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Jerome v. Philadelphia Housing Authority

United States District Court, E.D. Pennsylvania

January 13, 2020

MOISE JEROME
v.
PHILADELPHIA HOUSING AUTHORITY, et al.

          MEMORANDUM

          BARTLE, J.

         Plaintiff Moise Jerome (“Jerome”) brings this action against defendants the Philadelphia Housing Authority (“PHA”), PHA Police Chief Joseph Marker (“Marker”), and several John and Jane Doe defendants alleging racial and gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Pennsylvania Human Relations Act, 43 Pa. Stat. §§ 951 et seq., and the Philadelphia Fair Practices Ordinance, Phila. Code §§ 9-1100 et seq. Jerome also brings claims for deprivation of his equal protection and procedural due process rights under the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. §§ 1981 and 1983 and for retaliation and deprivation of his rights to free speech and association under the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983.

         Before the court is the motion of defendants for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

         I

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute is genuine if the evidence is such that a reasonable factfinder could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). We view the facts and draw all inferences in favor of the nonmoving party. See In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).

         Summary judgment is granted where there is insufficient record evidence for a reasonable factfinder to find for the nonmovant. See Anderson, 477 U.S. at 252. “The mere existence of a scintilla of evidence in support of the [nonmoving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for [that party].” Id. In addition, Rule 56(e)(2) provides “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for the purposes of the motion.” Fed.R.Civ.P. 56(e)(2).

         II

         The following facts are undisputed. PHA is the nation's fourth largest public housing authority, owning more than 14, 000 housing units and serving nearly 80, 000 Philadelphians. It maintains its own police department. Jerome was hired by PHA as a police officer on April 21, 2017 and was sworn in on July 5, 2017. Defendant Marker was named as Acting Chief of the PHA Police on June 14, 2017 following the resignation of Chief Branville Bard.

         During the relevant time frame, PHA had in effect PHA Police Department (“PHA-PD”) Directive 41, “Vehicular Pursuits, ” which provides in pertinent part:

1. An officer is justified in initiating a vehicular pursuant only when he/she is:
a. In close proximity to a suspect vehicle and believes as pursuit is necessary to prevent the death or serious bodily injury of another person, or
b. In close proximity to a suspect vehicle and believes BOTH:
1) The pursuit is necessary to effect the arrest or prevent escape, AND
2) The officer has probable cause to believe that the person being pursued has committed or attempted a forcible felony OR, has probable cause to believe that the person being pursued possesses a deadly weapon, other than the vehicle itself.
2. In all other circumstances initiating a vehicular pursuit is strictly prohibited. Accordingly, initiating a pursuit solely for stolen vehicles and traffic violations, including Driving Under the Influence (DUI), is strictly prohibited.

         The policy defines a vehicular pursuit as “[t]he use of a motor vehicle to chase, follow, or go after a vehicle that has refused to stop.” Directive 41 further provides that officers must notify PHA-PD via radio of a pursuit. It also states that “all sworn personnel involved in a pursuit in any manner” will complete and submit within three days a “Pursuit Memorandum, ” the form for which is attached as Exhibit A to the Directive. In addition to the PHA-PD Pursuit Memorandum, an officer involved in a pursuit must submit to the Philadelphia Police Department (“PPD”) an incident report known as a “75-48” and also must provide to the Pennsylvania State Police a “Pennsylvania Police Pursuit Report.” Jerome received a copy of Directive 41 and signed a written acknowledgment of his receipt on July 11, 2017.[1]

         The PHA-PD also maintains a Disciplinary Code that regulates the conduct of PHA-PD officers and other employees. Article I of the Disciplinary Code identifies various conduct that is unbecoming of a PHA-PD employee, including “[k]knowingly and willfully making a false entry in any Department record or report.” Article V delineates conduct that constitutes neglect of duty, including “[f]ailure to make required written report” and “[f]ailure to comply with any Chief of Police's orders, directive, memorand[a], or regulation; or any oral or written orders of superiors.” The Disciplinary Code in Article VII also describes conduct that constitutes motor vehicle violations including the “[f]ailure to follow Departmental procedures involving pursuit and/or emergency driving.” Under the Code, the PHA Chief of Police and Human Resources are permitted to impose discipline up to and including termination for disciplinary violations.

         During his employment, Jerome was a member of a union, the Fraternal Order of Housing Police. The union and the PHA had a collective bargaining agreement (“CBA”) in place during Jerome's employment. The CBA provides that except in the case of counseling and verbal warnings, an employee and the union shall be provided with written notice of intended discipline, including the offense alleged, the type and duration of the discipline, and the intended effective date of the discipline. In situations where the intended discipline is discharge, the employee shall receive a ten-day suspension with notice of the intent to discharge. The employee has an opportunity to file a grievance and have a hearing. The discharge does not become effective until the grievance procedure is completed or the parties otherwise resolve the matter.

         On July 13, 2017, Jerome was assigned to a patrol vehicle with PHA-PD officer Shania Baylis (“Baylis”). Baylis acted as the driver while Jerome was the recorder, that is, he was responsible for paperwork during the patrol. At approximately 1:28 p.m., Jerome and Baylis were sitting in their patrol vehicle at 55th and Vine Streets in Philadelphia when they witnessed a blue Jeep Cherokee run a stop sign. Baylis activated the patrol vehicle's lights and siren but the Cherokee did not stop. Baylis and Jerome proceeded to follow the Cherokee in their patrol vehicle to 53rd and Market Streets, where the Cherokee collided with two other cars. After the collision, the driver of the Cherokee exited the vehicle and started running. Jerome chased the driver on foot to 50th and Arch Streets, where he was apprehended. Neither Jerome nor Baylis notified PHA-PD via radio of the pursuit.

         Thereafter, Jerome returned to the scene of the accident where Baylis instructed him to complete a 75-48 Incident Report, which, as stated above, is a paper form used by the PPD as well as the PHA-PD. Plaintiff initially wrote the following on what he describes as a “rough draft” of the 75-48 Incident Report:

On 7/13/17 P/O Baylis #2081 and P/O Jerome #2111 was [sic] working in a marked vehicle reading 9610 working west division. At approximately 1:29 p.m. Officer Baylis and P/O Jerome was [sic] parked at 55th Vine intersection facing north when they spotted a blue Jeep Cherokee disregard a stop sign heading eastbound on Vine from 55th Street. As police activated her emergency lights and sirens in attempt to do a vehicle stop the operator of the Blue Jeep continued on driving Eastbound on Vine while making a sharp turn onto 54th Street heading South Bound from Vine Street. Both police officers went over City Radio and PHA Radio to advise them of the situation. Police lost sight of the vehicle on 54th Street going south from Vine Street. Police surveyed for the vehicle to keep city Radio advised of the Reckless driving. . . .

         Baylis then reviewed the 75-48 Incident Report and advised Jerome that it was too long. Jerome placed the draft in his book bag and started a second 75-48. On this second 75-48 Incident Report, Jerome wrote:

Pursuit - on above date and time and location P/O attempted to stop Below off[ender] because of a traffic violation off[ender] Refused to stop his MV P/O was able to keep off[ender] MV in site [sic]. Offender was observed By P/O running a stop light and subsequently crashed into two other MV.

         Jerome and Baylis's supervisor that day was Sergeant Jerome Darby (“Darby”). Darby was called to the scene of the accident where he spoke to PPD officers and learned that the incident was being coded as a vehicle pursuit by the PPD. Accordingly, he advised Jerome and Baylis that a PHA-PD Pursuit Memorandum was required. However, Darby never followed up to determine if either officer completed the Pursuit Memorandum. Darby appears to have submitted a memorandum describing the incident as a “vehicle stop” and “arrest.” Darby's version of the events states that Baylis and Jerome lost sight of the Cherokee and that the driver of the Cherokee was apprehended “[a]fter a short foot pursuit.” He did not mention any vehicle pursuit by Jerome and Baylis.

         Jerome delivered a paper copy of the 75-48 Incident Report to the PPD. Jerome concedes he did not complete a PHA-PD Pursuit Memorandum as required under Directive 41. Baylis was told to complete a PHA-PD Pursuit Memorandum but also did not do so. Baylis resigned her employment with PHA on December 17, 2017.

         On or about May 31, 2018, the driver of the car that was hit by the driver of the Cherokee pursued by Baylis and Jerome filed a personal injury lawsuit against PHA, Jerome, Baylis and others in the Court of Common Pleas of Philadelphia County.[2] Upon learning of the lawsuit, Marker requested that PHA's Office of Audit and Compliance (“OAC”) conduct an investigation regarding the incident.

         As part of the investigation, OAC interviewed Jerome as well as Baylis, Sergeant Darby, who was their supervisor on duty that day, Lieutenant Hakim Dunbar (“Dunbar”), the Lieutenant on duty that day, and several other PHA-PD officers. When asked by the OAC investigators why he was being interviewed, Jerome replied “I guess that pursuit that happened about, almost a year ago, July 13th.” He further admitted that on that day he and Baylis observed a blue Cherokee run a stop sign, they had activated the siren and lights of their patrol vehicle in an attempt to stop the fleeing car, the car had not stopped, and they had followed the car. He also stated that they had temporarily lost sight of the Cherokee but later found the Cherokee on 53rd Street backing up. Jerome was then shown the 75-48 Incident Report he had submitted to the PPD, which stated that ...


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