United States District Court, E.D. Pennsylvania
DIANE M. SCHWEIZER
CITY OF PHILADELPHIA
P. HART, UNITED STATES MAGISTRATE JUDGE.
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.
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.
Standard for Summary Judgment
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.
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.
Schweitzer's Employment History With the City
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.
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
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
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.
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.
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).
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
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.
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.
February 17, 2016, at 10:03 p.m., Schweizer sent Sawyer an
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); 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
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.
Email, attached to Motion as Exhibit 14.
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.
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.
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.
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.
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:
It was a pleasure meeting you last week and welcome to
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.
Email of June 9, 2016, attached to Motion as Exhibit 16.
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.
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.
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.
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 ...