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Thomas v. City of Philadelphia

United States District Court, Third Circuit

September 30, 2013

LARRY THOMAS, Plaintiff,


Berle M. Schiller, J.

Larry Thomas sued the City of Philadelphia (“City”) for race-based employment discrimination pursuant to 42 U.S.C. § 1983 and the Pennsylvania Human Relations Act (“PHRA”), 42 P.S. § 951 et seq. Plaintiff worked for the Philadelphia Water Department (“PWD”), a department of the City, until his retirement in June, 2010. Plaintiff contends that his retirement was the result of racial discrimination by Defendant. Before the Court is Defendant’s Motion for Summary Judgment. For the following reasons, the Court grants Defendant’s Motion for Summary Judgment with respect to both of Plaintiff’s claims.


Plaintiff is an African-American man who was employed by the PWD. (Def.’s Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. [hereinafter Def.’s Undisputed Facts] ¶¶ 1-4.) He was hired as a semi-skilled laborer but had been promoted to the position of water distribution repair worker, which was his position when his employment with Defendant ended. (Id. ¶¶ 4-6.) Plaintiff was employed by Defendant for nearly twelve years and had been working as a repair worker in the PWD Shut-Off Unit for the five to ten years before his separation from Defendant. (Id. ¶ 6.)

During PWD’s “shut-off season, ” which runs from April through November, Plaintiff was responsible for visiting PWD customers and either collecting payment from them or shutting off their water service. (Id. ¶¶ 7-8.) Plaintiff would receive a list of names and addresses throughout Philadelphia and would visit each address before the end of the day. Plaintiff also performed “restoration” work, which required him to reconnect water service at customers’ homes. It was typical for employees in Plaintiff’s position to be required to sit and wait for possible restoration work during the day. (Pl.’s Answer to Def.’s Undisputed Facts [hereinafter Opp’n] ¶ 172.) Plaintiff was not required to notify anyone that he had completed his assigned daily tasks, and he often sat in front of his own home when he was waiting for calls about restoration work. (Def.’s Undisputed Facts ¶¶ 41-44.) Plaintiff believes that this conduct was authorized by his supervisor. (Id. ¶ 45.) Plaintiff also went to his home during his working hours to eat lunch and to use the restroom. (Id. ¶ 43.)

At the heart of this dispute are the circumstances surrounding Plaintiff’s retirement from PWD. On April 9, 2010, the Office of the Inspector General (“OIG”), which is empowered to investigate complaints regarding PWD employees, received a confidential complaint against Plaintiff. (Id. ¶¶ 17-20.) The complaint alleged that Thomas “comes home during the day in his PWD city vehicle and parks on his block and leaves it running for several hours. Thomas does personal errands, including going to the supermarket and picking up junk from the street and taking it to the salvage yard in his personal vehicle, while his city vehicle is parked on his block running for several hours at a time.” (Id. ¶ 20.) The complaint also included details such as Plaintiff’s license plate number, truck number, and home address. (Id.) The complaint was forwarded to the PWD human resources department, and then from Human Resources Manager Francis X. Meiers to Human Resources Associate Ivor Griffiths.

Griffiths investigated the complaint against Plaintiff. First, Griffiths spoke by phone with the confidential complainant, who stated that the complainant had observed Plaintiff at his house during business hours on at least three occasions. Based on this information, Griffiths conducted surveillance of Plaintiff during his working hours. Griffiths first visited Plaintiff’s neighborhood accompanied by Meiers, but they did not observe Plaintiff.[1] (Opp’n ¶ 31.) On May 27, 2010, Griffiths was accompanied on his second visit by Peter Terry, another human resources associate. The two observed Plaintiff in his PWD vehicle near his residence for approximately thirty minutes to one hour. (Id. ¶¶ 32-34.) Griffiths called Plaintiff’s supervisor, Ralph Allen, and instructed him to call Plaintiff and question him about his whereabouts. Allen called Plaintiff while Griffiths and Terry were in Plaintiff’s neighborhood observing his truck. Allen then told Griffiths that Plaintiff had reported that he was at a restoration job in a neighborhood other than his own. (Id. ¶¶ 35-37.) Therefore, Plaintiff was then suspended pending a pre-disciplinary hearing. Plaintiff had not been previously accused of misbehavior. (Opp’n ¶ 177.)

On May 28, 2010, PWD informed Plaintiff by mail that a pre-disciplinary hearing would be scheduled to investigate “allegations that during recent weeks [he had] been repeatedly at home while [he was] supposed to be working.” (Def.’s Mot. for Summ. J. Ex. 14.) The letter included boilerplate language informing Plaintiff that the PWD Commissioner received a recommendation that “severe disciplinary action be taken” against him, pending the resolution of the hearing. (Def.’s Undisputed Facts ¶¶ 53-55.) Plaintiff met with Jeff Gilliam, the business agent of his union, at the union offices on May 28, 2010. (Id. ¶ 56.) Gilliam coordinated with Griffiths in setting June 10, 2010, as the date for Plaintiff’s hearing. (Id. ¶ 59.) Plaintiff received a letter informing him of this date on June 9, 2010, and had not spoken with anyone from the union about this date. Therefore, Plaintiff had only one day’s notice about the date of the hearing, which is not typical for PWD pre-disciplinary hearings. (Opp’n ¶ 175.)

Griffiths was responsible for conducting the hearing, and Meiers would act as the hearing officer. (Def.’s Undisputed Facts ¶ 63.) As hearing officer, Meiers’s role was to consider to the evidence against Plaintiff and Plaintiff’s explanation or defense, to decide whether he believed that the charges were supported by the evidence, and to make a recommendation to the PWD Commissioner regarding whether Plaintiff should remain in his current position, or whether another action such as termination or demotion should be taken. (Id. ¶¶ 54-55, 68.) On the day of the hearing, Gilliam was late and spoke very briefly with Plaintiff before conferring with Meiers and Griffiths in the hearing room, in Plaintiff’s absence. (Id. ¶¶ 64-66.) Meiers advised Gilliam that he believed the evidence against Plaintiff was “very strong” but that he would hear the evidence before recommending a disciplinary action. (Id. ¶¶ 67-68.) Griffiths then advised Gilliam that the PWD would allow Plaintiff to voluntarily retire rather than proceed with the hearing and risk being fired. (Id. ¶ 70.)

After conferring with Meiers and Griffiths, Gilliam returned to the room where Plaintiff was waiting. Plaintiff requested a copy of the complaint against him, but Gilliam refused his request because the complaint listed the name of a confidential complainant. (Def.’s Undisputed Facts ¶ 74.) Meiers never lets employees see complaints against them before the commencement of a pre-disciplinary hearing. (Id. ¶ 171.) Gilliam then told Plaintiff that Plaintiff had been given the option to “be fired or retire.” (Id. ¶ 77.) Plaintiff told Gilliam that he chose to retire, and Gilliam re-entered the hearing room, accompanied by Plaintiff, and reported this decision to Griffiths and Meiers. (Id. ¶¶ 78-80.) No hearing was held, and Plaintiff’s retirement became effective on June 10, 2010. (Id. ¶¶ 81-84.)

After his retirement, Plaintiff contacted Griffiths asking to be reinstated. (Id. ¶ 85.) Griffiths did not respond to this request. (Id. ¶ 86.) Plaintiff left several messages for Gilliam in which Plaintiff requested that Gilliam file an appeal on his behalf, but these calls were not returned. (Id. ¶¶ 91-92.) Plaintiff contacted an attorney and the president of his union about the matter, but he ultimately received assistance from neither. (Id. ¶¶ 93-104). The Civil Service Regulations provide that an employee alleging that his resignation was involuntary may request a hearing within thirty days of the resignation. (Id. ¶ 88.) On September 19, 2010, Plaintiff filed an appeal with the Civil Service Commission on the grounds that his retirement had been involuntary. (Id. ¶ 106.) A hearing was held about the timeliness of his appeal on March 16, 2011, during which Plaintiff argued that he had filed an appeal on June 28, 2010. (Id. ¶¶ 113-18.) On March 31, 2011, the Commission dismissed Plaintiff’s appeal as untimely. (Id. ¶ 124.)

On November 24, 2010, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (“PHRC”) and the Equal Employment Opportunity Commission (“EEOC”). Plaintiff claimed that he had been constructively discharged because of his race. (Id. Ex. 22.) Plaintiff subsequently filed the Complaint in this matter, alleging that the City discriminated against Plaintiff on the basis of his race in violation of 42 U.S.C. § 1983 and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. On August 19, 2013, Defendant moved for summary judgment.


Summary judgment is appropriate when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 247-48 (1986). When the moving party does not bear the burden of persuasion at trial, it may meet its burden on summary judgment by showing that the nonmoving party’s evidence is insufficient to carry its burden of persuasion. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Thereafter, the nonmoving party demonstrates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable factfinder to find for the nonmoving party at trial. Anderson, 477 U.S. at 248. In reviewing the record, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d ...

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