United States District Court, E.D. Pennsylvania
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.
facts as set forth in this section are taken from the
allegations in plaintiff's Second Amended Complaint.
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. ¶
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.
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. Id. ¶¶
53, 57. Thereafter, City proceeded with the $12 million
contract with Axon, despite plaintiff's objections.
Id. ¶ 53.
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.
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.
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.
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).
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.