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Pourkay v. City of Philadelphia

June 23, 2009

FOUROUZA POURKAY, PLAINTIFF,
v.
CITY OF PHILADELPHIA, ET AL, DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. BACKGROUND......................4

II. LEGAL STANDARD - MOTION FOR SUMMARY JUDGMENT . . . . . 9

III. ANALYSIS .....................11

A. Title VII and PHRA Claims . . . . . . . . . . . 11

1. Title VII and PHRA: Statute of Limitations Analysis - claims predicated upon acts which occurred prior to January 29, 2004 ..................... 11

2. Title VII and PHRA: Exhaustion Analysis - race discrimination, retaliation, and claims predicated upon acts which occurred after August 30, 2006 ..................... 17

3. Title VII and PHRA: Substantive Analysis - race, national origin, and religious based discrimination.............. 23

a. Failure to Promote . . . . . . . . . . 25

b. "In-Basket Examination" . . . . . . . 27

B. Civil Rights Violations for Municipal Liability under § 1983 ..................... 28

C. First Amendment Retaliation under § 1983 . . 31

IV. CONCLUSION..................... 34

Plaintiff Fourouza Pourkay ("Pourkay") brings this action against his current employer, City of Philadelphia ("City"), his former supervisor in the Engineering Unit, Michael McCartney, and his former supervisor in the Maintenance Unit, Calvin Davenger, collectively "Defendants," alleging: (1) race, national origin, and religious based discrimination and retaliation in violation of Title VII and the Pennsylvania Human Relations Act ("PHRA"); (2) constitutional violations, pursuant to 42 U.S.C. § 1983; and (3) First Amendment retaliation, pursuant to 42 U.S.C. § 1983.

Defendants have moved for summary judgment on all counts. Specifically, Defendants argue: (1) Plaintiff failed to exhaust administrative remedies as to his Title VII and PHRA claims predicated upon race discrimination, retaliation, and acts which occurred prior to January 29, 2004 and after August 30, 2006; (2) Plaintiff failed to establish a prima facie case as to his Title VII and PHRA claims predicated upon national origin and religious based discrimination; (3) Plaintiff failed to establish municipal liability for the purposes of his Section 1983 action; and (4) Plaintiff failed to establish that he engaged in protected speech, or was otherwise prevented from exercising his First Amendment rights.*fn1

The Court finds the following: (1) Plaintiff's Title VII and PHRA claims, predicated upon acts which occurred prior to January 29, 2004, are barred by the Title VII and PHRA statutes of limitations; (2) Plaintiff's Title VII and PHRA claims, predicated upon retaliation and acts which occurred after August 30, 2006, are barred for failure to exhaust these claims at the administrative level; (3) Plaintiff's Title VII and PHRA claims, predicated upon race, national origin, and religious based discrimination, fail on the merits because Plaintiff can not establish a prima facie case of discrimination; (4) Plaintiff's civil rights claims for municipal liability under 42 U.S.C. § 1983 fail because Plaintiff can not establish the existence of a City policy which violated his civil rights; and (5) Plaintiff's First Amendment retaliation claims under 42 U.S.C. § 1983 fail because Plaintiff can not establish that he spoke "as a citizen" when engaging in allegedly protected speech.

For the reasons that follow, Defendants' Motion for Summary Judgment will be granted.

I. BACKGROUND*fn2

Plaintiff was born in Iran and follows the Islam religion. (Pl.'s Compl. ¶ 16).*fn3 On April 8, 1996, Plaintiff was hired by Defendant City of Philadelphia to work as a mechanical engineer in the Philadelphia International Airport, under the supervision of Defendant Michael McCartney. In this role, Plaintiff alleges that he experienced numerous acts of discrimination, including the following: (a) Defendant McCartney made disparaging remarks regarding Plaintiff's age, such as "you cannot teach an old dog new tricks;"*fn4 (b) an unidentified person and Airport contractor made fun of his accent on two separate occasions; (d) Defendant McCartney placed a sign in the bathroom which read, "if you don't flush your fecal matter, we will send you to a third-world country . . . ;" and (e) Defendant McCartney treated Plaintiff differently from other employees by not allowing him to use his cellular phone for personal reasons during work hours, requiring him to sign in and out for lunch, and searching through his desk.

In February 1998, Plaintiff was promoted to Mechanical Engineer II, under the supervision of Defendant Calvin Davenger, an engineering specialist who also served as the Airport Assistant Facilities Manager. Plaintiff contends that Defendant Davenger spoke to him in a condescending manner and treated Caucasian females more favorably.*fn5 Plaintiff was appointed to Airport Planner January 29, 2001 where he worked for the Executive Officers under the supervision of Mark Gale. Plaintiff asserts that he was not subject to any discrimination during the time period between this appointment through the end of 2003.

In 2003, Plaintiff took an eligibility test*fn6 to become an airport engineering project manager ("AEPM"), an EP 25 pay range position involving management of engineering design and construction phases of the Airport's public works projects.*fn7

Plaintiff ranked number three on the eligibility test; Defendant Davenger, an African American, ranked number one; Thomas Joseph, an engineer of Indian national descent, ranked number two.*fn8 In accordance with these rankings, Defendant Davenger was promoted to AEPM on August 20, 2003; a few months thereafter, Thomas Joseph was appointed to a second AEPM position. On January 13, 2004, Plaintiff was notified by letter that he would not be appointed to the AEPM position. Plaintiff challenged his non-selection as "discriminatory." Upon investigation, Airport Director, Charles Isadell determined that the promotion decision was pursuant to proper procedure and not the product of discrimination.

On April 13, 2004, when a third AEPM position became available, Plaintiff was promoted to AEPM in the Planning Unit. Defendant Davenger,*fn9 Ms. Derenick-Lopez, the Human Resource Manager at the time, and Tom Becker, Assistant Director of Aviation, approved Plaintiff's AEPM promotion. While Plaintiff's promotion papers were being processed, Defendant McCartney was promoted to Airport Planning and Environmental Services Manager.

In Plaintiff's AEPM capacity, Plaintiff would work in newly promoted Defendant McCartney's unit, and thus it was necessary for the selection committee to consult Defendant McCartney, in his new capacity, before Plaintiff's promotion became final. Upon consultation, Defendant McCartney opined that the AEPM job description was not suited for the Planning Unit and was more appropriate to the Engineering Unit. Defendant Davenger and Ms. Derenick-Lopez agreed with Defendant McCartney and informed Plaintiff that he would no longer be offered the AEPM position. The AEPM position within the Planning Unit was not filled by any other employee.

Upon Defendant McCartney's promotion to Airport Planning Manager in April 2004, Defendant McCartney again became Plaintiff's supervisor and was responsible for overseeing Plaintiff's performance evaluations. Plaintiff contends that he was subject to discrimination and/or retaliation by Defendants McCartney and Davenger in connection with a performance evaluation he received on September 7, 2004. The evaluation, prepared by Davenger and signed by McCartney, gave Plaintiff an overall rating of satisfactory, but noted that Plaintiff needed improvement in the areas of initiative and dependability.

Plaintiff was not disciplined, nor was his job in jeopardy, as a result of the evaluation.

Also in 2004, the Airport posted a vacancy for a Design and Construction Project Manager ("DCPM"), an EP 25 project management position which involves the planning and implementation of architectural and/or engineering design and construction phases of specialty projects. The Airport determined that the DCPM position was more suitable for the Planning Unit than the AEPM position. To determine eligible candidates for this position, the Airport administered the "In-Basket Examination."*fn10 Plaintiff failed this examination in spring of 2004 and consequently was not considered in the June 30, 2004 DCPM list of potential candidates.

Subsequently thereafter, Plaintiff passed the "In Basket Examination" in 2007 and was placed as number 13 on the 2007 DCPM eligible candidates list; he was not appointed to the DCPM position. Plaintiff does not contest his denial of appointment to the DCPM position, but rather argues that the "In-Basket Examination" is ...


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