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JACOBS v. CITY OF PHILADELPHIA

January 29, 2004.

DERRICK U. JACOBS
v.
CITY OF PHILADELPHIA and CAPTAIN JOSEPH O'DONNELL



The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge

MEMORANDUM

Derrick Jacobs (herein "Plaintiff) filed a complaint against the City of Philadelphia and Captain Joseph O'Donnell ("Defendants") on February 19, 2003 and an amended complaint on June 5, 2003 alleging racial discrimination under 42 U.S.C. § 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Pennsylvania Human Relations Act, 43 PA. STAT. ANN. § 951 et seq. ("PHRA") for employment discrimination based on race and a racially hosfile work environment. Defendants subsequently filed their Motion to Dismiss on September 2, 2003 and Plaintiffs responded on September 22, 2003.

I. Factual and Procedural Background

  Plaintiff was hired by the City of Philadelphia as a police officer in January 1996 and promoted to the position of Detective in December 1998. Plaintiff alleges that, beginning in January 2001, his supervisors began harassing him and in February of 2001, an official memo written to Defendant O'Donnell referred to Plaintiff as "Brother Jacobs." Plaintiff alleges that he was denied overtime and removed from assignments that earned overtime, while officers with similar seniority remained in such assignments, in several instances in February, May, and June of 2001. On June 22, 2001, when Plaintiff asked Defendant O'Donnell about his removal from Page 2 these assignments, he was told "I'm going to run your black ass out of this division and off the department."

  Plaintiff also makes the following allegations:
1. Plaintiff had vacation time unduly removed in June and July of 2001 and on July 20, 2001 Defendant O'Donnell wrote a memo incorrectly stating that Plaintiff had used six undocumented sick days that year. In July 2001, Plaintiff was unduly suspended for 20 days without pay for making false reports and not signing a police document.
2. On August 23, 2001, Plaintiff injured his knee in the course of employment and was treated by a physician, who told him to stay off of his knee for two weeks. That same week, Plaintiff had sick time unduly taken from him and the next week Plaintiff was put down for two hours absent without leave ("AWOL"), even though he had been at work.
3. On September 10, 2001, Detective Sloan asked Plaintiff and Detectives Hobbs and Anderson, "What's going on at the division? Why is the Captain messing with all the blacks?" On September 16, 2001 a fellow white officer, Detective O'Brien, did not call or report for work, but instead of being listed as AWOL, was marked as taking vacation time. On September 17, 2001, O'Brien reported late for work and was not marked as late.
  4. On September 19, 2001, Plaintiff called in sick due to an intestinal ailment, and was called at home by Lieutenant Bachmayer, who told him he had been "sick checked" (squad cars had been sent to his home to determine if he was in fact there) and told Plaintiff "as far as we are concerned, you are not home." On September 21, 2001, an official memo from Defendant O'Donnell to the Police Finance division directed that Page 3
 
Plaintiff's vacation on July 3, 2001 should be changed to AWOL and that "disciplinary action is forthcoming."
5. On September 27, 2001, Plaintiff submitted a doctor's note and took a sick leave of absence because of Defendants' ongoing course of harassment, and was marked AWOL rather than on sick leave, even though he had sick leave available. Defendant O'Donnell advised Plaintiff that he would be placed on the sick "abuse" list.
6. On October 24, 2001, Detective Kensey*fn1 was on duty and transporting himself and his child home and was involved in a road rage incident. The next day, Sgt. Terry changed Kensey's time to make the incident "off duty" and paid Kensey three hours overtime.
7. On November 1, 2001, Plaintiff filed a Charge of Discrimination with the EEOC in Philadelphia.
8. On November 16, 2001, Plaintiff was given sick time without pay for his back to work physical. On November 16, 2001, Plaintiff called the Fraternal Order of Police regarding grievances he had filed. Ken Rocks stated to Plaintiff, "it's obvious Captain O'Donnell does not like black detectives."
9. On January 1, 2002, Plaintiff was charged for eight hours of sick time despite working the 8:00 A.M. to 4:00 P.M. shift. On January 7, 2002, Plaintiff was charged with eight hours of vacation time despite working the 4:00 P.M. to 12:00 A.M. shift. On or around May 9 and 10, 2002, Plaintiff was again denied payment of overtime.
  After receiving a right to sue letter from the EEOC on November 20, 2002, Plaintiff filed a complaint in this Court on February 19, 2003 and an amended complaint on June 5, 2003. Page 4

 II. Legal Standard

  When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 III. Discussion

  In their Motion to Dismiss, Defendants argue that Plaintiffs complaint should be dismissed because he has not exhausted his administrative remedies, because he has not provided a copy of the EEOC right to sue letter, because he incorrectly pleads a claim under § 1981, because punitive damages are inappropriate and because the pendent state claims are incorrectly in federal court if the federal claims are not valid. Each of these arguments will be addressed below. As a preliminary matter, Plaintiff has withdrawn his claim for punitive damages against Defendant City of Philadelphia (Plaintiff's Memorandum of Law Opposing Defendant's Motion to Dismiss at 7, n.2), so Defendants' argument on that count need not be addressed here.

 1. Right to Sue Letter

  Defendants first argue that they were not served with a copy of Plaintiff's right to sue letter from the EEOC. Defendants argue that, since they did not have a copy of this letter, it must be assumed that the date Plaintiff claims the EEOC letter was sent is incorrect and that Plaintiff Page 5

 has not properly sued within the 180-day time limit. Plaintiff responds that the right to sue letter lists Defendants as having received a copy and, in any event, Plaintiff is not required to attach the right to sue letter to his complaint. Plaintiff also attaches a copy of the letter, dated November 20, 2002 that shows a copy to Defendants, to his response.

  Regardless of whether Defendants actually received a copy of the right to sue letter from the EEOC, they now currently have a copy of the letter and the November 20, 2002 date on the letter shows that Plaintiff filed his February 19, 2003 original complaint well within the 180-day ...


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