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Khalif Wardlaw v. City of Philadelphia

March 21, 2011


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


Plaintiff Khalif Wardlaw brings this action against Defendants City of Philadelphia and Lieutenant Steven Arch, in his official and individual capacity, *fn1 alleging discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §2000e et seq. , and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. 951 et. seq. , infringement of his First Amendment and Fourteenth Amendment rights, and breach of contract. Before the Court are Defendants' Motion to Dismiss the Second Amended Complaint [doc. no. 18], and Plaintiff's Opposition thereto [doc. no. 21]. For the reasons set forth below, Defendants' Motion will be granted in part and denied in part.


Wardlaw has been employed as a Police Officer by the Philadelphia Police Department for over eighteen years. *fn3 As a Muslim, Wardlaw wears a beard in accordance with the tenets of Islam. *fn4 That practice contravenes the Department's Directive No. 78 ("Directive No. 78"), which precludes Department employees from wearing a beard. *fn5 In 2006, after the Department refused Wardlaw's request to be excused from Directive No. 78, he submitted a charge of discrimination and retaliation with the Pennsylvania Human Relations Commission ("PHRC") and the Equal Employment Opportunity Commission ("EEOC"). *fn6 The PHRC then issued a finding of probable cause and ordered Defendants to cease its discriminatory practices and accommodate Wardlaw's religious beliefs. *fn7 Alleging non-compliance with the PHRC finding, Wardlaw filed his first complaint against the City in this Court in 2006. Upon the agreement of the Parties to the first lawsuit, *fn8 Wardlaw v. City of Philadelphia *fn9 ("Wardlaw I"), this Court referred the matter to U.S. Magistrate Judge Sandra Carol Moore for a settlement conference. After the conference, the Parties successfully reached a settlement agreement; under that agreement, Wardlaw was given a permanent, confidential exemption from Directive No. 78. *fn10

Although the Department now permits Wardlaw to wear his beard, Wardlaw's current complaint alleges that since the settlement, Lt. Arch, one of his commanding officers, has subjected him to a "campaign of retaliation" for filing Wardlaw I. *fn11 Although Lt. Arch was not a party to Wardlaw I, in connection with the settlement agreement, Wardlaw withdrew a union grievance he had filed against Lt. Arch for alleged acts of discrimination prior to the settlement. *fn12

The alleged retaliatory actions of Lt. Arch include arbitrarily changing Wardlaw's job assignments, giving Wardlaw undesirable assignments, unfairly threatening Wardlaw with AWOL status, termination, and disciplinary action, subjecting Wardlaw to harassing investigations, withholding opportunities for assignments and advancement, and making derogatory statements about Wardlaw to other officers. *fn13 Wardlaw contends that Lt. Arch's retaliatory conduct is part of the Department's official custom or practice. *fn14

In response to Lt. Arch's retaliatory actions, Wardlaw submitted written complaints to the City through official channels; when the city was unresponsive to those complaints, he cross-filed charges of discrimination with the PHRC and EEOC on June 3, 2008. *fn15

The EEOC issued Wardlaw a "Right to Sue" letter on May 28, 2009. *fn16 Wardlaw cross-filed another charge with the EEOC and PHRC on June 10, 2009; *fn17 the EEOC issued a separate "Right to Sue" letter for that charge on May 3, 2010. *fn18 Wardlaw filed his original Complaint in this matter on August 31, 2009; he filed the Second-Amended Complaint on May 21, 2010.


A complaint can be dismissed for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has not presented "'enough facts to raise a reasonable expectation that discovery will reveal evidence' of [a] necessary element." *fn19 A court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." *fn20 However, the court need not accept "bald assertions" or "legal conclusions" as true. *fn21 At this stage, the court does not determine whether the non-moving party will prevail, but whether it will be permitted to offer evidence in support of the claims in the complaint. *fn22

This particular pleading standard, described in Federal Rule of Civil Procedure 8(a)(2) as "a short and plain statement of the claim showing that the pleader is entitled to relief" *fn23 has been addressed twice by the Supreme Court of the United States in recent years, first in Bell Atlantic Corp. v. Twombly *fn24 and then in Ashcroft v. Iqbal. *fn25 The Twombly Court articulated a "plausibility" standard that a plaintiff's factual allegations must to survive a motion to dismiss. *fn26

The Court described it as more than suspicion or speculation. *fn27 The Iqbal Court clarified that "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" *fn28


This Court has federal question jurisdiction over Wardlaw's claims alleging violations of 42 U.S.C. § 1983 and Title VII under 28 U.S.C. § 1331, and supplemental jurisdiction over the state law claims for violations of the PHRA and common-law-breach-of-contract under 28 U.S.C § 1367, because the state law claims form part of the same case or controversy.

Defendants move to dismiss all counts of Wardlaw's complaints. First, Defendants argue that Counts I and III of Wardlaw's complaint, which assert Title VII and PHRA claims, should be dismissed failure to exhaust administrative remedies. In addition, Defendants argue that Count II, in which Wardlaw asserts various Section 1983 claims, should be dismissed because: (1) Wardlaw fails to sufficiently allege that Defendants infringed his Fourteenth Amendment or First Amendment rights; (2) Wardlaw has failed to establish municipal liability under Monell v. New York City Department of Social Services; *fn29 and (3) any § 1983 claims based on conduct that occurred before September 1, 2007 are time-barred. Defendants further assert that Lt. Arch is qualifiedly immune from suit. Finally, Defendants argue that Wardlaw's breach of contract claims are barred because he cannot imply a duty of good faith and fair dealing into the Settlement Agreement.


Defendants argue that Wardlaw failed to allege that he properly exhausted his Title VII and PHRC claims before filing the instant suit because he did not attach the EEOC/PHRC charges or the right to sue letters to his Second Amended Complaint. This argument fails for two reasons.

First, Wardlaw is not required to attach the EEOC/PHRC charges or the right-tosue letters to his Second Amended Complaint. *fn30 At this stage, Wardlaw's only burden is to sufficiently allege exhaustion; *fn31 Wardlaw does so by alleging that he has filed various charges with the PHRC and EEOC, that the EEOC mailed him a right-to-sue letter on May 29, 2009, and that "all administrative prerequisites to suit have been fulfilled." *fn32 In any case, the question is moot because Wardlaw has submitted evidence (both EEOC right-to-sue letters *fn33 and PHRC charges *fn34 ) that he complied with the procedural requirements of both Title VII and the PHRC. *fn35

Wardlaw has also sufficiently alleged that he has satisfied the PHRA's exhaustion requirements. A plaintiff claiming discrimination under the PHRA must first file an administrative complaint with the PHRC. *fn36 Because the EEOC and PHRC have a "work-sharing agreement," plaintiffs may "cross-file" their claims with both agencies. *fn37 By choosing to cross-file, the plaintiff is excused from filing directly with the PHRC, and the EEOC assumes responsibility for transmitting the complaint to the PHRC. *fn38 Pennsylvania law grants the PHRC exclusive jurisdiction over PHRA claims for a period of one year in order to investigate, and, if possible, conciliate the claims. *fn39 No right-to-sue letter is required in connection with PHRA claims, and after the expiration of one year, a complainant may bring suit regardless of whether or not he has received a letter from the PHRC. *fn40

Here, Wardlaw cross-filed the first charge on June 8, 2008, and filed his original Complaint in this Matter over a year later, on August 31, 2009. Because a year elapsed between the filing of the PHRC claim and his initial civil complaint, Plaintiff exhausted his administrative remedies with respect to his first charge. Although the second EEOC/PHRC charge was filed one month prior to PHRC exhaustion, *fn41 a plaintiff is not required to exhaust his administrative remedies if "the acts alleged in the subsequent . . . suit are fairly within the scope of the prior . . . complaint, or the investigation arising therefrom." *fn42 It is proper to permit "suits based on new acts that occur during the pendency of the case if a previous . . . case has been filed." *fn43 Here, all of the retaliatory acts alleged in Wardlaw's second PHRC charge are within the scope of his prior PHRC complaint.

Even if the second PHRC charge was not within the scope of Wardlaw's first PHRC charge, and thus filed prematurely by inclusion in the Second Amended Complaint, that defect has been cured by the passage of time. Courts in this Circuit have adopted a flexible approach to PHRA exhaustion by permitting plaintiffs to maintain PHRA claims if the one-year deadline expires during court proceedings. *fn44 "Rather than dismiss[ing] [a] plaintiff's claim on a curable, technical defect," these courts "allow [the PHRC] claim to be decided on the merits." *fn45

This reflects the "sound and established policy that procedural technicalities should not be used to prevent Title VII claims from being decided on the merits." *fn46 And although some courts have rejected the flexible approach when Plaintiffs have failed to make a good faith effort to exhaust their remedies as required by the PHRA, that is not the case here. *fn47 Therefore, we find that Plaintiff may maintain his PHRC claims in the current complaint.


Defendants move to dismiss Wardlaw's ยง 1983 claims, arguing that he has failed to plausibly allege a deprivation of a constitutional right under ...

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