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Ravitch v. City of Philadelphia

March 31, 2009

SAUL RAVITCH PLAINTIFF,
v.
CITY OF PHILADELPHIA, CHARLES ISDELL, MARK PESCE, THOMAS BECKER, CHRISTINE DERENICK- LOPEZ, INDIVIDUALLY AND AS CORPORATE OFFICIALS FOR THE CITY OF PHILADELPHIA DEFENDANTS.



The opinion of the court was delivered by: Buckwalter S.J.

MEMORANDUM

Currently before the Court is the Motion for Summary Judgment of Defendants City of Philadelphia (the "City"), Charles Isdell, Mark Pesce, Thomas Becker, and Christine Derenick-Lopez, both individually and as corporate officials for the City of Philadelphia, and the Response in Opposition of Plaintiff Saul Ravitch and his Cross-Motion for Sanctions. Also before the Court, is Defendants' Cross Motion for Sanctions and Response in Opposition to Plaintiff's Cross-Motion. For the following reasons, it is ordered that the Motion for Summary Judgment is granted in part and denied in part, that Plaintiff's Cross-motion for Sanctions is denied, and Defendants' Cross-motion for Sanctions is granted in part.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff Saul Ravitch has been employed by Defendant City of Philadelphia at the Philadelphia International Airport ("PIA") since June 14, 1999. (Pl.'s Compl. ¶ 5.) He started his employment as a Public Relations Specialist Trainee, and is currently a Public Relations Specialist 2. (Id. ¶ 13.) His duties as a Public Relations Specialist 2 include:

[D]eveloping concepts and strategies to promote the airport; perform research required to prepare promotional and informational materials; prepare news releases, articles for publication, photo captions, bulletins, pamphlets and other materials, arrange for newspaper, television, and radio coverage of departmental exhibits and ceremonial functions; coordinate the production and distribution of informational materials with departmental employees and/or contracted firms; establish and maintain liaison with representatives of informational media; provide background and factual materials to press, radio, and television representatives; represent the airport at meetings, press conferences, and ceremonial events. (Id. ¶ 14.)

Defendant Charles Isdell is the Director of Aviation for the PIA. (Id. ¶ 7.) Defendant Mark Pesce is the PIA Public Relations Manager. (Id. ¶ 8.) Defendant Thomas Becker is the Assistant Director of Aviation-Budget & Central Services for the PIA. (Id. ¶ 9.) Defendant Christine Derenick-Lopez is the Assistant Director of Aviation-Administrative Services for the PIA. (Id. ¶ 10.)

A. Union Work

In June 2002, Plaintiff became a shop steward for the American Federation of State, County and Municipal Employees Union ("AFSCME"), Local 2187. (Id. ¶ 15.) He subsequently made numerous requests for information and filed numerous grievances over contractual violations. Id. Plaintiff claims that this action prompted retaliation from PIA management, resulting in his being relocated, denied overtime, stripped of his legitimate duties, assigned inappropriate tasks outside of his job description, denied the necessary training, and threatened with discipline should he not perform them. Id. Plaintiff also claims that emails sent to him regarding union matters were opened without his authorization. (Id. ¶¶ 70-73.)

B. Automatic External Defibrillators

In the summer of 2002, Plaintiff joined the Airport Safety Committee. (Id. ¶ 16.) In November 2002, the Airport Safety Committee met and discussed maintenance and service of automatic external defibrillators ("AED") at the PIA. Id. In September and October 2003, the Airport Safety Committee again discussed safety relating to maintenance of the AEDs. (Id. ¶¶ 27, 29.) The committee concluded that the AEDs were in danger of malfunctioning due to deficiencies in the AED maintenance program. (Id. ¶ 29.) This fact was reported to Defendant Isdell via the minutes of the Airport Safety Committee. Id.

On October 27, 2003, Defendant Pesce, Plaintiff's immediate supervisor, assigned him to write a promotional brochure about the PIA's AED program. (Id. ¶ 28.) At this time, and again in December 2003, Plaintiff informed Defendant Pesce and Airport Safety Officer John McCourt of his concerns regarding the safety and maintenance of the AEDs. (Id. ¶ 31.) In November 2003, the Airport Safety Committee met again to discuss issues relating to the maintenance of the AEDs. (Id. ¶ 30.) On March 30, 2004, the Philadelphia Daily News published written by Plaintiff regarding safety problems at the PIA. (Id. ¶ 34.) The following day, Defendant Isdell disbanded the Airport Safety Committee. (Id. ¶ 35.) A new safety committee was convened by the PIA in the Summer of 2006. Id. This action was in response to an unsatisfactory rating of the airport's employee safety program by Philadelphia's Office of Risk Management. Id.

On January 13, 2005, Robert McCormack, an airline passenger, experienced cardiac arrest and died at the PIA. (Id. ¶ 39.) A doctor and nurse at the scene tried unsuccessfully to resuscitate McCormack prior to the arrival of paramedics. Id. Records maintained by the PIA determined that several AED's had to be used and failed to resuscitate McCormack. Id. On April 5, 2005, the Daily News published an article regarding McCormack's death, which contained quotes from Plaintiff criticizing the failure to maintain the AEDs and his 2003 warning about the safety of the AEDs. (Id. ¶ 40.) On April 6, 2005, and again the following night, NBC 10 reported on the death of Robert McCormack and interviewed Plaintiff regarding the failure of the AEDs. (Id. ¶¶ 41, 42.) Plaintiff claims that PIA officials retaliated against him three weeks laterby terminating his internet access without explanation. (Id. ¶ 43.) On June 15, 2005, Defendant Pesce prepared a memorandum recommending Plaintiff for a three-day suspension over the statements made by Plaintiff about the AED program at the PIA and served it on Plaintiff five days later. (Id. ¶¶ 46, 47.) Shortly after, the Daily News published an article regarding the disciplinary action recommended by Defendant Pesce against Plaintiff. (Id. ¶ 48.)

C. Internet Usage

In the nine months prior to this action, Defendant Pesce assigned Plaintiff no fewer than fourteen projects requiring internet access. (Id. ¶ 43.) In the sixteen months since April 27, 2005, Plaintiff has used the internet workstation in Terminal D at least twelve times. Id. This use of the internet workstationrequires Plaintiff to pass through a security checkpoint to return to his office. Id. Diane Gerace, the only other Public Relations Specialist employed at the PIA, has not had her internet access terminated. Id. On June 7, 2005, Plaintiff informed Defendant Pesce of difficulties in completing an assignment caused by denial of internet access and about the treatment he received compared to Ms. Gerace. (Id. ¶ 44.) Defendant Pesce instructed Plaintiff to use the internet workstation located in the TIA's Human Resources Office for projects requiring external research. (Id. ¶ 45.) Plaintiff continued repeatedly informed Defendant Pesce of the difficulties presented by the removal of his internet access, and complained about his treatment compared to that of Ms. Gerace. (Id. ¶¶ 50, 51.) On August 16, 2005, Plaintiff inquired about the status of his request to have his internet access restored and why it had been removed initially. (Id. ¶ 53.) The following day, Defendant Pesce stated that he played no role in the removal of Plaintiff's internet access, that he did not know the reason for its removal, and that Plaintiff's assignments did not warrant consistent internet access. (Id. ¶ 54.)

On September 19, 2005, Plaintiff again spoke to Defendant Pesce to inform him of difficulties in completing assignments caused by the removal of his internet access. (Id. ¶ 57.) Plaintiff notified Defendant Pesce again, on October 3, 2005, of difficulties in accessing material from a web link contained in an email that Pesce sent him. (Id. ¶ 61.) Defendant Pesce responded to Plaintiff that it was still not necessary for him to have internet access. (Id. ¶ 62.)

On January 26, 2006, Defendant Pesce sent Plaintiff a facsimile asking that Plaintiff coordinate with four members of the Custodial Department to be interviewed for the Custodial Newsletter. (Id. ¶ 74.) Defendant Pesce imposed a deadline of February 2, 2006, for the completion of the newsletter. Id. When Plaintiff asked Defendant Pesce for help arranging the interviews due to his lack of internet access, Defendant Pesce refused to help. Id. Although Plaintiff met the mandated deadline, the newsletter was not published until four months later. Id.

D. Ron White

On February 20, 2003, Ron White, a political fundraiser, was secretly recorded by governmental investigators discussing a printing contract between PIA officials. (Id. ¶ 21.) The recording revealed Ron Whiteinstructing Janice Knight, owner of a printing company, to buy Defendant Isdell lunch to reward him for all the business Isdell provided via the PIA. (Id. ¶ 22.) On April 1, 2003, Ron White and Janice Knight were again secretly recorded discussing rewarding Defendant Isdell for providing business to Knight's printing company. (Id. ¶ 24.) On June 6, 2003, Ron White and Defendant Isdell were recorded discussing the printing contract held by Janice Knight. (Id. ¶ 25.) A final recording, performed June 11, 2003, revealed Ron White berating Defendant Isdell for delays in processing the printing contract for Janice Knight. (Id. ¶ 26.)

On December 5, 2003, the Daily News published an editorial written by Plaintiff regarding the federal corruption probe and the PIA. (Id. ¶ 32.) On June 24, 2004, the Daily News published a third editorial written by Plaintiff about the financial costs of cronyism as practiced by the City of Philadelphia, and more specifically, the PIA. (Id. ¶ 37.) On November 26, 2004, the Daily News published Plaintiff's fourth editorial about the organizational culture at the PIA and how it helped precipitate the federal probe. (Id. ¶ 38.)

E. Plaintiff's Philadelphia International Airport Employment

Plaintiff claims that, on January 23, 2002, his personal work voicemail was being monitored by someone else. (Id. ¶ 17.) On February 5, 2003, PIA officials restricted access afforded to Plaintiff by his employment badge, making it more difficult for him to escort media representatives around the airport. (Id. ¶ 18.

On February 12, 2003, Virginia L. McDonald, Plaintiff's current supervisor, emailed him asking him to determine and report in detail about the quantity, cost, and method of inventory control of the printed materials distributed throughout the PIA. (Id. ¶ 19.) Shortly afterwards, Plaintiff filed a grievance over the retaliatory nature of the above assignment. (Id. ¶ 20.) In addition, AFSCME Local 1510 filed a grievance over assigning Plaintiff work outside his normal duties as a Public Relations Specialist that were normally performed by the members of Local 1510. Id. Local 1510 asserted that the assignment infringed upon the work of their members with the job titles of Inventory Control Technician and Stores Worker. Id.

On March 23, 2004, Plaintiff tested for the position of Special Events Production Coordinator at the PIA. (Id. ¶ 33.) Plaintiff placed second behind Sabina Clark, another Public Relations Specialist 2, who was eventually promoted to this position. Id. In late June 2005, Special Events Production Coordinator Sabina Clarke retired, creating a vacancy for her position. (Id. ¶ 49.) On August 12, 2005, Personnel Assistant Shauna Bracy informed Plaintiff that Ms. Gerace declined to interview for the Special Events Production Coordinator position and that Defendant Pesce preferred to have two candidates from which to choose a replacement. (Id. ¶52.) As a result, the promotion list was deemed uncertifiable under civil service regulations, and Plaintiff was denied the promotion. Id. On September 15, 2005, Ms. Bracy informed Plaintiff that her August 12 email was in error, and that he would be considered for the Special Events Production Coordinator position along with a top candidate on an "Open Competitive" list, which would be comprised of outside candidates. (Id. ¶ 55.) Ms. Bracy told Plaintiff that he would interview for the Special Events Production Coordinator position on December 12, 2005. (Id. ¶ 62.) On the day of the scheduled interview, however, Ms. Bracy informed Plaintiff that his interview was cancelled by "in-house" people, rather than Central Personnel. (Id. ¶ 63.) On December 23, Ms. Bracy sent a letter to Plaintiff indicating that the position had been filled by an outside candidate. (Id. ¶ 65.)

F. The Isdell Letter

On December 20, 2005, KYW Newsradio aired an editorial advocating a state takeover of the PIA. (Id. ¶ 64.) Three days later, Defendant Isdell emailed a rebuttal to KYW Newsradio General Manager David Yadgaroff, and all PIA employees were carbon copied on the email. (Id. ¶ 66.) The next day, Plaintiff sent an email to Defendant Isdell criticizing the email Isdell sent to KYW Newsradio, his management of the PIA, and his relationship to Ron White, calling the PIA the "Ron White International Airport". (Id. ¶ 67.) More specifically, Plaintiff criticized Isdelll for fraud, waste, and misuse of public funds by airport officials as subsequently exposed by the federal corruption probe. Id. On December 29, 2005, Plaintiff's access to the airport computer network and email system were removed and his further use of those privileges were placed under "administrative review." (Id. ¶ 68.) Defendant Pesce stated that he would communicate with Plaintiff by phone and facsimile for the duration of the "administrative review." Id. On January 8, 2006, Plaintiff sent an email from his home to the recipients of his December 24th email, clarifying that the previous email was stating only his personal views. (Id. ¶ 71.) Nearly a month later, Defendant Pesce served Plaintiff with a memorandum recommending a twenty-day suspension for his December 24 email. (Id. ¶ 76.) On May 3, 2006, Defendant Pesce and Derenick-Lopez conducted a disciplinary hearing for Plaintiff relating to the December 24 email and stated that they would come to a decision within a week. (Id. ¶ 79.) On June 9, 2006, Defendant Derenick-Lopez issued a twenty-day notice of suspension without pay to Plaintiff that ran from June 19, 2006, through July 14, 2006. (Id. ¶ 81.) In the following weeks, Plaintiff appeared on the WPHT-AM radio show hosted by Michael Smerconish to discuss the alleged adverse treatment by the PIA, and numerous editorials and news stories were published concerning Plaintiff's comments and suspension. (Id. ¶¶ 82-86.) Plaintiff claims that Defendants continue to assign Plaintiff meaningless and ministerial tasks that do not reflect the level of knowledge or experience he possesses in his capacity as Public Relations Specialists. (Id. ¶ 87.)

Plaintiff filed his Complaint on August 22, 2006 seeking compensatory and punitive damages stemming from what he alleges were Defendants' violation of his constitutional, statutory, and civil rights attendant to his employment as a Public Relations Specialist at the PIA. There are two Counts within the Complaint: (1) Plaintiff alleges that Defendants Isdell, Pesce, Becker, and Derenick-Lopez, in their individual capacities, violated his First and Fourteenth Amendment rights by disciplining him for stating his opposition to Defendants' wrongdoing; and (2) Plaintiff alleges that the City of Philadelphia, and the other named Defendants, in their official capacities, violated 42 U.S.C. ยง 1983, because the City condoned the named Defendants' behavior with respect to his treatment while working for the PIA and his suspension. On November 2, 2006, Defendants filed a motion to dismiss, which was denied by this Court on July 19, 2007. Defendants then filed this motion for summary judgment on June 6, 2008. ...


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