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PHILLIPS v. HEYDT

April 18, 2002

TONY PHILLIPS, PLAINTIFF
V.
WILLIAM L. HEYDT AND CITY OF ALLENTOWN, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff Tony Phillips ("plaintiff" or "Phillips") has filed suit against his employer, the City of Allentown ("city" or "Allentown") and its mayor, William Heydt ("mayor" or "Heydt") (collectively "defendants"), alleging that the defendants violated his rights under the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e) et. seq., the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq., and 42 U.S.C. § 1981 ("Section 1981"). Phillips claims that these violations began in the early 1980s and continued until the time this action was filed in October 2000. Phillips, who is a black police officer in Allentown, asserts that during this period the defendants subjected him to a hostile work environment and denied him all of the benefits and privileges of his contractual relationship with them. On May 6, 1998, plaintiff filed his charge with the EEOC and the Pennsylvania Human Relations Commission ("PHRC"), received a Notification of Right to Sue on August 3, 2000, and instituted the current action on October 27, 2000. Phillips is seeking compensatory damages on all claims, punitive damages on his § 1981 claim, and any other relief this court deems appropriate. On October 22, 2001, plaintiff moved for partial summary judgment and defendants moved for summary judgment. Now before me are those motions.

FACTUAL BACKGROUND*fn1

Plaintiff, Tony Phillips, joined the Allentown Police Department in 1982 and in May 1992 was promoted to the rank of sergeant, which he currently holds (Dep. of Phillips, 17, 24). In 1982, at about the time Phillips joined the police force, he and other members of the police department noticed that Michael Combs, an officer in the department, wore a swastika pin on his police uniform and also made racist comments. No one lodged a complaint. (Internal Affairs Investigation of Combs, 42-43).*fn2 Sometime in 1988 or 1989, Phillips observed a Ku Klux Klan (KKK) photograph on Combs' desk. Twenty other individuals made similar observations of offensive items in Combs' office, including German and Nazi memorabilia, a bust of Hitler, and a Confederate flag. Though Combs admits to having these items in his office, he contends that they were the fruits of search warrants and drug raids, rather than chosen decoration. (Internal Affairs Investigation of Combs, 44-45). In 1990, following an incident when a reporter and photographer from The Morning Call, the local newspaper, observed these items in his office, Chief Wayne Stephens ordered Combs to remove them and he complied.*fn3 (Internal Affairs Investigation of Combs, 38). Captains Robert Manescu and Thomas Bennis also claim that at various times between 1982 and 1986, Combs gave them white supremacist literature. (Internal Affairs Investigation of Combs, 45-46). Officer Rafael Perez, a Puerto Rican officer, alleges that in the spring or summer of 1989, Combs marched passed his desk with a burning Puerto Rican flag. (Internal Affairs Investigation of Combs, 51). Additionally, several members of the police department testified that they felt as if Combs had directed them to focus their attention on black criminals rather than white ones. (Internal Affairs Investigation of Combs, 48-49). During a 1995 internal affairs investigation of a black officer, Combs stated that because the officer lived in such a nice home, he must be a drug dealer. Subsequently, the target of that investigation, Sergeant Walter Felton, was fully exonerated of any wrongdoing, (Dep. of Felton, 66-67).

While numerous members of the Allentown Police Department witnessed these events over the course of a decade, no one lodged any sort of official complaint against Combs. On January 12, 1996 the police department promoted Combs to the rank of captain. On November 14, 1996, an article appeared in The Morning Call that detailed interviews with members of the department that had described the allegations against Combs. Two days later, on November 16, 1996, Mayor Heydt ordered an inquiry and an instituted an internal affairs investigation led by Captain Paul Snyder. (Internal Affairs Investigation of Combs, 39-40). Over the course of several months, the panel interviewed 92 people, met repeatedly, conducted independent investigation, and issued their report on April 22, 1997. (Internal Affairs Investigation of Combs, 41).

On April 30, 1997, at a press conference, Mayor Heydt and Chief Monahan made the results of the investigation public and discussed them. The report cleared Combs of the most serious allegations, finding them either unsustained or unfounded, but sustained the allegations that Combs had displayed Nazi memorabilia in his office and engaged in verbal insensitivity towards certain ethnic and religious groups.*fn4 (Internal Affairs Investigation of Combs). Based upon these findings, the mayor and chief decided that the appropriate punishment was to require Combs to attend sensitivity training. The police chief and mayor indicated that Combs' conduct warranted no further sanction because Chief Stephens had reprimanded Combs in 1990 for displaying the memorabilia, most of the events took place seven or eight years prior to the complaint, and the panel was unsure Combs had intended offense with his comments and actions. Moreover, Combs expressed remorse for any offense he caused, maintained a pristine record during his tenure, and the intense public scrutiny of his actions hurt Combs both personally and professionally. (Mayor Heydt's Comments and Press Conference Releasing Combs Report, 63).

The following week, on May 7, 1997, Chief Monahan met with minority members of the police department to discuss their concerns with the outcome of the Combs investigation and the limited sanction he received. Plaintiff attended that meeting and at that time, as he did subsequently, expressed criticism of Monahan, Heydt, and the entire investigation. (Aff. of Gerald M. Monahan at ¶ 13). Plaintiff contends that following his cooperation in the Combs investigation and his criticism of it, the defendants subjected him to "subtle" forms of harassment. (EEOC Determination, April 12, 1999). Also at that meeting, Officer Solivan indicated that at a change of shift the previous month, Lieutenant John Kerrigan used the expression "nigger knocker" to describe a car horn. Though the statement was repeated twice, in the presence of many officers, plaintiff was not there and heard about the comment afterwards. (Dep. of Phillips at 139-40).

Phillips encountered additional troubles in May 1997. On April 28, 1997, an individual named Nestor Vargas complained about the conduct of an Officer Perez in a letter to the police department. Subsequently, Vargas supplemented his complaint and alleged that he had witnessed several members of the police force smoking marijuana in 1989. Vargas did not mention Phillips in these allegations, but when the officer in charge of the investigation interviewed Vargas again on May 6, 1997, he included Phillips among those officers. (Mem. from Lt. Joseph Hanna to Captain Paul Snyder, May 9, 1997). At a third interview, on May 29, 1997, Vargas insinuated that he manufactured his claim against Phillips so he would know "what it feels like [to be the target of an investigation]." The department did not investigate whether Combs had encouraged Vargas to file this complaint. The investigation fully exonerated Phillips and the department did not subject him to any discipline. (Mem. from Captain Ronald Manescu to Chief Gerald Monahan Jr., July 23, 1997). Phillips, however, expressed dissatisfaction with the investigation and pursued criminal charges against Vargas for filing a false complaint — an offense of which he was eventually found guilty. Plaintiff pursued this claim without the support of his superiors and indicates that on September 10, 1997, Chief Monahan wrote to him, hoping to "derail this arrest." (Pl.'s Statement of Contested Material Facts at ¶ 33(g)).

On September 14, 1997, Phillips arrived at work at approximately 10:15 P.M. to begin work on the night shift. After completing some administrative tasks, he approached his car to respond to a call. As he neared the vehicle, Phillips observed a doll's head wedged between the steering wheel and dashboard. Upon closer inspection, he noticed that the eyes of the doll had been poked out and its face was soiled or "blackened." Phillips immediately expressed his belief that the doll's head constituted retaliation for participating in and complaining about the Combs investigation and was an attempt at ethnic intimidation. (Dep. of Phillips at 148-52). The police department responded by instituting an internal affairs inquiry and assigned Captain Manescu to investigate. After examining the physical evidence and interviewing members of the department, Manescu determined that the evidence failed to support the allegations. (Mem. from Captain Ronald Manescu to Chief Gerald Monahan, Jr., October 1, 1997). Several of the officers interviewed admitted to having been in possession of the doll's head over the course of the day and eventually Sgt. Michael Popovich left the doll in the car as a practical joke directed towards another officer. All parties involved claimed their actions had no racial or retaliatory motive. (Internal Affairs Investigation of Doll's Head Incident by Captain Manescu).

On October 16, 1997, Chief Monahan scheduled a meeting between Phillips and Popovich to discuss the incident and the conclusions of the investigation. Chief Monahan rescheduled that meeting for the following day to accommodate Phillips' schedule. At 9:00 A.M. on October 17, Phillips came to the chief's office and told him he would not attend the meeting because there was no point to his attending. Monahan accepted this, and held the meeting with Popovich, Assistant Chief Mitchell, and Captain Manescu. During this meeting Chief Monahan counseled Popovich and reminded him to be sensitive and aware of the implications of his actions, even if his intentions were benign. (Mem. from Chief Gerald Monahan, Jr. to File, October 17, 1997). Later that afternoon, the chief held a second meeting, this time with plaintiff, Mitchell, Manescu, and several other members of the police force who were allegedly implicated in the incident. During the forty-five minute session the officers assured Phillips the incident was merely a practical joke intended for another officer and Monahan reminded everyone to remain sensitive to possible reactions to innocent pranks. Afterwards, Chief Monahan noted that the meeting ended on a "very positive note," and that the counseling "serve[d] as closure to the incident." (Mem. from Chief Gerald Monahan, Jr. to File, October 17, 1997).

Phillips, however, felt differently and filed a charge with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission on May 6, 1998. In a determination dated April 12, 1999, the EEOC found reason to believe that plaintiff had been subjected to a hostile environment, but did not find evidence of retaliation. (EEOC Determination, April 12, 1999). Eventually, in August 2000, the EEOC issued a right to sue letter and plaintiff filed this action in federal court.

Prior to this determination, but after having filed his complaint, a citizen filed a complaint leading to another internal affairs investigation of Phillips. On January 22, 2000, James Francis phoned the Allentown Police Department to complain that plaintiff had treated him in an inappropriate manner during a series of telephone calls and messages. (Report of Lt. Frank Peters, January 22, 2000). Francis followed up his original complaint with a letter written to Mayor Heydt. In his letter, Francis claimed that Phillips made harassing phone calls to him, used profanity, and behaved inappropriately and aggressively while trying to get Francis to answer his phone or come to the door. (Letter from James Francis to Mayor William Heydt, January 22, 2000). The mayor's office turned a copy of the letter over to the police department, and current Chief Carl Held assigned Captain Roger MacLean to conduct an investigation. (Dep. of Held, 10).

Once again, the investigation fully exonerated Phillips of any wrongdoing. The inquiry revealed that Francis, the complaining citizen, mistakenly believed Phillips had made threatening phone calls and used profanity with him, when in fact, it had been a bail bondsmen. Though Phillips participated in the Francis matter and spoke to Francis on the phone, the investigation concluded that someone else had made the offensive calls. The report noted that "more questions should have been asked instead of taking the bailbond people at their word," but no further action against Phillips was warranted. (Mem. from Captain Roger MacLean to Chief Carl Held, February 18, 2000). Phillips, however, was again dissatisfied and on March 3, 2000, requested that Chief Held provide him with a copy of the investigation file from this case and any other during which he was subjected to review in the prior six years. In this request he indicated that former Chief Monahan had provided him with a copy of the Vargas complaint file. (Letter from Tony Phillips to Chief Carl Held, March 3, 2000). Held denied this request, and cited the Allentown Police Department General Order 304, from October 1, 1988, requiring that all investigations remain confidential to insure the full cooperation of witnesses. (Letter from Chief Carl Held to Tony Phillips, March 13, 2000).

In addition to the incidents in which he was personally involved, Phillips chronicles the mistreatment of other minority officers on the Allentown police force. Phillips contrasts the treatment of two officers, one black and one white, after each missed several court appearances. In 1988, Patrolman Claude Rone, who is black, missed appearances after which the department conducted an internal affairs investigation. As a result of this investigation, Chief Wayne Stephens suspended Rone without pay for 10 days. (Dep. of Ronald Manescu, 236-39). Eleven years later, Steve Mould, who is white, missed a number of court appearances. Unlike the Rone case, the department did not conduct an internal affairs investigation. Mould received counseling from his superiors and could not teach at the Police Academy or attend a particular training class. (Decl. of Stephen Mould at ¶¶ 4-8, October 19, 2001). After Mould received a high score on the promotion exam Chief Held promoted him to Sergeant in February 2000. At the time of that promotion, Held did not know that Mould had missed court appearances in the previous year. (Decl. of Carl Held at ¶ 4, October 16, 2001).

In 1992, the department sent Officer Steve Hatfield, a member of the vice squad to receive Class B wiretap certification. In 1995, Hatfield, who is black, was transferred to the Neighborhood Community Police Division and in 2000 to the Traffic Division, and again to the Third Platoon. None of these divisions perform wiretapping functions. (Decl. of Michael Combs at ¶ 22, October 15, 2001). Phillips claims these transfers and the department's underutilization of Hatfield stemmed from a racially hostile environment. (Complaint at ¶¶ 93-95). However, no member of the Allentown Police Department currently does these taps because they rarely need them, and when the need arises the State Police, Lehigh County Drug Task Force, or the DEA does and pays for the wiretaps. (Decl. of Michael Combs at ¶ 22, October 15, 2001).

Phillips also takes exception to four internal affairs investigations of minority officers during 1995 and 1996. In March 1995, the department conducted an internal affairs investigation of Miguel Ortiz, a Hispanic officer, after he failed to turn over heroin he seized during an arrest and tested positive for cocaine. After admitting these offenses, among others, Ortiz resigned from the police force. (Internal Affairs Lead Sheet, Investigation Opened March 3, 1995; Letter to Chief John Stefanik from Miguel Ortiz, April 24, 1995), The following month, Lt. Combs conducted an internal affairs investigation of Sergeant Walter Felton, a black officer, after Felton's girlfriend filed criminal charges against him. When the court acquitted Felton of the criminal charges, the department closed the internal affairs file. (Mem. from Chief John Stefanik to File, June 21, 1995). Patrol Officer Ronald Spruill, who is black, was the subject of an internal affairs investigation beginning June 20, 1995. Eventually, Spruill waived his right to a hearing and accepted a thirty day suspension without pay after he admitted to illegal gambling. (Dep. of Ronald Manescu, 158, 161-64). Officer Wendy Brantley, who is black, became the subject of an internal affairs investigation on February 22, 1996, after someone accused her of supplying drugs to a state trooper. After an investigation, Captain Scott Mitchell determined that the allegations against Brantley, who is black, were unfounded. (Internal Affairs Investigation of Brantley).

Despite these events, the defendants have not demoted or terminated Phillips. In May 1999, plaintiff received commendations for both heroism and achievement, signed by the chief of police and the mayor. (Dep. of Phillips, 94). In May 2000, he requested a transfer to the youth division and the department assigned him there in January 2001. (Dep. of Phillips, 224-25). In 1992, the defendants promoted Phillips to sergeant. (Dep. of Phillips, 24). Since that time, he took the required exam for promotion to lieutenant three times, in 1997, 1999, and 2001. (Dep. of Phillips, 39-40). Plaintiff did not score high enough on any of these exams to be eligible for promotion. He blames his poor test performance, at least in part, on the stress resulting from the hostile work environment. (Dep. of ...


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