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O'BRIEN v. CITY OF PHILADELPHIA

November 22, 1993

FRANK J. O'BRIEN, IV
v.
CITY OF PHILADELPHIA, PHILADELPHIA POLICE DEPARTMENT, MAYOR W. WILSON GOODE, POLICE COMMISSIONER WILLIE WILLIAMS, INSPECTOR WILLIAM BERGMAN, JOHN STRAUB, ESQUIRE, INSPECTOR SYLVESTER JOHNSON, LIEUTENANT RONALD GREEN and LIEUTENANT MARK DORSEY



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 November 22, 1993

 This civil action has been brought before the Court upon the defendants' motion for summary judgment or, in the alternative, for the entry of a default judgment against the plaintiff, Frank O'Brien, IV. In accordance with the rationale set forth in the paragraphs which follow, the motion for summary judgment is granted.

 I. STATEMENT OF THE CASE

 The relevant facts underlying this case, as presented in the parties pleadings, may be succinctly summarized. In March, 1990, the plaintiff, who was then and still is employed as a police officer for the Southeastern Pennsylvania Transportation Authority ("SEPTA"), applied for a police officer's position with the defendant Philadelphia Police Department. In furtherance of that application, Mr. O'Brien took and, according to the allegations contained in the complaint, passed all of the necessary medical, polygraph, written and oral psychological tests. However, on June 15, 1990, Mr. O'Brien received notice from the Philadelphia Police Department's Headquarters Investigation Unit that it was recommending that the Police Commissioner reject plaintiff's application because of criminal conduct. The plaintiff appealed this decision to a police department review board and thereafter learned that the recommended rejection was based in part on an allegation by his mother-in-law that he had assaulted her and on the fact that his estranged wife had obtained a Protection from Abuse Order against him. The appeal board subsequently recommended that Plaintiff be placed back into the hiring process and this recommendation was approved by the Police Commissioner.

 In October, 1990, Mr. O'Brien was again given polygraph and medical examinations which he passed a second time. In April, 1991, he then appeared before the Department's Applicant Acceptance Committee to explain the allegations of his mother-in-law and estranged wife and to explain the circumstances surrounding the then-recent filing of a civil lawsuit charging him and another SEPTA police officer with the use of excessive force against an individual using the SEPTA transportation system. On August 19, 1991, plaintiff took and passed another psychological examination. Nevertheless, on August 27, 1991, Mr. O'Brien was notifed that his application for employment as a Philadelphia police officer had been finally rejected on the basis of criminal conduct.

 In November, 1992, the plaintiff, acting pro se, commenced this lawsuit against the above-captioned defendants alleging that they violated his civil and constitutional rights in discriminating against and refusing to hire him on the basis of his race and national origin thereby causing him to suffer emotional distress. Although the amended complaint is somewhat unclear, it appears that the plaintiff has endeavored to state disparate impact and disparate treatment claims for relief under Title VII and/or Section 1981 of the Civil Rights Act and under the Fourteenth Amendment to the U.S. Constitution.

 II. DISCUSSION

 1. Legal Standards Applicable to Summary Judgment Motions.

 The prevailing principles to be applied by the district courts in ruling upon motions for summary judgment are codified in Fed.R.Civ.P. 56(c):

 . . . The judgment sought shall be rendered forthwith

 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. A summary judgment,

 interlocutory in character, may be rendered on the

 issue of liability alone although there is a genuine

 issue as to the amount of damages.

 Pursuant to this rule, the district courts must look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 267 U.S. App. D.C. 337, 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S. Ct. 75, 102 L. Ed. 2d 51 (1988).

 Generally speaking, the party seeking summary judgment always bears the initial responsibility of informing the court of the basis for its motion and of identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In ruling upon a summary judgment motion, the court must assume the truth of the nonmovant's evidence and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Lockley v. Chao, 812 F. Supp. 246, 248-249 (D.D.C. 1993).

 This does not mean, however, that a non-moving party may rest upon the mere allegations contained in his or her pleadings in defense of a summary judgment motion. To the contrary, ...


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