FIOCCA v. CITY OF PHILADELPHIA et al

Filing 8

MEMORANDUM AND/OR OPINION ON DEFENDANT'S MOTION TO DISMISS. SIGNED BY HONORABLE JOHN P. FULLAM ON 7/13/2010. 7/14/2010 ENTERED AND COPIES E-MAILED.(sg, )

FIOCCA v. CITY OF PHILADELPHIA et al

Doc. 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MICHAEL FIOCCA v. CITY OF PHILADELPHIA : : : : : CIVIL ACTION

NO. 10-1289

MEMORANDUM Fullam, Sr. J. July 13, 2010 He alleges

Plaintiff is a Philadelphia police officer.

that on September 24, 2007 and on November 10, 2007, he saw and objected to religious postings in the police station. The

complaint offers no further description of the postings. Plaintiff alleges that in retaliation for his objections a supervisor began to harass him by, for example, ordering him to a take a box down to the lab then slapping it out of his hands, denying a request to transfer, and giving negative evaluations. These actions happened between December 2007 and April 2009. On April 7, 2009, Plaintiff filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). The EEOC

issued a right-to-sue notice on December 23, 2009, and Plaintiff timely filed a complaint, which the defendants moved to dismiss. Plaintiff filed an amended complaint, against the City of Philadelphia only, which has renewed the motion to dismiss. To state a claim, the "employee must have an `objectively reasonable' belief that the activity s/he opposes constitutes unlawful discrimination under Title VII. To put it

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differently, if no reasonable person could have believed that the underlying incident complained about constituted unlawful discrimination, then the complaint is not protected." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 322 (3d Cir. 2008). In Wilkerson, the court held that although the

plaintiff's claim that she was forced to participate in a libations ceremony that violated her Christian beliefs was likely not enough to give the defendant notice of what the ceremony was or why it was religious, the plaintiff's detailed allegation that the ceremony forced her to engage in ancestor worship against her Christian beliefs sufficed. Here, Plaintiff has not described

the documents to which he objected or how they constituted unlawful discrimination. Defendant notice. In short, the complaint fails to give

Nor does Plaintiff allege facts that would

link the alleged retaliation to his complaints about the postings, particularly given significant gaps in time between the complaints and the alleged retaliatory actions. The complaint

will be dismissed, and Plaintiff given an opportunity to amend the complaint. Defendant also argues that many of the acts are timebarred because the administrative complaints were filed more than 300 days after many acts took place. See 42 U.S.C. 2000e-5(e)

(2006). Although equitable exceptions do apply to this 300-day limit, see West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d

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Cir. 1995), a denial of transfer, failure to promote, and refusal to hire are all discrete acts, each of which alerts a plaintiff to adverse action and each of which starts the statute-oflimitations clock, thereby barring the use of an equitable exception. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). In May 2008, Plaintiff was denied a transfer because

of a negative evaluation McKenna wrote, which started the clock. Therefore, any events that occurred more than 300 days before the complaints were filed with the EEOC and the PHRC­any events before June 11, 2008­are time-barred. Plaintiff should bear this

in mind if he files an amended complaint. Finally, Defendant moves to strike paragraph 46 of Plaintiff's first amended complaint under Rule 12(f), claiming that the material is impertinent and immaterial. As the motion

to dismiss is granted, the motion to strike is moot. An order follows.

BY THE COURT:

/s/ John P. Fullam John P. Fullam, Sr. J.

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