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Kenneth Greene v. City of Philadelphia and John/Jane Does #1-10

September 26, 2012

KENNETH GREENE, PLAINTIFF
v.
CITY OF PHILADELPHIA AND JOHN/JANE DOES #1-10,000,
DEFENDANTS



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

MEMORANDUM OPINION

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.

I. BACKGROUND

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.

II. STANDARD OF REVIEW

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

III. DISCUSSION

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. *fn16

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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