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Miguel A. Alers and v. City of Philadelphia

January 24, 2013


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


In their Second Amended Complaint, Plaintiffs allege violations of (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) 42 U.S.C. § 1983; (3) the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA"); (4) the Pennsylvania Human Relations Act, 43 P.S. § 955 et seq. ("PHRA"); and (5) the Pennsylvania Minimum Wage Act, 43 P.S. § 333 et seq.("PMWA"). Plaintiffs also bring a state law claim for intentional infliction of emotional distress ("IIED").*fn1 Now before this Court is Defendants' Motion for Summary Judgment ("Defs. Mot.Summ. J."), including their Statement of Undisputed Material Facts ("Defs. SOF") (Dkt. No. 62), as well as Plaintiffs' opposition brief ("Pls. Opp.") and factual counterstatement ("Pls. SOF") (Dkt. No. 68), Defendants' Reply (Dkt. No. 69), and Plaintiffs' Sur-Reply (Dkt. No. 73). For the reasons set forth below, Defendants' Motion will be GRANTED in part and DENIED in part.


The Court recites the undisputed material facts as viewed in the light most favorable to Plaintiffs; while Plaintiffs assert a number of disputes of material fact, upon close examination, the Court does not find such to exist in most of the cited instances. Nevertheless, where Plaintiffs have claimed that a particular material fact is indeed in genuine dispute, the Court will address such assertion. If the Court does not discuss a fact at all, it is because the Court has concluded that such fact is irrelevant or immaterial and thus not worthy of discussion.


Plaintiff Miguel A. Alers, a Hispanic male, serves the City of Philadelphia as a police detective. Defendants Commissioner Charles Ramsey, Deputy Commissioner Jack Gaittens, Inspector Christopher Flacco, Captain Carol Abrams, Captain Sharon Seaborough, Sergeant Mark Jones, Detective Thomas Hood, and Detective Robert Kerwin are also employees of the City of Philadelphia Police Department ("PPD"). Defendant Lieutenant Robert Brown was an employee of PPD until his retirement in 2010.*fn2 The City of Philadelphia itself is also named as a Defendant.

On or about October 9 and 10, 2005, Alers was assigned to the Central Detectives Unit ("CDU"), where he was the only Hispanic employee working his designated shift. (Defs. SOF ¶ 13.) In what seem to have been characterized as pranks, Kerwin and Hood turned Alers' desk around and raised it up on milk crates, elevated his desk chair on a phone book, and moved his coat hook higher up on the office wall. (Defs. SOF ¶¶ 28-29.) They also glued coins and a battery to Alers' desk. (Defs. SOF ¶ 30.) Alers asked Kerwin and Hood to stop. (Defs. SOF ¶ 31.) Alers reported the conduct to Seaborough, who took no action. (Defs. ¶ 41.) Alers also reported to Brown and Seaborough that his handgun was missing and had been taken from his desk. (Pls. SOF ¶ 46.) While Alers was initially charged by Seaborough with violating the PPD's disciplinary code relating to negligent care of Department property by failing to secure his handgun adequately, Ramsey ultimately withdrew the charge. (Defs. SOF ¶ 51.)

Thereafter, Alers claims he was denied several overtime opportunities made available to his peers, and his compensation for approved overtime was initially delayed. (Pls. SOF ¶ 59.)*fn3

On November 26, 2006, Alers filed a complaint of discrimination with the PPD Equal Employment Opportunity ("EEO") Unit. (Defs.SOF ¶ 71.) Following his EEO discrimination complaint, he was reprimanded for entering his own vacation time, although he had never been reprimanded for doing so prior to filing his complaint. (Pls. SOF ¶ 60.) On January 7, 2007, he filed a complaint of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). (Defs. SOF ¶ 71.)*fn4 Alers requested a transfer from the CDU on November 1, 2007. (Defs. SOF ¶ 65.)


Plaintiff Denise Szustowicz ("Szustowicz"), a white Polish female, is also a PPD detective, and has twice been named the Department's "Detective of the Year." (Pls. SOF ¶ Szustowicz 1b.) In July 2006, Szustowicz reported witnessing illegal misconduct by Brown and Seaborough, namely theft, gambling on duty, and tampering with evidence, which she reported to the PPD's internal anti-corruption investigation team. (Defs. SOF ¶¶ 75-76.) Szustowicz was interviewed in connection with Alers' EEOC complaint on January 23, 2007. (Defs. SOF ¶ 84.)

On August 15, 2007, Szustowicz was charged with conduct unbecoming an officer relating to several incidents in which Szustowicz allegedly engaged in racist conduct. (Defs. SOF ¶ 85.) Szustowicz subsequently requested and was granted a transfer out of the CDU, as she declined to work on a particular assignment, and with an officer to whom she was assigned. (Defs. SOF ¶ 87; Pls. SOF ¶ 106.) On January 24, 2008, the PPD's Police Board of Inquiry conducted a hearing relating to the charges brought against Szustowicz. (Pls. SOF ¶ 91.) While represented by her current counsel, Szustowicz pled guilty to two charges and a third was withdrawn; she contends that she was pressured into pleading guilty and denied the opportunity to prepare fully for the hearing. (Defs. SOF ¶ 91; Pls. SOF ¶ 94.) Szustowicz was ultimately suspended for 21 days. (Defs. SOF ¶ 92.) The penalties were imposed by Flacco, Gaitens and Ramsey. (Defs. ¶ 92.)*fn5


Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To defeat a motion for summary judgment, disputes must be both (1) material, meaning concerning facts that will affect the outcome of the issue under substantive law; and (2) genuine, meaning the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. An issue is genuine if the fact finder could reasonably return a verdict in favor of the nonmoving party with respect to that issue. Anderson, 477 U.S. at 249. In reviewing a motion for summary judgment, the court does not make credibility determinations and "must view facts and inferences in the light most favorable to the party opposing the motion." Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).


For purposes of clarity, the Court addresses Plaintiffs' claims in the order that they appear in the Plaintiffs' Second Amended Complaint.


1.Legal Context

Title VII's anti-discrimination provision makes it unlawful for an employer to discriminate against any individual with respect to "compensation, terms, conditions, or privileges of employment" or to "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of such individual's race. 42 U.S.C. § 2000e--2(a). To prevail under Title VII, the plaintiff's claims must meet the burden-shifting allocation and order of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Texas Dept. of Cmty.Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The plaintiff carries the initial burden of establishing a prima facie case of racial discrimination by a preponderance of the evidence. Hicks, 509 U.S. at 506. Should the plaintiff succeed in proving racial discrimination, the burden of evidence production shifts to the defendant to articulate some legitimate, nondiscriminatory purpose for its adverse employment actions. Id. at 506-07. If the defendant carries this burden, the plaintiff must then prove that the defendant's proffered reasons for the actions taken were not its true reasons, but rather were pretext for the defendant's discriminatory purpose. Id.

The "ultimate burden of persuading the trier of facts" rests at all times with the plaintiff. Burdine, 450 U.S. at 253. To survive a motion for summary judgment where the defendant-employer has met its evidentiary burden of articulating a legitimate, nondiscriminatory purpose for its actions, the plaintiff must provide direct or circumstantial evidence of pretext with sufficient probative force from which the fact finder could reasonably either "(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998).

Actions that violate Title VII may be overt or facially neutral. Cardenas v. Massey, 269 F.3d 251, 261 (3d Cir. 2001). Facially neutral conduct need not be accompanied by overt racial harassment to establish a violation: all that is required is the plaintiff demonstrate (1) race or ethnicity was a substantial motivating factor in the adverse employment action; and (2) had the plaintiff been of a different race or ethnicity, the defendant would not have discriminated against the plaintiff. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996).

Title VII racial discrimination claims may be based on intentional discrimination, as indicated by disparate treatment. Ricci v. DeStefano, 557 U.S. ---, 129 S. Ct. 2658, 2672 (2009). Such discrimination occurs where an employer treats an individual less favorably than others because of a protected trait. Id. (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-86 (1988)). A plaintiff who claims intentional discrimination based on disparate treatment must prove that the defendant had "a discriminatory intent or motive" for the adverse employment action. Id. (citing Watson, 487 U.S. at 986). Facially neutral employment practices that disparately treat minorities are "discriminatory in operation" where they are not related to job performance or the employment in question. Id. at 2672-73 (citing Griggs v. Duke Power Co., 401 U.S. 424, 431-32 (1971)). To establish an intentional discrimination claim where the defendant-employer has met its burden of establishing a relationship between its practice and the employment, the plaintiff is required to articulate a legitimate alternative that would serve the employer's purpose yet result in less discrimination. Id. at 2673 (citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975)).

Racial discrimination claims under Title VII are also cognizable when founded upon a hostile work environment, based on the notion that workplace discrimination can alter the terms and conditions of a plaintiff's employment. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64-65 (2006). To succeed on hostile work environment grounds in a racial discrimination suit, the plaintiff must prove: (1) he suffered intentional discrimination because of his race; (2) the discrimination he suffered was severe and pervasive; (3) the discrimination detrimentally affected him; (4) the discrimination would detrimentally affect a reasonable person of the same race in the same position; and (5) the existence of respondeat superior liability. See Davis v. City of Newark, 285 F. App'x 899, 902 (3d Cir. 2008). Factors that may indicate an actionable hostile work environment include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). "[O]ffhanded comments[] and isolated incidents (unless extremely serious) are not sufficient to sustain a hostile work environment claim. Rather, the conduct must be extreme to amount to a change in the terms and conditions of employment."

Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (citations and internal quotation marks omitted). When ascertaining whether the severity and pervasiveness of alleged discrimination are sufficient to constitute a hostile work environment, the court looks at the totality of the circumstances rather than concentrating on individual incidents. Peace-Wickham v. Walls, 409 F. App'x 512, 519 (3d Cir. 2010).

An employer is vicariously liable for racially discriminatory acts by supervisory employees who create a hostile work environment amounting to employment discrimination. Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998). Where a co-worker is the source of alleged harassment, a plaintiff must establish that the employer did not provide reasonable channels for complaints or failed to take appropriate remedial actions once harassment had been alleged. Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001) (citing Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293-94 (3d Cir. 1999)), abrogated in part on other grounds by Burlington N., 548 U.S. at 67.

2.Plaintiffs' Claims

Here Plaintiffs allege racial and ethnic discrimination by Defendant City of Philadelphia on the basis of disparate treatment and hostile work environment. See Pls.' Second Am. Compl. ¶ 61-62. Plaintiffs claim the City took discriminatory adverse action against Plaintiffs by: (1) failing to remedy, and thus condoning, a hostile work environment permitting ethnic slurs, offensive gags, and the stealing of an officer's handgun; (2) denying overtime hours; (3) changing work assignments; (4) failing to pay for work performed; and (5) "other discriminatory actions." Id. ¶ 62. Plaintiffs claim that the City's actions were motivated by an intent to discriminate, and that Plaintiffs suffered because of such adverse actions. Id. ¶¶ 62, 64. Defendants counter by claiming that Plaintiffs have failed to meet their burden of establishing intentional discrimination based on racial animus and of establishing a severe and pervasive hostile work environment. (Defs.Mot.Summ. J. at 10-11.)

Even when viewing all facts in the light most favorable to Plaintiffs, Plaintiffs' employment discrimination claims cannot survive Defendants' summary judgment motion. A reasonable jury could find from the record no evidence of intentionally discriminatory disparate treatment against Plaintiffs because of their race or ethnicity, or of a severe and pervasive hostile work environment. Even if Plaintiffs could prove a prima facie case of intentional discrimination or hostile work environment, the City has articulated legitimate, nondiscriminatory purposes for its adverse employment actions; Plaintiffs have not indicated any pretext in the City's conduct. As such, Plaintiffs have not shown any genuine issue of material fact, and Defendants' Motion for Summary Judgment will be granted on Count One.

To prevail in their employment discrimination claim, Plaintiffs must first establish a prima facie case that the City (1) discriminated against Plaintiffs with respect to compensation, terms, conditions, or privileges of employment; (2) deprived Plaintiffs of employment opportunities; or (3) otherwise adversely affected Plaintiffs' status as employees because of their race or ethnicity. This claim fails both as an intentional discrimination claim and as a hostile work environment claim.

a.Intentional Discrimination

There is no evidence from the record to indicate the City overtly discriminated against Plaintiffs. Plaintiffs acknowledge that there is no direct evidence of any hostile comments about Alers' race or ethnicity, and Plaintiffs present no evidence indicating any hostile comments about Szustowicz's race or ethnicity either. Plaintiffs instead rely on facially neutral actions to allege racial discrimination, claiming that the City was aware of but declined to remedy such discrimination. Plaintiffs assert this conduct by the City was motivated by racial animus, but fail to prove such discriminatory intent for any of the City's employment actions.

Plaintiffs allege that the City exhibited racially motivated discrimination by tolerating the hostile gags of Plaintiffs' co-workers. Defendants Kerwin and Hood placed Alers' desk on milk crates and glued pennies and a battery to the desk, which Alers asserts were derogatory references to his race. Alers claims the City did not investigate this matter but provides no evidence showing a lack of investigation. Defendants, on the other hand, offer evidence that Defendants Jones, Kerwin, and Hood were indeed investigated by the city for these "pranks," and that each was disciplined for his conduct. (Defs. SOF ¶ 66 (citing Seaborough Dep. (Dkt. No. 62, Exh. 1) 46:18-49:13); Defs. SOF ¶ 68 (citing Ramsey Dep. (Dkt. No. 62, Exh. 11) 75:20-76:8).) Although Jones' discipline was later overturned by an arbitrator and the City ...

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