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Alers v. City of Philadelphia

August 26, 2009

MIGUEL A. ALERS AND DENISE SZUSTOWICZ PLAINTIFFS,
v.
CITY OF PHILADELPHIA, ET AL. DEFENDANTS.



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

MEMORANDUM

I. Introduction

Plaintiffs allege that Defendants violated (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), (2) 42 U.S.C. § 1983, (3) 42 U.S.C. § 1981, (4) the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., (5) the Pennsylvania Human Relations Act, 43 P.S. §955, et seq. ("PHRA"), (6) the Pennsylvania Minimum Wage Act, 43 P.S. § 333, et seq., and (7) Emotional Distress [sic]. See Amended Complaint, passim.

On November 5, 2008, Defendants filed a Motion to Dismiss the Complaint in Part (Docket No. 11). This matter was transferred to this Court's docket on November 13, 2008. Plaintiffs filed a response to Defendants' Motion on November 16, 2008 (Docket No. 13). On May 18, 2009, the Court granted Plaintiffs leave to file an Amended Complaint (Docket No. 17). Plaintiffs did so on June 9, 2009. Defendants once again filed a Motion to Dismiss in Part on June 29, 2009 (Docket No. 19). Plaintiffs filed a response thereto on July 9, 2009. In the same pleading, Plaintiffs included a Cross-Motion [sic] for Summary Judgment based on Defendants' failure to timely respond to requests for admissions (Docket No. 20). On July 24, 2009, Defendants filed a Motion to Withdraw Deemed Admissions (Docket No. 21).

Accordingly, currently before the Court are (1) Defendants' Motion to Dismiss in Part, (2) Plaintiffs' Cross-Motion [sic] for Summary Judgment and (3) Defendants' Motion to Withdraw Deemed Admissions. These motions will be decided as follows.*fn1

II. Facts

For purposes of the Motion to Dismiss in Part, the Court takes the facts as alleged by Plaintiffs in the Complaint.*fn2

Miguel A. Alers ("Alers"), a Hispanic male, and Denise Szustowicz ("Szustowicz"), a white female, are police detectives serving the City of Philadelphia. Defendants Charles Ramsey, Sharon Seaborough, Carol Abrams, Richard Brown, Christopher Flacco, Jack Gaitens, Mark Jones, Robert Kerwin and Thomas Hood are also employees of the City of Philadelphia Police Department. The City of Philadelphia itself is also a Defendant.

On or about October 10, 2006, Alers was assigned to the Central Detectives Unit, where Szustowicz was already working. Amended Complaint ¶ 17. Plaintiff Alers was the only Hispanic employee working on his assigned shift in the Central Detectives Unit. Id. ¶ 19. On or about October 10, 2006, Alers was subjected to remarks about his ethnicity by Defendants Kerwin and Hood through the use of "props." Id. ¶ 18. One "prop" was to remove files from Alers's desk and place the desk on crates in order to fashion the desk to look like a stolen stripped vehicle. Id. Another "prop" involved gluing coins to Alers's desk. Id. Alers took offense and asked Defendants Kerwin and Hood to stop; they did not. Id. ¶ 19. Alers reported the conduct to Defendants Jones, Seaborough, Brown, Gaitens, then-Commissioner Johnson;*fn3 they took no action. Id. Alers was subjected to "further conduct," which included the stealing of his handgun from his locked desk. Id. ¶ 20. Alers reported the theft to Brown and Seaborough; they took no action. Id.

Alers was denied overtime opportunities on several occasions while other "similarly situated employees" were approved for overtime assignments. Id. ¶ 22. Alers was prohibited from reporting for assigned work from October 27, 2008 through October 31, 2008, and "was not paid for work that he actually preformed [sic]" by Brown or Seaborough. Id. ¶ 23.

Alers thereafter filed complaints of discrimination and retaliation with the Philadelphia Police Department EEO Unit, the Equal Opportunity Commission, and the Pennsylvania Human Relations Commission. Id. ¶ 24.

Szustowicz, who had twice been made "Detective of the Year" for her superior performance, cooperated with Alers in the prosecution of his complaints. Id. ¶ 25-26. Captain Seaborough witnessed Szustowicz "speaking with Alers just before Alers filed his employment discrimination charge with the EEO Unit." Id. ¶ 28. Following that, Seaborough changed Szustowicz's duty shift and partner. Id. Szustowicz was re-assigned to partner with a male known to dislike her and who had initiated disciplinary charges against her in the past. Id. Szustowicz was told by Captain Seaborough that the shift change was not due to performance issues, but rather was due to a "loyalty" issue. Id. ¶ 30. Szustowicz was also denied shift changes and overtime as was allowed for others. Id. ¶ 29.

Szustowicz thereafter filed a grievance with the collective bargaining unit (FOP, Lodge 5) and charges of discrimination and retaliation with the EEOC and Pennsylvania Human Relations Commission. Id. ¶ 31.

Captain Seaborough and Lieutenant Brown were aware of Alers's and Szustowicz's charges. Id. ¶ 32. After those charges were made, Seaborough and Brown accused and investigated Alers and Szustowicz for "internal work rule violations." Id. ¶ 33. As a result of that investigation, Alers and Szustowicz were issued rule violation charges, one of which was significant enough to end Szustowicz's employment. Id. The rule violation charges caused loss of wages for Alers and Szustowicz. Id. ¶ 34. The ...


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