IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
October 17, 2012
PENNSYLVANIA STATE POLICE, DEFENDANT
The opinion of the court was delivered by: (Judge Conner)
Presently before the court is defendant Pennsylvania State Police's ("PSP") motion for summary judgment (Doc. 19) and the magistrate judge's report (Doc. 39) recommending that it be denied. PSP filed objections to the magistrate judge's report and recommendation ("R&R"), and the parties fully briefed the issues raised by PSP's objections. (See Docs. 44, 47, 50). For the reasons set forth below, the court will adopt the R&R in part and reject it in part.
I. Factual Background & Procedural History*fn1
Plaintiff Tony Reaves ("Reaves") was a full-time trooper for PSP on probationary status at the Avondale barracks. He is an African-American. Reaves's probationary status was extended in March, 2007. In August and September, 2007, Corporal Steven Ranck ("Cpl. Ranck") prepared a supplemental General Investigation ("GI") report in review of Reaves's probationary trooper status. The report noted a number of negative incidents involving Reaves, including three different traffic stops.*fn2 Although a majority of Reaves's supervisors recommended retention, Cpl. Ranck recommended that Reaves not be retained. Upon Cpl. Ranck's recommendation, Captain Jack Laufer ("Capt. Laufer") made the decision to terminate plaintiff. The Probationary Trooper Administrative Review Panel agreed with the determination to dismiss plaintiff. Reaves was officially terminated on October 4, 2007.
Reaves spoke with Cpl. Ranck in July, 2007, about his belief that he was treated differently than others. Additionally, he contacted the PSP Equal Employment Opportunity ("EEO") office on numerous occasions from March, 2007, after his probation was extended, until his dismissal in October, 2007. Reaves also spoke several times with his station commander, Lieutenant Shelton Sneed ("Lt. Sneed"), about his perceived differential treatment. Sometime in September 2007, Reaves sent a complaint letter to Lt. Sneed outlining a number of issues and concerns regarding his perceived differential treatment.
Reaves filed the instant suit on December 28, 2009, alleging violations of Title VII of the Civil Rights Act of 1964. (Doc. 1). PSP filed the instant motion for summary judgment on February 28, 2011. (See Docs. 19-21). The court referred PSP's summary judgment motion to the Magistrate Judge, (see Doc. 38), who recommended denying the motion. PSP filed objections to the R&R on April 5, 2012. (Doc. 44). The parties fully briefed the issues raised in PSP's objections to the R&R, and the matter is now ripe for review.
II. Standard of Review
A. Standard of Review for a Motion for Summary Judgment
Through summary adjudication the court may dispose of those claims that do not present a "genuine dispute as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
In reviewing a motion for summary judgment under Title VII, which relies upon indirect evidence, the Third Circuit applies the three-step test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, plaintiff must establish a prima facie case of discrimination or retaliation. Id. at 802. Second, the burden shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse action taken. Id. Third, the plaintiff must show that the defendant's proffered reasons are mere pretext. Id.
B. Standard of Review for a Magistrate Judge's Recommendation
Where objections to a magistrate judge's report and recommendation are filed, the court must perform a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). Local Rule 72.3 requires "written objections which . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections."
PSP objects to the R&R insofar as it concludes that PSP is not entitled to summary judgment on Reaves's Title VII discrimination and retaliation claims PSP raises four specific objections: (1) the Magistrate Judge incorrectly found a dispute of material fact regarding whether comparators were sufficiently similarly situated to Reaves; (2) the Magistrate Judge erred in finding that Reaves established pretext; (3) the Magistrate Judge incorrectly concluded that Reaves engaged in a protected activity; and (4) the Magistrate Judge erred in not addressing defendant's causal connection argument. The court will address each objection in turn.
A. Title VII Discrimination Claim
In order to establish a prima facie case of employment discrimination, Reaves must show (1) his membership in a protected class; (2) his qualification for his position; (3) that he suffered an adverse employment action; and (4) that the employer took the adverse action against him under circumstances raising an inference of discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (citing McDonnell Douglas, 411 U.S. at 802; Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 348 n.1, 352, 356 (3d Cir. 1999). Here, only the fourth element is at issue. A plaintiff can establish an inference of discrimination where he or she was treated differently than similarly situated employees outside his or her protected class. Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000).
PSP objects to the Magistrate Judge's finding that there is a dispute of fact regarding whether there are PSP employees sufficiently similarly situated that their differential treatment would give rise to an inference of discrimination.As further discussed by the Magistrate Judge, different courts have varying definitions of the term "similarlysituated." (See Doc. 39, at 17-19). "While 'similarly situated' does not mean identically situated, the [comparators] must nevertheless be similar in 'all relevant respects.'" Opsatnik v. Norfolk S. Corp., 335 Fed. Appx. 220, 222-23 (3d Cir. 2009) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). It often involves a showing that "the individuals with whom the plaintiff seeks to compare [his] treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Ogden v. Keystone Residence, 226 F. Supp. 2d 588, 604 (M.D. Pa. 2002) (quoting Morris v. G.E. Financial Assurance Holdings, No. 00-3849, 2001 WL 1558039, at *6-*8 (E.D. Pa. Dec. 3, 2001) (citations and internal quotation marks omitted)).
Reaves offers the following PSP troopers as similarly situated, all of
whom had various traffic altercations: Chris Winesburg, Vicki Spencer,
Curtis Confer, Gary Wilson, Donald Neisner, David Sawicky, Michael
Snyder, Norman Strauss, Matt Hudak, Jonathan Burnham, Frank Pawlowski,
Jeffrey Miller, Jeffrey Dillig, Paul McManamon, Heather Seifrit. Some
of these alleged comparators can be dismissed with little
comment as they are obviously not similarly situated.*fn3
The following state troopers are left as potential
comparators: Winesburg, Spencer, Seifrit, Neisner, Snyder, Hudak, and
For the remaining comparators, Reaves simply denies many of Defendant's statements of undisputed material fact without citing or producing any affirmative evidence outside the allegations contained in his complaint. (See Doc. 29 ¶ ¶ 142, 143, 144, 145, 150, 152, 153). Federal Rule of Civil Procedure 56(c)(1) states that the non-movant must establish a genuine dispute of material fact by either "citing to particular parts of materials in the record" or "showing that the materials cited [by the movant] do not establish the absence or presence of a genuine dispute." In doing so, a non-moving party "may not simply sit back and rest on the allegations in its complaint." Corneal v. Jackson Township, 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003), aff'd, 94 Fed. Appx. 76 (3d Cir. 2004). Local Rule 56.1 states that any material facts set forth by the movant "will be deemed to be admitted unless controverted" by the non-movant.
Reaves denies many of PSP's statements of fact with the bare explanation that "defendant did not produce all of the requested and relevant probationary trooper files, and the evidence remains in defendant PSP's possession." (See Doc. 29 ¶ ¶ 142 n.12, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160). Specifically, Reaves explains that:
[i]n this federal court proceeding, Plaintiff Requests for
Production of Documents also asked for personnel data specifically relating to comparators, including probationary employment records. See Exhibit 43, Defendants' Responses to Plaintiff's Requests for Production of Documents No. 4; see also Exhibit 46. Defendant refused to produce the requested records, eventually produced what it deems "official personnel files" for some comparators and only one "probationary trooper file," namely for Heather Seifrit. However, the Defendant's regulation defines a "personal record" as "any recorded information, regardless of form or characteristics, other than an official record or public record." Exhibit 8, AR 4-1, 1.02. (Doc. 29, at 71 n.12).
Basing a denial of fact on one's failure to obtain discovery is not proper. Reaves did not file an affidavit or declaration stating that he cannot present facts essential to justify his opposition nor did he seek additional time to obtain discovery. See FED. R. CIV. P. 56(d). Additionally, Reaves never filed a motion for an order compelling discovery. See FED. R. CIV. P. 37; FED. R. CIV. P. 34. Reaves also never took the deposition of any of the proposed comparators."[O]ne who resists summary judgment but does not contradict the operative facts in his adversary's affidavit must utilize discovery, and suspicion alone without discovery is not enough." AVS Foundation v. Eugene Berry Enter., LLC, No. 11-1084, 2011 WL 6056903, at *3 (W.D. Pa. Dec. 6, 2011) (quoting Robin Const. Co. v. United States, 345 F.2d 610, 614 (3d Cir. 1965).
Thus, to the extent that Reaves fails to refute PSP's assertions of fact with record evidence and merely cites to the pleadings or his own failure to secure discoverable documents, the court will consider PSP's facts to be undisputed for purposes of the motion. See FED. R. CIV. P. 56(e)(2); Local Rule 56.1. This conclusion eliminates an additional proposed comparator, Vicki Spencer, from consideration. The following troopers remain: Winesburg, Seifrit, Neisner, Snyder, Hudak, and Burnham.
In his Local Rule 56.1 statement on the remaining proposed comparators, the only facts which Reaves supports by a citation to the record are as follows: (1) the fact that he made a written complaint to Lt. Sneed in September, 2007, regarding his disparate treatment compared to other similarly situated employees (Doc. 29 ¶ ¶ 142, 143, 145, 146, 150, 152, 156, 157, 158, 159, 160; Doc. 29, Ex. 13); (2) the fact that most probationary troopers were retained as troopers following their probationary period, (Doc. 29 ¶ 142); and (3) several allegations regarding Trooper Seifrit. (Doc. 29, ¶ 146). It is unclear what allegation Reaves seeks to undergird with the fact that most probationary troopers were retained following their probationary period. PSP does not dispute this fact. Hence, we are left with two statements: Reaves's complaints to Lt. Sneed naming other employees who have engaged in traffic incidents and the allegations regarding Trooper Seifrit.
Reaves asserts that he submitted a written complaint to Lt. Sneed
regarding his disparate treatment. This assertion is actually provided
in response to PSP's contention that Reaves does not know whether his
proposed comparators notified their supervisors of their commission of
traffic violations or their submission to traffic stops. (Doc. 20 ¶ ¶
142, 143, 145, 146, 150, 152, 156, 157, 158). PSP reasons that if PSP
supervisors were not notified of the comparators' traffic incidents,
it is presumptively reasonable that PSP did not investigate the
incidents further, and therefore the comparators would not be
similarly situated. The fact that Reaves complained about the other
troopers' traffic incidents to Lt. Sneed is not disputed.*fn4
However, it is clear that the parties dispute whether, when,
and to what extent PSP was actually aware of the proposed
comparators's traffic incidents.
Finally, Reaves presents several allegations, with record citations, regarding a potential comparator, Trooper Seifrit. The information regarding Trooper Seifrit's traffic infractions is not disputed. Again, Reaves argues that he informed Lieutenant Sneed of Trooper Seifrit's traffic stops, in contradiction of PSP's claim that "neither Corporal Ranck, Lieutenant Sneed, or Captain Laufer were aware of off-duty traffic stops involving Trooper Seifrit." (See Doc. 29, Ex. 13; Doc. 26, at 12; Doc. 20, ¶¶ 156-158).
The court finds that the parties dispute whether and to what extent Lt. Sneed, and therefore PSP, knew of the troopers' traffic incidents. However, this dispute is not material because Reaves fails to show that any of the troopers had similar "attitude, conduct, and deportment issues" like Reaves.*fn5 Although Reaves engaged in some of the same conduct, traffic incidents, as the other proposed comparators, there is significant undisputed evidence of "differentiating or mitigating circumstances" that distinguishes Reaves's conduct or PSP's treatment of him for it. Ogden, 226 F. Supp. 2d at 603 (quoting Morris v. G.E. Financial Assurance Holdings, No. 00-3849, 2001 WL 1558039, at *6-*8 (E.D. Pa. Dec. 3, 2001) (citations and internal quotation marks omitted)). PSP chronicles a long list of incidents, before and after his probation extension, which reflect poorly on Reaves's conduct as a trooper, beyond simply his record of traffic incidents.
(See Doc. 20, ¶ ¶ 26, 27-30, 32, 48-53, 58, 67, 87, 89, 90, 91, 92, 93, 94, 95, 97, 99, 101, 104-110).*fn6 As PSP aptly observes,
[d]espite plaintiff making every attempt to reduce this case to traffic stops . . . that is not how the defendant viewed plaintiff's conduct. Defendant looked to the totality of the information which showed repeated attitude, conduct and deportment issues, both on-duty and off-duty, which were subpar. (Doc. 50, at 5). Without comparable evidence of conduct issues for the other comparators, a jury could not reasonably find that those troopers were similarly situated to Reaves. Thus, it is irrelevant and immaterial that a jury could potentially find that PSP knew of the proposed comparators's traffic incidents and failed to investigate further. As a matter of law, Reaves fails to make out a prima facie case of racial discrimination, and the court will grant summary judgment in favor of PSP on this claim. Based upon this determination, the court will not address PSP's pretext objection.
B. Title VII Retaliation Claim
In order to establish a prima facie case of retaliation under Title VII, Reaves must show that (1) he engaged in protected activity; (2) the employer took adverse action against him, and (3) there was a causal connection between his protected activity and the adverse employment action. Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995).
PSP objects to the Magistrate Judge's finding that a reasonable jury could conclude that Reaves engaged in protected activity. The court finds that although the evidence is rather tenuous, when viewed in the light most favorable to Reaves, a reasonable jury could conclude Reaves engaged in protected activity under Title VII and PSP is not entitled to judgment as a matter of law.
A plaintiff is not required to write a formal letter of complaint to
his employer or to the Equal Employment Opportunity Commission
("EEOC") in order to engage in protected activity under Title VII.
Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir. 1995) (citing
Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)
(explaining that protected activity may also include informal
complaints of discrimination, such as "making complaints to
management, writing critical letters to customers, protesting against
discrimination by industry or by society in general, and expressing
support of co-workers who have filed formal charges")). However, a
general complaint of unfair treatment is not protected conduct under
Title VII. Barber, 68 F.3d at 701-702. Instead, a complaint must
"explicitly or implicitly allege" that the unfair treatment stemmed
from the plaintiff's membership in a protected class.*fn7
Id.; see also
Slagle v. Clarion, 435 F.3d 262, 265-68 (3d Cir. 2006). In other
words, the "opposition to an illegal employment practice must identify
the employer and the practice -- if not specifically, at least by
context." Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc.,
450 F.3d 130, 135 (3d Cir. 2006).
In the months leading up to Reaves's termination, he made several
complaints of unfair treatment to Cpl. Ranck, Lieutenant Martin Henry
of the EEO Office ("Lt. Henry"), and Lt. Sneed. "Race" was never
explicitly included in any complaint to PSP personnel.*fn8
However, a jury could reasonably find that Reaves implicitly
complained of racial discrimination.
Oftentimes, complaints are too vague to be considered implicit complaints of discrimination. In Barber, the Third Circuit held that the plaintiff's letter to his human resources department stating "I am quite puzzled as to why the position was awarded to a less qualified individual" does not constitute protected conduct for a retaliation claim under the Age Discrimination in Employment Act because it never specifically complained about age discrimination. 68 F.3d at 701-702. Similarly, in Slagle, the Third Circuit held that under the "participation clause" of Title VII, the plaintiff did not engage in protected conduct when he filed a charge with the EEOC alleging "unspecified civil rights violations." 435 F.3d at 265-68.
Nevertheless, there are several cases from our sister courts, similar to this case, where the court found an implicit complaint of discrimination. In Mason v. Transp. Solutions, the Western District of Pennsylvania held that a jury could reasonably infer that plaintiff engaged in protected activity by filing a memorandum with her employer complaining of "repeated discrimination" even though she never mentioned age or gender as the discriminatory motivation. No. 08-902, 2010 WL 2698308, at *27-*28 (W.D. Pa. July 7, 2010). The Eastern District of Pennsylvania held that a complaint of "bias and harassment" "connotes an improper prejudice or favoritism of some sort, though not necessarily regarding a protected class." Jackson v. Lehigh Valley Physicians Group, No. 08-3043, 2010 WL 1630737, at *17 (E.D. Pa. April 20, 2010). That court went on to hold that the plaintiff made an implicit complaint of discrimination based on the use of the words "bias" and "harassment" because the employee "was the only black employee in the Department at the time of her complaint to [the supervisor], which reasonably could give a racial connotation to any complaint of "bias." Id.
The Magistrate Judge determined that Reaves made an implicit complaint based on Lt. Henry's statement acknowledging that plaintiff informed him he is black as well as the letter to Lt. Sneed identifying a racial comment made to plaintiff. (Doc. 39, at 25). Specifically, Reaves contacted the EEO office eleven times in April, July, and August of 2007. During one of their initial conversations, Lt. Henry asked Reaves if he was a minority and Reaves indicated that he was black. (Doc. 29, Ex. 51, p. 39-40). The Magistrate Judge reasoned that "one would wonder why, given the brevity of this first conversation, Henry would raise the question of whether Reaves is a minority or a member of a protected class if there is not an inference or suggestion that such a classification forms the basis of his alleged differential treatment." (Doc. 39, at 25). The Magistrate Judge also noted that Lt. Henry's deposition testimony, where he testified that Reaves never made a complaint on which Lt. Henry's office could have acted, "is contradicted by the PSP's position statement in response to the EEOC . . . stating that Lt. Henry conducted and completed an investigation into Reaves's alleged discriminatory treatment." (Doc. 39, at 25; Doc. 29-10, ¶ 4).
The fact that Reaves responded to a question from the EEO regarding his race does not, by itself, constitute a complaint of racial discrimination. However, Reaves also sent a letter to Lt. Sneed*fn9 stating that he felt he was "treated differently than other members of the station" and lists a number of examples of such treatment. (Doc. 29, Ex. 13).*fn10 Similar to Mason, Reaves discusses how he related to Cpl. Ranck that he felt he "was being discriminated against at the station" and that "[t]he sexual harassment training stated if you feel you are being discriminated against to notify your immediate supervisor." (Id. at 5) (emphasis added). Additionally, similar to the employee in Jackson, Reaves was the only black trooper assigned to Troop J at the Avondale barracks.*fn11 (See Doc. 11, ¶ 4; Doc. 13, ¶ 4; Doc. 29, ¶ 4). Finally, in his letter to Sneed, Reaves specifically compared PSP's treatment of other white troopers, including Troopers Hudak, Wilson, Neisner, Snyder, Burnham, Winesburg, and Seifrit. See Still v. Cummins Power Sys., No. 07-5235, 2009 WL 57021 (E.D. Pa. Jan. 8, 2009) (reasoning that plaintiff did not engage in protected activity by complaining to his supervisor in an email in part because "nowhere in the e-mail does plaintiff compare himself to similarly situated white employees.").
A jury could reasonably find that Reaves made an implicit complaint of discrimination based on the evidence that Reaves made numerous separate phone calls to the EEO, Lt. Henry knew that Reaves was black, and Reaves complained of "discrimination" and compared himself to other white troopers in a letter to Lt. Sneed, who knew that Reaves was the only black trooper at Avondale. This activity is not like the "vague" complaint presented in Barber or Slagle. A jury could reasonably find that Reaves engaged in protected activity under Title VII. Thus, PSP is not entitled to judgment as a matter of law on Reaves's retaliation claim.
The court rejects the Magistrate Judge's R&R insofar as it denies summary judgment to PSP on Reaves's discrimination claim. The court adopts the Magistrate Judge's R&R insofar as it denies summary judgment to PSP on Reaves's retaliation claim. Thus, PSP's motion for summary judgment will be granted on Reaves's discrimination claim but denied on Reaves's retaliation claim. An appropriate order follows.
Christopher C. Conner
CHRISTOPHER C. CONNER United States District Judge
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 1:09-CV-2549
TONY REAVES, Plaintiff v. : PENNSYLVANIA STATE POLICE, Defendant
AND NOW, this 17th day of October, 2012, for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The report and recommendation (Doc. 39) of Magistrate Judge Methvin are ADOPTED in part and REJECTED in part.
2. PSP's motion for summary judgment (Doc. 19) on Reaves's claim of racial discrimination is GRANTED.
3. PSP's motion for summary judgment (Doc. 19) on Reaves's retaliation claim is DENIED.
4. The Clerk of Court is directed to defer entry of Judgment until the resolution of all claims.
5. A revised scheduling order setting this matter for trial shall issue by future order of the court.
CHRISTOPHER C. CONNER United States District Judge