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January 7, 2002


The opinion of the court was delivered by: Anita B. Brody, U.S. District Judge


Plaintiff Robert Bianchi ("Bianchi" or "plaintiff") has filed suit against his former employer, the City of Philadelphia and the Philadelphia Fire Department ("City" or "defendant"), asserting multiple claims under 42 U.S.C. § 1983 (Title VII), the Pennsylvania Human Relations Act (PHRA), 43 P.S. §§ 951, et seq., the United States Constitution, and Pennsylvania common law. These claims all stem from a series of events occurring between March 1996 and November 1999 (after the commencement of this lawsuit). During this period, plaintiff claims he was sexually harassed by his co-workers and subsequently dismissed from his position in the fire department in retaliation for reporting the harassment. He also claims the defendants denied his right to procedural due process, to free speech, and to petition the courts, and that the defendant intentionally inflicted emotional distress upon him. Plaintiff filed his original complaint on May 11, 1999 and filed an amended complaint on October 19, 1999. Bianchi seeks declaratory and injunctive relief (a return to his job) as well as compensatory and punitive damages. On June 22, 2001, the defendants moved for summary judgment on all counts.


When considering the defendant's motion for summary judgment, the facts will be interpreted in the light most favorable to the plaintiff, the non-moving party. Plaintiff, Robert Bianchi joined the Philadelphia Fire Department in 1977. After seventeen years of service, he was promoted in 1994 to the rank of lieutenant. Immediately after his promotion, Bianchi worked as a "floater" in the system, that is he was not assigned to any particular fire station. After floating for a period of time, Bianchi began in a position at Fire Department Headquarters in the Technical Support Unit. On March 11, 1996, Bianchi was assigned to Ladder Company No. 2, Platoon A, located at the firehouse at 4th and Arch Streets. (Deposition of Bianchi, 16-18). Approximately six weeks after assuming command of the platoon, Bianchi began to institute changes in the discipline and training at the firehouse, some of which were not well received by members of the company. (Investigation Interview Record, Lt. Steven Nolan interviewing Bianci, 3).

Though initially reticent, as these incidents continued Bianchi brought them to the attention of his supervisors. (Deposition of Bianchi, 37-43). At that point, no official action was taken, although more senior members of the department spoke to Bianchi's platoon, advising them that this conduct would not be tolerated. (Deposition of Bianchi, 43). Following the incident concerning Bianchi's running gear, plaintiff became more vociferous in his complaints and increasingly confrontational with other members of the fire department. On November 29, 1997, Bianchi informed Battalion Chief Robert Drennen that because matters were not being handled to his satisfaction by the department that he intended to take his complaints outside of the fire department and bring them to the attention of the police, the civil service commission, and his union. (Memorandum from Bianchi to Robert Drennen, November 29, 1997). Subsequently, during the month of December 1997, Bianchi was removed from the firehouse at 4th and Arch and was placed in a position with the Safety Office of the department. (Investigation Interview Record, Lt. Steve Nolan interviewing Bianchi, 7).

On January 20, 1998 a meeting was held and attended by Bianchi, the president of his union, an attorney representing Bianchi (hired by the union), and the battalion chief and special investigations officer, William Schweizer. (Deposition of Bianchi, 63-64). At that meeting the City notified Bianchi that he was removed from firefighting line duties and would be subject to physical and mental exams before he could be returned to full work. Additionally, Bianchi claims he was threatened by members of the fire department during this time. However, he returned to work on March 5, 1998 (Pl.'s Complaint, Par. 21-22). Upon his return, Bianchi claims members of the fire department once again threatened him; this time a captain encouraged him to remain in his administrative position so he would continue to be "safe," and an anonymous phone caller who stated that Bianchi's twin brother (also a member of the fire department) was in danger (Deposition of Bianchi, 86-90).

On October 2, 1998, Bianchi's own psychologist cleared him to return to work. (Deposition of Bianchi, 98). Dr. Hayes, the City's doctor, then told Bianchi that based on the report of the contract psychiatrist, Dr. Arce, he could return to work. However, he did not return to active duty and Dr. Hayes changed his position after a conversation with Bianchi's superiors in the fire department. (Deposition of Bianchi, 138-39) (Deposition of George Hayes, M.D., 19). Bianchi claims he was promised a meeting with the Fire Commissioner and his own doctor, after which he would be reinstated. Such a meeting was never scheduled and as a result Bianchi did not return to work at any point. (Deposition of Bianchi, 135-137).*fn2

In March 1999, the fire department's human resources manager sent a letter to Bianchi informing him that his sick leave would expire in June and advised him of the procedures to avoid dismissal if he needed more time away from work. (Letter dated March 9, 1999, from Ronald Augustyn to Bianchi). In May 1999, plaintiff filed suit in this court. Subsequent to the initiation of this action, on November 4, 1999, the fire department sent another letter to Bianchi, advising him that all of his accumulated leave was about to expire. Under the Civil Service Regulations of the department, unless Bianchi requested a leave of absence without pay, he would be separated from the department. (Letter dated November 4, 1999 from Ronald Augustyn to Bianchi). Plaintiff took no such action and was deemed to have abandoned his position.


Under the Federal Rules of Civil Procedure, a court may grant summary judgment "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). The role of the trial court is to determine whether there are issues with regard to material facts that warrant a trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In making its determination, the court must consider the underlying facts in the light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that might be drawn from those facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Sempier v. Johnson and Higgins, 45 F.3d 724, 727 (3d Cir. 1995) (en banc). Summary judgment is appropriate if the court finds that the record "could not lead a rational trier of fact to find for the nonmoving party, [and] there is no `genuine issue for trial.'" Matsushita 475 U.S. at 587 (citation omitted).


The plaintiff's amended complaint includes eight counts against defendants the City of Philadelphia and the Philadelphia Fire Department.*fn3 Because plaintiff's first two allegations, alleging substantive violations of Title VII and the PHRA, encompass identical legal standards, I have considered them together, just as I have with Counts III and IV of the amended complaint, alleging retaliation under those same provisions.*fn4

Otherwise, I will consider summary judgment with regard to each count individually.*fn5

Counts I and II: Title VII and PHRA Sexual Harassment

Title VII makes it "an unlawful employment practice . . . to discriminate against any individual . . . because of sex." 42 U.S.C. § 2000e-2(a)(1) (2000). To prevail on a hostile work environment claim, a plaintiff must demonstrate five elements. An employee must show (1) he or she suffered discrimination because of sex; (2) this discrimination was "pervasive and regular;" (3) some negative impact resulted from the discrimination; (4) the conduct would effect a reasonable person in a similar position; and (5) the employer's respondeat superior liability. Together these elements establish a case of sexual discrimination. Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).

Same-sex harassment is barred by Title VII. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (Title VII protections include "sexual harassment of any kind that meets the statutory requirements"). Recently, in Bibby v. Philadelphia Coca Cola Bottling Company, 260 F.3d 257 (3d Cir. 2001), the Third Circuit articulated three ways in which a plaintiff may prove same-sex harassment. A plaintiff may prove same sex sexual harassment by (1) demonstrating a scenario in which the harassment is motivated by the aggressors sexual desire; (2) showing that a harasser displays hostility towards the participation of a particular sex in the workplace or performing a particular function; or (3) illustrating that the "harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender." Id. at 262-63.

Bianchi may only claim the protections of Title VII if he can demonstrate he was discriminated against because of sex. The City of Philadelphia asserts that it is entitled to summary judgment because Bianchi has failed to demonstrate that he suffered workplace discrimination because of his sex and therefore cannot establish a violation of the statute. Because Bianchi has not met his burden in demonstrating he suffered discrimination because of his gender, the defendant is entitled to summary judgment on Counts I and II of the amended complaint.

When considering the facts of this case in the light most favorable to the plaintiff, Bianchi does not fall into any of the three categories enumerated in Bibby. Nowhere does the plaintiff contend that the actions of his co-workers were motivated by any sort of sexual desire. While "when a gay or lesbian supervisor treats a same-sex subordinate in a way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does because of the victim's sex." Bibby, 260 F.3d at 262, Bianchi's allegations clearly do not fit this scenario. Nor does Bianchi make the claim that the harassment he suffered fits within the second type of same-sex harassment described by the Third Circuit, where the illegal conduct results from discontent ...

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