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John Rossiter v. Captain Michael Costello

August 9, 2012


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


Defendants Captain Michael Costello, Lieutenant Philip Riehl, and the City of Philadelphia have filed the present Motion for Summary Judgment. For the following reasons, the Motion is granted.


For approximately twenty years, Plaintiff John Rossiter has been employed as a detective in the Homicide Division of Defendant City of Philadelphia's Police Department. (Defs.' Mot. Summ. J., Ex. 1, Dep. of John Rossiter ("Rossiter Dep."), 5:2-7, Dec. 7, 2011.) In 2007, the Homicide Division was divided into One Squad, Two Squad, Three Squad, the Fugitive Squad, and the Special Investigations Unit ("SIU"). (Defs.' Mot. Summ. J., Ex. 3, Dep. of Michael Costello ("Costello Dep."), 19:6-13, Feb. 17, 2012.) Every two weeks, One Squad and Two Squad alternated between working a shift from 8:00 a.m. to 4:00 p.m. and a shift from 4:00 p.m. and 12:00 a.m. (Defs.' Mot. Summ. J., Ex. 4, Dep. of Philip Riehl ("Riehl Dep."), 22:1-7, Feb. 15, 2012.) Three Squad worked a consistent 12:00 a.m. to 8:00 a.m. shift. (Costello Dep. 19:8- 13.) The Fugitive Squad worked from 6:00 a.m. to 2:00 p.m., with weekends off. (Id.) Finally, members of the SIU worked from either 7:00 a.m. to 3:00 a.m. or 3:00 a.m. to 11:00 p.m., with weekends off. (Id.)

In 2007, Plaintiff was assigned to One Squad, which is responsible for investigating homicides. (Rossiter Dep. 6:2-6.) Defendant Costello served as a Captain in the Homicide Division from approximately 2005 to 2008. (Costello Dep. 9:7-21.) Within that division, Defendant Costello had the authority to approve reassignments to different units and to discipline personnel. (Id. at 15:20-23, 16:11-15.) Defendant Riehl is a lieutenant in the Homicide Division, and was one of Plaintiff's supervisors in One Squad. (Riehl Dep. 9:7-12; Rossiter Dep. 6:7-11.)

In October 2007, Plaintiff contracted spinal meningitis and was unable to return to work until January 14, 2008. (Id. at 10:19-11:6.) Upon his return, Plaintiff's physician and the City's Employee Medical Unit cleared him for full duty. (Defs.' Mot. Summ. J., Exs. 6 & 7.) Plaintiff, however, informed Defendant Riehl that he continued to experience limitations as a result of his illness. (Riehl Dep. 71:9-13.) He said that his stamina was "not great" and that his doctor told him he not would feel one hundred percent for up to six months. (Id. at 71:20-23.) In response, Defendant Riehl did not give Plaintiff any assignments upon his return. (Id. at 72:12-15.) Rather, Plaintiff worked the desk, answering phones and conducting interviews. (Rossiter Dep. 14:14-24.) He was also required to create two "Update Reports;" one was requested in January 2008 and the other in February 2008. (Riehl Dep. 84:25-85:23.)

Plaintiff was removed from desk duty in March 2008, when he was placed back on "the wheel." (Rossiter Dep. 16:4-10.) The wheel refers to a list of detectives who are assigned homicide investigations on a rotating basis. (Id. at 16:11-23.) Around this time, Plaintiff developed a persistent cough, and was informed by a doctor that he may have pneumonia. (Id. at 17:15-24.) He was also told to have a biopsy performed, as it was believed that he may have had a cancerous growth on his lung. (Id. at 18:9-13.) The biopsy was negative and Plaintiff was treated with antibiotics. (Id. at 18:13-15.) He continued working throughout the course of this illness. (Id. at 19:2-4.)

According to Defendant Riehl, Plaintiff requested a transfer out of One Squad on at least two occasions after his meningitis-related absence. (Riehl Dep. 75:25-76:7.) One such request was made on February 12, 2008, when Plaintiff asked to be transferred to either the Fugitive Squad or the SIU. (Defs.' Mot. Summ. J., Ex. 8.) It is not clear from the record when the second request was made, but both were denied by Defendant Costello. (See Riehl Dep. 76:10-12.) On April 1, 2008, Plaintiff was featured in a segment on KYW News Radio, in which he discussed his transfer denial. (Rossiter Dep. 21:3-24; Defs.' Mot. Summ. J., Ex. 10.) On April 4, Plaintiff received a memorandum from Sgt. Frank Hayes, reminding him that officers were required to inform Public Affairs and their Commanding Officers whenever they participated in an interview with the media. (Id.) Plaintiff did not receive any formal discipline for the interview. (Id.)

On April 5, 2008, Sgt. Hayes submitted a memorandum to Defendant Costello regarding a meeting he attended that day with Plaintiff and Defendant Riehl. (Defs.' Mot. Summ. J., Ex. 11.) According to Sgt. Hayes, Defendant Riehl attempted to discuss Plaintiff's KYW interview and transfer request, but Plaintiff stated that he would not speak without a representative or lawyer present. (Id.) Plaintiff was sent home after the meeting and placed on paid administrative leave for the remainder of the day. (Riehl Dep. 77:17-78:8, 97:14-99:19.) On April 7, he filed a grievance with the Fraternal Order of Police, alleging that the meeting violated "numerous provisions of the collective bargaining agreement." (Pl.'s Resp. Opp'n, Ex. 22.)

On April 8, 2008, Defendant Riehl submitted a memorandum to Defendant Costello entitled "INSUBORDINATION," which addressed Plaintiff's reluctance to talk to him at the April 5 meeting. (Defs.' Mot. Summ. J., Ex. 12.) The memorandum articulated Defendant Riehl's belief that Plaintiff should be "reassigned immediately," citing his "disruptive and insubordinate behaviors." (Id.) On April 11, 2008, Defendant Costello temporarily reassigned Plaintiff to Two Squad. (Costello Dep. 99:12-16.)

On May 19, 2008, Plaintiff filed a complaint with the Philadelphia Commission on Human Relations ("PCHR"), alleging that the City of Philadelphia's Police Department discriminated against him on the basis of his age and/or disability. (Defs.' Mot. Summ. J., Ex. 13.) On May 19 or 20, 2008,*fn1 Plaintiff received an annual Performance Report. (Id., Ex. 14.) He received a mark of "satisfactory" for all aspects of his work except for "Dependability," for which he received an "unsatisfactory" mark. (Id.) "Dependability" measured the "[d]egree to which employee can be relied upon to work and to meet deadlines without close supervision." (Id.) Also, in the months of April and May 2008, Plaintiff was twice subjected to drug tests by his employer. (Rossiter Dep. 37:7-9.)

Defendant Costello was transferred from the Homicide Division to the Major Crimes Unit in May 2008, and was replaced by a man named Captain Clark. (Costello Dep. 9:19-25; Rossiter Dep. 35:11-15.) Captain Clark transferred Plaintiff to SIU, where he remained for approximately ten months to a year. (Id. at 35:7-24.) Thereafter, at some unspecified time in 2009, Plaintiff was assigned to the Fugitive Squad. (Id. at 36:8-13.)

Plaintiff filed his Complaint in this Court on February 22, 2011. The Complaint contains two Counts: (I) discrimination, failure to provide a reasonable accommodation, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") and the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA") (Compl. ¶¶ 29-41); and (II) discrimination, failure to provide a reasonable accommodation, hostile work environment, and retaliation in violation of the Pennsylvania Human Relations Act, 43 Pa. C.S. § 951 et seq., ("PHRA") (Compl. ¶¶ 42-54.) Defendants filed the present Motion for Summary Judgment on March 16, 2012. Plaintiff filed his Response in Opposition on May 4, 2012, and Defendants filed a Reply Brief on May 8, 2012.


Summary judgment is proper "if 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). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. Boyle v. Cnty. of Allegheny, Pa., 139 F.3d 386, 393 (3d Cir. 1998) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1230 (3d Cir. 1993)). Rather, the court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). If a conflict arises between the evidence presented by both sides, the court must accept as true the allegations of the non-moving party, and "all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

Although the moving party bears the initial burden of showing an absence of a genuine issue of material fact, it need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden by "pointing out . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the movant has carried its initial burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec., 475 U.S. at 586. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for ...

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