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Elisa Diaz v. City of Philadelphia

May 10, 2012


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


Presently before the Court is Defendant City of Philadelphia's Motion for Summary Judgment. (ECF No. 11.) For the following reasons, the Motion will be granted.


A. Procedural History

Plaintiff Elisa Diaz filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), which issued a Notice of Right to Sue letter on November 1, 2010. (Compl. ¶ 41 & Ex. A, ECF No. 1.) This Notice of Right to Sue provided that Plaintiff was entitled to sue under "Title I of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12111, et seq., and Title V, Section 503 of the Act, 42 U.S.C. 12203".*fn1 (Compl. Ex. A.)

On January 28, 2011, Plaintiff filed a Complaint in this Court, which contained two allegations. (Compl.) First, Plaintiff claims that she suffered discrimination, in violation of the ADA, "in regard to . . . terms, conditions and privileges of employment," because of her post-traumatic stress disorder ("PTSD") (Count I). (Id. at ¶¶ 43-44 (quoting 42 U.S.C. § 12112).)

Second, Plaintiff claims that she "was retaliated against by her supervisor in the CCTV cell room unit . . . and by members of [the Philadelphia Police Department] who knew about Plaintiff's sexual harassment charges" (Count II). (Id. at ¶ 49.) Count II is entitled "Americans With Disabilities Act . . . Retaliation"; however, Plaintiff cites Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a)(1), as the statutory basis for Count II. (Id. at ¶ 48.)*fn2

Defendant filed an Answer on April 15, 2011. (Answer, ECF No. 3.) On March 16, 2012, Defendant filed a Motion for Summary Judgment. (Def.'s Mot. Summ. J., ECF No. 11.) Plaintiff filed a Response on April 5, 2012. (Pl.'s Resp., ECF No. 12.)

B. Factual Summary*fn3

1. Plaintiff's Career Begins in the 39th Police District Plaintiff is a former police officer with the Philadelphia Police Department ("PPD"). PPD is an agency of Defendant City of Philadelphia. Plaintiff began active duty with PPD on June 16, 2003, after her graduation from the police academy. (Compl. ¶ 3; Diaz Dep. 6, 20, Pl.'s Resp. Ex. B.) In January 2004 Plaintiff was assigned as a patrol officer in the 39th Police District in North Philadelphia, under the supervision of Sergeant Henry. (Compl. ¶ 3; Diaz Dep. 6.) In April or May of 2004, Sergeant Randy Davis became Plaintiff's supervisor. Sgt. Davis convinced Plaintiff to transfer to his plainclothes burglary unit, which she did. (Diaz Dep. 20.) Sgt. Davis "immediately began sexually harassing [Plaintiff]." (Compl. ¶ 5.)

According to Plaintiff, the sexual harassment that she experienced was constant and encompassed both physically inappropriate and psychologically intimidating behavior. Plaintiff claims that in June 2004, while she was completing paperwork during a patrol, Sgt. Davis ordered her to leave the police cruiser and proceeded to kiss her on the neck. (Id.; Davis EEO Mem. 1, Def.'s Mot. Summ. J. Ex. 6.)*fn4 Sgt. Davis also attempted to hug Plaintiff. (Diaz Dep. 26.) After this incident, Sgt. Davis became a constant and unwelcome presence in Plaintiff's life, visiting Plaintiff while she was on patrol (Davis EEO Mem. 3-4), conducting "ride alongs" with Plaintiff (id. at 5-6), and even visiting Plaintiff at her home, unannounced, for reasons unrelated to police business (id. at 5, 8; Diaz Dep. 26). Sgt. Davis purchased a cell phone for Plaintiff, and proceeded to call her constantly, "to the point where the phone calls became annoying" and Plaintiff bought a different cell phone. (Davis EEO Mem. 2.) Plaintiff's inclusion in the burglary detail was unusual, given her short tenure at PPD. The assistance of Sgt. Davis in getting Plaintiff this assignment reflects a pattern of behavior by Sgt. Davis in attempting to be physically near, and often alone with, Plaintiff.

One of Sgt. Davis' ride alongs "lasted approximately five hours" and included a meal. (Id. at 3.) Finally, Plaintiff reached a point where she "couldn't take it anymore." (Id. at 5.) She became ill. (Id. at 6.) Fellow officers and close family members noted that Sgt. Davis' visits to her home upset Plaintiff. (Id.) Less than two months after Plaintiff began working at the 39th District, Plaintiff's mother spoke with police officials, concerned that Sgt. Davis' behavior would affect her daughter's "safety and well being." (Id. at 7.)

Sgt. Davis' constant presence was unnerving to Plaintiff. His comments to her were consistently inappropriate. Plaintiff claims that Sgt. Davis asked about her dating preferences and criteria, and inquired about past relationships. (Id. at 4.) Sgt. Davis commented on Plaintiff's physical attractiveness, and suggested that Plaintiff take pictures of herself - or permit Sgt. Davis to do so - and submit them to Playboy Magazine or a modeling agency. (Id.) Sgt. Davis stated that he would show the pictures to his friends during an upcoming trip to Las Vegas. (Id.) Plaintiff also claims that Sgt. Davis discussed problems in his marriage. (Id.)

Plaintiff claims that Sgt. Davis asked her out on dates. (Compl. ¶ 5.) Sgt. Davis attempted to present himself to Plaintiff's parents as a potential suitor. (Davis EEO Mem. 8.) Plaintiff refused Sgt. Davis' romantic entreaties, noting that she did not date either married men or supervisors. (Id. at 6-7.)

Working in this environment adversely affected Plaintiff. Plaintiff experienced "physical symptoms including stomach problems, insomnia, anxiety, depression and panic attacks." (Compl. ¶ 7.) In August of 2004, Plaintiff received treatment from her family physician, Dr. Adam Pasternack, D.O. (Id.) Dr. Pasternack diagnosed Plaintiff with Irritable Bowel Syndrome ("IBS"), anxiety and depressive disorder, and proceeded to treat Plaintiff for her conditions. (Id. at ¶ 8.)*fn5

Plaintiff responded to the pattern of harassment by complaining to Inspector Carl Holmes, whom she knew from her time at the police academy. (Davis Arbitration Op. 3, Def.'s Mot. Summ. J. Ex. 7.) Plaintiff did not approach Lieutenant Bratina Baldieri, who was stationed in the 39th District, "because she perceived a friendship between the lieutenant and Sergeant Davis." (Id. at 4.) Inspector Holmes advised Plaintiff of her rights under PPD Directive 97, which outlined PPD's equal employment policies. (Id.) Inspector Holmes asked Plaintiff not to file an EEO complaint immediately, so that Inspector Holmes could see if he and another officer, Inspector Horne of PPD's Internal Affairs Department, could resolve the matter informally with Sgt. Davis. (Id. at 4-5.) On September 23, 2004, Plaintiff filed an EEO complaint charging Sgt. Davis with sexual harassment. (Id. at 5; Diaz EEO Compl., Pl.'s Resp. Ex. RR.)*fn6 Sometime in late 2004 or early 2005, while PPD's investigation of Sgt. Davis' behavior was pending, Plaintiff was transferred from the 39th Police District to the 35th Police District. (Pl.'s Mem. 3; Diaz Dep. 28; Compl. ¶ 16.)*fn7 Sgt. Davis remained in the 39th District.

Officer Ruiz, who conducted the EEO investigation, concluded that Sgt. Davis had violated Directive 97 and other non-discrimination policies enacted by PPD and Defendant. (Davis EEO Mem. 8.) Ruiz's commanding officer, Lieutenant Frances Neiley, approved his report. (Id.)*fn8

2. Plaintiff's Career Progresses in the 35th District Plaintiff claims that the professional problems which she experienced did not subside when she arrived at the 35th District. At the 35th District, Capt. McCloskey was her supervisor. Plaintiff felt that she was singled out for negative attention and less desirable assignments, such as guarding prisoners who were receiving medical treatment ("hospital duty"), as a result of her EEO complaint against Sgt. Davis. (Compl. ¶ 17.) According to Plaintiff, Capt. McCloskey put her on hospital duty because he could not trust her. (Id.)*fn9 Capt. McCloskey claims that he did not discuss the Sgt. Davis incident extensively with Plaintiff since he "really didn't want to know her past." (McCloskey Dep. 14.)

Plaintiff's medical conditions continued during her time in the 35th District. In May 2005, Dr. Pasternack prescribed diazepam (commonly known as Valium) and buspirone (commonly known as Buspar), both of which are typically prescribed for anxiety. (Pasternack Notes D01491; see National Institutes of Health, MedlinePlus, In June 2005, Dr. Pasternack refilled a prescription for Donnatal, a medicine used to treat IBS. (Pasternack Notes D01491.) At several appointments throughout 2005, Plaintiff complained to Dr. Pasternack about various stomach problems. (Id.) In February 2006, Plaintiff noted that she was having difficulty sleeping and was prescribed zolpidem (commonly known as Ambien), an anti-insomnia drug. (Id. at D01488; MedlinePlus.) Plaintiff was prescribed other medications as well. Nevertheless, Plaintiff's job performance at the 35th District was consistently excellent. Notwithstanding Plaintiff's concerns about Capt. McCloskey, Capt. McCloskey described Plaintiff as "above average" and "a good street officer" with "a good attitude." (McCloskey Dep. 74-75.) Plaintiff's first performance review in the 35th District corroborates McCloskey's impression, rating her performance positively across the board, narrating that Plaintiff had "performed [her] duties in an outstanding manner," and telling her to "keep up the good work." (2005 Performance Review.) According to a February 2006 evaluation, Plaintiff "has an in depth knowledge of patrol and aggressively engages in carrying out her duties in a responsible manner." (2006 Performance Review, Pl.'s Resp. Ex. F.) An April 2007 review reached a similar conclusion, noting her "high level of initiative" and diligence. (2007 Performance Review, Pl.'s Resp. Ex. F.)*fn10

In 2006, Plaintiff applied for a position with PPD's new Strategic Intelligence Tactical Enforcement unit ("SITE"), which was a thirty-six-officer team that Plaintiff describes as an "elite unit." (Diaz Dep. 33-37; McCloskey Dep. 14-15.) The qualifications were largely based on past performance, and Plaintiff was one of only four female officers accepted into this new unit. (Diaz Dep. 35.) Plaintiff participated fully in the activities of SITE. (Id. at 37.)

Plaintiff's year-plus tenure with SITE was the high point of Plaintiff's professional policing career. Plaintiff indicated that during this time, she "felt better." (Id. at 38.) She noted that her fellow officers were "wonderful," and that her supervisors "didn't show [her] any type of retaliation based on what had happened with Sergeant Davis and . . . with the 35th District." (Id.) According to Plaintiff, her IBS symptoms also subsided because she "wasn't in the immediate situation . . . [she] wasn't near him." (Id.)*fn11 Dr. Pasternack did not record a visit from Plaintiff between November 2006 and February 2008.

In February 2007, Plaintiff was injured during a vehicle and foot pursuit while jumping over a wall. (Id. at 37-38.) Plaintiff suffered severe knee damage that necessitated removal of her patella band. (Id. at 38.) After the surgery, Defendant placed Plaintiff on "injury on duty" status ("IOD"). She was out of work for approximately eighteen months from February 2007 to July 2008. (Id.)*fn12 While Plaintiff was on paid HLA*fn13 leave, the SITE unit was disbanded. (Diaz Dep. 45.) Plaintiff's 2008 performance review cites her IOD status and does not include a substantive evaluation. (2008 Performance Review, Pl.'s Resp. Ex. F.)

On December 31, 2007, Sgt. Davis' suspension and demotion were overturned by the Arbitrator. (Davis Arb. Op. 40.) Plaintiff claims that she "found this development to be upsetting and started to experience increased symptoms of depression and anxiety because" she feared further harassment. (Pl.'s Mem. 3.) In February 2008, Plaintiff visited Dr. Pasternack. In March 2008, ...

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