The opinion of the court was delivered by: Schiller, J.
Plaintiffs Alonza Baker, Jr., Gregory K. Jenkins, Roderick K. Washington, John H. McNeil, Jr., and Ernest L. Greenwood, Jr. initiated a lawsuit against the City of Philadelphia ("City"), the City of Philadelphia Commission on Human Relations ("Commission") and Rachel Lawton, acting Executive Director of the Commission, alleging various violations of 42 U.S.C. § 1983, 42 U.S.C. §§ 2000e--2000e-17 ("Title VII") and the First Amendment to the United States Constitution. Before the court are five motions for summary judgment-one for each plaintiff in this case-filed by the Defendants. For the reasons that follow, Defendants' motions will be granted.
On April 6, 2005, Jenkins, McNeil, Baker, Washington, and Greenwood filed their original Complaint against the City, the Commission, and Lawton. The Complaint asserted the following claims against all Defendants: race discrimination and a racially hostile work environment brought by all Plaintiffs; a Title VII race discrimination claim brought by Jenkins; a Title VII retaliation claim brought by Jenkins; and a First Amendment retaliation claim brought by Jenkins and Washington under 42 U.S.C. § 1983.
On June 28, 2005, Plaintiffs filed an Amended Complaint, which replaced the section 1981 claim with an identical claim premised on section 1983. On July 18, 2005, Defendants moved to dismiss the Title VII claims brought by Jenkins. On September 14, 2005, Judge Buckwalter, the then-presiding judge, granted Defendants' motion and dismissed Jenkins's Title VII claims because Jenkins failed to file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") per 42 U.S.C. § 2000e-5(e)(1).
Plaintiffs filed a Second Amended Complaint on June 2, 2006. This Complaint made the following claims: a section 1983 race discrimination and racially hostile work environment claim against the City and the Commission brought by all Plaintiffs; Title VII race discrimination and retaliation claims against the City and the Commission brought by Jenkins, Washington, Greenwood, and Baker; and a First Amendment retaliation claim against Lawton brought by Jenkins and Washington under section 1983.
Plaintiffs' claims against the Commission were dismissed on June 15, 2009 because the Commission is a department of the City and not a separate legal entity that can be sued directly. See 53 Pa. Cons. Stat. § 16257.
Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). When the moving party does not bear the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for it at trial. Anderson, 477 U.S. at 248. In reviewing the record, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not make credibility determinations or weigh the evidence in making its determination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 665 (3d Cir. 2002).
III. FACTS AND DISCUSSION
On April 8, 2002, the Commission hired Jenkins, an African-American male, as a Human Relations Representative ("HR Rep") Level I in the Compliance Division (Sec. Am. Compl. ¶ 29; Defs.' Mot. for Summ. J. as to Jenkins, Ex. A [Deposition of Gregory K. Jenkins] at 20--21.) His supervisor at the time was Joseph Farley, who is a white male. (Id. at 20--21.) Farley supervised five employees: Jenkins, Matthew Cowell (a white male), Deborah Rudbarg (a white female), Bernard Bivens (an African-American male) and Paulette Banks (an African-American female). (Id. at 54.)
After Jenkins completed an initial six month probationary period, he felt that Farley began treating him more harshly than his white colleagues. (Id. at 49.) For example, Farley closely monitored Jenkins's breaks, seeking out Jenkins if Farley thought Jenkins had not returned to work promptly, whereas Cowell and Rudbarg were not scrutinized in their comings and goings. (Id. at 49--51.) According to Jenkins, Farley did not scrutinize the other black employees' whereabouts because they did not take many breaks. (Id.)
Farley also had other HR Reps sit in on Jenkins' fact-finding conferences, but did not take such action with other HR Reps. (Id. at 59--61.) Farley required Jenkins to meet with him every week to provide a case report, whereas Farley did not require this of any other HR Rep. (Id. at 64.) Farley explained that this weekly report was required by Lawton, who was the Commission's Director of Compliance at the time. (Id. at 65.) Jenkins complained to Lawton about the way Farley treated him, after which Farley's scrutiny of Jenkins intensified. (Id. at 95--96.) After Jenkins's discussion with Lawton, Farley forbade Jenkins from speaking with individuals whose cases the Commission was investigating without first speaking with Farley. (Id. at 97.)
On May 30, 2003, Jenkins filed a charge of discrimination with the EEOC, alleging that the above-described treatment amounted to racial discrimination. (Defs.' Mot. for Summ. J. as to Jenkins, Ex. E [EEOC charge dated May 30, 2003].) Following this EEOC charge, Farley's differential treatment of Jenkins intensified. (Jenkins Dep. at 101--04.) At around the time that he filed his EEOC charge, Jenkins spoke out about what he perceived to be racially discriminatory conduct by the Commission at a meeting in which Lawton and Farley were in attendance. (Id. at 153--55.)*fn1
In August of 2003, Jenkins received an overall evaluation of "improvement needed" from Farley. (Defs.' Mot. for Summ. J. as to Jenkins, Ex. B [Jenkins 2003 evaluation].) The report raised issues with the accuracy of Jenkins's reports, his ability to follow instructions, the quantity of work he was producing, his energy, and his focus. (Id.) The report also alluded to warnings Jenkins received about "time issues" and to a suspension in May of 2003 "for issues regarding falsification of documents, dishonesty, time issues and insubordination." (Id.)
In October of 2003, Denise Benrahou, an African-American female, transferred into Jenkins's department. (Jenkins Dep. at 121.) According to Jenkins, Benrahou is "fair skinned, [she] almost looks Caucasian." (Id. at 122.) Benrahou did not have to meet with her supervisors as regularly, have other HR Reps sit in on her fact finding sessions nor be supervised during her field investigations. (Id. at 122, 124--25.)
In September of 2003, Farley became Acting Compliance Director and Jenkins began working under the rotating supervision of Acting Supervisors Rosemary Branigan, a white female, and Paulette Banks, an African-American female. (Id. at 108--09; Sec. Am. Compl. ¶ 39.) On February 6, 2004, Jenkins emailed Branigan and Banks, as well as Jackie Henry, the Commission's Director of Administration, asking for a reevaluation in light of the negative evaluation he received in August. (Defs.' Mot. for Summ. J. as to Jenkins, Ex. C [Reevaluation request]; Jenkins Dep. at 116--17.) According to Jenkins, his request was denied by Farley and Lawton, who was by this time the Acting Executive Director of the Commission. (Id. at 118--19.) This prevented him from receiving an incremental pay raise of approximately $3000 to which he would otherwise be entitled and also from obtaining a transfer. (Id.)
In July of 2004, Jenkins received an overall rating of satisfactory in his annual evaluation from Banks. (Defs.' Mot. for Summ. J. as to Jenkins, Ex. D [Jenkins 2004 evaluation]; Jenkins Dep. at 133.) The evaluation noted that Jenkins had improved in several areas but that he still needed improvement in "writing investigative plans, composing interview questions, and reviewing plans with [his] Supervisor/Director prior to making field visits." (Jenkins 2004 evaluation.) Jenkins states that the negative portion of his evaluation was inserted because the reviewing officer on the evaluation was Farley. (Jenkins Dep. at 135.) He bases this contention on his interactions with Banks. (Id. at 136.)
In February of 2005, Jenkins received notice that he was being laid off. (Defs.' Mot. for Summ. J. as to Jenkins, Ex. G1-G2 [Jenkins Interrogs.] at No. 5.) To his knowledge, other Commission employees were also laid off, with the decision having been made based on years of service, military status, and performance evaluations (Jenkins Dep. at 131--32.)
a. Jenkins's Title VII Claims
As Defendants point out, Jenkins's Title VII claims are identical to the claims that were previously dismissed by Judge Buckwalter's September 14, 2005 memorandum. Compare First Am. Compl. ¶¶ 29--49, 108--11 with Second Am. Compl. ¶¶ 29--49, 108--11. These claims are res judicata and cannot be revived merely because the case is before a different judge.
b. Jenkins's First Amendment Retaliation Claim
To hold an individual personally liable*fn2 under section 1983, the plaintiff must allege that the individual defendant had "personal involvement in the alleged wrongs." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal involvement can be shown through evidence that the defendant personally directed others to carry out the unlawful act or that the individual defendant knew of the unlawful conduct and acquiesced in it. Id. In this case, Defendants argue that Jenkins cannot point to any evidence that Lawton was personally responsible for any retaliatory conduct directed against him. The negative performance evaluation was drafted by Farley. (Jenkins Dep. at 114--15.) Jenkins's email requesting a reevaluation was sent to Branigan, Henry, and Banks. (Reevaluation request; Jenkins Dep. at 116--17.) The only connection Jenkins makes between Lawton and the adverse employment actions he allegedly experienced is a conclusory allegation that she was behind the decision to deny him a reevaluation. This unsubstantiated claim, made without any direct personal knowledge, is insufficient to withstand summary judgment. See Blair v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) ("In order to satisfy the standard for summary judgment the affiant must ordinarily set forth facts, rather than opinions or conclusions. An affidavit that is essentially conclusory and lacking in specific facts is inadequate to satisfy the movant [or non-movant]'s burden." (citing Maldonado v. Ramirez, 757 F.2d 48, 51 (3d Cir. 1985) (quotation marks omitted) (alteration in original)).Therefore, Jenkins has failed to produce sufficient evidence such that a reasonable jury could find for him on his First Amendment claim against Lawton.
B. Roderick K. Washington
Washington was hired by the Commission as an HR Rep Level I on April 8, 2001. He was promoted to the position of HR Rep Level II on April 8, 2002 in the Compliance Division. (Defs.' Mot. for Summ. J. as to Washington, Ex. B [Deposition of Roderick K. Washington] at 39--40.) Plaintiff's supervisor was Wilma Holmes, an African-American female. (Id. at 41.)
In the spring of 2004, Washington met an attorney who suggested that a training workshop she conducted would be appropriate for Commission employees. (Id. at 42; Defs.' Mot. for Summ. J. as to Washington, Ex. A1-A2 [Washington Interrogs.] at No. 9.) Washington requested permission to sit in on this workshop to see if it would be the kind of training from which Commission employees could benefit, but no action was taken upon his request. (Washington Dep. at 42.) Approximately one month later, Rosemary Branigan, a white female employee, told Washington that she attended the training and thought it was appropriate for the agency. (Id. at 46.) When Washington asked Holmes why he had not received permission to attend the training, Holmes indicated that Lawton decided the training was untimely and too expensive. (Id. at 47, 55.) Washington believes that his race was a factor in this decision because, as he puts it, "I found that training, I made the connection with the attorney, and I was totally eliminated from the decision making process and a white female was selected to monitor that training in place of me." (Id. at 49--50.)
On or about November 11, 2004, Lawton chaired a general Commission staff meeting which Washington attended. (Id. at 55.) The topics discussed at the meeting included ways in which the Commission could improve its performance. (Id. at 58.) During this meeting, Washington suggested that Commission employees receive more training, that employees in different divisions be trained in the work of other divisions, and that employees be treated with more respect. (Id. at 62.) Washington was trying to improve the Commission and boost morale, which he suggested was very low. (Id. at 63.) Lawton responded by telling Washington in front of the other Commission employees that he lacked sufficient information about the Commission to make such assessments. (Id. at 65.)
Washington claims that after this meeting he was treated differently. (Id. at 64.) Holmes indicated to Washington "that it's not typical of people at the Commission to express opinions or ideas" and that his statements "caught people off guard." (Id. at 69.) She also informed Washington that Lawton found his suggestions arrogant and insubordinate. (Id. at 68--69.) Washington met with Lawton in her office, at which time Lawton demanded an apology. (Id. at 70--72.) Washington did not apologize, but instead expressed to Lawton that his suggestions were constructive and not criticisms. (Id. at 71.)
Later that day, Washington informed Holmes and Jackie Henry of his discussion with Lawton. (Id. at 72.) Henry responded that it was appropriate for Washington to advise her of department issues that concerned employees and that she encouraged this practice. (Id. at 72--73.) According to Washington, Commission employee Matt Cowell told Washington that after Cowell spoke out to Lawton about his work that it was much more difficult for him to close out cases. (Id. at 109.)
On or about February 8, 2005, an irate complainant called Washington's supervisor, Holmes, and argued with her about his complaint. (Id. at 74--75.) Holmes instructed Washington to speak with this complainant. (Id. at 75.) The caller verbally abused and threatened Washington, at which time Washington told the caller that he would terminate the call if this conduct continued. (Id.) When the complainant's conduct continued, Washington looked to Holmes for direction. (Id.) She agreed with him that the proper course was to hang up the phone, which Washington did. (Id.)
On or about February 9, 2005, Washington received an e-mail from Joseph Farley, the Deputy Director, stating that Washington and Holmes should be careful how they speak with complainants, referencing the above-described hostile conversation. (Id. at 76; Defs.' Mot. for Summ. J. as to Washington, Ex. C [Farley-Washington emails].) Washington responded to Farley's e-mail and expressed resentment that Farley reached a conclusion about his conversation with a complainant without first speaking to Washington. (Farley-Washington emails.) A few days later, Washington was verbally counseled about his e-mail response by Holmes and Greenwood at Lawton's direction. (Washington Dep. at 76--77.)
Washington also states that his supervisor, Holmes, would constantly return his work to him, saying that he needed to make changes to satisfy Lawton's preferred writing style. (Id. at 83, 85.) He claims that similarly situated white colleagues like Rosemary Branigan and Deborah Rudbarg received better treatment. (Id. at 84.)
Washington also states that his comings and goings were scrutinized more closely than those of white colleagues Branigan, Rudbarg, and Cowell. (Id. at 91--92.) According to Washington, Farley would "constantly walk by [Washington's desk] and he would say it's a management style where the manager would constantly look over the employee's shoulder in order to make them perform better and I was uncomfortable with that because it was constant." (Id. at 92--93.) He further states that he felt ...