The opinion of the court was delivered by: DuBOIS, J.
Plaintiff Memphis Diaz initiated the instant lawsuit as a result of being denied the opportunity to sit for a promotional exam for the position of Design and Construction Project Manager with the City of Philadelphia's Capital Program Office ("CPO"). Plaintiff asserts the following claims in the Complaint: race and/or national origin discrimination in violation of Title VII of the Civil Rights Act of 1964 and 1991 ("Title VII"), 42 U.S.C. §§ 2000e-2(a)(1), (a)(2) (Counts I and II); retaliation under Title VII, 42 U.S.C. § 2000e-3(a) (Count III); age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623(a)(1), (a)(2) (Counts IV and V); retaliation under the ADEA, 29 U.S.C. § 623(d) (Count VI); violation of his equal protection rights under the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983 (Count VII); conspiracy to deprive him of equal protection of the laws in violation of 42 U.S.C. § 1985(3) (Count VIII); race and/or national origin discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 955(a) (Count IX); and retaliation under the PHRA, 43 Pa. C.S.A. § 955(d) (Count X). Named as defendants are the City of Philadelphia ("the City") and individual defendants, Eric Iffrig, Recreation Projects Director of the CPO, and Richard Tustin, Director of the CPO.
Presently before the Court is defendants' Motion for Summary Judgment. For the reasons that follow, defendants' Motion for Summary Judgment is granted with respect to Counts I, II, III, VI, VII, VIII, IX, and X of the Complaint. The Court defers ruling on the Motion with respect to Counts IV and V and directs supplemental briefing on those claims in light of Gross v. FBL Financial Services, Inc., __ U.S. __, 129 S.Ct. 2343 (2009). See Part IV.B., infra.
On June 30, 1990, plaintiff, an Hispanic male, began working for the City as an Architectural Project Coordinator II. (Charge of Discrimination, Mar. 13, 2006, Ex. J to Def.'s Mot.) On April 2, 2004, the City's Office of Human Resources received plaintiff's application to take an examination for promotion to the position of Design and Construction Project Manager. (Michael McAnally Aff., ¶ 3, Oct. 28, 2008, Ex. A. to Def.'s Mot.) At that time, plaintiff was forty-four years old. (Charge of Discrimination (listing plaintiff's date of birth as March 24, 1960).) The Design and Construction Project Manager position requires that the applicant have, inter alia, "two years of engineering or architectural engineering experience, above the full performance level, which has involved the design or construction, renovation and rehabilitation of large, multi-occupancy commercial buildings and related systems of equipment." (Id. ¶ 5 (emphasis in original).) Plaintiff's application for the promotion was rejected on May 27, 2004 because, according to defendants, plaintiff "did not have two years of experience working above the 'full performance level' . . . ." (Id. ¶¶ 4, 7.) Joseph Palentino, a Caucasian male who was then thirty-five years old, was permitted to take the examination and received the promotion to Design and Construction Project Manager on May 16, 2005. (Charge of Discrimination; McAnally Aff. ¶ 8).
On December 1, 2005, plaintiff sent a letter to defendant Iffrig, one of plaintiff's supervisors, in which he voiced his concern about "the new duties that [defendant Iffrig] added to [his] line of work," that his position should be reviewed because he was "covering the duties of an Architect III and an Architect IV," and that he did not understand why he was found "not quite suitable to hold the position"*fn1 despite his "abilities of being very resourceful and qualified." (Pl.'s Letter to Def. Iffrig, Dec. 1, 2005, Ex. B. to Def.'s Mot.) Thereafter, on December 19, 2005, Mariette Buchman, the Deputy Director of the CPO, sent an e-mail to plaintiff stating that, in response to his December 1, 2005 letter "regarding [his] dissatisfaction with [his] job duties," the CPO was going to conduct an audit of plaintiff's position.
On or before February 16, 2006,*fn2 defendant Iffrig approached plaintiff after work to discuss, according to defendant Iffrig, "the issues [plaintiff] was having with Mr. Palantino [sic] as his supervisor." (Eric Iffrig Dep. 29: 19--20, Sept. 8, 2008, Ex. D. to Def.'s Mot.) The nature and content of the discussion are in dispute. Defendant Iffrig asserts that he only informed plaintiff that "he wasn't helping himself with an obstinate manner and not listening to his supervisor, who was Mr. Palantino [sic]" and that "replacement people" would be needed in the department since a number of former employees had retired. (Id. at 29:25--30:10.) Plaintiff, however, contends that defendant Iffrig was asking him "basically to retract myself from my position [in] my complaint" and telling plaintiff that he was "creat[ing] chaos in the office" and that "this is going to cost [him], and it's going to affect [his] career." (Pl. Dep. 43:13--14, 46:15--17, 50:20--21, Sept. 8, 2008, Ex. A to Pl.'s Resp.) In addition, plaintiff asserts that defendant Iffrig "was telling [plaintiff] that he has to pass his legacy to somebody younger who can . . . run it for a longer time." (Id. at 44:9--11.) Defendant Iffrig claims that he "never mentioned [that the replacements] had to be younger." (Iffrig Dep. 30:10--11.)
Following this incident, plaintiff wrote an e-mail to defendant Tustin stating that he had been waiting for completion of his audit for over two months and claiming that defendant Tustin had "invest[ed] time and effort to undermine my claim, by sending Mr. Iffrig to harass me and to acuse [sic] me of insubordination . . . ." (Pl.'s E-mail to Tustin, Feb. 16, 2007, Ex. E to Def.'s Mot.) By e-mail of February 17, 2006, defendant Tustin responded to plaintiff, denying that he had sent defendant Iffrig to harass plaintiff. (Iffrig E-mail to Pl., Feb. 17, 2006, Ex. F to Def.'s Mot.)
On February 27, 2006, an admonition hearing was scheduled as a disciplinary measure against plaintiff. (Def.'s Mot. 6.) The hearing was cancelled. (Pl.'s Dep. 53:22--23.) A Settlement Agreement was thereafter drafted stating that the "meeting on 2/27/06 will be considered a counseling session" for plaintiff. (Settlement Agreement, Ex. I to Def.'s Mot.) Plaintiff never signed the Settlement Agreement. (Id.)
On March 13, 2006, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). (Charge of Discrimination.) The City's Office of Human Resources completed its audit on May 2, 2007 and found that plaintiff's "duties and responsibilities are not consistent with the allocating factors for Design and Construction Project Manager." (Audit, May 2, 2007, Ex. A to Defs.' Mot.) Plaintiff received a Right to Sue letter on August 4, 2007. (Dismissal and Notice of Rights, Ex. A to Compl.) Plaintiff filed the instant Complaint on November 1, 2007.
A court should grant summary judgment if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is material when it "might affect the outcome of the suit under the governing law." Id. In considering a motion for summary judgment, the "facts must be viewed in the light most favorable to the party opposing summary judgment." Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations, or suspicions" to support its claim. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).
A. Discrimination Claims under Title VII and the PHRA (Counts I, II, and IX)
In his Complaint, plaintiff alleges race and/or national origin discrimination in violation of Title VII, 42 U.S.C. §§ 2000-e2(a)(1), (a)(2) (Counts I and II, respectively), and in ...