The opinion of the court was delivered by: Pollak, J.
Plaintiff Frances Udujih brought suit against the City of Philadelphia and three individuals from the city's Department of Mental Retardation Services, in their individual and official capacities,on claims of national origin discrimination and for injuries related to this alleged discrimination.Several of the claims contained in the complaint have previously been dismissed (docket no. 24). Plaintiff's remaining claims are for 1) violation of 42 U.S.C. § 1981 (Title VII of the Civil Rights Act of 1964), 2) violation of the Pennsylvania Human Relations Act, 3) common law defamation, and 4) common law intentional infliction of emotional distress. All the defendants now move this court for summary judgment (docket no. 63), and the plaintiff has responded (docket no. 69).
I will recount the background of this suit in some detail because determination of discrimination claims demands close attention to the factual record. Cf. Greer v. Bd. of Ed. of Chicago, 267 F.3d 723, 727 (7th Cir. 2001).
Plaintiff Francis Udujih was born in Nigeria and became a permanent resident of the United States in 1988, eventually obtaining citizenship. Pl. Dep. at 7-8. As a Nigerian, English is her first language. Id. at 13. It is noted throughout the record that Udujih speaks English clearly and with a discernible Nigerian accent. See, e.g., Exh. 4 (Pl. Decl.) ¶ ¶ 9-10.
Educated in English literature, Udujih began working formally with individuals with developmental disabilities in the early 1990s. See Pl. Exh. 3 (Udujih resume). From 1993 through 1998, Udujih served as a program specialist for two different nonprofit organizations, providing support to persons with developmental disabilities in Philadelphia. Id.
In June 1998, Udujih became an employee of the City of Philadelphia. Id. She began as a Social Worker II in the Department of Human Services, working on child abuse and neglect cases. Id. In October 2000, Udujih transferred to the Department of Public Health ("DPH") where she remained in the position of Social Worker II, once again serving persons with developmental disabilities. Pl. Exh. 1.
Starting in 2001, Udujih undertook to obtain a promotion to the position of Public Health Program Analyst ("program analyst"), an effort that became the subject of this lawsuit. In general terms, program analysts in the Department of Public Health manage relationships with third-party nonprofit organizations that contract with the City of Philadelphia to provide services to residents with special needs. Pl. Exh. 14.
The hiring of individuals for the program analyst positions is subject to Philadelphia's civil service regulations. See Pl. Exh. 3 (Sykes Dep.) at 7-8; 53 PA. STAT. §§ 13101-16; Phila. Civ. Serv. Reg. Chs. 7-11. The hiring at issue in this suit was "open competitive," which meant that both current city employees and outside candidates would be considered. Pl. Exh. 14; Phila. Civ. Serv. Reg. § 9.025. In general, open competitive hiring begins with an examination process, overseen by the Office of Human Resources ("HR"), that must be "competitive, uniform, and . . . designed to measure fairly the relative qualifications of competitors." Phila. Civ. Serv. Reg. § 9.012. Examination must include review of "competitor's qualifications, record of performance, seniority and conduct" (Id. § 9.022) as well as written tests or other formal evaluation instruments as necessary (Id. § 9.04). Competitors then receive a composite score that reflects all elements of their examination review. Id. § 9.06. Once the examination period concludes, HR creates a list of qualified, eligible candidates ranked according to their composite examination score. Id. §§ 9.067, 9.07, 10.01. HR provides a portion of that list to the department seeking to fill a position by starting at the top of the ranked list and providing only enough names to ensure that two individuals can be considered for each open position. Id. at 11.04. For reasons explained below, that requirement results in two interview candidates for one job; three for two; five for three jobs; and so forth.
The department seeking to make a hire must interview and select between the top two eligible candidates on the ranked HR list for each open position. Id. § 11.03. Each individual is interviewed once, but has the opportunity for consideration twice, so long as positions remain. Id. § 11.091. For example, if A, B, and C are the top-ranked candidates for two openings, A and B will be interviewed and considered for the first job. The unselected one is then considered for the second job (without an additional interview) against C who will then be interviewed. See, e.g., Krauss Dep. at 44-45. If a candidate is not selected after consideration for two openings, that individual is removed from the original list of eligible candidates and must re-apply and re-test for the next round of job openings. Phila. Civ. Serv. Reg. § 11.05.
In 2001, when Udujih first applied for the position of program analyst, there were two openings. Pl. Exh. 18 (EEOC Opin.); Pl. Dep. at 17. Udujih took the required written test; her application was ranked third. EEOC Opin.; Pl. Dep. at 17. DPH hired the first- and second-ranked candidates without interviewing Udujih. Pl. Dep. at 17, 22.
In 2004, HR announced program analyst openings again, and Udujih applied again and took the required test. Pl. Dep. at 17. HR conducted the examination process, including the testing, and generated a list of twelve ranked candidates. Pl. Exh. 15; Def. Exh. 7. Udujih was ranked third on the list.
DPH first asked for interview candidates for three program analyst positions,*fn1 and HR provided the top-five ranked persons on the eligible list: Crystal Garvin, Aswad Hopewell, Frances Udujih, Robin Mack, and Vera Stevens. Pl. Exh. 15; Def. Exh. 8. Kathy Sykes, Director of Mental Retardation Services, asked Helga Krauss and Eugene McCauley, who were managers of the units that were hiring program analysts, to participate in the interviews for the three positions. Sykes Dep. at 9-10. Garvin and Hopewell were interviewed for the first open position, and Garvin was selected. McCauley Dep. at 34. Udujih was interviewed for the second open position, and Hopewell was considered for the same slot. McCauley Dep. at 48-49. Hopewell was selected. Sykes Dep. at 22. Mack was interviewed for the third open position, and Udujih was considered for the same slot. Krauss Dep. at 37. Mack was selected. Sykes Dep. at 22. Robin Mack was the only 'outside' candidate considered for the three positions. Pl. Exh. 9 (Mack Resume); Pl. Dep. at 22-23.
Udujih was interviewed by four people: McCauley, Krauss, and two other supervisory-level DPH employees - Denise Patterson and Theresa Thompson. Pl. Decl. ¶ 1. Questions included inquiries into Udujih's professional background and experience as well as "hypothetical job situations." Pl. Decl. ¶ 7. While DPH did not use a standard rubric or list of questions, managers stated that the interviews tended to follow a familiar pattern. See McCauley Dep. at 24. Krauss found that Hopewell, Udujih, and Mack were relatively equivalent in experience and background. Krauss Dep. at 32, 45. Compared to the other two, however, Krauss found Udujih "more restricted" during her interview and not particularly detailed or forthcoming in her answers. Id. at 39-40. McCauley's report of the interviews was similar; he further stated that Udujih acted "like she was being attacked almost . . . as if we were dueling or something." McCauley Dep. at 49-50. Patterson and Thompson found that Udujih was brief but performed well in the interview. Pl. Exh. 23 at 3; Pl. Exh. 24 at 3.
Udujih believed that "[w]hen you took the test, and you passed, they will send the list of those and you are promoted according to your score on the list." Pl. Dep. at 20. She further believed that the interview was "just a formality for you to chose [sic] which unit you want to go to." Id. at 140. Udujih contends that she "was very careful and diligent in listening and answering" interview questions, and that McCauley and Krauss were not "receptive or reactive to what I was saying." Pl. Decl. ¶¶ 8, 13. She further stated that "maybe [they] didn't ask me questions that required me to sell myself." Pl. Dep. at 82.
A DPH staffer informed Udujih that she had not been promoted. Pl. Dep. at 18-19. Having been passed over for two positions, Udujih was removed from the original eligibility list pursuant to hiring regulations.*fn2 Pl. Dep. at 43-44; Phila. Civ. Serv. Reg. § 11.05. Udujih complained to her union representatives about the hiring outcome, and then filed a complaint for national origin discrimination with the Equal Employment Opportunity Commission ("EEOC") in March 2005. Pl. Dep. 19-21; Pl. Exh. 18. Then, as now, her claim was that she was not hired due to her accent and the fact that she was born in west Africa. See, e.g., Pl. Dep. at 20. Udujih has stated that, apart from the hiring decisions in 2004, she neither experienced nor witnessed any other incidents or events that suggested national origin discrimination by DPH or its staff. Pl. Dep. at 94-95, 111-12. She has related, however, that she spoke with a program analyst who was born in Sierra Leone and who suggested that he experienced discrimination before finally being promoted. Pl. Dep. at 117.
The EEOC conducted a hearing on the complaint, and on January 20, 2006 issued a determination that "concluded that [Udujih] was discriminated against because of her national origin in being denied two positions in favor of less qualified American born candidates." EEOC Opin. The EEOC ordered "conciliation" of the matter, and the parties were directed to enter confidential negotiations. EEOC Opin.; Pl. Dep. 62, 65. DPH decided that it would promote Udujih right away. Pl. Exh. 17 (DPH internal memorandum). Shortly thereafter, however, Udujih received a telephone call from a staffer at the EEOC informing her that the City of Philadelphia decided to decline conciliation because a DPH employee reported that Udujih was discussing the EEOC decision with fellow employees and "telling people to sue the City." Pl. Dep. at 62-65. Udujih denied then, and denies now, that she ever violated the confidentiality agreement. Id.
B. Procedural History of Udujih's Civil Lawsuit
In June 2006, Udujih filed a civil rights action against the City of Philadelphia. In October 2006, Udujih amended her complaint to join Sykes, McCauley, and Krauss in their individual and official capacities.*fn3 Udujih brought claims under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 2000e-2 (Title VII of the Civil Rights Act of 1964) as well as the Pennsylvania Human Relations Act ("PHRA"). She also brought common law claims for breach of contract, promissory estoppel, slander, libel, and infliction of emotional distress.
The defendants filed a motion to dismiss, which this court granted in part and denied in part. See Opinion & Order of May 10, 2007 (docket no. 24). Plaintiff's claims were all subjected to the established statutes of limitations, which for almost all the surviving claims cut off liability for events that took place, variously, prior to May, June or October 2004 (the § 1981 claim was limited to events starting in June 2002). Id. The court also dismissed a number of plaintiff's causes of action. Id. What remained for adjudication were the following: claims under Title VII, § 1981, and the PHRA for national origin discrimination against all defendants; a claim under § 1983 for denial of equal protection against all defendants; a claim for slander and libel against defendant Sykes; and a claim for infliction of emotional distress against the defendants Sykes, McCauley, and Krauss. Id.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); IFC Interconsult, AG v. Safeguard Int'l Partners, L.L.C., 438 F.3d 298, 317 (3d Cir. 2006). Facts are material if they "bear on an essential element of the plaintiff's claim." Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (quoting Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)). Further, there is a genuine issue of material fact if "a reasonable jury could find in favor of the nonmoving party." Id.
A party seeking summary judgment carries the initial burden of informing the court of the basis for its motion and identifying the portions of the record that show that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In this instance, the non-moving party would bear the burden of proof at trial. Consequently, the moving party must show that the non-moving party cannot support her case with the evidence in the record. Celotex, 477 U.S. at 325. To rebut, the non-moving party must identify facts that create a genuine issue of dispute for trial. Fed. R. Civ. P. 56(e); Hampton v. Borough of Tinton Falls Police Dept., 98 F.3d 107, 112 (3d Cir. 1996). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
A. Claims of Discrimination Brought Under Title VII, 42 U.S.C. § 1981, and PHRA
Employment claims under Title VII, § 1981, and the PHRA are all evaluated using the familiar McDonnell Douglas framework. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The first step of the framework requires that the plaintiff come forward with evidence making out a prima facie case of illegal discrimination. Id. The burden then shifts to the employer to come forward with legitimate non-discriminatory reasons for its decision. Id. Following this, the burden shifts back to the plaintiff to show that the proffered reasons comprise only a ...