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January 6, 2004.


The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge


Plaintiff Luis Cabrera has brought an action against the City of Philadelphia (the "City") for discrimination on the bases of race, gender, national origin, age, and religion, and for retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Mr. Cabrera seeks reinstatement to the position he had before his demotion or comparable compensation, lost wages and benefits, and punitive damages. Before the court is the motion of the City for summary judgment.

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment is granted "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 judgment as a matter of law." The moving party has the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, Page 2 477 U.S. 317, 323 (1986). "A factual dispute is material if it bears on an essential element of the plaintiff's claim, and is genuine if a reasonable jury could find in favor of the nonmoving party." Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (internal quotations omitted). "Summary judgment against a party who bears the burden of proof at trial . . . is proper if after adequate time for discovery and upon motion, a party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).

  For the present purpose of deciding this summary judgment motion, we view the facts in the light most favorable to plaintiff, the nonmoving party. Fakete, 308 F.3d at 336. Plaintiff is a Puerto Rican male who held the position of Director of the City's Mann Older Adult Center (the "Center") since 1992. Plaintiff did not receive evaluations in 2000, 2001, or 2002, but his 1999 evaluation described his overall performance as "superior" with "outstanding" ratings in communication and professional and technical skills. On at least two occasions, plaintiff expressed written dissatisfaction to his supervisor, Ms. Spiro, about her cultural sensitivity, treatment of diversity, and possible bias. Plaintiff also had made written complaints that he was not treated fairly in being considered for a promotion. On June 1, 2001, plaintiff was involved in what we will refer to as the "table incident," in which a member of the Page 3 Center "began yelling and cursing during a general membership meeting and began to approach Mr. Cabrera . . . in a violent manner." Decl. of Georgina Acevedo, Dec. 2, 2003. Mr. Cabrera accidentally knocked over a table while trying to protect himself. The table contacted one or several members of the Center, at least one of whom was a parent of co-worker Ms. Ramirez, but no one appeared to be injured.

  In September, 2001, Ms. Ramirez and Ms. LaPenta, another co-worker, complained to Ms. Spiro that Mr. Cabrera had been sexually harassing them. A report prepared by Personnel Analyst Beatrice Joyner, dated September 21, 2001, details the sexual harassment complaint made against plaintiff by Ms. LaPenta and Ms. Ramirez on September 13, 2001. The report also describes the assessment of Mr. Rhodes, the Program Director, who believed that plaintiff always blamed problems on other people and that this attitude was a "`macho thing,' that Hispanic males take exception to being supervised by females." Ms. Joyner recommended removing plaintiff from a supervisory position over Ms. LaPenta and Ms. Ramirez and moving plaintiff to another site. Ms. Joyner's report was reviewed by Mr. Peberdy, an Equal Employment Opportunity Officer. The end result was Mr. Cabrera's demotion.

  Ms. Ramirez and Ms. LaPenta subsequently filed an action against the City and Mr. Cabrera for the alleged sexual harassment. In its answer, the City specifically denied that Mr. Page 4 Cabrera sexually harassed either Ms. Ramirez or Ms. LaPenta or engaged in any improper conduct.

  On September 14, 2001, plaintiff applied for a promotion for which he was qualified, but he was never offered an interview and did not receive the promotion. On September 21, 2001, Ms. Spiro notified plaintiff that he was being suspended because he had become enraged at the June 1, 2001 meeting and had overturned a table which injured three seniors. In addition, plaintiff was informed that there were charges against him but was not informed of the nature of the charges or by whom they were made. On February 22, 2002, plaintiff was notified of his demotion, as a result of which he was permanently removed from the Center. Plaintiff was temporarily replaced by a Hispanic female employee, and permanently replaced by a Caucasian female, who, upon her promotion, was succeeded by a Caucasian male employee.

  We first will examine plaintiff's age discrimination claim. To make out a prima facie case for age discrimination plaintiff must show "(1) he was at least forty years old, (2) he was discharged, (3) he was qualified for the job from which he was discharged, and (4) he was replaced by a sufficiently younger person to create an inference of discrimination." Fakete, 308 F.3d at 338, n.3. Assuming that plaintiff can meet the first three prongs, defendant has produced undisputed evidence that plaintiff's successors were all older than he. Thus he cannot meet the forth prong of a prima facie case for age Page 5 discrimination. See Narin v. Lower Merion Twp. Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000). We will grant defendant's motion for summary judgment on this claim.

  Next we turn to Mr. Cabrera's claims for discrimination on the bases of race, gender, and national origin. In order to establish a prima facie case of employment discrimination, plaintiff must demonstrate (1) he is a member of a protected class, (2) he was qualified for the position, (3) he suffered some form of adverse employment action, and (4) the circumstances gave rise to an inference of unlawful discrimination. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410-11 (3d Cir. 1999). If plaintiff can make out a prima facie case, the burden shifts to defendant to offer a legitimate, nondiscriminatory reason for the adverse action, after which plaintiff then must demonstrate that defendant's reason was not its true reason, but was a pretext for discrimination. Id.

  Defendant does not appear to dispute plaintiff's prima facie case for discrimination on the bases of race, gender, and national origin, but offers two nondiscriminatory reasons for the actions: (1) plaintiff was suspended for injuring a senior member of the Center; and (2) plaintiff was demoted for violating the sexual harassment policy. Because defendant has offered these nondiscriminatory reasons, the burden shifts to plaintiff to discredit these reasons. "[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer Page 6 that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (parenthetical and emphasis in original). For plaintiff to meet this burden, he "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence . . . and hence infer that the employer did not act for the asserted non-discriminatory reasons." Id. at 765 (internal quotations omitted, emphasis in original).

  In rebutting defendant's proffered reason for his suspension, Mr. Cabrera offers the declaration of Georgina Acevedo, which states that a member of the Center with a history of violence instigated the incident and that Mr. Cabrera knocked over the table when he jumped up to protect Ms. Acevedo. Ms. Acevedo further stated that no one appeared to be injured. Based on the facts stated above, a factfinder could rationally find defendant's proffered nondiscriminatory reasons unworthy of credence and pretextual. Ms. Acevedo's account of the table incident confirms the existence of a genuine issue of material fact.

  Plaintiff offers the City's own answer to the complaint of Ms. Ramirez and Ms. LaPenta to rebut defendant's proffered reason for his demotion. In its answer to that complaint, the Page 7 City specifically denied that any sexual harassment took place or that Mr. Cabrera engaged in any improper actions of comments. Plaintiff's evidence casts doubt on defendant's proffered reasons for the adverse employment actions, and therefore, resolution of whether defendant's reasons are pretextual will be a question of fact. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). We will not grant defendant's motion for summary judgment on plaintiff's claims for discrimination on the bases of race, gender, and national origin.

  Plaintiff also makes a claim for discrimination on the basis of religion. Among other factors, plaintiff must show as part of his prima facie case that defendant knew of his religion. Geraci v. Moody-Tottrup, Int'l Inc., 82 F.3d 578, 581 (3d Cir. 1996). Plaintiff has produced no evidence to show that the City or Ms. Spiro knew of his religion or religious beliefs, and therefore, plaintiff has not met his burden. We will grant the defendant's motion for summary judgment on plaintiff's religious discrimination claim.

  Finally, we turn to plaintiff's retaliation claim. As discussed above, plaintiff had expressed dissatisfaction with Ms. Spiro's treatment of diversity and cultural sensitivity in writing to Ms. Spiro on at least two occasions. In order for plaintiff to establish illegal retaliation under Title VII, he must demonstrate (1) that he engaged in protected conduct, (2) that his employer subsequently took adverse employment action against him, and (3) that there was a causal connection between Page 8 his protected conduct and the employer's actions. Bianchi v. City of Philadelphia, 183 F. Supp.2d 726, at 739 (E.D. Pa. 2002). The action of writing letters to Ms. Spiro complaining about her cultural insensitivity and possible bias may qualify as protected activity, id., and it is undisputed that there was adverse employment action, namely that plaintiff was suspended and demoted. Defendant contests any causal connection between plaintiff's protected conduct and the adverse action. It argues that there could be no causal connection between plaintiff's protected conduct of filing his Charge of Discrimination and the adverse action, because the Charge was filed on May 9, 2002, after the suspension and demotion. Defendant, however, has not addressed the protected conduct of ...

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