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Wardlaw v. City of Philadelphia Streets Dep't

August 11, 2009


The opinion of the court was delivered by: Norma L. Shapiro, J.


Plaintiff Emily Wardlaw brings an age-related employment discrimination claim against the City of Philadelphia Streets Department and the City of Philadelphia ("the City") under the Age Discrimination in Employment Act ("ADEA") of 1967, Pub. L 90-202, as amended, 29 U.S.C. § 621 et seq. The City filed a Motion for Summary Judgment (paper no. 97) on June 22, 2009; plaintiff filed her response on July 6, 2009 (paper no. 101). The court will grant the City's motion.*fn1


A. Alleged Discrimination

Plaintiff Emily Wardlaw, born in 1953, was first hired by the City of Philadelphia Streets Department as an Engineering Aide ("EA") I in June, 2000. She was promoted to EA II in October, 2002. Wardlaw alleges she experienced multiple acts of age-related discrimination and retaliation while working for the City.

In 2001, Wardlaw took the civil service examination for the Highway Construction Inspector I position. She passed and was placed on the list of eligible candidates. Wardlaw claims that she was "#7 on the list to be hired amongst 50 men who took the test." Amended Complaint, p. 3. However, only three candidates were hired, all of whom were younger, white, and male, and scored higher than plaintiff. Id., p.4; Defendant's Motion for Summary Judgment, Ex. 4. The eligible list expired on June 8, 2003, and Wardlaw has not taken the test since. Wardlaw alleges that a black male was promoted to the Highway Construction Inspector position without taking the test in return for testifying on behalf of a supervisor, but has provided no evidence to support this contention.

Wardlaw alleges that her supervisors discriminated against her in favor of Michael Matela, a younger white male.

* Matela worked snow duty simultaneously for both the City and the Gas Company; he earned thousands extra in salary from the City and increased his pension and retirement benefits, in addition to the extra pay from the Gas Company. Amended Complaint, p. 5.

* For three semesters, Matela was allowed to attend classes at Temple University without signing out. Id., p. 6.

* Within six months of beginning employment as an EA I, Matela was working "out of class," i.e., taking particular higher level assignments as an EA III at a higher pay scale per assignment. Matela would not have been able to work "out of class" without his supervisors' knowledge and consent. Wardlaw claims she was not allowed "out of class" assignments. Id.

Wardlaw alleges that she was retaliated against after bringing safety violations committed by another new employee, likewise a younger white male, to her supervisor's attention. She also alleges that she was retaliated against for complaining to the EEOC about Matela taking paid time off to attend school; according to Wardlaw, her requests to transfer were repeatedly refused, and her application to work on a tropical cruise ship was sabotaged. Id., p. 9.

Wardlaw makes other allegations of discrimination, harassment, and retaliation in her complaint, but none of them relate to age.

B. Administrative Proceedings

Plaintiff filed the following complaints with the United States Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"):

* on October 17, 2003, plaintiff filed a PHRC complaint alleging race and gender discrimination;

* on August 18, 2006, plaintiff filed an EEOC complaint alleging retaliation and disability discrimination;

* on April 12, 2007, plaintiff filed EEOC charges alleging race-, gender-, and disability-based discrimination and retaliation; and

* on October 25, 2007, plaintiff filed an EEOC age-related discrimination. Plaintiff filed her amended complaint on October 16, 2007, nine days before filing charges of age discrimination with the EEOC.


Wardlaw, proceeding in forma pauperis, filed her original complaint against the City on July 18, 2005; her complaint alleged discrimination based on gender, race, and age, retaliation, hostile work environment, and unequal pay and promotion opportunities.*fn2 On March 15, 2006, in response to the Motion to Dismiss filed by the City (paper no. 9, March 15, 2006), plaintiff filed an amended complaint (paper no. 28) adding various individual defendants and expanding her claims to include discrimination based on disability, and for equal pay, workers' compensation, relief under the General Education Provisions Act, and for negligent infliction of emotional distress. Plaintiff seeks compensatory, special, and punitive damages, equitable relief, front and back pay, front and back medical costs, pension, insurance and Social Security benefits, and counsel fees and costs.

By Order of the court of January 22, 2008 (paper no. 32), plaintiff's claims against all individual defendants were dismissed; all of plaintiff's claims against the City were dismissed as well except for her claim under the ADEA. On April 4, 2008, plaintiff's motion for reconsideration was denied (paper no. 41). In the same order, plaintiff was granted leave to amend her complaint and renew her Title VII claims for race and gender discrimination upon receipt of a right-to-sue letter from the EEOC; plaintiff does not aver that she received such a letter, and plaintiff has not amended her complaint since her motion for reconsideration was denied.

Plaintiff has proceeded pro se throughout the course of this action;*fn3 the court is inclined to show patience towards pro se litigants, but plaintiff has pursued her claim in a most dilatory manner.*fn4 Plaintiff has asserted repeatedly that having to litigate pro se was causing her great physical and emotional distress and that it was an enormous effort to gather the strength and focus she needed to write and file necessary papers.*fn5 However, when the court offered to appoint a guardian ad litem, plaintiff refused because the court's appointment of a guardian ad litem would suggest her incompetence and interfere with future career prospects.

On June 22, 2009, the City filed the Motion for Summary Judgment now before the court; plaintiff timely filed her response on July 6, 2009. Together with her response to the city's motion, plaintiff also filed motions for recusal by the judge and disqualification of counsel for the ...

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