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.
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
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
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.
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
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
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
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
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
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 ...