Plaintiff in this case, Brian Bond, alleges that he was terminated from his position in Defendant City of Bethlehem's Department of Parks and Public Property after Defendant discriminated against him based on his gender, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. ANN. §§ 951- 963 ("PHRA").*fn1 Plaintiff further alleges that he was terminated without procedural due process, in violation of 42 U.S.C. § 1983.
Presently before the Court are Defendant City of Bethlehem's ("City") Motion for Summary Judgment (Doc. 14), Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Doc. 18); City of Bethlehem's Reply Brief in Support of Its Motion for Summary Judgment (Doc. 20), and Supplemental Affidavit of Plaintiff Relative to New Evidence in the Case (Doc. 21). Oral argument was held on October 7, 2011. The Court finds that there are no material facts in dispute and that the City is entitled to judgment as a matter of law. Therefore, the Court will grant the City's motion for summary judgment.
The following facts are undisputed. In October 1996, Mr. Bond began his employment in the Parks and Public Property Department of the City of Bethlehem. (Am. Comp. ¶ 3-5.) Mr. Bond subsequently began a personal relationship with another City of Bethlehem employee, Ms. Gina Bullard. (Id. at ¶ 7.) The relationship ended in August 2008. (Id. at ¶ 8.) Shortly thereafter Mr. Bond was served with a Protection from Abuse Order ("PFA") filed by Ms. Bullard in Carbon County, Pennsylvania. (Id. at ¶ 9.) Ms. Bullard reported that Mr. Bond had violated the PFA on at least three occasions during the PFA's pendency. (Am. Comp. ¶ 10; Def. Statement of Undisputed Facts ¶ 15.) The Carbon County PFA expired on April 17, 2009. (Hr'g Tr. 2, Oct. 7, 2011.)
On May 13, 2009, Ms. Bullard advised the City's Human Resources department that she was receiving cell phone text messages from Mr. Bond that she considered to be harassing. The text messages read as follows:
*** See you on ur lunch walk. Whenever, Lyama.
610 442-9316 8:21 am 5/13/09 *** Can't face the music? I guess you really do want me 2 hate you.
Your wish is my command. Enjoy! 610 442-9316 9:49 am 5/13/09 *** You tried to ruin me with a PFA, because you are a whore! Ive given you way 2 many chances. Now its my turn!!! 610 442-9316 10:09 am 5/13/09 *** Yo whore! So whos the little cunt, last night, that said I should have been killed in my car accident? She needs a bitch slap 2! Have her get in back of the line. 610 442-9316 12:18 pm 5/13/09 (Def. Facts ¶ 7; Pl. Resp. to Def. Facts ¶ 7.) Mr. Bond was working at the time these messages were sent. (Hr'g Tr. 2-3.) The City opened an investigation into the matter. (Def. Facts ¶ 6; Pl. Resp. to Def. Facts ¶ 6.)
Ms. Bullard filed a police report with the Bethlehem Police, and on May 14, 2009 criminal charges were brought against Mr. Bond as a result of the incident. (Hr'g Tr. 3.) Another PFA was issued against Mr. Bond in Northhampton County, Pennsylvania, effective May 14, 2009. (Def. Facts ¶ 28; Ex. Supp. of Def. Mot. Summ. J. 2 at 26-30; Pl. Resp. to Def. Facts ¶ 28.)
On May 15, 2009, Mr. Bond was suspended from work and directed not to come to City Hall. (Def. Facts ¶ 34; Pl. Resp. to Def. Facts ¶ 34.) On May 18, 2009, the City issued a letter to Mr. Bond which stated that he would remain on suspension during the pendency of the investigation of a potential violation of City policies. (Ex. Supp. of Def. Mot. Summ. J. 5 at 56-57; Hr'g Tr. 4-6.) The letter indicated that, "[i]n accordance with the City's Disciplinary Policy and Procedure for Non-Uniformed Personnel," Mr. Bond could be subject to disciplinary action "ranging from a formal reprimand to dismissal." (Ex. Supp. of Def. Mot. Summ. J. 5 at 56.)
A Loudermill hearing was held on May 21, 2009. (Hr'g Tr. 6.) Present at the meeting were Mr. Bond, William Tone, president of Mr. Bond's union, Jean Zweifel, director of Human Resources, Tom Wilchak, superintendent of the Bethlehem Golf Course, Dennis Reichard, business administrator, and Assistant City Solicitor Joseph F. Kelly. (Def. Facts ¶ 41; Pl. Resp. to Def. Facts ¶ 41.) During the hearing, Mr. Bond admitted that he had sent the text messages at issue to Ms. Bullard. (Def. Facts ¶ 45; Pl. Resp. to Def. Facts ¶ 45.) Mr. Bond was informed that he would remain on suspension, with pay, during the pendency of the City's investigation, and that a decision on his discipline would come as soon as practicable. (Def. Facts ¶¶ 42, 50; Pl. Resp. to Def. Facts ¶¶ 42, 50.)
On June 2, 2009, City offered Mr. Bond a Last Chance agreement. (Def. Facts ¶ 53; Pl. Resp. to Def. Facts ¶ 53.) The Last Chance agreement provided that Mr. Bond could keep his employment with the City under certain conditions, including a 20-day suspension without pay, mandatory counseling, and drug testing. The Last Chance agreement also provided that, if Mr. Bond was convicted of a crime in connection with the May 13, 2009 incident, he would be terminated. (Def. Facts ¶ 54; Pl. Resp. to Def. Facts ¶ 54.) Mr. Bond refused to sign the Last Chance agreement. (Def. Facts ¶ 58; Pl. Resp. to Def. Facts ¶ 58; Hr'g Tr. 6-7.) On June 4, 2009, Mr. Bond was terminated. (Def. Facts ¶ 59; Pl. Resp. to Def. Facts ¶ 59; Hr'g Tr. 7.)
On November 25, 2009, Mr. Bond pled guilty to the charge of harassment stemming from the May 13, 2009 incident. As part of the guilty plea, Mr. Bond admitted that he sent the harassing text messages to Ms. Bullard, and that the messages were "designed to annoy and alarm and frighten her." (Def. ...