standards it wishes for employee performance [or experience]," nor do I "seek to substitute [my] view of what constitutes adequate performance [or experience]." Weldon, 896 F.2d at 799. In the instant case, though, defendants do not explicitly argue that plaintiff's experience was not equivalent to the PA3 level. Regardless, following Weldon, I am reluctant to treat this implied subjective assessment as evidence that Harry has failed to establish a prima facie case. See Weldon, 896 F.2d at 799. Instead, I will consider the implicit subjective assessment of plaintiff's prior experience in the context of plaintiff's implied argument that this evaluation was pretext for racial discrimination.
2. Adverse Employment Action
The Supreme Court has defined a tangible employment action as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Defendants argue that none of the actions described by Harry constitutes a tangible adverse employment action, and therefore plaintiff has failed to establish a prima facie case. Defendants, however, only discuss two of the many actions plaintiff lists as adverse employment actions in any amount of detail: Harry's rejection during probation for the PA3 position and Harry's receipt of a negative performance report. Although I agree with defendants that neither of these actions alone would constitute adverse employment action, the Third Circuit has "indicated that `a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.'" Shaner v. Synthes, 204 F.3d 494, 503 n. 9 (3d Cir. 2000) (quoting Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997) (citation omitted)). Hence, I will consider all of the actions of which plaintiff complains to determine if, when considered all together, there has been adverse employment action.
Defendants do mention other actions, like the denials of plaintiff's applications for certain examinations and denials of promotions for various positions, but they base their objection on the previously discussed and dismissed argument that Harry was simply not qualified for the positions he sought. See Def. Br. 11. Since there is a genuine issue of material fact regarding whether or not Harry was qualified either to take the examinations or for the positions themselves, defendants' argument that there was no adverse employment action because Harry was not qualified must fail at this juncture.
Plaintiff cites the following actions as components of his adverse employment action: promotion denials, reassignment to a help desk position that was clerical in nature, imposition of unreasonable due dates, elimination of his flex-time and a phone, receipt of negative performance reports and write-ups, demotions and examination application denials. Pl. Br. 26. As the Third Circuit has explained, "Although direct economic harm is an important indicator of a tangible adverse employment action, it is not the sine qua non. If an employer's act substantially decreases an employee's earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found." Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) (citation omitted). It is clear that all of the actions together satisfy the criteria of an adverse employment action under Third Circuit law because they both decreased Harry's earning potential (at least for a time) and caused significant disruption to his working conditions. Of course, whether any or all of these actions by defendants were justified is not relevant at this point. Defendants' actions against Harry, however, satisfy this prong of the prima facie case.
3. Circumstances That Raise an Inference of Discrimination
Under the fourth prong, in order to present a prima facie case, Harry must establish that defendants' actions raise an inference of discrimination. "Common circumstances giving rise to an inference of unlawful discrimination include the hiring of someone not in the protected class as a replacement or the more favorable treatment of similarly situated colleagues outside of the relevant class." Bullock v. Children's Hosp. of Phila., 71 F. Supp.2d 482, 487 (E.D. Pa. 1999). "Although a plaintiff may make out a prima facie case with such evidence, . . . neither of these is required." Id. (emphasis in original) (citing Pivirotto, 191 F.3d at 356-57). Indeed, in Pivirotto the Third Circuit made clear that the showing required to satisfy the fourth element of a plaintiff's prima facie case will vary depending upon the circumstances. Pivirotto, 191 F.3d at 357 ("[W]e have repeatedly emphasized that the requirements of the prima facie case are flexible, and in particular that `the fourth element must be relaxed in certain circumstances'") (quoting Torre v. Casio, Inc., 42 F.3d 825, 831 (3d Cir. 1994)).
This court's analysis of whether or not an inference of discriminatory animus has been raised by an employer's actions is governed by the "central focus" of the prima facie case — that is, whether defendant treated plaintiff less favorably than other employees because of his race. See Sarulllo, 352 F.3d at 798 (citing Pivirotto, 191 F.3d at 352). Plaintiff provides evidence that two individuals who did not have the "requisite" one year of experience at the PA3 level, but who are also not in the protected class, were permitted to take the LAN Administrator examination and obtain the corresponding promotion. Pl. Br. 21-22. More specifically, Priya Cherian, of East Indian descent, became a LAN Administrator after less than eight months of PA3 experience. Pl. Exh. N. Similarly, Thomas Koshy, of Asian descent, became a LAN Administrator without ever having worked at the PA3 level. Pl. Exh. O. Rather, Koshy was promoted after having been a PA2 for eleven months. Id.
Despite having the opportunity to explain this apparent discrepancy, i.e. by showing that these two individuals had extensive experience that would be equivalent to that obtained in the PA3 position while Harry did not have such experience, defendants do not do so. Rather, the focus of defendants' argument is that "a large number of African-Americans hold the upperlevel computer positions that plaintiff has sought and has not yet attained." Def. Br. 13. Defendant also argues that one of the positions sought by plaintiff, Network Administrator, is currently held by an African-American man. Def. Br. 12. As the Third Circuit has made clear, though, "[e]ven if the plaintiff was replaced by someone within her own class, this simply demonstrates that the employer is willing to hire people from this class . . . and does not establish that the employer did not fire the plaintiff on the basis of her protected status." Pivirotto, 191 F.3d at 353. So, based on this reasoning, the fact that defendants have allowed other African-Americans to take the relevant examinations and have subsequently promoted these individuals to the corresponding positions is not dispositive in the determination of whether or not an inference of racial discrimination could be drawn from the fact that plaintiff was not allowed to take the relevant examinations while other non-member individuals were so allowed. Absent another convincing explanation for this discrepancy, the fact that two individuals who were not members of the protected class were allowed to take the LAN Administrator examination and ultimately become LAN Administrators despite have the same apparent experience deficiency as Harry is sufficient to raise an inference of racial discrimination. B. Pretext
Because I ultimately conclude that the facts alleged regarding the LAN Administrator examination situation are sufficient to defeat summary judgment on Harry's racial discrimination claims under Title VII and the PHRA there is no need to analyze any other examples of racial discrimination presented by Harry, e.g. the denial of Harry's applications for the positions of Programmer Analyst Project Leader and Network Administrator.
After determining that plaintiff has established a prima facie case of racial discrimination, it is necessary to evaluate whether or not defendants have articulated a legitimate and non-discriminatory reason for plaintiff's termination. Defendants have contended at length, both in their brief and in letters to plaintiff, that Harry was denied certain opportunities at DHS, specifically, taking the relevant examinations and receiving the corresponding promotions, because he lacked the requisite experience. Def. Br. 18-19; Def. Exh. A at Harry-11, 12, 14-21, 24-27. Defendants also explain that Harry's "rejection during probation for [PA3] and his unsatisfactory performance report in May 1999 were for the legitimate reason that plaintiff was not performing adequate work for that position at that time." Def. Br. 18; Def. Exh. A at Harry-3, 4. These well-documented reasons are certainly legitimate and non-discriminatory. Accordingly, pursuant to the third step in the McDonnell Douglas burden-shifting scheme, the burden then returns to plaintiff to prove that these reasons are pretextual. McDonnell Douglas, 411 U.S. at 804 (providing that once defendant has articulated a legitimate, non-discriminatory reason for termination, the plaintiff must then come forward with evidence that defendant's stated reason is a pretext for discrimination).
This court notes that "[t]he burden of establishing a prima facie case of disparate treatment is not onerous." Tex. Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In order to survive summary judgment at this stage, plaintiff may meet his burden of establishing pretext in one of two ways. He must point "to some evidence, direct or circumstantial, from which a factfinder could reasonably 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" [hereinafter "the Fuentes test"]. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) and Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc)).
To establish pretext under the first approach, the plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence." Id. (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09 (3d Cir. 1997) (en banc)). It is insufficient to show simply that defendant's employment decision was wrong or mistaken, "since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent." Id. Plaintiff may, however, establish pretext by introducing evidence that an employer's proffered reason was "not merely wrong, but that it was `so plainly wrong that it cannot have been the employer's real reason.'" Id. (citing Keller, 130 F.3d at 1109).
Under the second approach of the Fuentes test, a plaintiff may prove pretext by showing that discrimination was "more likely than not" the motivation behind defendant's actions. See id. at 413. In addition to such direct evidence, the Third Circuit has held that a plaintiff may, by way of indirect evidence, "show that the employer has previously discriminated against [the plaintiff], that the employer has previously discriminated against other persons within the plaintiff's protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Id. (citing Simpson v. Kay Jewelers, Inc., 142 F.3d 639, 645 (3d Cir. 1998)).
Plaintiff does not explicitly argue that defendants' proffered reasons for their decisions are pretextual, and hence does not offer evidence beyond that offered to prove his prima facie case. The Supreme Court has made it clear, however, that "evidence previously introduced by the plaintiff to establish a prima facie case. . . . and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant's explanation is pretextual." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 n. 10. (1981). Hence, the evidence that defendants allowed two individuals of Asian descent to take the LAN Administrator examination and receive the corresponding promotion despite their having the same allegedly fatal deficiency as plaintiff is consequential in the present analysis. There is also testimony from another individual in plaintiff's protected class that defendants discriminated against her, as well. Pl. Exh. D at 35-39, 44-47, 56-58. She actually explained that there was an atmosphere of racial discrimination at DHS while she was there, that "[t]he handwriting was on the wall and it was so obvious." Pl. Exh. D at 44. Finally, plaintiff has presented evidence that defendants discriminated against him on previous occasions. First, Harry had his flex-time stripped, an action not known to have ever been taken against another. Pl. Exh. E at 34-35; Pl. Exh. D at 68-69. Next, Harry's desk was moved to directly in front of his supervisor's office, which has also never been done to someone with Harry's experience. Pl. Exh E. at 32-33. Finally, Harry was reprimanded for eating at his desk, even though many others had done so. Pl. Exh. E at 33.
In sum, there is evidence that "the employer has previously discriminated against [Harry], that the employer has previously discriminated against other persons within the plaintiff's protected class, [ and] that the employer has treated more favorably similarly situated persons not within the protected class." Jones, 198 F.3d at 413 (citation omitted). This is sufficient to allow a fact finder to conclude that discrimination was "more likely than not" the motivation behind defendant's actions, see id., and hence that defendants' proffered reasons are pretextual. Accordingly, defendants' motion for summary judgment on this ground will be denied.
II. Retaliation under Title VII and the PHRA (Count II)
Defendants argue that plaintiff cannot establish a prima facie case for retaliation under Title VII and the PHRA. In order to establish a prima facie case of retaliation (to the extent Harry alleges such a claim), Harry must show the following: (1) that he engaged in a protected activity; (2) that DHS took an adverse employment action; and (3) a causal link between the two. Urey v. Grove City College, 2004 WL 790305 at *1 (3d Cir. 2004). Defendants' main argument is that Harry has failed to establish that he engaged in "protected activity." Def. Br. 14-16. I agree.
Again, the Third Circuit has recognized that the analysis for a retaliation claim under the PHRA is identical to the analysis for a retaliation claim under Title VII. Urey v. Grove City College, 2004 WL 790305 at *1 (3d Cir. 2004) (citing Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 2002)). And again, it is unnecessary to separately address his claim under the PHRA.
Under Title VII it is unlawful for an employer to discriminate 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) (2004). Plaintiff alleges that defendants eliminated him from the LAN Administrator eligibility list in 2000 in retaliation for his request to review his test. Pl. Br. 29. This action, however, does not qualify as Title VII "protected activity" under either the "opposition clause" or the "participation clause" of § 2000e-3(a).
First, since § 2000e-3(a) only protects employees who oppose unlawful practices, a complaint to or about an employer must specifically include an allegation of an unlawful practice, such as racial discrimination, in order to constitute "opposition" that would qualify as a "protected activity." See Barber v. CSX Distribution Services, 68 F.3d 694, 701-02 (3d Cir. 1995). As the Third Circuit has made clear, "A general complaint of unfair treatment does not translate into a charge of illegal . . . discrimination." Id. at 702. Plaintiff does not allege, or provide any evidence to support an inference, that he either explicitly or implicitly charged that he was denied access to his test results because of his race when he contacted either DiLorenzo or his union representative about the denial. Rather, plaintiff simply alleges that he complained to both individuals that he was treated unfairly when he was not permitted to see his test. This complaint is insufficient to constitute "protected activity" under the opposition clause of § 2000e-3(a).
Next, to satisfy the "participation clause," an individual must participate in "an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). Plaintiff does not argue, nor can it reasonably be concluded, that plaintiff's discussion with his union representative qualifies as an investigation, proceeding or hearing under Title VII. See, e.g., E.E.O.C. v. Total System Services, Inc., 21 F.3d 1171 (11th Cir. 2000) (holding that participation in employer's internal, in-house investigation did not satisfy the participation clause); Brower v. Runyon, 178 F.3d 1002, (8th Cir. 1999) (holding that threat to initiate civil suit without specific complaint of illegal discrimination did not satisfy the participation clause); Berroth v. Farm Bureau Mut. Ins. Co., Inc., 232 F. Supp.2d 1244 (D. Kan. 2002) (holding that participation in employer's internal, in-house investigation did not satisfy the participation clause). Since plaintiff has failed to produce sufficient evidence to satisfy the first prong of the prima facie case of retaliation, that he engaged in protected activity, his claim must fail. Accordingly, defendants motion for summary judgment on Harry's claims for retaliation under Title VII and the PHRA will be granted.
III. Claims Brought Pursuant to § 1983 (Counts II IV)
Plaintiff asserts that the above-referenced actions by the defendants also give rise to a claim pursuant to § 1983 for violations of his First and Fourteenth Amendment rights. In order to recover under § 1983, Harry must establish that defendants, (1) while acting under color of state law, (2) deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986); Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000). Defendants argue in their motion for summary judgment that these § 1983 claims fail for a number of reasons. First, defendants claim that the statute of limitations has run on any events that occurred before January 31, 2001, including the events that are the basis of plaintiff's retaliation/First Amendment claim under § 1983. Def. Br. 21-22. Next, in the alternative, defendants reiterate their argument that Harry's speech was not protected and hence his retaliation/First Amendment claim must fail. Def. Br. 22-23. In regard to plaintiff's other claims against the City (including DHS and the Personnel Department), defendants argue that plaintiff has failed to provide sufficient evidence to allow a reasonable fact finder to conclude that the City (or DHS or the Personnel Department) had a policy or custom of racial discrimination such that it could be held liable under § 1983. Def. Br. 23-28. Defendants also contend that the defendants who are policy makers, i.e. former DHS Commission Joan Reeves, DHS Commissioner Alba Martinez, DHS Deputy Commissioner Russell Cardamone, former Personnel Director Linda Seyda, Personnel Director Lynda Orfanelli are entitled to qualified immunity. Def. Br. 28-29. Defendants argue in the alternative that plaintiff has failed to produce evidence that these individual defendants were personally involved in any of the alleged actions. Def. Br. 29-30. Each of these arguments will be addressed in turn. A. Statute of Limitations
It is well-established that the state's statute of limitations for personal injury actions applies to all actions brought under § 1983. See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599-600 (3d Cir. 1998). Pennsylvania's two-year statute of limitations for personal injury actions, see PA. CONS. STAT. § 5524 (2004), therefore governs Harry's racial discrimination and retaliation claims under § 1983. Federal law, however, still governs when a § 1983 action accrues, Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998), under which "the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action." Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Defendants argue that "any event that took place before January 31, 2001 is time-barred as a matter of law" because the complaint in the instant case was not filed until January 31, 2003. Def. Br. 22. Plaintiff argues in opposition that "he has established a continuing violation of harm which [tolls the] two year statute of limitations" which would otherwise bar some of his claims. Pl. Br. 30. I agree with defendants.
The Third Circuit has explained that "[t]he continuing violations doctrine is an `equitable exception to the timely filing requirement.'" Cowell v. Palmer Tp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). So, "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred." Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). Harry must establish that the defendants' conduct was "more than the occurrence of isolated or sporadic events." West, 45 F.3d at 755 (quotation omitted). The Third Circuit has explained that a court should consider at least the following three factors when considering whether the continuing violations doctrine applies:
(1) subject matter — whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency — whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence — whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.Cowell, 263 F.3d at 292 (citing West, 45 F.3d at 755 n. 9). "The consideration of `degree of permanence' is the most important of the factors." Id. (citing Berry v. Bd. of Supervisors of Louisiana St. Univ., 715 F.2d 971, 981 (5th Cir. 1983)). Considering the Supreme Court's more recent decision in National R.R. Passenger Corp. v. Morgan, though, the crucial inquiry is whether the actions alleged were "discrete discriminatory acts" or whether they constitute a "hostile work environment." Morgan, 536 U.S. 101, 110-121 (2002).
The Court explained that "[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable `unlawful employment practice.'" Id. at 114. Hence, a plaintiff whose discrimination claims are based on alleged discrete discriminatory acts can "only file a charge to cover discrete acts that `occurred' within the appropriate time period." Id. Harry's allegations that defendants discriminated against him by improperly denying him the opportunity to take certain examinations and refusing to place him on the relevant eligibility lists are akin to claims based on a failure to promote; Harry sought promotions he could never get without being allowed to take these examinations and being placed on these eligibility lists. These refusals are discrete discriminatory acts, which the Court explained "are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. So, "[w]hile [Harry] alleged that he suffered from numerous discriminatory and retaliatory acts from the date that he was hired through [the present], . . . only incidents that took place within the timely filing period are actionable." Id. at 114. Hence, any acts that occurred prior to January 31, 2001 cannot be the basis of the discrimination claims in the instant action based on § 1983. As a result, defendants' motion for summary judgment on plaintiff's retaliation/First Amendment claim under § 1983, which is based on defendants' actions of May 2000, will be granted. Since plaintiff's § 1983 claims based on racial discrimination are based on actions that occurred both before and after January 31, 2001, only those claims based on events after January 31, 2001 survive this motion for summary judgment.
Harry does not allege nor produce any evidence in support of an inference that Harry's "workplace [was] permeated with `discriminatory intimidation, ridicule, and insult,' that [was] `sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations omitted). Hence, no reasonable fact finder could conclude that defendants created a hostile work environment.
This outcome is consistent with the Third Circuit's description of when the continuing violations doctrine is applicable, as each of these acts "had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his rights and . . . the consequences of the act[s] would continue even in the absence of a continuing intent to discriminate." Cowell, 263 F.3d at 292.
B. Municipal Liability
It is well established that "[t]he City, as a municipality, is not liable through respondeat superior for the constitutional torts of its employees." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1295 (3d Cir. 1997) (citing Monell v. Dept. of Social Services, 436 U.S. 658 (1978)). Rather, "[m]unicipal liability attaches only `when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury' complained of." Id. (citing Monell, 436 U.S. at 694). The Third Circuit explained in Andrews v. City of Philadelphia:
A government policy or custom can be established in one of two ways. Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state officials [are] so permanent and well-settled as to virtually constitute law.895 F.2d 1469, 1480 (3d Cir. 1990) (quotations omitted) (emendations in original). As defendants highlight, under either approach "it is incumbent upon [the] plaintiff to show that a policymaker is responsible either for the policy or, through acquiescence, for the custom." Id.
Plaintiff "concede[s] that there is no evidence that there is an official City policy of racial discrimination and retaliation." Pl. Br. 32. Rather, plaintiff bases his § 1983 case against the City on his "aver[ment] that those individual Defendants who are policy-makers, DHS Commissioners Reeves and Alba E. Martinez and Central Personnell [sic] Directors Linda Seyda and Linda Orfanelli, are policy makers who were all aware and indeed part of discrimination against Plaintiff." Id. He then explains that "[i]nasmuch as they at the very least acquiesced to the discriminatory practices against Plaintiff, they bind the City of Philadelphia as liable in this case." Id. Plaintiff's argument fails because he does not produce any evidence to support an inference that there was a custom of racial discrimination and retaliation supported by the relevant policy makers' consistent acquiescence.
The Third Circuit has explained that for a policy maker's omission to form the basis for municipal liability under § 1983, plaintiff must show that the policy maker's inaction rises to the level of "deliberate indifference" to the rights of those individuals who are affected by the offending conduct of that policy maker's subordinate. See Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir. 1997). More specifically, plaintiff must show "both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor's inaction could be found to have communicated a message of approval to the offending subordinate are present." Id. (internal quotations and citations omitted). In other words, Reeves, Martinez, Seyda and Orfanelli, must have (1) known about the alleged discriminatory acts being perpetrated by their subordinates (Ranajee and DiLorenzo), which implies a knowledge that the acts were, in fact, discriminatory, and (2) ignored the objectionable conduct.
Plaintiff appears to concede that Ranajee and DiLorenzo are not policy makers, such that their actions could bind the City, since he does not argue otherwise. On the other hand, defendants' concede (by not arguing otherwise) that Reeves, Martinez, Seyda and Orfanelli are policy makers for purposes of municipal liability.
This is not a case where blatantly discriminatory conduct was occurring that the policy makers knew of and purposefully turned a blind eye. Rather, this is a seemingly isolated situation with attenuated facts linking the actions to any amount of discriminatory animus. More importantly, there is no evidence to show that these policy makers knew of any alleged discriminatory animus or themselves had any discriminatory motive. The only evidence in the record plaintiff cites to support his contentions is his own answers to interrogatories. Pl. Br. 32-35. And even in these averments Harry does not contend that any of the defendants knew about discriminatory animus against him. Rather, Harry simply contends that each defendant "allowed" the allegedly discriminatory actions taken by respective subordinates in the chain of command No reasonable fact finder could conclude based on this evidence that the policy makers' inaction rises to the level of "deliberate indifference" to Harry's rights. Thus, no reasonable fact finder could conclude that there was a custom of racial discrimination supported by the relevant policy makers. Accordingly, defendants' motion for summary judgment on plaintiff's § 1983 claims against the City (including DHS and the Personnel Department) will be granted.
C. Lack of Personal Involvement by Policy Makers
Defendants argue that plaintiff has failed to provide sufficient evidence to allow a reasonable fact finder to conclude that Reeves, Martinez, Cardamone, Seyda and Orfanelli could be found liable for the allegedly discriminatory actions of Ranajee and DiLorenzo. As the Third Circuit has established, "A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)). As explained above, there is no evidence to show that these policy makers either participated in or had actual knowledge and acquiesced in the allegedly discriminatory conduct. See id. ("Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity."). The only evidence in the record plaintiff cites to support his contentions is his own answers to interrogatories, Pl. Br. 32-35, and letters from Martinez responding to complaints of "unjust" actions from Harry. Pl. Exhs. T, U. Plaintiff does not refer to the letter he wrote to Martinez, in which he did not specifically communicate his suspicion of racial discrimination or retaliation. See Def. Exh. A at Harry-19. Again, this is not a case involving blatantly discriminatory conduct, such that knowledge of the situation is sufficient to imply knowledge of the alleged discrimination. The apparently valid justifications for the subordinates' decisions regarding Harry implies that the supervisors did not have actual knowledge of any (alleged) discriminatory animus. Unlike the plaintiffs in Atkinson v. Taylor and Coleman v. Kaye, Harry did not directly write or speak to these supervisory defendants regarding his suspicion of discrimination. See Atkinson, 316 F.3d 257, 270 (3d Cir. 2003) ("[T]here is sufficient evidence that appellee either wrote or spoke to each supervisory defendant regarding both his exposure to ETS and the retaliatory harassment by [a subordinate]."); Coleman, 87 F.3d 1491, 1508 (3d Cir. 1996) ("Coleman had presented her concerns to [a supervisor] in writing about the discriminatory treatment that she was enduring, and [the supervisor] chose to take no action whatsoever."). Harry's one vague allegation, communicated only to Martinez, that he was treated unjustly is not sufficient to establish actual knowledge of the alleged discrimination. Plaintiff has therefore failed to produce sufficient evidence to allow a reasonable fact finder to conclude that Reeves, Martinez, Cardamone, Seyda or Orfanelli can be liable for racial discrimination or retaliation. Accordingly, defendants' motion for summary judgment on plaintiff's § 1983 claims against these defendants will be granted.
Since summary judgment will be granted on this ground for these defendants, it is unnecessary to consider defendants' alternative argument of qualified immunity for these same defendants on the same claims.
IV. § 1985 Claims (Counts II IV)
Defendants argue that plaintiff has failed to produce any evidence in support of his § 1985 claim. The Third Circuit has made it clear that in order to state a claim under 42 U.S.C. § 1985(3), Harry must prove:
Although plaintiff does not allege with specificity that defendants violated subsection three of § 1985, it is clear that this is the only subsection applicable to the instant case.
(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997). The crucial element of the conspiracy prong is an agreement between two or more individuals to deprive another of equal protection based on a racial or class based discriminatory animus. See Shehee v. City of Wilmington, 67 Fed. Appx. 692, 697 (3d Cir. 2003) ("[I]t is the agreement to retaliate against [plaintiff] for exercising his First Amendment rights that brings the conspiracy under § 1985."). Plaintiff has failed to produce any evidence whatsoever of an agreement between any of the defendants to deprive Harry of his constitutional rights. And as the Third Circuit has made abundantly clear, "`Mere conclusory allegations of deprivations of constitutional rights,' are insufficient to state a § 1985(3) claim." D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1377 (3d Cir. 1992) (quoting Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 492 (1972)). Accordingly, defendants' motion for summary judgment on plaintiff's § 1985 claim will be granted.
Additionally, Harry's inability to sustain his First Amendment retaliation claim and his Fourteenth Amendment racial discrimination claims against the City, DHS, the Personnel Department and individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli under § 1983 necessarily causes his § 1985 claims, grounded in the same underlying actions by these defendants, to fail. See Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) ("[T]he absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.").
V. Intentional Infliction of Emotional Distress (Counts III IV)
In counts III and IV of his complaint, Harry alleges that all the defendants committed the tort of intentional infliction of emotional distress ("IIED"). A plaintiff must establish four elements to state a claim for IIED: (1) the conduct of the defendant must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) the conduct must cause emotional distress; and (4) the distress must be severe. See Hoy v. Angelone, 720 A.2d 745, 753-54 (Pa. 1998); Clark v. Township of Falls, 890 F.2d 611, 623 n. 8 (3d Cir. 1989); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir. 1979) (citing RESTATEMENT (SECOND) OF TORTS § 46 (1965)). As a preliminary matter, the court must determine if the defendants' conduct is extreme enough to warrant recovery. See Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988).
The Supreme Court of Pennsylvania has never decided whether an action for IIED is available under Pennsylvania law. See Hoy v. Angelone, 720 A.2d 745, 754 n. 10 (Pa. 1998); Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 988 ( Pa. 1987). The Third Circuit, however, has predicted that the Pennsylvania Supreme Court will adopt the tort, and thus has recognized the availability of this cause of action in Pennsylvania. See Clark v. Township of Falls, 890 F.2d 611, 623 (3d Cir. 1989); Williams v. Guzzardi, 875 F.2d 46, 51 (3d Cir. 1989).
Defendants argue that plaintiffs' allegations are not sufficiently outrageous as a matter of law. Def. Br. 34-35. Plaintiff responds by simply arguing that the alleged actions are outrageous enough to satisfy this standard. Pl. Br. 37. First, it is important to note that "Pennsylvania courts have been `chary to declare conduct `outrageous' so as to permit recovery.'" See Clark, 890 F.2d at 623; Hoy, 720 A.2d at 753. Generally, it is insufficient "that the defendant has acted with intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation that would entitle plaintiff to punitive damages for another tort." See Hoy, 720 A.2d at 754 (citing RESTATEMENT (SECOND) TORTS § 46 cmt. d). Liability has been found only when the conduct "`is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" See Hoy, 720 A.2d at 754; Clark, 890 F.2d at 623. Some examples of sufficiently abhorrent behavior which have given rise to IIED claims under Pennsylvania law are: hospital employees giving false reports in order to cause someone to be indicted for homicide, see Banyas v. Lower Bucks Hospital, 437 A.2d 1236 (Pa.Super. 1981); an employer sexually harassing his employee, forbidding her from speaking with others, following her at work, and withholding necessary information from her, see Bowersox v. P.H. Glatfelter Co., 677 F. Supp. 307, 311 (M.D. Pa. 1988); and, a defendant hitting a child with his car and burying him on the side of the road only to be discovered by the parents months afterwards. See Papieves v. Kelly, 263 A.2d 118 ( Pa. 1970).
In contrast, the courts have more often found other behavior, though deplorable, to nonetheless be insufficient to give rise to IIED claims under Pennsylvania law. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir. 1990) (sexual harassment insufficient); Clark, 890 F.2d at 623 (setting aside verdict for plaintiff who was defamed and falsely referred for prosecution); Cox, 861 F.2d at 395 (callous termination of employment, done for improper reasons, insufficient); Sicalides v. Pathmark Stores, Inc., No. CIV. A. 99-CV-3465, 2000 WL 760439, at *11-12 (E.D. Pa. June 12, 2000) (offensive comments and harassment insufficient); Hampton v. Tokai Financial Services, Inc., No. CIV. A. 98-5074, 1999 WL 83934, at *3 (E.D. Pa. Feb. 18, 1999) (dismissing IIED claim arising from racist remarks); Coney v. Pepsi Cola Bottling Co., No. CIV.A. 97-2419, 1997 WL 299434, at *1 (E.D. Pa. May 29, 1997) (dismissing IIED claim and noting that "highly provocative racial slurs and other discriminatory incidents do not amount to actionable outrageous conduct"); E.E.O.C. v. Chestnut Hill Hosp., 874 F. Supp. 92, 96 (E.D. Pa. 1995) (racial discrimination insufficient); Parker v. DPCE, Inc., Civ. A. No. 91-4829, 1992 WL 501273, at *12-13 (E.D. Pa. 1992) (dismissing IIED claim arising from racial harassment); Ceesay v. Miller, Mason Dickenson, CIV.A. No. 90-2800, 1990 WL 121218, at *7 (E.D. Pa. Aug.15, 1990) (same, arising from sexual and racial harassment); Madreperla v. Williard Co., 606 F. Supp. 874, 880 (E.D. Pa. 1985) (no outrageous conduct found where employer engaged in a premeditated plan to force an employee to resign by making employment conditions difficult); Cautilli v. GAF Corp., 531 F. Supp. 71, 74 (E.D. Pa. 1982) (no outrageous conduct found where employer deceived employee into foregoing other employment); Motheral v. Burkhart, 583 A.2d 1180, 1190 ( Pa. Super. 1990) (falsely accusing plaintiff of child molestation insufficient). More importantly for the instant case, courts in this district have found that "`[r]acial discrimination alone . . . does not state a claim for intentional infliction of emotional distress.'" Chestnut Hill Hosp., 874 F. Supp. at 96 (quoting Nichols v. Acme Markets, Inc., 712 F. Supp. 488 (E.D. Pa. 1989), aff'd, 902 F.2d 1561 (3d Cir. 1990)).
Moreover, the Third Circuit has "recognized that it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir. 1988). Given that Harry's claim for IIED is premised on the same actions which are the basis of his claims for racial discrimination and retaliation, it is clear that even if plaintiff proves that these actions were motivated by discriminatory animus, "[t]hese acts, while deplorable, do not constitute extreme and outrageous conduct as Pennsylvania has defined those terms." Clark, 890 F.2d at 624. Accordingly, defendants' motion for summary judgment on plaintiff's claim for IIED will be granted.
VI. Punitive Damages
Plaintiff seeks punitive damages for each claim he asserts. In other words, Harry seeks an award of punitive damages for violations of: (1) § 1983 — by the City and the individual defendants in their official and personal capacities; and (2) the PHRA — by the City and the individual defendants in their official and personal capacities. Defendants obviously oppose plaintiff's position. First, defendants highlight the Supreme Court's holding that "a municipality is immune from punitive damages under 42 U.S.C. § 1983." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Defendants then note that "an official-capacity suit against a state officer `is not a suit against the official but rather is a suit against the official's office. As such it is no different from a suit against the State itself.'" Hafer v. Melo, 502. U.S. 21, 26 (1991) (quoting Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)). And since a municipality is immune from punitive damages under § 1983, so too are individuals sued in their official capacities. Defendants do not explicitly argue that the defendants sued in their personal capacities are likewise immune from liability for punitive damages under § 1983. In fact, as plaintiff points out, the Supreme Court in Hafer made it clear that they are not so immune. See Hafer, 502 U.S. at 31 ("We hold that state officials, sued in their individual capacities, are `persons' within the meaning of § 1983. . . . [N]or are state officers absolutely immune from personal liability under § 1983 solely by virtue of the `official' nature of their acts."). Hence, defendants' motion for summary judgment on plaintiff's claim for punitive damages based on § 1983 will be granted for the City (and DHS and the Personnel Department), as well as all individual defendants in their official capacities, but denied as to the individual defendants in their personal capacities.
To the extent that plaintiff seeks punitive damages under Title VII, this claim will not be addressed until the issue of against whom plaintiff can assert a Title VII claim is resolved. See supra note 6 of this opinion.
Of course, since defendants' motion for summary judgment will be granted on plaintiff's claims for race discrimination under § 1983 against Reeves, Martinez, Cardamone, Seyda and Orfanelli, see Part III.C of this opinion, the only claims for punitive damages under § 1983 that remain are those against defendants Ranajee and DiLorenzo in their personal capacities.
Defendants argue simply that punitive damages are unavailable at all under the PHRA, citing the Pennsylvania Supreme Court's decision in Hoy v. Angelone. The court plainly stated, "In the absence of express statutory language or any further legislative guidance, we hold that punitive damages are not available under the [PHRA]." Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998); see also Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 570 n. 3 (3d Cir. 2002) ("[P]unitive damages are not available under the PHRA."). Accordingly, defendants' motion for summary judgment on plaintiff's claim for punitive damages under the PHRA will be granted.
Since Congress explicitly provided for the recovery of punitive damages for violations of Title VII, see 42 U.S.C. § 1981a, defendants do not bother arguing otherwise. Since plaintiff's claim for racial discrimination under Title VII will survive this motion for summary judgment, so too will his claim for punitive damages based on such violation.
CONCLUSION
Defendants' motion for summary judgment will be granted in part and denied in part. Plaintiff has shown that there is a genuine issue of material fact concerning his claim of racial discrimination under Title VII and the PHRA. Therefore, defendants' motion for summary judgment on these claims will be denied. In contrast, plaintiff has failed to produce sufficient evidence to allow a reasonable fact finder to find in plaintiff's favor on his claims for retaliation under Title VII, the PHRA and § 1983, making summary judgment on these claims appropriate. Harry's § 1983 racial discrimination claims based on actions that occurred prior to January 31, 2001 are barred by the statute of limitations. On the other hand, the § 1983 racial discrimination claims based on events that occurred after January 31, 2001 survive this motion for summary judgment, but summary judgment will be granted on these claims as they are asserted against the City of Philadelphia, the Philadelphia Department of Human Services, the Philadelphia Personnel Department, and individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli because no reasonable fact finder could rule in Harry's favor on these claims. Hence, only Harry's § 1983 racial discrimination claims against defendants Ranajee and DiLorenzo based on events that occurred after January 31, 2001 survive this motion for summary judgment. Harry has not provided any evidence in support of his claim of a conspiracy to deprive him of his constitutional rights under § 1985, and so summary judgment will be granted on this claim. Harry has also not carried his burden on his claim for intentional infliction of emotional distress, so summary judgment will be granted on this claim, as well. Punitive damages are not available as a remedy under the PHRA. Punitive damages are also not available against the City of Philadelphia, the Philadelphia Department of Human Services, the Philadelphia Personnel Department, and any of the individual defendants in their official capacities under § 1983. Finally, Harry has failed to produce sufficient evidence to allow a reasonable fact finder to find in his favor on his claims for punitive damages against defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli in their individual capacities. An appropriate order follows.ORDER
And now, this ____ day of June, 2004, upon consideration of the motion for summary judgment of defendants the City of Philadelphia, the Philadelphia Department of Human Services, the Philadelphia Personnel Department, former DHS Commission Joan Reeves, DHS Commissioner Alba Martinez, DHS Deputy Commissioner Russell Cardamone, DHS Systems Manager Daljit Ranajee, former Personnel Director Linda Seyda, Personnel Director Lynda Orfanelli, and Hiring Services Manager Richard DiLorenzo, the accompanying memoranda of law, and statement of facts (Docs. 12, 13), and the response in opposition thereto of Renault Harry, plaintiff's accompanying statement of facts (Docs. 24, 25), it is hereby ORDERED that the defendants' motion is GRANTED in part and DENIED in part, as follows:(1) Defendants' motion for summary judgment is DENIED on plaintiff's claims for racial discrimination under Title VII and the PHRA;
(2) Judgment is ENTERED in favor of all defendants and against Renault Harry for plaintiff's claims for retaliation under Title VII, the PHRA and § 1983;
(3) Judgment is ENTERED in favor of defendants the City of Philadelphia, the Philadelphia Department of Human Services, the Philadelphia Personnel Department, and individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli and against Renault Harry on plaintiff's claims for racial discrimination under § 1983;
(4) Judgment is ENTERED in favor of defendants Ranajee and DiLorenzo in their official capacities on all of plaintiff's claims of racial discrimination under § 1983 and in their individual capacities based on actions that occurred prior to January 31, 2001;
(5) Judgment is ENTERED in favor of all defendants and against Renault Harry for plaintiff's claims for conspiracy to deprive him of his constitutional rights under § 1985;
(6) Judgment is ENTERED in favor of all defendants and against Renault Harry for plaintiff's claims for intentional infliction of emotional distress;
(7) Judgment is ENTERED in favor of all defendants and against Renault Harry on plaintiff's claims for punitive damages under the PHRA;
(8) Judgment is ENTERED in favor of the City of Philadelphia, the Philadelphia Department of Human Services, the Philadelphia Personnel Department, and all individual defendants in their official capacities and against Renault Harry for plaintiff's claims for punitive damages under § 1983; and
(9) Judgment is ENTERED in favor of individual defendants Reeves, Martinez, Cardamone, Seyda and Orfanelli in their individual capacities and against Renault Harry on plaintiff's claims for punitive damages under § 1983.
A settlement conference is scheduled with the undersigned for July 16, 2004 at 2 p.m. in chambers.
Trial on the remaining issues is scheduled for August 23, 2004 at 10 a.m.