The opinion of the court was delivered by: Conti, District Judge
Pending before this court is the motion for summary judgment (Docket No. 24) filed by defendant City of Pittsburgh ("defendant"). Plaintiff Suzanne Salisbury ("Salisbury" or "plaintiff") filed this civil action asserting claims under 42 U.S.C. § 1983 for violations of equal protection under the Fourteenth Amendment of the United States Constitution and the right to petition under the First Amendment of the United States Constitution, Title VII of the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. §§ 950 et seq. ("PHRA"). The claims include allegations of race and gender discrimination, as well as retaliation for filing a lawsuit against a previous employer. Plaintiff filed these claims with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Rights Commission ("PHRC") and received right to sue letters.
In considering the submissions of the parties, viewing all disputed facts in plaintiff's favor and drawing all reasonable inferences in plaintiff's favor, and examining the record as a whole, the court concludes that there are genuine issues of material fact that preclude granting a judgment as a matter of law on any of plaintiff's claims.
The City of Pittsburgh department of emergency medicine services (the "EMS") seeks applications for new hires through advertisement or posting. (Combined Concise Statement of Material Facts ("C.S.") ¶ 4.) (Docket No. 38.) The applications are reviewed by the department of personnel to ensure that the applicants are qualified and meet all the necessary requirements and certifications. (Id.) Qualified candidate's files are then forwarded to the office of municipal investigations ("OMI") for background checks. (C.S. ¶ 5.) Once OMI clears the candidate, the application is forwarded to the EMS command staff for consideration and review. (C.S. ¶ 6.) Candidates remain on the eligibility list for a three-year period. (Plaintiff's Statement of Material Facts ("P.S.") ¶ 95.) Chief Robert McCaughan ("McCaughan") is the ultimate decision maker in deciding whether or not to hire for the EMS. (C.S. ¶ 7.) Chief McCaughan is assisted by Deputy Chief Mark Bocian ("Bocian"), Assistant Chief John Moon ("Moon"), and Medical Director Ron Roth ("Roth") in making decisions about which candidates should receive interviews and be hired. (C.S. ¶ 8.)
Salisbury is an African-American female residing in the City of Pittsburgh. (C.S. ¶1.) In 1997 she received a state certification to be a paramedic. (C.S. ¶ 2.) Since she passed the state certification, plaintiff's license was kept current and is not suspended. (P.S. ¶11.) Plaintiff's first position as a paramedic was with Transcare Ambulance Service ("Transcare"). (P.S. ¶ 13.) Plaintiff worked at Transcare from 1997 until she was terminated in March 2000. (P.S. ¶ 15.) Plaintiff presently works part-time for Guardian Angel Ambulance Service. (P.S. ¶¶ 40, 43.)
During her time at Transcare, Salisbury became involved with an attempt to unionize the medical service providers, including paramedics. (P.S. ¶¶ 16, 17.) Plaintiff was terminated from Transcare for allegedly not following protocol. Plaintiff, however, believed that the termination was in retaliation for her unionization attempts. (P.S. ¶¶ 31, 32.) Subsequent to her termination, plaintiff filed a complaint with the National Labor Relations Board ("NLRB") against Transcare. (P.S. ¶ 33.) Plaintiff's complaint against Transcare was resolved in a settlement negotiated between the NLRB and Transcare. (P.S. ¶¶ 36, 37.)
In July 2005, Salisbury applied for the position of paramedic with the EMS. (C.S. ¶ 3.) In the application, plaintiff was asked if she had ever sued anyone and she indicated the prior lawsuit against Transcare. (P.S. ¶¶ 55, 56.) Plaintiff answered questions concerning her credit history and reported that she had a previous bankruptcy. (P.S. ¶ 57.) Plaintiff was found to be qualified by the department of personnel and civil service and her applicant file was forwarded to OMI for background investigation. (C.S. ¶ 9.) Plaintiff's applicant file included a hand-written application, police polygraph examination, doctor reports, a credit report, information from prior employers, educational information, a civil service application, a listing of prior employment, and recommendations and references. (C.S. ¶ 10.)
Prior to making a decision to interview, on August 5, 2005, McCaughan received negative recommendations about plaintiff from two EMS employees, Stacey Yaras ("Yaras") and Stephen ("Steve") Carlson ("Carlson"). (C.S. ¶¶ 20, 29, 30.) Plaintiff stated, however, that Yaras was an individual who had exhibited bias against African-American employees when they worked together. (P.S. ¶ 124.) McCaughan also contacted Dave Nicholas ("Nicholas"), the director of plaintiff's prior employer Guardian Angel Ambulance Service. (Def.'s App. Ex. 2, McCaughan Dep. 29-30.) McCaughan was told by Nicholas that plaintiff was a decent paramedic, but lacked attitude and sometimes had scheduling issues and that overall she was a "mixed bag." (Id.) Additionally, McCaughan contacted Steve Sallinger from Transcare, another of plaintiff's prior employers, who stated that plaintiff did something against their procedures and was terminated. (C.S. ¶ 25.)
OMI gave a negative recommendation of plaintiff, including information that plaintiff had sued a previous employer and that she had financial problems. (C.S. ¶ 16.) McCaughan sent an email to Kraus inquiring whether Kraus thought that plaintiff should be interviewed. (P.S. ¶ 101.) Kraus responded to McCaughan stating that "DON'T INTERVIEW HER. SHE IS BAD NEWS." (P.S. ¶ 104.) McCaughan asked Kraus for some insight about why plaintiff was "bad news" and Kraus responded "SHE SUED A PREVIOUS EMPLOYER AND HAS ALL KINDS OF FINANCIAL PROBLEMS." (P.S. ¶¶ 105, 106, Pl.'s App. Ex. 10.) McCaughan testified that he informed both Bocian and Moon about Kraus' recommendation as he thought it was something they should consider as a part of the decision-making process. (P.S. ¶ 109.) After receiving plaintiff's application and materials from OMI, a decision was made not to interview or hire plaintiff. (C.S. ¶ 11.)
After approximately a year, plaintiff inquired why she had not received an interview by defendant. (P.S. ¶ 65.) Plaintiff contacted Moon and McCaughan concerning why she had not been called for an interview. (P.S. ¶¶ 68-70.) Plaintiff testified that McCaughan told her that she was found to be an unfavorable candidate due to her "criminal background check." (P.S. ¶¶ 71, 72.) McCaughan referred plaintiff to speak to Kraus from OMI. (P.S. ¶ 73.) Plaintiff stated that Kraus indicated to her that she was not hired as a result of her "criminal background check."
(P.S. ¶ 75.) Kraus and McCaughan, however, deny that they told plaintiff she was not hired because of her criminal background. (Pl.'s App. Ex.6, Kraus Dep. 19; P.S. ¶ 79.) It was suggested to plaintiff by Kraus that plaintiff have her own criminal background check performed which she did and found no record of any criminal history. (P.S. ¶¶ 77, 80.)
On May 31, 2007, plaintiff filed a complaint with the EEOC and PHRA claiming race discrimination. (Pl.'s App. Ex.1.) Defendant responded to plaintiff's EEOC charge of discrimination on August 3, 2007. (P.S. ¶ 118.) The document was signed by McCaughan, Bocian and Moon and stated that the reasons plaintiff was not interviewed and hired were because she received a negative recommendation by OMI, she received several negative recommendations by Pittsburgh EMS personnel, she was terminated by Transcare (as noted on her candidate processing form), and she was suspended from Guardian Angel Ambulance Service (as noted on her candidate processing form). (Pl.'s App. Ex. 11.) McCaughan agreed that the OMI recommendation referenced in the August 3, 2007 document was the email he received from Kraus on August 29, 2005. (P.S. ¶ 121.)
McCaughan testified that after reviewing all the various information available about plaintiff, he, together with Bocian and Moon, agreed that plaintiff would not be interviewed. (Def.'s Ex. 2, McCaughan Dep. 59.) McCaughan indicated that in 2005 he was aware that plaintiff was an African-American. (Id.) McCaughan stated that in 2005 he spoke to Moon about the desire to improve the EMS's diversity. (Def.'s Ex. 2, McCaughan Dep. 73.) When asked if suing a former employer would be a consideration in the hiring process, McCaughan responded: "Not necessarily. I mean people sue people for who knows what. It may have been in consideration, but I would not say it was overwhelming." (P.S. ¶ 110, Pl's App. Ex. 5, McCaughan Dep. 42.)
McCaughan testified that OMI does not remove candidates from consideration, rather they give recommendations. (C.S. ¶ 18.) McCaughan stated that a credit problem would not necessarily determine whether a candidate would be interviewed. (C.S. ¶ 19.) McCaughan indicated that a credit problem could provide insight that an applicant may be irresponsible. (Id.) He stated that since personnel are often in homes of individuals, a person with financial concerns may be placed in a situation where they might be tempted. (Def.'s App. Ex. 2, McCaughan Dep. 41-42.) McCaughan recalled that plaintiff's background information included an incident of her allowing someone of lesser certification to perform advanced techniques. (C.S. ¶ 19.) McCaughan testified that he had concerns about plaintiff having been terminated from prior pre-hospital care jobs. (C.S. ¶ 22.) McCaughan testified that he never hired a candidate who had a negative recommendation from EMS personnel. (C.S. ¶ 21.)
Kraus testified that aside from plaintiff, she could not recall another time where she told McCaughan not to interview a candidate. (P.S. ¶ 111.) Kraus stated that the problem she had with plaintiff suing a prior employer is that it brought up concerns regarding her termination from Transcare and defendant would be unable to find out the circumstances surrounding the termination due to confidentiality agreements. (P.S. ¶ 114.)
Bocian stated that there was no one specific reason for the decision not to interview or hire plaintiff. (C.S. ¶11.) Bocian recalled that plaintiff received a negative recommendation from OMI and that her background information included having been terminated by one employer, suspended by another employer and having two negative recommendations from current EMS employees. (Id.) Bocian stated that a negative recommendation from OMI would be "one piece of the puzzle" in deciding whether or not to interview and hire. (C.S. ¶ 13.) Bocian commented that plaintiff's prior termination from an ambulance company would be one part of a series of reasons not to interview her. (C.S. ¶ 14.) Bocian recalled that plaintiff's materials included an incident where plaintiff allowed someone who should not have been doing advanced life support skills to perform them. (C.S. ¶ 17.) Bocian testified that he was unaware of plaintiff's race when the decision was made to not interview or hire her. (C.S. ¶ 15.)
Moon stated that he never made a recommendation about whether or not plaintiff should be interviewed. (P.S. ¶ 141.) Moon mentioned that he did not remember McCaughan telling him why plaintiff was not going to be interviewed. (P.S. ¶ 142.) When plaintiff called Moon to ask him why she was not given an interview he referred her to McCaughan as he did not have any understanding about why she was not given an interview. (P.S. ¶¶ 145-48.) Moon testified that the only discussion he could recall having with McCaughan, concerning the reason why plaintiff was not interviewed, occurred after plaintiff filed her formal complaint. (P.S. ¶ 149.) Moon testified that he was not aware that Kraus provided McCaughan information concerning plaintiff. (P.S. ¶ 151, Pl.'s Ex. 3 at 26.) Moon stated that an individual's financial condition was not something he would consider in the hiring process. (P.S. ¶ 152.)
Plaintiff stated that there are not a lot of minority women paramedics. (C.S. ¶ 33.) Plaintiff testified that she never heard from any minority female paramedic that the defendant does not hire minorities or females. (C.S. ¶ 34.) Plaintiff also stated that she has not heard from anyone that McCaughan has personal animus towards minorities. (C.S. ¶ 35.) Plaintiff admitted having no knowledge about whether Moon had any animus towards females. (C.S. ¶ 36.)
Plaintiff's eligibility hire date ran from July 11, 2005 to August 14, 2008. (C.S. ¶ 37.) During that time sixty-three qualified applicants were considered for hire by defendant. (Id.) Of the sixty-three applicants, twelve were women, of which ten were hired. (C.S. ¶ 38.) Of the sixty-three applicants, five were African-Americans, three of which were hired. (C.S. ¶ 39.) The number of white applicants was fifty-three, of which twenty-eight were hired. (C.S. ¶ 40.) Plaintiff offered the following statistics in her statement of material facts. From June 6, 2005, to June 2, 2008, defendant hired twenty-two paramedics. (P.S. ¶ 128.) Of the twenty-eight hired, twenty-one were white, fifteen were men and seven were women. (P.S. ¶¶ 129, 130.)
Plaintiff indicated that defendant hired a white male applicant who was terminated from two private ambulance service companies and he failed to disclose the termination on his application. (P.S. ¶ 134.) This same individual also had credit problems and had filed for bankruptcy. (P.S. ¶ 135.) This applicant was also a defendant in a lawsuit and had failed to pay school taxes. (P.S. ¶ 136.) Defendant hired two white female applicants who had credit problems, filed for bankruptcy, were subject to a mortgage foreclosure and had an outstanding money judgment. (P.S. ¶¶ 137, 138.)
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "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 ...