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Kenneth Greene v. City of Philadelphia and John/Jane Does #1-10
September 26, 2012
KENNETH GREENE, PLAINTIFF
CITY OF PHILADELPHIA AND JOHN/JANE DOES #1-10,000,
The opinion of the court was delivered by: Rufe, J.
This case is one of several actions that relate to a website known as "Domelights.com" which allegedly featured inflammatory racial commentary by current and former Philadelphia police officers and firefighters. Plaintiff, a lieutenant in the Philadelphia Fire Department, alleges that Defendant, the City of Philadelphia, discriminated and retaliated against him for his objections to the website. The City has moved to dismiss the First Amended Complaint (the "Complaint"). The motion will be granted in part and denied in part.
Plaintiff is the former president of Club Valiants, Inc., the
Philadelphia Chapter of the International Association of Black
Professional Fire Fighters. *fn1 In 2009, in
his capacity as the president of Club Valiants, Plaintiff filed a
complaint against the City and the Philadelphia Fire Fighters Union
Local 22, alleging racial discrimination, including a racially hostile
environment engendered in part by the pervasive use at fire stations
of Domelights.com (the "Club Valiants"
case). *fn2 Plaintiff purports to
incorporate by reference into the Complaint all of the pleadings in
the Club Valiants case, which was settled in 2011. *fn3
Plaintiff also participated in another lawsuit, this one
filed by the Guardian Civic League (the Philadelphia Chapter of the
National Black Police Association), concerning the atmosphere created
by Domelights.com in the Philadelphia Police Department; Plaintiff
also purports to incorporate by reference into the Complaint all of
the pleadings in that case. *fn4 That case
also settled in 2011. Plaintiff alleges that the extensive use of City
computers for posting by City employees on Domelights.com and the
City's failure to put a stop to the offensive posting until the
earlier lawsuits were filed created a hostile work environment, and
that as a result of his involvement in these cases, he has suffered
retaliation in the form of unwarranted disciplinary complaints and a
lay-off notice, in violation of his constitutional rights.
In Count I, Plaintiff alleges "federal civil rights violation/discrimination" pursuant to "42 U.S.C. § 1981 as enforceable through § 1983." In Count II, Plaintiff alleges "federal civil rights violation/civil rights conspiracy" pursuant to 42 U.S.C. § 1983, specifically referencing Plaintiff's rights under the First Amendment. Count III alleges "federal civil rights violation/civil rights conspiracy" pursuant to 42 U.S.C. § 1985. Counts IV and V allege intentional infliction of emotional distress and negligent infliction of emotional distress, respectively.
Dismissal of a complaint under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief can be granted
is appropriate where a plaintiff's "plain statement" does not possess
enough substance to show that plaintiff is entitled to relief.
*fn5 In determining whether a motion to dismiss is
appropriate the court must consider those facts alleged in the
complaint, accepting the allegations as true and drawing all logical
inferences in favor of the non-moving party. *fn6
Courts are not bound to accept as true legal conclusions
couched as factual allegations. *fn7
Something more than a mere possibility of a claim must be alleged; the
plaintiff must allege "enough facts to state a claim to relief that is
plausible on its face." *fn8 The complaint
must set forth direct or inferential allegations with regard to all
the material elements necessary to sustain recovery under some viable
legal theory. *fn9 The court has no duty to
"conjure up unpleaded facts that might turn a frivolous claim . . .
into a substantial one." *fn10
A. Count I: Hostile Work Environment
Plaintiff asserts a claim for racial discrimination that may
reasonably be read as one alleging a hostile work environment pursuant
to 42 U.S.C. §§ 1981 and 1983. *fn11 To state
a claim for hostile work environment against the City, Plaintiff must
allege that 1) he suffered intentional discrimination because of his
race; 2) the discrimination was pervasive and regular; 3) the
discrimination detrimentally affected him; 4) the discrimination would
detrimentally affect a reasonable person of the same protected class
in Plaintiff's position; and 5) the existence of a policy or custom of
the municipality caused the hostile work environment.
*fn12 Plaintiff alleges the widespread use of City
computers for the posting of racial invective by members of the police
and fire departments, including insults possibly directed against him,
and alleges that this activity was known by both the Commissioner of
the Philadelphia Fire Department *fn13 and
the Mayor, *fn14 who failed to put a stop to
it until the earlier lawsuits were filed and generated significant
publicity. In pleading knowledge of and acquiescence to the allegedly
hostile work environment by these officials, the Complaint "sufficiently sets forth a claim
that a City policy or custom
created a hostile work environment." *fn15
The City's motion will be denied as to Count I.
B. Count II: First Amendment Retaliation
Plaintiff alleges that his participation in the earlier litigation constitutes speech on a matter of public concern, and that the City retaliated against this protected speech by subjecting him to placement on a lay-off list (although Plaintiff was not laid off) and to the filing of unjustified disciplinary complaints against him.
A public employee asserting a claim against his employer for First
Amendment retaliation must allege that his speech constituted
protected activity and that it was a substantial or motivating factor
for the alleged retaliatory conduct. *fn17
For speech to constitute protected activity it must relate to a matter
of public concern; that is, if it can be "fairly considered as
relating to any matter of political, social or other concern to the
community. . . ." *fn18 Where a plaintiff
alleges discriminatory conduct, the Court must consider whether the
discrimination was practiced by elected or high-ranking
officials, *fn19 and whether the
discrimination complained of was an isolated incident or part of a
widespread pattern of discrimination. *fn20
In this case, Plaintiff alleges that he spoke out against the racially offensive postings made by numerous
Philadelphia police officers and firefighters, who were acting with
the knowledge or acquiescence of high-ranking City officials.
Plaintiff argues, and Defendant does not dispute, that the allegations
of the earlier lawsuits generated substantial news coverage and
commentary. The Court ...
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