employment action). There is no reference to her PHRC charge in any of
the documents related to her placement on restricted duty, nor is there
any testimony or other evidence from which a reasonable jury could find
that she was retaliated against because she filed the 1997 PHRC charge.
The Bureau is thus entitled to summary judgment in its favor on this
c. Advocacy for Minority Hiring
Plaintiff advances evidence of her advocacy for an increase in the
number of minority liquor enforcement officers at the Bureau,
(Plaintiffs' Exh., Vol. 4, Tab. 7, Memorandum from Sharon R. Williams,
Jan. 23, 1998), and argues that she was retaliated against for engaging
in that protected activity. Again, however, there is insufficient
evidence from which a reasonable factfinder could infer that she was
treated adversely because of her advocacy. Plaintiff fails to connect the
dots between her efforts to increase the number of minorities in the
Bureau and any tangible adverse employment action taken against her, and
thus cannot establish a prima facie case of retaliation.
I have scoured the record for evidence to support plaintiffs' claim of
retaliation and have come up empty-handed. Plaintiff presents no evidence
of other adverse employment actions that could form the basis for a
retaliation claim.*fn5 While plaintiff engaged in protected activities,
and was subjected to some adverse employment actions, she has not adduced
sufficient evidence from which a reasonable jury could find a causal
nexus between the two. At best, the evidence demonstrates that plaintiff
and her supervisors, Bunting and Corbett, had disagreements, and that
Bunting and Corbett on occasion took actions that plaintiff speculates
were motivated by a retaliatory animus. This is not a sufficient basis
for a retaliation claim and, therefore, summary judgment will be granted
in favor of the Bureau as to plaintiffs' claims of retaliation.
2. Disparate Treatment
Plaintiff also asserts a disparate treatment claim, which requires
plaintiff to show that she was "singled out and treated less favorably
than others similarly situated on the basis of an impermissible
criterion." EEOC v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990).
One genuine issue of material fact arises out plaintiffs' evidence that
she was treated differently from other alcoholics who were not of her
race or sex. She points to three other white male Bureau employees in
similar positions who were known to have suffered from alcoholism
but were treated more favorably than she was. Plaintiff testified at her
deposition that: (1) Tyler Morgan, a white male employee with the
Bureau, went on disability for alcoholism and returned to the force on
full duty, with gun and badge (Williams Deposition I, at 92-93); (2)
Richard Veit, a white male, submitted a memo to the Bureau informing them
that he had recently emerged from alcohol treatment, yet was not placed
on limited duty (Defendants' Exh. 1A, Deposition of Sharon Williams,
Dec. 22, 1999, at 93-95) ("Williams Deposition II"); and (3) David
Eichensehr, another white male liquor enforcement officer who the Bureau
knew to be an alcoholic, yet allowed to remain on active duty
(Plaintiffs' Exh. 11, Affidavit of Sharon Williams, at ¶ 9).
Plaintiffs' account also is supported by the deposition of another Bureau
employee. (Plaintiffs' Exh. 1, Affidavit of Michael H. Dever, at ¶
This evidence demonstrates at least one genuine issue of material
fact; a reasonable jury could find on the basis of plaintiffs' deposition
testimony that she was singled out and treated less favorably because of
her race and gender.*fn7 Therefore, the Bureau's motion for summary
judgment on plaintiffs' disparate treatment claim will be denied.
3. Hostile Work Environment
To establish a hostile work environment claim under Title VII, a
plaintiff must show that: (1) she suffered intentional discrimination
because of her race or sex; (2) the discrimination was pervasive and
regular; (3) the discrimination detrimentally affected the plaintiff; (4)
a reasonable person would have been detrimentally affected by such
discrimination; (5) respondeat superior liability existed. See Kunin v.
Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir.), cert. denied, ___ U.S.
___, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999).
Plaintiffs' evidence in support of her hostile work environment claim
underwhelms me. While plaintiff may have been treated differently than
others and may have been detrimentally affected by it, she has failed to
produce evidence from which a reasonable jury could infer that she was
treated differently because of her race or her gender. Construing the
evidence in the light most favorable to the plaintiff, the most one could
conclude is that over the past five years, plaintiff received poor
performance evaluations, was the subject of three BPR complaints (only one
of which resulted in any disciplinary action), and had interpersonal
conflicts with her supervisors and co-workers. I conclude that a
reasonable jury could not find that that conduct rose to the level of
severe or pervasive mistreatment required to sustain a hostile work
Therefore, summary judgment will be granted to the Bureau on
plaintiffs' hostile work environment claim.
C. Constitutional Claims Against Individual Defendants
Plaintiff alleges that the individual defendants violated her
constitutional rights under the First, Fifth, Sixth, and Fourteenth
amendments. These constitutional claims are asserted against the
individual defendants in their individual, not official,
capacities, under 42 U.S.C. § 1981*fn8 and 1983.*fn9
At the outset, I must address defendants' argument that a number of the
events and injuries upon which plaintiffs' claims are based are
time-barred. In actions under both §§ 1981 and 1983, federal courts
apply the state's statute of limitations for personal injury, which, in
Pennsylvania, is two years. See 42 Pa.C.S.A. § 5524; Stinson v.
Pennsylvania State Police, No. 98-1706, 1998 WL 964215, 1998 U.S. Dist.
LEXIS 17649, at *10 (E.D.Pa. Nov. 2, 1998) (citing Goodman v. Lukens
Steel Company, 777 F.2d 113, 117-21 (3d Cir. 1985), aff'd, 482 U.S. 656,
107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)). As this action was filed on April
27, 1999, any cause of action based on an injury of which plaintiff knew
or should have known prior to April 27, 1997 is time-barred.*fn10 This
excludes a number of plaintiffs' alleged injuries, including her
suspensions in 1996 and 1997, and the BPR complaints initiated from
1995-97. Essentially, the only conduct that plaintiff has established
within the statute of limitations are her placement on restricted duty in
1998; the consequent confiscation of her badge, gun, and state vehicle;
and less formal measures such as lower performance evaluations,
confrontational conduct, and closer scrutiny of her work by her
1. First Amendment*fn12
Plaintiffs' First Amendment claim mirrors her Title VII retaliation
claim. To prevail on a First Amendment claim as a public employee, an
employee's conduct must address a matter of "public concern;" the
expression must outweigh
the government's interest in performing its functions for the public; and
the expression must have been a motivating factor in the adverse
employment decision. See Azzaro v. County of Allegheny, 110 F.3d 968,
976, 981 (3d Cir. 1997). While Williams' PHRC charges and advocacy for
increased minorities at the Bureau were undoubtedly matters of public
concern that outweighed any government interest in suppressing them, as
discussed above in plaintiffs' retaliation claim, I can find no evidence
upon which a reasonable factfinder could determine that any of the
injuries plaintiff suffered after April 27, 1997, such as her placement
on restricted duty, were inflicted in retaliation for her filing of PHRC
charges or her urging the Bureau to hire more minority liquor enforcement
officers. Therefore, summary judgment will be granted to all individual
defendants as to plaintiffs' First Amendment claim.
2. Procedural Due Process
A procedural due process claim under the Fourteenth Amendment require a
two-step analysis that involves (1) an identification of the protected
liberty or property interest at issue, and (2) an assessment of what
process is due to protect that interest. The Supreme Court recently
observed that it had never extended the protections of the Due Process
Clause to "discipline of tenured public employees short of termination,"
and merely assumed that the Due Process Clause covered such conduct for
the purpose of analysis. Gilbert v. Homar, 520 U.S. 924, 928-29, 117
S.Ct. 1807, 138 L.Ed.2d 120 (1997). It is therefore an open question as
to whether, in the wake of the Supreme Court's holding in Gilbert, a
public employee's property interest is violated by conduct short of
Regardless of whether something less than the termination may implicate
a constitutional property interest held by a public employee, I conclude
that there is no property interest at issue here sufficient to trigger
the procedural protections of the Due Process Clause. The only injury not
barred by the statute of limitations to which plaintiff could object on
procedural due process grounds was her placement on restricted duty and
the attendant confiscations of her badge, gun, and state vehicle.*fn14
The property interest plaintiff claims is far less substantial than
termination, formal demotion, or suspension without pay. While the
conduct of the Bureau and defendants might be classified as an adverse
employment action, I conclude it does not rise to the level of a
constitutional deprivation. In light of the Supreme Court's hesitance to
constitutionalize a public employee's property interest short of
termination, and in light of the relative insubstantiality of the
property interest asserted here, plaintiffs' procedural due process claims
against all the individual defendants will fail.
3. Substantive Due Process
Plaintiffs' substantive due process claim fails because she has not
asserted a property interest that is so fundamental as to be "deeply
rooted in this Nation's history and traditions." Washington v.
Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)
(quoting Moore v. East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932,
52 L.Ed.2d 531 (1977) (plurality opinion)).*fn15 This precise question
was addressed recently by Judge Vanaskie of the Middle District of
Pennsylvania, on remand from the Supreme Court, in Homar v. Gilbert,
63 F. Supp.2d 559 (M.D.Pa. 1999). Reviewing Supreme Court and Third
Circuit precedent, Judge Vanaskie concluded that "public employment is
not a `fundamental' property interest that implicates substantive due
process where an individual, nonlegislative employment decision is at
issue." Id. at 576. I concur with Judge Vanaskie's reasoning and
analysis, and conclude that all individual defendants are entitled to
judgment as a matter of law on plaintiffs' substantive due process
4. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that
no State shall "deny to any person within its jurisdiction the equal
protection of the laws." This provision embodies the general rule that
"all persons similarly situated should be treated alike." City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct.
3249, 87 L.Ed.2d 313 (1985); see also Vacco v. Quill, 521 U.S. 793, 799,
117 S.Ct. 2293, 138 L.Ed.2d 834 (1997) (citations omitted). The sine qua
non of any successful Equal Protection claim under § 1983 is
purposeful discrimination. See Keenan v. City of Philadelphia, 983 F.2d 459,
465 (3d Cir. 1992); Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d
Cir. 1990). This is what distinguishes § 1983 equal protection claims
from Title VII cases; to prevail on a § 1983 claim, a plaintiff must
prove that the defendant intended to discriminate. See Washington v.
Davis, 426 U.S. 229, 238-39, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). A
plaintiff must produce direct or indirect evidence of intent. However the
threshold of indirect proof for a prima facie case of equal protection
violation is higher than in a Title VII case; a § 1983 plaintiff must
show disparate impact plus some additional "indicia of purposeful
discrimination." Pennsylvania v. Flaherty, 983 F.2d 1267, 1273 (3d Cir.
Plaintiff has produced insufficient evidence from which a jury could
infer that any of the defendants purposefully intended to discriminate
against her on the basis of race or sex.*fn16 However, she has produced
direct evidence of intent to discriminate against her because of her
disability. The evidence on the record indicates that plaintiff submitted
to Stacey Marshall, the Bureaus's district office commander, a letter
from plaintiffs' psychologist that, among other things, informed Marshall
that plaintiff Williams was "a recovering alcoholic." (Plaintiffs' Exh.
7, Letter from Gordon A. Bell, July 13, 1998).*fn17 Marshall then
initiated an investigation as to whether plaintiff should be placed on
limited duty, (Plaintiffs' Exh. 4, Memorandum from Stacey R. Marshall,
District Office Commander, Sept. 21, 1998, at ¶ 2), despite the fact
that plaintiff informed Marshall that she did not want to placed on
limited duty (Plaintiffs' Exh. 7, Memorandum from Sharon Williams, July
27, 1988). On October 8, 1998, defendant Alfred Campbell, the director of
the Bureau's division of administration wrote a memorandum in which he
recommended to the director of the Bureau that because of plaintiffs'
revelation that she was an alcoholic, she should undergo "reasonable
test(s) and/or examination to determine her fitness for duty."
(Memorandum from Alfred Campbell, Director of the Division of
Administration, Oct. 9, 1998). The director of the Bureau signed off on
the tests. (Memorandum from Leonard H. McDonald, Acting Director, Bureau
of Liquor Control Enforcement, Oct. 13, 1998).
Plaintiff was then evaluated by state police medical officer Michael
S. Marrone and given and independent psychiatric evaluation by James B.
Pierce III, who concluded that, in part because of her alcoholism,
plaintiff was not able to perform her job. (Plaintiffs' Exh., Vol. 3, Tab
1, Letter from James B. Pierce III, Dec. 4, 1998, Plaintiffs' Exh., Vol.
3, Tab 2, Letter of Michael S. Marrone, July 16, 1999). In a memorandum
referencing the independent psychiatric evaluation, plaintiff was placed
on restricted duty ordered to surrender her gun, badge, and state
vehicle. (Plaintiffs' Exh. 4, Memorandum from Thomas K. Coury, Deputy
Commissioner of Administration Dec. 30 1998, at ¶ 1, 2).
The Bureau's intent to place plaintiff on restricted duty because of
her alcoholism is apparent on the face of the documents that justify that
action. This is precisely the kind of direct evidence of intentional
discrimination required to establish an equal protection violation;
officials within the organization essentially stated on paper that
plaintiff was effectively being demoted because she was an alcoholic.
Therefore, plaintiffs' disability-based equal protection claim will
survive summary judgment.*fn18
Not all the individual defendants, however, were involved in the
decision to place plaintiff on restricted duty because of her alcoholism
of the individual defendants, a reasonable jury could find from the
evidence submitted by plaintiff that only Campbell was involved in that
decision. (Plaintiffs' Exh. 4, Memorandum From Alfred Campbell, Acting
Director, Dec. 31, 1998).*fn19 Thus, summary judgment will be
denied on plaintiffs' equal protection claim as to Campbell, but granted
as to Bunting, Corbett, Corcoran, Hickes, and Bickta.
5. Section 1981 Claims
To prevail on a claim under § 1981, a plaintiff must show: "(1)
that she is a member of a racially cognizable group; (2) the defendants'
intention to discriminate on the basis of race; and (3) that the
discrimination concerned one or more of the activities enumerated in the
statute, that is, making and enforcing contracts." Wood v. Cohen, Nos.
96-3707, 97-1548, 1998 WL 88387, 1998 U.S. Dist. LEXIS 2222, at *5
(E.D.Pa. Mar. 2, 1998) (citations omitted). Plaintiffs' § 1981 claim
fails for the same reasons her race-based § 1983 equal protection
claim fails; she has produced no evidence from which a reasonable jury
could infer purposeful, intentional racial discrimination on the part of
any of the individual defendants. She has merely demonstrated that there
is a genuine issue of material fact as to disparate impact which, while
enough survive summary judgment on a Title VII claim, is not enough to
avoid summary judgment on a § 1981 claim. While plaintiff has
produced evidence of intentional discrimination on the basis of a
disability, § 1981 covers only racial discrimination. Cf. Anjelino
v. New York Times, 200 F.3d 73, 98 (3d Cir. 1999) (holding that Section
1981 does not apply to sex-based claims). Summary judgment will therefore
be granted as to plaintiffs' § 1981 claim.
My careful review of the law and the facts of this case reveals that
there remain genuine issues of material fact, and therefore some, but not
all, of plaintiffs' claims will survive summary judgment. For the reasons
discussed above, summary judgment will be denied as to plaintiffs'
disparate treatment claim against the Bureau under Title VII, and her
§ 1983 equal protection claim against Alfred Campbell.