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Schweizer v. City of Philadelphia

United States District Court, E.D. Pennsylvania

July 9, 2019

DIANE M. SCHWEIZER
v.
CITY OF PHILADELPHIA

          OPINION

          JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

         In this action, Diane M. Schweizer, an employee of the City of Philadelphia, has sued the City of Philadelphia (“the City”), alleging discrimination on the basis of sex in violation of the Civil Rights Acts of 1964 (Title VII), and the Pennsylvania Human Rights Act. She alleges that she was subjected to a hostile work environment and retaliation.

         The City has now filed a motion for summary judgment seeking dismissal of all counts. For the reasons set forth below, this motion will be granted.

         I. Standard for Summary Judgment

         Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must present more than mere bare assertions, conclusory allegations, or suspicions to show the existence of a genuine issue. Jutrowski Township of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). It is not sufficient to reassert factually unsupported allegations contained in the pleadings. Anderson v. Liberty Lobby, 466 U.S. 242, 249 (1986); Celotex Corp. v. Catrett, supra, at 325.

         When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987). Nevertheless, Rule 56 “mandates the entry of summary judgment ... 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 Corp. v. Catrett, supra, at 323.

         II. Factual Background

         A. Schweitzer's Employment History With the City

         The parties agree that Schweizer is a woman who has been continually employed by the City of Philadelphia Fire Department (“Fire Department”) since May, 1995, and remains employed there today. Defendant's Answer at ¶17, Defendant's Motion for Summary Judgment (“Motion”), at ¶172. She has a Bachelor of Science Degree in mathematics, with a minor in business administration, and a Masters' Degree in management and emergency medical services from Hahnemann University. Defendant's Motion at ¶1. She also studied for two semesters at the London School of Economics, and later obtained a certificate in Project Management. Id. at ¶4, Plaintiff's Response to Defendant's Motion for Summary Judgment (“Response”) at ¶4.

         The parties also agree that the Fire Department was, since its “earliest beginnings” a “male-dominated department.” Motion at ¶13. The City maintains, however, that it prohibits discrimination or harassment on the basis of sex, and that the Fire Department has policies forbidding retaliating against an employee for having made a complaint of discrimination or harassment. Motion at ¶¶8-10. Schweizer admits that the City and the Fire Department “espouse” such policies. Response at ¶8-10.

         Schweizer was first employed by the Fire Department as a paramedic. Motion at ¶16, Response at ¶16. She was promoted to the rank of Lieutenant in 1999, and was then promoted in 2004 to the rank of Captain. Motion at ¶17, Response at ¶17. In 2007, Schweizer became Battalion Chief in Emergency Services. Motion at ¶18. In 2014, she attained the rank of Deputy Commissioner of Administrative Services. Motion at ¶19, Response at ¶19. According to Schweizer, she was the first woman to hold the ranks of Captain, Battalion Chief, and Deputy Chief. Complaint at ¶21.

         In June, 2014, Schweizer was appointed Deputy Commissioner of Administrative Services. Complaint at ¶23, Motion at ¶27. The parties agree that Schweizer was the first woman Deputy Commissioner at the Fire Department. Motion at ¶27. Her predecessor in this position was a man named David Beatrice, who was not a uniformed officer like Schweizer. Motion at ¶31, Response at ¶31.

         According to Schweizer, she was selected for the position of Deputy Commissioner by then-Mayor of Philadelphia Michael Nutter, and his Chief of Staff, Everett Gillison. Complaint at ¶24, Deposition of Diane Schweizer, (“Schweizer Deposition”) attached to the Motion as Exhibit 1, at 53-56. She has testified that Gillison asked her to meet with him in his office on May 1, 2014. Id. at 54. He asked her whether she would be interested in the position, telling her that he and Mayor Nutter “wanted to integrate women into the higher ranks of the Fire Department” and that she was more than qualified to hold the position of Deputy Commissioner of Administrative Services, based on her education and experience. Id. at 54-55. Schweizer told Gillison that she was interested in the position. Id.

         Schweizer maintains that she was subjected to a hostile work environment in the position of Deputy Commissioner of Administrative Services. Complaint at ¶26. She alleges that she was repeatedly excluded from management meetings which were relevant to her work responsibilities. Id. at 26(a). She also points to the fact that she was the only Deputy Commissioner with no “command” function to perform during the Pope's September, 2015, visit to Philadelphia, and was excluded from the planning and operational meetings pertaining to this visit. Id. at 26(f).

         The following incidents are also said by Schweizer to have contributed to the hostile work environment she has alleged: (a) there was no locker room or bathroom in the building “for women of her rank”, although there was a woman's restroom she could share with female staff; (b) she was assigned to share a one-desk office with David Beatrice for three months, whereas the three male Deputy Commissioners had offices of their own; (c) she had less support staff than the three male Deputy Commissioners; (d) she was given an old and damaged Ford Taurus, while the three male Deputy Commissioners had new Ford Expeditions; (e) she was “denied and given less recognition and respect at staff meetings, photo shoots and press conferences” than the male Deputy Commissioners were given. Complaint at ¶12.

         It is uncontested that Schweizer raised complaints with then-Commissioner Derrick Sawyer about much of this, including her exclusion from meetings, the lack of a women's locker room, her need to share an office, her level of staffing, and her vehicle. Motion at ¶¶ 57, 68, 77, 85, 91.

         Equally, it is undisputed that, in response to complaints from Schweizer, Commissioner Sawyer gave her his locker, in which she installed a lock. Sawyer Deposition at 91; Deposition of Derrick Sawyer, attached to Motion as Exhibit 5, at 146. Sawyer also gave Schweizer his Ford Expedition when he obtained a new vehicle in November. Schweizer Deposition at 106-7. Further, Schweizer testified that David Beatrice was moved out of her office shortly after she complained about the situation to Sawyer. Id. at 88-89.

         On February 17, 2016, at 10:03 p.m., Schweizer sent Sawyer an email stating:

         Commissioner:

First, thank you for the opportunity to serve as Deputy Commissioner. I was the first and only female to hold the position. However, the time has come for me to leave. I do not like the way I am being treated and undermined. I can cite many examples, but I will only list a few: 1. my role during the Papal visit (assigning a Deputy Commissioner to the EOC when my peers had roles as Incident Commands); 2. the way we have to sit/stand (Car 2, 3, 4, and 5 are all equal rank yet I as Car 5 am always last);[1] 3. I am the only Deputy Commissioner without an assistant/executive chief; and 4. Car 3 disrespected me and has spoken inappropriately to me on several occasions, which was witnessed by others on the Executive team and yourself.
I have always given 100% and more. I was responsible for all the hiring, reducing OT, applying for the SAFER grant, etc. I make many decisions based on information I currently have. In regards to Jeanette's promotion, I thought it was inappropriate to discuss it while in another meeting. If given the opportunity to finish the explanation, I would have told you that the situation was in the process of being corrected. What you do not know is that on Friday, after I obtained all the information, I asked Jeanette to come to my office and she refused. For the record, the promotion was processed today.
Effective 02/29/16, (beginning of a pay period), I am resigning my position as Deputy Commissioner and will return to my Civil Service Rank. Please advise of my shift and where to report on 02/29/16.
I have vacation time that I have to use and am requesting to use it next week to handle some personal issues.
Thank you.

         Schweizer Email, attached to Motion as Exhibit 14.

         The second paragraph of this email refers to an incident which Schweizer testified at her deposition was the “final straw” in her decision to quit her job. Schweizer Deposition at 143. According to Schweizer, Sawyer turned to her in the middle of a meeting, earlier in the day on February 17, 2016, and ordered her to promote the secretary of one of the Fire Chiefs, even though she had explained to the Fire Chief that the promotion was only available to the individual if she left her job as his secretary and “went onto personnel.” Id. at 144-5. She testified: “This continued behavior of these Chiefs going around me and going to Sawyer, it weakened me as a Deputy Commissioner in the Fire Department because people viewed me then that they could just go around me and then he would undo whatever it was that I was doing.” Id. at 146.

         Commissioner Sawyer did not respond to Schweizer's email. Sawyer Deposition at 126. On February 26, 2016, he issued a General Memorandum announcing that the Office of the Deputy Commissioner of Administrative Services would remain vacant until further notice, and that Schweizer would become the Fire Paramedic Deputy Chief for EMS Administration. General Memorandum No. 16-20, attached to Motion as Exhibit 15.

         Schweizer argues that, at her new job, she “faced similar mistreatment and retaliation for her prior complaints of discrimination in her position as Deputy Chief for EMS Administration.” Complaint at ¶32. In her Complaint, she specifies: (a) on her arrival at her new job location, there was no office available for her for two weeks; (b) she was not permitted to work compensatory time, unlike other Deputy Chiefs; (c) two male Battalion Chiefs who technically reported to her repeatedly contacted the Deputy Commissioner, bypassing her, and - when informed - the Deputy Commissioner did not put an end to this; (d) when the EMS unit was relocated in 2017, to the Fire Administration Building where she had previously worked as a Deputy Commissioner, she was again once again compelled to share an office for a month, this time with Chief Deputy Loesch; (e) there was still no women's locker room in the Fire Administration Building in 2017; and (f) her secretary and her Captain of EMS Complaints were transferred without any discussion with her. Complaint at ¶33, and Schweizer Deposition at 161, 177, 187, 189.

         Upon one occasion when Schweizer was sharing an office, she opened the office door to a conversation between Chief Loesch and Deputy Commissioner Wilson about “how the higher you go up in rank, the more complex it gets between the sheets.” Schweizer Deposition at 182. Schweizer quickly left the office, and when she returned a few minutes later, the office door was locked. Id.

         On May 16, 2016, Derrick Sawyer was replaced as Fire Commissioner by Adam Thiel. Thiel Deposition, attached to Motion as Exhibit 6, at 5. On June 9, 2016, Schweizer sent the following email to Commissioner Thiel:

Commissioner:
It was a pleasure meeting you last week and welcome to Philadelphia.
I stepped down from my previous position as Deputy Commissioner due to a hostile work environment. However, since I returned to my rank of Deputy Chief, nothing has changed. I am requesting a meeting with you to discuss my current job duties and working conditions.
Thank you for your time.
Diane Schweizer
Deputy Chief.

         Schweizer Email of June 9, 2016, attached to Motion as Exhibit 16.

         Commissioner Thiel responded to Schweizer by e-mail on June 10, 2016. Adam Thiel Email of June 10, 2016, attached to Defendants' Motion as Exhibit 17. He offered to meet with Schweizer at noon the same day. Id. Schweizer testified at her deposition that, at that meeting, she told Commissioner Thiel about her inability to earn “comp time”, and about “the Chiefs going around” her. Schweizer Deposition at 202.

         When asked: “Did you mention that you were being subjected to a hostile work environment based on your gender?” Schweizer responded: “No.” Id. at 202-3. When asked: “Did you say anything to give him an inkling that you were complaining that you were being mistreated because you were a female?” she also replied: “No.” Id. at 203. Nor did she tell him that she believed that she was being subject to retaliation. Id. at 203-4.

         According to Schweizer, Commissioner Thiel essentially pleaded ignorance of the facts surrounding her complaints based on his only having been in his job for 26 days. Id. at 202. Thiel, however, testified at his deposition that, in response to Schweizer's complaint about the behavior of her direct reports, he “reminded her that they were her - her direct reports and if there was a performance issue, that she should manage that and document it as needed.” Deposition of Adam Thiel, attached to the City's Motion as Exhibit 6 at 54.

         Commissioner Thiel also testified that Schweizer had requested to be more involved with the meeting of the Democratic National Convention that took place in Philadelphia. Id. at 50. He stated: “And I verbally directed the Deputy Commissioner for ...


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