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Green v. City of Philadelphia

March 12, 2009


The opinion of the court was delivered by: Pratter, J.


Before the Court is Defendant City of Philadelphia's Motion for Summary Judgment and Plaintiff Michael Green's Response. Mr. Green asserts a claim for racial discrimination and harassment under 42 U.S.C. § 1983. Because Mr. Green fails to establish the municipal liability necessary to successfully bring such a claim against the City, Defendant's Motion will be granted.


Michael Green is an African American male who began working for the City's Fire Department in December, 1993; he is still employed by the City as a firefighter. About five years after he started working at the Fire Department, Mr. Green was arrested for rape and assault. The case was later dismissed. Mr. Green was fired because of the arrest, but reinstated with backpay pursuant to the union grievance process. While the charges were pending, Mr. Green discussed his situation with the Valiants, a group of mainly African American firefighters dedicated to promoting the interests of African Americans in the Department. Mr. Green later quit the group after his reinstatement because he was not satisfied with the Valiants' response.

Over the years, Mr. Green exhibited a pattern of emotional outbursts and unusual behavior at work. In 2002, for instance, Mr. Green went home during a shift after being ordered by a superior officer to remove an earring. In 2004, believing that Malcolm Clay, his former lieutenant, was making fun of him, Mr. Green punched him. As a result of this incident, Mr. Green was referred to a counseling service, the Employee Assistance Program ("EAP"), where he received anger management and self-discipline instruction.*fn2 Also in 2004, Mr. Green pounded a punching bag until he was sweating heavily after being instructed not to lower the American flag before it was time to do so. He also screamed at a fellow firefighter when he was supposed to be training her.

Mr. Green also exhibited a range of unusual behavior during his employment with the Fire Department, e.g, laughing until he cried at "foghorn, leghorn" cartoons, diverting water from the booster line to spray away bees.*fn3 He also shared with co-workers his own writings about serial killers and transvestites who engaged in sexual assault and genital mutilation. Mr. Green admits that he did author the writings and show them to co-workers, but points to the testimony of a supervisor noting that his writings did not interfere with his ability to perform his duties.

Mr. Green had a history of accidents while driving Fire Department vehicles; he was involved in at least 6 accidents, 5 of which were deemed preventable. The accidents occurred over a period of years between 2000 and 2006 and included hitting vehicles on the side of the road, hitting a pole, and clipping a mirror on a parked vehicle. Mr. Green was also involved in an unreported incident when he hit a mirror on a parked vehicle. According to the deposition testimony of Lieutenant Clay, he temporarily took Mr. Green out of the driver rotation and spoke "harshly" to him after the incident, and that as a result, Mr. Green reported Lieutenant Clay's actions to the Department Employee Rights Officer. In April 2008, Mr. Green also was involved in an accident while driving a medic unit--the medic unit swiped the side of a SEPTA bus, causing damage to the medic unit's mirror.

In May 2006, Lieutenant Senski, one of Mr. Green's supervisors at that time, noticed that Mr. Green nearly hit several parked cars on the way back from a run. Lieutenant Senski spoke with Captain Neri about the incident, and the two decided to meet with Mr. Green to discuss his driving. During the meeting, Mr. Green initially laughed or smirked because he believed it was a "practical joke." When he realized that his supervisors were serious, he became extremely angry and stormed out of the meeting. Because he left the workplace without permission, Mr. Green's entire fire company was temporarily put out of service. As a result of the incident, Mr. Green was again sent to EAP, sent to remedial driving training, detailed away from his company (Engine 63), and taken off the driving rotation until notice came from EAP, the medical unit, or the academy that he was ready for return to the rotation.

Shortly thereafter, Mr. Green returned to Engine 63 and discovered that he had been taken off the driving rotation; the firefighters driving in his place were either African American or Hispanic. Lieutenant Senski was on vacation when Mr. Green initially returned to Engine 63; and when he came back from vacation on June 4, 2006, he asked Mr. Green why he was not driving. Mr. Green replied that Lieutenant Senski knew why. Whether Lieutenant Senski did know why Mr. Green was not driving is a matter of dispute--Mr. Green interprets the question as harassment, arguing that Lieutenant Senski knew quite well why Mr. Green was not driving.

Later on that same day, Mr. Green asked Lieutenant Senski for a transfer because others at the station were "out to get him" and he felt "unsafe." Lieutenant Senski called Chief Sullivan and reported that Mr. Green felt unsafe and was isolating himself from the rest of the company; he also filled out a transfer order for Mr. Green. As a result, Mr. Green was detailed out to another company for the remainder of his tour.*fn4

Mr. Green was then officially transferred to Ladder 2, effective for his next tour. Ladder 2 was selected as an appropriate transfer destination by Deputy Commissioner Hargett because he felt that Ladder 2 would provide Mr. Green with more structure, more interaction with colleagues, more training, and the opportunity to learn more skills and because there were vacancies at that station. Mr. Green asserts that Deputy Commissioner Hargett transferred him to Ladder 2 because of a memorandum written by Chief Sullivan that was attached to the Request to Transfer form. The memorandum discussed the circumstances surrounding Mr. Green's transfer request, as well as other performance-related issues. Deputy Commissioner Hargett confirmed in his deposition that receiving such a memorandum was unusual because it did not "contain anything really positive" about Mr. Green. See Hargett Dep. at 29, attached to Pl.'s Opp. at Ex. D. Mr. Green had, however, requested two locations other than Ladder 2 as transfer possibilities, but these locations were deemed inappropriate because they lacked strong supervisors and were "slow" stations. After Mr. Green was transferred, but before he started at Ladder 2, Chief Wilkins referred Mr. Green to EAP.

Mr. Green testified in his deposition that he did not believe that Deputy Commissioner Hargett, Captain Neri, Lieutenant Senski or Lieutenant Clay acted with anti-black animus. In fact, he testified that he was sent to EAP and taken off the driving rotation not because of race, but because of his former arrest and because he punched Lieutenant Clay. Mr. Green asserts in his Opposition to Defendant's Motion that Firefighter Boyle, a white male and a fire department rookie, hit a FedEx truck while driving and was not disciplined. Mr. Green admitted that he did not lose pay, work, or overtime because of the allegations in his complaint, nor did he seek any mental health treatment. He testified at deposition that the incidents alleged in his Amended Complaint impacted him by making him "a little bit more cautious" in his work relationships. See Green Dep. at 249, attached to Def.'s Mot. for Summ. J. at Ex. B.

Mr. Green admitted at his deposition that an African American firefighter, Clay Finley, got into an accident at Engine 63 and was not disciplined, while a white firefighter, Ralph O'Neill was transferred to another station after an incident between him and his lieutenant.

Mr. Green filed a complaint May 30, 2007, asserting a claim of racial discrimination and harassment under 42 U.S.C. § 1981 and seeking damages for backpay, front pay, interest, fringe benefits, and past and future mental anguish and emotional distress, as well as punitive damages. The City filed a motion to dismiss, which was granted with prejudice with regard to Mr. Green's punitive damages claim, as well as with regard to any conduct occurring before May 25, 2005, and without prejudice as to the remainder of his claim because his claims should have been asserted under 42 U.S.C. § ...

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