STUCKE v. CITY OF PHILADELPHIA

Filing 46

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 5/11/15. 5/12/15 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROLAND STUCKE
Plaintiff,

CIVIL ACTION

v.

12-6216

CITY OF PHILADELPHIA,
Defendant.
MEMORANDUM OPINION
May 11, 2015

Tucker, C.J.

Plaintiff Roland Stucke ("Stucke") brings this action against Defendant City of
Philadelphia (the "City"), alleging claims for disparate treatment racial discrimination, hostile
work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000(e) et seq., and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Before this
Court is Defendant's Motion for Summary Judgment (Doc. 34), Plaintiff and Defendant's
Statement of Stipulated Material Facts (Doc. 34-1), Plaintiffs Response in Opposition to
Defendant City of Philadelphia's Motion for Summary Judgment (Doc. 37), Defendant's Reply
Memorandum in Support of Its Motion for Summary Judgment (Doc. 40), and Plaintiffs SurReply in Further Support of His Response in Opposition (Doc. 45). Upon careful consideration
of the parties' briefs, exhibits, and all other papers herein, and for the reasons set forth below,
this Court will grant Defendant's Motion for Summary Judgment.
I.

FACTUAL BACKGROUND

Because the Court writes primarily for the parties, the Court sets forth only the facts that
are relevant to its conclusion. In 1983, the City hired Plaintiff Stucke, a white male, as a
1

Correctional Officer Trainee and promoted him to Correctional Officer later that year. Statement
of Stipulated Material Facts~~ 1-2. In 1990, Stucke transferred to PhilaCor, an industries shop
program within the Philadelphia Prison System ("PPS") that is responsible for training inmates
to gain transferable job skills. Id.

at~~

3--4. PhilaCor is managed by a Correctional Industries

Director ("Director") and a Correctional Industries Assistant Director ("Assistant Director"). The
Director of PhilaCor reports directly to one of the PPS Deputy Commissioners. Brooks Dep.
32:10-11, May 13, 2014.
In 2004, Stucke was temporarily promoted to Industries Shop Supervisor in charge of
PhilaCor's General Products Shop. Statement of Stipulated Material Facts~ 5. This promotion
became permanent in 2005. Id. Stucke's direct supervisor at the time was Assistant Director Jim
Filler ("Filler"). Id.

at~

6. The job specification for Assistant Director provides that the

position's minimal acceptable training and experience is as follows:
completion of a bachelor's degree in business administration, education, or a
related field at an accredited college or university, and two years of supervisory
experience in a correctional or equivalent private or public industries program; or,
any equivalent combination of education and experience determined to be
acceptable by the Office of Human Resources.
Id.

at~

8. Filler, a white male, did not have a Bachelor's degree. Id.

at~

6.

In February 2009, Filler passed away. As a result, the Director at the time, Director
Eleanor Doherty, recommended to PPS Commissioner Louis Giorla and Deputy Commissioner
Reginald Hammond that Stucke be promoted to Acting Assistant Director. Doherty Dep. 37:1--4,
August 14, 2014. Stucke was promoted to the Acting Assistant Director position in mid-2009,
although he did not have a Bachelor's degree. Statement of Stipulated Material Facts~ 9. He
believed that any degree requirement for the position would be waived since Director Filler also

2

did not have a Bachelor's degree when he had held the position. Stucke Dep. 33:15-22, June 24,
2014.
When Stucke assumed the position of Acting Assistant Director, Director Doherty
observed a difference in Deputy Commissioner Hammond's involvement in PhilaCor. Doherty
Dep. 43:10-45:7. Director Doherty testified that Deputy Commissioner Hammond began
micromanaging and questioning her about seemingly insignificant minutiae relating to the daily
operations of the shops. Doherty Dep. 44:1-46:3. 1 According to Director Doherty, Deputy
Commissioner Hammond requested that a computer be removed from Stucke's work area in the
general products plant. Doherty Dep. 45:8-20. The computer was taken to another area where "it
was not put to any use. It sat in a room." Doherty Dep. 46: 17-19. 2
In the fall of 2009, Director Doherty participated in a meeting with Deputy
Commissioner Hammond. In that meeting, Deputy Commissioner Hammond explained that he
was going to require a Bachelor's degree for the Assistant Director position and post the position
publicly. Doherty Dep. 47:21-48:3. Following this meeting, Director Doherty informed Stucke
that a Bachelor's degree would be required for the Assistant Director position. Doherty Dep.
48:5-9. According to Director Doherty, Stucke responded that he was not going to continue the
job if he had no chance of ever getting it permanently. Doherty Dep. 50:12-13. As a result, on
November 16, 2009, Stucke resigned as Acting Assistant Director and resumed his previous post
as Industries Shop Supervisor. Statement of Stipulated Material Facts~ 10.

1

Deputy Commissioner Hammond disputes that he began micromanaging PhilaCor or that his
level of involvement changed following Filler's passing. Hammond Dep. 51 :2-10, Aug. 18, 2014.
2
Director Doherty explained that Deputy Commissioner Hammond's decision to move the
computer may have been based on his mistaken understanding that the computer was intended for the
Assistant Director. Doherty Dep. 45:16-18.

3

Following Stucke's resignation, Director Doherty needed to fill the vacant Acting
Assistant Director position. Consequently, she offered the position to Steven Brooks, a black
male who, like Stucke, also did not have a Bachelor's degree. Doherty Dep. 51:10--20; Statement
of Stipulated Material Facts 11 11. Following the initial interviews for the Acting Assistant
Director position, Brooks had been Deputy Commissioner Hammond's second choice candidate
after Stucke. Stucke Dep. 221:3-7. Director Doherty informed Brooks that he was only offered a
temporary position. Doherty Dep. 51:13-52:5. On or about December 23, 2009, Brooks was
promoted to Acting Assistant Director, thereby becoming Stucke's direct supervisor. Statement
of Stipulated Material Facts at 11 11. Brooks retained the position of Acting Assistant Director for
three years. Brooks Dep. 65:9-11. In March 2014, Brooks was promoted to the position of
Correctional Industries Director-the Director of PhilaCor. Id. 11 11.
Shortly after Brooks became Acting Assistant Director, Stucke confronted him about the
fact that he did not have a Bachelor's degree:
A.
I told him, again, you have-you have no college, I have no
college, okay. That doesn't make no sense that you got the job over I got the job.
In other words, I didn't have college, you don't have college. We're both coworkers. Now I did the job for eight months, now you're coming along doing the
job.
Q.
Did you tell him where you were gonna file this complaint?
A.
No.
Q.
Okay. Did you say E.E.0.C.?
A.
No.
Q.
Or the commission?
A.
I told him I'm gonna file a lawsuit.
Q.
File a lawsuit?
A.
Yes.
Q.
Okay. Did you say why you were gonna file a lawsuit besides what
you already said about the college stuff?
A.
That was it.
Q.
Did you say something along the lines of, you know, you were
promoted because of your race and this is about race and ... I'm gonna file a
lawsuit, because4

A.
Q.

A.

No, no.
of racial discrimination?
Not at the time, no.

-

Stucke Dep. 258:5-259:10. Significantly, Stucke did not complain about race discrimination.
After Brooks assumed the position of Acting Assistant Director, Stucke claims that he
would "sneak" into Stucke's work area "like a church mouse." Stucke Dep. 279:09-17. Stucke
explained that before unlocking and entering the door to Stucke's work area, Brooks would
quietly hold his keys so that they would not make any noise. Stucke Dep. 279:23-24. Stucke
admits that Brooks was entitled to visit his work area, but he was offended because he had
already provided Brooks with work reports. Stucke Dep. 366:1-22.
On one occasion, Stucke recalls complaining to Brooks about one of his unannounced
visits. Stucke Dep. 365:20-366:22. According to Stucke, he told Brooks, "[I]nstead of you
coming over harassing me ... maybe you should watch what you're doing over there by sexually
harassing the females." Stucke Dep. 366:19-367:21. 3
On April 28, 2010, Brooks and Stucke had an argument after Brooks made another
unannounced visit to Stucke's work area. Pl.'s Resp. in Opp'n, Ex.Kat 3. According to Stucke,
Brooks entered the shop while he was watching a training video on the television. Id. The
inmates in the shop were not working at the time because they were waiting for a shipment to
arrive. Id. Brooks questioned Stucke's production and claims that Stucke began shouting and
cursing at Brooks. Id. at 2.

3

According to Stucke, prior to making this statement, he had just heard from a coworker "that the
first month that [Brooks] was there that he sexually harassed both of our secretaries. Called one an apple
bottom butt and the other one - - he wants to rub his fingers through her long hair." Stucke Dep. 366:1217.
5

In response to the April 28, 2010 argument, Brooks served Stucke with an Employee
Violation Report ("EVR") on or about May 6, 2010. Statement of Stipulated Material Facts ~ 12.
Consequently, Stucke was removed from PhilaCor effective September 1, 2010, suspended for
ten work days, and demoted to the position of correctional officer. Id.~ 12; Pl.'s Resp. in Opp'n,
Ex. Kat 2. City employee Kevin Gallagher, a white male, replaced Stucke as the supervisor of
the General Products Shop. Statement of Stipulated Material Facts~ 12.
While serving in his demoted position of correctional officer, Stucke applied for several
steady-shift posts (i.e. posts that have Monday through Friday schedules). Id.

at~

14. Stucke

submitted applications on September 9, 2010, January 19, 2011, May 9, 2011, and December 8,
2011. Def.'s Reply Mem., Exs. N, 0, R, and Q. Stucke did not receive any of the steady-shift
posts to which he applied.
Stucke appealed his demotion to the Philadelphia Civil Service Commission (the
"Commission"). Statement of Stipulated Material Facts~ 15. The Commission granted Stucke's
appeal, reversed his discipline, and reinstated him to the position of Industries Shop Supervisor
with back pay. Id.~~ 16-17. The City appealed the Commission's decision to the Philadelphia
Court of Common Pleas, but the court denied the appeal. Id.~~ 18-19. As a result, Stucke was
restored to the position of Industries Shop Supervisor with back pay. Id.~ 20. Stucke was not
reassigned to the Industries Shop Supervisor position in the General Products Shop, but instead
was assigned to the Barricade Shop. Id.

~

20. At that time, Gallagher was still the supervisor of

the General Products Shop. Id.
No City employee made any discriminatory remarks to Stucke about his race or about
Caucasians generally. Id.

~

21; Stucke Dep. 173:12-20. Stucke did not believe that there were

racial tensions in PhilaCor. Stucke Dep. 173:7-9. At no time did Stucke file a complaint alleging
6

discrimination or retaliation with the City's Equal Employment Opportunity Unit, or with any
other City department. Statement of Stipulated Material Facts~ 27.
On February 14, 2011, Stucke filed a complaint with the Pennsylvania Human Relations
Commission ("PHRC") and the Equal Employment Opportunity Commission. Id.

~

28. Stucke

alleged that he was discriminated against because of his race and retaliated against for intending
to exercise his Title VII rights. Id.

~

28. On November 3, 2012, Stucke filed this action against

the City alleging hostile work environment in violation of Title VII (Count One); disparate
treatment in violation of Title VII (Count Two); hostile work environment and disparate
treatment in violation of the Pennsylvania Human Relations Act (Count Three); and retaliation
(Count Four).

II.

STANDARD OF REVIEW

A court must grant summary judgment "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.
C1v. P. 56(a). "In considering a summary judgment motion, a court must view the evidence in the
light most favorable to the non-moving party and give that party the benefit of all reasonable
inferences that can be drawn from the evidence." Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
2014).
"[T]he nonmoving party must point to some evidence in the record that creates a genuine
issue of material fact. ... [It] cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument." Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.
2006). Rather, "[a] party asserting that a fact ... is genuinely disputed must support the assertion
by ... citing to particular parts of materials in the record," or "showing that the materials cited
do not establish the absence or presence of a genuine dispute." FED. R. CIV. P. 56(c)(l).

7

III.

DISCUSSION

Defendant argues that it is entitled to summary judgment as to Plaintiffs claims for
disparate treatment, hostile work environment, and retaliation under Title VII and the PHRA.
"The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as
Pennsylvania courts have construed the protections of the two acts interchangeably." Weston v.
Pennsylvania, 251F.3d420, 426 n. 3 (3d Cir. 2001) (citations omitted). Accordingly, this Court
will address each claim in turn.
A. Disparate Treatment under Title VII and the PHRA
4

Stucke claims that he was constructively discharged. Pl.'s Sur-Reply at 2-3. Defendant
counters that Stucke's claim fails because he cannot make out a prima facie case of disparate
treatment racial discrimination. This Court agrees with Defendant.
Under Title VII, an employer may not "discriminate against any individual with respect
to ... compensation, terms, conditions, or privileges of employment because of such individual's
... race." 42 U.S.C. § 2000e-2(a)(l). For claims of disparate treatment race discrimination under
Title VII, courts use the burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 803-05 (1973). Under this framework, a plaintiff must first establish
a prima facie case. The burden then shifts to the employer to "articulate some legitimate,
nondiscriminatory reason for the employee's rejection." Id. at 802. "The plaintiff then must
establish by a preponderance of the evidence that the employer's proffered reasons were merely

4

In his Sur-Reply, Stucke claims for the first time that his demotion to corrections officer
constituted disparate treatment. Pl. 's Sur-Reply at 3. The Court declines to address a new argument raised
for the first time in a sur-reply brief. See United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa.
2006) ("A reply brief is intended only to provide an opportunity to respond to the arguments raised in the
response brief; it is not intended as a forum to raise new issues.").
8

a pretext for discrimination, and not the real motivation for the unfavorable job action." Sarullo

v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
To establish a prima facie case of racial discrimination, a plaintiff must show that: 1) the
plaintiff belongs to a protected class; 2) he was qualified for the position; 3) he was subject to an
adverse employment action despite being qualified; and 4) under circumstances that raise an
inference of discriminatory action, the employer continued to seek out individuals with
qualifications similar to the plaintiffs to fill the position Id. (citing McDonnell Douglas, 411
U.S. at 802).
The parties dispute the third factor in the prima facie case-whether Stucke was
subjected to an adverse employment action. Stucke asserts that he suffered an adverse
employment action because he was constructively discharged when he was informed that the
Assistant Director position would require a Bachelor's degree. Defendant counters that Stucke
fails to satisfy the requirements for a constructive discharge claim.
Courts "employ an objective test to determine whether an employee can recover on a
claim of constructive discharge .... [and must therefore] determine whether a reasonable jury
could find that the [employer] permitted conditions so unpleasant or difficult that a reasonable
person would have felt compelled to resign." Colwell v. Rite Aid Corp., 602 F.3d 495, 502-03
(3d Cir. 2010) (quoting Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001))
(quotations and citation omitted). Relevant factors include "whether the employer (1) 'threatened
[the employee] with discharge' or 'urge[d] or suggest[ed] that she resign or retire,' (2)
'demote[d] her,' (3) 'reduce[d] her pay or benefits,' (4) 'involuntarily transferred [her] to a less
desirable position,' (5) altered her 'job responsibilities," or (6) gave 'unsatisfactory job
evaluations."' Colwell, 602 F.3d at 503 (quoting Clowes v. Allegheny Valley Hosp., 991 F.2d
9

1159, 1161 (3d Cir. 1993)). The Third Circuit has also noted that "in most situations, a
prerequisite to a successful constructive discharge claim is that the plaintiff attempted to explore
alternatives before electing to resign." Connors v. Chrysler Fin. Corp., 160 F.3d 971, 975 (3d
Cir. 1998) (concluding that no constructive discharge had occurred partly because plaintiff did
not attempt to explore any alternatives before resigning).
Here, Stucke resigned from the position of Acting Assistant Director soon after he was
told that the position of Assistant Director required a Bachelor's degree. Stucke argues that he
had "no choice" but to step down, because Director Doherty told him that Defendant would "get
somebody from the outside for the position." Pl.'s Sur-Reply at 2; Doherty Dep. 47:21-48:3. He
essentially argues that he was compelled to resign as Acting Assistant Director because he had
no prospect of being promoted to the permanent position and believed that ultimately he would
have been demoted to Industry Shop Supervisor receiving a decrease in pay and altered job
responsibilities. See Pl.' s Sur-Reply at 2.
However, Stucke has failed to demonstrate that his work conditions were sufficiently
intolerable to constitute constructive discharge. The Court notes that there is no record evidence
that anyone encouraged Stucke to resign or threatened him with discharge. See Colwell, 602 F.3d
at 503. Nor was he demoted, involuntarily transferred, or given unsatisfactory job evaluations.

See id. There is no evidence that prior to his resignation his job responsibilities as Acting
Assistant Director were altered or that his salary and benefits were reduced. See id. Moreover,
Stucke never explored alternatives to resigning before concluding that resignation was his only
option. See Clowes, 991 F.2d at 1161 (stating "a reasonable employee will usually explore ...
alternative avenues thoroughly before coming to the conclusion that resignation is the only
option"). In fact, Stucke stated: "I was told I need college .... They knew I wasn't getting

10

college. And with that, I went back to my old position." Stucke Dep. 219:19-23. Stucke's
analysis of his options ended upon learning from Director Doherty that the Assistant Director
position would be posted in an effort to find a candidate with a Bachelor's degree.
Stucke argues that his demotion or discharge from the position of Acting Assistant
Director would have resulted in less pay and a change in his job duties. Pl.'s Sur-Reply at 2. The
operative inquiry regarding these factors, however, is whether any reduction in pay or alteration
of job duties precipitated Stucke's resignation. Stucke has not produced any evidence that such
changes precipitated his decision to resign.
Although Director Doherty told Stucke that the Assistant Director position would be
posted, Stucke was not told that the posting was imminent. Nor is there any evidence that the
position had been posted or that he applied for it. 5 Stucke has failed to present evidence to
support a conclusion that he was compelled to resign when he did. Accordingly, Stucke's
disparate treatment claims fail.
B. Hostile Work Environment under Title VII and the PHRA
Stucke next asserts a claim for hostile work environment. To establish a claim of hostile
work environment based on race, a plaintiff must show the following:
(1) that he or she suffered intentional discrimination because of race; (2) the
discrimination was pervasive and regular; (3) the discrimination detrimentally
affected the plaintiff; (4) the discrimination would detrimentally affect a
reasonable person of the same race in that position; and (5) the existence of
respondeat superior liability.

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996) (citingAndrews v. City
of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)). The Supreme Court has explained,

5

Indeed, Brooks retained the position of Acting Assistant Director for three years. Brooks Dep.

65:9-11.

11

[W]hether an environment is "hostile" or "abusive" can be determined only by
looking at all the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee's work performance. The effect on the employee's
psychological well-being is, of course, relevant to determining whether the
plaintiff actually found the environment abusive. But while psychological harm,
like any other relevant factor, may be taken into account, no single factor is
required.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Title VII does not provide relief for "the

ordinary tribulations of the workplace, such as the sporadic use of abusive language, [race]related jokes, and occasional teasing." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)
(quotations omitted). "Conduct must be extreme to amount to a change in the terms and
conditions of employment." Id.
There is "a bright-line distinction between discrete acts,[ 6J which are individually
actionable, and acts which are not individually actionable but may be aggregated to make out a
hostile work environment claim. The former must be raised within the applicable limitations
period or they will not support a lawsuit." 0 'Connor v. City ofNewark, 440 F.3d 125, 127 (3d
Cir. 2006); Helvy v. Allegheny Cnty., No. 2:14-CV-01686-TFM, 2015 WL 672262, at *3 (W.D.
Pa. Feb. 17, 2015) (stating that plaintiff "cannot simply 'cobbl[ e] together a number of distinct,
disparate acts'-the same acts that make up [a] disparate treatment claim-and label it 'a hostile
work environment"') (quoting Brantley v. Kempthorne, No. CIV.A. 06-1137ESH, 2008 WL
2073913, at *8 (D.D.C. May 13, 2008)). Hostile environment claims by nature involve repeated
conduct. Nat 'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).

6

"Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire ....
constitute[] ... separate actionable 'unlawful employment practice[s],"' whereas "[a] hostile work
environment claim is composed of a series of separate acts that collectively constitute one 'unlawful
employment practice."' Nat'/ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 117 (2002).

12

Here, Stucke contends that he endured a hostile work environment because Brooks
targeted him by (1) making unannounced visits to his work area; (2) confiscating his work
computer without cause; (3) issuing him an EVR after they argued on April 28, 2010; and (4)
refusing to award him the steady-shift post positions to which he applied while demoted. Pl.' s
Resp. in Opp'n at 18-19. In response, Defendant avers that the above conduct amounts to
"isolated incidents" and points to the absence of evidence of racial animus. Def. 's Reply Mem. at
18.
Stucke's hostile work environment claim is based in part on instances where Defendant
failed to award him steady-shift post positions. However, such instances cannot support the
foundation of his hostile work environment claim because they constitute discrete acts. See
O'Connor, 440 F.3d at 127. Likewise, this court will not consider Stucke's complaint that his

discipline was discriminatory, because disparate discipline constitutes a discrete claim. See Davis
v. Nat'/ R.R. Passenger Corp., 733 F. Supp. 2d 474, 491 (D. Del. 2010) (setting forth the

standard for disparate discipline claims); Dempsey v. Delaware, Dep 't of Pub. Safety, 579 F.
Supp. 2d 616, 622 (D. Del. 2008) (same), aff'd, 359 F. App'x 347 (3d Cir. 2009).
The remaining conduct-consisting of Brooks's unannounced visits and the removal of
the computer-is not extreme enough to constitute a hostile work environment. See Faragher,
524 U.S. at 788. ("Conduct must be extreme to amount to a change in the terms and conditions
of employment."). Hostile work environment claims involving comparable conduct have been
rejected. See, e.g., Deans v. Kennedy House, Inc., 998 F. Supp. 2d 393, 415-16 (E.D. Pa.)
(concluding that the employer's conduct was insufficiently severe where the plaintiffs
supervisor highly scrutinized the plaintiffs work performance and made sporadic, facially
neutral comments) aff'd, 587 F. App'x 731 (3d Cir. 2014); Baker v. City of Philadelphia, No.
13

CIV.A.05-1562, 2009 WL 3579815, at *19 (E.D. Pa. Oct. 27, 2009) (concluding that the
employer's conduct was insufficiently severe where the employer verbally reprimanded the
plaintiff and scrutinized his work performance), aff'd, 405 F. App'x 599 (3d Cir. 2010). This
Court is mindful of the evidence that Brooks apparently singled out Stucke when conducting
these unannounced visits, and that Brooks's visits were not the norm. Nevertheless, the conduct
that occurred here is insufficiently severe or extreme to constitute a hostile work environment.
Accordingly, Plaintiff has failed to establish a prima facie case for hostile work environment.
C. Retaliation under Title VII and the PHRA
Stucke asserts that he suffered unlawful retaliation as a result of his complaint to Brooks
that he would be filing a lawsuit. 7 Defendant counters that Stucke failed to engage in protected
activity required for a claim of retaliation.
Title VII provides:

7

Stucke also claims that he engaged in protected activity when he filed his complaint with the
PHRC on February 14, 2011. See Pl. 's Sur-Reply at 4. Stucke makes this argument for the first time in his
Sur-Reply brief. The Court declines to address a new argument raised for the first time in a sur-reply
brief. See United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa. 2006) ("A reply brief is
intended only to provide an opportunity to respond to the arguments raised in the response brief; it is not
intended as a forum to raise new issues."). Even if Stucke had preserved this argument, he failed to
provide sufficient evidence supporting his prima facie case of retaliation. Stucke asserts that the denial of
his May 9, 2011 and December 8, 2011 applications for steady-shift posts constitute adverse actions, but
he fails to provide the date when his applications were denied. Stucke also avers that his May 2012
assignment to the Barricade Shop following his successful appeal to the Commission constituted an
adverse action. For all three of these alleged adverse actions, Stucke fails to indicate evidence supporting
a causal connection between his filing of the PHRC complaint and these alleged adverse actions.
Next, in his Response in Opposition, Stucke claims for the first time that he admonished Brooks
for making inappropriate sexual comments about two female employees. See Pl.'s Resp. in Opp'n at 1415. He does not, however, expressly assert in his Response or Sur-Reply that his actions constituted
protected activity. He merely details his conversation with Brooks, implying without making the
argument, that he was subjected to retaliation after highlighting Brooks's purported sexual harassment of
female workers. Stucke's suggestion here is distinct from the retaliation claim alleged in his Second
Amended Complaint. In considering a motion for summary judgment, this Court need not address a
particular claim that was not included in the complaint. See Anderson v. DSM N. V., 589 F. Supp. 2d 528,
534 n.5 (D.N.J. 2008) (refusing to consider a breach of contract claim that was distinct from the breach of
contract claim alleged in the complaint).

14

It shall be an unlawful employment practice for an employer to discriminate
against any of his employees ... because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff
must show the following: "(1) she engaged in activity protected by Title VII; (2) the employer
took an adverse employment action against her; and (3) there was a causal connection between
her participation in the protected activity and the adverse employment action." Moore v. City of

Philadelphia, 461F.3d331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51F.3d383,
386 (3d Cir. 1995)).
With respect to protected activity, the employee must hold an objectively reasonable,
good faith belief that the activity he or she opposes is unlawful under Title VIL Id. at 341.
"'Opposition' to discrimination can take the form of 'informal protests of discriminatory
employment practices, including making complaints to management."' Id. at 343 (quoting

Curay-Cramer v. UrsulineAcad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)).
"When deciding whether a plaintiff has engaged in opposition conduct, we look to the message
being conveyed rather than the means of conveyance." Curay-Cramer, 450 F.3d at 135 (citing

Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995)). The employee must, at least
by context, identify the unlawful employment practice and the employer. Id. "A general
complaint of unfair treatment is insufficient to establish protected activity under Title VIL" Id.;

see, e.g., Barber, 68 F.3d at 702 (holding that an employee's letter to his employer's human
resources department did not constitute protected activity because it did not specifically
complain about the alleged unlawful practice and was "just too vague to support a finding that
his job was eliminated because he engaged in behavior that was protected under the ADEA'').
15

Here, Stucke complained to Brooks about the unfairness of Brooks's promotion to the
position of Acting Assistant Director despite the fact that Brooks did not have a Bachelor's
degree. Stucke also threatened to file a lawsuit. He alleges that his complaint to Brooks
constituted protected activity under Title VIL At no time, however, did Stucke explicitly or
implicitly allege that race was the reason that Brooks acquired the position. See Stucke Dep.
258:4-259: 10. Nor did Stucke indicate that his lawsuit was predicated on the existence of race
discrimination. See id. Stucke's mere reference to filing a lawsuit does not warrant the inference
that his lawsuit was based on race discrimination. Complaints can be lodged and lawsuits can be
filed for a number of different reasons. Stucke's complaint of unfairness and his threat to file a
lawsuit, without more, does not support a finding that Stucke engaged in protected activity.
Accordingly, Plaintiff has failed to establish a prima facie case of retaliation.

III.

CONCLUSION

For the foregoing reasons, the Court grants Defendant's Motion for Summary Judgment.
An appropriate Order follows.

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