BROOKS v. CITY OF PHILADELPHIA

Filing 32

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 2/6/2015. 2/6/2015 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THERESA BROOKS
v.
CITY OF PHILADELPHIA

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CIVIL ACTION
NO. 14-623

MEMORANDUM

SURRICK, J.

FEBRUARY 6 , 2015

Presently before the Court is the Motion for Summary Judgment (ECF No. 23) filed by
Defendant, City of Philadelphia. For the following reasons, Defendant’s Motion will be granted
in part and denied in part.
I.

BACKGROUND
This is an action in which Plaintiff, Theresa Brooks, brings claims of gender and race

discrimination and hostile work environment, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (Title VII), and the Pennsylvania Human Relations Act, 43 P.S.
§ 955, et seq. (PHRA). (Compl. Counts I and III, ECF No. 1.) Plaintiff also brings a claim for
retaliation, in violation of Title VII. (Id. at Count II.)
In deciding this Motion for summary judgment, we must view the facts and inferences in
a light most favorable to the Plaintiff, the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). Moreover, we must “not resolve factual disputes or make credibility
determinations.” Siegel Transfer, Inc. v. Carrier Express Inc., 54 F.3d 1125, 1127 (3d Cir.
1995). 1
1

We make this observation at this point because along with its Motion for summary
judgment, Defendant has filed what it characterizes as an Undisputed Statement of Material

The record reflects that Plaintiff joined the Philadelphia Police Department in 1996.
(Brooks’ Dep. 13, Def.’s Mot. Ex. 1.) In 2005, Plaintiff was assigned to the Narcotics Strike
Force (NSF), a specialized unit of the police department charged with policing illicit drug sales
within the city. (Id. at 19.) Plaintiff remained with the NSF from 2005 until October 2013. (Id.
at 21.) During her time with the NSF, Plaintiff was the only female officer who worked on the
street. (Id. at 109-10.) Plaintiff’s claims are related to her time spent assigned to the NSF.
According to Plaintiff, the environment within the operations room at the NSF was overly
hostile towards female employees. Plaintiff testified that her male colleagues would watch
pornographic films on the television set in the operations room at the NSF. (Id. at 151-52.) Her
male colleagues would laugh at Plaintiff while showing pornographic films, and pornography
was considered “the norm” at the NSF. (Id. at 160, 162.) Plaintiff testified that the operations
room was a “locker room” of sorts where Plaintiff was subjected to her male colleagues
changing clothes in front of her while she worked. (Id. at 47; Brooks’ Continued Dep. 452-53,
Def.’s Mot. Ex. 2.) In addition, the use of inappropriate language was rampant throughout the
workplace. Plaintiff testified that her male colleagues would refer to her as “bitch” and “crazy
bitch” (Brooks’ Continued Dep. 481-82), and that on one occasion her commanding officer said,
in reference to Plaintiff, “Bring that bitch in here. I’m going to punch her in her fucking mouth.”
(Id. at 415.) Plaintiff reported this conduct to her superiors. She was told that the “NSF was not
for her.” (Def.’s Mot. Ex. 15.) Plaintiff’s complaints were not forwarded to the Police
Department’s Equal Employment Opportunity Office for investigation and remediation.
(Abrams Dep. 17, Pl.’s Resp. Ex. 2.)
Plaintiff suffered a great deal of animus from her immediate superior in the NSF, Sgt.
Facts. (ECF No. 24.) Plaintiff takes issue with Defendant’s characterization of the facts as
either undisputed or material.
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Anthony Burton. Specifically, Sgt. Burton would remove her as the arresting officer so as to
credit a male colleague with the arrest. (Brooks’ Dep. 60.) In addition, Sgt. Burton failed on
occasion to report Plaintiff’s earned overtime so that she would be paid for overtime earned. (Id.
at 89.) Plaintiff also testified that her male colleagues were permitted to use explicit language
among themselves and to their superiors, and to refuse to perform ordered tasks. (Brooks’
Continued Dep. 434-35.) According to Plaintiff, these actions by her male colleagues did not
result in any disciplinary action. (Id.) Plaintiff, on the other hand, was disciplined for what
Defendant describes as a tirade against Sgt. Burton when he failed to credit Plaintiff for earned
overtime pay.
On May 2, 2012, Plaintiff reported Sgt. Burton to Internal Affairs alleging corruption
with regard to theft of money from suspected drug dealers. (Brooks Dep. 200-1.) Subsequently
at a roll call on May 22, 2012, Sgt. Burton made it clear to Plaintiff that he knew she reported
him to Internal Affairs and that he vowed vengeance. (Id. at 125.) Thereafter, a verbal
altercation between Plaintiff and Sgt. Burton occurred on June 6, 2012. This verbal altercation
stemmed from Sgt. Burton’s failure to credit Plaintiff for earned overtime pay. On June 7, 2012,
Sgt. Burton made a formal request to initiate disciplinary proceedings against Plaintiff. (Pl.’s
Resp. Ex. 3.) The June 7 request was followed by a Memorandum, dated June 9, 2012, detailing
Sgt. Burton’s allegations against Plaintiff and the request that she be detailed out of the NSF.
(Id.) The June 9 Memorandum notes that Plaintiff informed Sgt. Burton that she “reported” him
and called him a “thief.” (Id.) Captain Fraizer, Sgt. Burton’s superior, relied solely upon Sgt.
Burton’s Memorandum to make the formal request that Plaintiff be detailed out of the NSF. (Id.)
This request by Captain Fraizer led to Plaintiff’s being detailed out of NSF to administrative
duty. While on administrative duty, Plaintiff was required to relinquish her police-issued

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firearm. (Pl.’s Resp. Ex. 4.)
On July 2, 2012, Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (EEOC), alleging discrimination on the basis of race, sex, and retaliation stemming
from her report of alleged police corruption. (EEOC Intake Questionnaire, Def.’s Mot. Ex. 14.)
Specifically, Plaintiff asserted: “When I refused to go along with illegal behavior, I was treated
differently and not allow[ed] overtime, and I was not paid for overtime I worked.” (Id.) On
August 3, 2012, Plaintiff filed a formal Charge of Discrimination with the Pennsylvania Human
Relations Commission (PHRC). (Def.’s Mot. Ex. 15.) Plaintiff again alleged discrimination on
the basis of race, sex, and retaliation. (Id.) In addition, Plaintiff set forth five examples of the
discrimination: (1) disparate treatment regarding her use of inappropriate language and being
reprimanded, while fellow male colleagues’ use of inappropriate language went unpunished, and
retaliation resulting from her report of alleged corruption; (2) denial of earned overtime pay by
Sgt. Burton; (3) fellow male officer refusing to assist on assignments, and her supervisor failing
to address this conduct; (4) a sexually hostile work environment regarding male officers’ use of
the operations room as a locker room, and openly changing clothes in front of Plaintiff; (5) her
supervisor’s permitting the use of pornography in the workplace, and after complaining to a
supervisor, being told “NSF is not for [her].” (Id.) The EEOC eventually concluded its
investigation without bringing charges. On October 29, 2013, Plaintiff received her Notice of
Right to Sue from the EEOC. (Def.’s Mot. Ex. 17.)
Plaintiff initiated this litigation by filing a Complaint on January 28, 2014. (Compl.)
Defendant filed its Answer on March 14, 2014 (ECF No. 4), and this case proceeded through
discovery. On December 1, 2014, after concluding discovery, Defendant filed the instant Motion
for summary judgment. (ECF No. 23.) Plaintiff filed her Response on January 2, 2015. (ECF

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No. 26.)
II.

LEGAL STANDARD
A party is entitled to 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. Civ. P. 56(a); see also Anderson, 477 U.S. at 248 (“Only disputes over facts that might affect
the outcome of the suit under the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”). Where the
nonmoving party bears the burden of proof at trial, the moving party may identify an absence of
a genuine issue of material fact by showing the court that there is no evidence in the record
supporting the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party
carries this initial burden, the nonmoving party must set forth specific facts showing that there is
a genuine issue for trial. See Fed. R. Civ. P. 56(c) (“A party asserting that a fact is genuinely. .
.disputed must support the assertion by; . . .citing to particular parts of materials in the record.”);
see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(noting that the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.”). “Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita, 475 U.S. at 587 (citation omitted). Finally, as noted above, when deciding a motion
for summary judgment, courts must view facts and inferences in the light most favorable to the
nonmoving party. Anderson, 477 U.S. at 255. Courts must “not resolve factual disputes or make
credibility determinations.” Siegel Transfer, Inc., 54 F.3d at 1127.

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III.

DISCUSSION
Defendant moves for summary judgment, arguing that Plaintiff failed to exhaust her

administrative remedies before the EEOC prior to filing suit, and that Plaintiff cannot establish a
prima facie case of discrimination, hostile work environment, or retaliation.
A.

Plaintiff’s Exhaustion of Administrative Remedies Before the EEOC

Defendant does not contend that Plaintiff completely failed to exhaust her administrative
remedies before filing suit. Rather, Defendant argues that Plaintiff failed to exhaust her
administrative remedies with respect to four specific allegations of discrimination. Those
allegations are: (1) her claim that Sgt. Burton removed her from arrests; (2) her claim that she
was unfairly suspended and transferred due to the June 6, 2012 incident; (3) her claim that
Officer Watts harassed her in August 2012; and (4) her claim that Officer Waters harassed her in
2014. (Def.’s Mot. 6.) Defendant also argues that certain of these allegations occurred after
Plaintiff received her Right to Sue letter, and therefore Plaintiff should be precluded from
including those claims in this lawsuit. (Id.)
It is well settled that a plaintiff proceeding with claims under Title VII and the PHRA
must first exhaust her administrative remedies before the EEOC and PHRC before filing suit.
Woodson v. Scott Paper Co., 109 F.3d 913, 926-27 (3d Cir. 1997). However, “[a] victim of
discrimination is not required to exhaust administrative remedies with respect to a claim
concerning an incident which falls within the scope of a prior EEOC complaint or the
investigation which arose out of it, provided that the victim can still bring suit on the earlier
complaint.” Waiters v. Parsons, 729 F.2d 233, 235 (3d Cir. 1984) (per curium). Under Waiters,
two circumstances exist where events taking place subsequent to the filing of a complaint “may
be considered as fairly encompassed within that complaint, either where the incident (1) falls

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within the scope of a prior EEOC complaint, or (2) falls within the scope of the EEOC
‘investigation which arose out of it.’” Robinson v. Dalton, 107 F.3d 1018, 1025 (3d Cir. 1997)
(quoting Waiters, 729 F.2d at 235).
The recent decision of Gardner-Lozada v. SEPTA, No. 13-2755, 2014 WL 6633195 (E.D.
Pa. Nov. 24, 2014) is instructive. In Gardner-Lozada, a plaintiff asserting claims pursuant to
Title VII and the PHRA alleged discriminatory events that occurred after her filing of the Charge
of Discrimination. Id. at *6. The plaintiff did not seek to amend her Charge. Id. The court held
that the core grievances of gender discrimination and retaliation were the same, and thus would
have been fairly encompassed within an EEOC investigation. Id. While noting that the failure to
amend the Charge of Discrimination to include these additional events was “hardly the best
practice,” the court concluded that the failure to amend in that instance did not operate to bar the
claims. Id.; Cf. Rajis v. Brown, No. 96-6889, 1997 WL 535152, at *5 (E.D. Pa. Aug. 14, 1997)
(denying dismissal of harassment claims not presented in the administrative setting because “the
same evidence which supports [plaintiff’s] discrimination claims similarly supports her
harassment claims”).
In this case, Plaintiff has maintained since the filing of the initial complaint with the
EEOC that she suffered discrimination, a hostile work environment, and retaliation. Each of the
four specific instances that Defendant contends are not contained within the Charge of
Discrimination are not new “claims”; rather, these identified instances are events that go to the
heart of Plaintiff’s previously asserted claims. Plaintiff’s alleged removal from arrests,
harassment by Officer Watts in August 2012, and harassment by Officer Waters in 2014 are each
probative of Plaintiff’s claims of discrimination and hostile work environment on the basis of her
gender. Moreover, Plaintiff’s detail out of the NSF stemming from the June 6, 2012 incident is

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probative of Plaintiff’s claim of retaliation. Three of the alleged acts—removal from arrests,
harassment in August 2012, and suspension and transfer—all involve individuals that Plaintiff
has already identified as principal sources of discrimination, hostile work environment, and
retaliation, specifically Sgt. Burton and Officer Watts. Moreover, the complaint of harassment
by Officer Waters in 2014 would have been fairly encompassed within the EEOC investigation,
as the allegations are consistent with the other allegations of harassment that Plaintiff has
asserted. Even though these events may differ from other events identified by Plaintiff in her
Charge of Discrimination, the core grievances—discrimination, hostile work environment, and
retaliation—are the same. See Waiters, 729 F.2d at 238.
“[T]he policy of promoting conciliation would not be furthered by allowing the
defendant[] to delay having to answer in court for retaliatory[, discriminatory, and harassing]
action allegedly taken against [Plaintiff].” Id. We agree with the language of the court in
Gardner-Lozada, that “failing to amend a Charge of Discrimination to reflect subsequent acts of
alleged discrimination or retaliation is hardly the best practice.” 2014 WL 6633195 at *6.
Nevertheless, we will not preclude Plaintiff from presenting these allegations to a jury.
Accordingly, Defendant’s Motion as to the issue of exhaustion of administrative remedies will be
denied.
B.

Plaintiff’s Claims of Hostile Work Environment

Defendant next contends that Plaintiff cannot establish a claim for hostile work
environment. Specifically, Defendant argues that there is no evidence establishing that any of
Plaintiff’s proffered instances of a hostile work environment are gender based.
In order to establish the existence of a hostile work environment under Title VII, Plaintiff
must establish the following elements: “(1) the employees suffered intentional discrimination

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because of their sex; (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 sex in that position; and (5) the existence of respondeat superior
liability.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (citations
omitted) (footnote omitted). Element number 3 is a subjective standard while element number 4
is an objective standard. “The subjective factor is crucial because it demonstrates that the
alleged conduct injured this particular plaintiff giving her a claim for judicial relief. The
objective factor, however, is the more critical for it is here that the finder of fact must actually
determine whether the work environment is sexually hostile.” Id. at 1483. With regard to the
fifth element, agency principles apply and “liability exists where the defendant knew or should
have known of the harassment and failed to take prompt remedial action.” Id. at 1486 (quoting
Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316 (11th Cir. 1989)). The totality of the
circumstances must be examined in order to determine whether a work environment is “hostile”
for Title VII purposes. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Circumstances to be
examined 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.” Id.
“To make out a case under Title VII it is ‘only necessary to show that gender is a
substantial factor in the discrimination, and that if the plaintiff had been a man she would not
have been treated in the same manner.’” Andrews, 895 F.2d at 1485 (quoting Tomkins v. Public
Serv. Elec. & Gas Co., 568 F.2d 1044, 1047 n.4 (3d Cir. 1977)). Conduct other than explicit
sexual advances may constitute intimidating and hostile conduct toward women because they are
women. Id. (citations omitted). Specifically, the Third Circuit has observed “that the pervasive

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use of derogatory and insulting terms relating to women generally and addressed to female
employees personally may serve as evidence of a hostile environment.” Id. (citations omitted).
Furthermore, the posting of pornographic pictures in a plaintiff’s workspace may constitute
evidence of a hostile environment. Id. “Obscene language and pornography quite possibly could
be regarded as ‘highly offensive to a woman who seeks to deal with her fellow employees and
clients with professional dignity and without the barrier of sexual differentiation and abuse.’” Id.
at 1485-86 (quoting Bennett v. Corroon & Black Corp., 845 F.2d 104, 106 (5th Cir. 1988)).
In this case, Plaintiff raises issues of material fact sufficient to defeat Defendant’s
summary judgment Motion. Plaintiff testified regarding the pervasive presence of pornography
within the workplace, the fact that she in particular was subjected to derogatory and insulting
language from her colleagues, and the male “locker room” atmosphere that comprised her main
work area. Any one of these circumstances alone, and certainly all taken together, are sufficient
to establish that Plaintiff suffered a hostile work environment on account of her gender.
Andrews, a case also involving the Philadelphia Police Department, and with facts not too
dissimilar from the instant case, counsels that the evidence taken as a whole must be examined to
see if it “produce[s] a work environment hostile and offensive to women of reasonable
sensibilities.” Id. at 1486. That determination in this case is one that is within the province of
the jury. Furthermore, Plaintiff’s testimony with regard to the frequency with which these
events occurred raises questions as to whether Plaintiff’s superiors knew, or should have known,
that they were occurring. Indeed, Plaintiff testified that when she raised concerns regarding
these activities to a superior, she was told “NSF was not for her.” (Def.’s Mot. Ex. 15.) And
upon raising these concerns to Captain Abrams, a superior, the complaints were not forwarded to
the Police Department’s Equal Employment Opportunity Office. (Abrams Dep. 17, Pl.’s Resp.

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Ex. 2.) A police station certainly need not be run like a day care center. “[I]t should not,
however, have the ambience of a nineteenth century military barracks.” Andrews, 895 F.2d at
1486.
Defendant counters that even assuming these events to be true, it did not affect Plaintiff’s
work and therefore should not be considered to constitute a hostile work environment. The fact
that Plaintiff persevered in her job does not mean that she was not detrimentally affected by the
work environment. Moreover, it is hard to see how any woman would not have been
detrimentally affected by this environment. We are satisfied that there are genuine issues of
material fact as to the nature and effect of this work environment. Accordingly, Defendant’s
Motion as to Plaintiff’s hostile work environment claim will be denied.
C.

Plaintiff’s Claims of Discrimination and Retaliation

Finally, Defendant contends that Plaintiff has failed to establish a prima facie case of
discrimination and retaliation. Specifically, Defendant argues that Plaintiff is unable to establish
that she suffered an adverse employment action, a requirement for both discrimination and
retaliation, and, with regard to her claim of retaliation, Defendant argues that there is no causal
connection between her protected activity and the adverse action she alleges.
1.

Claim of Discrimination2

To establish a prima facie case of discrimination, a plaintiff must show that: “(1) she was
a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse
employment action; and (4) members of the opposite sex were treated more favorably.” Burton
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Although Plaintiff’s claim for discrimination under the PHRA is not discussed at length
here, “[t]he 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.”
Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 n.2 (3d Cir. 2009)
(citation omitted). Accordingly, our conclusion as to Plaintiff’s claim for discrimination under
Title VII applies equally to Plaintiff’s claim for discrimination under the PHRA.
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v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citing Hugh v. Butler Cnty. Family YMCA,
418 F.3d 265, 267 (3d Cir. 2005)); see also McDonnell Douglas v. Green, 411 U.S. 792, 802-03
(1973). “The existence of a prima facie case of employment discrimination is a question of law
that must be decided by the Court.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.
2003) (per curiam).
If a plaintiff establishes a prima facie case, a “relatively light” burden is placed upon the
defendant. This burden is satisfied “if the employer provides evidence, which if true, would
permit a conclusion that it took the adverse employment action for a non-discriminatory reason.”
Burton, 707 F.3d at 426 (citations omitted). When the defendant satisfies this burden, the burden
then shifts back to the plaintiff to proffer some evidence “from which a factfinder reasonably
could either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an
invidious discriminatory reason was more likely than not a motivating or determinative cause of
the employer’s action.” Id. at 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
Plaintiff may show “that the employer has previously discriminated against [the plaintiff], that
the employer has previously discriminated against other persons within the plaintiff’s protected
class, or that the employer has treated more favorably similarly situated persons not within the
protected class.” Jones v. School Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (bracketed
text original) (quoting Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir.
1998)).
In this case, Defendant challenges only Plaintiff’s ability to establish that she suffered an
adverse employment action. (Def.’s Mot. 13). An adverse employment action may be the
“hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S.

12

742, 761 (1998); see also Cardenas v. Massey, 269 F.3d 251, 267 n.10 (3d Cir. 2001) (a
“tangible employment action” is defined as “a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing significant change in benefits.”). “[A] transfer, even without loss of pay or
benefits, may, in some circumstances, constitute an adverse job action.” Torre v. Casio, Inc., 42
F.3d 825, 831 n.7 (3d Cir. 1994) (citing Collins v. Illinois, 830 F.2d 692, 702-04 & 702 n.7 (7th
Cir. 1987)); see also Jones, 198 F.3d at 411-12.
Plaintiff has offered evidence sufficient for a jury to conclude that she suffered an
adverse employment action. Plaintiff’s detail out of the specialized and respected NSF unit to
administrative desk duty, and the required relinquishment of her weapon, constitutes a significant
change in her employment status that rises to the level of an adverse employment action. Indeed,
several circuit courts have found the existence of adverse employment actions based upon
strikingly similar facts. See Caver v. City of Trenton, 420 F.3d 243, 256 (3d Cir. 2005) (holding
police officer’s transfer from position as a K-9 officer to an administrative position constituted
an adverse employment action because the administrative position “significantly altered his
duties. . .carried much less prestige. . .and [forced him] to turn over his weapon, thereby
preventing him from performing many of the normal duties of a police officer”); Shockency v.
Ramsey Cnty., 493 F.3d 941, 948-49 (8th Cir. 2007) (holding a transfer to a role with
significantly less responsibility, and ultimately to a role of desk work without the ability to earn
overtime pay, constituted an adverse employment action). Plaintiff has offered evidence
sufficient to establish a prima facie case of discrimination.
The burden shifts to Defendant, which claims that it “clearly had a legitimate, nondiscriminatory reason for investigating disciplinary charges and failing to respond to the alleged

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hostile work environment.” (Def.’s Mot. 15.) Defendant contends that it had a legitimate, nondiscriminatory reason to investigate and discipline Plaintiff for insubordination and unbecoming
conduct relative to the June 6, 2012 incident with Sgt. Burton. (Def.’s Mot. 15-16.) Assuming
that to be true, Plaintiff has rebutted this reason by offering evidence tending to show that she
was treated more harshly than her male colleagues for engaging in similar conduct. For
example, Plaintiff points to disciplinary records for certain of Plaintiff’s male colleagues from
which a jury may infer that they received more favorable treatment than Plaintiff received. (Pl.’s
Resp. Ex. 5.) These disciplinary records, on their face, tend to show that Plaintiff’s male
colleagues were not disciplined as harshly as Plaintiff. (Id.) Plaintiff also testifies that her male
colleagues never received discipline rising to the level of suspension and transfer to
administrative duty for their regular and pervasive use of obscene language and for talking back
to superiors. (Brooks Dep. 435.) Defendant’s explanation for the actions taken against Plaintiff
may ultimately prevail. “That, however, is not the point. Rather, looking at the facts in the light
most favorable to [Plaintiff] and drawing all reasonable inferences in [her] favor, the evidence at
[this] summary judgment [stage] demonstrate[s] that [s]he could persuade a reasonable jury that
[Defendant’s] proffered reasons for the transfer [are] not worthy of credence.” Torre, 42 F.3d at
833. Accordingly, Defendant’s Motion as to Plaintiff’s claim for discrimination will be denied.
2.

Claim of Retaliation

Similar to the claim for discrimination, Defendant contends that Plaintiff cannot establish
a prima facie case of retaliation because she cannot establish that she suffered an adverse
employment action, and there is no causal connection between her protected activity and the
action she suffered. “To establish a prima facie case of retaliation under Title VII, a plaintiff
must tender evidence that: (1) she engaged in activity protected by Title VII; (2) the employer

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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
Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (citation and internal quotation marks omitted).
With regard to the first element, Defendant stipulates that Plaintiff engaged in a protected
activity by reporting Sgt. Burton’s alleged theft of money from drug suspects to Internal Affairs.
(Def.’s Mot. 14.) With regard to the second element, as discussed above, Plaintiff has provided
sufficient evidence that she suffered an adverse employment action. Therefore, our analysis
focuses on the causal connection between the protected activity and the adverse action taken
against Plaintiff.
On May 4, 2012, Plaintiff reported Sgt. Burton to Internal Affairs alleging corruption
with regard to theft of money from suspected drug dealers. On May 22, 2012, Sgt. Burton made
it very apparent to Plaintiff that he knew that she had reported him to Internal Affairs and he
vowed retaliation. Thereafter, a verbal altercation between Plaintiff and Sgt. Burton occurred on
June 6, 2012. Following the June 6, 2012 incident, Sgt. Burton made a formal request on June 7,
2012 to initiate disciplinary proceedings against Plaintiff. He followed up that request on June 9,
2012, with a Memorandum detailing his allegations against Plaintiff and requesting that she be
detailed out of the NSF. The June 9, 2012 Memorandum notes that Plaintiff informed Sgt.
Burton that she “reported” him and called him a “thief.” (Pl.’s Resp. Ex. 3.) Captain Fraizer,
explicitly relied upon Sgt. Burton’s Memorandum, incorporating it by reference in her formal
request to the Chief Inspector of the Narcotics Bureau that Plaintiff be detailed out of the NSF.
This request by Captain Fraizer resulted in Plaintiff’s detail out of the NSF.
Based upon Plaintiff’s testimony and the timeline of events, a jury certainly could
conclude that there is a causal connection between Plaintiff’s report of corruption in May of

15

2012, and the events that led to her later detail out of the NSF. Plaintiff’s testimony suggests that
as of May 22, 2012, Sgt. Burton intended to retaliate against her for reporting him to Internal
Affairs, and that he seized upon the June 6, 2012 incident to do so. The passage of time, which
was just over one month, between the report to Internal Affairs and Sgt. Burton’s request that put
Plaintiff’s detail out of the NSF in motion does not negate the causal connection between the
events. The statements made by Sgt. Burton on May 22, 2012, along with the intervening events
and the short period of time clearly suggest a causal connection. See Williams v. Phila. Housing
Auth. Police Dept., 380 F.3d 751, 760 (3d Cir. 2004) (“[W]here the temporal proximity is not so
close as to be unduly suggestive, we have recognized that timing plus other evidence may be an
appropriate test.”) (internal quotation marks and citations omitted). Based upon the totality of
the circumstances, there is sufficient evidence for Plaintiff to proceed with her retaliation claim. 3
Defendant’s Motion as to this claim will be denied.
D.

Plaintiff’s Claims on the Basis of Race

As a final matter, Plaintiff’s Complaint asserts claims for hostile work environment,
discrimination, and retaliation based upon gender and race. Plaintiff’s completed EEOC Intake
Questionnaire and Charge of Discrimination both reflect that Plaintiff checked a box that alleged
discrimination based upon race and sex. (Def.’s Mot. Exs. 14 & 15.) However, Plaintiff’s
EEOC Intake Questionnaire makes substantive reference only to her report to Internal Affairs of
alleged corruption, and her Charge of Discrimination explicitly states, in her words, “I believe

3

While Defendant does not argue that it cannot be liable for Sgt. Burton’s actions,
because he is a nondecisionmaker, Plaintiff correctly notes that Defendant may be held liable
under a “cat’s paw” theory of liability. Under such a theory of liability, the ultimate test is one
of proximate causation where the nondecisionmaker’s (Sgt. Burton) actions so influence the
ultimate adverse action made by the decisionmaker (Captain Fraizer). See Burlington v. News
Corp., --- F. Supp. 3d. ---, 2014 WL 5410062, at *7-8 (E.D. Pa. 2014) (citing Staub v. Proctor
Hosp., 562 U.S. 411 (2011)). Staub’s analysis applies in Title VII cases. Id. at *8.
16

that I have been subjected to discriminatory actions because of my sex (female).” (Id.) Indeed,
Plaintiff’s Response to Defendant’s Motion for Summary Judgment makes repeated references
only to claims based upon her gender. (Def.’s Mot. 1 (Plaintiff “was singled out and punished
because of her gender.”); id. at 2-6 (describing discrimination and harassment based solely upon
Plaintiff’s gender, not her race); id. at 7 (“[T]he essence of [P]laintiff’s claims is that she was a
female police officer who was subject to institutional discrimination and retaliation.”) (emphasis
added); id. at 9-10 (detailing disparate disciplinary treatment between Plaintiff, as a female
officer versus her male colleagues); id. at 11-15 (detailing a sexually hostile work environment).)
Nowhere within Plaintiff’s Response is there a reference to, let alone an evidentiary showing,
that her claims are in fact based upon race. The record presented here leaves little doubt that this
case is premised upon gender based discrimination and harassment, not race. Because Plaintiff
has failed to provide any evidence in support of her race based claims, and because her Response
to Defendant’s Motion makes clear that her case is limited to gender based claims, Defendant’s
Motion will be granted as to Plaintiff’s race based claims.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion will be denied as to all gender based

claims, and granted as to all race based claims.
An appropriate Order follows.

BY THE COURT:

/R. Barclay Surrick
_________________________
R. BARCLAY SURRICK, J.

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