has not proffered any example of how Bianchi's speech disrupted the
efficient functioning of the department. While the defendants spent time
and resources investigating the claim, they do not contend that the
efficiency gains took precedence over Bianchi's free speech rights.
Therefore, Bianchi has demonstrated that his conduct constitutes
protected activity within the parameters of the First Amendment.
Under Azzaro, deciding that the plaintiff engaged in protected conduct
does not end the inquiry as to whether the plaintiff withstands the
motion for summary judgment. Plaintiff must also advance sufficient
evidence that his reports of harassment caused the adverse employment
action he suffered Bianchi were motivated by his reports of harassment.
Id. at 975. The defendant challenges Bianchi's proffered reason for his
eventual separation from the department, again advancing the theory that
Bianchi's mental fitness and his refusal to comply with requirements for
reinstatement, caused his dismissal. As discussed in relation to
Bianchi's Title VII retaliation claim, see supra, the temporal proximity
and general sequence of events raise the inference that he was discharged
for speaking out concerning the harassment he suffered. See Woodson v.
Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). Because the plaintiff
has engaged in protected activity and because he has raised a reasonable
inference this activity motivated the fire department to discharge him,
summary judgment is inappropriate. The City of Philadelphia's motion for
summary judgement on Count V-B will be denied.
Count VI: Violation of Constitutional Right to Petition the Courts
In a separate count, Bianchi alleges that the defendants violated his
constitutional right to petition the courts in violation of
42 U.S.C. § 1983. The Supreme Court has consistently held that the
right to access the court system falls under the First Amendment
protections, namely as a part of the right to petition the government.
See Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997) citing California
Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). In
their summary judgment motion, the defendants do not specifically address
this count, nor does the plaintiff in his response. I assume that this
count refers specifically to the state court action instituted by Bianchi
to obtain reinstatement, while the previous count refers more generally
to his public complaints about sexual harassment.
While the counts are separate, the analysis employed to consider the
claims is identical. The plaintiff engaged in protected conduct when he
sought relief in the courts from the harassment and alleged retaliation.
The causal connection between these actions and the adverse consequences
suffered by Bianchi cannot be decided on a motion for summary judgment
because as noted throughout this opinion, the plaintiff has presented
sufficient evidence to raise the inference of retaliation, rendering
summary judgment inappropriate. Therefore, the defendants' motion for
summary judgment is denied with respect to Count VI, the violation of the
First Amendment right to petition the courts.
Count VII: Intentional Infliction of Emotional Distress
In the final count of his complaint, Bianchi alleges that the
defendants committed the intentional tort of intentional infliction of
emotional distress, in violation of the Pennsylvania common law. The
defendants again move for summary judgment, contesting the factual
allegations, but more compellingly, based on their
governmental tort immunity. Pennsylvania law creates a generalized
governmental immunity for all injuries to people and property and
enumerates eight limited exceptions to this immunity. See 42 Pa. C.S.
§ 8541. These exceptions concern (1) operation of a motor vehicle;
(2) personal property in the care, custody, or control of a local
agency; (3) real property in similar care; (4) trees, traffic controls,
and street lights; (5) facilities providing utility service; (6)
streets; (7) sidewalks; and (8) care, custody, and control of animals.
See 42 Pa. C.S. § 8542.
It is apparent that Bianchi's claims do not fall within any of the
exceptions to governmental immunity. While the plaintiff correctly
describes the elements of the intentional infliction of emotional
distress tort, he does not address the immunity issue. I can only
conclude this is because there is none. Because under Pennsylvania law
the defendants are entitled to immunity, I will grant their motion for
summary judgment on Count VII of the plaintiff's amended complaint.
AND NOW this day of January 2002, it is ORDERED that:
(1) The plaintiff's complaint is DISMISSED on all counts against
the Philadelphia Fire Department.
(2) The defendants' motion for summary judgment is GRANTED as to the
following counts of the plaintiff's amended complaint: Count I, violation
of the Civil Rights Act of 1964; Count II, violation of the Pennsylvania
Human Relations Act; and Count VII, the intentional infliction of
(3) The defendants' motion for summary judgment is DENIED as to the
following counts of the plaintiff's amended complaint: Count III,
violation of the anti-retaliation provision of the Civil Rights Act of
1964; Count IV, violation of the anti-retaliation provision of the
Pennsylvania Human Relations Act; Count V-A, violation of plaintiff's
constitutional due process rights; Count V-B, violation of plaintiff's
constitutional free speech right; and Count VI, violation of plaintiff's
constitutional right to petition the courts.