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Brennan v. City of Philadelphia

United States District Court, E.D. Pennsylvania

July 25, 2019

CHARLES BRENNAN, Plaintiff,
v.
CITY OF PHILADELPHIA, MAYOR JAMES F. KENNEY, CHRISTINE DERENICK-LOPEZ, and JANE SLUSSER, Defendants.

          MEMORANDUM

          DuBois, J.

         I. INTRODUCTION

         Plaintiff Charles Brennan asserts that he was terminated from his position with the City of Philadelphia for voicing concerns over several perceived unlawful practices, including racially discriminatory hiring and violation of public contract award requirements. Plaintiff asserts retaliation claims against defendants the City of Philadelphia, Mayor James Kenney, and City officers Christine Derenick-Lopez and Jane Slusser pursuant to 42 U.S.C. § 1981; Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000(e) et seq.; the First Amendment pursuant to 42 U.S.C. § 1983; the Pennsylvania Whistleblower Law, 42 Pa. Cons. Stat. §§ 1421 et seq.; the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. §§ 951 et seq.; and the Philadelphia Fair Practices Ordinance (“PFPO”), Phila. Code §§ 9-1101 et seq. Presently before the Court is Plaintiff's Motion to Compel Defendant Mayor James Kenney's Deposition. For the reasons that follow, the Motion is denied.

         II. BACKGROUND

         The facts as set forth in this section are taken from the allegations in plaintiff's Second Amended Complaint.

         In January 2016, plaintiff was hired as the City of Philadelphia's (“City”) Chief Information Officer (“CIO”), responsible for overseeing technology matters for City. See Second Am. Compl. (“SAC”) ¶¶ 18-19. As CIO, he reported to, and was supervised by, Christine Derenick-Lopez, City's Chief Administrative Officer. Id. ¶ 20. Over the next two years, plaintiff reported a series of concerns to defendants, including (1) racially discriminatory hiring, (2) the City's failure to follow public bidding process requirements, (3) the City's failure to act on a City contractor's missed deadlines, and (4) requests that plaintiff attend gender sensitivity training. Plaintiff was ultimately terminated in January 2018. Id. ¶ 21.

         In November 2015, after Mayor James Kenney was elected, he began a hiring initiative to diversify City's workforce. Id. ¶¶ 17, 23. To implement this initiative, City's Chief Diversity Officer, Nolan Atkinson, met with plaintiff multiple times in 2016 and 2017 to address the racial composition of plaintiff's office. Id. ¶ 33. At these meetings, Atkinson informed plaintiff, inter alia, that his department was “too white” and directed plaintiff to diversify his hires to reflect the demographics of Philadelphia-namely, by hiring more African-American and Hispanic individuals. Id. ¶¶ 33-34. Believing that these hiring directives were unlawfully discriminatory, plaintiff complained to Derenick-Lopez, who was required by her duties as Chief Administrative Officer to communicate concerns of discrimination to defendants Kenney and his Chief of Staff, Jane Slusser. Id. ¶¶ 35-36. These complaints were not addressed by any party. Id. ¶ 37. Instead, Derenick-Lopez “suggested at times” that it would be “good for [his] career” if plaintiff hired more minorities. Id. ¶ 38. On occasion, Derenick-Lopez told plaintiff it was a shame the best candidate was white, because they needed to hire an African-American for the position. Id. ¶ 42. Plaintiff continued to object to these hiring practices in the months leading up to his termination in January 2018. Id. ¶ 44.

         Second, plaintiff alleges retaliation for complaints he made about a contract that City entered with Axon Enterprises, Inc., in 2017 to purchase 4, 000 body cameras for City patrol officers. Id. ¶¶ 47-48. Plaintiff had several concerns about the contract with Axon, including the substantial cost, violation of public bidding process requirements by City, City's failure to conduct due diligence and a cost-benefit analysis, and City's plan to bypass plaintiff's approval. See Id. ¶ 50. Accordingly, plaintiff objected to the agreement, and was initially able to prevent City from proceeding with it. See Id. In addition, plaintiff reported his concerns to Ellen Kaplan, City's Chief Integrity Officer, who communicated them to Kenney and Slusser. Id. ¶ 55. Plaintiff was met with animosity from City operations management for his complaint and was “warned” for his objection to the Axon contract.[1] Id. ¶¶ 53, 57. Thereafter, City proceeded with the $12 million contract with Axon, despite plaintiff's objections. Id. ¶ 53.

         Third, plaintiff alleges retaliation for his complaints about Comcast's failure to meet certain deadlines required by its cable-franchise agreement with City. Comcast had a contract with City that required it to perform work, including repairing dangling wires and providing proper grounding, within certain deadlines. Id. ¶¶ 60-61. According to the contract, if Comcast missed any of its deadlines, City was entitled to compensation. Id. ¶ 61. Comcast claimed it was compliant with all deadlines as of December 31, 2017. Id. ¶ 62. However, plaintiff believed Comcast had not met its deadlines and that it sought to avoid penalties by designating more than 250, 000 properties that it failed to service as “denial of access” properties, meaning Comcast was unable to access the properties for remediation. Id. Worried the City would lose thousands of dollars by ignoring these violations, plaintiff raised this issue with Derenick-Lopez at one of their weekly meetings. Id. ¶¶ 64-65. Derenick-Lopez directed plaintiff to “take it easy” on Comcast, to not upset Comcast, and to go along with its “denial of access” designations. Id. ¶ 64. Derenick-Lopez later informed plaintiff that his complaint “caused a great deal of concern” in the Mayor's office and that Kenney and Slusser did not want plaintiff to take any action that would upset Comcast. Id. ¶¶ 67-68.

         Finally, plaintiff alleges retaliation for his complaints about being asked to attend sensitivity training. In fall 2017, Derenick-Lopez told plaintiff he was insensitive to gender in the workplace, citing a few of plaintiff's comments as examples, and recommended that plaintiff undergo sensitivity training. Id. ¶ 70. Plaintiff believed Derenick-Lopez's request was unfair, retaliation for his objections to City's discriminatory racial hiring, and an attempt to “set the foundation” for his eventual termination. See Id. ¶ 70. Plaintiff complained to the Deputy Chief Administration Officer of the Human Resources Department, Jackie Linton, that the City was discriminating by only asking white male management to attend sensitivity training. Id. ¶ 72. In December 2017, Derenick-Lopez again suggested that plaintiff attend sensitivity training, and plaintiff again expressed his belief that the request was discriminatory, retaliatory, and unwarranted. Id. ¶ 73.

         On or about January 12, 2018, plaintiff was called into a meeting with Derenick-Lopez and Slusser and was terminated. Id. ¶ 74. Derenick-Lopez and Slusser told plaintiff that Kenney acquiesced in plaintiff's termination. Id. Plaintiff had not previously received any formal discipline. Id. ¶ 75. Plaintiff was offered a severance package in exchange for waiving all discrimination and retaliation claims against City, but he declined. Id. Employees of City who are terminated for cause or misconduct are not entitled to severance compensation under City policies. Id. ¶ 76. Thereafter, Kenney's spokesperson communicated to the press that Kenney let plaintiff go to seek a “change in leadership.” Id. ¶ 74.

         Plaintiff filed the Complaint on April 4, 2018 (Document No. 1), asserting claims against the City of Philadelphia, Kenney, Slusser, and Derenick-Lopez. Plaintiff filed the First Amended Complaint on June 18, 2018 (Document No. 5). On March 29, 2019, plaintiff filed the Second Amended Complaint (Document No. 21), asserting retaliation claims against all defendants under § 1981 (Count I), the First Amendment through § 1983 (Count III), the Pennsylvania Whistleblower Law (Count IV), the PHRA (Count V), and the PFPO (Count VI), as well as a Title VII retaliation claim against the City of Philadelphia (Count II).

         On May 1, 2019, plaintiff filed a motion to compel the deposition of Kenney (Document No. 23). On May 7, 2019, defendants responded to the motion (Document No. 24), and on May 24, 2019, plaintiff filed a reply (Document No. 26). The motion is thus ripe for decision.

         III. ...


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