The opinion of the court was delivered by: Norma L. Shapiro, J.
Plaintiff Lacy R. Wheeler, III ("Wheeler") brings claims against his former employer, defendant Commonwealth of Pennsylvania Department of Labor and Industry (the "Department"), for race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Before the court is the Department motion for summary judgment. Wheeler has proceeded pro se. The court is patient with pro se litigants, but Wheeler, an attorney, has pursued his claims in a dilatory manner.*fn1
The court has federal question jurisdiction under 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391.
Wheeler, an African-American attorney employed by the Department, filed a complaint alleging the Department: (1) failed to promote him because of his race; and (2) terminated him and engaged in other post-termination retaliatory acts when he filed complaints alleging race and age discrimination with the Pennsylvania Office of Equal Opportunity ("OEO") and United States Equal Employment Opportunity Commission ("EEOC"). Wheeler brought claims under Title VII, 42 U.S.C. § 1981, and the Pennsylvania Humans Relations Act ("PHRA") against the Department and three Department employees: Edward Rawlings ("Rawlings"), James Wilderman ("Wilderman"), and Stephen Schmerin.
By Order of November 15, 2010, the court dismissed the § 1981 and PHRA claims against all defendants, and the Title VII claims against the individual defendants. The Title VII claims against the Department are the only remaining claims. Wheeler seeks: (1) compensatory damages for pain and suffering, physical and emotional distress, and past and future economic losses; (2) declaratory relief that the Department's discriminatory practices are unlawful; (3) an injunction prohibiting the Department from engaging in discriminatory practices; (4) lost wages and benefits; (5) pre- and post-judgment interest, costs, and attorney's fees; and (6) any other relief deemed just and proper.*fn2
The court will grant the Department motion for summary judgment because there is not sufficient evidence for a jury to return a verdict in Wheeler's favor.
Wheeler was employed as an Unemployment Compensation Appeals Referee ("appeals referee") with the Unemployment Compensation Appeals Board of Review from September 15, 2003 until he was terminated on January 30, 2008. On May 24, 2007, Wheeler submitted an application for promotion to the position of Eastern Appeals Referee Program Manager ("program manager"). Seven candidates applied for the position; four, including Janice Cohen ("Cohen"), were Caucasian and three, including Wheeler, were African-American.
The candidates were interviewed for the position of program manager by three Department employees: Autro Heath ("Heath") and former defendants Rawlings and Wilderman. Cohen received an overall rating of "Strong" by all three reviewers, each of whom identified Cohen as the best candidate for the position. Mot. Summ. J., Ex. B. Wheeler received an overall rating of "Strong" by Wilderman and "Acceptable" by Rawlings and Heath.
Mot. Summ. J., Ex. C. At least one of the reviewers, Wilderman, expressed concern in his review about Wheeler's proposal to implement a workplace policy allowing appeals referees to leave the office early on completion of more than seven hearings in one day. Mot. Summ. J., Exs. C, D. Rawlings also avers the reviewers were concerned about the proposal. Mot. Summ.
After the interviews, Cohen was promoted to the position of program manager. Wheeler alleges he was more qualified than Cohen but was not promoted to program manager because of his race. Wheeler also alleges the Department has never promoted an African-American to program manager. Wheeler claims the Department settled two prior federal actions brought by African-American employees who claimed they were not promoted to program manager because of their race.
On September 4, 2007, Wheeler submitted an internal complaint to the OEO alleging race discrimination in the failure to promote him to program manager.*fn3 The OEO dismissed the complaint after conducting an internal investigation. Wheeler then filed a complaint with the EEOC on December 27, 2007. On January 16, 2008, the Department held an internal fact-finding conference with Wheeler to discuss information discovered during the OEO internal investigation. The OEO had discovered Wheeler listed his attorney identification number when he applied for the position of appeals referee, even though his law license was in suspense. The OEO had also discovered Wheeler claimed to have no criminal history in his applications for both appeals referee and program manager, despite having been arrested, held in direct criminal contempt, and incarcerated on at least two occasions.
The Department terminated Wheeler on January 30, 2008.*fn4
He commenced this action after the EEOC "issued Notices of
Right to Sue on February 4, 2010." Compl. ¶ 3. He alleges his
termination was in retaliation for filing the OEO and EEOC
Summary judgment must be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The court must view the facts in the light most favorable to the nonmoving party and make all reasonable inference's in that party's favor. See Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
The movant must identify those portions of the record showing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant does not bear the burden of persuasion, it may show the non-movant's evidence is insufficient to carry the burden of persuasion. Id. at 323. To withstand summary judgment, the non-movant must show a genuine dispute of material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A dispute is "genuine" only if there is "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Title VII makes it unlawful for an employer to:
[F]ail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or nation origin; or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2(a)(1), (2). Title VII also prohibits employers from discriminating against an employee or applicant who has opposed an unlawful employment practice or "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a).
Wheeler asserts four theories of liability under Title VII: (1) individual disparate treatment (42 U.S.C. § 2000e-2(a)(1)); (2) systemic disparate treatment (42 U.S.C. § 2000e-2(a)(1)); (3) disparate impact (42 U.S.C. § ...