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DILL v. PENNSYLVANIA

May 22, 1998

RICHARD DILL, Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, PHILADELPHIA COUNTY ASSISTANCE OFFICE, et al., Defendants.



The opinion of the court was delivered by: KATZ

MEMORANDUM AND ORDER

 Katz, J.

 May 22, 1998

 Factual Background

 Plaintiff Richard Dill is an African American male who was employed by the Commonwealth of Pennsylvania Department of Public Welfare (DPW) Philadelphia County Assistance Office (PCAO) from September, 1976 until he resigned in November, 1984. By letter dated October 19, 1995, plaintiff applied for reinstatement as an Income Maintenance Caseworker. His application was denied, and the reason given was plaintiff's poor performance and attendance records during his prior DPW employment. Plaintiff asserts that these reasons were pretextual, and the actual reasons for the denial of his reinstatement were his race and/or retaliation for his having engaged in protected activities, and he here sues DPW and James Mulvaney, the PCAO Director of Personnel Services at the time of Dill's denial.

 Reinstatement is a procedure whereby former employees may be rehired in an expeditious manner. It is not automatically granted to former employees who request it; the agency has discretion in the reinstatement decision. In deciding whether to offer reinstatement to a particular employee, the PCAO weighs several factors: the individual's record of performance, attendance, and discipline as a PCAO employee in the past; any intervening employment history; and information supplied by references. To gather this information, each reinstatement application received is assigned to an employee in the Recruitment and Placement Unit of the Personnel Services section. The assigned Personnel employee retrieves the applicant's personnel file from the PCAO archives, gets an updated personal and employment history from the applicant, and does a reference check with PCAO staff, prior supervisors, and other employers. After collecting all the pertinent information, the Personnel staff member analyzes it and makes a recommendation to the Personnel Director, who has the final word on all PCAO reinstatement applications. (Ex. A, Declaration of Edward Pelc, PP 6-8).

 Dill's reinstatement application was handled in accordance with the regular procedure. When the PCAO received Mr. Dill's letter on October 23, 1995, Mr. Mulvaney directed the letter to Sherrin Bryant, the Chief of Recruitment and Placement. Ms. Bryant assigned plaintiff's request to Monica Rios, a personnel Analyst, for review and recommendation. After obtaining and assessing the relevant materials, Ms. Rios and Ms. Bryant recommended that plaintiff's application for reinstatement be denied. (Ex. B, Declaration of James L. Mulvaney, PP 3-5, 7-8; Ex. B Att. 2, Recommendation and Report by Bryant).

 The recommendation recounted Mr. Dill's performance evaluation history, which was basically good, and listed these additional facts to consider: "When Mr. Dill was [with] our agency during the period of 1976-1984, he received a written reprimand for unexcused absence on 4/84 and request for job abandonment action on 11/14/84. Mr. Dill did not report to work for 5 days (11/1/84, 11/7/84, 11/8/84, 11/13/84, 11/14/84). Mr. Dill voluntarily resigned on 11/15/84 as IMCW [with] Phila CAO. Also, Mr. Dill has excessive [sick leave] usage for 1994 and when he was [with] our agency -- 1984." The recommendation further contained this statement: "Mr. Pelc does remember Mr. Dill and he stated that he was a trouble maker and he received a lot of complaints in relating to his unexcused absences and Mr. Pelc did not recommend to transfer Mr. Dill to our dept. Based on all information and experience, [sick leave] usage and PER (even though this references are good), do not recommend transfer." (Ex. B. Att 2).

 When Mr. Mulvaney received this recommendation, he concurred with it based on the information presented to him. A letter dated November 28, 1995 was sent by Mr. Mulvaney informing Mr. Dill that his application for reinstatement was denied. As reasons for the denial, the letter cited plaintiff's unfavorable leave and attendance record; his 1993 performance evaluation (which he received while working for another Commonwealth agency) that indicated the quality of his work needed improvement, although he met standards overall; and the problems he had during his prior employment, including infractions for unexcused absences and the threatened job abandonment action. (Ex. A Att. 2). Plaintiff responded in a letter dated December 7, 1995, in which he said that he "totally disagreed with every and all reasons given" for the denial, and in which he requested reconsideration of his application for reinstatement. (Ex. A Att. 3). In a letter dated December 21, 1995, Mr. Mulvaney informed Mr. Dill that the decision to deny reinstatement remained. (Ex. A Att. 4). The PCAO has approximately 2,200 employees. Statistically, that work force consists of the following: African American males 10.34% White males 11.68% Hispanic males 2.16% Other males 1.20% African American females 58.11% White females 10.80% Hispanic females 5.15% Other females .55%

 (Ex. A P 21).

 The PCAO hires Income Maintenance Caseworkers, the position for which Mr. Dill applied, on an ongoing basis. During 1995 and 1996, the office received 36 requests for reinstatement to that position. One individual withdrew the request before any action was taken. Of the remaining 35 applications, 10 were granted and 25 were denied. Of the 10 individuals offered reinstatement, there were two African American males, four African American females, one white male, two white females, and one Hispanic female. Of the 25 applications denied, there were seven African American males, six African American females, four white males, two white females, two Hispanic males, one Hispanic female, and three females of unknown race. (Ex. A P 19).

 After plaintiff's denial of reinstatement on November 28, 1995, the first Income Maintenance Caseworker position filled was on December 4, 1995. The person hired at that time was an African American female. (Ex. A P 20).

 Defendants filed a motion to dismiss, and the court granted that motion in part. Defendants here move for summary judgment on the remaining claims: a Title VII claim against DPW, and § 1981, § 1983, PHRA, and ...


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