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July 28, 2004.


The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge


Plaintiff, William J. Brophy ("Brophy"), alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(b) and the Pennsylvania Human Relations Act, ("PHRA"), 43 Pa. C.S. § 951 et seq., filed this action on July 15, 2003. Defendant, the City of Philadelphia, moving for summary judgment, argues Brophy's ADEA and PHRA claims are barred as a matter of law.


  Brophy is seventy-six (76) years old, and was formerly employed by the Philadelphia Police Department as a Police Officer, Detective and Sergeant, with almost ten years of service. After he voluntarily left City employment, he served as a Special Agent with the Federal Bureau of Investigation, a Police Commissioner of two police departments, and as regional security director for a national retailer and a major local hospital. For approximately ten years prior to his current application to the City of Philadelphia Police Department ("Police Department"), Brophy served in a civilian position with the Camden County Sheriff's Office.

  On February 23, 2000, at the age of 73, Brophy submitted an application to the Police Department for the position of Philadelphia Police Officer Recruit. He subsequently took the written and oral exams, and submitted to the medical evaluations and background investigations. On January 26, 2001, he was informed he would not be hired because he did not meet the one year Philadelphia residency requirement. He denies he did not meet the residency requirement, because while still working in New Jersey, he had become estranged from his wife and moved to Philadelphia in 1998.

  On February 28, 2001, Brophy filed a complaint with the Pennsylvania Human Relations Commission ("PHRC"). The matter was dually filed with the EEOC under the Charge Number 17F2001-016939. The complaint alleged that the continued background investigation and other actions by the City were discriminatory and harassing actions based on his age. Following an investigation by the PHRC, the City agreed to accept Brophy into the "next class offered by the Police Department" after he had again passed a polygraph and physical examination. Plaintiff passed the exams and was appointed to the Philadelphia Police Academy ("the Academy") on October 15, 2001. Based on the agreement to hire, Brophy's EEOC/PHRC claim was closed.

  He alleges that when he entered the Academy, he was entitled to a "Waiver of Training" under the Municipal Police Officer Education and Training Act, 37 P.S. § 203.12 ("The Act"). The Act allows waiver of certification standards, in lieu of participating in the full Academy training program, for police officers trained prior to 1974 with more than five years of service. An individual officer's department is solely responsible for submitting a waiver application to the Municipal Police Officer Education and Training Commission. Brophy contends he qualified for waiver but the City refused to submit a waiver application on his behalf.

  When Brophy was admitted to the Academy in October 2001, the City of Philadelphia had no written policy regarding waivers, and each application was decided on a case-by-case basis. According to the Academy's Captain, Arthur Grover, at the time plaintiff entered the Academy, a waiver of training was granted to a police recruit only if the recruit had been a prior member of the Philadelphia Police Department, and/or the recruit had been a municipal officer within the past few years. Because it had been twenty-six years from the time Brophy had been a police officer on the streets until he entered the Academy, the City declined to submit a waiver application on his behalf.

  Brophy was 74 years old when he entered the Philadelphia Police Officer Recruit training class. He alleges he was singled out for harassment and discrimination because of his age. First, Brophy received significant media attention for his attempts to rejoin the Department. As a result, he was ridiculed in front of his classmates, spoken to privately by Academy administrative officials and required to sign confidentiality agreements.

  Brophy alleges he was frequently singled out or disciplined when other students were not. Brophy was among the first of the recruits to clean toilets, was spoken to in a demeaning manner before his peers on repeated occasions by an academy instructor, Police Officer Halasa, and frequently disciplined for lateness and cheating which he denies.

  On March 29, 2002, Brophy was informed that he did not pass the night-firing firearms examination. Following his failure, he was assured that he would have the opportunity to pass the examination after remedial training and could graduate as scheduled.

  On June 5, 2002, Brophy's class had its final physical examination. Brophy was weighed, and was tested in sit-ups, bench press, and stretching. The class was also required to run 1.5 miles by required times on a matrix based on gender and age. Exh. 15, Academy Physical Requirements Matrix. The age groups were in ten year increments: those recruits 60 years of age or older were required to run the 1.5 miles in 16:07 minutes. Id. Brophy's time was 18:05 minutes.

  Brophy was then informed that he would be terminated for failing two of the Academy requirements, dismissed from the training class, and denied the opportunity to be hired by the Police Department. On June 12, 2002 he dually filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC"). Brophy's charge of discrimination states he was entitled to a waiver of training and failing him on the firearms and ...

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