The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge
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,
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
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
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
Plaintiff's vacation on July 3, 2001 should be
changed to AWOL and that "disciplinary action
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
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
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.
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).
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.
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
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
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 ...